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HomeMy WebLinkAboutR-2007-069 Sports Center, LLC Lease Agreement (re: dumpster enclosure in City parking lot number 2)RESOLUTION NO. R-2007-69 A RESOLUTION authorizing the execution of a Lease Agreement with the Sports Center, LLC, permitting the use of a refuse dumpster enclosure provided by the City and located within the City's downtown parking lot No. 2, subject to the terms and conditions set forth in said Lease Agreement. WHEREAS, the Sports Center, LLC is a local downtown restaurant and lounge newly refurbished and doing business within the City of Yakima; and WHEREAS, the Sports Center has historically utilized a refuse dumpster located across 2nd Street from the Sports Center, and directly behind Yakima Federal Savings and Loan; and WHEREAS, the Sports Center is now providing full meal service that is producing a much greater quantity of food -related refuse than was the case under the Sports Center's operation prior to renovation, thereby resulting in inconvenience and safety concerns for Sports Center personnel as well as unsightly conditions for the personnel working at Yakima Federal Savings and Loan; and WHEREAS, the City has the opportunity to assist the Sports Center and Yakima Federal Savings and Loan with the problems confronting them by providing an enclosed location for the Sports Center's refuse container that is closer to the Sports Center and farther away from Yakima Federal Savings and Loan; and WHEREAS, during the term during which the City allows the Sports Center to utilize a refuse dumpster enclosure provided by the City within the City's public parking lot No. 2 for the location of a refuse dumpster, the Sports Center shall maintain the area subject to the terms and conditions of a Lease Agreement, attached hereto and incorporated herein by this reference, in a clean, neat and sanitary manner; and WHEREAS, in accord with the conditions of the Lease Agreement, the Sports Center shall pay the specified lease payment set forth therein for the refuse dumpster enclosure it will occupy during the term of the Lease Agreement, subject to the specific conditions stated in said Lease Agreement; and WHEREAS, it will benefit the City, the adjacent businesses and the citizens of Yakima to permit the Sport Center to relocate its refuse container away from other businesses and closer to its establishment and said relocation serves a public interest; 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 Lease Agreement to permit the Sports Center, LLC to utilize a (ie)res/Sports Center -Lease Agreement 1 refuse dumpster enclosure constructed by the City of Yakima in Yakima City Parking Lot Number 2, for the purpose of locating a refuse container therein under the terms and conditions of said Lease Agreement. ADOPTED BY THE CITY COUNCIL this 1st day of May, 2007. ATTEST: David Edler, Mayor City Clerk (jc)res/Sports Center -Lease Agreement 2 SPORTS CENTER REFUSE ENCLOSURE LEASE AGREEMENT PARTIES: Sports Center: Yakima Sports Center, LLC City: City of Yakima, Washington, a municipal corporation SUBJECT PROPERTY: That portion of the City of Yakima's public parking lot No. 2, located between 2nd Street and 3rd Street, identified as Space Numbers ten (10) and eleven (11). RECITALS: City owns fee interest in the above-described real property, and utilizes said real property to provide public parking for citizens seeking access to downtown shopping, business, entertainment and recreation. Sport Center seeks a location for its refuse container within City's Parking Lot No.2 between 2nd Street and 3rd Street adjacent to the Millennium Plaza (hereinafter "Lot"), thus providing a refuse facility that is nearer to its business location at 214 East Yakima Avenue than the container location that currently serves the Sports Center, located to the west and across 2nd Street from the Sports Center's location; and to provide easier access to the refuse container for Sports Center employees as well as to reduce the unsightly conditions associated with refuse containers for businesses located adjacent to the present container location. This Lease Agreement is intended to provide the Sports Center a convenient and safe location for its refuse container. AGREEMENT: For and in consideration of the mutual promises and covenants contained herein, the City agrees to provide the Sports Center a lease for the use of a refuse dumpster enclosure to be located upon two (2) parking spaces within the City's Lot, said spaces currently numbered as parking spaces ten (10) and eleven (11). The City agrees to construct a refuse dumpster enclosure on the two parking spaces identified herein for the purpose of enclosing refuse dumpsters. The Sports Center's lease of the refuse dumpster enclosure to locate a refuse container closer to their establishment is deemed a reasonable use serving a legitimate public purpose. This Lease Agreement is specifically subject to the following terms and conditions: 1. Term and Termination: a. The term of this Lease Agreement shall begin when all of the, following conditions have been met: (1) the execution of this Lease Agreement by the parties hereto, (2) the passage of thirty (30) days following City Council approval and publication of an Ordinance removing parking spaces ten (10) and eleven (11) from use as vehicle parking spaces within the City's public parking lot No. 2, and (3) the City's construction of a refuse dumpster enclosure within said public parking lot. The Lease term shall be for a period not to exceed eleven (11.8) years, commencing on the 1st day of June, 2007 and ending at 11:59 p.m. on the 28th day of February, 2019, or at such time as the (jc)Sports Center Lease Agreement 1 City's cost in the enclosure is fully reimbursed (said reimbursement not to exceed the lesser of Four Thousand Dollars or actual construction cost), at which time the lease may be renegotiated. In the event the City chooses to lease space within the enclosure to another lessee and such additional use does not impair Sports Center's use provided for herein, the parties hereto agree that the lease term and payment amount may be renegotiated to reflect the shared participation in repayment of the enclosure cost to the City. b. Upon the expiration of the term of this Lease Agreement or the Sport Center's discontinuation of the specific authorized use described in this Agreement for a period of thirty (30) days, whichever occurs first, the City shall be entitled to re -lease the use of the refuse dumpster enclosure to another party. Notwithstanding any other provision in this Agreement, the City may terminate this Agreement for a public purpose by giving 30 days written notice to the Sports Center. In the event the City contemplates terminating this lease for a public purpose the City agrees to make a reasonable effort to incorporate the use of this refuse dumpster enclosure into the new public purpose proposed. However, should the City determine that such termination of use is necessary, it is understood between the parties that the City owes no duty to the Sports Center to assist in finding a new location, or in relocating its dumpster. 2. Payment Required: This Lease Agreement permits the Sports Center's use of the City's refuse dumpster enclosure within the Lot for a total quarterly fee of One Hundred Fifty Dollars ($150.00) per quarter as calculated on a calendar year basis, payable on or before the tenth (10th) day of each new quarter, beginning June 1, 2007, pro -rated to the last month of the second quarter of 2007, and continuing until the termination or expiration of this Lease Agreement. The One Hundred Fifty Dollar quarterly lease fee shall include Eighty-five and 08/100 dollars ($85.08) per quarter that shall be applied toward the repayment of the City's cost of constructing the refuse dumpster enclosure, and Sixty-four and 92/100 Dollars ($64.92) per quarter applied toward the use of the City property whereon the refuse dumpster enclosure is located. It is agreed by the parties that upon the expiration of this Lease Agreement Sports Center shall have the opportunity to renew the Lease at a new quarterly cost, said cost to be not less than the Sixty-four and 92/100 Dollars ($64.92) per quarter fee charged under this Lease Agreement, and consistent with the value charged by the City for parking spaces within the Lot at the time of renewal. 3. City Title: The Sports Center acknowledges the City's legal ownership and fee title to said real property described herein. The Sports Center expressly agrees to never deny City's right in ownership of said real property or to claim title in the Sports Center's name. The Sports Center further agrees that it does not and shall not at any time claim any interest or estate of any kind or extent whatsoever in the real property upon which the Sports Center's refuse container is located by virtue of the rights granted under this Agreement, the Sports Center's use under this Agreement, or upon any other basis. The Sports Center acknowledges that, to the extent there is no impairment of Sports Center's use of the refuse dumpster enclosure for the purposes and to the extent stated herein, the City is free to lease any unused and available space within said enclosure to any other party. 4. The Sports Center's Improvements on City Property: The Sports Center, or its contractor, at its sole cost and expense, intends to locate a refuse dumpster within the City's refuse dumpster enclosure identified herein. The Sports Center refuse (jc)Sports Center Lease Agreement 2 dumpster shall be fully enclosed within the dumpster enclosure and the enclosure shall be kept locked at all times unless being accessed for refuse disposal. The Sports Center agrees that the use shall result in no significant damage to the asphalt surface of the parking lot, the area within the enclosure shall be kept clean and that there shall be no loose debris, trash, liquids or materials of any kind permitted to accumulate outside of the refuse container at any time. The Sports Center further agrees that the refuse dumpster shall be emptied no less often than one time per week, more frequently if necessary to avoid unpleasant odors or over -flow, and that the area subject to this Lease Agreement shall be restored by Sports Center to its pre -use condition upon -termination or expiration of this use. The Sports Center agrees to pay for all incidental or necessary costs to locate, maintain and remove the refuse container, in the manner described herein. The Sports Center further agrees that it shall not construct or maintain any other improvements on the City's property, that it shall maintain the enclosure in as good a condition as at the commencement of this Agreement and that it shall make no changes or alterations whatsoever to the enclosure without the City's written permission. 5. Damage or Destruction of Premises. If the refuse dumpster enclosure shall be destroyed or be so damaged by fire or by providential means as to become wholly or partially unusable, then if the City shall by writing delivered to the Sports Center within twenty (20) days after such damage or destruction, elect to rebuild or repair said premises within a reasonable time, this Lease Agreement shall remain in force and the City shall rebuild or repair said premises in as good condition as they were at the time of destruction or damage, and for that purpose may enter upon said premises, and in such event the lease fee shall abate during the time and to the extent to which the premises are unusable; but if the City does not elect to rebuild or repair, then the City shall have possession of said refuse dumpster enclosure and the Sports Center shall deliver and surrender to the City such possession and this Agreement shall terminate and the term created end, and payments shall be prorated as of the date of such damage or destruction. 6. Indemnification: The Sports Center shall protect, defend, indemnify and hold the City, and its elected and appointed officials, employees and agents, harmless from and against any and all claims, demands, losses, damages, liens, liabilities, penalties, fines, lawsuits, and other proceedings, and any costs and expenses associated with the same (including attorney's fees and disbursements, whether in litigation or not), which accrue to or are incurred by the City, or its elected or appointed officials, employees or agents, and which arise directly or indirectly from or out of, relate to, or in any way are connected with personal injuries or property damage occurring because of the use, operation, or maintenance of the real property covered by this Lease Agreement, together with any litigation, legal challenge or determination pertaining to the validity of this agreement. The provisions of this paragraph shall survive the revocation or discontinuation of this Agreement for any reason. 7. Insurance: Prior to utilizing the refuse dumpster enclosure the Sports Center shall provide the City with a current certificate of Commercial General Liability insurance to demonstrate that commercial general liability insurance is in effect, and shall maintain said commercial general liability insurance throughout the duration of this Agreement. The Sports Center shall maintain Commercial General Liability coverage for bodily injury, personal injury and property damage, subject to limits of not less than (jc)Sports Center Lease Agreement 3 $1,000,000 per loss. The general aggregate limit shall apply separately to this Agreement and be no less than $2,000,000. The Sports Center shall provide Commercial General Liability coverage which does not exclude any activity to be performed in fulfillment of this Lease. Specialized forms specific to the business of the Sports Center shall be deemed equivalent provided coverage is no more restrictive than would be provided under a standard Commercial General Liability policy, including contractual liability coverage. ii. The Sports Center's Commercial General Liability insurance shall include the City, its officers, officials, employees and agents with respect to performance of services, and shall contain no special limitations on the scope of protection afforded to the City as an additional insured. The Sports Center shall furnish the City with evidence that the additional insured provision required above has been met. An acceptable form of evidence is the endorsement pages of the policy showing the City as an additional insured. iv. If the Sports Center's liability coverage is written as a claims made policy, then the Sports Center must evidence the purchase of an extended reporting period or "tail" coverage for a three-year period after project completion, or otherwise maintain the coverage for the three-year period. 8. Parties Bound: Subject to the right of revocation as herein set forth, this Agreement shall inure to the benefit of and be binding upon the parties hereto, their heirs, successors and assigns. 9. Integration: This writing constitutes the entire agreement of the parties and its execution is authorized by their respective governing bodies. 10. Notices: All notices required or permitted hereunder shall be in writing and shall be deemed to be delivered three (3) days after having been deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to the parties at the respective addresses set forth below or at such other addresses as may have been theretofore specified by written notice delivered in accordance herewith: City: The Sports Center: City of Yakima 129 N. 2nd Street Yakima, WA 98901 Attention: Richard A. Zais, Jr. City Manager The Sports Center, LLC 214 East Yakima Avenue Yakima, WA 98901 11. Entire Agreement: This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. Any modification of this Agreement or additional (jc)Sports Center Lease Agreement 4 obligation assumed by any party in connection with this Agreement shall be binding only if evidenced in writing and is signed by each party or an authorized representative of each party. 12. Assignment: The Sports Center shall not assign or transfer this Lease Agreement, nor grant a sub -use for any purpose, without the express, prior written consent of City. 13. Severability: If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 14. Governing Law: This Agreement shall be governed in all respects by the laws of the State of Washington. 15. Venue: In the event there should be any litigation arising out of this Agreement, venue shall lie in Yakima County, Washington. 16. Capacity, Due Authorization: The Sports Center affirms and warrants that the individual whose signature appears below on its behalf has the full power, capacity, and legal right to execute this Agreement and that this Agreement has been duly authorized and executed and that it shall constitute the legal, valid and binding obligation of the Sports Center, enforceable in accordance with its terms. DATED this 9! day of May, 2007. CITY OF YAKIMA, WASHINGTON THE SPORTS CENTER, LLC R.A. Zais, Jr. City Manager ATTEST: City Clerk *o. - SEAL By: City Contract No. 01,007.- City 1,007City Resolution No. "-Aad% 1,1 (jc)Sports Center Lease Agreement 5 (L/q Chris Malland Managing Member BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. i 2— For meeting of: May 1, 2007 ITEM TITLE: Consideration of an ordinance: 1) Removing parking spaces ten and eleven within Yakima City Parking Lot Number 2 from use for public vehicle parking and authorizing construction of a dumpster enclosure within the parking spaces for the purpose of leasing said dumpster enclosure to an adjacent business owner for a convenient and safe dumpster location, and 2) Authorizing the City Manager to enter into an appropriate lease agreement with said business owner(s). SUBMITTED BY: William R. Cook, Director of Community and Economic Development CONTACT PERSON/TELEPHONE: Tammy Regimbal, 575-6113 SUMMARY EXPLANATION: Action to remove from table: At the April 17th Council meeting, Council Member McClure moved to adopt the attached ordinance. Council Member Bonlender seconded the motion. During discussion of the issue, Council Member Johnson moved to table the motion to adopt the ordinance. Council Member Lover seconded. The motion to table passed 4-3. Any member of the Council may move to "take from the table" the motion that was placed on the table at the April 17th meeting, that being the motion to adopt the attached ordinance. Such a motion would be in order after the Council had transacted other business. In other words, sometime following the Council taking official action on another item. Such a motion might be phrased as follows: "I move to take from the table the motion to adopt the ordinance removing two spaces from City Parking Lot Number 2 from use as vehicle parking and authorizing construction of a dumpster enclosure to be leased to adjacent business owners." (continued on next page) Resolution X Ordinance X Other (Specify) Refuse Enclosure Lease Agreement Contract Mail to (name and address): Phone: Funding Source YDA budget — F 61, line 480 APPROVED FOR SUBMITTAL:.`, �, City Manager STAFF RECOMMENDATION: Pass ordinance, adopt resolution and authorize agreement. BOARD/COMMISSION RECOMMENDATION: The Yakima Downtown Association recommends approval of the ordinance, resolution and agreement. COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2007-69 Page 2 A motion to "take from the table" requires a second and is not debatable, meaning no discussion of the motion may take place once it is seconded. An immediate roll call vote must be taken. If the motion to "take from the table" passes by majority vote, discussion on the original motion, in this case the motion to adopt the ordinance, may resume. The April 17th agenda item (#26) also included a resolution authorizing the execution of a lease agreement with the Sports Center, LLC for a dumpster enclosure. However, no motion was made on April 17th relative to the resolution. Therefore, no further action is required in order for the Council to discuss/consider the resolution at its May 1st meeting. Discussion: Yakima Federal Savings and Loan has brought to our attention a concern with the current location of a commercial dumpster located in a City alley along the south property line of their downtown Yakima Avenue office. The dumpster, owned and maintained by Yakima Waste Systems, collects refuse from the Sports Center, located at 214 East Yakima Avenue. It appears that many years ago, perhaps at the time the City parking lot No. 2 was built, the service alley behind the commercial properties on the south side of the 200 block of East Yakima Avenue was converted to a parking lot driveway, and some, but not all, private dumpsters could no longer be stored directly behind the Yakima Avenue businesses they served. As a result of this change, a commercial dumpster that serves the Sports Center is now located in the alley west of South Second Street, just outside the south public entrance to Yakima Federal Savings and Loan. The Olive Garden addressed this issue during construction of their building by providing a notch into the southwest corner of their building for a dumpster enclosure. The Sports Center, unfortunately, has only sidewalk and parking lot on its south side. For many years the food service activities at the Sports Center did not generate a Targe volume of food related refuse. However, the success of the refurbished Sports Center has caused a significant increase in the use of their commercial dumpster and grease recycling. The dumpster's current location, directly behind Yakima Federal, has become offensive to employees and customers entering from the bank's parking lot. On July 18, 2006, the City Council approved a 90 -day temporary permit for the Sports Center to utilize two spaces for the placement of their dumpster in the City's parking lot #2 (Millennium Plaza lot) while a more permanent solution was developed. For various reasons, this temporary use did not occur, and the dumpster remained in its location behind the bank. Now, with the combined help of the Yakima Downtown Association (YDA), the owners of the Sports Center, Don Hovis from Yakima Federal Savings and Loan, and Scott Robertson of Yakima Waste Systems, a solution of a more permanent nature has been developed. Staff recommends a lease agreement with the owners of the Sports Center. The lease payment will be $150.00 per quarter, made up of two components: $64.92 for the quarterly rent of City property and $85.08 applied toward repayment of the City's investment in the construction of the enclosure. The term of the Refuse Dumpster Enclosure Lease Agreement will be the period of time necessary to payoff the City's investment (estimated at $4,000) at $85.08 per quarterly payment. The number of payments at this rate will depend on the final cost of the enclosure. There will be provisions in the lease to renegotiate and extend the original lease when the City's investment has been repaid, or if other businesses offer to share the lease of this space. The lease also allows the City to revoke or terminate the agreement with notice. This is especially important to provide the City with the flexibility to remove this enclosure should a future use or reconfiguration of this lot necessitate such a change. Likewise, the enclosure itself will be designed and constructed to minimize its impact on the surface of the parking lot should it need to be removed in the future. The Yakima Downtown Association has reviewed the issue, most recently at their regular meeting on March 1, 2007, and approves the use of two parking spaces in lot 2 for a dumpster to serve the Sports Center. YDA also recommends the use of City funds from the Parking and Business Improvement Area (PBIA) Fund 161 to construct a dumpster enclosure. The Sports Center will make a quarterly payment to the City in the amount of $150.00, beginning June 1, 2007, to lease the enclosure, which will be approximately 20 -feet by 20 -feet in size. Council question from April 17, 2007: At your April 17 meeting, there was a question on whether the east/west alley behind the Sports Center had been vacated at the time the City parking lot was constructed. There are indications in the file that the alley was not vacated. However, we have not conducted the legal title research to verify this information. Perhaps of equal or greater importance is the attached page 6 of the 1920 Sanborn Insurance Map for the City of Yakima. On the map, the east/west alley, twenty feet in width, is shown abutting the rear of the Sports Center building. Also shown on this map is the proposed location of the dumpster enclosure and it is clearly outside of and south of the alley footprint. Please note: Included in your packet is a letter from Andrew Miller of Urban Place Consultants, the consulting firm that has been assisting the Committee for Downtown Yakima on downtown management issues. In his letter, Andrew points out that a future re -striping of the lot, incorporating smaller "compact car only" spaces (8.5' in width), could potentially regain the two lost spaces. In addition, please see the March 27, 2007 e-mail from Joan Davenport to Jeff Peters referencing parking standards in other Washington cities that allow up to twenty-five percent of parking lot spaces to be striped for "compact spaces" with a width of 7.5'. These standards are not currently available within the City's parking ordinance, but the matter is worthy of consideration in the future. March 21, 2007 Mr. William Cook Director Department of Community and Economic Development City of Yakima 129 N. Second Street Yakima, WA 98901 RBAN PLACE Colussatine Group Swo. RE: Dumpster Enclosure for Parking Lot #2 Dear Mr. Cook, We understand there is concern regarding the potential loss of two parking spaces from Lot #2 as a result of the dumpster enclosure that is planned to serve the businesses on Yakima Avenue. Based upon our initial review of the existing physical layout of Lot #2, we believe the two parking spaces lost as a result of the new dumpster enclosure could potentially be regained if the following items are completed in the future: 1. The parking lot is reconfigured and re -striped from 9' wide parking stalls to 8'-6" wide stalls; 2. With the introduction of "Compact Car Only" spaces in corner areas of the lot and at the end of parking rows; 3. The parking lot is re -configured as recommended in our parking analysis to physically separate monthly parking areas from transient parking areas. This change would potentially eliminate the need for a second pay station, which in turn would free up one to two parking stalls. Please understand that the findings above are based upon our casual opinion only, and that we have not performed any detailed analysis to either prove or disprove our opinion. We hope this is helpful in allowing the dumpster enclosure project to move forward without further delays. Sincerely, (A) EMIL ANDREW W..MILLER, AICP Project Manager Facilitating the Development of Community in Urban Places 5318 E. Second Street, Suite 336, Long Beach, CA 90803 • Ph: (562) 439-6571 • Fax: (562) 439-9349 info©urbanplaceconsulting.com • www.urbanplaceconsulting.com Peters, Jeff ,m: Davenport, Joan Sent: Tuesday, March 27, 2007 2:07 PM To: Peters, Jeff Subject: Compact Spaces Jeff - Based on a quick review of parking standards in other cities within Washington State, many jurisdictions allow up to 25% of the parking spaces to be striped and signed as "Compact Spaces" with a dimension of 7.5 feet by 15 feet. Joan Davenport, AICP Supervising Traffic Engineer City of Yakima Dept. of Public Works 2301 Fruitvale Blvd Yakima, WA 98902 (509)576-6417 jdavenpo@ci.yakima.wa.us Yakima Sports Center, L.L.C. 214 E Yakima Avenue Yakima, WA 98901 April 25, 2007 City of Yakima 129 N. 2nd Street Yakima, WA 98901 Att: Yakima City Council members The ownership of the Yakima Sports Center has reviewed the revised lease agreement pertaining to our proposed dumpster enclosure site. We agree with all of its terms and encourage you to pass this legislation. Please feel free to contact me for further discussion prior to the May 1, 2007 city council meeting. Thank you, Chris Malland, Managing Member Yakima Sports Center, L.L.C. •DH HorEm YAK/MA STEM"! - I.JEMS ELECTRIC • ;sis sp A'/ ert Z at Ent m 4 S 4/u a_ wwtt •e- d17i'► v. & Restr/ 'HOTEL = OFF OPfr,. tip e 4 fDH S. 311D Au/ 15 ST. ,xwm • e. Loa Drugs It p 11. 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Bank 0 ED 0— D OP N CITY OF YAKIMA EXHIIBIT A Digital Color Orthophotography E:flown 4/30/2004 Sports Center Universe • • Sports Center Universe Dumpster Olive Garden Dumpster alProposed New Sports Center Dumpster Enclosure N 5 Scale —lin = 75ft 0 37.5 75 Created: March 15, 2007