Loading...
HomeMy WebLinkAboutR-2011-078 Upper Kiwanis Park Development Project Agreement with Yakima School District No. 7 RESOLUTION NO. R- 2011 -78 A RESOLUTION authorizing the City Manager to execute an agreement between the City of Yakima and Yakima School District No. 7 for development, maintenance and use of Upper Kiwanis Park. WHEREAS, the City of Yakima is a municipal corporation of the State of Washington with City Hall located at 129 North 2 Street, Yakima, Washington 98901; and WHEREAS, Yakima School District No. 7 is a public school district duly formed and existing under the laws of the State of Washington with administrative offices located at 104 North 4 Avenue, Yakima, Washington 98902; and WHEREAS, the City of Yakima is the owner of Upper Kiwanis Park, a public park located at 405 North Fair Avenue within the City of Yakima. The Park is maintained by the Parks & Recreation Division of the City of Yakima; and WHEREAS, the Parks & Recreation 2006 -2011 Comprehensive Plan identified the need for additional softball fields to serve the community, and to replace the softball fields eliminated at Larson Park by the expansion of community college facilities; and WHEREAS, Yakima School District No. 7 is willing to contribute $500,000.00 toward construction of three new softball fields and amenities suitable for women's fast -pitch softball and other baseball uses; and WHEREAS, the City of Yakima and Yakima School District No. 7 have previously entered into a Joint Use Agreement regarding cooperation and use of each party's facilities by the other; and WHEREAS, the parties desire to enter into an Agreement to define their respective responsibilities for the funding, construction and use of improvements to Upper Kiwanis Park, and to provide for effective cooperation in the implementation of the provisions set forth herein; and WHEREAS, it is in the best interest of the City of Yakima to execute the attached agreement, 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 "Agreement between the City of Yakima and Yakima School District No. 7 for Development, Maintenance and Use of Upper Kiwanis Park." ADOPTED BY THE CITY COUNCIL this 7 day of June, 2011. ATTEST: Micah Cawley, yor City e 1 C Pll f - do//, 7e AGREEMENT BETWEEN THE CITY OF YAKIMA AND YAKIMA SCHOOL DISTRICT NO. 7 FOR DEVELOPMENT, MAINTENANCE AND USE OF THE UPPER KIWANIS PARK THIS AGREEMENT is entered into by and between the City of Yakima and Yakima School District No. 7 for the development, maintenance and use of Upper Kiwanis Park as set forth below. 1. RECITALS A. City of Yakima (hereafter called "City") is a municipal corporation of the State of Washington with City Hall located at 129 North 2nd Street, Yakima, Washington 98901. B. Yakima School District No. 7 (hereafter called "Yakima School District") is a public school district duly formed and existing under the laws of the State of Washington with administrative offices located at 104 North 4 Avenue, Yakima, Washington 98902. C. City is the owner of Upper Kiwanis Park (hereafter called "Park"), a public park located at 405 North Fair Avenue within the City of Yakima. The Park is maintained by the Parks & Recreation Division of the City. D. The Parks & Recreation 2006 -2011 Comprehensive Plan identified the need for additional softball fields to serve the community, and to replace the softball fields eliminated at Larson Park by the expansion of community college facilities. E. Yakima School District is willing to contribute $500,000.00 toward construction of three new softball fields and amenities suitable for women's fast - pitch softball and other baseball uses. F. City is willing to contribute $500,000.00 for said improvements to the Park, in addition to the funds that have already been expended on the project, to date. G. City and Yakima School District have previously entered into a Joint Use Agreement regarding cooperation and use of each party's facilities by the other. H. The parties desire to enter into an Agreement as set forth herein and below to define their respective responsibilities for the funding, construction and use of improvements to the Park, and to provide for effective cooperation in the implementation of the provisions set forth herein. This Agreement is entered into pursuant to RCW 39.34 Interlocal Cooperation Act. 1 N ? II. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises herein, and for the mutual benefit to the parties hereto, the parties agree as follows: 1. Description of Improvements. The improvements to the Park shall consist of the design and construction of three (3) softball fields suitable for WIAA high school women's fast -pitch softball games, Little League games, and other baseball use. The improvements also include the design and construction of amenities necessary and /or appropriate to facilitate use of such fields and facilities for such purposes, and will include, but not be limited to, lighting, dugouts, spectator seating, batting cages and other facilities. These elements are hereafter referred to collectively as the "Improvements." 2. Obligations of City. The City shall provide the following services and perform the following duties: A. City shall contribute $500,000.00 from funds authorized and approved by the City Council toward the costs of design and construction of the Improvements. B. City shall receive $500,000 from Yakima School District and use such funds primarily for ball field lighting, two (2) batting cages and dugouts. C. City, in cooperation and consultation with Yakima School District, and subject to the provisions of Section 3 (C) below, shall be responsible for the design of the Improvements, including designation of location of the Improvements within the Park. City, in cooperation and consultation with Yakima School District, shall be responsible for developing and implementing all plans for construction of the Improvements, including but not limited to, developing and implementing such construction in phases as necessary or appropriate to accommodate financing of such project. The parties anticipate that construction of the softball fields will be substantially complete and ready for use by the District for the 2012 WIAA softball season, provided that softball field grass is planted and sufficiently established to support such use. The parties agree use by the District is a material term of this Agreement. D. City shall construct the Improvements and manage the construction site, and shall be responsible for compliance with construction and 2 design standards regarding accessibility for the handicapped pursuant to applicable codes. E. Except as otherwise provided in Section 3(C) below with regard to the batting cages, upon completion of the Improvements, the finished facilities, amenities and fixtures shall be owned,. operated . and maintained by the City; shall be incorporated into the City's parks system; and will meet the standards set by City in cooperation with Yakima School District. F. City shall manage all funds allocated, collected, paid and received pursuant to this Agreement, and shall maintain such funds in an appropriate account or accounts, to be expended by City to accomplish the purposes of this Agreement. City shall manage such account or accounts in accordance with its existing procedures._ and standards. City shall provide periodic reports or statements of account and expenditure to Yakima School District as requested, and shall provide a final statement of account and expenditure upon completion and final acceptance of the Improvement project. 3. Obligations of Yakima School District. The Yakima School District shall provide the following services and perform the following duties: A. Yakima School District shall contribute and pay the City the sum of $500,000.00 from funds authorized by its board toward the costs of design and construction of the Improvements with the understanding that such funds are intended to be used primarily for construction and installation of ball field lights and dugouts. Such funds shall be paid to City within sixty (60) days after execution of this Agreement, and shall be deposited in an account or accounts of the City appropriate for the administration of such funds. Thereafter, such funds may be expended by City to accomplish the purposes of this Agreement. B. Yakima School District shall have the responsibility to identify those amenities and facilities within the Improvements necessary or appropriate to achieve compliance with all applicable laws, codes and regulations to facilitate league play for women's fast -pitch softball, together with any federal, state or local laws and regulations governing the provision of sports facilities for the use of its students in conjunction with the City. C. Yakima School District shall assist the City in planning, design and site development of the Improvements, and shall confer with the City as necessary in regard to any outstanding matters relating to 3 use, maintenance and repair of the completed Improvements. Without contravening any provision above, City and Yakima School District will further cooperate regarding location of the batting cages. Yakima School District shall be solely responsible for the design of the batting cage, and for maintenance and repair of the batting cage and batting cage nets. D. Yakima School District shall proceed with its obligations in a timely and diligent manner, but shall not have any responsibility for delays caused by others beyond the control of the Yakima School District or that were not reasonably foreseeable. 4. Priority Use of New Ball Fields. Upon completion of the three new baseball fields, Yakima School District shall have priority field usage of such fields and batting cages during WIAA seasons for women's fast -pitch softball in support of the Yakima School District's athletic programs. This first priority is in addition to other applicable terms and provisions of the parties' Joint Use Agreement as such now exists or hereafter is amended. The City and the District agree to meet as necessary to establish a fixed schedule of first priority field usage by the District during the softball season. The parties agree first priority use of the fields by the District is a material term of this Agreement. 5. Use, Maintenance and Repair. Except as otherwise provided in Section 3(C) above regarding maintenance and repair the batting cages and batting cage nets, upon completion of the Improvements, such Improvements shall be owned by City and maintained by City in accordance with standards and procedures of the City's Parks and Recreation Division. The parties will cooperate regarding priority use of the facilities as set forth in Section 4 above. Yakima School District will advise the City Parks and Recreation Division of any condition of the Park requiring maintenance and /or repair, and the parties will cooperate to facilitate City's maintenance and repair of the Park and its facilities. In any case, City shall determine whether repairs or additional maintenance is necessary or appropriate, and to schedule, finance and accomplish any repair and /or additional maintenance deemed necessary or appropriate, subject to Dispute Resolution, Section 15. In the event the parties agree in writing that the batting cage should be removed for any reason, either party or both of them may remove the batting cage. 6. Duration. The term of this Agreement shall commence upon execution hereof and shall remain in effect for a period of fifteen (15) years unless the Agreement is terminated earlier by either party under Section 19 below. This Agreement may be extended by option of the Yakima School District for an additional fifteen (15) years. The District may exercise this option to extend the Agreement by giving notice of such extension thirty (30) days prior to the end of the Agreement. 4 7. Administration. This Agreement shall be administered by the City's Parks and Recreation Division. 8. Independent Contractor. The Yakima School District and the City understand and expressly agree that the Yakima School District is an independent contractor in the performance of each and every part of this Agreement. The Yakima School District, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the work/services required under this Agreement. The Yakima School District, as an independent contractor, shall have the sole judgment of the means, mode or manner of the actual performance of work/services required under this Agreement. Additionally, and as an independent contractor, the Yakima School District and their employees shall make . no claim of City employment nor shall claim against the City any related employment benefits, social security, and/or retirement. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership, or agency between the Yakima School District and /or any officer, employee or agent of the Yakima School District and the City. 9. No Third Party Rights. This Agreement is entered into for the sole benefit of the parties. It shall confer no benefits or rights, direct or indirect, on any third parties. No person or entity other than the City and the Yakima School District may rely upon or enforce any provision of this Agreement. 10. Indemnification and Hold Harmless. A. Each party hereto agrees to maintain responsibility and assume liability in the performance of this Agreement for its own wrongful and /or negligent acts or omissions, and those of its officers, agents or employees to the fullest extent allowed by law. School District specifically agrees that it will indemnify and hold harmless the City, its elected and appointed officials, employees, volunteers, insurers and agents from any claims, demands, damages, lawsuits and actions arising out of any injury or loss, or claim of injury or loss, arising out of the use, maintenance or repair of the batting cages by students, and School District's officers, volunteers and agents. B. The provisions of this Section shall survive the termination or expiration of this Agreement. C. Nothing contained in this Section or this Agreement shall create a liability or a right of indemnification in any third party. 11. Nondiscrimination, During the performance of this Agreement, the Parties shall not discriminate in violation of any applicable federal, state and /or local law or regulation on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability, honorably discharged veteran or military • 5 e status, pregnancy, sexual orientation, and any other classification protected under federal, state, or local law. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. 12. Compliance With Law. The Parties to this Agreement shall comply with all applicable federal, state and local laws, rules and regulations in carrying out the terms and conditions of this Agreement. 13. No Insurance. It is understood the City does not maintain liability insurance for the Yakima School District or its employees and subcontractors. It is understood the District does not maintain liability insurance for the City or its employees and subcontractors. 14. Waiver of Breach. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 15. Dispute Resolution. The City and the Yakima School District agree to meet to discuss any outstanding issues related to the development of the Improvements and the performance of this Agreement in order to resolve any disputes through cooperation and negotiation. In the event any dispute cannot be resolved through cooperation and negotiation, the parties agree to submit such dispute to a mediator, mutually acceptable to both parties. Each party shall bear and pay its own expenses and costs of mediation, including attorneys' fees, and the parties will each pay one -half of the mediator's fee. If such dispute is not resolved through mediation, the parties may seek redress through any court with jurisdiction, and the substantially prevailing party therein shall be entitled to recover its costs of suit together with its reasonable attorneys' fees. The parties agree that priority use of the Improvements by the District is an essential element of this Agreement. The City acknowledges and agrees that the priority use of the Improvements as identified in this Agreement are necessary to allow the District to provide District programs. The parties mutually agree that in the event the City fails to comply with the terms of this Agreement regarding priority use or any term of the Agreement affecting the priority use by the District, the District may at its option, in addition to any other remedy, take legal action to enforce this Agreement through specific performance. The parties agree specific performance is a remedy available to enforce this Agreement. 16. Integration. This Agreement contains all of the terms and conditions agreed on by the parties. No other understandings, oral or otherwise, 6 regarding the subject matter of this Agreement, are deemed to exist or to bind either of the parties. 17. Modifications. The parties may modify this Agreement but no proposed changes or modifications shall have validity or become binding on either party unless such changes or modifications are in writing and executed by both parties. 18. Severability. A. If a court of competent jurisdiction holds any part, term or provision of this Agreement illegal or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held invalid. B. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. 19. Termination — Effect of Termination — Modification. The parties may terminate this Agreement only according to the following provisions: A. Pre - Construction Contract. 1. Engineer's Estimate. The parties shall meet and confer to review the Engineer's Estimate for the cost of the Improvements. If such cost exceeds the total funds contributed by the parties, the parties, or either of them, may terminate this Agreement. Such termination shall be by written notice of termination delivered to the other party at the address given in Section 21 below. Upon the effective date of termination, the balance of funds contributed by each party shall be remitted and paid to the contributing party, Tess that party's share of proportionate costs and expenses incurred in the design, implementation and work performed pursuant to this Agreement prior to the effective date of termination. In the alternative, the party's may revise the scope of improvements to fit within the budget of funds on hand and proceed to bidding and construction with the modified scope of improvements. 2. Prior to Requests for Bids. Either party may terminate this Agreement any time prior to publication of Requests for Bids for the construction of the Improvements. Such termination shall be by written notice of termination delivered to the other party at the address given in Section 21 below. Upon the effective date of termination, the balance of funds contributed by each party shall be remitted and paid to the contributing party, less that party's share of proportionate costs and expenses incurred in the design, implementation and work performed pursuant to this Agreement prior to the effective date of termination. 7 B. After Award of Construction Contract(s). Neither party shall have the right to unilaterally terminate this Agreement after award of any contract for construction of the Improvements. C. Mutual Agreement of the Parties. This Agreement may be terminated by mutual agreement of the parties at any time. 20. Construction Management. Construction of the Improvement Project will be managed by City, and contractor(s) performing the work will be bonded in accordance with City public works contracting procedures. 21. Notices. Unless otherwise stated herein, all notices and demands are required in written form and sent to the parties at their addresses as follows: TO: CITY OF YAKIMA R. A. Zais, Jr., City Manager (or successor) City of Yakima 129 North Second Street Yakima, WA 98901 TO: YAKIMA SCHOOL DISTRICT Dr. Elaine Beraza, Superintendent (or successor) 104 No. Fourth Avenue Yakima, WA 98902 22. Governing Law — Venue. This Agreement shall be govemed by and construed in accordance with the laws of the State of Washington. Venue for any action arising out of the implementation, performance or breach of this Agreement shall lie in Yakima County, State of Washington. 23. Filing. Copies of this Agreement shall be filed with the Yakima County Auditor pursuant to RCW 39.34.040, or posted as otherwise permitted, and filed with the City Clerk of Yakima. CITY OF YAKIMA YAKIMA S OOL DISTRICT R.A. Zais, Jr., ity Manager Dr. Elaine Beraza, Superi endent e/ 9 // cal / /5Jc2OJ Sign 9 I Date S' ned Date Signed ATTEST: p,KIMA `"1 k. Deborah Kloster, ty C S AL i CITY CONTRAC r NO: _ 6 RESOLUTION NO: Ai / _ • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. / 0 For Meeting of June 7, 2011 ITEM TITLE: A Resolution authorizing an Agreement with Yakima School District No. 7 for the donation of $500,000 for the Upper Kiwanis Park Development Project SUBMITTED BY: Chris Waarvick, Director of Public Works Ken Wilkinson, Parks and Recreation Manager CONTACT PERSON/TELEPHONE: Ken Wilkinson, 575 -6020 SUMMARY EXPLANATION: Staff respectfully requests Council consideration of the attached resolution authorizing execution of an agreement with Yakima School District No. 7 for its $500,000 contribution toward improvements at Upper Kiwanis Park. These improvements include construction of three new softball fields and amenities suitable for women's fastpitch softball and other baseball uses. Use of the funds would primarily go for ballfield lighting and dugouts and spectator seating at the ballfield complex to service the needs of the City's young athletes. e loining local service clubs (such as the Rotary, Kiwanis, and Lion's Trusts) and other organizations in the community, including representatives of youth baseball, girls' fast -pitch and Parker Youth and Sports Foundation, Yakima School District is working with the City to service the needs of the City's youth athletes. Adding lights and other improvements to Upper Kiwanis Park is necessary to meet Title 9 obligations to facilitate league play for women's fast -pitch softball. In exchange for its contribution, Yakima School District will have priority field usage in support of its athletic programs. • Resolution X Ordinance _ Contract X Other (Specify) Agreement Contract Mail to (name and address): Funding Source Parks and Recreation Capital Budget APPROVED FOR SUBMITTAL: \�"7�� a- City Manager STAFF RECOMMENDATION: Staff respectfully requests City Council to adopt the Resolution authorizing and directing the City Manager of the City of Yakima to execute an agreement with Yakima School District No. 7 for development, maintenance and use of Upper Kiwanis Park. BOARD /COMMISSION /COMMITTEE RECOMMENDATION: The Parks and Recreation Commission endorses this request. COUNCIL ACTION: •