HomeMy WebLinkAbout10/19/2021 04.K. Resolution authorizing an Interlocal Agency Agreement with the North Yakima Conservation District (NYCD) for Plant Establishment Services 14.4111\l'A
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 4.K.
For Meeting of: October 19, 2021
ITEM TITLE: Resolution authorizing an I nterlocal Agency Agreement with the
North Yakima Conservation District (NYCD)for Plant Establishment
Services
SUBMITTED BY: Scott Schafer, Public Works Director
Bill Preston, City Engineer- (509) 576-6754
SUMMARY EXPLANATION:
The City of Yakima (City) has a responsibility to provide for wetland mitigation on projects that
have an adverse effect on wetlands; such as its Spring Creek Road Improvement Phase 2
project.
The City will require installation, establishment, weed abatement and monitoring of required
wetland plant species as part of offsite project mitigation efforts located near the City's
Wastewater Treatment Plant. The North Yakima Conservation District (NYCD) has an established
organization that has the expertise, knowledge and capacity of providing wetland plant establishment
services.
The City desires to enter into an I nterlocal Agency Agreement(ILA)with NYCD to work together
to install, establish and monitor upland, riparian and wetland projects in an efficient, effective and
professional manner. All work to be performed shall be identified in a Task Assignment signed by
both parties.
The terms of the ILA shall be for five (5)years in an amount not to exceed $212,000 and has
been attached for City Council review.
ITEM BUDGETED: Yes
STRATEGIC PRIORITY: Public Trust and Accountability
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
Adopt Resolution
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ATTACHMENTS:
Description Upload Date Type
D resolution 10/8f2021 Cotter Memo
a Agreement 9/15/2021 Contract
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RESOLUTION NO. R-2021-
A RESOLUTION authorizing an Interlocal Agency Agreement with the North Yakima
Conservation District for Plant Establishment Services
WHEREAS, the City of Yakima (City) has a responsibility to provide for wetland
mitigation on projects that have an adverse effect on wetlands; and
WHEREAS, the North Yakima Conservation District (NYCD) has an established
organization that has the expertise, knowledge and capacity of providing wetland plant
establishment services; and
WHEREAS, the City will require installation, establishment, weed abatement and
monitoring of required wetland plant species as part of offsite project mitigation efforts located
near the City's Wastewater Treatment Plant; and
WHEREAS, the City has the desire to contract with NYCD to work together to install,
establish and monitor upland, riparian and wetland projects in an efficient, effective and
professional manner; and
WHEREAS, all work to be performed shall be identified in a Task Assignment signed by
both parties; and
WHEREAS, the terms of the Interlocal Agency Agreement (ILA) shall be for five (5)
years in an amount not to exceed $212,000; and
WHEREAS, the City Council deems it to be in the best interests of the City to enter into
an ILA with NYCD, which allows NYCD to perform these services for the City under this
contract, now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized to execute an Interlocal Agency Agreement with
the North Yakima Conservation District, attached hereto and incorporated herein by this
reference not to exceed Two Hundred Twelve Thousand Dollars ($212,000) to perform wetland
planting and establishment services.
ADOPTED BY THE CITY COUNCIL this 19th day of October, 2021.
Patricia Byers, Mayor
ATTEST:
Sonya Clear Tee, City Clerk
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CITY OF YAKIMA AND NORTH YAKIMA CONSERVATION DISTRICT
INTERLOCAL AGENCY AGREEMENT FOR WETLAND PLANT
ESTABLISHMENT SERVICES
THIS AGREEMENT is entered into between the North Yakima Conservation
District, Yakima, Washington and its contractors (hereinafter referred to as the "NYCD"), whose
address is 1606 Perry Street,Yakima,Washington 98902, and the City of Yakima(hereinafter referred
to as the "City"), whose address is 129 North 2vfl Street, Yakima, Washington 98901, pursuant to
RCW 39.34.080.
WHEREAS, the CITY will require installation, establishment, weed abatement and
monitoring of required wetland plant species as part of offsite project mitigation efforts located near
the Yakima Regional Wastewater Treatment Plant; and,
WHEREAS, the NYCD has an established organization that is capable of providing
such services to other governmental agencies pursuant to Chapter 39.34 RCW; and,
WHEREAS, the CITY assures the NYCD that the CITY'S request for services under
this AGREEMENT is not intended to exclude the use of private consultants by the CITY; and,
WHEREAS, the CITY may desire to obtain such services from the NYCD and the
NYCD is willing to furnish such services to the CITY at locations throughout the City of Yakima,
and both deem it in the interest of the public to enter into this AGREEMENT; and,
WHEREAS, the actual work to be performed shall be specified in a Task Assignment
signed by both parties; and,
WHEREAS, the CITY shall pay for any work identified in a Task Assignment as
specified by the terms of the Task Assignment and this AGREEMENT;
NOW, THEREFORE, in consideration of the stated premise and in the interest of
providing assistance to the City in the above mentioned areas, the parties hereto agree as follows:
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GENERAL
A. Purpose. The purpose of this AGREEMENT is to work together to install, establish and monitor
upland, riparian and wetland projects within the City of Yakima in an efficient, effective and
professional manner. Both NYCD and the CITY are authorized to perform this governmental
service,but NYCD has better expertise, knowledge, and capacity to do so.
B. The NYCD shall provide the CITY with upland, riparian and wetland plant installation,
establishment weed abatement and monitoring services for a term of five (5) years from the
effective date of this AGREEMENT. Any such services shall conform to the Standards and
Guidelines commonly established for these services. All work to be performed shall be identified
in a Task Assignment signed by both parties.
C. The normal workload of the NYCD will be evaluated prior to accepting any Task Assignment.
Once a Task Assignment is accepted by the NYCD, any work performed under the Task
Assignment shall be pursued with care and diligence, making every effort to meet the schedule
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established by the CITY in the Task Assignment. The NYCD shall promptly notify the CITY of
any hardship or other inability to meet the schedule identified in the Task Assignment.
D. This AGREEMENT may be increased or decreased in scope or character of work to be performed
if such change becomes necessary, but any such change shall be accomplished by written
supplement executed by all parties to said AGREEMENT.
E. The parties shall agree on a satisfactory completion date for work performed under any Task
Assignment ("work completion date"), which shall be specified in the Task assignment. The
CITY shall,upon satisfactory completion of work performed pursuant to a Task Assignment,issue
a letter of acceptance that shall include a release and waiver of all future claims or demands of any
nature resulting from the performance of the work under the Task Assignment. If the NYCD does
not receive a letter of acceptance within 90 days following the work completion date, the work
will be considered accepted by the CITY. The CITY may withhold acceptance of work by
submitting written notification to the NYCD within a 90-day period. This notification shall
include the reasons for withholding acceptance.
II
WORK ASSIGNMENT/REQUEST
A. Specific assignments shall be made in the form of a written Task Assignment to the NYCD by the
CITY and signed by both parties. Each Task Assignment shall contain an agreed upon budget
and schedule for all services to be rendered. CITY approval is required for budget and schedule
changes. The CITY shall make such assignments before any work is commenced by the NYCD.
B. The CITY shall make available to the NYCD all information that has been compiled by or is
available to the CITY concerning the project to be completed.
C. The NYCD shall furnish all labor, materials, supplies, and incidentals necessary to complete the
work assigned by the CITY and shall furnish to the CITY all information prepared by the NYCD
in performance of each task.
D. At the completion of the Task Assignment, the NYCD will turn over to the CITY all records
pertinent to the work performed by the NYCD.
III
PAYMENT
The NYCD shall be paid by the CITY for completed work and for services rendered under this
AGREEMENT and associated Task Assignments, upon acceptance by the CITY, as provided
hereinafter. Payments shall not exceed Two Hundred Thousand Dollars($212,000.00)over the term
of this AGREEMENT. Such payment shall be full compensation for work performed or services
rendered and accepted by the CITY and for all labor, materials, supplies, and incidentals necessary to
complete the work. The NYCD acknowledges and agrees that only those costs actually allocable to
a project shall be charged to such project.
A. The NYCD shall be reimbursed in full by the CITY for its direct and related indirect costs
accumulated in accordance with its current accounting procedures.
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B. Partial payments will be made by the CITY within 30 days of receipt of the invoices from the
NYCD and be paid on a reimbursement basis. Invoices will not be more frequent than one per
month. It is agreed that payment of any particular claim will not constitute agreement as to the
appropriateness of any item and that at the time of final invoice all required adjustments will be
made.
C. Upon termination of this AGREEMENT as provided in Section VI, the NYCD shall be paid by
the CITY for services rendered to the effective date of termination less all payments previously
made. No payment shall be made by the CITY for any expense incurred or work done following
the effective date of termination unless authorized, in writing,by the CITY.
D. Final payment of any balance due the NYCD of the ultimate gross reimbursable amount,prior to
the effective date of termination, will be made upon ascertainment of such balance by the NYCD
and certification thereof to the CITY.
IV
LEGAL RELATIONS
A. LIABILITY AND INDEMNIFICATION:
1. Each of the parties to this AGREEMENT shall protect, defend, indemnify and save
harmless the other party, their elected and appointed officials, officers, employees, agents
and volunteers, from and against all liabilities,penalties, costs, losses, damage, expenses,
causes of action, claims, demands, or judgments, including without limitation,reasonable
attorney's fees, arising out of or related to the terms, covenants or conditions of this
AGREEMENT and such parties' performance or failure to perform any aspect of this
AGREEMENT;provided, however,that if the claims or suits are caused by or result from
the concurrent negligence of(a)the CITY, its agents or employees, and(b)the NYCD, its
agents or employees, including those actions covered by RCW 4.24.115, the obligations
shall be valid and enforceable only to the extent of the parties' negligence; and provided
further, that nothing herein shall require either party to hold harmless or defend the other
party from any claim arising from the sole negligence of the other party.
2. NYCD specifically and expressly waives its immunity under industrial insurance, Title 51
RCW, or immunity under any other provision of law to the extent of the obligations
assumed by the parties protected hereinunder. NYCD and the CITY acknowledge and
agree that this wavier was mutually negotiated.
3. Nothing contained in this section or this AGREEMENT shall be construed to create a
liability or a right of indemnification in any third party.
B. NOTICE, ADMINISTRATION AND DISPUTE RESOLUTION:
1. The CITY and the NYCD shall confer to resolve disputes that arise under this AGREEMENT
as requested by either party.
2. The following individuals are the Designated Representatives responsible for administering
this AGREEMENT, as well as for the purpose of resolving disputes that arise under this
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agreement and are the persons to whom notice shall be provided when required under this
AGREEMENT:
City Engineer, City of Yakima
Yakima City Hall
129 North Second Street
Yakima, WA 98901
Telephone:
Email:
Brian Schmidt
Natural Resource Specialist, North Yakima Conservation District
1606 Perry Street
Suite C
Yakima WA 98902
Telephone: 509-454-5743 ext 5
Email: brian-schmidt@conservewa.net
3. In the event the Designated Representatives are unable to resolve the dispute, the following
individuals shall confer and resolve the dispute.
City Manager, City of Yakima
Michael Tobin
District Manager, North Yakima Conservation District
1606 Perry Street
Suite C
Yakima WA 98902
Telephone: 509-454-5743 ext 5
Email: mike-tobin@conservewa.net
The CITY and the North Yakima Conservation District agree that they shall have no right to seek
relief in a court of law until and unless the Dispute Resolution process has been exhausted.
D. GOVERNING LAW AND VENUE: In the event that any party deems it necessary to
institute legal action or proceedings to enforce any right or obligation under this AGREEMENT, the
parties hereto agree that any such action or proceeding shall be brought in a court of competent
jurisdiction situated in Yakima County, Washington. This AGREEMENT shall be governed by and
construed in accordance with the laws of the State of Washington.
E. INSURANCE. At all times during performance of the services in this AGREEMENT, NYCD
shall secure and maintain in effect insurance to protect the CITY and NYCD from and against all
claims, damages, losses, and expenses arising out of or resulting from the performance of this
AGREEMENT. NYCD 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
necessary and/or in the best interest of the CITY and/or the public.
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1. Commercial Liability Insurance. Before this AGREEMENT is fully executed by the parties,
NYCD shall provide the CITY with a certificate of insurance as proof of commercial liability
insurance with a total 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. 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 during the duration of this AGREEMENT. The policy shall name
the CITY, its elected and appointed officials, officers, agents, employees, 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 thirty (30) calendar days prior written notice. The
insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guilde
and admitted in the State of Washington.
2. Commercial Automobile Liability Insurance. Before this AGREEMENT is fully executed by
the parties, NYCD shall provide the CITY with a certificate of insurance as proof of commercial
automobile liability insurance with a total 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 per occurrence combined single limit bodily
injury and property damage. Automobile liability will apply to "Any Auto" and include,but not
be limited to, owned, non-owned and hired vehicles, and be shown on the certificate. 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 AGREEMENT. The policy shall name the CITY, its elected and appointed officials,
officers, agents, employees, 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 thirty (30)
calendar days 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.
3. Workers' Compensation. NYCD agrees to pay all premiums provided for by the Workman's
Compensation Act of the State of Washington. Evidence of NYCD's workers' compensation
coverage will be furnished to the CITY. NYCD holds the CITY harmless for any injury or death
to NYCD's employees while performing this AGREEMENT.
4. Insurance Provided by Subcontractors. NYCD shall ensure that all subcontractors it utilizes
for work and/or services rendered under this AGREEMENT shall comply with all of the above
insurance requirements.
5. CITY Does Not Provide Insurance for NYCD. It is understood that the CITY does not
maintain any form of insurance for NYCD, its officers, employees, agents, volunteers and/or
subcontractors.
F. RECORDS MAINTENANCE AND RETENTION
1. NYCD shall maintain (in accordance with generally accepted accounting practices)
books, accounts, records, documents and other materials related directly or indirecty
to the services provided to the CITY by NYCD under this AGREEMENT. All such
books, accounts, records, documents and other materials shall be subject to inspection
and audit at reasonable times by representatives of the CITY. NYCD shall make such
books, accounts, records, documents and other materials available and afford the
proper facilities for such inspection and/or audit within forty-eight(48)hours of
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inspection/audit notification from the CITY. Such books, accounts, records,
documents and other materials may be copied by representatives of the CITY as part
of such inspection/audit. However, the making of(or failure or delay in making) such
inspection or approval shall not relieve NYCD of responsibility for performance of
this AGREEMENT, notwithstanding the CITY'S knowledge of defective or non-
complying performance, its substantiality or the ease of its discovery. NYCD shall
preserve and make available all such books, accounts, records, documents and other
materials for a period of at least six (6) years after termination of this AGREEMENT.
2. NYCD shall promptly furnish the CITY with such information related to services
and/or work performed pursuant to this AGREEMENT as may be requested.
Until the expiration of six (6)years after termination of this AGREEMENT, or for
a longer period if required by law or by the Washington State Secretary of State's
record retention schedule, NYCD shall provide the CITY access to (and the CITY
shall have the right to examine, audit and copy) all of NYCD's books, documents,
papers and records which are related to the services and work performed under
this AGREEMENT.
3. The CITY is required by law to comply with the Washington State Public Records
Act (PRA), Chapter 42.56 RCW. All records relating to NYCD's services under
this AGREEMENT must be made available to the CITY, and also produced to third
parties, if required, pursuant to the PRA or by law. All determinations of records
subject to release under the PRA, or otherwise required by law, shall be at the sole
discretion of the CITY. This AGREEMENT and all public documents associated
with this AGREEMENT shall be available to the CITY for inspection and copying
by the public where required by the PRA or other law, to the extent that public
records in the custody of NYCD are needed for the CITY to respond to a request
under the PRA, as determined by the CITY. If NYCD considers any portion of any
records provided to the CITY under this AGREEMENT, whether in electronic or
hard copy form, to be protected from disclosure under law, NYCD shall clearly
identify any specific information that it claims to be confidential or proprietary. If
the CITY receives a request under the PRA to inspect or copy the information so
identified, and determines that the release of the information is required or
otherwise appropriate, the CITY'S sole obligation shall be to notify NYCD of the
request and the date such information will be released to the requestor unless
NYCD obtains a court order to enjoin the release, pursuant to RCW 42.56.450. If
NYCD fails to timely obtain a court order enjoining disclosure, the CITY will
release the requested information on the date specified. The CITY has, and by this
section assumes, no obligation on behalf of NYCD to claim any exemption for
disclosure under the PRA. The CITY shall not be liable to NYCD for releasing
records not clearly identified by NYCD as confidential or proprietary. The CITY
shall not be liable to NYCD for any records that the CITY releases in compliance
with the PRA, this section, or in compliance with an order of a court of competent
jurisdiction.
G. NONDISCRIMINATION
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The NYCD shall comply with Chapter 49.60 RCW and with Title VI of the Civil Rights Act of 1964,
42 USC -2000d et seq. With respect to the work to be performed by the NYCD during the contract,
the NYCD shall not discriminate on the grounds of race,color,sex,sexual orientation,national origin,
marital status, age, or the presence of any sensory, mental, or physical handicap in the selection and
retention of employees, agents, subcontractors or in the procurement of services or materials, leases,
or equipment.
VI
COMMENCEMENT, TERM, AND TERMINATION OF AGREEMENT
A. Commencement. The work is of a continuing nature and will be in force as of the date of this
AGREEMENT.
B. Term. The term of this AGREEMENT shall be five(5)years from the date of execution.
C. Termination.NYCD may terminate this AGREEMENT at any time upon not less than sixty(60)
days written notice to the CITY with or without cause. The CITY may terminate this
AGREEMENT, or any Task Assignment arising from this AGREEMENT, upon thirty(30) days
written notice to the NYCD with or without cause. Upon receipt of any such notice of termination,
NYCD shall, except as otherwise directed by the CITY, immediately stop performance of the
services to the extent specified in the notice. The CITY agrees to reimburse the NYCD for all
direct and indirect costs incurred for work performed and accepted by the CITY up to the date of
notice of termination. NYCD should immediately Upon termination of this AGREEMENT,
the NYCD will turn over to the CITY all Project records.
If the CITY purports to terminate or cancel all or any part of this AGREEMENT for NYCD's
breach or default when NYCD is not in breach or default which would permit such termination
or cancellation, such termination or cancellation shall be deemed to have been a termination by
the CITY pursuant to the above-paragraph, and the rights of the parties shall be determined
accordingly.
This AGREEMENT may also be terminated in whole or in part by mutual agreement of the
parties.
Upon termination, any property jointly acquired shall be disposed of through a right of first refusal
to the CITY to purchase at fair market value the property. If the CITY chooses not to purchase
the property it may be disposed of in any commercially acceptable manner. It is not anticipated
that any property will be jointly acquired pursuant to this AGREEMENT.
VII.
MISCELLANEOUS PROVISIONS
A. Conflict of Interest. NYCD covenants that neither it, nor its officers, 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. NYCD further covenants that it will not recruit
anyone or any entity having such a conflict of interest during the performance of this
AGREEMENT.
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B. Compliance with Applicable Law. NYCD shall operate in accordance with all applicable
statutes, laws,regulations and ordinances. NYCD shall obtain all necessary permits required by
law.
C. Assignment. This AGREEMENT, or any interest herein or claim hereunder, shall not be
assigned or transferred in whole or in part by NYCD to any other person or entity without the prior
written consent of the CITY, which may be withheld for any reason or no reason at all. In the event
that such prior written consent to an assignment is granted, then the assignee shall assume all duties,
obligations, and liabilities of NYCD stated in this AGREEMENT.
D. Modification. Either party may request changes in this AGREEMENT, however, no change,
modification, or alteration to this AGREEMENT shall be valid or binding upon either party
unless such change or addition be in writing, and executed by both parties.
E. Severability. If a court of competent jurisdiction holds that any part, term, or provision of this
AGREEMENT is illegal or invalid, in whole or in part, the validity of the remaining provisions
shall not be affected and the parties' rights and obligations shall be construed and enforced as if
the AGREEMENT did not contain the particular provision held to be invalid. Further, if any
provision of this AGREEMENT is in direct conflict with any statutory provision of the State of
Washington, that provision which may conflict shall be deemed inoperative and null and void
insofar as it may conflict and the AGREEMENT shall be deemed modified to conform to such
statutory provision. Should the CITY determine that the severed portions substantially alter this
AGREEMENT so that the original intent and purpose of it no longer exists, the CITY may, in
its sole discretion, terminate this AGREEMENT, effective immediately upon notice.
F. Non-Waiver of Breach. A waiver by either party hereto of a breach by 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.
G. Survival. Any provision of this AGREEMENT which imposes an obligation after termination
or expiration of this AGREEMENT shall survive the term or expiration of this AGREEMENT
and shall be binding on the parties to this AGREEMENT.
H. Acquisition of Property and Assets. The parties do not intend to jointly acquire or manage any
property. Acquisition of property by either party shall be in accordance with the laws and
procedures applicable to each party.
I. No Separate Legal Entity. No separate legal or administrative entity will be created pursuant to
this AGREEMENT.
J. This AGREEMENT shall be filed with the Yakima County Auditor's Office prior to becoming
effective, and posted on the CITY's website.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the date
executed by both parties.
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CITY OF YAKIMA NORTH YAKIMA CONSERVATION
DISTRICT
Robert Harrison, City Manager Mike Tobin, District Manager
Approved by Resolution No.: Approved by Board Motion
ATTEST: Sonya Claar Tee ATTEST:
City Clerk
Approved as to Form:
City Attorney