HomeMy WebLinkAboutR-2023-083 Resolution authorizing an agreement with the Yakima Area Arboretum for the operation and maintenance of Yakima's arboretumRESOLUTION NO. R-2023-083
A RESOLUTION authorizing an Operations and Maintenance Agreement with the Yakima
Area Arboretum.
WHEREAS, the City of Yakima (City) owns property which is used as an arboretum
currently maintained and operated by the Yakima Area Arboretum non-profit organization, and
desires that the Jewett Interpretive Center and surrounding arboretum property continue to be
managed, operated, and maintained as a public park and arboretum to the general public; and
WHEREAS, the Yakima Area Arboretum non-profit organization has the capacity, skills
and desire to operate and maintain the arboretum property; and
WHEREAS, the City finds that the Yakima Area Arboretum has provided excellent
management and operation of the arboretum property during the term of the previous Operations
and Maintenance Agreement, which terminated in May of 2021 and has been extended so that
the parties could negotiate a new and updated Operations and Maintenance Agreement; and
WHEREAS, it is advantageous to both parties to enter into a new Operations and
Maintenance Agreement to continue the longstanding partnership between the parties in
providing the arboretum property and programming to residents and visitors; and
WHEREAS, the City Council of the City of Yakima finds that it is in the best interests of
the City and its residents to approve the Operations and Maintenance Agreement with the Yakima
Area Arboretum for the operation and maintenance of the City's arboretum property; now,
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized to execute the Yakima Area Arboretum Agreement
Operations and Maintenance Agreement with the Yakima Area Arboretum to provide for the
operation and maintenance of the City's arboretum property and associated buildings.
ADOPTED BY THE CITY COUNCIL this 6th day of June, 2023.
ATTEST:
Janice Deccio, Mayor
,op,K I MA
*:SEAL
osalinda Ibarra, City erk- "**"
sHING's
AGREEMENT re YAKIMA ARBORETUM
THIS AGREEMENT is made and entered into by and between the City of Yakima, a
Washington municipal corporation (hereinafter the "City") and Yakima Area Arboretum, a
Washington nonprofit corporation (hereinafter "YAA"). In consideration of the mutual covenants
contained herein, the parties agree to the terms and conditions herein.
1. Arboretum Property
The Arboretum is a public park currently used in part (a) for the planting, growing and observation
of trees and woody plants, shrubs, and display gardens that are hardy to the inland Pacific
Northwest for the aesthetic and educational benefit of those it serves, that being largely the people
living in Yakima and the Central Washington Area, (b) for nature -based educational purposes,
and (c) as an event space for fundraising events, weddings, and other community gatherings.
City owns the approximate 47.3 acres of Yakima County, Washington, land located within the City
of Yakima at 1401 Arboretum Drive, Yakima, Washington, 98901 and generally depicted and
labeled as Parcels A through G in the drawing attached Exhibit A, which land comprises a portion
of Yakima County Assessor Parcel No. 191329-11005 (the "Arboretum Land").
2. Possession of Real Property and Improvements
2.1 City hereby grants to YAA the exclusive possession and enjoyment of the Arboretum
Land together with all appurtenances thereto (the "Arboretum Property") upon the terms and
conditions set forth in this Agreement. For clarity, it is expressly acknowledged that the Arboretum
Property includes, without limitation, Yakima County Assessor Parcel No. 191329-14901, which
is a financially segregated parcel for the Jewett Interpretive Center building improvement.
2.2 Further, the City grants to YAA the exclusive possession and enjoyment of Arboretum
all buildings, facilities, and other improvements located on the Arboretum Property (sometimes
collectively referred to as `Arboretum Facilities" or "Buildings" or "Facilities") upon the terms and
conditions set forth in this Agreement.
2.3 The Arboretum Property and Arboretum Facilities are collectively referred to as the
"Arboretum" in this Agreement.
2.4 Notwithstanding any other provision of this Agreement, it is expressly acknowledged
that YAA has no responsibility for the repair, maintenance, operation, or any other matters with
regard to the portion of the Greenway path that runs through any portion of the Arboretum Land.
3. Term
3.1 Unless terminated in accordance with this Agreement, the term of this Agreement shall
be for a period of approximately ten (10) years, commencing on the date both parties have signed
this Agreement, and terminating at midnight, May 31, 2033 (the "Initial Term"); provided, however,
that this Agreement will automatically renew for up to two (2) additional ten (10) year terms (each
a "Renewal Term"), unless YAA or the City (the "Notifying Party") gives the other party to this
Agreement written notice of the Notifying Party's desire to renegotiate one or more of this
Agreement's provisions (a "Renegotiation Notice")no later than two (2) years prior to the end of
the current Initial Term or Renewal Term, as the case may be, in which event (a) YAA and the
City, in the interest of promoting a positive and collaborative relationship under this Agreement,
Agreement re Yakima Arboretum 1
will promptly work together in good faith to discuss, explore, and attempt to mutually agree in
writing on renegotiated provisions of this Agreement for the upcoming Renewal Term(s); provided,
however, if mutually agreeable renegotiated provisions of this Agreement are not agreed to in
writing by and between YAA and the City withing one hundred twenty (120) days after the
Renegotiation Notice is given by the Notifying Party to the other party, (i) YAA and the City will
participate in a mediation process within one hundred eighty (180) days after the Renegotiation
Notice is given by the Notifying Party to the other party in accordance with the provisions set forth
in Section 18.10 below for the purpose of further attempting to reach written mutual agreement
on any open and unresolved matters that are preventing YAA and the City from settling on
renegotiated provisions for the upcoming Renewal Term(s) (the "Mediation Process"). However,
if the Mediation Process under the preceding sentence does not result in mutually acceptable
written renegotiated provisions of this Agreement for the upcoming Renewal Term(s), this
Agreement will terminate at the end of the then current Initial Term or Renewal Term, as the case
may be.
Notwithstanding any other provision of this Agreement, in the event YAA wishes to make
one or more large capital improvements to the Arboretum ("Capital Project(s)") during the Initial
Term or any Renewal Term under this Agreement, YAA and the City, in the interest of promoting
a positive and collaborative relationship under this Agreement, will promptly work together in good
faith to discuss, explore, and attempt to mutually agree on an extended term for this Agreement
and/or other amended provisions for this Agreement that would (a) go into effect when and if the
Capital Project(s) are completed and (b) help support and promote the YAA's fundraising and
volunteer efforts with regard to the completion of the Capital Project(s).
3.2 If YAA is voluntarily dissolved or administratively dissolved (and not reinstated with
thirty (30) days' after the City gives YAA written notice of the administrative dissolution), this
Agreement shall automatically terminate and YAA shall have no continuing rights or
responsibilities hereunder.
3.3 All real property improvements made to the Arboretum, whether in existence upon the
date of this Agreement or thereafter placed or constructed upon the property by YAA, shall inure
to and belong to City.
4. Consideration
No cash payment shall be paid by either of the undersigned parties to the other for YAA's
possession and use of the Arboretum under the Agreement. The development and maintenance
of the Arboretum Property, the Arboretum Buildings and Facilities and the compliance with YAA's
obligations contained herein shall constitute full consideration for YAA's possession and use of
the Arboretum under this Agreement.
5. General Management and Responsibilities of Arboretum
YAA shall manage, operate, and maintain the Arboretum in accordance with the requirements of
this Agreement and consistent with the general concept of an Arboretum as defined in Section 1.
5.1 At a minimum, the YAA shall keep the grounds open to serve the general public from
dawn to dusk every day unless closure is reasonably needed or advisable to protect the plant
collection or for public safety measures.
Agreement re Yakima Arboretum 2
5.2 YAA shall make such use of the land and plantings in a manner consistent with the
definition of an Arboretum as defined in Section 1. YAA shall not authorize or allow any use of the
property inconsistent with that definition without first obtaining the written consent of the City;
provided, however, if the City withholds such consent, YAA and the City, in the interest of
promoting a positive and collaborative relationship under this Agreement, will work together in
good faith to discuss, explore, and attempt to mutually agree on an alternative course of action in
lieu of the course of action initially proposed by YAA that was not consented to by the City under
this Section.
5.3 YAA shall perform this Agreement related to the land and plantings in conformity with
all applicable laws.
5.4 It is intended that the Arboretum will be used primarily by members of the YAA, its
guests, invitees and members of the general public. In the event YAA wishes to allow the use of
the Arboretum for purposes other than for uses as defined in Section 1, such use shall be upon
the following terms and conditions:
5.4.1 YAA shall be responsible for maintaining a calendar scheduling the use of
the grounds to insure no conflict of dates.
5.4.2 YAA shall be responsible for providing adequate security for the grounds
while used by others and shall be responsible for any damage caused to the grounds by
such groups or individuals.
5.4.3 YAA shall have the right to charge a fee for the use of the Arboretum by
groups or individuals. Any such fee shall not be waived or applied in a discriminatory
manner. Such fees will be used to provide for the care and maintenance of the Arboretum's
grounds and facilities.
5.5 YAA agrees that it will not construct any fences upon the perimeters of the Arboretum
Land without City approval; provided, however, if the City withholds such consent, YAA and the
City, in the interest of promoting a positive and collaborative relationship under this Agreement,
will work together in good faith to discuss, explore, and attempt to mutually agree on an alternative
course of action in lieu of the course of action initially proposed by YAA that was not consented
to by the City under this Section.
5.6 YAA and the City will continue to work together to ensure that the property is
maintained for public use and enjoyment.
6. Care and Maintenance of Land, Facilities, Plantings and Sprinkler System
6.1 YAA shall be responsible, at its own expense, for:
6.1.1. Pruning;
6.1.2. Overseeing, maintenance and repair of irrigation systems;
6.1.3. Replacing, maintaining and labeling plant specimens to the extent deemed
advisable in YAA's discretion;
Agreement re Yakima Arboretum 3
6.1.4. Spraying for plant disease and pest control, provided such spraying shall be
performed only in compliance with all existing laws, ordinances, and regulations and the
label on such pesticides or other chemicals;
6.1.5. Fertilizing and localized weed control applications;
6.1.6. Snow and ice removal from sidewalks on walkways leading to and from
structures, as well as adjacent sidewalks, and keeping the sidewalks clear of obstructions;
6.1.7. Maintenance of the water meter on the well -used for irrigation; and
6.1.8 Report annual irrigation water use data from the well as required by the
Washington State Department of Ecology to the City by November 1st of each year.
6.1.9 Electrical charges associated with any pumps serving existing wells and
other existing irrigation water systems on the property.
6.2. City shall be responsible for:
6.2.1. Grass mowing in a manner consistent with the maintenance level at City
parks through December 31, 2026. Beginning on January 1, 2027, YAA shall be
responsible for ensuring that the grass is mowed in a manner consistent with prior mowing
of the Arboretum.
6.2.2 City will remove snow from the roads leading into and the parking areas of
the Arboretum in accordance with the City's Snow & Ice Control Plan.
7. Use and Development of Arboretum Facilities
7.1 YAA shall have the right to use all Buildings and Facilities as permitted under this
Agreement and in connection with Arboretum activities on the property and other activities in
accordance with the YAA's charitable purpose. Such use shall be in accordance with, and subject
to, all applicable laws, ordinances and regulations.
7.2 Subject to the City's obligations under Section 15.2 below, YAA shall be responsible
for the general maintenance and repair of all buildings and facilities on the Arboretum. YAA shall
not be responsible for effecting any repairs if such repairs would not be economically feasible or
reasonable in light of the circumstances.]
7.3 YAA shall pay the cost of all utilities incurred in connection with the use and occupancy
of the Buildings or connected with the Facilities.
7.4 YAA shall be responsible for all plumbing and electrical repairs and maintenance
relating to the Buildings and Facilities on the Arboretum Property.
7.5 It is intended that the Jewett Interpretive Center will be used primarily by YAA;
provided, however, YAA may allow the use of the Jewett Interpretive Center by other groups.
Such use shall be upon the following terms and conditions:
7.5.1 YAA shall use said building in conformity with all applicable laws.
Agreement re Yakima Arboretum 4
7.5.2 YAA shall have the first right to use the building to the exclusion of all other
groups.
7.5.3 YAA shall be responsible for maintaining a calendar scheduling the use of
the building to insure no conflict of dates.
7.5.4 YAA shall have the right to charge a fee for use of the Jewett Interpretive
Center by groups other than YAA. Any such fee shall not be waived or applied in an
arbitrary manner. Such fees shall be used for the care and maintenance of the Arboretum
property, buildings and facilities.
7.5.5 No construction or work shall commence without City's prior written approval
by Director of Public Works or the Parks and Recreation Manager; provided, however, if
the City withholds such consent, YAA and the City, in the interest of promoting a positive
and collaborative relationship under this Agreement, will work together in good faith to
discuss, explore, and attempt to mutually agree on an alternative course of action in lieu
of the course of action initially proposed by YAA that was not consented to by the City
under this Section. All such construction and remodeling shall comply with all fire and
building codes in effect at that time. All such work shall be done at no cost to City for labor
or materials.
7.6 All permanent improvements to real property shall become a portion thereof and shall
belong to City during the term of this Agreement and at its termination.
8. Development of Land and Plantings
8.1 YAA shall, at its sole cost and expense and in YAA's sole discretion, prepare all future
landscape design plans, or any other plans relating to the Arboretum Property, which plans, with
respect to any hardscape or other permanent improvements (but expressly excluding plantings)
shall be submitted to the City for approval prior to work being done; provided, however, if the City
withholds such consent, YAA and the City, in the interest of promoting a positive and collaborative
relationship under this Agreement, will work together in good faith to discuss, explore, and attempt
to mutually agree on an alternative course of action in lieu of the course of action initially proposed
by YAA that was not consented to by the City under this Section. YAA shall make no substantial
changes to the Arboretum grounds' hardscape or other permanent improvements (but expressly
excluding plantings) without prior City approval; provided, however, if the City withholds such
consent, YAA and the City, in the interest of promoting a positive and collaborative relationship
under this Agreement, will work together in good faith to discuss, explore, and attempt to mutually
agree on an alternative course of action in lieu of the course of action initially proposed by YAA
that was not consented to by the City under this Section.
8.2 YAA shall, at its sole cost and expense and in YAA's sole discretion, select, procure,
plant and replant all trees and plants that are located on the Arboretum Property.
8.3 YAA shall, at its sole cost and expense, label all specimen trees and plants YAA, in
YAA's discretion, deems advisable.
8.4 YAA may construct greenhouses, lath houses and utility buildings upon the property
constituting the Arboretum. All plans for such construction shall be submitted to the City and such
work shall be done only after written approval of said plans by the City; provided, however, if the
City withholds such consent, YAA and the City, in the interest of promoting a positive and
Agreement re Yakima Arboretum 5
collaborative relationship under this Agreement, will work together in good faith to discuss,
explore, and attempt to mutually agree on an alternative course of action in lieu of the course of
action initially proposed by YAA that was not consented to by the City under this Section. All such
construction shall comply with all applicable laws, including but not limited to City zoning, fire and
building codes in effect at the time, and shall be at no cost to the City. YAA is solely responsible
for obtaining all necessary permits for any approved projects.
9. Utilities and Permits
9.1 YAA shall pay all charges for water, sewer, heat, lights, power, telephone, and internet,
and any other utilities that may be required or used by YAA in the use or operation of the
Arboretum, and agrees to pay the same in a timely fashion and agrees to pay the same to prevent
any lien or shutoff of service from occurring. Any deposits or other charges required by any entity
furnishing such utilities shall be paid by YAA.
9.2 YAA shall pay any necessary permit or inspection fees associated with maintenance
or agreed upon work at the Arboretum for which permits or inspections are necessary, including
but not limited to fire inspection fees and any other capital projects.
10. Taxes and Assessments
YAA 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
before delinquency. In the event the City is assessed a tax or assessment as a result of this
Agreement, YAA shall pay the same before it becomes due.
11. Liability and Indemnification
11.1 YAA will release, defend, indemnify, and hold harmless the City, its elected and
appointed officials, officers, employees, agents, and volunteers from any and all claims, demands,
losses, liens, liabilities, penalties, fines, lawsuits, administrative and other proceedings and all
judgments, awards, losses, liabilities, damages (including punitive, exemplary or consequential
damages), penalties, fines, costs and expenses (including attorneys' fees 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),
or claims regarding public records, to the extent caused by, arising out of, or relating to any act
and/or omission (whether intentional, willful, reckless, negligent, inadvertent or otherwise)
resulting from, arising out of, or related to YAA's, its officers', employees', agents', volunteers',
tenants', contractees', and/or subcontractors' actions, services, work or materials pursuant to this
Agreement.
11.2 The City will release, defend, indemnify, and hold harmless YAA, its directors,
officers, employees, agents, and volunteers from any and all claims, demands, losses, liens,
liabilities, penalties, fines, lawsuits, administrative and other proceedings and all judgments,
awards, losses, liabilities, damages (including punitive, exemplary or consequential damages),
penalties, fines, costs and expenses (including attorneys' fees 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
caused by, arising out of, or relating to any act and/or omission (whether intentional, willful,
Agreement re Yakima Arboretum 6
reckless, negligent, inadvertent or otherwise) resulting from, arising out of, or related to the City's,
its elected and appointed officials', officers', employees', agents', volunteers' and/or
subcontractors' actions, services, work or materials pursuant to this Agreement.
11.3 YAA specifically and expressly waives its immunity under industrial insurance,
pursuant to Title 51 RCW, or immunity under any other provision of law to the extent of the
obligations assumed by the parties protected hereunder. YAA and the City acknowledge and
agree that this waiver was mutually negotiated and is strictly for the City's benefit and not for the
benefit of or enforceable by any YAA employee or other third party.
11.4 All services / programs rendered or performed under this Agreement will be
performed or rendered entirely at YAA's own risk and YAA expressly agrees to defend, indemnify
and hold harmless the City and all of its officers, agents, employees and elected and appointed
officials from any and all liability, loss, fines, penalties or damages, including reasonable cost of
defense, that the City may suffer as a result of claims, demands, actions, or damages to any and
all persons or property, costs or judgments against the City which result from, arise out of, or are
in any way connected with the services to be performed by YAA under this Agreement.
11.5 Nothing contained in this section or this Agreement shall be construed to create a
liability or a right of indemnification in any third party.
12. Maintenance and Retention of Records
12.1 YAA shall maintain and manage (in a businesslike and consistent manner) books,
accounts, records, documents, and other materials related directly or indirectly to the costs,
expenses, and revenues of the management, operation, and maintenance of the Arboretum under
this Agreement (the "YAA Records"). The YAA Records shall be subject to inspection and audit
at reasonable times by representatives of the City. YAA shall make the YAA Records available
and afford the proper facilities for such inspection and/or audit within seven (7) days of
inspection/audit notification from the City. The YAA Records 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 YAA 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.
12.2 YAA shall promptly furnish the City with YAA Records as may be reasonably
requested. Subject to the state of Washington Secretary of State's State Government General
Records Retention Schedule, until the expiration of six (6) years after termination of this
Agreement, or for a longer period if required by law or by the state of Washington Secretary of
State's State Government General Records Retention Schedule, YAA shall provide the City
access to (and the City shall have the right to examine, audit and copy) the YAA Records. During
the term of this Agreement, YAA shall manage and retain the YAA Records pursuant to the
Washington Secretary of State's State Government General Records Retention Schedule and
law, and any changes and amendments thereto.
12.3 The City is required by law to comply with the Washington State Public Records Act
(PRA), Chapter 42.56 RCW. All YAA Records pertaining to this Agreement must be made
available to the City, and then made available to third parties, if required, pursuant to the PRA or
other applicable law. Upon a Public Records Act request for YAA documents, the City will notify
YAA and YAA shall search its records for responsive documents and provide them to the City, or
obtain an injunction, within thirty (30) days, or a date agreed upon by the City. All determinations
Agreement re Yakima Arboretum 7
of YAA Records subject to release under the PRA, or otherwise required by law, shall be at the
sole discretion of the City. This Agreement and the YAA Records shall be available to the City
for inspection and copying by the public as required under PRA or other applicable law, to the
extent that public records in the custody of YAA are needed for the City to respond to a request
under the PRA. The City has, and by this section assumes, no obligation on behalf of YAA to
claim any exemption for disclosure under the PRA. The City shall not be liable to YAA for
releasing records not clearly identified by YAA as confidential or proprietary. The City shall not
be liable to YAA for any records that the City releases in compliance with the PRA, this section,
or compliance with an order of a court of competent jurisdiction.
13. Security
13.1 YAA shall, at its sole expense and cost, provide the following security for the Jewett
Interpretive Center: an automatic intruder detection system, secure door, and window locks.
13.2 City and YAA shall engage in quarterly meetings associated with security of the
grounds, buildings and facilities of the Arboretum to discuss and determine whether any additional
mutually agreeable security measures should be implemented and when and how said additional
security measures should be implemented, as well as any other issues that may arise which
should be discussed by the parties. These quarterly meetings may also include other community
stakeholders or members, including, but not limited to, Greenway representatives, the Yakima
Police Department or other City departments, and leadership from Camp Hope.
13.3 YAA shall provide or by written agreement require third parties to provide additional
adequate security and an onsite supervisor at all events held at the Arboretum with an anticipated
attendance of one hundred fifty (150) or more persons to monitor activities of the event, as well
as to ensure that facilities are properly maintained and kept, that there is not excessive noise, that
patrons are respectfully utilizing the property, and uninvited trespassers are not entering the
grounds or event. Such security may include a minimum of one (1) uniformed security guard,
licensed in accordance with RCW 18.170, as now or hereafter amended, for each one hundred
fifty (150) persons in attendance, and YAA may require more security as determined necessary.
Security measures taken shall include monitoring of the Jewett Interpretive Center entrances,
premises and parking lots, the Arboretum Residence and other buildings, and the Arboretum to
immediately report any criminal activity to YPD and to ensure that persons who possess
dangerous items, who are uninvited and/or trespassing, who display disruptive behavior and/or
who are obviously under the influence of drugs or alcohol, do not enter or remain at the
ARBORETRUM or its surrounding property as legally described herein.
13.4 For all special events with an anticipated attendance of three hundred (300) or more
persons, YAA shall provide the City Police Chief with notice of the event, and if the event no later
than fifteen (15) days prior to the event. Notification can be made by email to Evelyn Delgado at
evelyn.delgado@yakimawa.gov (or the successor thereto), with a copy to the Police Chief,
Matthew Murray at matt.murray@yakimawa.gov (or the successor thereto). Alternatively, notice
can be made in writing by mailing the information to the Yakima Police Department at 200 South
3rd Street, Yakima, Washington, 98901.
13.5 For all events where alcohol will be served or provided, the following requirements
also apply:
13.5.1 A Private Party Rental Contract, provided by the YAA shall be completed
prior to hosting an event at the Arboretum.
Agreement re Yakima Arboretum 8
13.5.2 All events of one hundred (100) attendees or more where alcohol is allowed
are required to obtain either Special Event Insurance in an amount of $1,000,000.00 per
occurrence and $2,000,000.00 aggregate combined single limit liability bodily injury and
property damage, or provide written proof from their insurance company/agent that the
event organizer's current insurance provides coverage for the event involving alcohol. The
policy shall clearly state who the provider is and shall be in effect during the duration of
the contracted period of use of the Arboretum, including set-up and clean-up/take-down.
In all cases the City of Yakima, its elected and appointed officials, officers, agents,
employees and volunteers shall be named as additional insureds on the policy and
endorsement and copies of those documents shall be provided to the City upon demand.
13.5.3 YAA shall provide an onsite supervisor at all events where alcohol is
present, regardless of anticipated attendance.
13.5.4 For events greater than 150 expected guests, YAA shall require the event
organizer to hire at least one licensed uniformed security officer and at least one additional
licensed uniformed security officer for each additional 100 attendees.
13.5.5 A YAA board meeting or activity solely consisting of YAA members and
invited guests is not subject to the provisions in 13.5; however, such meetings or activities
must still obtain any specific liquor license, or other licenses necessary for the meeting or
activity being held by YAA. YAA shall ensure that all meetings and activities held by YAA
are covered under the YAA insurance policies issued pursuant to this Agreement.
13.6 YAA indemnifies, releases, defends, and holds harmless the City, its elected and
appointed officials, officers, employees, agents, representatives, insurers, attorneys, and
volunteers from all liabilities, losses, damages, and expenses related to all claims, suits,
arbitrations, actions, investigations, and regulatory or other governmental proceedings arising
from or in connection with the rental of the Arboretum and/or any and all events held at the
Arboretum, or any acts or omissions associated with those events or rentals, except for claims
caused by the City's sole negligence. This section shall be in addition to and supplement the
indemnification provisions found in Section 11 of this Agreement.
14. Nondiscrimination Provision
14.1 During the performance of this Agreement, YAA shall not discriminate in violation of
any applicable federal, state and/or local law or regulation on the basis of race, age, color, sex,
religion, national origin, creed, marital status, political affiliation, or the presence of any sensory,
mental or physical disability. 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 the services
contemplated under this Agreement. This non-discrimination provision shall include but not be
limited to the following:
14.1.1 The benefits or services provided by YAA at the Arboretum;
14.1.2 The rules, regulations, and/or practices established by YAA for use of the
Arboretum;
Agreement re Yakima Arboretum 9
14.1.3 All lease and license agreements entered into by YAA with respect to space
at the Arboretum; and
14.1.4 The employment practices of the YAA at the Arboretum.
14.2 YAA shall not enter into any lease or license agreement respecting space in the
Jewett Interpretive Center and/or the Arboretum without incorporation into such lease or license
agreement the provisions which will ensure that the use or occupancy of, in the provision of
neighborhood services and other benefits, will be available without regard to race, age, creed,
color, national origin, religion, sex, marital status, or the presence of any sensory, mental or
physical disability. YAA shall also furnish information, evidence, documents and reports required
by the City to substantiate compliance with this non-discrimination provision, upon request.
15. Insurance
15.1 At all times during performance of the services in this Agreement, YAA shall secure
and maintain in effect liability insurance to protect the City and YAA from and against all claims,
damages, losses, and expenses arising out of or resulting from the performance of this
Agreement. YAA shall provide and maintain in force liability insurance in limits no less than that
stated below, as applicable. The City reserves the right to require higher limits should the City
reasonably determine higher limits are reasonably necessary to protect the City's and public's
interests in connection with the YAA's possession and use of the Arboretum under this
Agreement.
15.2 Insurance for Buildings
15.2.1 City agrees to maintain "special form" perils property insurance upon the
Jewett Interpretive Center, Harold Jones Nursery Center, Arboretum Residence, and all
other real estate improvements now and in the future maintained on the Arboretum
Property at City's sole cost and expense. Such buildings shall be insured to their full
insurable value; provided, however, City shall have the right to choose the deductible
amount applicable to all City buildings.
15.2.2 YAA shall have the right, but not the obligation, to insure all, or any portion,
of the deductible amount applicable to City's insurance on the Jewett Interpretive Center,
Harold Jones Nursery Center, and Arboretum Residence. If such policy is procured by
YAA, City shall be named as the primary insured with loss payable to YAA as its interest
may appear.
15.2.3 Where policies of insurance permit, each party hereby agrees to waive any
and all rights of subrogation against the other party.
15.2.4 In the event the Jewett Interpretive Center, Harold Jones Nursery Center,
Arboretum Residence, or any other real estate improvements now and in the future
maintained on the Arboretum Property is destroyed or partially destroyed by fire or natural
disaster, City, at City's expense, shall rebuild the same in the condition in which the
improvement existed prior to such loss or if the parties agree, pursuant to such design as
may be mutually agreed upon between the City and YAA; provided, however, City shall
not be required to expend for such purposes any amount in excess of the sum of the
insurance proceeds received by City (or that would have been received by the City had
the City maintained the insurance coverage required under Section 15.2.1 above) plus the
Agreement re Yakima Arboretum 10
underlying insurance deductible. All such work should be performed in an expeditious
and workmanlike manner.
15.3 Commercial Liability Insurance. Before this Agreement is fully executed by the
parties, YAA shall provide the City with a certificate of insurance as proof of commercial liability
insurance and commercial umbrella liability insurance with a total minimum liability limit of One
Million Dollars ($1,000,000) per occurrence combined single limit bodily injury and property
damage, and Two Million Dollars ($2,000,000) 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. The insured shall 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.
15.4 Commercial Automobile Liability Insurance. Before this Agreement is fully executed
by the parties, YAA shall provide the City with a certificate of insurance as proof of commercial
automobile liability insurance with a total minimum liability limit of One Million Dollars ($1,000,000)
per occurrence combined single limit bodily injury and property damage, and Two Million Dollars
($2,000,000) 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. The insured shall 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.
15.5 Directors and Officers Liability Insurance. Before this Agreement is fully executed by
the parties, YAA shall provide the City with a certificate of insurance as evidence of Directors and
Officers Liability Insurance with coverage of at least One Million Dollars ($1,000,000). The
certificate shall clearly state who the provider is, the amount of coverage, the policy number, and
when the policy and provisions provided are in effect. The policy shall name the City, its elected
and appointed officials, officers, agents, employees, and volunteers as additional insureds. The
insured shall 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 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 the inception date of this Agreement, or shall provide for 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.
15.6 Personal Property Insurance. YAA shall have the responsibility of procuring "special
form" perils property insurance on personal property and tenants' improvements and betterments
owned by, or in the care, custody or control of YAA. YAA and the City hereby release and
discharge each other from and against all liability arising either from fire loss or damage caused
by any of the "special form" perils covered by their respective insurance policies under this Section
or Section 15.2.1 above which are in force and effect at the time of such loss or damage, even
though such loss or damage may be due to negligence, act, or neglect of either YAA or the City
Agreement re Yakima Arboretum 11
or agents or employees of either party. It is expressly understood and agreed that it is in the
intention of the parties that this provision constitutes a waiver and release of any and all
subrogation rights which the insurance companies might have under such insurance policies.
15.7 Workers' Compensation. YAA agrees to pay all premiums provided for by the
Workman's Compensation Act of the State of Washington. Evidence of YAA's workers'
compensation coverage will be furnished to the City. YAA holds the City harmless for any injury
or death to YAA's employees while performing under this Agreement.
15.8 Umbrella Policy. YAA shall maintain an umbrella insurance policy with limits of no
less than One Million Dollars ($1,000,000); however, if YAA operates, or contracts with another
person or entity to operate, any preschool, child care, day care, or other similar facility or program
(for purposes of this agreement each of which is referred to as a "Childcare Facility"), and that
facility is approved for the location, YAA shall obtain an umbrella insurance policy with limits of no
less than Five Million Dollars ($5,000,000.00) prior to allowing the facility to operate, and maintain
said insurance during the entire term of operation of the Childcare Facility at the Arboretum.
Notwithstanding the foregoing provisions of this paragraph, YAA's day camp programs do not
constitute Childcare Facilities under this paragraph.
A 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 Agreement. The policy shall name the City, its elected
and appointed officials, officers, agents, employees, and volunteers as additional insureds. The
insured shall 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.
15.9 Insurance Provided by Subcontractors. YAA 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.
15.10 City Does Not Provide Insurance for YAA. It is understood that the City does not
maintain any form of insurance for YAA, its officers, employees, agents, instructors, volunteers,
and/or subcontractors, other than as specifically provided for herein.
15.11 YAA's insurance coverage shall be primary insurance with respect to those who
are Additional Insureds under this Agreement, and any insurance, self-insurance or insurance
pool coverage maintained by the City shall be in excess of YAA's insurance and neither the City
nor its insurance providers shall contribute to any settlements, defense costs, or other payments
made by YAA's insurance. All additional insured endorsements required by this Section 15 shall
include an explicit waiver of Subrogation.
16. Termination.
16.1 The City may, by giving YAA ninety (90) calendar days written notice, terminate this
Agreement as to all or any portion of the services or work not then performed, due to YAA's breach
or default. Upon receipt of any such notice of termination, YAA shall have the ninety (90) calendar
day period to remedy or cure said breach or default to this Agreement and bring YAA's actions
into compliance with the terms of this Agreement.
Agreement re Yakima Arboretum 12
16.2 This Agreement may also be terminated in whole or in part by mutual written
agreement of the parties.
17. Conflict of Interest
YAA 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. YAA further covenants that it will use reasonable efforts to not recruit anyone
or any entity having such a conflict of interest during the performance of this Agreement.
Furthermore and more specifically, but subject to the provisions of Section 18.13 below, YAA will
not allow any City employee to serve as a voting member of YAA's board of directors.
18. Miscellaneous Provisions
18.1 Compliance with Applicable Laws. YAA shall operate, maintain and manage the
Jewett Interpretive Center and surrounding property in accordance with all applicable statutes,
laws, regulations and ordinances. YAA shall obtain all necessary permits required by law. YAA
shall not allow the use of the Jewett Interpretive Center and surrounding property for any unlawful
purposes, nor shall it commit any waste on Arboretum property or damage the same, nor permit
waste or damage by others.
18.2 Assignment. This Agreement, or any interest herein or claim hereunder, shall not be
assigned or transferred in whole or in part by YAA 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 YAA stated herein.
18.3 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.
18.4 Integration. This written document constitutes the entire agreement between the
City and YAA. There are no other oral or written Agreements between the parties as to the
subjects covered herein. This Agreement supersedes all prior written and oral agreements
between the parties with regard to the subject matter of this Agreement, including, without
limitation, the Agreement dated May 23, 1991, by and between YAA and the City (as amended).
18.5 Severability. If any provision of this Agreement or the application thereof to any
person or circumstances shall to any extent be held to be invalid or unenforceable, such provision
shall not affect or invalidate the remainder of this Agreement, and to this end the provisions of
this Agreement are declared to be severable. If such invalidity becomes known or apparent to
the parties, the parties agree to negotiate promptly in good faith in an attempt to amend such
provision as nearly as possible to be consistent with the intent of this Agreement.
18.6 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.
Agreement re Yakima Arboretum 13
18.7 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.
18.8 Attorneys' Fees; Venue. In the event of any dispute arising out of or relating to this
Agreement, whether or not suit or other proceedings is commenced, and whether in mediation, in
arbitration, at trial, on appeal, in administrative proceedings, or in bankruptcy (including, without
limitation, any adversary proceeding or contested matter in any bankruptcy case), the prevailing
party will be entitled to its costs and expenses incurred, including reasonable attorneys' fees.
18.9 Governing Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington. The venue for any action to enforce or
interpret this Agreement shall lie in the Superior Court of Washington in Yakima County.
18.10 Mediation. In the event of a dispute between YAA and the City with respect to the
interpretation, implementation, or performance of any obligation under this Agreement, YAA and
the City will attempt to resolve the dispute through a mediation process. The mediator for any
such mediation must be mutually agreed upon and jointly appointed by YAA and the City, with
the mediator's cost to be shared equally by the two parties. The mediation will be held in Yakima,
Washington, and conducted as soon as reasonably possible after mediation is requested by one
part, with attention given to the time -sensitive nature of the dispute. In the event the parties are
unable to agree upon a mediator, a mediator will be appointed by the Presiding Judge for the
Superior Court of Yakima County. If mediation is not successful then any dispute relating to this
Agreement shall be decided in the Yakima Superior Court in accordance with the laws of
Washington. If both parties consent in writing, other available means of dispute resolution may
be implemented, including, but not limited to, final and binding arbitration.
18.11 No Joint Venture. Nothing contained in this Agreement creates the relationship of
principal and agent or of joint venture between the parties hereto.
18.12 Notices. Unless stated otherwise herein, all notices and demands shall be in writing
and sent to the parties at their addresses as follows:
TO THE City: Bob Harrison, City Manager
City of Yakima
Yakima City Hall
129 North Second Street
Yakima, WA 98901
Phone: 509-575-6000
Email: bob.harrison@yakimawa.gov &
cally.price@yakimawa.gov
TO Arboretum: Colleen Adams-Schuppe, Executive Director
Yakima Area Arboretum
1401 Arboretum Drive
Yakima, WA 98901
Phone: 509-248-7337
Email: info@ahtrees.org
or to such other addresses as the parties may hereafter designate in writing.
Agreement re Yakima Arboretum 14
Notices and/or demands shall be sent by registered or certified mail, postage prepaid, or
hand -delivered. Such notices shall be deemed effective when hand delivered at the addresses
specified above, or three (3) days after the date of mailing to the addresses specified above.
18.13 To facilitate communication between YAA and City and to eliminate
misunderstandings between the parties, YAA shall create and maintain an ex officio director
position on its Board of Directors, which position shall be filled by a representative of the Parks
and Recreation Division of the City, or another City staff person as designated by the City
Manager. The person so appointed shall represent the City's interests and report to the City on
YAA activities.
18.14 This agreement shall be binding upon the parties hereto as well as their successors
and assigns.
[Signatures and Notary Acknowledgements on Following Page]
Agreement re Yakima Arboretum 15
EXECUTED as of the below acknowledged dates.
City OF YAKIMA
Robert H -on, City Manager
Date:
ST:
ee, City Clerk
City Agreement No.: dca.S-10(-1
Resolution No,:
STATE OF WASHINGTON
County of Yakima
YAKIMA AREA Arboretum
Col
Date:
) ss.
, Executive Director
On this - day of tA., , 2023, I certify that I know or have satisfactory
evidence that Colleen dams-Schuppe, is the Executive Director of the Yakima Area Arboretum,
LLC. (YAA) and acknowledged that they are authorized to execute the foregoing instrument for
and on behalf of YAA and said person acknowledged that they signed this instrument and
acknowledged iton be f of YAA for the uses and purposes mentioned in the instrument.
NOTARY PJBLtC in and
Washington, residing at:
My commission expires:
STATE OF WASHINGTON
County of Yakima
h State of
) ss.
',;b,\$ SION ;..,
140T
NO, 107265
),\ 0,0
5/2 0'14
1111111‘\"'
On this day of 2023, I certify that I know or have satisfactory
evidence that Robert Harrison, City Manager of the City of Yakima (City) and acknowledged that
they are authorized to execute the foregoing instrument for and on behalf of the City and said
person acknowledged that they signed this instrument and acknowledged it on behalf of the City
for the uses and purposes mentioned in the instrument.
NOTARY PU C in and for
Washington, re iding at:
My commission expires:
Agreement re Yakima Arboretum
EXHIBIT A
Depiction of the Arboretum Land
Agreement re Yakima Arboretum
17
Yaki
Vicinity
Map.
For:
Arboretum
and City of 'Yakima
Aireemeat
1 inch 403 feet
dit' NO el°
1
ITEM TITLE:
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEM ENT
Item No. 13.
For Meeting of: June 6, 2023
Resolution authorizing an agreement with the Yakima Area
Arboretum for the operation and maintenance of Yakima's
arboretum
SUBMITTED BY: Scott Schafer, Public Works Director
*Sara Watkins, City Attorney
SUMMARY EXPLANATION:
The City's previous agreement with the Yakima Area Arboretum to operate and maintain the
arboretum property and associated buildings expired. This new operations and maintenance
agreement updates the terms and conditions and continues the City's partnership with the Yakima
Area Arboretum to operate and maintain the arboretum property and buildings.
ITEM BUDGETED: Yes
STRATEGIC PRIORITY: Neighborhood and Community Building
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
Adopt resolution.
ATTACHMENTS:
Description
ID Res -Agreement with Yakima Area Arboretum
0 Agreement re Yakima Arboretum
Upload Date
5/25/2023
5/31/2023
Type
Resolution
Contract