HomeMy WebLinkAboutR-2017-085 Public Park and Recreation Facility Development and Maintenance Agreement with SOZO Sports of Central Washington, Inc.A RESOLUTION
RESOLUTION NO. R-2017-085
authorizing an Agreement with SOZO Sports of Central Washington for
SOZO to provide the development, operation and maintenance of a
Public Park and Recreation Facility on property the City is in the process
of purchasing adjacent to the SOZO Sports facility south of the Yakima
Air Terminal
WHEREAS, the City and SOZO Sports of Central Washington have established a
partnership for the purchase and development of property south of the Yakima Air Terminal to
provide premier soccer and mixed sport facilities to the public, and
WHEREAS, in addition to the partnership for the development, operation and
maintenance of the soccer and sports facilities the City committed to providing additional
property for SOZO to assist in the success of the premier sports facility; and
WHEREAS, to fulfill this commitment to SOZO, as well as to provide RCO replacement
property for a similar partnership obligation the City has with the YMCA for the development of
an aquatic facility on a portion of the Chesterley Park property, the City is presently purchasing
an additional 32 acres of property immediately adjacent to and north of the SOZO sports facility
to meet the objectives of SOZO's development plan, and
WHEREAS, SOZO has agreed, in accordance to the terms set forth in the Public Park
And Recreation Facility Development And Maintenance Agreement City of Yakima And SOZO
Sports Of Central Washington, attached hereto and incorporated herein by this reference, to
construct, operate and maintain a Public Park and Recreation Facility that shall be open to the
public for use as a City park and recreation area and available to offer entertainment recreation
and enjoyment to the public, and
WHEREAS, the City Council finds it to be in the best interest of the City to authorize the
attached Agreement whereby the residents of Yakima and many others will be benefitted by the
public park facilities SOZO has agreed to construct and maintain on the property the City is
presently purchasing for this purpose, Now, Therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager of the City of Yakima is hereby authorized and directed to execute the
attached and incorporated Public Park And Recreation Facility Development And Maintenance
Agreement City of Yakima And SOZO Sports Of Central Washington that will benefit the
residents of the City and many others, and will also be useful as an exchange property for the
YMCA Chesterley Park RCO conversion property
ADOPTED BY THE CITY COUNCIL this 11th day of July, 2017
ATTEST
Sonya ClaarVe�, City Clerk
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PUBLIC PARK AND RECREATION FACILITY DEVELOPMENT
AND MAINTENANCE AGREEMENT
CITY OF YAKIMA AND SOZO SPORTS OF CENTRAL WASHINGTON, INC.
THIS AGREEMENT ("Agreement") is entered -into effective the 1 Z day of awl
, 2017 (the "Effective Date"), by and between the City of Yakima, a Washington municipal
corporation ("City"), and SOZO Sports of Central Washington, Incorporated, a Washington non-
profit corporation ("SOZO"). The City and SOZO are referred to collectively as the "Parties."
In consideration of the promises, covenants, and provisions set forth in this Agreement, the
Parties agree as follows:
ARTICLE 1
RECITALS AND FINDINGS
1.1 Property.
City plans to purchase approximately 31.2 acres of property located south of the Yakima Air
Terminal, identified by Yakima County Auditor number 181334-42002 and legally described in
Exhibit A, attached hereto and incorporated herein by this reference. The property is located
within the City of Yakima. The City intends to acquire the property from Congdon. The property
described in Exhibit A may be referred to herein as the "property", the "Public Park and Recreation
Facility" or the "Congdon property". Upon City's purchase of the property the City will lease the
property so purchased and thereafter referred to for purposes of this Agreement and the Lease as
the "SOZO Public Park and Recreation Facility", to SOZO and SOZO will develop the Public Park
and Recreation Facility as specifically set forth in this Agreement, in addition to developing
SOZO's previously acquired parcels. In order to ensure the availability of necessary irrigation
water for the proposed SOZO Public Park and Recreation Facility, it is understood and agreed that
all water rights appurtenant to the Congdon Property shall remain appurtenant to the SOZO Public
Park and Recreation Facility and shall be utilized to support the growth and maintenance of the
property, not inconsistent with state law.
1.2 SOZO.
SOZO has the experience, ability, and resources to design, develop and maintain the public park
and associated recreational facilities that shall be constructed on the property to provide an area
for general public use and enjoyment for individuals of all ages consistent with provisions of the
Land and Water Conservation Fund Act and implementing guidelines set forth at 36 CFR 59.
1.3 Facilities.
The Parties intend this Agreement to specifically identify the terms by which SOZO is granted the
exclusive rights to lease the Congdon property from the City and to design, develop, construct,
maintain and operate the Public Park and Recreational Facilities. SOZO shall provide parking
spaces and restroom facilities for individuals utilizing the public park and recreational facilities
without cost to those using said facilities, notwithstanding that the SOZO Public Park and
Recreational Facilities and all improvements thereon shall at all times remain the sole property of
the City.
1.4 No Partnership.
The Parties agree that no joint venture or partnership is formed as a result of this Agreement.
1.5 Premises.
SOZO shall be responsible for the complete design and construction of the Congdon property,
including the parking, restrooms, pathways, irrigation, stormwater retention, playground
equipment and associated landscaping. The SOZO Public Park and Recreational Facilities shall
be completed and fully available for the public use in accordance with the Recreation Conservation
Office (RCO) approved design by no later than three (3) years from RCO's approval of the
Congdon property as suitable exchange property for the YMCA's Chesterley Park property
development which will convert a portion of property previously acquired and developed with
RCO funding under RCO #75-030 and RCO #98-1123. All improvements to the Congdon
property shall remain the property of the City at the termination of this Agreement and/or the
associated Lease.
1.6 City Police Power.
By entering this Agreement, the City does not waive any of its police power authority and shall
retain granting authority over final permits for the Congdon property development, consistent with
the intent of this Agreement, approval of which permitting shall not be unreasonably withheld or
delayed.
1.7 Access and Parking.
The City will improve the public streets providing access to the SOZO Public Park and Recreation
Facility, at City's expense; SOZO will be responsible to provide the required on-site parking
identified in the development permit to support the public use of the Congdon property.
1.8 Financing.
1.8.1 SOZO will be responsible for obtaining the necessary financing for the design,
development, maintenance and operation of the Public Park and Recreational Facility, subject only
to City participation as described in Article 5.10, herein.
1.8.2 It is mutually understood by the Parties that any lender who provides financing to SOZO
for the development and operation of the Congdon property will require this Agreement and
underlying Lease as protection and security for lender ("lender"). The term "lender" shall also
mean the successors and assigns of the lender.
1.8.3 The City will acknowledge and consent to a lender taking a first position security interest
in this Agreement, the Lease and the SOZO Public Park and Recreational Facility under mutually
agreeable terms; lender taking an assignment of the right, title, claim and interest of SOZO in this
Agreement; lender obtaining the right of substitution for SOZO, lender operating the park and
recreational facility pursuant to the terms of this Agreement; and/or, lender selling, assigning
and/or transferring SOZO's interest in this Agreement and/or the Lease.
ARTICLE 2
GROUND LEASE AND USE GRANT
2.1 Park and Recreational Facility.
2.1.1 City shall by separate lease instrument, forthwith upon gaining title thereto, convey and
grant unto SOZO an exclusive lease of the public park and recreational facility (Congdon)
property, for the design, development, construction, future maintenance and operation of said
property, as described herein. The Lease shall set forth, in substance, the intended outcome, terms
and conditions of the operation established in this Agreement. A preliminary site plan is shown in
Exhibit B, attached hereto and incorporated herein by this reference. Any and all development,
construction, and improvements of and to the SOZO Public Park and Recreational Facility
property shall be leased to SOZO subject to security interest of lender, if any. At the termination
of this Agreement and the Lease, other than as a result of condemnation proceedings, the then
existing improvements to the SOZO Public Park and Recreational Facility shall remain the
property of and be solely owned by the City.
2.1.2 The common address of the Public Park and Recreation Facility property is 36th Avenue
and Spring Creek Road, Yakima, WA 98908.
2.2 Possession, Quiet Enjoyment and Covenants.
SOZO shall be entitled to exclusive possession of the Public Park and Recreation Facility property
upon the effective date of the Lease. Upon taking possession of the property, and subject to
SOZO's continuing performance under this Agreement and the Lease, SOZO shall peaceably and
quietly have, hold, and enjoy the property at all times during the full term of this Agreement and
the Lease. Every covenant in this Agreement and the Lease shall be deemed and treated to be a
covenant running with the Public Park and Recreation Facility property during the full term of this
Agreement and the Lease, and shall extend to the heirs, legal representatives, successors and
assigns of the Parties. No change in City's ownership of the SOZO Public Park and Recreational
Facility property, or rights to the payments hereunder, however accomplished, shall operate to
enlarge the obligations or reduce the rights of SOZO.
No change in City's ownership of the Park and Recreation Facility shall be binding upon SOZO
for any purpose until SOZO shall have been given written notice thereof.
ARTICLE 3
TERM OF AGREEMENT
3.1 Term.
The Term of this Agreement and the Lease shall be forty (40) years, commencing upon the
Effective Date of the Lease.
3.2 Option to Renew.
So long as SOZO is not then in material, uncured breach of the Lease or this Agreement, it shall
have the privilege of extending this Agreement and the Lease for two (2) additional ten (10) year
terms upon the same terms and conditions, subject to any modifications as provided in Section
9.13 below. In order to exercise said renewal option(s), SOZO shall provide written notice to City
not less than twelve (12) months prior to termination of the then current term of the Lease.
ARTICLE 4
SOZO OBLIGATIONS
4.1 Agreement.
SOZO agrees to the terms and conditions of this Agreement.
4.2 Not -For -Profit.
SOZO will serve as the controlling, authorized entity responsible for design, development,
maintenance, enhancement and ongoing operation of the SOZO Public Park and Recreational
Facility for the benefit of the general public use and in compliance with RCO grant program
requirements. Prior to construction the final design shall be presented to City and RCO for review,
comment and approval, which approval shall not be unreasonably withheld or delayed.
4.3 Investment.
SOZO will raise and invest the financial resources necessary for the design, development,
construction and ongoing maintenance of the Public Park and Recreation Facility to be located on
the Congdon parcel.
4.4 SOZO Sports Campus and Yakima Sports Complex.
From and after the effective date of the Lease, SOZO will be responsible for all costs of
improvement, operation and maintenance of the SOZO Public Park and Recreation Facility unless
otherwise stated within this Agreement.
4.5 Operating Hours — Activities.
The availability of recreational opportunities for City residents is a material consideration for this
Agreement. SOZO and the CITY intend to generate active and,passive uses for the Public Park
and Recreation Facility to serve the general public. SOZO recognizes that the Public Park and
Recreation Facility's primary purpose is to provide community enjoyment and recreational
opportunities consistent with other City parks and RCO giant program requirements. The public
park and recreation property may also provide a support opportunity for individuals and children
making use of the associated soccer and sport facilities, as well as opportunities for the general
public to enjoy the park and recreation amenities offered by the Congdon property. The Public
Park and Recreation Facilities shall be made available to the youth and adults from the City and
surrounding areas. The general public shall retain access during customary City park hours to the
SOZO Public Park and Recreation Facility, which access may include, but is not limited to
playground attendance, walking, jogging, general park use and pick up game opportunities.
Accordingly, throughout the full term of this Agreement SOZO shall continuously conduct and
carry on SOZO's permitted uses in a manner consistent with RCO grant program requirements
and shall keep the Public Park and Recreation Facilities open for public enjoyment within the same
generally applicable guidelines, rules and regulations as apply to other parks within'the City.
4.6 Entry by City and RCO.
City may, during normal operating hours, enter the property at all times to inspect, provide services
required hereunder and to post notices of SOZO's noncompliance with the provisions of this
Agreement or the Lease, all without being deemed a constructive eviction. Any person or persons
who may have an interest in the purpose of City's visit may accompany City. City has the right to
use any and all means that City deems proper to open doors and gates in an emergency in order to
obtain entry to the property. RCO also may, during normal operating hours, enter the property to
determine whether the intended uses and purposes required for this RCO exchange property are
being realized.
4.7 Health Inspections.
SOZO shall not knowingly commit or willfully permit to be committed any negligent act or thing
contrary to the rules and regulations prescribed by the local board of health, or which shall be
contrary to the laws, rules or regulations of any federal, state or municipal authority. SOZO shall
allow the Yakima County Health Department to make regular and ordinary inspections of the park
and recreation facilities as said health department may deem proper.
4.8 Maintenance, Repair, Improvements.
4.8.1 Maintenance.
SOZO shall, at its sole cost and expense, clean and maintain the Public Park and Recreation
Facility and make repairs, restorations, and replacements to the property and associated equipment
and facilities, including without limitation the irrigation, mechanical, electrical, and plumbing
systems, structures erected thereon including associated roof, walls, and foundations, roof
coverings, sprinkling and irrigation systems, and the fixtures and appurtenances to the public park
and recreation property as and when needed to preserve them in condition and repair consistent
with other City parks (less normal wear from use) throughout the full term of the Lease. SOZO
shall further keep in repair and maintain as necessary all machinery, equipment and facilities
necessary for maintaining the property and associated facilities during customary City park months
of operation and as provided in other City -maintained parks. SOZO shall paint the exterior of
buildings on the property (except the metal) with such frequency as may be required to maintain
their safety and good, clean appearance. All such repairs, restorations, and replacements shall be
performed and provided in quality and workmanship at least equal to the original work or
installations. If SOZO fails to make such repairs, restorations, or replacements to equipment,
improvements or buildings on the property within ninety (90) days of written notice by City, City
may, but shall not be obligated to, make them at the expense of SOZO and such expense will be
paid by SOZO within fifteen (15) days after delivery of an invoice for such expense.
4.8.2 Sidewalk Maintenance.
At its sole cost and expense, SOZO shall maintain any sidewalks and pathways on the Public Park
and Recreation Facility in good, safe and presentable condition during the full term of this
Agreement, shall be responsible for correcting any unsafe sidewalk and pathway conditions and
shall be responsible for the removal of ice and snow from the sidewalks, all as is consistent with
state and local laws and ordinances, to the extent typically provided in other City -maintained parks.
4.8.3 Janitorial and Landscaping Services.
At its sole cost and expense, SOZO shall keep the restroom facilities on the Public Park and
Recreation Facility clean during the months of normal operation for City park and recreation
facilities, and shall provide sufficient maintenance and janitorial services to maintain a tidy
appearance on and about the property. SOZO shall provide landscaping maintenance services,
lawn care, mowing, fertilizing, irrigation, aeration, sweeping, cleaning, parking lot cleanup and
snow plowing and trash and litter collection, when and as required, such that landscaping on the
property remains healthy, attractive, clean and well maintained.
4.8.4 Repair of Damage.
In the event any material damage shall occur to the Public Park and Recreation Facility of any kind
or nature whatsoever, SOZO shall promptly cause said damage to be reasonably repaired or
replaced, as is reasonably necessary, at SOZO's own cost and expense. In the event SOZO fails
to accomplish such repair or replacement within forty-five (45) days of receipt of written notice
by the City, then in that event City may, but is not required to, enter the property and accomplish
such repairs and thereafter bill SOZO who will pay the bill within fifteen (15) days after City sends
an invoice for such expense.
4.8.5 Improvements.
SOZO shall be solely responsible for providing adequate funding for all alterations and
improvements to the Public Park and Recreation Facility as provided in this Agreement and such
alterations or improvements shall be made without cost to the City, except as provided in Section
5.2, 5.3, 5.4 and 5.8. All alterations and/or improvements made upon the Public Park and
Recreation Facility shall be subject to compliance with all required permits, inspections and codes
applicable to the actions performed and shall be accomplished in accordance with generally
accepted construction methods and means and with RCO grant program requirements.
4.8.6 Alterations of Premises After Construction.
After such time as the Public Park and Recreation Facility has been completed and accepted as
defined above, SOZO shall not make any material alteration to the property, including any changes
to the landscaping, without the City's prior written consent, such consent to not be unreasonably
withheld or delayed. For purposes of this subsection, a "material alteration" shall be deemed
alterations not to exceed the cost to SOZO of $20,000 in any calendar year, adjusted annually on
each Lease commencement date to a sum equivalent to one hundred five percent (105%) of the
sum of the previous year' s monetary limit. The Public Park and Recreation Facilities must be
maintained in compliance with all terms of operation and purpose as approved by RCO in
accordance with grant program requirements.
4.9 Signs.
SOZO shall place and maintain signs upon the Premises in accordance with the City sign ordinance
that indicate the Public Park and Recreation Facility is owned by the City of Yakima and is open
to the public at all times consistent with City park operation. Signage shall include specific
reference to the funding involvement of the Land Water Conservation Fund in the park project and
shall also warn of aircraft operations in the area and prohibit activities such as drone and kite flying
that may pose a threat to local aircraft operations and safety.
4.10 Utilities.
4.10.1 Utility Services and Expense.
Except as otherwise provided in this Agreement or in the Lease, SOZO will pay for all domestic
and irrigation water, gas, garbage, sewage, stormwater, electricity and other utilities necessary and
installed upon the SOZO Public Park and Recreation Facility property, whether or not such
services are billed directly to SOZO. SOZO will also procure, or cause to be procured, without
cost to the City, any and all necessary permits, licenses, or other authorizations required for the
lawful and proper installation and maintenance upon the property of utility appurtenances and
appliances for use in supplying such utilities and services to and upon the property. The City,
upon request of SOZO, and at the sole expense and liability of SOZO, will join with SOZO in any
application required for obtaining or continuing any such services, provided that such services do
not violate any other applicable provision of this Agreement. The City shall not be held liable for
any injury, loss, or damage caused by or resulting from any interruption or failure of utility services
due to any cause whatsoever, unless and to the extent such interruption or failure is the result of
the City's negligence. SOZO shall not be entitled to any offset, reduction, or return of
consideration as a result of any interruption or failure of services.
4.10.2 Trash & Garbage.
SOZO shall place all trash and garbage from the Public Park and Recreation Facility into such
areas and containers as are designed and intended to accommodate the trash and garbage generated
within or on the property. SOZO shall not allow trash and/or garbage to accumulate such that a
nuisance or health hazard results or attracts wildlife that could cause potential hazards to aircraft
operations at the Yakima Air Terminal.
4.11 Hazardous Substances.
4.11.1 Definition.
As used herein, the term "Hazardous Substance" means any hazardous, toxic or dangerous
substance, waste, or material, which is or later becomes regulated under any federal, state, or local
statute, ordinance, rule, regulation, or other law now or hereafter in affect pertaining to
environmental protection, contamination, or cleanup.
4.11.2 Access to Environmental Information.
SOZO shall keep upon the Public Park and Recreation Facility, in a location accessible to City on
request during normal business hours, copies of all reports regarding hazardous or toxic materials
in or upon the property that SOZO has provided to any governmental agency in the previous
quarter. SOZO shall, upon request by City and at SOZO's expense, provide City with a copy of
any such report. In the event of any accident, spill, or other incident involving hazardous or toxic
matter that SOZO is required to report to any governmental agency, SOZO shall immediately
report the same to the City and supply City with all information and reports with respect to the
same, together with SOZO's clean-up or remediation plan and schedule. If such clean-up or
remediation plan is not acceptable to City in City's discretion, City may so notify SOZO and, upon
48 hours prior written notice (or without notice if so required by an emergency) may enter on the
property to conduct the cleanup or remediation and charge SOZO the cost thereof. All information
described herein shall be provided to City regardless of any claim by SOZO that it is confidential
or privileged, provided that the City shall not publish or disclose the information to any third party
except as required by and pursuant to Chapter 42.56 RCW.
4.11.3 Environmental Indemnification.
SOZO agrees to hold harmless, protect, indemnify, and defend City from and against any damage,
loss, claim, or liability, including reasonable attorney's fees and costs, resulting from SOZO's use,
disbursement, disposal, transportation, generation, and/or sale of any Hazardous Substances. The
City agrees to hold harmless, protect, indemnify, and defend SOZO from and against any damage,
loss, claim, or liability, including reasonable attorney's fees and costs, resulting from (a)
Hazardous Substances existing on the Park and Recreation Facility as of the Effective Date of the
Lease; or (b) Hazardous Substances thereafter used, disposed of, or generated on the property by
the City. These indemnities will survive the termination of this Agreement, whether by expiration
of the Term or otherwise.
4.12 Risk of Loss.
All SOZO's personal property of any kind or description whatsoever on the Public Park and
Recreation Facility shall be at SOZO's sole risk, and City shall not be liable for any damage done
to, or loss of, such personal property.
ARTICLE 5
CITY OBLIGATIONS
5.1 Agreement.
City agrees to the terms and conditions of this Agreement.
5.2 Off -Premises Street Access, Parking and Stormwater.
5.2.1 The City will maintain all existing public access areas serving the Public Park and
Recreation Facility that are not part of the SOZO property and leaseholds consistent with such
standards applicable to municipal parks owned and operated by the City.
5.2.2 The City will maintain all streets and parking areas that are not part of the Yakima Sports
Complex and Public Park and Recreation Facility property, including landscaping associated
therewith, located adjacent to or providing access to and egress from the Yakima Sports Complex
and Public Park and Recreation Facility, consistent with applicable City standards.
5.2.3 The City will extend to exterior boundary lines of the Yakima Sports Complex and Public
Park and Recreation Facility such utility services, roads, sidewalks, gutters and lighting as are
reasonably necessary to gain approval for zoning modification and/or development of the Public
Park and Recreation Facility property, or to operate the Public Park and Recreation Facility
property, as part of City's Investment set forth in Section 5.8.
5.3 Naming Rights — Signs — Zoning.
5.3.1 The City grants to SOZO all rights to Public Park and Recreation Facility naming.
Provided, however, the City shall be identified as the owner of the property and reference to
"Yakima," "City of Yakima", or other reference to "Yakima" as approved by the City shall be
incorporated into names and signage.
5.3.2 The City will install directional signage to the Public Park and Recreation Facility as
appropriate in various locations throughout the City, and signage shall clearly identify the Public
Park and Recreation Facility as an area open to the public under the same conditions as apply to
other park areas within the City.
5.4 Public Safety.
The City will provide police and fire services to the park and recreational facility consistent with
applicable City standards. The City shall also provide public transportation service to the Public
Park and Recreation Facilities.
5.5 Permitting.
The City will make its best effort to expedite all permits, licenses and other municipal approvals
required for completion and operation of the Public Park and Recreation Facility.
5.6 City Liaison.
The City will provide a dedicated contact person and liaison with SOZO for all permit and license
applications, changes, and variances to complete the Public Park and Recreation Facilities in an
expedited manner.
5.7 Fees and Charges.
SOZO agrees that there shall be no cost to individuals utilizing the public parking and Public Park
and Recreation Facilities associated with this Agreement. The use of the Public Park and
Recreation Facilities shall be available to all members of the public free of charge, to the extent
consistent with other City parks. Notwithstanding the foregoing, nor any other provision of this
Agreement, SOZO shall be entitled to apply for a City Park Use Permit to allow SOZO to utilize
the Public Park and Recreation Facilities in conjunction with its nearby fields with priority over
public use up to a maximum of six weekends each calendar year, in accordance with the provisions
of the permit issued.
5.8 Investment.
The City has approximately Nine Hundred Thousand Dollars ($900,000.00) to contribute toward
the purchase of the Congdon parcel so long as said purchase can be agreed upon with Congdon
within the value established by valid yellow book appraisal. City shall lease the property acquired
from Congdon back to SOZO to design, develop, construct and maintain a Public Park and
Recreation Facility that will be available to the general public in accordance with the same terms
and conditions as apply to other City parks and consistent with RCO grant program requirements.
The City shall have no other obligation, financial or otherwise, beyond the purchase of this
property and as otherwise set forth in this Agreement.
ARTICLE 6
DESIGN AND CONSTRUCTION OF PREMISES
6.1 Design.
6.1.1 SOZO shall retain a Washington State licensed architect or professional engineer to design
the Public Park and Recreation Facility, including parking, walking paths, sidewalks, restroom
facilities, playground equipment and other associated accessories. These facilities shall visually
blend with the general area setting. The City shall have the right to review, comment on and
approve the final design of the Public Park and Recreation Facility to be certain the design meets
the terms and conditions required by RCO, which design shall also be consistent with established
City zoning and/or design code.
6.1.2 Where required by applicable provisions of law, SOZO shall comply with the Americans
with Disabilities Act of 1990 (ADA) in the design, construction, and operation of the Public Park
and Recreation Facility.
6.2 Building and Site Plans.
SOZO shall retain a Washington State licensed architect or professional engineer, registered in the
State of Washington, to prepare site plans for the Public Park and Recreation Facility, which shall
depict and describe the structures, utilities, and landscape plan. The City shall have the right to
approve the final construction and site plans comprising the Public Park and Recreation Facility,
such approvals to not be unreasonably withheld or delayed.
6.3 Construction/Site Work/Fencing.
SOZO shall be solely responsible for the development and construction of the Public Park and
Recreation Facility within its exterior boundaries and shall be responsible for the site work, utility
installation, all required permits (including construction stormwater control) and surface grading.
Permits may also be required from Washington Department of Ecology for construction work
carried on in close proximity to wetland areas. SOZO shall properly barricade the work area and
install signage restricting unauthorized persons from entering onto the construction site during any
phase of development or construction. Unless otherwise specifically agreed by the City in writing,
fencing shall be placed around the entire building or structure during construction. In addition,
the building site shall be kept in a clean and organized condition during development periods.
SOZO shall take the necessary steps to protect and preserve any wetland areas that must be
preserved in accordance with Department of Ecology direction, and shall not develop any
pathways, sidewalks or use areas in a way that would interfere with said preservation. SOZO shall
be responsible for site security, traffic and pedestrian signage, warnings and control at the site
during the development and construction phases.
6.4 Construction Deadlines.
6.4.1 SOZO shall be required to complete the development and construction of the SOZO Public
Park and Recreation Facility property as' designed and in accordance with RCO grant program
requirements within three (3) years of RCO' s approval of the property as an acceptable exchange
for the Chesterley Park property that may be subject to construction by the YMCA. Completion
of the development and construction of the Public Park and Recreation Facility is defined as that
date upon which all final occupancy permits are obtained by SOZO for public use of the property
consistent with Exhibit B and the terms of this Agreement.
6.5 Failure to Meet Construction Deadlines/Time of Essence.
6.5.1 Except as provided in Section 9.15 herein, it is mutually understood and agreed that failure
by SOZO to meet the development and construction deadlines shall constitute a material breach of
the Lease and this Agreement by SOZO, in which event the City, at its option, can terminate the
Lease and this Agreement for cause pursuant to Article 8. Time is of the essence with this
Agreement.
6.5.2 Notwithstanding Section 6.4 and 6.5.1, SOZO's obligation to commence construction shall
not begin until the City has issued building/construction permit(s) for the Public Park and
Recreation Facility.
6.6 Stormwater Drainage, Sewer, Irrigation and Water Lines.
SOZO shall be responsible for installing all required storm drains, stormwater facilities, sewers,
water and irrigation lines within the exterior boundary lines of the property to all required use
points within the Public Park and Recreation Facility, as required to complete development and
construction of the property, it being understood the City will bring such necessary utility
infrastructure to the exterior boundaries of the Public Park and Recreation Facility at City expense.
6.7 Development and Construction Fees and Expenses.
6.7.1 SOZO shall be responsible for obtaining and paying for necessary permits, fees and
expenses associated with the development and construction of the Public Park and Recreation
Facility. In addition, SOZO shall be responsible for any additional costs for inspections billed to
the City by any government agency, including but not limited to the City of Yakima, Yakima
County, or the State of Washington.
6.7.2 Notwithstanding Section 6.7.1, SOZO shall not be obligated to pay permit fees, City utility
connection charges (if any), including any transportation impact or environmental mitigation fees,
in an aggregate amount in excess of One Hundred Thousand Dollars ($100,000.00), excluding
utility meter fees, to any portion of the Yakima Sports Park, the SOZO Public Park and Recreation
Facility, and the 58 acre Sozo Sports Complex. City shall be responsible for any such fees in
excess of the One Hundred Thousand Dollars set forth in this Section 6.7.2.
6.8 Public Works Project.
6.8.1 The development and construction of the Public Park and Recreation Facility constructed
on the City owned property shall not be constructed as a public works project requiring the
payment of prevailing wages. SOZO is the developer and the City is the property owner but the
City shall not be participating in the construction or sharing the construction costs of the Public
Park and Recreation Facility constructed on the City owned property in accordance with the terms
and conditions set forth herein. This provision is a material part of the consideration for this
Agreement.
6.8.2 The project signage and all literature and advertising by either the City or SOZO shall
indicate that the development of the publicly owned property is a private project and as such is not
subject to a City public work contract.
6.9 No Liens.
Except encumbrances of any lender pursuant to Article 6 herein, it is mutually understood and
agreed that SOZO shall have no authority, express or implied, to create or place any encumbrance
of any kind or nature whatsoever upon, or in any manner to bind, the interest of the City in the fee
interest in the Public Park and Recreation Facility, or to charge the rentals payable hereunder for
any claim in favor of any person dealing with SOZO, including those who may furnish materials
or perform labor for any construction or repairs, and each such claim shall affect and each such
lien shall attach to, if at all, only the right and interest granted to SOZO by this Agreement. If any
such liens are filed, City may, without waiving its rights and remedies for breach, and without
releasing SOZO from its obligations hereunder, require SOZO to post security in form and amount
reasonably satisfactory to City or cause such liens to be released by any means City deems proper,
including payment in satisfaction of the claim giving rise to the lien. SOZO shall pay to City, upon
demand, any sum paid by City to remove the liens. Further, SOZO agrees that it will save and
hold the City harmless from any and all actual costs or expenses based on or arising out of the
asserted claims or liens, except those of the lender, against this Agreement or against the right,
title, and interest of the City in the City owned property or under the terms of this Agreement,
including reasonable attorney's fees and costs incurred by City in removing such liens, and in
enforcing this paragraph. Additionally, it is mutually understood and agreed that this paragraph is
intended to be a continuing provision applicable to future repairs and improvements after the initial
construction phase.
6.10 Insurance and Indemnification Requirements During Construction.
6.10.1 Indemnification/Hold Harmless
SOZO shall require its construction contractors and subcontractors to defend, indemnify and hold
the City, its officers, elected officials, employees and volunteers harmless from any and all claims,
injuries, damages, losses or suits, including reasonable attorney fees, arising out of or in connection
with the performance of this Agreement, except for injuries and damages caused by the sole
negligence of the City.
6.10.2 Commercial General Liability Insurance
SOZO shall require its construction contractors to procure and maintain, for the duration of
construction of the Public Park and Recreation Facility, commercial general liability insurance
against claims for injuries to persons or damage to property, which may arise from or in connection
with the performance of the work hereunder by the construction contractors and subcontractors,
their agents, representatives, employees or subcontractors. All said policies shall name the City
of Yakima, its elected officials, officers, agents, employees, and volunteers as additional named
insureds and shall include a provision prohibiting cancellation or reduction in the amount of said
policies except upon thirty (30) days prior written notice to the City. SOZO shall require its
construction contractors to maintain minimum commercial general liability insurance limits of no
less than $2,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products -
completed operations aggregate limit.
6.10.3 Builders Risk Insurance.
SOZO shall require its construction contractors to procure and maintain, for the duration of
construction of the Public Park and Recreation Facility, Builders Risk insurance covering interests
of the City and the construction contractor in the work. Builders Risk Insurance shall be on all-
risk policy forms and shall insure against the perils of fire and extended coverage and physical loss
or damage including flood, theft, vandalism, malicious mischief, collapse, temporary buildings
and debris removal. The Builders Risk insurance covering the work will have a maximum
deductible of Five Thousand Dollars ($5,000) for each occurrence, payment of which will be the
responsibility of the construction contractor. Higher deductibles for flood perils may be accepted
by the City upon written request by SOZO and written acceptance of the specific terms by the City.
Any increased deductibles accepted by the City that are in excess of the Five Thousand Dollars
($5,000) maximum deductible will remain the responsibility of the construction contractor. The
Builders Risk insurance shall be maintained until final acceptance of the work by SOZO. SOZO
shall require its construction contractors to maintain Builders Risk insurance in the amount of the
completed value of the project, with no coinsurance provisions.
6.10.4 Subcontractors.
SOZO shall require its construction contractors to include all subcontractors as insureds under its
policies or shall furnish separate certificate and endorsements for each subcontractor. All coverage
for subcontractors shall be subject to all of the same insurance requirements as stated herein for
the construction contractor.
6.10.5 Verification of Coverage.
SOZO shall furnish the City with original certificates and a copy of the amendatory endorsements,
including, but not necessarily limited to, the additional insured endorsement, evidencing the
Commercial General Liability insurance of the construction contractor before commencement of
the work. Before any exposure to loss may occur, SOZO shall file with the City a copy of the
Builders Risk insurance policy that includes all applicable conditions, exclusions, definitions,
terms and endorsements related to this project.
ARTICLE 7
FINANCING AND SECURITY INTERESTS
7.1 Financing — City Obligation.
City shall not share in the financing of construction improvements carried out upon, to, or with
respect to any portions of the Public Park and Recreation Facility. Costs of improvements to the
Public Park and Recreation Facility, including design, development, construction and
infrastructure shall be solely SOZO's responsibility. The City shall be under no obligation directly
or indirectly to pay for any labor, material, or improvement associated with the Public Park and
Recreation Facility. SOZO shall, when applying for and obtaining financing, inform any lender
that the City has no financial obligations associated with the construction, maintenance, repairs or
subsequent improvements to the City owned property subject to this Agreement.
7.2 Mortgages — Generally.
SOZO, and its successors and assigns, shall have the unrestricted right to mortgage its interests
under this Agreement and the Lease, subject, however, to the limitations set forth herein. As used
herein, "Leasehold Mortgage" shall include any such mortgage(s) or deed(s) of trust on the Estate
to be created by this Agreement; "Purchase Money Mortgage" shall include any Mortgage granted
to SOZO (or SOZO's successors) in connection with the sale of the interest in this Agreement
and/or the Lease; and "Estate" shall mean the estate of SOZO created by this Agreement and the
Lease upon and subject to all the terms and conditions of this Agreement and the Lease. Any such
Mortgage shall be subject to the rights of City hereunder in accordance with all the terms and
conditions of this Agreement and the Lease. In no circumstances and under no condition shall
City's fee interest in the Park and Recreation Facility property be encumbered by, subject to or
subordinate to a Mortgage.
7.3 Security Interest in Premises and Agreement/Consent.
Subject to the terms set forth in Section 7.2 the City consents to the grant, transfer, pledge and
assignment of any and all right, title, claim or interest of SOZO in and to this Agreement and in
the Lease for the Public Park and Recreation Facility ("Collateral") to lender for financing
purposes. The City shall recognize lender's first priority security interest in the SOZO Collateral
and the City hereby subordinates any and all interest of the City in said SOZO-owned non -fixed
Collateral to lender. SOZO acknowledges that the City will not grant any security interest to any
lender in any City property nor will the City allow any encumbrance of any kind or nature
whatsoever upon, or in any manner on its title to any City property. In the event of default by
SOZO to lender, in addition to all its rights and remedies available at law and equity, lender may
enforce and/or foreclose its security interest/interests in the non -fixed Collateral. City agrees that
in connection with any such default, and all without further consent of City, lender may:
7.3.1 Acquire SOZO's interest in the non -fixed Collateral either by a deed in lieu of foreclosure
or actual foreclosure;
7.3.2 Rent and/or grant a ground lease of the Public Park and Recreation Facility subject to this
Agreement pending foreclosure of the Collateral by lender;
7.3.3 Assign, sell and/or transfer the non -fixed Collateral in whole or in part to any person or
entity;
7.3.4 Take possession of any or all of the non -fixed Collateral, obtain right of substitution for
SOZO and operate said non -fixed Collateral; and/or
7.3.5 Appoint a receiver.
7.4 Lender's Reliance on Term.
The City acknowledges that SOZO, in making application for financing, may be required to have
an assurance that the terms of this Agreement will extend beyond the term of the financing term.
By its signature to this Agreement, the City confirms its authority to provide the forty (40) year
Lease term conditioned solely upon SOZO maintaining current payments and remaining in full
compliance with the terms and conditions of this Agreement and the Lease. Additionally, the City
acknowledges that, after any original financial commitments by SOZO have been satisfied, these
financing provisions shall be applicable to all future advances or financing required by SOZO and
used for the improvements and repairs of the Public Park and Recreation Facility.
7.5 Surrender of the Collateral.
No surrender of non -fixed Collateral or of the property subject to this Agreement or any other act
of SOZO shall be deemed to terminate this Agreement. City will not terminate this Agreement
voluntarily by agreement with SOZO unless lender has been previously notified in writing and has
consented to the termination in writing. This Agreement shall not be amended or modified unless
lender has been previously notified in writing and has consented to such amendment or
modification in writing.
7.6 Notice of Default and Lender's Rights.
7.6.1 Notice of Default.
If SOZO materially defaults under this Agreement or the Lease, or if any event occurs which would
give City the right to terminate, modify, amend or shorten the term of this Agreement or the Lease,
City shall take no steps to exercise any right it may have under this Agreement without first giving
lender written notice of such default in accordance with Article 7.12 below. A copy of each and
every written notice of default served or sent by City or its agent to or upon SOZO pursuant to this
Agreement shall be sent contemporaneously to lender in accordance with Article 7.12 below. Such
notice of default shall specify the event or events of default then outstanding and the time period
at the end of which the indicated action would become effective.
7.6.2 Termination for Monetary Default.
If the written notice of default given by City to lender relates to a monetary default and SOZO has
not cured such monetary default within thirty (30) days after lender receives the notice and SOZO's
failure to cure results in City desiring to terminate this Agreement or the Lease, City may terminate
this Agreement and the Lease if such monetary default is not cured by either SOZO or lender
within forty-five (45) days after lender receives the notice of default.
7.6.3 Termination for Non -Monetary Default.
If the written notice of default given by City to lender relates to a non -monetary default and SOZO
has not cured or diligently pursued curing such non -monetary default within thirty (30) days after
lender receives the notice, City shall take no action to terminate this Agreement and/or the Lease
if:
• Within sixty (60) days after City's notice to lender regarding SOZO's failure to cure
(or failure to diligently pursue a cure) lender notifies City of its intent to realize upon
its security interest and commences realization within sixty (60) days thereafter, and
diligently pursues realization; and
• Lender pays City at time of notification all monies or performances due that may be in
default up to the day lender notifies City of lender's intent and further pays or performs
all consideration that accrues during the period after lender so notifies City and
completes such other performances that may be required or that come due under this
Agreement.
City shall not terminate this Agreement nor the Lease because of SOZO's breach of any terms of
this Agreement or the Lease relating to the solvency of SOZO or the institution of any bankruptcy,
insolvency, receivership or related action by or against SOZO as long as lender cures any default
under this Agreement by SOZO as provided herein, except that lender shall not be required to cure
any defaults relating to solvency of SOZO.
7.7. Right to Assign.
Lender shall have the right to assign its interest in the non -fixed Collateral. Upon the purchaser's,
assignee's or transferee's assumption and agreement to perform and be bound by all of the terms
of this Agreement and the Lease, lender shall be relieved from further liability under this
Agreement and the Lease. If a lender finances the purchaser, assignee or transferee, said lender
shall be subject to all obligations as set forth in this Agreement and the Lease.
7.8 Disposition of Insurance.
Should the non -fixed Collateral suffer any loss which is covered by casualty insurance, and the
insurance proceeds are used to restore any improvements made by SOZO, City agrees that SOZO
and lender shall have the right to such proceeds so long as none of the City's property, utilities or
other services therein are damaged or all such damages are repaired to City's reasonable
satisfaction. In the event the City's land is substantially damaged and SOZO's improvements have
been repaired, City shall only participate in the insurance proceeds to the extent necessary to repair
and restore City's land and any of the City's improvements on or in the ground to the same
condition as existed at the time of the casualty. Other than as described herein, City shall have no
claim to insurance proceeds that are attributable to SOZO's interest in the Collateral.
7.9 Right to Participate in Litigation.
Lender shall have the right to participate in any litigation, arbitration or dispute directly affecting
the non -fixed Collateral or interest of SOZO or lender therein, including, without limitation, any
suit, action, arbitration proceeding, condemnation proceeding or insurance claim. City, upon
instituting or receiving notice of any such litigation, arbitration or dispute will promptly -notify
lender of the same.
7.10 Right to Remove Collateral.
In the event lender exercises its rights under its identified non -fixed Collateral, as provided in this
Agreement, and realizes upon the non -fixed Collateral, City agrees that lender is entitled to remove
the non -fixed Collateral, including but not limited to trade fixtures and identified non -fixed
equipment, from the Public Park and Recreation Facility at any reasonable time and that the non -
fixed Collateral shall remain personal property. In the event lender so realizes on its non -fixed
Collateral, City waives any right, title, claim, lien or interest in the non -fixed Collateral.
7.12 Notices.
All notices, copies of notices, demands, consents or other communications to lender given under
this Agreement to lender must be in writing and shall be effective when received by personal
delivery or as of the third business day after mailing by United States mail, postage prepaid, return
receipt requested, or upon the next business day if delivered by Federal Express or similar next
business -day delivery system. Such communications shall be given to an officer of lender in a
manner recognized by law as legal notification, addressed to lender at an address as provided by
lender.
ARTICLE 8
TERMINATION
8.1 Obligation to Perform.
Nothing herein shall imply any duty upon City to do any work, which under any provision of this
Agreement SOZO may be required to perform, and the performance thereof by City shall not
constitute a waiver or SOZO's default in performance of the terms of this Agreement.
8.1.2 Payments to Other Parties.
Except as otherwise expressly provided hereunder, all obligations of SOZO under this Agreement
or the Lease will be performed by SOZO at SOZO's sole cost and expense. If SOZO fails to pay
any sum of money owed to any party other than City for which SOZO is liable hereunder, or if
SOZO fails to perform any other act on its part to be performed hereunder, and such failure
continues for thirty (30) days after written notice thereof by City, City may, without waiving or
releasing SOZO from its obligations, make any such payment or perform any such other act to be
made or performed by SOZO. SOZO shall pay City, on demand, all sums so paid by City and all
necessary incidental costs, together with interest accruing thereon at the lesser of one percent (l%)
per month, or the maximum rate permissible by law from the date of such payment by City.
8.2 Default.
8.2.1 City's Default.
City will not be in default unless City fails to perform an obligation required under this Agreement
or the Lease within sixty (60) days after written notice by SOZO, which notice must specify the
alleged breach; provided that if the nature of City' s obligation is such that more than sixty (60)
days are reasonably required for cure, then City will not be in default if City commences to cure
within sixty (60) days of SOZO's notice and thereafter diligently pursues completion and
completes performance within a reasonable time.
8.2.2 SOZO's Default.
The occurrence of any one or more of the following events constitutes a default under this
Agreement and the Lease by SOZO: (1) SOZO shall be in default of the performance of any
covenants, conditions, or provisions of this Agreement, other than the covenants for the payment
of consideration required by this Agreement or the Lease, where such failure continues for a period
of sixty (60) days after written notice by City provided that if the nature of SOZO's obligations is
such that more than sixty (60) days are reasonably required for cure, SOZO will not be in default
if SOZO commences to cure within sixty (60) days of City's notice and thereafter diligently
pursues completion and completes performance within a reasonable time; or (2) SOZO shall be
adjudged a bankrupt, make a general assignment for the benefit of creditors, or take the benefit of
any insolvency act, or if a permanent receiver and trustee in bankruptcy shall be appointed for
SOZO's estate and such appointment is not vacated within sixty (60) days; or (3) if this Agreement
or the Lease shall be assigned, or any portion of the Public Park and Recreation Facility be sublet
other than in accordance with the terms of this Agreement or the Lease and such default is not
cured within thirty (30) days after written notice to SOZO; or (4) SOZO shall fail to make any
payment when due, or fail to make any other payment required hereunder or by the Lease when
due, when that failure is not cured within thirty (30) days after mailing written notice thereof by
City.
8.2.3 Default for Other Cause.
This Agreement and the Lease may be immediately terminated for other cause by a party if the
other party substantially fails to perform its obligations under this Agreement or the Lease, through
no fault of the terminating party, and the non-performing party does not commence correction of
the failure of performance within sixty (60) days of the terminating party's sending notice of the
default to the non-performing party.
8.3 Remedies are Cumulative.
Remedies under this Agreement and the Lease are cumulative; the failure to exercise on any
occasion any right provided by this Agreement or the Lease shall not operate to forfeit such remedy
or right.
8.4 Destruction of Premises and Use of Insurance Proceeds.
8.4.1 Unless otherwise mutually agreed by the Parties, in the event the Public Park and
Recreation Facility is destroyed or damaged by fire or other casualty, then SOZO shall proceed to
rebuild and restore the property, or such part thereof as may be damaged as aforesaid. In the event
of any loss covered by the insurance policies described and required pursuant to Article 9.5.1
herein, and unless this Agreement or the Lease shall be terminated as a result of said loss, as
provided herein, then the proceeds of such insurance policies shall be applied by SOZO first to
rebuild and restore the public park and recreation property and replace the improvements, fixtures,
and equipment, which may be damaged or destroyed by such casualty. All restoration work must
be completed in accordance with the original design to maintain compliance with Washington
Recreation and Conservation Office grant program and project agreement requirements and
conditions.
8.4.2 Notwithstanding the forgoing, in the event the public park and recreation property is
destroyed by fire or other casualty SOZO may elect to restore the public park and recreation
property to a condition equivalent to or better as existed as of the date of the casualty, and terminate
the Agreement and Lease without further obligation except as otherwise provided in this
Agreement and the Lease.
8.5 Duties Upon Termination.
Upon termination of this Agreement and the Lease, and unless otherwise arranged in writing by
the Parties, SOZO shall remove all its non -fixed personal property, goods, and effects from the
Public Park and Recreation Facility. In the event that SOZO fails to perform this duty at
termination, the City may cause such removal to be made and said non -fixed personal property,
goods, and effects to be stored, the actual cost and expense to be paid by SOZO. It is agreed that
improvements that are attached to the property, such as restroom facilities, pathways, signage and
playground equipment shall remain with the property as permanent fixed improvements thereto.
It is further mutually understood and agreed that all permanent fixed improvements to the public
park and recreation property shall revert to the City at the termination of this Agreement.
ARTICLE 9
GENERAL CONDITIONS
9.1 Relationship to Parties.
9.1.1 Independent Status.
The Parties intend that an independent relationship shall be created by this Agreement and the
Lease. Nothing contained herein shall create the relationship of principal and agent or of
partnership or of joint venture between the parties hereto, and neither the method of computation
of consideration nor any other provision contained herein shall be deemed to create any
relationship between the Parties thereto other than the relationship of City granting a ground lease
to SOZO for development of Public Park and Recreation Facilities for the general public's use and
enjoyment. SOZO has the experience, ability, and resources to develop, maintain and operate the
park and recreation property and is performing independent functions and responsibilities within
its field of expertise. SOZO, its personnel and agents are independent contractors and not
employees of the City. No agent, employee, servant, or representative of SOZO shall be deemed
to be an employee, agent, servant or representative of the City. SOZO and its personnel have no
authority to bind the City or to control the City's employees. As an independent contractor, SOZO
is responsible for its own management. The City's administration and enforcement of this
Agreement and the Lease shall not be deemed an exercise of managerial control over SOZO or its
personnel.
9.1.2 No Third Party Rights Created.
It is mutually understood and agreed that this Agreement and the intended Lease are solely for the
benefit of the Parties hereto and gives no right to any other party except as provided by Article 7
herein.
9.2 Notices.
Except as otherwise stated in Article 7, any notice required or permitted hereunder must be in
writing and will be effective upon the earlier of (1) personal delivery, (2) three days after being
mailed by certified mail, postage prepaid, return receipt requested, or (3) upon the next business
day if delivered by Federal Express or similar next business day delivery system, addressed to
SOZO or to City at the address for that party designated herein. Either party may specify a
different address for notice purposes by written notice to the other, except that City may in any
event use the SOZO Sports Campus as SOZO's address for notice purposes. All notices shall be
delivered to the following addresses:
TO CITY:
TO SOZO:
9.3 Reports and Information.
Cliff Moore, City Manager
City of Yakima
129 North Second Street
Yakima, WA 98901
SOZO Sports of Central Washington, Inc.
2200 So. 36th Avenue
Yakima, WA 98903
When requested by the City, SOZO shall furnish periodic reports and documents on non -
confidential matters covered by this Agreement and the Lease. The reports and documents shall
be furnished in the time and form reasonably requested. SOZO shall maintain accounting records
in accordance with Generally Accepted Accounting Principles (GAAP) for non-profit entities.
9.4 Permits, Licenses, Taxes and Fees.
9.4.1 Permits, Licenses and Other Documents.
SOZO shall possess a current Yakima Business License and shall obtain all regulatory licenses
and permits, including all construction and building permits, necessary to fulfill SOZO's
obligations under this Agreement and the Lease at SOZO's sole expense. Each party agrees to
execute such additional or other documents as may be required to fully implement the intent of
this Agreement and the Lease.
9.4.2 Taxes and Fees.
As an independent contractor, SOZO shall be solely responsible for its taxes, fees and charges
incurred, including but not limited to license fees, business and occupation taxes, workers'
compensation and unemployment benefits, its federal, state, regional, county and local taxes and
fees, including income taxes, property taxes, permit fees, operating fees, surcharges of any kind
that apply to any and all persons, facilities, property, income, equipment, materials, supplies or
activities arising from SOZO's property ownership and operations under this Agreement and the
Lease.
9.4.3 Leasehold Excise.
City shall be responsible for payment of leasehold excise tax, if any, under this Agreement and the
Lease.
9.4.4 Admissions Tax.
The City acknowledges that SOZO, as a non-profit entity, is not subject to the City's admissions
tax. In the event the City's admissions tax is made applicable to non-profit entities, including
SOZO, all amounts collected and paid by SOZO to City as admissions taxes shall be a credit
against (i.e., deducted from) amounts otherwise payable by SOZO to City under this Agreement
and the Lease.
9.5 Insurance.
9.5.1 Fire and Casualty Insurance.
SOZO agrees that, at all times during the full term of this Agreement and the Lease, SOZO shall,
at is sole cost and expense, maintain in full force and effect adequate fire, flood and other casualty
coverage covering the public park and recreation property and its contents, including all non -fixed
personal property, fixtures and improvements. Such policy shall include a replacement cost
endorsement. SOZO shall obtain and file with the City's Risk Manager a Certificate of Insurance
evidencing such coverage. SOZO shall provide the City with a thirty (30) day cancellation notice
prior to any policy cancellation. Adequacy of coverage is defined as insurance sufficient to restore
the public park and recreation property to its pre -casualty condition.
9.5.2 Liability Insurance During Term of Lease.
Prior to the Effective Date of the Lease, SOZO, at its own expense, shall obtain and file with the
City's Risk Manager a Certificate of Insurance evidencing commercial general liability insurance
coverage ("CGL") providing coverage of at least $2,000,000 per occurrence and $2,000,000
general aggregate. This Certificate of Insurance shall be subject to approval by the City's Risk
Manager as to company, terms and coverage and said approval shall not be unreasonably withheld.
The CGL shall name the City, its elected officials, officers, agents, employees, and volunteers as
additional named insureds and must fully protect the City from any and all claims and risks and
losses in connection with any activities or omissions by SOZO by virtue of this Agreement and
the Lease. The CGL policy shall remain in full force and effect at SOZO's sole expense for liability
for property damage or personal injury that may occur in connection with activities or omissions
by SOZO, and provide continuous coverage for the full term of this Agreement and the Lease.
SOZO shall insure that the City's Risk Manager is given thirty (30) calendar days prior written
notice, by certified mail, of any cancellation, lapse, reduction or modification of such insurance.
9.5.3 Release and Waiver of Subrogation.
Any policy of insurance carried by either City or SOZO pursuant to any obligation under this
Agreement or the Lease shall, to the extent available, contain a waiver of subrogation clause on
the part of the insurer. Such waiver shall apply to damages to adjacent property owned by either
Party. Notwithstanding any other provision of this Agreement or the Lease, neither City nor SOZO
shall be liable to the other party or to any insurance company (by subrogation or otherwise)
insuring the other party for any loss or damage to any building, structure or tangible personal
property of the other occurring in or about the public park and recreation property, even though
such loss or damage might have been occasioned by the negligence of such. party, its agents or
employees, if such loss or damage is covered by property insurance issued by an insurance carrier
authorized or licensed by the Insurance Commissioner of the State of Washington to issue lines of
insurance benefiting the party suffering such loss or damage or was required under the terms of
this Agreement or the Lease to be covered by insurance by the party covering the loss.
9.6 Hold Harmless, Indemnification, and Industrial Insurance.
9.6.1 Hold Harmless and Indemnification.
Each Party hereto agrees to be responsible for and assumes liability for its own wrongful or
negligent acts or omissions, or those of its elected officials, officers, agents, volunteers or
employees to the fullest extent required by law. Each Party agrees to save, indemnify, defend, or
hold the other Party harmless against all liability, loss, damages and expenses, including costs and
reasonable attorney's fees, resulting from actions, claims and lawsuits arising or alleged to have
arisen in whole or in part, out of or in consequence of the acts or failures to act by the other Party,
its elected officials, officers, employees, subcontractors, agents, volunteers or its assigns, which
arise in any way out of the performance of this Agreement or the Lease. In the case of negligence
of both the City and SOZO, 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.
9.6.2 Industrial Insurance.
The Parties have specifically negotiated SOZO's waiver of its immunity under Title 51 RCW,
which is hereby waived for purposes of SOZO's indemnification and hold harmless of the City,
including the duty to defend. This provision shall be inapplicable to the extent such action, claim,
or lawsuit is judicially found to arise solely from the acts or failures to act by the City.
9.7 Successors and Assigns.
9.7.1 The City and SOZO each agree to be bound to the other party in respect to all covenants,
agreements, and obligations contained in this Agreement and the Lease. In recognition of SOZO's
expertise and experience in park facility management, SOZO may not assign its rights under this
Agreement nor the Lease without City's prior written consent to said assignment, which consent
may be withheld in the City's sole and absolute discretion. Except as provided in Article 7 and
Section 93.2 herein, neither party shall assign the Agreement in part or as a whole, without the
written consent of the other. Except as otherwise provided in this Agreement, SOZO shall not
sublease any of the park and recreation property, without written notice to and approval from the
City and full compliance with RCO grant program requirements.
9.7.2 The City acknowledges that SOZO is authorized under another Agreement and its
accessory Lease, without further City approval, to enter into space leases, rental agreements, and/or
grant sub -concessions within the Yakima Sports Park for individual facility operations, food and
beverage services; athletic equipment operation, sales and service; and similar supporting entities.
The Parties hereto specifically acknowledge that no such permission is authorized under this
Agreement for purposes of the use of the SOZO Public Park and Recreation Facility, which shall
remain free and clear of any commercial enterprise activities.
9.7.3 When requested, City's approval of a subcontract or sublease shall not be unreasonably
withheld or delayed, subject to the specific provision of Section 9.7.2, above.
9.7.4 In the event of an assignment, subcontracting, or delegation of duties, SOZO shall remain
solely responsible for the full and faithful performance of all terms and conditions of SOZO's
obligations under this Agreement and the Lease; any assignee, subcontractor or other obligor shall
also become responsible to the City for the satisfactory performance of the services, facilities, or
equipment assumed. The City may condition approval of subcontractors and assignees upon the
delivery by the assignee, subcontractor, or other obligor of its covenant to the City to fully and
faithfully complete the requirements or responsibility undertaken under this Agreement and/or the
Lease.
9.7.5 Notwithstanding the foregoing, provided SOZO is not in default, SOZO may assign its
interest in this Agreement and/or the Lease to a parent, affiliate or subsidiary with City's written
consent and RCO review, which consent will not be unreasonably withheld or delayed. Except as
otherwise provided herein, all of the covenants, conditions, and provisions of this Agreement are
binding upon and inure to the benefit of the Parties and their respective heirs, personal
representatives, successors, and assigns.
9.8 Bankruptcy.
Except as provided in Article 7 herein, Parties agree that if SOZO is adjudged bankrupt, either
voluntarily or involuntarily, then this Agreement and the Lease, at the option of the City may be
terminated if the bankruptcy is not timely cured in accordance with Section 8.2.2.
9.9 Compliance with Laws.
SOZO, its officers, employees, and agents shall comply with the applicable federal, state, county
and local laws, statutes, rules, regulations, and ordinances, in performing its obligations under this
Agreement and the Lease. Such compliance shall include abiding by all applicable federal, state
and local policies to ensure equal employment opportunity based on ability and fitness to all
persons regardless of race, creed, color, national origin, religion, sex, physical handicaps, or age.
SOZO shall comply with applicable laws pertaining to employment practices and employee
treatment. Conditions of the Federal Occupational Safety and Health Act of 1970 (OSHA), the
Washington Industrial Safety and Health Act of 1973 (WISHA), and standards and regulations
issued under these Acts must be complied. SOZO agrees to indemnify and hold harmless the City
from all damages assessed for SOZO's failure to comply with the Acts and Standards issued
thereunder. SOZO is also responsible for meeting all pertinent local, state and federal health and
environmental regulations and standards applying to any operation in the performance of this
Agreement and the Lease. SOZO shall also operate the Public Park and Recreation Facility in
compliance with provisions of the Land and Water Conservation Fund Act and implementation
guidelines in accordance with 36 CFR 59.
9.10 Nondiscrimination.
Parties shall not discriminate in employment or services to the public on the basis of race, color,
national origin, sex, religion, age, marital status or disability, except for employment actions based
on bona fide occupational qualification.
9.11 Choice of Law and Venue.
This Agreement and the Lease shall be interpreted according to the laws of the State of
Washington. Any action necessary to enforce -the terms of this Agreement and the Lease or to
resolve disputes arising out of this Agreement or the Lease shall be brought in a court of competent
jurisdiction in Yakima County, Washington.
9.12 Costs and Attorney's Fees.
In any action brought to enforce any provision of this Agreement or the Lease, including actions
to recover sums due or for the breach of any covenant or condition of this Agreement or the Lease,
or for the restitution of the public park and recreation facilities to the City or eviction of SOZO
during the term or after expiration thereof, the substantially prevailing party shall be entitled to
recover from the other party all reasonable costs and reasonable attorneys' fee(s) incurred,
including the fees of accountants, appraisers, and other professionals, at trial or on appeal, and
without resort to suit.
9.13 Modification.
This Agreement and/or the Lease may only be modified by written instrument signed by both
Parties and in a manner consistent with RCO grant program requirements.
9.14 Change in Law/Renegotiation.
The Parties agree that changes in federal, state or local laws or regulations that materially modify
the terms and conditions of the Agreement or the Lease and result in a detrimental change in
circumstances or a material hardship for either Party in performing this Agreement or the Lease
may be the subject of a request by a Party to renegotiate this Agreement or the Lease, or negotiate
amendments thereto and the responding Party agrees to renegotiate fairly with the requesting Party.
9.15 Force Majeure.
Provided that all other requirements of this Agreement and the Lease are met, either Party shall
not be deemed to be in default and shall not be liable for failure to perform under this Agreement
nor the Lease if that Party's performance is prevented or delayed by acts of God including but not
limited to landslides, lightning, forest fires, storms, floods, freezing, earthquakes, volcanic ash,
civil disturbances, strikes or labor interference, acts of the public enemy, wars, blockades, public
riots, breakage, explosions, accident to machinery, equipment or materials, unavailability of
required materials, governmental restraint or other causes, whether of the kind enumerated or
otherwise, which are not reasonably within the control of that obligated Party ("Force Majeure").
If as a result of a Force Majeure event, an obligated Party is unable wholly or partially to meet its
obligations under this Agreement or the Lease, it shall give the other Party promptly written notice
of the Force Majeure event, describing it in reasonable detail. The obligated Party's obligations
under this Agreement and/or the Lease shall be suspended, but only with respect to the particular
component of obligations affected by the Force Majeure and only for the period during which the
Force Majeure exists.
9.16 Waiver.
Failure to enforce any provision of this Agreement or the Lease shall not be deemed a waiver of
that provision. No waiver of any right or obligation of either party hereto shall be effective unless
in writing, specifying such waiver, executed by the Party against whom such waiver is sought to
be enforced. Waiver of any right or power arising out of this Agreement or the Lease shall not be
deemed waiver of any other right or power.
9.17 Illegal Provisions — Severability.
Should any part of this Agreement or the Lease be found void, illegal or unenforceable the
offending provision(s) shall be stricken and the balance of the Agreement or the Lease shall remain
in full force and effect.
9.18 Article Headings, Gender and Number.
Article paragraph headings are not to be construed as binding provisions of this Agreement; they
are of the convenience of the Parties only. The masculine, feminine, singular and plural of any
word or words shall be deemed to include and refer to the gender and number appropriate in the
context.
9.19 Entire Agreement.
This Agreement, the intended Lease and their Exhibits constitute the entire agreement between the
Parties, and the parties acknowledge that there are no other agreements, written or oral, that have
not been set forth in the text of this Agreement.
9.20 Counterparts.
This Agreement may be executed simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
9.21 Recording.
Upon the execution of this Agreement the City may cause this Agreement to be recorded with the
land use records of Yakima County, Washington.
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IN WITNESS WHEREOF, this Agreement has been entered into between the City of Yakima
and SOZO Sports of Central Washington as of this day of , 2017.
CITY OF YAKIMA
A Washington Municipal Corporation
By ..��
Cliff Mo 4' , City Manager
Date: -9'lf 2,03
APPROVED AS TO FORM:
ATT ST:
By
SOZO SPORTS OF CENTRAL
WASHINGTON, INC.
A Not -for -Profit Washington Corporation
Sonya Claar-'1 e, City Clerk
*, •
City Contract No.: 2 O i - lo
Resolution No.: R-
Exhibit A — Legal Description of Park and
Recreation Facility
Exhibit B — Preliminary Site and
Development Plans
Exhibit C Park and Rccrcation Facility
Metle4-
EXHIBIT A
REAL PROPERTY DESCRIPTION
The Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range 18, E.W.M.;
EXCEPT beginning at the Northwest corner of the Northwest 1/4 of the Southeast 1/4 of Section 34,
Township 13 North, Range 18, E.W.M.;
thence Easterly along the North line of said subdivision 1,320 feet, more or less, to the Northeast corner
of the Northwest 1/4 of the Southeast 1/4 of Section 34, Township 13 North, Range 18, E.W.M.;
thence Southerly along the Easterly line of said subdivision 511.03 feet;
thence North 70° 03' West 1,402.4 feet, more or less, to the Westerly line of said subdivison;
thence Northerly along the Westerly line of said subdivision 37.1 feet, more or less, to the point of
beginning;
AND EXCEPT that part lying within the County Road, along the North and East sides. Situated in
Yakima County, State of Washington.
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
1
Item No. 13.
For Meeting of: July 11, 2017
ITEM TITLE: Resolution authorizing approval of Public Park and Recreation
Facility Development and Maintenance Agreement with SOZO
Sports of Central Washington for development and Maintenance of
public park property
SUBMITTED BY: Jeff Cutter, City Attorney
SUMMARY EXPLANATION:
In partnership with SOZO Sports of Central Washington, the City entered into an agreement to
cooperatively purchase 60 acres of property south of the Yakima Air Terminal for the
development of a premier soccer and mixed use sports facility. Included in this partnership
agreement, the City Council also approved the City's investment in additional property adjacent to
the SOZO sports complex to be developed by SOZO as a City park.
The City Council is now presented with the attached Public Park and Recreation Facility
Development and Maintenance Agreement between the City of Yakima and SOZO Sports of
Central Washington as a means of completing the partnership agreement.
SOZO is agreeing, by the terms of the attached Agreement, to construct, operate and maintain a
Public Park and Recreation Facility on property the City is presently purchasing adjacent to and
immediately north of the SOZO sports complex. The Public Park and Recreation Facility shall
be open for the use of the general public and those associated with the sports complex for
general relaxation and entertainment.
The City entered into a separate partnership with the YMCA to allow the use of a portion of the
City's Chesterley Park property for the construction of a publicly available aquatic facility and
fitness center. To allow this use of the park property previously acquired with Recreation and
Conservation Office (RCO) and National Park Service funds, the City is required to provide
matching property as replacement for the Chesterley Park property displaced by the YMCA
development.
In addition to satisfying the agreement with SOZO, this park facility will also be proposed as an
equal exchange replacement property as required by the RCO terms for the use of Chesterley
Park property. Irrespective of the RCO determination on the Chesterley/YMCA proposal, the
2
City's purchase and SOZO's development of this property as a public park is required to finalize
the City's contract with SOZO.
ITEM BUDGETED:
NA
STRATEGIC PRIORITY: Partnership Development
APPROVED FOR
SUBMITTAL:
City Manager
STAFF RECOMMENDATION:
Adopt resolution. This Agreement has not been considered by a committee.
BOARD/COMMITTEE RECOMMENDATION:
ATTACHMENTS:
Description
SOZO Park & Recreation Development & Maintenance
Agreement
D SOZO Park & Recreation Facility Agreement
Upload Date
7/5/2017
7/5/2017
Type
Resolution
Contract