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HomeMy WebLinkAbout06/18/2024 07.I. Resolution authorizing an agreement with Yakima Rotaract for the development, maintenance and use of a pollinator garden at West Valley Community Park r `y s ljlt ',, . s BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 7.1. For Meeting of: June 18, 2024 ITEM TITLE: Resolution authorizing an agreement with Yakima Rotaract for the development, maintenance and use of a pollinator garden at West Valley Community Park SUBMITTED BY: Scott Schafer, Public Works Director *Ken Wilkinson, Parks & Recreation Manager SUMMARY EXPLANATION: Rotaract, a Rotary Club in Yakima for young professionals. has approached the Yakima Parks & Recreation Division to create a pollinator garden at West Valley Community Park. The pollinator garden will be 16 feet x 16 feet and will be design by Emily Hamant, a Conservation Educator and Yakima Heritage Gardens Coordinator. The garden will be planted with plants that will attract pollinators. The location of the garden will be on the north side of Wide Hollow Creek in an area that has been planted in natural grasses and vegetation. Rotaract will complete the preparation of the area with the assistance for Park Maintenance, pay for and plant the plants. A presentation was given to Yakima Park & Recreation Commission on Wednesday, May 8, 2024 and the project has received their approval. Enclosed for City Council review is the Agreement between the City and Yakima Rotaract. ITEM BUDGETED: N/A STRATEGIC PRIORITY: Strengthening Partnerships RECOMMENDATION: Approve Resolution. ATTACHMENTS: Resolution Pollinator Garden Agreement 041824 v.4 -final.docx WVCP pollinator garden locaton map.pdf Pollinator Garden Sign Example - exhibit 2.pdf 44 RESOLUTION NO. R-2024- A RESOLUTION approving an agreement with Yakima Rotaract ("YR") for development, maintenance, and use of a portion of West Valley Community Park ("Park") for a Pollinator Garden ("Garden"). WHEREAS, the City is the owner of the Park located generally at 1323 S. 80th Avenue, Yakima, Washington; and WHEREAS, the Park is a valuable resource for the community; and WHEREAS, the City is committed to ensuring that improvements to the Park serve the best interests of the community, improve the Park facilities, and serve to enhance the Park; and WHEREAS, YR is interested in bettering the Park through the placement of the Garden at the Park; and WHEREAS, the Garden will be approximately 16 feet by 16 feet, but may be expanded in the future, and will be located approximately at the 75th Avenue cul de sac at the Park; and WHEREAS, YR will provide all funding for purchasing materials and installation of the Garden, the walkway and the educational sign/post, including, without limitation the purchasing and planting of the plants and vegetation, and maintenance of the same at the Park as provided herein; and WHEREAS, YR will consult and seek support services from the Benton County Conservation District ("Benton"), whose address is 418 N. Kellogg St., Suite B, Kennewick, WA 99336, prior to and during YR's performance under this Contract. Benton is anticipated to provide YR planning and consultation on the preparation for the Garden, including, without limitation, consultation on the plants and vegetation to be planted, the layout of the Garden, and the site plan and planting plan. Benton will not be providing any funding for the Garden and is not a party to the agreement. In return for its consultation, Benton will be permitted to install a "Heritage Garden" sign at the Garden in a location agreed upon by all parties; and WHEREAS, the City is willing to accept the financial, design and other resources offered by YR for the improvements; and WHEREAS, the City Council has determined that it is in the best interest of the City of Yakima to enter into an Agreement with YR, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The Interim City Manager or his designee is hereby authorized and directed to enter into the Agreement between the City and YR, attached hereto and incorporated herein, for development, maintenance, and use of a portion of the Park for the Garden. 1 45 ADOPTED BY THE CITY COUNCIL this 18th day of June, 2024. Patricia Byers, Mayor ATTEST: Rosalinda Ibarra, City Clerk 2 46 AGREEMENT FOR DEVELOPMENT, MAINTENANCE AND USE OF A PORTION OF WEST VALLEY COMMUNITY PARK FOR A POLLINATOR GARDEN THIS AGREEMENT is entered into between the City of Yakima ("City")whose address is 129 North 2nd Street,Yakima, Washington, 98901; and the Yakima Rotaract ("YR")whose address is 502 W. Nob Hill Blvd., Ste 2, Yakima, WA 98902 for purposes of the development, maintenance and use of a portion of West Valley Community Park("Park") placement of a pollinator garden ("Garden"). WHEREAS, the City is the owner of the Park located generally at 1323 S. 80th Avenue, Yakima, Washington; WHEREAS,the Park is a valuable resource for the community; WHEREAS, the City is committed to ensuring that improvements to the Park serve the best interests of the community, improve the Park facilities, and serve to enhance the Park; WHEREAS,YR is interested in bettering the Park through the placement of the Garden at the Park; WHEREAS, the Garden will be approximately 16 feet by 16 feet, but may be expanded in the future, and will be located at the 75th Avenue cul de sac at the Park at the approximate location indicated in the map attached hereto as Exhibit 1. WHEREAS,YR will provide all funding for purchasing materials and installation of the Garden,the walkway and the educational sign/post, including, without limitation the purchasing and planting of the plants and vegetation, and maintenance of the same at the Park as provided herein; WHEREAS,YR will consult and seek support services from the Benton County Conservation District ("Benton"). whose address is 418 N. Kellogg St., Suite B, Kennewick, WA 99336, prior to and during YR's performance under this Contract. Benton is anticipated to provide YR planning and consultation on the preparation for the Garden, including,without limitation, consultation on the plants and vegetation to be planted,the layout of the Garden, and the site plan and planting plan. Benton will not be providing any funding for the Garden and is not a party to this Contract. In return for its consultation, Benton will be permitted to install a "Heritage Garden" sign at the Garden in a location agreed upon by all parties. WHEREAS,the City is willing to accept the financial, design and other resources offered by YR for the improvements; and NOW, THEREFORE, in consideration of the covenants and agreements contained herein and performed by the parties hereto, it is hereby agreed as follows: 1. Purpose. The purpose of this Agreement is to define the responsibilities of the City and YR in the Park for the installation and maintenance of the Garden and to provide for effective cooperation in the implementation of the provisions set forth herein. City of Yakima—Pollinator Garden Agreement Page 1 47 2. Obligations of the Parties. The City shall perform the following obligations: A. The City shall assist in planning the improvements to the Park to add the Garden,the walkway, and the educational sign/post. B. The City shall oversee the site development in accordance with the plans provided by Benton to YR. C. The City shall maintain and make necessary adjustments to the irrigation system, if any,at the Garden. D. The City shall install an educational sign and post to be purchased by YR. E. The City shall work with YR to ensure the YR has access to the Garden for maintenance and upkeep. F. The City will construct the earthen walkway to the Garden. YR shall perform the following obligations: A. Construction and Development 1. YR shall build the Garden in the location provided in Exhibit 1 hereto and in the manner proscribed in the site plan and planting plan provided to YR by Benton and approved by Public Works. 2. As soon as practical after receiving approval from Public Works for a mutually agreed plan, YR shall commence work and advise Public Works of its progress with final completion of the project required within two months of the start date, unless a different date is mutually agreed upon in an amendment to this Agreement. 3. YR shall inform Public Works of the progress of the project and promptly consult with Public Works concerning any proposed changes from the working drawings, planned construction, landscape or other elements of the site including, but not limited to the Garden. 4. YR shall immediately halt all work at the site and consult with Public Works regarding any problem or material change in the plans. 5. YR shall be solely responsible for the construction (and maintenance as provided in the following subsection). If YR contracts with and/or uses subcontractors in such construction (and maintenance), YR shall be solely responsible for the timely and full payment of such subcontractor(s). YR shall ensure that no materialman, contractor, or similar lien(s) or encumbrances, are placed on the Garden or any property of the City as a result of any work performed by any subcontractor engaged by YR. 6. YR shall purchase an educational sign and post for the Garden. The sign shall be in the form and contain the information as indicated in Exhibit 2 attached hereto and shall be approved by the City prior to purchase. The sign shall be approximately four (4)feet off the ground. The sign shall be located in the approximate location provided in Exhibit 1. City of Yakima—Pollinator Garden Agreement Page 2 48 B. Operation and Maintenance 1. YR shall maintain the Garden, the educational sign and associated improvements, including, without limitation, pulling weeds in the Garden and replacing plants or vegetation that need replacing. The parties anticipate that within three (3) years of the construction of the Garden that it will be self-sustaining. When the Garden is deemed self-sustaining by the City, YR's obligations under this subparagraph shall not be tasked with continuing to replace plants and vegetation. 2. YR shall ensure the overall condition of the Garden and associated improvements are consistent with the general standards for use and enjoyment by the public with appropriate regard for health, safety and welfare,the aesthetics of the area and all other aspects of the site and its elements. 3. YR and the City shall cooperate to ensure that the Garden will be replaced if there is destruction, whether due to accident, natural causes, vandalism or other factors. Replacement of the Garden and associated improvements shall be at the expense of YR. 4. YR will be permitted to install a sign recognizing their donation and the size and location will be agreed upon by the City and YR. C. Alteration and Removal 1. YR shall not materially alter the Garden or its configuration without prior written approval from Public Works. 2. YR shall not remove any part of the Garden or the associated improvements without prior written approval from Public Works. 3. If it is determined by the City that the Garden should be removed for any reason,the City may choose to remove the Garden in its discretion. If the City decides to remove the Garden,YR will assist in the Garden's removal. D. Consultation with City 1. YR shall consult with Public Works on an annual basis, or more often as necessary, for purposes of monitoring the condition of the Garden and improvements and determining if any additional improvements are required in the operation and maintenance of the site. 2. YR shall provide all requested information, as requested by Public Works, concerning the condition of the Garden and associated improvements, and shall not unreasonably withhold consent to meeting and exchanging information necessary to implement this Agreement. E. Consultation with Benton: 1. YR shall consult with Benton and, in consultation with the City, create a site plan and planting plan for the Garden. 2. The proposed design, including working drawings, shall be submitted to the City's Department of Public Works ("Public Works") for review and approval prior to commencement of any ground-disturbing activity at the site. City of Yakima—Pollinator Garden Agreement Page 3 49 3. The design documents and working drawings shall include all features of the Garden including any landscaping around the Garden and all of the plants and vegetation to the planted in the Garden. 3. Term. The term of this Agreement shall commence upon execution hereof and shall remain in effect unless the Agreement is terminated earlier by either party under Section 18 of this Agreement. YR shall proceed with its obligations in a timely manner but shall not have any responsibility for delays caused by others beyond their control or that were not reasonably foreseeable. 4. Administration. This Agreement shall be administered by the City's Parks and Recreation Division. 5. Independent Contractors. YR and Benton (for its consultation work)are independent contractors in the performance of each and every part of this Agreement. As independent contractors,they assume the entire responsibility for carrying out and accomplishing the work and/or services required under this Agreement. Each shall have the sole judgment of the means, mode or manner of the actual performance of the work and/or services required under this Agreement. Additionally, and as an independent contractor, it,and its employees and volunteers,shall make no claim of City employment nor shall it claim against the City any related employment benefits, social security and/or retirement. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership, or agency between YR and/or Benton, any officer, employee,volunteer or agent thereof, and the City. 6. No Third Party Rights. This Agreement is entered into for the sole benefit of the parties. It shall confer no benefits or rights, direct or indirect, on any third parties. No person or entity other than the City and YR may rely upon or enforce any provision of this Agreement. 7. Indemnification and Hold Harmless. A. YR agrees to release, defend, indemnify, and hold harmless the City, its elected and appointed officials, agents, officers, employees, attorneys, representatives, insurers, and volunteers (hereinafter "parties protected") from all liabilities, losses, damages, and expenses related to all claims, suits, arbitration actions, investigations, and regulatory or other governmental proceedings arising from or in connection with this Agreement or the acts, failures to act, errors or omissions of YR, or any YR's agents or subcontractors, in performance of this Agreement, including, without limitation, (1) claims, demands, liens, lawsuits,administrative and other proceedings,(including reasonable costs and attorneys' fees) and (2)judgments, awards, losses, liabilities, damages, penalties, fines, costs and expenses of any kind claimed by third parties arising out of, or related to any death, injury, damage or destruction to any person or any property to the extent caused by any negligent act, action, default, error or omission or willful misconduct arising out of YR's performance under this Agreement. In the event that any lien is placed upon the City's property or any of the City's officers, employees or agents as a result of any action or inaction of YR, including,without limitation,the negligence or willful misconduct of YR,YR shall at once cause the same to be dissolved and discharged by giving bond or otherwise. City of Yakima—Pollinator Garden Agreement Page 4 50 B. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115,then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of YR and the City,YR's liability, including the duty and cost to defend, shall be only to the extent of the YR's negligence. C. Industrial Insurance Act Waiver. It is specifically and expressly understood that YR waives any immunity that may be granted to it under the Washington State industrial insurance act, Title 51 RCW et. seq., solely for the purposes of this indemnification.YR's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. YR shall require that its subcontractors, and anyone directly or indirectly employed or hired by YR, and anyone for whose acts YR may be liable in connection with its performance of this Agreement, comply with the terms of this paragraph,waive any immunity granted under Title 51 RCW, and assume all potential liability for actions brought by their respective employees. The Parties acknowledge that they have mutually negotiated this waiver. D. Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. F. The provisions of this Section shall survive the termination or expiration of this Agreement. 8. Nondiscrimination. During the performance of this Agreement,the Parties shall not discriminate in violation of any applicable federal, state and/or local law or regulation on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability, honorably discharged veteran or military status, pregnancy, sexual orientation, or any other classification protected under federal, state or local law. This provision shall include, but not be limited to,the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. 9. Records, Inspection & Production. YR shall maintain (in accordance with generally accepted accounting practices) books, accounts, records, documents and other materials ("Records") related directly or indirectly to the costs, expenses, and expenditures incurred and/or made pursuant to this Agreement. The Records shall, at all times, be subject to inspection by and with the approval of the City. The making of (or failure or delay in making) such inspection or approval by the City shall not relieve YR of responsibility for performance in accordance with this Agreement, notwithstanding the City's knowledge of defective or non-complying performance, its substantiality or the ease of its discovery. YR shall provide the City sufficient,safe, and proper facilities, and/or send copies of the requested documents to the City. YR's records relating to this Agreement will be provided to the City upon the City's request. City of Yakima—Pollinator Garden Agreement Page 5 51 YR shall promptly furnish the City with such information and records which are related to this Agreement as may be requested by the City. All records relating to YR's obligations under this Agreement must be made available to the City, and the records relating to YR's obligations under this Agreement are City of Yakima records. Such records must be produced to third parties, if required pursuant to the Washington State Public Records Act, Chapter 42.56 RCW, or by law. All records relating to YR's obligations under this Contract must be retained by YR for the minimum period of time required pursuant to the Washington Secretary of State's records retention schedule. If any litigation, claim or audit is started before the expiration of the of the minimum period of time required pursuant to the Washington Secretary of State's records retention schedule,the records shall be retained until all litigation, claims, or audit findings involving the records have been fully resolved. The terms of this section shall survive any expiration or termination of this Contract. 10. Compliance with Law. The Parties to this Agreement shall comply with all applicable federal, state and local laws, rules and regulations in carrying out the terms and conditions of this Agreement. 11. No insurance by City Covering YR or Benton. It is understood the City does not maintain liability insurance for YR or Benton,or its employees,officers, volunteers or subcontractors. 12. Contractor's Liability Insurance. At all times during performance of the obligations under this Agreement, YR shall secure and maintain in effect insurance to protect the City and YR from and against any and all claims, damages, losses, and expenses arising out of or resulting from the performance of this Agreement. YR shall provide and maintain in force insurance in limits no less than that stated below, as applicable. The City reserves the right to require higher limits should it deem it necessary in the best interest of the public. YR will provide a Certificate of Insurance to the City as evidence of coverage for each of the policies and outlined herein. A copy of the additional insured endorsement attached to the policy will be included with the certificate. This Certificate of insurance shall be provided to the City, prior to commencement of work. Failure of City to demand such verification of coverage with these insurance requirements or failure of City to identify a deficiency from the insurance documentation provided shall not be construed as a waiver of YR's obligation to maintain such insurance. YR's insurance coverage shall be primary insurance with respect to those who are named as additional insureds under this Agreement. Any insurance, self-insurance or insurance pool coverage maintained by the City shall be in excess of the YR's insurance and neither the City nor its insurance providers shall contribute to any settlements, defense costs, or other payments made by YR's insurance. All additional insured endorsements required by this Section shall include an explicit waiver of subrogation. If at any time during the life of the Agreement, or any extension, YR fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately. Any failure to maintain the required insurance is sufficient cause for the City to terminate the Agreement. City of Yakima—Pollinator Garden Agreement Page 6 52 The following insurance is required: a. Commercial Liability Insurance. Before this Agreement is fully executed by the parties, YR shall provide the City with a certificate of insurance as proof of commercial liability insurance with a minimum liability limit of Two-Million Dollars($2,000,000.00)per occurrence,combined single limit bodily injury and property damage, and Two-Million Dollars ($2,000,000.00) general aggregate. If YR carries higher coverage limits, such limits shall be shown on the Certificate of Insurance and Endorsements and the City, its elected and appointed officials, employees, agents, attorneys and volunteers shall be named as additional insureds for such higher limits. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Contract. The certificate of insurance and additional insured endorsement shall name the City of Yakima, its elected and appointed officials, employees, agents, attorneys and volunteers as additional insureds,and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City prior written notice. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide and admitted in the State of Washington. The requirements contained herein, as well as City of Yakima's review or acceptance of insurance maintained by YR is not intended to and shall not in any manner limit or qualify the liabilities or obligations assumed by YR under this Agreement. b. Employer's Liability(Stop Gap). YR and any and all subcontractor(s) shall at all times comply with all applicable workers'compensation,occupational disease,and occupational health and safety laws, statutes, and regulations to the full extent applicable, and shall maintain Employer's Liability insurance with a limit of no less than$1,000,000.00. The City shall not be held responsible in any way for claims filed by YR or its employees for services performed under the terms of this Agreement. YR agrees to assume full liability for all claims arising from this Agreement including claims resulting from negligent acts of all subcontractor(s). YR is responsible to ensure subcontractor(s) have insurance as needed. Failure of subcontractors(s) to comply with insurance requirements does not limit YR's liability or responsibility. 13. Waiver of Breach. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant, or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant,condition or right. 14. Dispute Resolution. The City and YR shall meet to discuss any outstanding issues related to the development of the site and/or the implementation of this Agreement in order to resolve any disputes through cooperation and negotiation. 15. Integration. This Agreement contains all of the terms and conditions agreed on by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement, are deemed to exist or to bind either of the parties. 16. Modifications or Amendments. The parties may modify this Agreement but no proposed changes or modifications shall have validity or become binding on either party unless such changes or modifications are in writing and executed by both parties. City of Yakima—Pollinator Garden Agreement Page 7 53 17. Severability. If a court of competent jurisdiction holds any part, term or provision of this Agreement 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 invalid. Further, if any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision in this Agreement 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. 18. Termination. The parties may terminate this Agreement,with or without cause,by written notice from either party to the other party thirty (30) days in advance of the termination. If (a)the Agreement is terminated; or (b) if, in the sole discretion of the City,the Garden is not being properly maintained by YR, the City may remove the Garden and all improvements relating thereto. Upon any removal by the City under this paragraph,this Agreement shall be automatically terminated. 19. Assignment. YR may not assign its interest in this Agreement without the prior written consent of the City, which consent may be withheld in the sole discretion of the City. The City may assign its interest in this Agreement at its discretion and without the consent of the other parties. 20. Survival. Any provision of this Agreement which imposes an obligation after expiration or termination of this Agreement shall survive the expiration or termination and shall bind the parties. 21. Notices. Unless otherwise stated herein, all notices and demands are required in written form and sent to the parties at their addresses as follows: TO: CITY OF YAKIMA Dave Zabel!, Interim City Manager 129 North Second Street Yakima, WA 98901 COPY TO: CITY OF YAKIMA c/o Parks& Recreation Manager 2301 Fruitvale Blvd. Yakima, WA 98902 TO: Yakima Rotaract C/O Kyle Rasmussen P.O. Box 464 Yakima, WA 98907 City of Yakima—Pollinator Garden Agreement Page 8 54 22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Venue for any claim or dispute shall be in Yakima County, Washington. 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