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HomeMy WebLinkAboutR-2008-167 Committee for Downtown Yakima Amendment, MOU, & AgreementRESOLUTION NO. R-2008-167 A RESOLUTION authorizing and directing the City Manager to (1) execute Third Amendment to CDY Agreement for Professional Services; (2) sign Memorandum of Understanding Between the City of Yakima and Committee for Downtown Yakima; and (3) execute Agreement for Downtown Ambassador Services for the City of Yakima. WHEREAS, the City of Yakima has a deep and abiding interest in the maintenance, beautification, safety and preservation of the City's Downtown Core; and 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 City of Yakima does not have sufficient funds dedicated within its budget, nor sufficient City staff to adequately maintain the plants, sidewalks and parking areas within the City's Business Core, or to provide safety patrols therein; and WHEREAS, on May 5, 2005 the City of Yakima entered into an Agreement with CDY (Committee for Downtown Yakima, a Washington non-profit corporation) whereby CDY would provide the City with professional assistance necessary for the revitalization. of the City downtown area, including the Central Business District; and WHEREAS, both the City of Yakima and CDY have a common interest in protecting, promoting and maintaining the Downtown Yakima Business Improvement District (DYBID) as an attractive, safe and enjoyable place for public enjoyment; and WHEREAS, CDY has the resources, the expertise and the opportunity to provide maintenance and safety management and administration that is necessary to keep the City's Downtown Yakima Business Improvement District (DYBID) attractive, clean and safe, and is willing to enter into the Third Amendment to a Professional Services Agreement with the City to carry out those objectives and as defined in the Memorandum of Understanding; and WHEREAS, the Yakima City Council believes it to be in the best interests of the City, the Yakima Central Business District as defined herein, and the citizens of Yakima to utilize the expertise of CDY to provide ambassador services in downtown Yakima and to contract for the services and materials necessary to maintain the City's Downtown Yakima Business Improvement District (DYBID) and to manage and carry out the duties and responsibilities set forth in the attached and incorporated Agreement For Downtown Ambassador Services for City of Yakima; and WHEREAS, representatives from both the City of Yakima and CDY have met to discuss promotional and maintenance standards within the Central Business District and identify ways of accomplishing their mutual objectives; both entities have committed to work toward the achievement of those objectives and have formalized their agreements in the attached and incorporated documents that include: (1) Third Amendment to CDY Agreement for Professional Services; (2) Memorandum of Understanding Between the City of Yakima and Committee for Downtown Yakima; and (3) Agreement for Downtown Ambassador Services for the City of Yakima, NOW, THEREFORE, Reso CDY-Profess Sem Amend 3-MOU-Ambass Svcs 08 (2)/ms 1 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated (1) Third Amendment to CDY Agreement for Professional Services; (2) Memorandum of Understanding Between the City of Yakima and Committee for Downtown Yakima; and (3) the Agreement for Downtown Ambassador Services for the City of Yakima, to provide the City with professional administration and management for the maintenance and safety of the Downtown Yakima Business Improvement District. ADOPTED BY THE CITY COUNCIL this 2nd day of mber, 2008. ATTEST: fisL_Aha_G rycrLs2— City Clerk Reso CDY-Profess Secy Amend 3-MOU-Ambass Svcs 08 (2)/ms avid Ed er, Mayor AGREEMENT FOR DOWNTOWN AMBASSADOR SERVICES for City of Yakima, Washington This agreement is made and entered into on this day of P 2008, between the City of Yakima, Washington, hereinafter referred to as CITY, and the non-profit corporation Committee for Downtown Yakima, hereinafter referred to as COMMITTEE. CITY and COMMITTEE for mutual consideration hereinafter set forth, agree as follows: I. OBJECTIVES To provide ambassador services in downtown Yakima. II. SCOPE OF SERVICES The COMMITTEE agrees to perform certain ambassador tasks. These tasks are defined as a foot and/or bike patrol within the DYBID downtown district to act as safety ambassadors, eyes and ears for the police department and provide concierge services to downtown users. III. PAYMENT a. As compensation for these services the CITY agrees that the COMMITTEE will receive all gross assessment revenue and unallocated fund reserves from the "Downtown Yakima Business Improvement District (DYBID)" in accord with the terms and rates set forth in Exhibit "A," attached hereto and incorporated herein by this reference. The maximum total fees and expenses payable by the CITY to the COMMITTEE under this contract shall not exceed the combination of the annual gross revenue of the DYBID and the DYBID unallocated fund reserves. b. Nopayment shall be made for any work performed by the COMMITTEE, except for work identified and set forth in this Contract or supporting exhibits or attachments incorporated by reference into this Contract. c. The COMMITTEE may, in accord to 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 time COMMITTEE performed work for the CITY during the billing period. The CITY shall pay the COMMITTEE 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 billing. d. The COMMITTEE shall not be paid for services rendered under the Contract unless and until they have been performed to the satisfaction of the CITY. e. In the event the COMMITTEE has failed to perform any substantial obligation to be performed by the COMMITTEE under this Contract and such failure has not been cured within ten (10) days following notice from the CITY, then the CITY may, in its sole discretion, upon written notice to the COMMITTEE, withhold any and all monies due and payable to the COMMITTEE, without penalty, until such failure to perform is cured or otherwise adjudicated. "Substantial" for purposes of this Contract means faithfully (Ic)/COM11 JTTEE Services Agreement Page 1 fulfilling the terms of the contract with variances only for technical or minor omissions or defects. f. Unless otherwise provided for in this Contract or any exhibits or attachments hereto, the COMMITTEE will not be paid for any billings or invoices presented for payment prior to the execution of the Contract or after its termination. IV. RETAINER Retainer is waived for CITY. V. STANDARD PROVISIONS 1. TERM OF CONTRACT The term of this Contract shall begin on the date last executed below, and shall terminate upon the termination of the DYBID unless terminated earlier by the CITY in accordance with paragraph 6 of this Section of this Contract. This Contract may be renewed annually by written mutual agreement of both parties. 2. CONTRACT REPRESENTATIVES Each party to this Contract shall have a contract representative. Each party may change its representative upon providing written notice to the other party. The parties' representatives are as follows: a. For COMMITTEE: Name of Representative: Sean Hawkins Title: Deputy Director Mailing Address: 7 N. 3'ti Street City, State and Zip Code: Yakima, WA 98901 Telephone Number. 509-225-2485 Fax Number. E-mail Address: sean©downtownyakima.com b. For CITY: Name of Representative: Chris Waarvick Title: Director of Public Works Mailing Address: 129 North Second Street City, State and Zip Code: Yakima, WA 98901 Telephone Number. 509 575-6411 Fax Number 575-6238 E-mail Address: cwaarvic@ci.yakima.wa.us 3. AMENDMENTS AND CHANGES IN WORK a. In the event of any errors or omissions by the COMMITTEE in the performance of any work required under this Contract, the COMMITTEE shall make any and all necessary corrections without additional compensation. All work submitted by the COMMITTEE shall be certified by the COMMITTEE and checked for errors and omissions. The COMMITTEE 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 Contract unless set forth in a written Contract Amendment, signed by both parties and attached to this Contract. Work under a Contract Amendment shall not proceed until the CITY has duly executed the Contract Amendment. (fc)/COMMIITEE Services Agreement Page 2 4. HOLD HARMLESS AND INDEMNIFICATION a. The COMMITTEE shall hold harmless, indemnify and defend 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, including costs and attorneys fees in defense thereof, for injury, sickness, disability or death to persons or damage to property or business, caused by or arising out of the COMMITTEE'S acts, errors or omissions in the performance of this Contract. Claims shall include, but not be limited to, claims that information supplied by the COMMITTEE infringes any patent, copyright, trademark, trade name, or otherwise results in an unfair trade practice. PROVIDED HOWEVER, that the COMMITTEE'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, the COMMITTEE'S obligations hereunder shall apply only to the percentage of fault attributable to the COMMITTEE, its employees or agents. b. In any and all claims against the CITY, its officers, officials, employees and agents by any employee of the COMMITTEE, 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 the COMMITTEE under Worker's Compensation acts, disability benefits acts, or other employee benefits acts, it being clearly agreed and understood by the parties hereto that the COMMITTEE expressly waives any immunity the COMMITTEE might have had under such laws. By executing the Contract, the COMMITTEE 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 contract the COMMITTEE makes with any COMMITTEE or agent performing work hereunder. c. The COMMITTEE'S obligations hereunder shall include, but are not limited to, investigating, adjusting and defending all claims alleging loss from action, error or omission, or breach of any common law, statutory or other delegated duty by the COMMITTEE, the COMMITTEE'S employees, or agents. 5. INSURANCE a. Workers' Compensation: The COMMITTEE shall maintain workers' compensation insurance as required by Title 51, RCW, and shall provide evidence of coverage to the CITY. If the COMMITTEE has employees, the COMMITTEE shall request the Washington State Department of Labor and Industries, Workers' Compensation Representative, send written verification to CITY that the COMMITTEE is currently paying Workers' Compensation. b. Commercial General Liability: The COMMITTEE shall maintain Commercial General Liability coverage for bodily injury, personal injury and property damage, subject to limits of not less than $1,000,000 per loss. The general aggregate limit shall apply separately to this Contract and be no less than $2,000,000. i. The COMMITTEE shall provide Commercial General Liability coverage which does not exclude any activity to be performed in fulfillment of this Contract. Specialized forms specific to the industry of the COMMITTEE will be deemed equivalent provided coverage is no more restrictive than would be provided under a standard Commercial General Liability policy, including contractual liability coverage. ii. The COMMITTEE'S Commercial General Liability insurance shall include the CITY, its officers, officials, employees and agents with respect to Oc)/C0MMIITEE Services Agreement Page 3 performance of services, and shall contain no special limitations on the scope of protection afforded to the CITY as an additional insured. iii. The COMMITTEE shall furnish the CITY with evidence that the additional insured provision required above has been met. An acceptable form of evidence is the endorsement pages of the policy showing the CITY as an additional insured. iv. If the COMMITTEE'S liability coverage is written as a claims made policy, then the COMMITTEE must evidence the purchase of an extended reporting period or "tail" coverage for a three-year period after project completion, or otherwise maintain the coverage for the three-year period. v. If the Contract is over $50,000 then the COMMITTEE shall also maintain Employers Liability Coverage with a limit of not less than $1 million. c. Automobile Liability: The COMMITTEE shall maintain Business Automobile Liability insurance with a limit of not less than $1,000,000, each accident combined Bodily Injury and Property Damages. Coverage shall include owned, hired and non- owned automobiles. d. Professional Liability Insurance: Before this Agreement is fully executed by the parties, COMMITTEE shall provide the City with a certificate of insurance as evidence of Professional Errors and Omissions Liability Insurance with coverage of at least One Million Dollars ($1,000,000.00) per occurrence and an annual aggregate limit of at least One Million Dollars ($1,000,000.00). The certificate shall dearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect. The insurance shall be with an insurance company rated A-VII or higher in Best's Guide. If the policy is on a claims made basis, the retroactive date of the insurance policy shall be on or before January 1, 1999, or shall provide full prior acts. The insurance coverage shall remain in effect during the term of this Agreement and for a minimum of three (3) years following the termination of this Agreement. e. Other Insurance Provisions: i. The COMMITTEE'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. The COMMITTEE'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. The COMMITTEE shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. v. The insurance limits mandated for any insurance coverage required by this Contract are not intended to be an indication of exposure nor are they limitations on indemnification. vi. The COMMITTEE 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. f. Verification of Coverage and Acceptability of Insurers: The COMMITTEE 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-, with the exception that excess and umbrella coverage used to meet the requirements for limits of liability or gaps in (jc)/COMMITTEE Services Agreement Page 4 coverage need not be placed with insurers or re -insurers licensed in the State of Washington. i. Certificates of Insurance shall show the Certificate Holder as CITY OF YAKIMA and include do of the Office or Department issuing the Contract. 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 Contract Representative identified in Section 4 of this Contract iii. The COMMITTEE 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. The COMMITTEE or its broker shall provide a copy of any and all insurance policies specified in this Contract upon request of the CITY. 6. TERMINATION a. The CITY may terminate this Contract in whole or in part whenever the CITY determines, in its sole discretion, that such termination is in the best interests of the CITY. The CITY may terminate this Contract upon giving thirty (30) days written notice by Certified Mail to the COMMITTEE'S Contract Representative. In that event, the CITY shall pay the COMMITTEE for all costs incurred by the COMMITTEE in performing the Contract up to the date of such notice. Payment shall be made in accordance with Section III of this Contract b. In the event that funding for this project is withdrawn, reduced or limited in any way after the effective date of this Contract, the CITY may summarily terminate this Contract notwithstanding any other termination provision of the Contract. Termination under this paragraph shall be effective upon the date specified in the written notice of termination sent by the CITY to the COMMITTEE. After the effective date, no charges incurred under this Contract are allowable. c. If the COMMITTEE 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 Contract, in which case the CITY shall pay the COMMITTEE only for the costs of services accepted by the CITY, in accordance with Section III of this Contract. Upon such termination, the CITY, at its discretion, may obtain performance of the work elsewhere, and the COMMITTEE shall bear all costs and expenses incurred by the CITY in completing the work and all damage sustained by the CITY by reason of the COMMITTEE'S breach. 7. NO CONFLICT OF INTEREST COMMITTEE represents that it or 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. COMMITTEE further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement Oc)/COMLMITEE Services Agreement Page 5 8. ASSIGNMENT, DELEGATION, AND SUBCONTRACTING a. The COMMITTEE shall perform the terms of the Contract using only its bona fide employees or agents, and the obligations and duties of the COMMITTEE under this Contract shall not be assigned, delegated, or subcontracted to any other person or firm without the prior express written consent of the CITY. b. The COMMITTEE 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 COMMITTEE, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Contract. 9. NON -WAIVER OF RIGHTS The parties agree that the excuse or forgiveness of performance, or waiver of any provision(s) of this Contract 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 Contract at a later time. 10. INDEPENDENT COMMITTEE a. The COMMITTEE'S services shall be furnished by the COMMITTEE as an Independent COMMITTEE and not as an agent, employee or servant of the CITY. The COMMITTEE specifically has the right to direct and control COMMITTEE'S own activities in providing the agreed services in accordance with the specifications set out in this Contract. b. The COMMITTEE acknowledges that the entire compensation for this Contract is set forth in Section III of this Contract, and the COMMITTEE 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. The COMMITTEE shall have and maintain complete responsibility and control over all of its subcontractors, employees, agents, and representatives. No subcontractor, employee, agent or representative of the COMMITTEE shall be or deem to be or act or purport to act as an employee, agent or representative of the CITY. d. The COMMITTEE 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 Contract as to all persons employed by the COMMITTEE and as to all duties, activities and requirements by the COMMITTEE in performance of the work on this project and under this Contract and shall assume exclusive liability therefore, and meet all requirements there underr pursuant to any rules or regulations. e. The COMMITTEE agrees to immediately remove any of its employees or agents from assignment to perform services under this Contract upon receipt of a written request to do so from the CITY'S Contract Representative or designee. 11. COMPLIANCE WITH LAWS The COMMITTEE shall comply with all applicable federal, state and local laws, rules and regulations in performing this Contract. 12. INSPECTION OF BOOKS AND RECORDS The CITY may, at reasonable times, inspect the books and records of the COMMITTEE relating to the performance of this Contract. The COMMITTEE shall keep 0c)/COMMITTEE Services Agreement Page 6 all records required by this Contract for six (6) years after termination of this Contract for audit purposes. 13. NONDISCRIMINATION The COMMITTEE, its assignees, delegatees 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 Contract 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 the right to copyright, patent, register, and the ability to transfer these rights. The CITY agrees that if it uses any materials prepared by the COMMITTEE for purposes other than those intended by this Contract, it does so at its sole risk and it agrees to hold the COMMITTEE harmless therefore to the extent such use is agreed to in writing by the COMMITTEE. 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 the COMMITTEE and the CITY, arising under and by virtue of this Contract, 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 the COMMITTEE shall be decided by the CITY'S Contract Representative or designee. All rulings, orders, instructions and decisions of the CITY'S Contract Representative shall be final and conclusive, subject to the COMMITTEE'S right to seek judicial relief pursuant to paragraph 15 of this Section. 16. CHOICE OF LAW, JURISDICTION AND VENUE a. This Contract 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 Contract 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 Contract shall be instituted and maintained only in any of the courts of competent jurisdiction in the CITY OF YAKIMA, Washington. 17. SEVERABILITY a. If a court of competent jurisdiction holds any part, term or provision of this Contract 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 Contract did not contain the particular provision held to be invalid. b. If any provision of this Contract is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed 0c)/COMMITTEE Services Agreement Page 7 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 Contract so that the original intent and purpose of the Contract no longer exists, the CITY may, in its sole discretion, terminate this Contract. 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 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 working day. 19. ENTIRE AGREEMENT The parties agree that this Contract is the complete expression of its terms and conditions. Any oral or written representations or understandings not incorporated in this Contract are specifically excluded. V. AUTHORIZED SIGNATORS Committee for Downtown Yakima By: Jam Ae. gc.4e1' tickel, Chair of the Board Date: /2// Zfp3 City of Yakima By: R. A. Zais,Jr., City Manager Date: /2 Oc)/COMMITTEE Services Agreement Page 8 ATTACHMENT A SCHEDULE OF 2008/2009 FEES FOR THE SCOPE OF SERVICES AS DEFINED IN SECTION II OF THIS CONTRACT FOR THE FISCAL YEAR 2008/2009 ARE $50,000. 0c)/COMMITTEE Services Agreement Page 9 1010 CONTRACTS Contract Title Agreement for Downtown Ambassador Services Contracting Party Committee for Downtown Yakima Purpose Provide ambassador services in downtown Yakima Originating Division Public Works Staff Liaison Chris Waarvick Amendments Effective Date 12/02/2008 Eff. Date Explanation Expiration Date Exp. Date Explanation ongoing Dollar Amount Dollar Amt Explanation All gross assessment revenue and unallocated fund reserves from the Downtown Yakima Business Improvement District Contract ID 2008-132 Resolution ID R-2008-167 Insurance (yes/no) Insurance Expires Insurance Name File Location No. C 08 131 Archive Info Comments • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No.If to For Meeting of: December 2, 2008 ITEM TITLE: Consideration of Legislation regarding Downtown Yakima Business Improvement District (DYBID) that includes: (1) Resolution authorizing City Manager to: (a) Execute a Third Amendment to Agreement for Professional Services with the Committee for Downtown Yakima (CDY); (b) Sign a Memorandum of Understanding Between the City and CDY; and (c) Execute an Agreement for CDY Ambassador Services; and (2) Conduct the First Reading of an Appropriation Ordinance for Disbursement of 2008 4th Quarter Downtown Yakima Business Improvement District (DYBID) Assessment Revenues to CDY. SUBMITTED BY: Chris Waarvick, Director of Public Works CONTACT PERSON/TELEPHONE: Chris Waarvick, Director of Public Works 576-6411 Jeff Cutter, Sr. Assistant City Attorney 575-6030 Cindy Epperson, Deputy Finance Director 576-6644 Sean Hawkins, CDY 225-2485 0 SUMMARY EXPLANATION: The attached resolution, upon your approval, authorizes the enactment of legislation necessary for the Committee for Downtown Yakima (CDY) to continue its work in the newly formed Downtown Yakima Business Improvement District (DYBID) and access the new revenues from the DYBID assessments into the future. The appropriation ordinance amends the 2008 Budget to provide budgetary authority for the City to pay CDY for services rendered. Continued on next page.) Resolution 1 Ordinance 1 Agreement 3 Other (Specify) Third Amendment to Agreement; MOU, Attachments; & Ambassador Services Agreement Mail to (name and address): Funding Source DYBID Asses is and Parking Lot Revenues APPROVED FOR SUBMITTAL: y Z.:City Manager STAFF RECOMMENDATION: Staff respectfully requests that Council: (1) adopt the Resolution authorizing City Manager to Execute a Third Amendment .to Agreement for Professional Services with the Committee for Downtown Yakima (CDY), Sign a Memorandum of Understanding Between the City and CDY, and Execute an Agreement for CDY Ambassador Services; and (2) read by title only at the December 2, 2008 Business meeting the appropriation ordinance for Disbursement of 2008 4th Quarter Downtown Yakima Business Improvement District (DYBID) Assessment Revenues to CDY and pass the appropriation ordinance after Second Reading at the December 9, 2008 Business meeting. OBOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: CDY Downtown Maintenance December 2, 2008 Page 2 The services CDY are providing include, but are not limited to, maintenance of landscaping, sidewalk cleaning, graffiti abatement, way -finding and safety ambassador assistance, business development assistance and overall management and leadership of downtown improvement efforts within the scope of the agreements and the purposes of the DYBID. The "Third Amendment" refers to an allotment of $50,000 which is topic of a 2009Budgeted Policy Issue to be acted on by Council the previous day (12/1/08). The outcome of that vote, if in the affirmative, provides for CDY's request from the City for a cash contribution to the downtown program. Streets and Parks continue to provide for budgetary contributions through payment of irrigation and electricity consumption. The "Memorandum of Understanding" further defines the obligations between the City and CDY for maintenance tasks. The "Agreement for Downtown Ambassador Services" defines the obligations between the parties for the following types of activities: Safety Ambassadors, Concierge/Way-Finding Assistance, and Public Safety Notification of any relevant downtown issues. It is our intent in 2009 to consolidate these three pieces of legislation into one document for ease of handling in the future. The time simply did not allow for that consolidation to occur now. • MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF YAKIMA AND COMMITTEE FOR DOWNTOWN YAKIMA This Memorandum of Understanding (the "Memorandum) is enteredinto by and between the City of Yakima, Washington, a Washington municipal corporation and the Committee for Downtown Yakima (hereinafter "CDY"), a Washington non-profit corporation, for the purpose of providing for (1) the maintenance of the, shrubs, plants, planter areas, and sidewalks within the City's Downtown Yakima Business Improvement District (DYBID); and (2) citizen assistance and Bicycle Patrol activities in the Central Business District RECITALS WHEREAS, the City of Yakima has a deep and abiding interest in the maintenance, beautification and preservation of the City's Downtown Core; and WHEREAS, the City of Yakima 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 City of Yakima does not have sufficient funds dedicated within its budget, nor sufficient City staff to adequately maintain the plants, sidewalks and parking areas within the City's Business Core; and WHEREAS, on May 5, 2005 the City of Yakima entered into an Agreement whereby CDY would provide the City with professional assistance necessary for the revitalization of the City downtown area, including the Central Business District; and WHEREAS, both the City of Yakima and CDY have a common interest in protecting, promoting and maintaining the Downtown Yakima Business Improvement District (DYBID) as an attractive, safe and enjoyable place for public enjoyment; and WHEREAS, CDY has the resources, the expertise and the opportunity to provide maintenance and safety management that is necessary to keep the City's Downtown Yakima Business Improvement District (DYBID) attractive, clean and safe, and is willing to enter into an agreement with the City to carry out those objectives; and WHEREAS, representatives from both the City of Yakima and CDY have met to discuss promotional and maintenance standards within the Downtown Yakima Business Improvement District (DYBID) and identify ways of accomplishing their mutual objectives; both entities have committed to work toward the achievement of those objectives. NOW THEREFORE, based on the foregoing Recitals, the City of Yakima and CDY agree as follows: A. CDY shall provide for maintenance and care for, shrubs, plants and planter areas, removal of litter, flower planting, manual plant watering, plant fertilization and weed removal within the area of the City identified as Yakima Parking and Memorandum of Understanding-CDY Maintenance Agreement 1 / Business Improvement Area No. 1, subsequently enlarged and renamed and presently known as the Downtown Yakima Business Improvement District (DYBID) (specifically described in its expanded form by Ordinance 2007-15, approved by City Council on April 3, 2007 and referenced in this MOU as the City of Yakima Central Business District (hereinafter "Central Business District"). References within this Memorandum of Understanding to the PBIA shall be intended to be synonymous with the DYBID. Other areas also included in this Memorandum of Understanding are the Millennium Plaza and the Park located at the corner of South 2nd Street and Yakima Avenue. Specific provisions of this Memorandum of Understanding shall include: 1. Utter removal from the Central Business District daily, Monday through Friday inclusive, from all, alleyways, sidewalks and street gutters. 2. From April 1S' through October 15 each year lawn areas at the South 2nd Street Park, Millennium Plaza, the four small lawn areas on the west side of South 4th Street, and the planting beds and islands within the Central Business District shall be irrigated daily. The trees along Yakima Avenue from 1s' Street to 9t Street shall be irrigated by operation of the irrigation timers for that area. 3. On a regularly monthly basis weed control shall be provided for planting beds, islands, tree wells, flowerpots and sidewalk cracks. 4. On a weekly basis lawn areas described in. paragraph 2 above shall each be mowed, trimmed and sidewalk areas adjacent to same cleaned of cuttings and debris. 5. Each year annual plants and flowers shall be provided in the planting areas, pots, and hanging basketswithin the Central Business District area to create an attractive eye -appealing environment. The quantity and location of annual plants and flowers will be determined by the resources available. The lawn areas described in paragraph 2, above, shall each be fertilized no less than two times per year. 7 During the fall, dead vegetation and leaves shall be removed from the planting areas, Millennium Plaza and the park area within the Central Business District and planting pots emptied of dead vegetation to maintain an orderly appearance through the winter. 8. During the winter months snow and ice shall be removed from walkways around the parking lots and from each pedestrian corner within the Central Business District. Snow removal shall be initiated whenever an accumulation of two or more inches of snow occurs, and shall include ice control on the stated areas, as necessary, to provide safe footing. 9. Sidewalks shall be swept weekly throughout the year, with pressure - washing where required to maintain a dean appearance. Sidewalks Memorandum of Understanding-CDY Maintenance Agreement 2 shall also be cleaned within twenty four (24) hours of the conclusion of downtown public events, including but not limited to the basketball tournament, vehicle cruise nights, Farmer's Market, and parades. The CDY and the City will develop an event permit process that includes a clean up deposit for major events. 10. The sidewalk trash receptacles within the Central Business District, as defined in this Memorandum of Understanding, shall be emptied weekly, at a minimum, to avoid spillover. The City will provide trash bags and free dumpster space to dispose of the trash. 11. The City of Yakima and CDY are committed to actively pursue the items specified within this Memorandum of Understanding toward the increased vitality of the Yakima Central Business District. The parties agree that the general basis for the terms of services set forth in this Memorandum of Understanding are identified within Exhibit "A", attached hereto and incorporated herein by this reference. 12. The City will retain responsibility for repair and replacement of all landscape infrastructure. Including, but not limited to pots, planters, hanging baskets and irrigation systems. B. CDY shall provide for its "Safety Ambassador" program as described in the attached Exhibit "A". 'C. The City of Yakima and CDY further agree that for work and services provided under this Memorandum of Understanding that require formal bidding prior to contracting, the City shall be responsible for announcing the scope of work to be bid upon, based upon specific and complete RFP statements provided to the City by CDY, and to conduct the bidding process to the point of the selection of the successful bidder. CDY shall then contract with the successful bidder to perform the particular scope of work or service bid upon, subject to the agreements contained herein between the City and CDY. CDY shall also manage and oversee the provision of work and/or services to be provided by the contractor. The City of Yakima and CDY acknowledge that work and services provided under the contracts envisioned within this Memorandum of Understanding shall be subject to the public bidding process in every case where public and/or PBIA funds are being expended by the City toward the execution of the work or services provided by contractors contracting with CDY for the services identified herein. The only cases where work or services contracted for by CDY may not require a public bidding process will be those where CDY is paying for the work or services directly from its own funding sources. These sources shall not include PBIA funds or City budget funds paid to CDY specifically for the execution of work identified in this Memorandum of Understanding. The City agrees to provide CDY with the DYBID assessment revenue obtained from the businesses within the DYBID. The City also agrees to provide CDY with $50,000 from the 2009 CBD Capital Fund toward the completion of the work and provision of the services identified within this Memorandum of Understanding for the year 2009. Memorandum of Understanding-CDY Maintenance Agreement 3 This Memorandum is a mutual expression of intent of the City and CDY. The parties acknowledge and agree that implementation of the Memorandum will require legislative and administrative action, the allocation of public funds and the commitment of staff and other resources to effectuate the terms and commitments set forth in the Memorandum. AGREED UPON this IL day of December, 2008 For the City of Yakima: For CDY: Dick Zais, City Manager amie Stickel Chair of the Board ATTEST: oore, City Clerk Memorandum of Unuierstanding-CDY Maintenance Agreement 4 ATTACHMENT A SCHEDULE OF 2008/2009 FEES FOR THE SCOPE OF SERVICES AS DEFINED IN SECTION II OF THIS CONTRACT FOR THE FISCAL YEAR 2008/2009 ARE $50,000. (c)/COMMITTEE Services Agreement Page 9 1009 CONTRACTS Contract Title Memorandum of Understanding between the City of Yakima and Committee for Downtown Yakima Contracting Party Committee for Downtown Yakima Purpose 1) maintain downtown shrubbery & plants, 2) citizen assistance and bicycle patrol Originating Division Public Works Staff Liaison Chris Waarvick Amendments Effective Date 12/02/2008 Eff. Date Explanation Expiration Date 12/31/2009 Exp. Date Explanation Dollar Amount Dollar Amt Explanation Contract ID 2008-131 Resolution ID R-2008-167 Insurance (yes/no) Insurance Expires Insurance Name File Location No. C 08 131 Archive Info Comments THIRD AMENDMENT TO CDY AGREEMENT FOR PROFESSIONAL SERVICES for City of Yakima, Washington This amendment to City. Contract Number 2007-26, approved by City Council on December 2, 2008, was made and entered into on the day of December, 2008, between the City of Yakima, Washington, a Washington municipal corporation (hereinafter referred to as "CITY"), and Committee for Downtown Yakima, a Washington non-profit corporation (hereinafter referred to as "CDY"). CITY and CDY for mutual consideration hereinafter set forth, agree to amend the underlying City Contract Number 2007-26 with regard to the following provisions only. Section II, SCOPE OF SERVICES, paragraph 9, is hereby amended to read as follows: The City shall contribute an amount not to exceed a total of Fifty Thousand Dollars ($50,000.00) to CDY for the fulfillment of CDY'S obligations set forth in this contract and as represented within the terms of the Memorandum of Understanding referenced herein between the parties. This total contribution shall be payable from the City's CBD Capital Fund and shall include the maximum of Twenty Five Thousand Dollars ($25,000.00) paid to CDY under the terms of this contract, together with an additional Twenty Five Thousand Dollars ($25,000.00) for the City's share of costs of labor and materials to be provided by contractors CDY shall contract with to fulfill the specific obligations set forth herein and by the terms of the previously executed Memorandum of Understanding. In addition to the Fifty Thousand Dollars provided by the city from the CBD Capital Fund, the city shall allocate to CDY all assessments it receives from the Downtown Yakima Business Improvement District (DYBID) for the purpose of fulfilling CDY's obligations as stated within this agreement and as provided in the Memorandum of Understanding between the parties -hereto; PROVIDED, that if the DYBID is not re- established by the City Council upon its identified disestablishment date, either in its previous form or as it may otherwise be re-established, the City shall have no obligation to provide any additional funding to CDY above the Fifty Thousand Dollars previously identified herein. Section V, STANDARD PROVISIONS, paragraph 1, is hereby amended to read as follows: The term of this Contract shall begin on the date last executed below, and shall terminate on December 31, 2009, unless terminated earlier by the CITY in accordance with paragraph 6 of this Section of this Contract. This Contract may be renewed annually by action of the City Council with the mutual agreement of both parties. Attachment "A" to this contract, identified as "Schedule of 2007" is hereby amended as follows: 1 ATTACHMENT A SCHEDULE OF 2008/2009 FEES PAYABLE BY THE CITY OF YAKIMA FROM THE CBD CAPITAL FUND FOR THE SCOPE OF SERVICES AS DEFINED IN SECTION II OF THIS CONTRACT FOR THE FISCAL CONTRACT YEAR 2008/2009 SHALL NOT EXCEED FIFTY THOUSAND DOLLARS ($50,000.00). All other provisions, terms and conditions set forth in the underlying City Contract Number 2007-26 and all approved amendments thereto shall remain in full force and effect unless otherwise amended in writing per the conditions of said underlying Contract. Committee For Downtown Yakima By: ft Jaimeftickel, Chair of the Board /2 )/OS Date: 2 City of Yakima R. A. Zais, Jr., City Manager Date: /02 // G8 .