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HomeMy WebLinkAboutFranklin Conservation District - Stormwater Education Program Agreement AGREEMENT BETWEEN THE CITY OF YAKIMA AND FRANKLIN CONSERVATION DISTRICT THIS AGREEMENT (hereinafter "Agreement ") is made and entered into by and between the City of Yakima (hereinafter the "City ") a Washington municipal corporation, and Franklin Conservation District, a Washington nonprofit corporation (hereinafter "FCD "). I. Recitals A. City is a municipal corporation of the State of Washington with City Hall located at 129 North 2 Street, Yakima, Washington 98901. B. FCD is a nonprofit corporation with offices at 1724 E. Superior St., Pasco, WA 99301. C. City holds a stormwater permit under the National Pollutant Discharge Elimination Program (NPDES) which includes a stormwater education element and requirement. FCD has the ability and expertise to provide a stormwater educational program to enable the City to comply with stormwater educational and reporting requirements under its NPDES Permit. D. City and FCD desire to enter into an agreement for the provision of such educational services by FCD. II. Agreement WHEREFORE, in consideration of the mutual covenants, conditions and benefits herein the parties agree as follows: 1. Services. FCD shall provide the following services: Element 1: Education to kindergarten thru 6 grade students. FCD will support the City's stormwater education program by planning and implementing classroom visits and providing eight lessons from their "Water On Wheels" program to Yakima K -6 students, with a focus on natural resource preservation. Each of the eight lessons will have a stormwater component that will be subject to City review prior to presentation. The goal will be to provide lessons to approximately 5,000 students. This work element includes staff time to coordinate, prepare for, and deliver classroom presentations. Costs included in this work element include educational supplies and reimbursement for costs associated with travel. FCD has established contacts at Yakima elementary schools and middle schools, and has developed a curriculum appropriate for each grade level. 1 Element 2: Project administration. Administration of this project will include preparation of a report twice a year (end of December and end of June) to the City stating the specific schools reached, the number of students reached at each school and the number of lessons taught by jurisdiction. These reports will enable the City to meet its required stormwater education reporting requirements under City's NPDES Permit. FCD will perform all necessary background checks for all of its employees and /or volunteers as required by and in accordance with the Child and Adult Information Act, RCW 43.43.8321 or RCW 43.43.830, as applicable. 2. Consideration. In consideration of the services set forth in Section 1 above, City shall pay and remit to FCD the total sum of $10,000.00 over two separate payments. FCD shall submit an invoice twice a year (end of December and end of June) to the City in the amount of $5,000.00 for work performed as of those specific dates. 3. Term. This Agreement shall commence on July 1, 2015, and shall terminate June 30, 2016, unless sooner terminated in accordance with Section 17 of this Agreement. 4. Status of FCD. FCD and the City understand and expressly agree that FCD is an independent contractor in the performance of each and every part of this Agreement. No officer, employee, volunteer, and /or agent of FCD shall act on behalf of or represent him or herself as an agent or representative of the City. FCD, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the services required under this Agreement. FCD expressly represents, warrants and agrees that its status as an independent contractor in the performance of the work and services required under this Agreement is consistent with and meets the six -part independent contractor test set forth in RCW 51.08.195. FCD and its officers, employees, volunteers, agents and /or subcontractors shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and /or retirement benefits. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership or agency between FCD and the City. 5. Inspection and Audit — Public Disclosure. FCD shall maintain books, accounts, records, documents and other evidence pertaining to the consideration paid under this Agreement in accordance with generally accepted accounting practices. All such books of account and records required to be maintained by this Agreement shall be subject to inspection and audit by representatives of the City and /or of the Washington State Auditor at all reasonable times, and FCD shall afford the proper facilities for such inspection and audit. Such books of account and records may be copied by representatives of the City and /or of the Washington State Auditor where necessary to conduct or document an audit. Provider shall preserve and make available all such books of account and records for a period of three (3) years after final payment under this Agreement. FCD understands and agrees that records maintained by FCD pertaining to programs conducted by FCD in and on behalf of the City will be considered public records subject to disclosure under the State of Washington Public Records Act, Chapter 42.56 RCW. FCD will cooperate with City to assure timely production and disclosure of any records in FCD's possession 2 subject to disclosure under the Public Records Act. All reports generated by FCD and delivered to City during the performance of this Agreement shall be deemed the property of the City. 6. Taxes and Assessments. FCD shall be solely responsible for compensating its employees and for paying all related taxes, deductions, and assessments, including but not limited to, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement, FCD shall pay the same before it becomes due. 7. Nondiscrimination Provision. During the performance of this Agreement, FCD shall not discriminate in violation of any applicable federal, state and /or local law or regulation on the basis of race, color, sex, religion, national origin, creed, age, marital status, disability, honorably discharged veteran or military status, pregnancy, sexual orientation, political affiliation, or the presence of any sensory, mental or physical handicap, and any other classification protected under federal, state, or local law. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. 8. The Americans with Disabilities Act. FCD agrees to comply with the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), and its implementing regulations, and Washington State's anti - discrimination law as contained in RCW Chapter 49.60 and its implementing regulations. The ADA provides comprehensive civil rights to individuals with disabilities in the area of employment, public accommodations, state and local government services, and telecommunications. 9. Compliance With Law. FCD agrees to perform all services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. 10. No Conflict of Interest. FCD covenants that neither it nor its employees 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. FCD further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 11. No Insurance. It is understood the City does not maintain liability insurance for FCD and /or its employees. 12. Indemnification and Hold Harmless. FCD agrees to protect, defend, indemnify, exonerate, and hold harmless the City, its elected and appointed officials, agents, officers, and employees (hereinafter "parties protected ") from (1) any and all claims, demands, liens, lawsuits, administrative and other proceedings, and (2) any and all judgments, awards, losses, liabilities, damages (including punitive or exemplary damages), penalties, fines, costs and expenses (including legal fees, costs, and disbursements) for, arising out of, or related to any actual or alleged death, injury, damage or destruction to any person or any property (including but not limited to any actual or alleged violations of civil rights) to the extent solely or concurrently caused 3 by, arising out of, or related to any actual or alleged act, action, default or omission (whether intentional, willful, reckless, negligent, inadvertent, or otherwise) resulting from, arising out of, or related to FCD's provision of services, work or materials pursuant to this Agreement. FCD further agrees that it 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 to the parties protected hereunder. 13. Insurance. Commercial Liability Insurance. On or before the effective date of this Agreement, FCD shall provide the City with a certificate of insurance as proof of liability insurance in the amount of Two Million Dollars ($2,000,000.00) that clearly states who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect (any statement in the certificate to the effect of "this certificate is issued as a matter of information only and confers no right upon the certificate holder" shall be deleted). 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 insured 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. The insurance company shall be either admitted in the State of Washington or a licensed surplus lines insurance company in the State of Washington. If the City is damaged by the failure of FCD to maintain the above insurance or to so notify the City, then FCD shall bear all costs attributable thereto. If requested, FCD shall provide the City with a complete copy of the policy. Commercial Automobile Liability Insurance. a. If FDC owns any vehicles, before this Contract is fully executed by the parties, FDC shall provide the City with a certificate of insurance as proof of commercial automobile liability insurance and commercial umbrella 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. Automobile liability will apply to "Any Auto" and be shown on the certificate. b. If FDC does not own any vehicles, only "Non -owned and Hired Automobile Liability" will be required and may added to the commercial liability coverage at the same limits as required in that section of this Contract entitled "Commercial Liability Insurance ". c. Under either situation described above in Section 13.a and Section 13.b, the required certificate of insurance shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Contract. The policy shall name the City, its elected officials, officers, agents, employees, and volunteers as additional insureds. 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. 4 14. Assignment and Subcontracts. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by FCD to any other person or entity without the prior written consent of the City. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of FCD stated herein. Any subcontractors retained by FCD shall be subject to the performance standards of this Agreement, and FCD's obligations to perform shall remain unchanged by any subcontract. 15. Non - Waiver. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 16. Severability. If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 17. Termination. Either party may terminate this Agreement, with or without cause, by giving the other party thirty (30) days prior written notice of termination. In the event of such termination, FCD shall be entitled to compensation for services performed through the effective date of termination. The provisions of Section 12 pertaining to obligations of indemnity and hold harmless shall survive termination of this Agreement. 18. Survival. Any provision of this Agreement that 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. 19. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: TO CITY: Tony O'Rourke City Manager 129 North 2 Street Yakima, WA 98901 TO MCF: FCD c/o Kara Kaelber Education Director 1724 E. Superior St. Pasco, Washington 99301. or to such other addresses as the parties may hereafter designate in writing. Notices and /or demands shall be sent by registered or certified mail, postage prepaid, or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 5 20. Third Parties. The City and FCD are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide, any right or benefit, whether directly or indirectly or otherwise, to third persons. 21. Integration and Supersession. This Agreement sets forth all of the terms, conditions, and agreements of the parties relative to the subject matter hereof and supersedes any and all such former agreements which are hereby declared terminated and of no further force and effect upon the execution and delivery hereof. There are no terms, conditions, or agreements with respect thereto, except as herein provided and no amendment or modification of this Agreement shall be effective unless reduced to writing and executed by the parties. 22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 23. Venue. The venue for any action to enforce or interpret this Agreement shall lie in a court of competent jurisdiction in Yakima County, Washington. CITY OF Y IMA FCD By:. 4 By: 7g‘ _ �i�� on, O'':ourke, City Manager �j '7 /j�j,,�,. Date: (0 AP (5 Date: ATTEST: 410, ryx Y / / �/ j , All ,a- / , . Sonya r laar Tee, City ierk ti II' i l a, G o T f 1 6