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HomeMy WebLinkAbout23-49 Resource Central Garden in the Box Program 04-26-2023RESOLUTION NO.23-49 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO APPROVING AN AGREEMENT BETWEEN THE TOWN OF FIRESTONE AND RESOURCE CENTRAL FOR A GARDEN IN THE BOX PROGRAM WHEREAS, Resource Central provides a Garden In A Box Program ("Program") for numerous municipalities which provides citizens a variety of low water landscape plants at an affordable price; and WHEREAS, such Program is of benefit to the Town of Firestone as it both enhances water conservation and the quality of landscape throughout the Town. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Garden In A Box Program Agreement between Resource Central and the Town of Firestone is approved in substantially the same form as the copy attached hereto and made a part of this resolution and the Mayor is authorized to execute the Agreement on behalf of the Town. INTRODUCED, READ AND ADOPTED this 261 day of April, 2023. TOWI)I qF FTRES ONE, COLORADO �S�fii// Drew Alan Peterson, Mayor ATTEST: Fr-pW Minn �a Gonzalez, Deputy Town Clerk f m SEAL APPROVED A TO FORM: MM ay own Attorney DocuSign Envelope ID: 9CA6B365-BOED-49DF-9A70-B09E4936C914 GARDEN IN A BOX PROGRAM AGREEMENT THIS Garden In A Box Program Agreement ("Agreement") is made on Awd. aft ;30Effective Date'), by and between Resource Central and the Town of Firestone a Colorado statutory municipality ("Utility Partner") (each individually a "Party," or collectively as "Parties"). Recitals 1. WHEREAS many people are interested in the concept of a low-water landscape; 2. WHEREAS those interested in the concept of a low-water landscape are often overwhelmed by the plant selection and design of such a landscape; 3. WHEREAS those interested in the concept of a low-water landscape have limited time and money to invest in the process of planning and designing such a landscape; and 4. WHEREAS to provide its residents with an easy and affordable way to learn about and install low-water landscapes, Utility Partner wishes to engage Resource Central to organize and conduct the Garden In A Box Program ("Program') for the term specified in Section III in partnership with Utility Partner. NOW THEREFORE in consideration of the terms and conditions contained herein and othergood and valuable consideration. the Parties agree as follows: Program Obligations A. Resource Central Obligations 1. Resource Central shall provide the services described in the Garden In A Box Program Scope and Conditions of Work, attached hereto as Attachment A ('Services"). B. Utility Partner Obligations 1. Marketing and Publicity. Utility Partner shall be responsible for publicizing the availability of the Program to its Customers in at least one round of marketing. Efforts to publicize the Program to its Customers may include, but are not limited to, advertising media such as Utility Partner's bffi inserts, website, social media, newsletter, and direct [nailing. If only one round will take place, the marketing must be in the form of a water bill insert. Resource Central will develop a marketing toolkit containing marketing and publicity media and individual advertisement components for Utility Partner to use. Resource Central will supply a recommended marketing calendar and template, which will list the recommended dates and media type(s) for the Utility Partner to disseminate marketing materials using the marketing toolkit. Advertising content may be created by either Resource Central or Utility Partner; however, Utility Partner must use the toolkit components (i.e., verbiage, logos, photographs) DocuSign Envelope ID: 9CA5B365-BOED-49DF-9A70-B09E4936C914 for Program advertisements and all efforts must be approved by Resource Central prior to publishing. All marketing toolkit contents are property of Resource Central and are to be used exclusively to advertise and promote its programming. If Resource Central determines a sufficient number of requests exist, despite all rounds of intended advertising having not been completed, Resource Central may waive the requirement that Utility Partner conduct an additional advertising round Resource Central shall provide Utility Partner with notice of any such waiver. For the purposes of communication regarding program marketing and outreach, Resource Central requests the contact information of a designated marketing point of contact. The person(s) named below is designated Utility Partner's representative(s) for marketing efforts. For Utility Partner: Julie PaAas Director of Public Works Town of Firestone 9950 Park Ave, Firestone, CO 80504 303-531-6258 jpasillas@firestoneco.gov firestoneco.gov 2. Cotnplete and Submit Signed Agreement and Attachments. Utility Partner shall submit to Resource Central a signed copy of the Agreement and the Attachments no later than Friday, April 28, 2023. II. Price, Payment Amount, and Billing Procedure A. Pannent of Program Price. Utility Partner shall pav Resource Central the Base Program Price, pursuant to the Garden In A Box Program I'a}mnent Schedule and Terms, attached hereto as Attachment B. III. Term A. Term of Agreement. The Term of this Agreement commences on the Effective Date and terminates on December 31, 2023, or on the date the Agreement is earlier terminated, as provided herein. IV. General Provisions A. Record -Keefe Requirements. Both Resource Central and Utility Partner shall maintain all records, documents, communications, and other material that pertain to this Agreement ("Records") for a period of three (3) years from the date of filial payment under this Agreement, unless Resource Central or Utility Partner requests that the records be retained for a longer period. Resource Central and Cti]ity Partner each shall provide access to such Records to the other during normal business hours for review and copying. B_ No Delegation. Except as odnerwise provided, the Parties' duties and obligations shall not be assigned, delegated, or subcontracted except with the express prior written DocuSign Envelope ID: 9CA5B365-BOED-49DF-9A70-B09E4936C914 consent of the Utility Partner. All subcontractors shall be subject to the requirements of this Agreement. C. Indemnification. To the extent permitted by law, Utility Partner, on behalf of itself and its successors and assigns, agrees to indemnify, defend, and hold harmless Resource Central, its officers, directors, and employees, contractors, and volunteers from and against losses, liabilities, expenses, and costs, including, without limitation, reasonable attorney's fees and costs-, arising out of (i) the negligent performance under this Agreement by Utility Partner or any person employed by or acting on behalf of Utility Partner; or (it) any injury to persons or property to the proportional extent caused by the negligent or intentional acts or orissions of Utility Partner, or any person employed by or acting on behalf of Utility Partner, during the performance of Services under this Agreement. Nothing herein shall be deemed a waiver of the rights, protections, immunities, and limitations granted Utility Partner in accordance with the Colorado Governmental Immunity Act C.R.S. 24-10-101 ct seq. as same may be amended from time to time. To the extent allowed by law, Resource Central, on behalf of itself and its successors and assigns, agrees to hold harmless and indemnify Utility Partner, its officers, directors, and employees, and contractors from and against losses, liabilities, expenses, and costs, including, without limitation, reasonable attorney's fees and costs, arising out of (i) the negligent performance of Services under this Agreement by Resource Central or any person employed by or acting on behalf of Resource Central; or (ii) any injury to persons or property to the proportional extent caused by the negligent or intentional acts or omissions of Resource Central, or any person employed by or acting on behalf of Resource Central, during the performance of Services under this Agreement. D. No Third -Party Rights. Fxcept as otherwise provided, this Agreement shall inure to the benefit of, and be binding only, upon, the Parties. No third -party beneficiary, rights or benefits of any, kind are expressly or impliedly provided herein. E. Designated Representatives. For the purpose of this Agreement, the persons named below are designated the representatives of the Parries. Unless otherwise provided in this Agreement, all notice required to be given by the Parties shall be given either by hand delivery, or email, with confirmed receipt, or by registered or certified mail to the representative named below. The Parties may designate in writing a new or substitute representative: For Resource Central: Neal Lurie President Resource Central 6400 Arapahoe Road, Suite B Boulder, CO 80303 303-999-3820 x202 nlurie ct resourcecentral.org For Utility Partner: Julie Pas'illas Director of Public Works Town of Firestone 9950 Park Ave Firestone, CO 80504 303-531-6258 jposillas afrrestoneco.gov F. Default and Remedies. If either Party fails to comply with this Agreement, the other Pam' shall provide written notice specifying the breach, and the breaching Partyy, shall be DocuSign Envelope ID: 9CA5B365-BOED-49DF-9A70-B09E4936C914 allowed thirty (30) days to cure, or such longer period as agreed to by the Parties in writing if the cure will require additional time. If the breaching Pam- fails to cure the breach, timely under this Agreement, to the reasonable satisfaction of the non -breaching party, the non -breaching Party shall have all remedies available in law or in equity. The waiver of any breach of a term hereof shall not be construed as a waiver of any other term or the same term upon subsequent breach. G. Modifications. This Agreement is intended as the complete integration of understanding between the Parties. Both Parties may make modifications to this Agreement as needed, provided that no modification may be made to the number of Garden In A Box kits requested by Utility Partner, as specified in the Payment Schedule and Terms, and guaranteed to be provided by Resource Central. Such modification shall not be effective until it is accepted in writing by a legally authorized representative of each Party. I I. Severability. The terms of this Agreement are severable, and should any term or provision hereof he declared invalid or become inoperative for any reason, such invalidity, or faiure shall not affect the validity of anv other term or provision hereof. I. Exhibits-. All exhibits and attachments to this Agreement shall be deemed incorporated hereby by reference. J. Independent Contractor. Resource Central shall perform the Services under this Agreement as an independent contractor. The Patties do not intend, nor shall it be construed that Resource Central or any Resource Central subcontractor, employee, or volunteer is an employee of utility Partner for any purposes whatsoever. K. Employee Financial Interest. The Parties aver that to their knowledge, no employee of Utility Partner has any personal or beneficial interest whatsoever in the service or property described hereon. L. Legal Authority — Signatory. Each Party represents and warrants that it possesses the legal authority to enter into this Agreement and that it has taken all actions required by its procedures, by-laws, and applicable laws to exercise that authority, mid to lawfully authorize its undersigned signatory to execute this Agreement, or any part thereof, and to bind itself to its terms. If requested by the other Party, each Party shall provide the other with proof of its authority to enter into this Agreement Nvithin twenty (20) days of receiving such request. M. Choice of Law. Colorado law shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference that conflicts with Colorado law shall be null and void. Any provision incorporated herein by reference that purports to negate this provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Venue for a legal action relating to the interpretation, execution, or enforcement of this Agreement shall be in the District Court, Weld County, Colorado. N. Force Majeure. Neither Party shall be held liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement due to circumstances beyond its control (generally, a "Force Majeure Event") including, but not limited to, national emergencies, unusually severe weather (including fire and flood), catastrophe, acts of DocuSlgn Envelope ID: 9CA5B365-BOED-49DF-9A70-B09E4936C914 God, insurrection, war, riot, epidemic, pandemic, quarantine restrictions, labor disturbances, or embargoes. The occurrence of any Force Majeure Event shall excuse either Party from performing or timely performing its obligations under this Agreement. O. Intellectual Property Rights. All work product(s) created under this Agreement, by Resource Central, including software, drawings, videos, manuals, survey data and related reports, charts, photographs, designs, papers, documents and copies, abstracts and summaries thereof, whether printed material, original works of authorship, electronic documents and intellectual property produced, invented, reduced to practice, or created as a result of the work performed under this Agreement ("Creations') shall be the sole property of Resource Central and may not be used, sold, licensed or disposed of in any manner without prior written approval of Resource CentraL To the maximum extent permitted by applicable law, all Creations shall be deemed works made for hire under the United States copyright laws, and all right, title, and interest in and to such work product shall vest automatically in Resource Central. P. Termination. Either Party may terminate this Agreement for any reason by providing thirty (30) days written notice to the other Party (the "Termination Notice'. Utility Partner must compensate Resource Central for any work completed prior to and including the date of temrination, as specified in the Termination Notice. IN WITNESS WHEREOF, each Utility Partner has executed this Agreement or caused it to be executed on its behalf by its duly authorized representatives. Resource Central W. By: . Heal Lurie Name: Title: President Date: 4/17/2023 Utility Partner By, . Name: Drew Alan Peterson Title: Mayor Date:�l((I�`� DocuSign Envelope ID: 9CA5B365-BOED-49DF-9A70-B09E4936C914 ATTACHMENT A GARDEN IN A BOX PROGRAM SCOPE OF WORK DocuSign Envelope ID: 9CA5B365-BOED-49DF-9A70-B09E4936C914 GARDEN IN A BOX PROGRAM SCOPE OF u7ORK f. Scope of Work A. Design and Ordering of Gardens 1. Garden Desi9ai. Resource Central shall work with landscape designers to create at least six (0) xeric/low-water garden designs, which shall be made available to Utility Partner residents. Once those designs have been completed, Resource Central shall work with local nurseries to secure plants. If necessary, Resource Central shall select appropriate substitute plants. The gardens shall be assembled into kits, which shall include a design layout (including Resource Central's plant -by -number design), a variety of low-water plants, and helpful tips about waterwise gardening, including planting and maintenance instructions for all of the plants ("Garden In A Box"). 2. Orderine. Utility Partner shall order, and Resource Central shall provide, a minimum of twenty- five (25) Garden In A Box discounts for the garden sale season. Twenty-five (25) Garden In A Box kits will be reserved for the March June 2023 season. Any unused discounts during the spring sale will be carried forward into the July -September 2023 season. Subject to availability, Resource Central shall order additional garden discounts as specified by Utility Partner. Resource Central shall have the number of Garden In A Box kits ordered by Utility Partner available for Utility Partner residents to order at the rate specified in section I.A.1 of the Payment Schedule and Terms. B. Marketing, Advertising, Customer Service, and Sales 1. Marketing and Publicity. Utility Partner shall be responsible for marketing and publicizing the availability of the Program to its Customers in at least one round of marketing. Utility Partner may use any combination of the following media: bill inserts, website, social media, newsletter, and direct mailing. If only one round will take place, the marketing must be in the form of a water bill insert. A marketing toolkit, developed by Resource Central, will contain promotional templates and individual advertisement components for the Utility Partner to use. Resource Central will supply a recommended marketing calendar and template, which will list the recommended dates and media type(s) for the Utility Partner to disseminate marketing materials using the marketing toolkit. Advertising content may be created by either Resource Central or Utility Partner; however, Utility Partner must use the aforementioned marketing toolkit components (i.e., verbiage, logos, photographs) for Program advertisements and all efforts must be approved by Resource Central prior to publishing. All marketing toolkit contents are property of Resource Central and are to be used exclusively to advertise and promote its programming. If Resource Central determines a sufficient number of requests exist, despite all rounds of intended advertising having not been completed, Resource Central may, waive the requirement that Utility Partner conduct an additional advertising round. Resource Central shall provide Utility Partner with notice of any such waiver in writing. DocuSign Envelope ID: 9CA5B365-BOED-49DE-9A70-B09E4936C914 2. Garden Availability. Since Garden In A Box kits arc also available to the public and demand can exceed inventory, Resource Central will. hold back some inventor- to allow for Utility Partner to market the program to its residents during the first two (2) weeks of the sale. Once all Garden In A Box inventory is released on the website, they are sold first come, first served. 3. Advertising of Program. Resource Central may design and pay for the placement of advertisements in a local newspaper or online (social media), and write and disseminate press releases and public service announcements publicizing the Program. 4. Customer Service Resource Central shall handle all incoming phone calls and emails regarding the Program and respond to all questions. 5. Sales. Resource Central shall create and manage an online retail platform. Resource Central shall also process orders and take payment via check and credit card. C. Distribution of Garden In A Box Kits 1. Garden In A Box Assembly. Resource Central shall organize and handle delivery of all plants, which shall be pre -packaged according to the designs developed by Resource Central. 2. Training of Utility Partner Staff. Resource Central shall train Utility Partner staff, if Utility Partner elects to provide staff to aid in the distribution. 3. Distribution. Resource Central shall conduct at least one (1) distribution within twenty (20) miles of the Utility Partner service area at a mumally agreed upon location(s). Before the distribution(s), Resource Central staff and volunteers shall prepare and organize all plants required for the dis-tribution(s). Resource Central shall organize volunteers to help distribute Gardens In A Box at each requested distribution location. Resource Central shall provide at least one of its staff members and one volunteer to conduct the distribution(s). Resource Central staff and/or volumeet(s) shall confirm that participants have pre -ordered and pre -paid for their Garden In A Box. Resource Central staff and/or volunteer(s) shall then assist participants in retrieving their requested Garden In A Box kit(s). At that time, Resource Central staff and/or volunteer(s) shall give the participant the plant and care guides for their requested Garden In A Box kit(s). 4. Undistributed Garden Kits. If, after a distribution is completed, there remain undelivered Garden In A Box kits, Resource Central shall make the undelivered Garden In A Box kits available for pickup by the participant at 6400 Arapahoe, Boulder, CO, 80303. Resource Central shall make all reasonable efforts to sell any remaining plants individually. Regardless of Resource Central's ability to sell undistributed Garden In A Box kits or individual plants, Utility Partner is still obligated to pay, the Base Program Price and any additional charges associated with Utility Partner's requested number of Garden In A Box kits, as specified in the Payment Schedule and Terms, attached hereto as Attachment B. 5. Time of Distributions. All distributions shall be conducted during the period from May 1, 2023, to September 30, 2023, with the primary months being May, June, August, and September. D. Program Updates 1. Demand Updates. During peak garden sales season, Resource Central shall provide to Utility Partner updates about the Program at least every other week. DocuSign Envelope ID: 9CA5B365-BOED-49DF-9A70-BO9E4936C914 2. Updates Upon Request. Updates shall also be provided to Utility Partner within five (5) business days of any written request. 3. Contents of Updates. Both regularly scheduled and requested updates shall include a summary of Resource Centrars progress in meeting its obligations under the Agreement. This includes the number of discounts used at the time of the update, and the percentage of the discounts requested by Utility Partner that this represents. R. Post -Distribution Activities 1. Participant Satisfaction Surveys. After the Program Tenn has ended, Resource Central shall conduct a satisfaction sun ey of all participants purchasing Garden In A Box kits. 2. Annual Report. Resource Central shall also compile information about the Program. The survey results and the Program information shall be included in a final report detailing the Program results. Resource Central shall provide Utility Partner with this report by December 31, 2023. DocuSign Envelope ID: 9CA5B365-BOED-49DF-9A70-B09E4936C914 ATTACHMENT B GARDEN IN A BOX PROGRAM PAYMENT SCHEDULE AND TERMS DocuSign Envelope ID: 9CA5B365-BOED-49DF-9A70-BO9E4936C974 GARDEN IN A BOX PROGRAM PAYMENT SCHEDULE AND TERMS I. Payment Terms A. Base Program Price 1. Price Charged to Utility Partner's Residents. Six (6) garden designs shall be made available for Utility Partner's residents to choose from. The six (6) options shall cost circa $99-$320 for water customers of Utility Partner as long as discounts remain available- Resource Central shall make all good faith efforts to keep the price charged to Utility Partner's residents below retail cost. 2. Price Charged to Utility Partner. To make the Garden In A Box Program available to Utility Partner in 2023, Utility Partner shall pay a base program price of $1,S75.00 ('Base Program Price"). 3. Services Included in Base Program Price. The Base Program Price covers a portion of Resource Central's costs associated with managing and organizing the program as outlined in the Garden In A Box Scope of Work. In addition, the Base Program Price includes twenty-five (25) discounts of $25 for each Garden In A Box kit that participants purchase during the sales season. Participants must be receiving their water service through Utility Partner to be eligible for discounts. The Base Program Price also includes one (1) distribution within twenty (20) miles of the Utility Partner service area at a mutually agreed -upon location. B. A Is Carte Prices 1. Additional Gardens and Distributions. Subject to availability in the spring season, Utility Partner may order more garden discounts than the twenty-five (25) discounts included in the Base Program Price and will only pay $25 for each additional discount (no additional Base Program Price). Any unused discounts in the fall cannot be carried over, refunded, or transferred into the next calendar year. C. Liability for Cost of Unsold Gardens and Cnclaimed Discounts 1. Costs Associated with Garden Order. Utility Partner shall not be liable for the costs associated with unsold Garden In A Box kits that are part: of the order of twenty-five (25) discounts. 2. No Refund. Resource Central shall not provide a refund to Utility Partner for any unsold gardens or unclaimed discounts. II. Payment Schedule and Invoicing A. Invoicing. Resource Central shall bill Utility Partner for all work completed pursuant to the Agreement. Payment shall be due within thirty (30) days of the date the invoice is issued by Resource Central. Said invoice shall be issued upon Utility Partner's submission to Resource Central of a signed version of the Agreement Such payment must be made by check or electronic payment (EFT) payable to Resource Central. B. Payment Deadlines. For purposes of these payment deadlines, a payment shall be deemed to have been made upon the date of its actual receipt by Resource Central.