HomeMy WebLinkAbout2021-11-16 - Master Gardener Foundation - General Agreements / General Service AgreementsProfessional Service Agreement The Master Gardener Foundation
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Professional Services Agreement
Between
The City of East Wenatchee
And
The Master Gardener Foundation of Chelan County
(UBI 602108461)
For
Maintenance and Landscaping
of
Japanese Garden
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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, 2022 and ends
on December 31, 2025. Unless either party gives written notice of its
intention not to renew at least 180 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 unpaid work already completed on a prorated basis to the termination date. Upon 30-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 any
unpaid 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.
With respect to the Japanese Garden on Misawa Way in East
Wenatchee, the Foundation will provide the following services for the
City in a timely, reliable, and cost-effective manner:
4.1. Maintain plants bordered by the sidewalk and the walls of the
garden;
4.2. Maintain shrubs;
4.3. Prune trees;
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4.4. Maintain grasses and groundcovers;
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;
4.10. 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 Department with a schedule for routine plant maintenance.
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.
4.12 In September of each year, attend a City Council meeting and
present an annual report to the Council that highlights the work done
in the Garden and the educational opportunities provided by the
Foundation; and
4.13. Each year, have a Foundation representative meet with the
Misawa delegation at the Garden.
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;
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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;
5.10. Replace any malfunctioning sprinklers, valves, timers;
5.11. Blow out irrigation system at end of season;
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 $1,000 each year for the cost
of mulch.
6. Compensation and Reporting.
6.1. Amount. In 2022 and in 2023, the City will pay the Foundation quarterly installments of $3000 ($12,000 a year) for
performing the services in paragraph 4. In 2024 and in 2025, the
City will pay the Foundation quarterly installments of $2500
($10,000 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. At the beginning of each calendar
quarter, the Foundation must submit an invoice for compensation.
Payment from the City shall be made no later than 30 days following
receipt of each invoice.
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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: Finance Department.
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.
6.6. Reports. The Foundation shall provide to City reports no less
frequently than monthly containing a detailed description of the
work performed during the prior month, the number of hours spent
performing such work, and any reimbursable costs and expenses
incurred in performing the work.
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 a later invoice. 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
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
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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 any subsequent payment is made. The Foundation
must cooperate with and freely participate in any monitoring or
evaluation activities conducted by the City.
10. 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
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.
11. 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
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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. Insurance
For insurance purposes, the Foundation must provide City with a
Certificate of Insurance before work begins showing the City listed as
Additional Insured ISO form # CG 20-10 or equivalent with minimum
coverage limits of $1,000,000 per occurrence/$3,000,000
aggregate. Insurance carrier must be an A+ rated carrier or better. The
Foundation must notify the city of any cancelations of insurance 45 days
prior to canceling.
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 49.60 RCW, Title VI of the Civil Rights Act of 1964; Section 109 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.
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13.2. The City will give the Foundation 30 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.
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 109 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 11063, 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,
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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.
15.11. 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