HomeMy WebLinkAboutR-2007-051 Committee for Downtown Yakima Agreement (re: management of maintenance / safety programs for PBIA No. 1)RESOLUTION NO. R-2007-51
A RESOLUTION authorizing the execution of a Professional Services Agreement
between the City of Yakima and the Committee for Downtown Yakima
(hereinafter "CDY") for the provision of professional management of,
contracting for and administration of service providers and materials
necessary to accomplish the objectives set forth in the Memorandum of
Understanding that is to be executed between the City and. CDY,
including providing maintenance and safety within the recently
expanded Parking and Business Improvement Area No. 1 (hereinafter
referred to as the "Central Business District").
WHEREAS, the City of Yakima has a deep and abiding interest in the maintenance,
beautification, safety and preservation of the City of Yakima Central Business District; 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 Central Business District or to provide safety patrols therein; 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 Central Business District 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 Central Business District attractive, clean and safe, and is willing to enter into a
Professional Services Agreement with the City to carry out those objectives; 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
(jc)res/CDY-Professional Services
Contract
the expertise of CDY to contract for the services and materials necessary to maintain the
Central Business District and to manage and carry out the duties and responsibilities set
forth in the attached and incorporated CDY Agreement for Professional 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 CDY Agreement for Professional Services for City of Yakima,
NOW, THEREFORE,
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 CDY Agreement for Professional Services for City of Yakima
to provide the City with professional administration and management for the maintenance
and safety of the Yakima Central Business District.
ADOPTED BY THE CITY COUNCIL this 17th day of Aril, 2007.
ATTEST:
City Clerk
(jc)res/CDY-Professional Services
Contract
40 ///
David E•er, Mayor
CDY AGREEMENT
FOR PROFESSIONAL SERVICES
for
City of Yakima, Washington
This agreement is made and entered into on this /0 day of 2007, between the
Cit- 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 as follows:
I. OBJECTIVES
To provide administrative and management services to oversee the maintenance and
beautification programs in downtown Yakima and to fulfill the agreements and
understandings set forth between .the CITY and CDY in that certain Memorandum of
Understanding executed between the parties on -April (0 , 2007.
May
11. SCOPE OF SERVICES
CDY agrees to perform certain consulting, management, administrative and advisory
services for the CITY to fulfill the agreements and understandings set forth between the
CITY and CDY in that certain Memorandum of Understanding executed between the
parties on.AAprd 10 , 2007. These tasks are outlined as follows:
rroxy
1. Develop, implement and provide daily management of maintenance and
beautification programs within the Central Business District (defined for purposes of
this entire Agreement as the downtown areas within PBIA No. 1, as expanded by
Ordinance 2007-15).
2. Contract for and manage existing City contracts for the provision of planting and
landscape services in the Central Business District.
3. Contract. for and provide daily oversight of safety ambassador and maintenance
ambassador programs.
4. Contract for provision of other works and services necessary to fully comply with the
mutual agreements of the parties set forth in the Memorandum of Understanding
identified above.
5. Provide accurate and timely RFP specifications to the CITY for all work requiring
public bidding prior to contracting to accomplish the goals and agreements of the
parties set forth in the Memorandum of Understanding identified above. The CITY
shall conduct all necessary bidding processes based upon the RFP's CDY provides,
and shall provide CDY with the successful bidder's identification in order that CDY
can formally contract therewith for the provision of the services required.
6. Develop and implement a progressive volunteer program to expand the Central
Business District beautification efforts.
(//c)/CDYServices Agreement Page 1
7. Provide CITY with copies of all contracts executed by CDY with contractors and
vendors necessary for the provision of the materials and labor required under the
terms of this Contract.
8. Provide the City with detailed status summaries on July 1 and December 31 of each
contract year detailing all work efforts and management services provided in
compliance with the agreements set forth in the Memorandum of Understanding
between the parties, as well as a description of proposed management services that
will be provided under this contract.
9. The City shall contribute a total of One Hundred Thirteen Thousand Dollars
($113,000.00) 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 include the
Twenty Five Thousand Dollars ($25,000.00) paid to CDY under the terms of this
contract together with the funds provided 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.
The scope of services to be provided specifically by CDY in accord with this Contract are
managerial and administrative only, and shall not include the provision of any actual
labor or materials. It is understood that CDY shall contract for all necessary labor and
materials in compliance with accepted Washington public works and PBIA bidding
practices.
III. PAYMENT
a. As compensation for the managerial and administrative services provided by
CDY the CITY agrees to pay CDY in accord with the 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 CDY for CDY'S services provided under this contract
shall not exceed Twenty Five Thousand Dollars ($25,000.00).
b. No payment shall be made for any work performed by CDY, except for work
identified and set forth in this Contract or supporting exhibits or attachments
incorporated by reference into this Contract.
c. CDY 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 time CDY performed work
for the CITY during the billing period. The CITY shall pay CDY for services rendered in
the month following the actual delivery of the work and wilt remit payment within thirty
(30) days from the date of receipt of billing.
d. CDY 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 CDY has failed to perform any substantial obligation to be
performed by CDY 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 CDY, withhold any and all monies due and payable to CDY, without
penalty, until such failure to perform is cured or otherwise adjudicated. "Substantial" for
CO/CDY Services Agreement Page 2
purposes of this Contract means faithfully 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, CDY 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 on June 10, 2008, 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.
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 CDY:
Name of Representative: Sean Hawkins
Title: Deputy Director
Mailing Address: 7 N. 3`d 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: Public Works Director
Mailing Address: 2301 Fruitvale Blvd.
City, State and Zip Code: Yakima, WA 98902
Telephone Number: 509 575-6005
Fax Number: 509 575-6238
E-mail Address: cwaarvick@ci.yakima.wa.us
(jc)/CDY Services Agreement Page 3
3. AMENDMENTS AND CHANGES IN WORK
a. In the event of any errors or omissions by CDY in the performance of any
work required under this Contract, CDY shall make any and all necessary corrections
without additional compensation. All work submitted by CDY shall be certified by CDY
and checked for errors and omissions. CDY 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 approved by City Council, 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.
4. HOLD HARMLESS AND INDEMNIFICATION
a. CDY 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 CDY'S acts, errors or
omissions in the performance of this Contract. Claims shall include, but not be limited
to, claims that information supplied by CDY infringes any patent, copyright, trademark,
trade name, or otherwise results in an unfair trade practice. PROVIDED HOWEVER,
that CDY'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, CDY'S obligations hereunder shall apply only to the
percentage of fault attributable to CDY, its employees or agents.
b. In any and all claims against the CITY, its officers, officials, employees and
agents by any employee or contractor of CDY, 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 CDY under
Worker's Compensation acts, disability benefits acts, or other employee benefits acts, it
being clearly agreed and understood by the parties hereto that CDY expressly waives
any immunity CDY might have had under such laws. By executing the Contract, CDY
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 CDY
makes with any contractor or agent performing work hereunder.
c. CDY'S obligations hereunder shall include, but are not limited to,
investigating, adjusting and defending all claims alleging Toss from action, error or
omission, or breach of any common law, statutory or other delegated duty by CDY,
CDY'S employees, or agents.
5. INSURANCE
a. Workers' Compensation: CDY shall maintain workers' compensation
insurance as required by Title 51, RCW, and shall provide evidence of coverage to the
(jc)/CDY Services Agreement Page 4
CITY. If CDY has employees, CDY shall request the Washington State Department of
Labor and Industries, Workers' Compensation Representative, send written verification
to CITY that CDY is currently paying Workers' Compensation.
b. Commercial General Liability: CDY 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.
CDY shall provide Commercial General Liability coverage that does not
exclude any activity to be performed in fulfillment of this Contract. Specialized
forms specific to the industry of CDY 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. CDY'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.
CDY shall furnish the CITY with evidence that the additional insured
provision required above has been met. An acceptable form of evidence is the
endorsement page(s) of the policy showing the CITY as an additional insured.
iv. If CDY'S liability coverage is written as a claims made policy, then CDY
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 CDY shall also maintain Employers
Liability Coverage with a limit of not less than $1 million.
c. Automobile Liability: CDY 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. Other Insurance Provisions:
i. CDY'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.
CDY'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. CDY shall include all subconsultants as insureds under its policies or
shall furnish separate certificates and endorsements for each subconsultant. All
Gc)/CDY Services Agreement Page 5
coverage for subconsultants 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. CDY 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. CDY shall require that each contractor entering into contracts to provide
services on behalf of CDY shall include insurance provisions in said contracts
that provide the same insurance coverage that is set forth in this Contract, shall
comply with all provisions of paragraph 5, herein, and shall include such
requirements in all RFP's submitted to the CITY for bidding.
e. Verification of Coverage and Acceptability of Insurers: CDY 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
coverage need not be placed with insurers or re -insurers licensed in the State of
Washington.
Certificates of Insurance shall show the Certificate Holder as CITY OF
YAKIMA and include c/o 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
CDY 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. CDY 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 CDY'S Contract Representative. In that event, the CITY shall pay
CDY for all costs incurred by CDY in performing the Contract up to the date of such
notice. Payment shall be made in accordance with Section III of this Contract.
(jc)/CDY Services Agreement Page 6
b. In the event that funding for this contract obligation 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 CDY. After the effective date, no charges
incurred under this Contract are allowable. .
c. If CDY 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 CDY 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 CDY shall
bear all costs and expenses incurred by the CITY in completing the work and all
damages sustained by the CITY by reason of CDY'S breach.
7. NO CONFLICT OF INTEREST
CDY 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. CDY 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. CDY shall perform the terms of the Contract using only its bona fide
employees or agents, and the obligations and duties of CDY 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. CDY 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
CDY, 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 CDY
a. CDY'S services shall be furnished by CDY as an Independent consultant and
not as an agent, employee or servant of the CITY. CDY specifically has the right to
direct and control CDY'S own activities in providing the agreed services in accordance
with the specifications set out in this Contract.
b. CDY acknowledges that the entire compensation for this Contract is set forth
in Section III of this Contract, and CDY is not entitled to any CITY benefits, including, but
not limited to: vacation pay, holiday pay, sick leave pay, medical, dental, or other
(fc)/CDY Services Agreement Page 7
insurance benefits, fringe benefits, or any other rights or privileges afforded to CITY OF
YAKIMA employees.
c. CDY shall have and maintain complete responsibility and control over all of its
subconsultants, employees, agents, contractors and representatives. No subconsultant,
employee, agent, contractor or representative of CDY shall be or deem to be or act or
purport to act as an employee, agent or representative of the CITY.
d. CDY 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 CDY and as to all duties, activities and
requirements by CDY in performance of the work on this project and under this Contract
and shall assume exclusive liability therefore, and meet all requirements there under
pursuant to any rules or regulations.
e. CDY agrees to immediately remove any of its employees, agents or
contractors 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
CDY 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 CDY
relating to the performance of this Contract. CDY shall keep all records required by this
Contract for six (6) years after termination of this Contract for audit purposes.
13. NONDISCRIMINATION
CDY, its assignees, delegates, contractors 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 CDY for purposes other than those intended by this Contract,
it does so at its sole risk and it agrees to hold CDY harmless therefore to the extent such
use is agreed to in writing by CDY.
('c)/CDY Services Agreement Page 8
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 CDY 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
CDY 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 CDY'S right to seek judicial relief pursuant to paragraph 16 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
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.
Gc)/CDY Services Agreement Page 9
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 DowntowmYakima
By:
Doug Picatti,'Chair of the Board
51/ato7
Date:
City of Yakima
By:
R. A. Zais,Jr., I Manager
Date: #/--/c/--D7
CITY CONTRAC r NO: cWO7 0'742
RESOLUTION NO: 1? -9447- 57
(jc)/CDYServices Agreement Page 10
ATTACHMENT A
SCHEDULE OF 2007
FEES FOR THE SCOPE OF SERVICES AS DEFINED IN SECTION II OF THIS
CONTRACT THROUGH JUNE 10, 2008, WILL BE CALCULATED AT THE
FOLLOWING RATE: SITE MANAGER: $30 HR.
(jc)/CDYServices Agreement Page 11
City Funding Matrix for
City of Yakima and CDY
Professional Services Agreement
(1)
Since the PBIA #1 Assessment area and rate was amended after the first quarter, only
3/4ths of the annualized increase of $36,000 will be realized unless PBIA 1/1 fund
balances are tapped for the remaining $9,000.
(2) The $61,000 identified above for PBIA #1 maintenance activities for 2007 is
composed of Old PBIA Assessments ($36,000) and Parks and Recreation ($25,000).
Depending on the outcome of the bid call for maintenance, CDY may need to make
up the remaining resource need.
(3)
This $113,000 figure is not entirely the same dollars as the previously identified
$150,000 (Parks approved 2007 Policy Issue) estimated to provide maintenance for
the "new and larger" business/maintenance benefit area projected to be formed next
year after the current PBIA expires. Additionally, we understand that the
maintenance and safety programs may very likely require more resources than the
$113,000 shown above. CDY has committed $50,000 of its resources to the
activities identified above for a total of $163,000_ If City council is requested to
approve the $9,000 "make-up" allotment from PBIA fund balances, and acts in the
affirmative, than the total resources to fund these activities will reach $172,000.
City
Funds
Source of
Funding
Bid
Required
Agreement for
Management
Services for
Downtown "Safe and
Clean" Programs
$25,000
City of
Yakima
($25,000 -
Parks and
Recreation
Budget)
No
Memorandum of
Understanding for
(MOU) PBIA #1
Ambassador
Program ("Safety"
element)
$27,000
New PBIA #1
assessment
($27,000) (1)
Yes
Memorandum of
Understanding
(MOU) for PBIA #1
Maintenance
Services ("Clean"
element)
$61,000 (2)
Old PBIA #1
assessments
($36,000),
and Parks and
Recreation
Budget
($25,000).
Yes
Total
$113,000 (3)
N/A
N/A
(1)
Since the PBIA #1 Assessment area and rate was amended after the first quarter, only
3/4ths of the annualized increase of $36,000 will be realized unless PBIA 1/1 fund
balances are tapped for the remaining $9,000.
(2) The $61,000 identified above for PBIA #1 maintenance activities for 2007 is
composed of Old PBIA Assessments ($36,000) and Parks and Recreation ($25,000).
Depending on the outcome of the bid call for maintenance, CDY may need to make
up the remaining resource need.
(3)
This $113,000 figure is not entirely the same dollars as the previously identified
$150,000 (Parks approved 2007 Policy Issue) estimated to provide maintenance for
the "new and larger" business/maintenance benefit area projected to be formed next
year after the current PBIA expires. Additionally, we understand that the
maintenance and safety programs may very likely require more resources than the
$113,000 shown above. CDY has committed $50,000 of its resources to the
activities identified above for a total of $163,000_ If City council is requested to
approve the $9,000 "make-up" allotment from PBIA fund balances, and acts in the
affirmative, than the total resources to fund these activities will reach $172,000.
CML DIVISION
Helen A Harvey
Sofia D. Mabee
Jeffrey R Cuter
Phone: (509) 575-6030
CITY OF YAKIMA - LEGAL DEPARTMENT
200 S. 3rd St., Yakima, WA 98901-2830
Raymond L Paolella, City Attorney
FAX (509) 575-6160
CRNINAL DIVISION
Cynthia Martinez
Branson Faul
Lacy W. Heinz
Keith E Hide
Jon L Seitz
Phone: (509) 575-6033
MEMORANDUM
TO: Honorable Mayor Edler, Yakima City Council Members
Dick Zais, City Manager
FROM: Jeff Cutter, Sr. Assistant City Attorney
DATE: April 12, 2007
SUBJECT: Bidding requirements for PBIA funds
I was asked to provide a legal review ofthe application of municipal bidding
requirements to the expenditure of PBIA assessment funds and General Budget funds.
The following memorandum provides a general analysis of the bidding requirements for
pubic works expenditures of funds from those two sources.
A. PBIA Assessment Funds
The RCW that establishes the requirements for organizing, promoting and establishing
a PBIA (RCW 35.87A) includes' a provision that addresses the bidding requirements
related to expenditures of PBIA funds. Specifically, RCW 35.87A.200 provides:
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, exceed the
sum of two thousand five hundred dollars. (emphasis added)
This statutory requirement for bidding is specific to the costs of "such work". This term
is not defined, but can be logically inferred to relate to the "work" of carrying out the
specific purposes of a PBIA as they may be listedin a particular Ordinance. In the
Ordinance for PBIA No 1, the purposes set forth therein mirror the purposes stated in
the PBIA statute, RCW 35.87A.010, which lists the following:
(a) The acquisition, construction or maintenance of parking facilities for the
benefit of the area;
(b) Decoration of ay public place in the area;
(c) Sponsorship or promotion of public events which are to take place on or in
public places in the area;
(d) Furnishing of music in any public place in the area;
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(e) Providing professional management, planning, and promotion for the area,
including the management and promotion of retail trade activities in the area;
(f) Providing maintenance and security for common, public areas; or
(g) Providing transportation services for the benefit of the area.
Relative to determining whether a particular task is deemed a "work" or possibly a
professional service which, as has been a long-standing practice of the City is typically
exempted from the statutorily mandated bidding process, it is necessary to take a close
look at what service is being provided or performed, and whether it fits into a logical
consideration of a work versus a "professional service".
1. Downtown Ambassador Services.
The specific consideration of `work" versus "professional services" presents itself when
taking into consideration the provision of the Downtown Ambassador services. In the
typical application of the professional service exemption in City contracting, the
professional services are being provided by engineers, surveyors, architects, experts in
particular fields and specialized analysts. This application comports fairly consistently
with the statutory definition of "professional services" set forth in RCW 39.80.020, which
defines said services as:
[p]rofessional services rendered by any person...contracting to perform activities
within the scope of the general definition of professional practice in chapters
18.08, 18.43, or 18.96 RCW.
With respect to the Downtown Ambassador program, my legal opinion is that the
services being provided by the ambassadors are not the type of "professional services"
envision by the statutes cited to in the definition, which, specific to the referenced
statutes, include architects, engineers, land surveyors and landscape architects. For
this reason, it is my legal opinion that contracting for the ambassador services that are
to be funded in whole or in part with PBIA funds in an amount in excess of twenty five
hundred dollars does require the City to follow the formal bidding process.
2. Downtown Maintenance Services.
With regard to the performance of downtown maintenance for the plants, shrubs and
sidewalks, the question of bidding is easier to resolve. Historically these services have
been considered "work" provided by or on behalf of the City. To the extent such work,
as well as the acquisition of materials necessary to perform the work, are funded in
whole or in part by PBIA assessment funds in excess of twenty five hundred dollars, it is
my legal opinion a formal bidding process for said work and materials must be followed.
B. General Fund Expenditures
When the expenditure of the City's General Budget funds is involved in a public work or
general maintenance of public property, the issue of public bidding becomes an issue.
Initially, it must be determined whether the project or work in question is truly a public
work, or ordinary maintenance. Generally, if the cost of a project exceeds a certain
statutory limit, the City must seek bids for the project. A "public work" is defined in
RCW 39.04.010 as:
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all work, construction, alteration, repair or improvement other than ordinary
maintenance, executed at the cost of the state or of any municipality, or which is
by law a lien or charge on any property therein. (Emphasis added.)
This definition of public work includes construction and repair but excludes ordinary
maintenance. Unfortunately, there is no statutory definition of "ordinary maintenance".
There is, however, a WAC that defines "ordinary maintenance" in the context of
prevailing wages that can be referenced to define a distinction between "ordinary
maintenance" and a "public work" for bidding purposes. WAC 296-127-010(7)(b)(iii)
defines "ordinary maintenance" as:
....work not performed by contract and that is performed on a regularly
scheduled basis (e.g., daily, weekly, monthly, seasonally, semiannually, but not
less frequently than once per year), to service, check, or replace items that are
not broken; or work not performed by contract that is not regularly scheduled but
is required to maintain the asset so that repair does not become necessary.
(Emphasis added.)
Even from this very broad oversight of the public bidding requirements several relevant
observations are apparent. If the City utilizes City employees to perform tasks that fall
within the parameters of ordinary maintenance, there are no bidding requirements and
the work is not deemed a public work. However, if the City chooses to contract for the
maintenance services required, then the work performed falls out of the definition of
ordinary maintenance and is considered a public work that is subject to the formal
bidding procedures, provided the cost of the work exceeds certain statutory thresholds
(the determination of which requires a far more specialized analysis to determine than
would be appropriate for this memo's intent). Therefore, with regard to the application
of General Budget funds expended by CDY for maintenance services it contracts for
with various providers, the formal bidding procedure shall be required for all contracts
that exceed the statutory cost limitations.
This portion of the memo is intended to provide a conceptual explanation of the bidding
requirements for public works funded with public funds. It does not, nor can it
reasonably, explain all of the explicit details of the bidding process, but rather provides
an overview of the considerations that must be made when contracting for public
services. The determining factor for this consideration is focused on the source of the
funds being expended, and not on the identity of the entity that is charged with
performing the contracting. Therefore, if CDY is contracting for public works, as defined
above, and is paying for the contracted work with public funds, the bidding process may
be required, dependant upon the cost of the contracts involved.
3
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Potential PBIA Expansion Area
ITEM TITLE:
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 1
For Meeting of April 17, 2007
Consideration of Legislation regarding beautification/maintenance, safety and
management services for Downtown Yakima: (A) Resolution authorizing
execution of professional management services agreement with Committee for
Downtown Yakima; and (B) Resolution authorizing execution of Memorandum of
Understanding relating to maintenance and safety programs; and (C) Ordinance
amending the 2007 budget in the Parking and Business Improvement Area
Fund (First Reading)
SUBMITTED BY: Chris Waarvick, Director of Public Works
CONTACT PERSON/TELEPHONE: Chris Waarvick, Director of Public Works 576-6411
Jeff Cutter, Assistant City Attorney 575-6030
SUMMARY EXPLANATION.
The City Council directed staff in an approved 2007 major policy issue to bring back to the full Council
an altemative method for downtown maintenance. It has previously been provided by the City Parks
and Recreation Division. The Committee for Downtown Yakima (CDY) has proposed to the City of
Yakima a comprehensive program providing for maintenance, cleaning, and citizen ambassador
services within the downtown area—known as the "Safe and Clean" program. This proposal has been
through the City Council sub -committee structure, a study session, and now is presented to the full
Council in legislative format for deliberation and approval.
(Continued on next page.)
Resolution 2 Ordinance 1 Agreement 1 Other (Specify) MOU (1), Attachments
Mail to (name and address):
Funding Source Parks Budget ($50,000), PBIA No. 1 Funds ($63,000)
APPROVED FOR SUBMITTAL: City Manager
STAFF RECOMMENDATION: Staff respectfully requests Council: (A & B) to approve the
Resolutions enabling execution of the "Agreement" and "Memorandum of Understanding;" and (C) to
read the appropriation ordinance by title only at the April 17, 2007 meeting; pass ordinance after
Second Reading at the May 1, 2007 Business meeting
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION:
CDY Downtown Maintenance
April 17, 2007
Page 2
The attached Agreement relates to the overall management of CDY's "safe and clean" activities for
the downtown The Memorandum of Understanding (MOU) more fully discusses the activities that will
take place. While the professional management services element for the downtown "Safe and Clean"
program does not require bidding, the actual "Safe and Clean" program elements do Please see
attached legal mernorandum dated April 12, 2007. The agreement outlines the processes why and
whereby the City will conduct the bidding activity and subsequently turn over the successful,
responsive bidder to CDY to manage and oversee The attachment titled "City Funding Matrix'
identifies the source and amount of City contributions to this effort. $25,000 from the Parks and
Recreation budget will go towards the management services agreement. $27,000 from the new PBIA
No. 1 assessment is slated for the Safety Ambassador element. Since the rate and area adjustment
to PBIA No. 1 was made after the 1st Quarter of 2007, only $27,000 of the annualized $36,000 will be
realized from the new assessment level If Council is requested and so agrees, it may make up this
$9,000 difference from PBIA fund balances. Activities funded by PBIA resources must fall within the
PBIA boundary
An additional $25,000 from the Parks and Recreation budget and $36,000 from the old PBIA No. 1
assessment (for a total of $61,000) are slated for the downtown maintenance activities The MOU
and the letter, dated April 11, 2007, from Urban Place provides a descnption of the safety and
beautification maintenance activities to be performed under CDY management.
Additional resources from CDY are anticipated to cover the full costs of all these work activities CDY
has previously committed $50,000 of its own resources. An appropriation ordinance of $27,000 is
also included amending the 2007 Budget reflecting the new PBIA No. 1 assessment revenue. The
parking lots in the downtown are not covered under this agreement. CDY has a separate proposal for
Council consideration at a future date for this matter.