HomeMy WebLinkAboutR-2004-057 Washington State Department of Community, Trade, & Economic Development Contract (re: Capitol Theater improvements )RESOLUTION NO. R-2004- 57
A RESOLUTION authorizing and directing the City Manager to execute a contract and all
related documents between the City of Yakima and the Washington State
Department of Community, Trade, and Economic Development regarding
the receipt of state funds for improvements to the Capitol Theatre.
WHEREAS, the Washington State Legislature in Laws of 2003, First Special Session,
Chapter 26 (Section 151) made an appropriation to support the Local and Community Projects
Program and directed the Washington State Department of Community, Trade, and Economic
Development ("Department") to administer those funds; and
WHEREAS, the enabling legislation stipulated that $500,000.00 was thereby
appropriated for the Capitol Theatre in Yakima, Washington; and
WHEREAS, the City of Yakima is the owner of the Capitol Theatre; and
WHEREAS, the scope of work contemplated by the attached contract with the
Department involves improvements to the Capitol Theatre such as new bathrooms,
improvements to the HVAC system, new stage rigging, and carpeting for some areas; and
WHEREAS, the Department is willing to provide the appropriated funds, less its contract
management cost of $8,750.00, in accordance with the terms and conditions of the attached
agreement; and
WHEREAS, the City Council of the City of Yakima deems it to be in the best interest of
the City of Yakima to enter into the attached contract with the Department for the receipt of state
funds, now, therefore;
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized and directed to execute the attached and
incorporated "State of Washington Department of Community, Trade, and Economic
Development Local and Community Projects Program Capital Contract Number 04-99500-007",
and all related documents, for the receipt of state funds to improve the Capitol Theatre.
ADOPTED BY THE CITY COUNCIL this 13th day of April,
ATTEST:
City Clerk
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Paul George, Mayor
STATE OF WASHINGTON
DEPARTMENT OF COMMUNITY, TRADE, AND ECONOMIC DEVELOPMENT
LOCAL AND COMMUNITY PROJECTS PROGRAM
CAPITAL CONTRACT NUMBER 04-99500-007
THIS CONTRACT, entered into by and between City of Yakima (a unit of local government
hereinafter referred to as the CONTRACTOR), and the Washington State Department of
Community, Trade, and Economic Development (hereinafter referred to as the DEPARTMENT),
WITNESSES THAT:
WHEREAS, the DEPARTMENT has the statutory authority under RCW 43.330.050 (5)
to cooperate with and provide assistance to local governments, businesses, and
community-based organizations; and
WHEREAS, the DEPARTMENT is also given the responsibility to administer state funds
and programs which are assigned to the DEPARTMENT by the Governor or the
Washington State Legislature; and
WHEREAS, the Washington State Legislature has, in Laws of 2003, First Special
Session, Chapter 26, (Section 151), made an appropriation to support the Local and
Community Projects Program, and directed the DEPARTMENT to administer those
funds; and
WHEREAS, the enabling legislation also stipulates that the CONTRACTOR is eligible to
receive funding for acquisition, construction, or rehabilitation (a venture hereinafter
referred to as the "Project").
NOW, THEREFORE, in consideration of covenants, conditions, performances, and promises
hereinafter contained, the parties hereto agree as follows:
1. FUNDING
The funds awarded to the CONTRACTOR hereunder shall be a sum up to, but not to
exceed $491,250.00. The DEPARTMENT has retained the amount of $8,750.00 for
costs directly associated with managing the completion of this contract.
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2. SERVICE PROVISIONS
a) Funds awarded under this contract shall be used solely and specifically for capital
construction costs associated with the Capitol Theatre, as contemplated in Laws of
2003, First Special Session, Chapter 26, (Section 151).
b) The CONTRACTOR shall perfolin in accordance with the terms and conditions
of this contract and the following attachments which, by this reference, are made a
part of this contract:
ATTACHMENT A (Project Budget)
ATTACHMENT B (Certification of the Availability of Funds to Complete
the Project)
ATTACHMENT C (Project Scope of Work)
3. SPECIAL CONDITIONS)
None.
4. CONTRACT PERIOD
a) The effective date of this contract shall be the date of the last signature of the
contracting parties.
b) Unless terminated earlier pursuant to Section 9, 12, or 27, hereof, the termination
date shall be June 30, 2007.
5. CERTIFICATION OF FUNDS
a) The release of state funds under this contract is contingent upon the
CONTRACTOR certifying that it has expended or has access to funds from non -
state sources as set forth in ATTACHMENT B (CERTIN'ICATION OF THE
AVAILABILITY OF FUNDS TO COMPLETE THE PROJECT), hereof. Such
non -state sources may consist of a combination of any of the following:
i) Eligible Project expenditures prior to the execution of this contract.
ii) Cash dedicated to the Project.
iii) Funds available through a letter of credit or other binding loan
commitment(s).
iv) Pledges from foundations or corporations.
v) Pledges from individual donors.
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vi) The value of real property when acquired solely for the purposes of this
Project, as established and evidenced by a current market value appraisal
performed by a licensed, professional real estate appraiser, or a current
property tax statement. The DEPARTMENT will not consider appraisals
for prospective values of such property for the purposes of calculating the
amount of non -state matching fund credit.
vii) In-kind contributions, subject to the DEPARTMENT'S approval.
b) The CONTRACTOR shall maintain records sufficient to evidence that it has
access to or has expended funds from such non -state sources, and shall make such
records available for the DEPARTMENT'S review upon reasonable request.
6. EXPENDITURES ELIGIBLE FOR REIMBURSEMENT
The CONTRACTOR may be reimbursed, at the rate set forth elsewhere in this contract,
for Project expenditures in the following cost categories:
a) Real property, when purchased or acquired solely for the purposes of the Project;
b) Design, engineering, architectural, and planning costs;
c) Project management costs (from external sources only);
d) Construction costs including, but not limited to, the following:
Site preparation and improvements;
Permits and fees;
Labor and materials;
Taxes on Project goods and services;
Capitalized equipment; and
Landscaping.
7. REIMBURSEMENT PROVISIONS
a) Payments to the CONTRACTOR shall be made on a reimbursement basis only.
For the purposes of this contract, reimbursement shall be construed to mean costs
incurred and paid, or costs incurred and payable within thirty (30) days.
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b) The DEPARTMENT shall reimburse the CONTRACTOR for one -hundred
percent (100%) of eligible Project expenditures, up to the maximum payable
under this contract. When requesting reimbursement for costs incurred or
expenditures made, the CONTRACTOR shall submit to the DEPARTMENT a
signed and completed Invoice Voucher (Form A-19), referencing the Project
activity performed, and any appropriate documentation. An official of the
CONTRACTOR with authority to bind the CONTRACTOR must certify the
voucher. The final voucher shall be submitted to the DEPARTMENT within
fifteen (15) days following the completion of work or other termination of this
contract.
c) Each request for payment must be accompanied by a Project Status Report, which
describes, in narrative form, the progress made on the Project since the last
invoice was submitted, as well as a report of Project status to date. The
DEPARTMENT will not release payment for any reimbursement request received
unless and until the Project Status Report is received.
d) After approving the Invoice Voucher and Project Status Report, the
DEPARTMENT shall promptly remit a warrant to the CONTRACTOR.
8. EVALUATION AND MONITORING
a) The CONTRACTOR shall cooperate with and freely participate in any monitoring
or evaluation activities conducted by the DEPARTMENT that are pertinent to the
intent of this contract, including periodic site inspections.
b) The CONTRACTOR shall provide the DEPARTMENT with photographs, either
hard copy or electronically, which depict visually the progress made on the
Project. Such photographs shall be submitted to the DEPARTMENT at the
inception of the Project, upon 50 percent of completion, and upon completion, as
applicable.
c) The DEPARTMENT or the State Auditor and any of their representatives shall
have full access to and the right to examine during normal business hours and as
often as the DEPARTMENT or the State Auditor may deem necessary, all the
CONTRACTOR'S records with respect to all matters covered in this contract.
Such representatives shall be permitted to audit, examine, and make excerpts or
transcripts from such records and to make audits of all contracts, invoices,
materials, payrolls, and records of matters covered by this contract. Such rights
last for six (6) years from the date final payment is made hereunder.
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9. NONDISCRIMINATION PROVISION
a) During the performance of this contract, the CONTRACTOR shall abide by all
applicable federal and state nondiscrimination laws and regulations, including, but
not limited to Chapter 49.60 RCW (Washington's Law Against Discrimination)
and 42 U.S.C. 12101 et. seq. (the Americans With Disabilities Act [ADA]).
b) In the event of the CONTRACTOR'S noncompliance or refusal to comply with
any nondiscrimination law, regulation, or policy, this contract may be rescinded,
canceled, or terminated in whole or in part, and the CONTRACTOR may be
declared ineligible for further contracts with the DEPARTMENT. The
CONTRACTOR shall, however, be given a reasonable time in which to remedy
any such noncompliance. Any dispute may be resolved in accordance with the
"Disputes" procedure set forth in Section 24 of this contract.
10. CONTRACT MODIFICATIONS
The DEPARTMENT and the CONTRACTOR may, from time to time, desire to make
changes to this contract. Any such changes that are mutually agreed upon by the
DEPARTMENT and the CONTRACTOR shall be incorporated herein by written
amendment. It is mutually agreed and understood that, except for the budget
modifications described in Section 11 of this contract, no alteration or variation of the
terms of this contract shall be valid unless made in writing and signed by the parties
hereto prior to implementation of the changes, and that any oral understanding or
agreements not incorporated herein shall not be binding.
11. MODIFICATIONS TO THE PROJECT BUDGET
a) Notwithstanding any other provision of this contract, the CONTRACTOR may, at
its discretion, make modifications not to exceed ten percent (10%) of each line
item in the Project Budget (Attachment A), hereof.
b) The CONTRACTOR shall notify the DEPARTMENT in writing prior to making
any budget modification or modifications that would exceed ten percent (10%) of
any budget line item. Any such request shall require the written approval of the
DEPARTMENT, and any such modifications shall be made in writing and signed
by both parties, and attached to the Project Budget (Attachment A), hereof.
c) Nothing in this section shall be construed to permit an increase in the amount of
funds available for the Project, as set forth in Section 1 of this contract.
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12. TERMINATION OF CONTRACT
a) If, through any cause, the CONTRACTOR shall fail to fulfill in a timely and
proper manner its obligations under this contract or if the CONTRACTOR shall
violate any of its covenants, agreements or stipulations of this contract, the
DEPARTMENT shall thereupon have the right to terminate this contract and
withhold the remaining allocation if such default or violation is not corrected
within twenty (20) days after the DEPARTMENT'S submitting written notice to
the CONTRACTOR describing such default or violation; Provided, that if more
than twenty (20) days are required to correct any such default or violation and the
CONTRACTOR has initiated appropriate corrective measures as reasonably
determined by the DEPARTMENT, the DEPARTMENT will not terminate this
CONTRACT for such default or violation.
b) Notwithstanding any provisions of this contract, either party may terminate this
contract by providing the other party with written notice of such termination,
specifying the effective date thereof, at least thirty (30) days prior to such date.
c) In the event this contract is terminated, the CONTRACTOR shall be reimbursed
for eligible expenses incurred prior to the effective date of such termination and
not otherwise paid for by the DEPARTMENT, as the DEPARTMENT reasonably
determines.
d) In the event funds are not reappropriated for this Project in the 2005 - 2007
biennial budget, this contract shall terminate on June 30, 2005.
13. SPECIAL PROVISION
The DEPARTMENT'S failure to insist upon the strict performance of any provision of
this contract or to exercise any right based upon a breach thereof or the acceptance of any
perfoiniance during such breach, shall not constitute a waiver of any right under this
contract.
14. HOLD HARMLESS
a) It is understood and agreed that this contract is solely for the benefit of the parties
hereto and gives no right to any other party. No joint venture or partnership is
formed as a result of this contract. Each party hereto agrees to be responsible and
assume liability for its own negligent acts or omissions, or those of its officers,
agents, or employees to the fullest extent required by law, and agrees to save,
indemnify, defend, and hold the other party harmless from any such liability. In
the case of negligence of more than one party, any damages allowed shall be
levied in proportion to the percentage of negligence attributable to each party, and
each party shall have the right to seek contribution from the other party in
proportion to the percentage of negligence attributable to the other party.
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b) This indemnification clause shall also apply to any and all causes of action arising
out of the performance of work activities under this contract. Each contract for
services or activities utilizing funds provided in whole or in part by this contract
shall include a provision that the DEPARTMENT and the state of Washington are
not liable for damages or claims from damages arising from any subcontractor's
performance or activities under the terms of the contracts.
15. RECAPTURE PROVISION
In the event that the CONTRACTOR fails to expend state funds in accordance with state
law and/or the provisions of this contract, the DEPARTMENT reserves the right to
recapture state funds in an amount equivalent to the extent of noncompliance. Such right
of recapture shall exist for a period not to exceed six (6) years following termination of
the contract. Repayment by the CONTRACTOR of state funds under this recapture
provision shall occur within thirty (30) days of demand. In the event that the
DEPARTMENT is required to institute proceedings to enforce this recapture provision,
the DEPARTMENT shall be entitled to its cost thereof, including reasonable attorney's
fees.
16. OWNERSHIP OF PROJECT/CAPITAL FACILITIES
The DEPARTMENT makes no claim to any real property improved or constructed with
funds awarded under this contract and does not assert and will not acquire any ownership
interest in or title to the capital facilities and/or equipment constructed or purchased with
state funds under this contract. This provision does not extend to claims that the
DEPARTMENT may bring against the CONTRACTOR in recapturing funds expended in
violation of this contract.
17. RELATIONSHIP BETWEEN THE PARTIES
The CONTRACTOR and its employees or agents performing under this contract are not
deemed to be employees of the DEPARTMENT nor agents of the DEPARTMENT in any
manner whatsoever, nor will they hold themselves out as nor claim to be officers or
employees of the DEPARTMENT or of the state of Washington hereof and will not make
any claim, demand, or application to or for any right or privilege applicable to an officer
or employee of the DEPARTMENT or of the state of Washington.
18. GOVERNING LAW AND VENUE
This contract shall be construed and enforced in accordance with, and the validity and
performance hereof shall be governed by, the laws of the state of Washington. Venue of
any action at law between the parties arising out of this contract shall be the superior
court of Thurston County, Washington.
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19. SEVERABILITY
In the event any term or condition of this contract or application thereof to any person or
circumstances is held invalid, such invalidity shall not affect other ten's, conditions, or
applications of this contract that can be given effect without the invalid term, condition,
or application. To this end the terms and conditions of this contract are declared
severable.
20. REDUCTION IN FUNDS
In the event state funds appropriated for the work contemplated under this contract are
withdrawn, reduced, or limited in any way by the Governor or the Washington State
Legislature during the contract period, the parties hereto shall be bound by any such
revised funding limitations as implemented at the discretion of the DEPARTMENT, and
shall meet and renegotiate the contract accordingly.
21. ENTIRE AGREEMENT
This contract and all attachments hereto contain all the terms and conditions agreed upon
by the parties. No other understandings, oral or otherwise, regarding the subject matter of
this contract and attachments shall be deemed to exist or to bind any of the parties hereto.
22. SIGNAGE AND MARKERS
If, during the period covered by this contract, the CONTRACTOR displays signs or
markers or circulates any communication identifying the financial participants in the
Project, any such sign, marker, or communication must identify the State of Washington
as a participant. The provisions of this section shall also apply to any permanent signs or
markers displayed at the Project site.
23. DISPUTES
Except as otherwise provided in this contract, when a bona fide dispute arises between
the parties and it cannot be resolved through discussion and negotiation, either party may
request a dispute hearing. The parties shall select a dispute resolution team to resolve the
dispute. The dispute resolution team shall consist of a representative appointed by the
DEPARTMENT, a representative appointed by the CONTRACTOR, and a third party
mutually agreed upon by both parties. The dispute resolution team shall attempt, by
majority vote, to resolve the dispute. The parties agree that this dispute process shall
precede any action in a judicial or quasi-judicial setting.
24. PREVAILING WAGE LAW
The Project funded under this contract may be subject to state prevailing wage law
(Chapter 39.12 RCW). The CONTRACTOR is advised to consult the Washington
Department of Labor and Industries and/or private counsel to determine whether
prevailing wages must be paid. The DEPARTMENT is not responsible for determining
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whether prevailing wage applies to this Project or for any prevailing wage payments that
may be required by law.
25. CHANGE OF OWNERSHIP OR USE
a) The CONTRACTOR understands and agrees that any and all real property or
facilities acquired, constructed, or rehabilitated using state funds under this
contract shall be held and used by the CONTRACTOR for the express purpose or
purposes stated elsewhere in this contract for a period of at least ten (10) years
from the date the subject facility is occupied.
b) In the event the CONTRACTOR is found to be out of compliance with this
section, the CONTRACTOR shall repay to the state general fund the principal
amount of the grant as stated in Section 1, hereof, plus interest calculated at the
rate of interest on state of Washington general obligation bonds issued most
closely to the effective date of the legislation in which the subject facility was
authorized.
26. HISTORICAL AND CULTURAL ARTIFACTS
In the event that historical or cultural artifacts are discovered at the Project site during
construction, the CONTRACTOR shall immediately stop construction and notify the
local historical preservation officer and the state historical preservation officer at the
Office of Archaeology and Historic Preservation.
27. REAPPROPRIATION
a) The parties hereto understand and agree that any state funds not expended by
June 30, 2005, will lapse on that date unless specifically reappropriated by the
Washington State Legislature. If funds are so reappropriated, the state's obligation
under the terms of this contract shall be contingent upon the terms of such
reappropriation.
b) In the event any funds awarded under this contract are reappropriated for use in a
future biennium, the DEPARTMENT reserves the right to assign a reasonable
share of any such reappropriation for administrative costs.
[Rest of page left blank intentionally]
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28. ADMINISTRATION
a) The CONTRACTOR'S representative shall be Michael Morales.
b) The DEPARTMENT'S representative shall be Daniel Aarthun.
IN WITNESS WHEREOF, the DEPARTMENT and the CONTRACTOR have executed this
contract as of the date and year written below.
•*•(\,-
Nancy K. Ousley, Assistant Director
Local Government Division
Department of Community, Trade, and
Economic Development
Date:
APPROVED AS TO FORM:
Assistant Attorney General
Date:
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Richard A. Zais, City Manager
City of Yakima
Federal Tax ID #: 91-6001293
Date:
CITY CONTRACT N0: ____ S/9
RESOLUTION No: i .07oew- "1
ATTACHMENT A
PROJECT BUDGET
Line Item
Amount
Architecture & Engineering
$50,000.00
Construction
$391,250.00
Contingency
$50,000.00
Total Contracted Amount:
$491,250.00
The CONTRACTOR, by its signature, certifies that the Project Budget set forth above has been
reviewed and approved by the CONTRACTOR'S governing body or board of directors, as
applicable, as of the date and year written below.
\...,.-\\,„\s-\\,
CONTRACTOR
C—, s mac,, .-i
TITLE
DATE
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ATTACHMENT B
CERTIFICATION OF THE AVAILABILITY OF FUNDS
TO COMPLETE THE PROJECT
State Funds
2003 State Capital Budget
$491,250.00
Total Non -State and State Sources:
$491,250.00
CERTIFICATION
The CONTRACTOR, by its signature, certifies that Project funding from sources other than
those provided by this contract and identified above has either been expended for eligible Project
expenses, or is committed in writing and available and will remain committed and available
solely and specifically for carrying out the purposes of this Project as described in elsewhere in
this contract, as of the date and year written below. The CONTRACTOR shall maintain records
sufficient to evidence that it has expended or has access to the funds needed to complete the
Project, and shall make such records available for the DEPARTMENT'S review upon reasonable
request.
CONTRACTOR
cu.4N
TITLE
DATE
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ATTACHMENT C
PROJECT SCOPE OF WORK
Project Summary
This project will include the renovation of aging facilities at the Capital Theatre located in
downtown Yakima. It will include construction of new bathrooms, improvements to the HVAC
system, replacement of stage rigging and new carpeting for some areas.
The design phase will be completed in the spring of 2004. Construction will begin in June of
2004 and should be completed by December of 2004.
The Capital Theatre project is the first phase of a multi -phase project with the goal of revitalizing
the downtown Yakima area. This will include construction of a downtown commons and
promenade, as well as additional retail, consumer services, and office space for local businesses.
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ATTACHMENT A
PROJECT BUDGET
Line Item
Amount
Total Project Budget
$491,250
Architecture & Engineering Basic Fee
$61,169
Sales Tax
$27,464
Construction Contingency
$27,811
Miscellaneous items not in construction contract
$8,000
Miscellaneous Inspections and Fees & Misc. Contingency
$14,538
Construction
$347,644
Total Estimated Project Cost
$486,626
(Under Budget)
($4,624)
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting Of: April 13, 2004
ITEM TITLE: A.) Authorizing and directing the City Manager to execute a contract
and any related documents between the City of Yakima and the
Washington State Department of Community, Trade, and Economic
Development (CTED) regarding the receipt of state funds for
improvements to the Capitol Theatre; and
B.) Authorizing and directing the City Manager of the City of Yakima
to execute an architectural services agreement with KDF
Architecture, Inc. to provide architectural services for improvements
to the Capitol Theatre.
SUBMITTED BY: Bill Cook, Director CED
CONTACT: Michael Morales, 575-3533
SUMMARY EXPLANATION:
The Washington State Legislature appropriated $500,000 in its Local and Community
Projects Program in 2003 to pay for improvements to the Capitol Theatre. As the owner
of the Capitol Theatre, the City of Yakima must serve as the recipient of these funds.
CONTINUED ON NEXT PAGE
Resolution Ordinance Contract x Other:
Funding Source: Washington State Dept. of Community, Trade &
Economic Dev�lgpment
Approval for Submittal:
City Manager
STAFF RECOMMENDATION: Staff recommends approval of the contract.
BOARD RECOMMENDATION:
COUNCIL ACTION: A) Resolution adopted. RESOLUTION R-2004-57
Bl Resolution adopted. RESOLUTION R-2004-58
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The funds are administered by CTED, which will provide the appropriated funds, less its
contract management cost of $8,750.00, in accordance with the terms and conditions of
the attached agreement. The budget estimates included in the contract Attachment "A"
were done prior to negotiations with and input from KDF Architecture. A revised budget
(attached) will be submitted to CTED for amendment along with the executed original of
the contract. This is CTED's preferred method of amending the agreement.
These improvements require an architect prepare designs and provide other services.
After conducting a request for qualifications and interviewing three firms from
Washington and California, KDF Architecture, Inc. was recommended by the selection
committee. KDF Architecture has the experience and expertise necessary to provide
such architectural services and is willing to do so in accordance with the attached
architectural services agreement. The agreement between the City and KDF, including
fee structure, is attached.
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