HomeMy WebLinkAbout2019-10-01 - Master Gardener Foundation - General Agreements / General Service AgreementsProfessional Services Agreement
Between
The City of East Wenatchee
MI
The Master Gardener Foundation of Chelan County
(UBI 602108461)
For
Maintenance and Landscaping
of
Japanese Garden
Professional Service Agreement
The Master Gardener Foundation
Page 1 of 9
1. Parties.
The Parties to this Professional Services Agreement ("Agreement") are
the City of East Wenatchee and the Master Gardener Foundation of
Chelan County ("Foundation").
2. Duration of Agreement.
The initial term of this Agreement begins on January 1, 202o and ends
on December 31, 2024. Unless either party gives written notice of its
intention not to renew at least 18o days before the initial term ends, this
agreement extends for additional one—year terms.
3. Either party may terminate this Agreement early.
Upon written notice, the City may terminate this Agreement with or
without cause. If the City terminates this Agreement without cause, it
will pay the Foundation for work already completed on a prorated basis
to the date ordered to stop. Upon 3o-days written notice, the Foundation
may terminate this Agreement with cause. The written notice must
specify the termination's effective date and it must specify the cause the
Foundation is relying upon to justify termination. If the Agreement is
terminated early, the City will pay the Foundation all amounts due for all
work previously authorized and performed prior to termination.
3.1. If this Agreement is terminated, the Foundation agrees to
cooperate reasonably with any service provider retained by the City
in making available information developed as the result of work
previously performed by The Foundation.
4. The Foundation will provide maintenance and landscaping
services for the City.
The Foundation will provide the following services for the City in a
timely, reliable, and cost-effective manner:
4.1. Maintain plants in the Japanese Garden on Misawa Way
bordered by the sidewalk and the walls of the garden;
4.2. Maintain shrubs;
4.3• Prune trees;
4.4• Maintain grasses and groundcovers;
Professional Service Agreement
The Master Gardener Foundation
Page 2 of 9
4.5• Divide and remove when necessary;
4.6. Abate weeds;
4.7. Remove weeds;
4.8. Advise city of any sprinkler problems;
4.9• Advise city of any waterfall issues;
4.1o. Advise city when debris needs haul away;
4.11. Advise city of any tree/shrub replacement needs;
4.12. Provide the City's Public Works Director with a schedule for
routine plant maintenance; and
4.11 If the Foundation uses City volunteers to help perform the
services above, he will provide the City Treasurer with a log of hours
worked by the volunteers within three days of service. The log must
contain the volunteer's name, address, date of service, and number of
hours volunteered.
5. City's responsibilities. The City agrees to perform the following
services:
5.1. Removal of trash from cans throughout the year;
5.2. Removal of debris from garden maintenance;
5.3• Removal and replacement of trees (if necessary);
5.4• Maintenance of pagoda;
5.5• Maintenance of bridge
5.6. Maintenance of lighting;
5.7. Maintenance of donor sign;
5.8. Maintenance of mural;
5.9• Start up irrigation system;
5.1o. Replace any malfunctioning sprinklers, valves, timers;
5.11. Blow out irrigation system at end of season;
Professional Service Agreement
The Master Gardener Foundation
Page 3 of 9
5.12. Operate and maintain waterfall;
5.13. Maintain parking strip near garden;
5.14. Removal of any graffiti; and
5.15. Reimburse the Foundation up to $1,00o each year for the cost
of mulch.
6. Compensation.
6.1. Amount. The City will pay the Foundation $18,00o a year for
performing the services in paragraph 4. This amount is the full
compensation for all work performed; for all services rendered; and
for all labor, materials, supplies, and equipment, and incidentals
necessary to complete the services in paragraph 4.
6.2. Corrections. The Foundation will correct any errors in the
completed work. The Foundation is not entitled to additional
compensation for making the required corrections.
6.3. Method of Payment. The Foundation must submit a monthly
invoice for compensation. The monthly invoice must contain a
detailed description of the work performed during the month, the
number of hours spent performing such work, and any reimbursable
costs and expenses incurred in performing the work.
6.4. Invoices. The Foundation must submit invoices to the
following address: The City of East Wenatchee, 271 Ninth St. N.E.,
East Wenatchee, WA 98802 Attention: Teresa Allen.
6.5. Taxes. The Foundation will pay all taxes related to payments
received from the City, including federal income taxes, self-
employment (social security and Medicaid) taxes and state business
and occupation taxes. The City is not responsible for withholding for
or paying any tax owed by the Foundation.
7. Disputed work. If the City believes in good faith that some portion of
work has not been completed satisfactorily; the City may request that
The Foundation correct the work before the City pays for such work. The
City must reasonably explain to the Foundation its concern over the
work and the remedy that the City expects from the Foundation. The
City may withhold from any payment otherwise due an amount that is
Professional Service Agreement
The Master Gardener Foundation
Page 4 of 9
under dispute. Also, if the Foundation does not provide a sufficient
remedy, the City may retain the amount it costs the City to correct or
remedy the work that the Foundation did not properly complete.
8. Affirmative Representations by the Foundation.
The Foundation represents and warrants that:
8.1. It has the requisite training, skill and experience necessary to
provide the services identified in Paragraph 4.
8.2. It is appropriately accredited and licensed by all applicable
agencies and governmental entities.
8.3. It did not offer a gift, gratuity, loan, trip, favor, special
discount, work, or anything of economic value to any City employee
or City official to obtain this Agreement.
8.4. It will strictly adhere to the statutes and ordinances in
contracting and purchasing, including the City Ethics Code, RCW
42.23 (Code of Ethics for Municipal Officers) and RCW 42.52 (Ethics
in Public Service).
8.5. It does not have a business interest or close family relationship
with any City official or employee. No one employed by the
Foundation has a business interest or close family relationship with
any City official or employee.
9. The City will monitor and evaluate the Foundation's
performance.
Subject to oversight by the Mayor or the Mayor's designee, The
Foundation may control and direct the performance of the services
identified in Paragraph 4. The City reserves the right to inspect, review
and approve the work done to assure that it has been completed as
specified, before payment. The Foundation must cooperate with and
freely participate in any monitoring or evaluation activities conducted by
the City.
io. The Foundation is an independent contractor.
This Agreement creates an independent contractor relationship between
the parties. The Foundation and its employees or agents performing
under this Agreement are not employees or agents of the City. The
Professional Service Agreement
The Master Gardener Foundation
Page 5 of 9
Foundation will not hold itself out as or claim to be an officer or
employee of the City, nor will the Foundation make any claim of right,
privilege or benefits which would accrue to such officer or employee
under law. The Parties recognize that the Foundation may or will be
performing professional services during the term of this Agreement for
other parties.
ii. Indemnification.
To extent allowed by law, the Foundation agrees to indemnify and hold
harmless the City. The Foundation releases and must defend, indemnify
and hold harmless the City, its elected officials, officers, employees,
agents and volunteers for any and all claims, demands, losses, negligent
acts or omissions, and liabilities (including costs and all attorney's fees)
to or by any and all persons and entities, including without limitation,
their respective agents, licensees, or representatives, arising from,
resulting from, or connected with this Agreement to the extent caused by
the negligent acts, errors or omissions of the Foundation, its partners,
shareholders, agents, employees, or by the the Foundation's breach of
this Agreement. To the maximum extent permitted by applicable law,
this must apply. However, this will not require the Foundation to
indemnify the City against any liability for damages arising out of bodily
injury or property damages caused by or resulting from negligence of the
City. The City will protect, defend and indemnify and save harmless the
Foundation, its representatives and other employees all costs, claims,
judgments or awards of damages arising out of the negligent acts or
omissions of the City, its officers or employees. Further, with concurrent
negligence of the Foundation and the City each party will be required to
indemnify the other only to the extent of the negligence of the party.
12. The Foundation agrees to maintain adequate insurance.
The Foundation must provide insurance coverage as set out in this
section. The intent of the required insurance is to protect the City should
there be any claims, suits, actions, costs, damages or expenses arising
from any negligent or intentional act or omission of the Foundation. The
Foundation must furnish the City with a certificate of insurance
satisfactory to the City that shows the Foundation has secured insurance
in the following kinds and minimum amounts. If the Foundation fails to
provide proof of insurance, the City may immediately terminate this
Agreement.
Professional Service Agreement
The Master Gardener Foundation
Page 6 of 9
13. The Foundation agrees comply with applicable federal and
state laws. The Foundation must comply with all federal, state, and
local nondiscrimination laws, regulations and policies. These laws
include, but are not limited to: The U.S. Department of Transportation's
policies against discrimination, Chapter 49.6o RCW, Title VI of the Civil
Rights Act of 1964; Section log of the Housing and Community
Development Act of 1974, Age Discrimination Act of 1975, Americans
with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of
1973 Executive Order 11246 of September 24, 1965, and of the rules,
regulations, and relevant orders of the Secretary of Labor, Section 3 of
the Housing and Community Development Act of 1968; Executive
Orders 11625, 12432, and 12138.
13.1. If the Foundation fails to comply with any federal or state law,
regulation or policy, the City may withhold payments to the
Foundation under the Agreement until the Foundation complies or
cancel, terminate, or suspend the Agreement, in whole or in part.
13.2. The City will give the Foundation 3o days to cure any
noncompliance.
14. Dispute Resolution.
The venue for any legal dispute regarding this Agreement is Douglas
County Superior Court.
15. General Provisions.
15.1. Attorney's Fees. If any legal action or other proceeding is
brought to enforce this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with this
Agreement, each party will bear their own attorney's fees, expert
witness fees, filing fees, arbitrator fees, or other costs incurred in that
action, arbitration, or proceeding.
15.2. Authority. Each individual executing this Agreement for the
City and for the Foundation represents and warrants that such
individuals are duly authorized to execute and deliver this Agreement
for The Foundation or for the City.
15.3. Binding Effect. The provisions, covenants, and conditions in
this Agreement apply to bind the parties, their legal heirs,
representatives, successors, and assigns.
Professional Service Agreement
The Master Gardener Foundation
Page 7 of 9
15.4. Civil Rights. The Foundation agrees to comply with all local,
state, and federal civil rights laws. These laws include, but are not
limited to: Washington's Law Against Discrimination, Title VI of the
Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968,
Section 104(b) and Section log of Title I of the Housing and
Community Development Act of 1974, Section 504 of the
Rehabilitation Act of 193, the Americans with Disabilities Act of 1975,
Executive Order iio63, and Executive Order 11246 as amended by
Executive Orders 11375, 11478, 12107, and 12086.
15.5. Compliance with Laws. The Foundation, at his sole cost and
expense, may perform and comply with all applicable laws of the
United States, the State of Washington; and the City of East
Wenatchee.
15.6. Equipment and Materials. Except as specifically provided in
this Agreement, the Foundation must furnish all equipment,
materials, and personnel that may be required to accomplish the
services described in the Agreement.
15.7. Full Agreement. This Agreement and all attachments form all
of the covenants, promises, agreements and conditions, between the
parties. All attachments and addendum are incorporated herein by
this reference and may be a part of this contract instrument. If
discrepancy between the documents, addendum and attachments
may prevail over the Agreement. This entire Agreement including all
attachments specifies the working relationship between the City and
the Foundation and specific obligations of both parties.
15.8. Non -waiver. Waiver of any default or breach of this
agreement may not be deemed a waiver of any other prior or
subsequent default or breach and may not be construed to be a
modification of the terms of this Agreement unless stated to be such
through written agreement of the signatories hereto.
15.9. Performance. Time is of the essence of this Agreement in
each and all of its provisions in which performance is a factor.
15.10. Personal Liability. The parties agree that no official,
employee, or agent of the City may be held liable or responsible for
any breach of this Agreement.
Professional Service Agreement
The Master Gardener Foundation
Page 8 of 9
15-n. Remedies Cumulative. The remedies provided for in this
Agreement are not exclusive, but are cumulative with all other
remedies available at law or in equity.
16. Washington law governs this Agreement.
The laws of the State of Washington govern the interpretation,
construction, and enforcement of this Agreement.
17. Severability.
If a competent court of law determines any section or portion of this
Agreement to be unlawful, such determination may not affect the
remaining terms and conditions of the Agreement.
18. Survivability.
The obligation of the Foundation under all provisions of this Agreement,
which may reasonably be interpreted or construed as surviving the
completion, termination, or cancellation of this Agreement, may survive
the completion, termination, or cancellation of this Agreement.
City of East Wenatchee
Date:
ATTEST:
Maria Holman, City Clerk
Professional Service Agreement
The Master Gardener Foundation
Page 9 of 9
Master Gardener Foundation
of Chelan County
Date: to'01 Vp\t