HomeMy WebLinkAbout09/13/2016 02 SOZO Sports Complex and Proposed YMCA Aquatics CenterBUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No 2
For Meeting of September 13, 2016
ITEM TITLE. Discussion regarding SOZO Sports Complex and the proposed
YMCA Aquatics Center
SUBMITTED BY: Cliff Moore, City Manager
SUMMARY EXPLANATION:
This study session will focus on current and future aspects of two major projects within the City of
Yakima. The SOZO Sports Complex and the proposed YMCAAquatics Center Presentations will
include information from City staff as well as from the SOZO and YMCA Board Members. Among
the topics to be discussed will be project agreements and budget implications, current status of
projects, cost and design of associated road improvements, and transit service to both locations.
Attachments include
• Tony O'Rourke memo to Council dated 9-25-15
• Memo from Finance & Budget Director Epperson
• Memo from Chief Engineer Sheffield re road improvements for SOZO sports complex
• Memo from Transit Project Planner Futrell re SOZO sports complex
• Bus route map SOZO sports complex
• Memo from Chief Engineer Sheffield re road improvements for proposed aquatics center
• Memo from Transit Project Planner Futrell re bus service to the proposed aquatics center
• Bus routes near the proposed aquatics center
• Bus route from the proposed aquatics center to SOZO sports complex
• Master aquatic agreement with YMCA
• SOZO agreement
• YMCA PowerPoint
ITEM BUDGETED:
STRATEGIC PRIORITY.
APPROVED FOR
SUBMITTAL.
City Manager
STAFF RECOMMENDATION:
BOARD/COMMITTEE RECOMMENDATION:
ATTACHMENTS:
Description Upload Date Type
D O'Rourke memo 9-15 9/8/2016 Cover Memo
D memo from finance 9/8/2016 Cover Memo
D road improvements sozo 9/8/2016 Cover Memo
D sozo mo Futrell 9/8/2016 Cover Memo
D sozo bus map 9/8/2016 Cover Memo
D road improvements aquatics 9/8/2016 Cover Memo
O aquatic memo 9/7/2016 Cover Memo
D aquatic center bus map 9/8/2016 Cover Memo
D bus route service map 9/8/2016 Cover Memo
D master aquatic agreement with yrnca 9/8/2016 Cover Memo
D SOZO agreement 9/8/2016 Cover Memo
O YMCA powerpoint 9/8/2016 Cover Memo
MEMORANDUM
To: Honorable Mayor and Members of the Yakima City Council
cc: Parks and Recreation Commission
From: Tony O'Rourke, City Manager
Date: September 25, 2015
RE: YMCA Aquatics and Fitness Agreements
Attached for City Council review, in preparation of the October 27 study session, is a Master
Aquatic Center Agreement that incorporates a Ground Lease, a Development Agreement and
an Operating Agreement between the City of Yakima and Yakima Family YMCA, a Washington
non-profit corporation. These documents represent an intent to collaborate in the design,
development, and operation of an Aquatics Center at Chesterley Park consisting of a lap pool,
therapy pool, and family/children's pool. Independently, the YMCA will also construct and
operate a $9 million dollar Fitness Center, which like the Aquatic Center will be open to the
entire community on a daily or monthly pass basis. The Yakima Family YMCA Board tentatively
approved these agreements on September 22, 2015, subject to final review by the City Council.
The final review and proposed execution of these agreements is scheduled for the City
Council's October 27, 2015 study session.
The Yakima Family YMCA is a Yakima -based, non-profit that has been committed to building a
healthy spirit, mind, and body among individuals, families, and businesses of Yakima since
1906. In collaboration with the City of Yakima, they have the experience, ability, and resources
to design, develop, maintain, and operate this proposed Aquatics Center. The proposed
agreements do not constitute a joint venture. Each party has their own independent
responsibilities and rights.
The agreements to design, build, and operate an Aquatic Center are subject to three
contingencies. The first is a due diligence contingency of 90 days to inspect and test soils at
Chesterley Park before entering into a ground lease. The second requires the City to complete
a land conversion process with the Washington Recreation and Conservation Office and
National Parks to replace approximately 7.5 acres at Chesterley Park since it was paid for with
state and federal grants. The third requirement is that the YMCA has to raise approximately
$15 million or 80% of the construction cost of the aquatic and fitness center by December 31,
2017.
Currently the City has only one year-round pool at Lions Park and a summer outdoor pool at
Franklin Park. In addition, both pools are nearly 45 years old and are reaching the end of their
functional life unless significant capital investments are made to extend their functionality.
Highlights of the proposed agreement include:
TERM
The initial term of the proposed ground lease for approximately 7.5 acres at Chesterley Park for
the YMCA Aquatics Center and Fitness Center is for a term of 40 years commencing upon the
opening of the facilities, with the option of the YMCA to extend the initial 40 -year term for three
(3) additional ten (10) year terms.
SITE
The proposed location of the Aquatics Center and Fitness Center is on approximately 7.5 acres
of land in the northwest corner of Chesterley Park (see site plan attached to the Ground Lease
as Exhibits A-1 and A-2). This site is zoned R2 and recreational uses are a permitted use under
a Class 2 Review. Because Chesterley Park was purchased with State of Washington
Recreation and Conservation Office (RCO) and National Parks Scenic (NPS) grants the City is
required to provide replacement property for the existing RCO/NPS Chesterley Park property in
order to use the approximately 7.5 acres for the proposed Aquatics/Fitness Center. The
replacement conversion process is lengthy. The RCO/NPS property conversion requirements
provide a summary of the process involved in gaining RCO/NPS approval of a conversion. The
City will be required to undergo a "yellow book" appraisal of both the Chesterley Park site, the
proposed replacement site, which at this time is being considered on the second 60 -acre SOZO
parcel. In addition to the appraisals, NEPA environmental impact assessment, archeological
assessment, and recreational suitability analysis of each parcel must be completed. Successful
completion of this property conversion requirement is necessary to consummate this YMCA -City
Agreement.
FACILITY/FEATURES
The proposed Aquatic Center has a projected cost of $9 million and will be a joint City of
Yakima/YMCA facility.
The state-of-the-art facility will feature multi-level glass walls to make it highly visible and
attractive both inside and out. The facility will total approximately 72,000 square feet of which
34,000 square feet will be dedicated to the Aquatic Center. The Aquatics Center will feature
three bodies of water: a lap pool, a family/children's recreation pool and a warm water therapy
pool. Plans call for the family/children's recreation pool to include a slide, spray and splash
elements and a lazy river. The pool deck includes a hot tub and steam rooms. The two facilities
will share a common lobby space and locker rooms. The YMCA Fitness Center includes group
fitness studios, cardio equipment, circuit weights, free weights, a gymnasium, child watch area,
drop-in youth room, community classrooms and a teaching kitchen.
If feasible, a future outdoor pool could be built adjacent to the Aquatic Center.
ACCESS
The facility will have shared access to the existing 185 Chesterley Park parking spaces, as well
as exclusive access to 120 additional spaces to be built. The facility is open to the entire
community. Day and monthly passes will be available for access to both facilities for either the
Aquatics Center or the YMCA Fitness Center. The YMCA will also offer standard membership
options. The YMCA provides opportunities for youth and families with limited resources to have
access to the YMCA facilities and programs. The facility will be open seven days a week.
PROGRAMMING
2
Aquatics Center: programming for the Aquatics Center will include water aerobics classes, swim
lessons, masters swim instruction, private swim lessons, senior water aerobics classes, arthritis
and therapy group classes, birthday parties, lifeguard training certification, swim meets, open
lap swimming, aqua dance, water walking classes and other group fitness, as well as
recreational opportunities.
YMCA: Programming will include youth outreach programs, group fitness classes, community
health programming in diabetes and obesity prevention, aerobics classes, personal training,
cycling classes, basketball leagues, Zumba and a wide range of personal fitness opportunities.
COST
The estimated cost of the Aquatic Center is $9 million, of which the City will contribute a not to
exceed amount of $4,500,000. The annual debt service on the City's contribution of $4.5 million
non -tax exempt debt is approximately $360,000 annually starting in 2018. The YMCA will be
responsible for all additional costs of completion. The City and YMCA will equally share in the
operating cost of the Aquatics Center. The Fitness Center will also cost approximately $9
million, of which the YMCA will pay 100%.
Highlights of the proposed Aquatic Center Development Agreement, Operating Agreement, and
Ground Lease include:
YMCA Development Agreement
• YMCA shall construct an aquatics center consisting of lap pool, therapy pool, and
family/children's pool.
• The City shall contribute a total of $4,500,000 for design, engineering, and construction
costs related solely to the aquatics center upon satisfaction of the Due Diligence
Contingency. It is expressly confirmed that all costs paid by the City for design and
engineering shall be reimbursed to the City by the YMCA in the event the Financing
Contingency is not satisfied and the project fails to be developed.
• YMCA shall construct a fitness facility, exclusively at their cost
• The YMCA will solely own the aquatics center and fitness center. At the end of the ground
lease these facilities will revert to the City.
• The YMCA shall have sole responsibility for the design, building plans, engineering, site
plan, and construction of the aquatics center, subject to review by the City manager to
confirm the aquatic center design is in compliance with required specifications.
• The City shall be reimbursed for its pro -rata design and engineering costs if the Aquatics
Center fails to be developed, provided the city successfully completes all RCO requirements
to make the Chesterley Park site available.
• The City shall conduct a complete public works project bidding process for construction of
the Aquatics Center development in accordance with Washington Public Works
requirements. The YMCA shall be responsible for selecting and contracting the architects,
and engineers that will be used to construct the aquatic and fitness facilities.
3
• The YMCA is solely responsible for all costs necessary for development and construction of
the aquatics center, including any construction cost overruns and change orders.
• Any off site traffic or other improvements outside of the YMCA's leased space required by
the City as a result of the aquatics center and other facilities on the leased premises are the
responsibility of the City and with no reduction to the City's $4,500,000 aquatic center
contribution.
• Any on site improvements within the leased space shall be shared equally between the City
and the YMCA. The City's share will come from its $4,500,000 contribution.
• The naming rights of the aquatics center will belong solely to the YMCA, provided, however,
the aquatics center name must include the word "Yakima".
YMCA Ground Lease
• The YMCA will lease from the City approximately 7.5 acres at Chesterley Park for the YMCA
aquatics center and fitness center (see Ground Lease Exhibits) for an initial term of forty
(40) years commencing upon the opening date of the facilities. The YMCA will have the
option to extend the initial 40 -year term for three (3) additional ten (10) year terms under the
same terms and conditions.
• The YMCA's lease is contingent on satisfactory due diligence of the leased premises on or
before 90 days of the effective date of the lease.
• The YMCA's obligation to lease the Chesterley site and construct the Aquatic Center, and
the City's obligation to make a $4.5 million contribution, is contingent on the YMCA securing
80% of the funding needed to construct the Aquatics Center and fitness facility by December
31, 2017.
• The City's and YMCA's respective obligation to lease space in Chesterley Park is financially
contingent on the YMCA's ability to fund the construction and operation of the aquatics
center and fitness center, as well as successful completion of the RCO conversion. If the
financial contingency or RCO conversion is not satisfied on or before December 31, 2017,
either the City or YMCA may terminate this entire Agreement after 60 days written notice
period for the Parties to satisfy the contingencies.
• The Lease Agreement is subject to the terms of the Development Agreement and Operating
Agreement.
• The YMCA may share the use of existing Chesterley Park parking areas, however, they will
have exclusive use of any additional parking they construct.
• The YMCA is permitted to sublease all or any portion of the leased premises with City
approval.
• The YMCA and City have 60 days to cure any defaults.
YMCA Operatinq Aqreement
4
• The aquatics center will be managed, operated, and maintained by the YMCA in accordance
with operating standards consistent with industry and mutually agreed upon standards.
• Minimal operating hours:
o Monday through Friday 6:00 a.m. to 9:00 p.m.
o Saturday 7:00 a.m. to 7:00 p.m.
o Sunday 12:00 p.m. to 6:00 p.m.
• The YMCA will maintain commercial general liability insurance not less than $2,000,000 per
occurrence and $4,000,000 general aggregate.
• The aquatics center shall be available for use by the general public and fees charged by the
YMCA for public use will be set in consultation with the City and must be commercially
reasonable with fees charged by facilities of similar size and scope in the State of
Washington.
• Prior to April 1 of each calendar year, the City shall submit the City's requested program
schedule for general public use of the aquatics center to the YMCA. The YMCA shall
consider and address the City's requested program schedule while preparing the annual
aquatics center schedule. The YMCA shall manage the aquatics center to ensure general
public access and use is a primary objective in program scheduling.
• The City shall share equally with the YMCA all reasonable pre -opening, staffing, and
operational costs in preparing and organizing the aquatics center for its opening date.
• The YMCA shall submit to the City Manager, at least 9 months before opening day, a
proposed initial budget for the period from opening day through July 31St of the year of
opening.
• The aquatics center budget year shall commence on September 1St annually. The YMCA
shall submit a proposed annual operating budget and annual capital budget for the aquatics
center for the upcoming fiscal year (September 1St through August 31St) to the City Manager
by July 1St of each year. Review, reconciliation and approval of the annual aquatics center
budget shall be jointly approved at least 15 days prior to September 1St of each year. In the
event the YMCA and City are unable to approve the initial or annual budget the parties will
submit to mediation to resolve the budget impasse.
• The City is obligated to reimburse the YMCA for 50% of all annual aquatics center operating
deficits.
• The YMCA and City shall maintain an operating reserve fund to offset budget variances and
cash-flow timing.
• The City is obligated to reimburse the YMCA for 50% of all annual aquatics center capital
expenditures.
• A Capital Improvement Reserve Fund shall be established separately by the City and YMCA
for asset repairs and replacements. Beginning on the first anniversary of the facility opening
date the City and YMCA shall each deposit $40,000 annually into the capital improvement
5
reserve fund until each reserve fund reaches a value of $1,000,000 to ensure routinely
scheduled funding and replacement of the aquatics center's capital assets. As expenditures
are deducted from the total balance of the reserve funds, the Parties shall make additional
deposits to restore and maintain the $1,000,000 reserve fund balance.
• The YMCA shall submit quarterly written reports to the City Manager on the status of the
aquatics center financial performance, usage and programs.
• The City shall have the right to audit the YMCA's aquatics center finances annually.
• In the event the YMCA or City materially breach the terms of this agreement, the YMCA or
City shall provide notice of the specific default(s), and if not cured within 60 days, the YMCA
or City shall seek equitable relief or terminate this agreement. If either party wrongfully
terminates the agreement, the offending party is obligated to pay the other party's costs and
attorney's fees and liquidated damages in the amount of $1,000,000.
• An unsuccessful "conversion process" will not constitute a breach of the terms of this
Agreement and/or cause for the YMCA to seek damages from the City.
SUMMARY
The approval of these agreements represents the City's willingness and ability to enter into
public/private partnerships to enhance the overall quality of life for Yakima citizens while also
reducing the public's capital and operating cost contributions by 50% to gain a new aquatic
center for the Yakima community.
The Aquatics Center addresses a significant need for another year-round pool in Yakima and
builds upon the City Council's recent decision with SOZO for the development of a 19 field
sports complex to enrich the recreational and economic vitality of Yakima.
These agreements would not have been possible without the great cooperation and efforts of
the YMCA representatives, Bob Romero, Dustin Yeager, Mark Smith, and Paul Larsen. In
addition, City Attorney Jeff Cutter and Public Works Director Scott Schafer were invaluable in
representing the City and achieving this mutually beneficial partnership.
6
Memo
To: The Honorable Mayor and City Council
From: Cindy Epperson, Director of Finance and Budget
Date: September 8, 2016
Re: City Commitment to New Parks Facilities
Upon passage of the Charter Amendment to dedicate $750,000 of existing revenue annually
to Parks capital needs, the City entered into agreements to partner with SOZO to construct a
new multi-purpose sports facility with a focus on soccer south of the airport, and with the
YMCA to construct an aquatic center now proposed to be sited at Chesterly Park.
We issued $5.0 million of bonds in December, 2015 for the SOZO facility, with the use split to
$4.1 million for the purchase of land and improvements, and another $900,000 for an
additional land purchase to assist SOZO with additional future development and that could
potentially satisfy RCO requirements to replace the Chesterly Park open space if it is ultimately
used for the aquatic center. Debt service on the $5.0 million is $400,000 annually for 20 years.
The $4.1 million portion has been spent --$900,000 is currently available for the additional
property purchase at the SOZO site.
The agreement with the YMCA commits the City to spend $4.5 million for the construction of a
new aquatic center. This will require an additional bond in that amount, with estimated annual
debt service of $360,000 for approximately 20 years.
These two bond issues will use the whole amount of the dedicated $750,000 for debt service
on these two new state-of-the-art facilities.
The agreement with the YMCA also includes the City participating equally (i.e. 50%) in pre-
opening operational expenses and on-going operating deficits. Although this amount will need
to be determined yearly as part of the budget process, it is not unrealistic to expect the City's
share to run between $150,000 and $350,000 annually based on our experience with Lions
Pool and other similar facilities.
Another component of the agreement is the creation of a Capital Improvement Reserve Fund
for both the YMCA and the City, with a contribution of $40,000 annually, until the amount
reaches $1 million (i.e. 25 years), so that major capital maintenance/repairs can be
accomplished as needed. This $1 million Reserve Fund would then be maintained at this level
and replenished by the Parties at such times as capital expenditures are paid from it.
At this point in time, no revenue source has been identified for the City's share of the annual
operating costs or the building of the capital reserve fund.
2
Memorandum
September 13, 2016
To: City Council
From: Brett Sheffield, PE, Chief Engineer
Subject: Road Improvements for SOZO Soccer Complex
As part of the agreement with SOZO, the City agreeto make the necessary improvements to the roads
providing access to the SOZO facility. These improvement consist of reconstructing and widening Spring
Creek Road, 36th Avenue and Sorenson Road to three -lane roadways, with curb and gutter on both sides,
street |i0hdng, a stormwater runoff system and sidewalk on the west side of the roadway. Yakima
County, through an Interlocal Agreement, is currently designing the project and aoquiring the necessary
rights of way for the City. The total estimated costs for construction of this project is $3.519.000. This
project will begin construction in early spring.
Spring Creek Road to the Soccer park entrance at 38th Avenue
ITEM DESCRIPTION
SPILL PREVENTION PLAN
MOBILIZATION (8%)
PROJECT TEMPORARY TRAFFIC CONTROL
CLEARING AND GRUBBING
ROADWAY EXCAVATION INCL. HAUL
CRUSHED SURFACING TOP COURSE
CRUSHED SURFACING BASE COURSE
ASPHALT TREATED BASE
HOT MIX ASPHALT CL. 1/2 IN. PG 64-28
CEMENT CONCRETE TRAFFIC CURB AND GUTTER
CEMENT CONCRETE SIDEWALK
'COMMERCIAL APPROACH
SCH. A CULVERT PIPE, 24 IN. DIAM.
CL. II REINFORCED CONC. CULV. PIPE, 36 IN. DIAM
ROADSIDE SWALE
CONCRETE SPILL. APRON
ILLUMINATION SYSTEM
REPAIR OR REPLACEMENT
SUB TOTAL
ENGINEERING AND CONTINGENCIES
UNIT
LS
LS
LS
AC
CY
TON
TON
TON
TON
LF
SY
EA
LF
LF
LF
EA
LS
FA
QTY
1
1
3.00
13,409
450
10,450
6,960
3,585
15,400
4,300
2
150
80
12,000
70
1
1
UNIT PRICE- PRICE
$500.00
$189,437.20
$50,000.00
$5,000.00
sio 00
$20.00
$15.00
$80.00
$95.00
$25.00
$40.00
$5,000.00
$75.00
$200:00
$8.00
$500.00
$280,000.00
$100,000.00
RIGHT OF WAY SF 97,000 $2.00
TOTALPROJECT COST
$500.00
$189,437 20
$50,000.0O
$15,000.00
$134,090.00
$9,000.00
$156,750.00,
$556,800.00
$340,575.00
$385,000.00
$172,000.00
$10,000.00
$11,250.00
$16,000.00
$96,000.00
$35,000.00,
$280,000.00
$100,000.00
$2,557,402.20
$767,220.66
$194,000.00
$3,518,622.86
This estimate includes a roadway section of 14-11-14 with curb, gutter on both sides and 5 -foot sidewalks on
the west side of the road.
The roadway section consists of 6 inches of CSBC, 4 inche of ATB and 2 inches of HMA 1/2 In. PG 64-28
Yakima Transit
City of Yakima, Transit Division
Yakima Transit ......... 575-6175
Dial -A -Ride ............. 575-6054
Transit Administration.. 575-6005
Date: September 9, 2016
From: Kevin Futrell, Transit Project Planner
To: Cliff Moore, City Manager; Scott Schafer, Public Works Director; Alvie Maxey, Transit Manager ;
Ken Wilkinson, Parks & Recreation Manager
Subject: SOZO Sports Complex
SOZO Development
Two weeks ago, Yakima Transit met with Joan Davenport, Jeff Peters, and the SOZO developers and we
discussed fare -free service only for events until the project is more established. To obtain that service,
Transit needs SOZO to provide us with 3 -months' notice, so we can meet the federal requirements of
notifying the public of the proposed service, because the service cannot be "exclusive."
Currently, the local access street in and out of the SOZO facility is inadequate for regular bus service.
We talked about a temporary turnaround, until they develop the second phase, which will connect with
52nd Avenue. Providing a detailed map indicating where bus service will be provided on a permanent
basis right now is premature. The developers have not secured property to extend Sorenson Road to
52nd Avenue, although some suggestions have been made that the County might be building out the
extension. There are also several other developments being proposed in the area which include
Cottonwood Partners large apartment complex (64th and Occidental/Sorenson) & Valley Quality Homes
manufactured home subdivision (south of the SOZO development).
When Yakima Transit considers revising or adding routes, it is primarily based on development intensity
and densities. This area will have enough intensity and density over time to justify a permanent route.
At this time, none of those developments have been completed. Yakima Transit anticipates providing a
regular fixed route service as early as June 2017. The developer indicated that their next major event
isn't planned until sometime next spring.
Because the facility is events based, there should be sidewalks along the roads to the facility, the access
roads should be built out to include each road having two lanes coming into the facility and two going
out. This is more important as it relates to Spring Creek, S 36th Avenue, and Sorenson until 52nd is
connected to the development. It is possible that a long turning lane could be an alternative to help
reduce traffic congestion. The intersection of Washington and Spring Creek road should be signalized to
handle the added traffic. The developer's proposed six -lane driveway through the site likely won't be
used by Yakima Transit. Yakima Transit will likely utilize Sorenson/Occidental at the south end of the
development. The only exception to this is if the only connection to 52nd is through the developer's six -
lane access point.
Washington Avenue
1r !
r
52nd Avenue
a
.s .
o11
-7,1777
13.644,./
Parks
RCO
Project
SOZO Sports
Complex Site
Kts se I
Par k
Spring Creek Road
J r
Phase II - Developer
Proposed Access
Roads Needing To Be
Built Or Improved
Temporary
Turnaround
—I I
Sorenson Road
Li -
Memorandum
September 13, 2016
To: City Council
From: Brett Sheffie|d, PE, Chief Engineer
Subject: Road Improvements for Proposed Aquatics Center
As part of the Aquatics Center proposed to be built in Chesterly Park, roadway improvements are
proposed to address the traffic concerns that currently exist at the unsignalized intersection of 34th
Avenue and Fruitvale Boulevard and provide better access to the facility. The Engineering Division has
Iooked atfour options to address this safety concern. The options vary in estimated cost from $2,915,000
to $4,491,000.
Attached is the preferred alternative, with the estimated cost to construct using two different options at the
intersection. The first option would be to install a traffic signal ($3.028.000) and the second option would
be to construct a roundabout ($3,999,000). The City has submitted an Innovative Safety Program grant
application for the roundabout portion of this prjaot. If the roundabout is selected to be funded through
the 2010 Innovative Safety Program, the City will be notified in October and the grant will be for
approximately $1,530,000.
River Road (40th Avenue to 34th Avenue)
Option 2 Signal
ITEM DESCRIPTION
SPCC PLAN
MOBILIZATION (8%)
PROJECT TEMPORARY TRAFFIC CONTROL
CLEARING AND GRUBBING
ROADWAY EXCAVATION INCL. HAUL
CRUSHED SURFACING BASE COURSE
ASPHALT TREATED BASE
HOT MIX ASPHALT CL. 1/2 IN. PG 64-28
CEMENT CONCRETE TRAFFIC CURB AND GUTTER
CEMENT CONCRETE SIDEWALK
CEMENT CONCRETE SIDEWALK RAMP
CRUSHED SURFACING TOP COURSE
COMMERCIAL APPROACH
STORM DRAINAGE
ILLUMINATION SYSTEM, COMPLETE
REPAIR OR REPLACEMENT
34TH AVENUE AND FRUITVALE SIGNAL
34TH AVENUE AND FRUITVALE ROUNDABOUT
SUB TOTAL
CE AND CONTINGENCIES
UNIT
LS
LS
LS
LS
CY
TON
TON
TON
LF
SY
EA
TON
EA
LF
LS
FA
EA
EA
QTY
1
1
1
1
6,150
6,250
2,135
1,100
2,720
2,100
5
220
2
1,980
1
UNIT PRICE
$500.00
$164,376.00,
$150;000.00
$25,000.00
$15.00'
$20.00
$90.00
$100.00'
$40.00
$50.00'
$1,500.00'
$25.00
$5,000.00''
$100.00
$75,000.00,
$100,000.00
$750,000.00'
RIGHT OF WAY SF 36,375 $10.00
TOTAL BID
PRICE
$500.00
$164,376.00
$150,000.00
$25000.00
$92,250.00
$125,000.00
$192,150.00
$110,000.00
$108,800.00
$105,000.00
$7,500.00
$5,500.00
$1.0,000.00,
$198,000.00.
$75,000.00.
$100,000.00
$750,000.00
$2,219,076.00
$443,815.20'
$363,750.00
$3,026,641.20
River Road (40th Avenue to 34th Avenue)
Option 2 Roundabout
ITEM DESCRIPTION UNIT
SPCC PLAN LS
MOBILIZATION (8%) LS
PROJECT TEMPORARY TRAFFIC CONTROL LS
QTY
............ ................
UNIT PRICE
PRICE
1
CLEARING AND GRUBBING LS
ROADWAYEXCAVATIONINCL. HAUL CY
TON
ASPHALT TREATED BASE - TON
CRUSHED SURFACING BASE COURSE
HOT MIX ASPHALT CL. 1/2 IN. PG 64-28
CEMENT CONCRETE TRAFFIC CURB AND GUTTER
TON
LF
CEMENT CONCRETE SIDEWALK SY
CEMENT CONCRETE SIDEWALK RAMP
CRUSHED SURFACING TOP COURSE
EA
TON
COMMERCIAL APPROACH EA
STORM DRAINAGE LF
ILLUMINATION SYSTEM, COMPLETE
LS
REPAIR OR REPLACEMENTFA
34TH AVENUE AND FRUITVALE SIGNAL EA
34TH AVENUE AND FRUITVALE ROUNDABOUT
SUB TOTAL
CE AND CONTINGENCIES
EA
1
1
$500.00
$224,376.00
$150,000.00
$25,000.00
6,150
6,250
2,135
1,100
2,720
2,100
5
$15.00
$20.00
$90.00
$100.00
$40 00
$50.00
$1.500.00
220
2
$25.00
$5,000.00
1„980
1
$100.00
$75,000.00
$100,000.00
1
$0.00
$500.00
$224,376.00
$150,000.00
$25,000.00
$92,250.00
$125,000.00'
$192,150.00
$110,000.00
$108,800.00=
$105,000.00:
$7,500.00
$5,500.00
$10,000.00
$198,000.00
$75,000.00'
$100,000.00;
$0.00'
$1,500,,000.00 $1,500,000.00
$3,029,076.00
$605,815.20
RIGHT OF WAY SF 36,375 $10.00 $363,750.00
TOTAL BID
$3,998,641.20'
Yakima Transit
City of Yakima, Transit Division
Yakima Transit ......... 575-6175
Dial -A -Ride ............. 575-6054
Transit Administration.. 575-6005
Date: August 18, 2016
From: Kevin Futrell, Transit Project Planner
To: Scott Schafer, Public Works Director; Alvie Maxey, Transit Manager ; Ken Wilkinson, Parks & Rec
Manager
Subject: Bus Service to the proposed aquatics center
Service
At peak service, Yakima Transit has four routes that operate near the proposed aquatics center with two
of the routes operating hourly and the other two routes operating on the half hour (X Route) for a total
of 66 trips during peak days.
Mon -Fri 6am - 7pm - Routes 3, 4, 7, 7X, 9, & 9X
Saturdays 9am - 6pm - Routes 3, 4, 7, & 9
Sundays 8am - 4pm - Routes 3 & 9
All of Yakima Transit's routes connect up to the Downtown Transit Center at 4th Street and Walnut.
Fares and Passes
The following is Yakima Transit's fare and pass rates:
Adult passengers pay $1.00 per one-way trip or $25 for a monthly pass.
Youth passengers over the age of 6 pay $0.75 per one-way trip or $18 for a monthly pass.
Reduced Fare passengers pay $0.50 per one-way trip or $9 for a monthly pass.
Children age 6 or under ride free.
Current Programs
During the summers, Yakima Transit has
been cooperating with the Yakima Parks
and Recreation Department for the
Summer Bus Rides to the Pools
program. For that program, when an
individual pays full admission to use the
pool, they get two free tickets to ride
Yakima Transit to or from either Lions or
Franklin Pools. The program could be
extended to the proposed aquatics
center. In 2016, the number of rides
provided as part of this program were
1,649. Participants can ride from anywhere in Yakima where transit services are provided.
Yakima Transit provides more than 1 million rides on the bus system per year, the current program's
15-1039
er
Bus Rides
to the Pools!
Good for
1 FREE BUS RIDE
for 1 person to/from
o, Lions Pool or
Franklin Pool
Good arowrr 8/31/15
r. No Cosh Value
�»
Good for
1 FREE BUS RIDE
for 1 person to/from
M Lions Pool or
o Franklin Pool
v1 Good a RXigh 8131115
No Cash Volvo
Where
financial impact is minimal. The aquatic center is proposed to be open year round and will have a
slightly larger impact.
Exhibit A: Bus Routes Near the Proposed Aquatics Center
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PARTIES:
OPERATING AGREEMENT
EFFECTIVE DATE: 00 �7 , 2015
CITY OF YAKIMA,
a Washington municipal corporation
129 North 2nd Street
Yakima, Washington 98901
(referred to in this Agreement as the "City")
YOUNG MEN'S CHRISTIAN ASSOCIATION OF YAKIMA
(d/b/a YAKIMA FAMILY YMCA),
a Washington nonprofit corporation
5 North Naches Avenue
Yakima, Washington 98901
(referred to in this Agreement as the "YMCA")
BACKGROUND. See the Recitals set forth in the Master Agreement.
AGREEMENT. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY
ACKNOWLEDGED, THE UNDERSIGNED PARTIES AGREE AS FOLLOWS:
1. Definitions. Unless the context clearly indicates another meaning and except for terms defined in
this Agreement, all capitalized terms used in this Agreement have the same meaning given to said
terms in the Development Agreement and Ground Lease. The following terms, when used in this
Agreement, have the following meanings, unless the context clearly indicates another meaning:
1.1 "Annual Capital Improvements Budget" means and refers to the annual Capital
Improvement budget jointly approved by the YMCA and the City under Section 7.2
below for the estimated annual Capital Improvement Expenditures for the Aquatic
Center.
1.2 "Annual Operating Budget" means and refers to the annual operating budget jointly
approved by the YMCA and the City under Section 7.2 below for the estimated annual
Gross Operating Revenue and Gross Operating Expenses for the Aquatic Center.
1.3 "Applicable Laws" means and refers to all statutes, regulations, ordinances, and other
laws applicable to the operation of the Aquatic Center.
1.4 "Aquatic Center" means and refers to the "Aquatic Center" described in Section 2 of the
Development Agreement.
1.5 "Capital Improvements" means and refers to (a) all additions to and replacements of the
Aquatic Center's FF&E; (b) all repairs, restorations, and alterations to the Aquatic Center
facility and the Aquatic Center's FF&E that have a useful life equal to or greater than
three (3) years; (c) fifty percent (50%) of all additions to and replacements of the
Common Areas' FF&E; and (d) fifty percent (50%) of all repairs, restorations, and
alterations to the Common Area facilities and the Common Areas' FF&E that have a
useful life equal to or greater than three (3) years.
Operating Agreement 1
1.6 "Capital Improvement Expenditures" means and refers to the cost of all Capital
1 mprovements.
1.7 "Capital Improvement Reserve Funds" has the meaning given to said words in Section
7.4(c) below.
1.8 "Common Areas" means and refers to the Other Facility's public entryways (both interior
and exterior), reception desk, lobby area, public restrooms, and the locker rooms and
parking lot(s) (except for the Existing Parking Lot) that jointly serve the Aquatic Center
and Other Facility, all of which will be commonly used for access, reception services,
program registration/payments, locker room uses, gathering/waiting, and parking by
persons who use the Aquatic Center and/or the Other Facility.
1.9 "City Manager" means and refers to the duly appointed City Manager for the City of
Yakima.
1.10 "Development Agreement" means and refers to the Development Agreement dated even
herewith by and between the City and the YMCA in connection with the development of
the Aquatic Center to be constructed by Tenant on a portion of the property leased under
the Ground Lease and all future amendments to said Development Agreement (if any).
1.11 "Due Diligence Contingency" has the meaning given to said words in Section 2.1 of the
Ground Lease.
1.12 "Existing Parking Lot" has the meaning given to said words in Section 6.3 of the Ground
Lease.
1.13 "FF&E" means and refers to furniture; furnishings; computer, entertainment, and other
equipment; finishes; wall and floor coverings; tiling, piping; and fixtures.
1.14 "Funding Contingency" has the meaning given to said words in Section 2.2 of the
Ground Lease.
1.15 "Fiscal Year" means and refers to the time period running from September 1st through
August 31st, which constitutes the YMCA 's existing fiscal year time period.
1.16 "Gross Operating Expenses" means and refers to all expenses incurred by the YMCA in
the management and operation of the Aquatic Center during the Term of this Agreement,
including, but not limited to, the following:
(a) Labor for the operation of the Aquatic Center, including, but not limited to,
salaries (including for the Aquatic Center's Aquatic Director), wages, employee
benefits, retirement plans, payroll taxes, training costs, and other reasonable
employment expenses;
(b) Labor needed to staff the Common Area reception area with an employee during
all hours of Aquatic Center operation, including, but not limited to, salaries,
wages, employee benefits, retirement plans, payroll taxes, training costs, and
other reasonable employment expenses;
(c) Inventories and supplies consumed in the operation of the Aquatic Center,
including, without limitation, chemicals and office supplies;
Operating Agreement 2
(d) Cleaning costs, whether by YMCA staff or third party contractors;
(e) Promotional costs for the Aquatic Center, including, without limitation,
brochures, printing costs, and advertising;
(0 Utility charges for the Aquatic Center;
(g) Insurance costs for the coverage required under this Agreement;
(h) The cost of all applicable and required taxes, and licenses, permits;
(i) The cost of (a) maintaining the Aquatic Center and its FF&E and (b) all repairs
and alterations to the Aquatic Center and its FF&E that have a useful life less
than three (3) years;
(j) Technical consultants, operational experts, and professional services for
specialized services in connection with non -routine Aquatic Center work;
(k) A reasonable reserve for uncollectible accounts receivable;
(1) Fifty percent (50%)' of the expenses incurred by the YMCA in the management
and operation of the Common Areas, including, but not limited to, costs incurred
by the YMCA in operating, maintaining, and repairing (i) the Common Areas'
publicly accessible parking lot(s) and exterior entryway/walkway surfaces,
striping, lighting, security, signage, and landscaping that jointly serve the Aquatic
Center and Other Facility; and (ii) the locker rooms, interior
entryways/walkways, reception desk, lobby area, and public restrooms and that
jointly serve the Aquatic Center and Other Facility;
(m) Fifty percent (50%) of the cost of (a) maintaining the Common Areas and its
FF&E and (b) all repairs and alterations to the Common Areas and its FF&E that
have a useful life less than three (3) years; and
(n) An administrative charge equal to fifteen percent (15%) of all other Gross
Operating Expenses to cover the estimated cost of executive and other overhead
charges associated with the operation and management of the Aquatic Center.
1.17 "Gross Operating Revenue" means and refers to all revenue received from the following
sources of income:
(a) The fees charged by the YMCA for public use of the Aquatic Center;
(b) The fees charged by the YMCA for public and/or YMCA member participation
in the Aquatic Center's programs (e.g., swim lessons, lifeguard trainings, aquatic
exercise classes, pool rentals, and birthday pool parties);
(c) One percent (1%) of all YMCA member dues; and
(d) Proceeds from business interruption insurance.
The undersigned parties expressly confirm that the term "Gross Operating Revenue"
excludes all other revenue, including, without limitation, revenue from the sale of
concessions and merchandise in or about Common Areas, charitable donations to the
YMCA, YMCA membership dues, and rent from the sublease of any portions of the
Other Facility. Moreover, "Gross Operating Revenue" shall be net of rebates, credits,
and/or refunds.
1.18 "Ground Lease" means and refers to the Ground Lease dated even herewith by and
between the City as "Landlord" and the YMCA as "Tenant" for the YMCA's lease of the
' The City and the YMCA intend for the City to be responsible for twenty-five percent (25%) of the costs associated
with the management and operation of the Common Areas. Accordingly, half of said costs are included as Gross
Operating Expenses, which in turn are split equally between the YMCA and the City under Section 7.3 below.
Operating Agreement 3
property on which the YMCA intends to construct the Aquatic Center under the
Development Agreement and all future amendments to said Ground Lease (if any).
1.19 "Initial Budget" means and refers to the initial budget jointly approved by the YMCA and
the City under Section 7.1 below for the estimated (a) Pre -Operating Expenses for the
Aquatic Center and (b) Gross Operating Revenue and Gross Operating Expenses for the
Aquatic Center from the Opening Date through the first occurring August 31st following
the Opening Date.
1.20 "Master Agreement" means and refers to the Master Agreement dated even herewith by
and between the City and the YMCA and all future amendments to said Master
Agreement (if any). This Lease is entered into pursuant to the Master Agreement and the
recitals and all other terms set forth in the Master Agreement are part of, incorporated
into, and constitute a part of this Agreement as if set forth in full herein.
1.21 "Monthly CAPEX Reports" has the meaning given to said words in Section 7.4(b) below.
1.22 "Monthly Financial Reports" has the meaning given to said words in Section 7.3(b)
below.
1.23 "Opening Date" means and refers to the date on which the Aquatic Center opens for
public use.
1.24 "Operating Deficit" means and refers to the amount of Gross Operating Expenses in
excess (if any) of Gross Operating Revenue for each calendar month during the Term of
this Agreement after the Opening Date.
1.25 "Operating Surplus" means and refers to the amount of Gross Operating Revenue in
excess (if any) of Gross Operating Expenses for each calendar month during the Term of
this Agreement after the Opening Date.
1.26 "Operating Standards" has the meaning given to said words in Section 5.2 below.
1.27 "Other Facility" means and refers to the "Other Facility" described in Section 2 of the
Development Agreement.
1.28 "Pre -Opening Expenses" has the meaning given to said words in Section 7.1 below.
1.29 "Proposed Budgets" has the meaning given to said words in Section 7.2(a) below.
1.30 "Purpose" has the meaning given to said word in Section 3 below.
1.31 "RCO Contingency" has the meaning given to said words in Section 2.3 of the Ground
Lease.
1.32 "Term" has the meaning given to said word in Section 4 below.
1.33 "YMCA/City Agreement" means and refers to this Agreement (i.e., the Operating
Agreement), the Development Agreement, the Ground Lease, and the Master Lease.
2. Contingencies and Other Agreements.
Operating Agreement 4
2.1 Contingencies. The YMCA's and the City's respective obligations under this Agreement
are each contingent on and subject to the satisfaction of the Due Diligence, Funding, and
RCO Contingencies. Subject to the provisions of Section 12.14 below (i.e., the
"Survival" clause), and except as otherwise expressly provided in this Agreement, in the
event the Ground Lease is terminated as permitted under Section 2.1, 2.2, or 2.3 of the
Ground Lease as a result of the non -satisfaction of the Due Diligence Contingency,
Funding Contingency, or RCO Contingency, this Agreement will automatically terminate
when the Ground Lease terminates, and neither party to this Agreement will have any
further rights, duties, and obligations hereunder.
2.2 Development Agreement and Ground Lease. This Agreement is subject to and together
with the terms of the Development Agreement and Ground Lease and the undersigned
parties' respective rights and obligations thereunder. In the event of a conflict between
the provisions of said three documents, the terms of this Operating Agreement shall
prevail.
3. Purpose. During the Term of this Agreement, the YMCA and the City intend for the Aquatic
Center to serve as a safe, fun, and healthy destination for the entire Yakima community that
provides a host of recreational, fitness, and therapeutic opportunities and programs through new
aquatic facilities and programming that will be offered therein (the Aquatic Center's "Purpose").
4. Term. The undersigned parties intend for the relationship, rights, and obligations established in
this Agreement to apply and be in effect during the entire "Term" under the Ground Lease,
including, without limitation, the "Initial Term" and each "Extended Term" under the Ground
Lease. Accordingly, subject to the Due Diligence, Funding, and RCO Contingencies, the "Term"
of this Agreement will be concurrent with and equal to the "Term" of the Ground Lease as set
forth in Sections 3.1, 3.2, and 3.3 of the Ground Lease.
4.1 Effect of Expiration. Unless the YMCA and the City agree otherwise in writing, upon
the expiration of the Term of this Agreement (i.e., the expiration of the "Term" of the
Ground Lease), this Agreement will terminate and the improvements associated with the
Aquatic Center and the Other Facility shall revert to the City as described in the Ground
Lease.
4.2 Pre -Expiration Discussions. Notwithstanding the foregoing, but without committing
either party to any particular action, before the expiration of the Term of this Agreement
(i.e., the expiration of the "Term" of the Ground Lease), the YMCA and the City will
discuss and consider their respective interests in and the possibility of extending the Term
of this Agreement and the Ground Lease for an additional period of time and/or entering
into new agreements for the continued lease of the premises and joint management and
operation of the Aquatic Center or some new similar facility.
5. Management and Operations. During the Term of this Agreement, the Aquatic Center will be
managed and operated by the YMCA in accordance with the following, and all other, provisions
of this Agreement:
5.1 Managerial Discretion. Except as otherwise provided in this Agreement (e.g., see
Sections 6.1 and 6.2 below), the YMCA will have discretion and control in all matters
relating to the management and operation of the Aquatic Center, including, without
limitation, staffing decisions, employment policies, procurement of and payment for
Operating Agreement 5
inventories, supplies, services, repairs, and maintenance decisions. The City and the
YMCA shall cooperatively coordinate and determine appropriate Aquatic Center
programming and use as more fully described in Sections 6.1 and 6.2, below.
5.2 Operating Standards. The YMCA will operate and maintain the Aquatic Center in
accordance with its Purpose and the following "Operating Standards":
(a) In a commercially clean, attractive, first rate, safe, and habitable condition;
(b) In good repair and proper working order;
(c) In compliance with all Applicable Laws;
(d) In a manner intended to prevent and minimize closures;
(e) In a manner consistent with industry standards for facilities of similar size and
scope to the Aquatic Center that are located elsewhere in Washington state;
provided, however, the YMCA, from time -to -time, may reasonably adjust the
Aquatic Center's manner of operations away from applicable industry standards
based on (i) the demand for services at the Aquatic Center and (ii) when needed
to promote the efficient use and operation of the Aquatic Center and/or the
Aquatic Center's Purpose; and
(f) Subject to holidays and closures necessary for repairs, maintenance, safety, acts
of God, emergencies, and other similar circumstances, the Aquatic Center will
maintain the following minimum normal hours of operation (subject to the
YMCA's right, in the YMCA's discretion, to expand to additional hours of
operation):
Monday through Friday 6.00 a.m. - 9.00 p in.
Saturday 7.00 a.m. - 7.00 p m.
Sunday 12.00 p m. - 6:00 p.m.
5.3 Maintenance, Repair, and Replacement. During the Term of this Agreement, the
YMCA (subject to the YMCA's and the City's obligations under this Agreement with
regard to Capital Improvement Expenditures and operating expenses and the City's
obligations under the Ground Lease with regard to the Existing Parking Lot) will
maintain the Aquatic Center and Common Areas in accordance with the Operating
Standards set forth in Section 5.2 above and will make all maintenance and repairs
thereto that are reasonably necessary for said purpose in accordance with a written
maintenance and repair schedule, including, but not limited to, the following:
• Maintain the Common Areas' parking lot(s) and exterior entryway/walkway
surfaces, striping, lighting, security, signage, and landscaping;
• Maintain the interior entryways/walkways, reception desk, lobby area, and public
restrooms;
• Maintain the pools, public locker rooms, and other aquatic facilities; and
• Maintain the Aquatic Center's and Common Areas' equipment and HVAC,
filtration, and other building systems.
Operating Agreement 6
Notwithstanding the foregoing, when and as said equipment and other components and
FF&E of the Aquatic Center and Common Areas become worn out or obsolete, or if it is
not commercially reasonable to continue to maintain and/or repair said items, said
equipment and other components and FF&E will be replaced by the YMCA (subject to
the YMCA's and the City's shared obligations under this Agreement with regard to
Capital Improvement Expenditures and operating expenses).
5.4 Insurance.
(a) Insurance Coverage. Subject to the YMCA's right to purchase and maintain
additional insurance coverage the YMCA reasonably deems necessary in
connection with the operation and management of the Aquatic Center, during the
Term of this Agreement, the YMCA will purchase and maintain the following
minimum insurance coverage:
• Commercial General Liability insurance that insures against claims for
bodily injury, personal injury, death, and property damage occurring in,
on, or about the Aquatic Center, with limits of not less than $2,000,000
per occurrence and $4,000,000 general aggregate. The insurance policy
required under this paragraph must be endorsed to name the City as an
additional insured on a primary basis without the right of contribution.
• "Special Form" property insurance on the Aquatic Center and its
contents for their full replacement value, together with business
interruption coverage. Unless the YMCA and the City agree otherwise
in writing, any proceeds from the insurance policy required under this
paragraph will be used to repair, restore, and/or replace the Aquatic
Center and its contents.
• Business Auto Liability insurance covering all owned, hired, and non -
owned automobiles for bodily injury, personal injury, death, and property
damage with limits of liability not less than $1,000,000 Combined Single
Limit. The insurance policy required under this paragraph must be
endorsed to name the City as an additional insured on a primary basis
without the right of contribution.
• Employer's Liability/Washington Stop Gap insurance with a limit of
liability not less than $1,000,000 each accident, each employee, and by
disease.
(b) Policies and Certificates of Insurance. The YMCA will furnish the City with
copies of the insurance policies required under this Section 5.4 and certificates of
insurance for said policies that evidence (i) said insurance has been purchased
and is in full force and effect as required hereunder and (ii) said insurance
policies may not be cancelled or amended unless twenty (20) days' prior written
notice of the proposed cancellation or amendment has been given to the City at
the City's designated address for notices under this Agreement.
(c) Waiver of Subrogation Rights. The YMCA and the City each waive any and
all rights of recovery against the other, or against the directors, officers,
Operating Agreement 7
employees, and agents of the other, for all losses of or damage to such waiving
party, property, or property of others under its control, where such Toss or
damage is insured against under any insurance policy in force at the time of such
loss or damage. The YMCA will, upon obtaining the policies of insurance
required hereunder, give notice to the insurance carriers of the mutual waiver of
subrogation contained in this paragraph.
(d) Gross Operating Expenses. During the Term of this Agreement, the cost of
insurance purchased and maintained for coverage on and in connection with the
Aquatic Center portion of the premises and any deductible the YMCA becomes
obligated to pay in connection therewith in the event of a claim, loss, or damage
associated with the Aquatic Center that triggers a defense and/or coverage under
such insurance will constitute a Gross Operating Expense under this Agreement
and be included in and subject to the reimbursement obligations set forth in
Section 7.3 below.
5.5 Delegation. The YMCA is permitted to delegate to or subcontract with third parties for
the performance of duties that are ancillary to the YMCA's management obligations
under this Agreement.
5.6 Utility Meters. All utilities will be separately metered between the Aquatic Center and
the Other Facility.
6. Use and Programming.
6.1 Use of Aquatic Center. During the Term of this Agreement, the Aquatic Center during
all times of operation and for all programs conducted therein will be made available for
use and participation by the public on a fee -per -use basis in accordance with the same
rules, policies, and hours of use as the Aquatic Center and its programs are made
available by the YMCA for the YMCA's members. The fees charged by the YMCA for
public (i.e , non -YMCA member) use of the Aquatic Center and participation in the
Aquatic Center's programs will be set by the YMCA after consultation with the City and
must be commercially reasonable in amount and generally consistent with the fees for
public use charged by facilities of similar size and scope to the Aquatic Center that are
located elsewhere in Washington state for the corresponding use and program
participation.
6.2 Programming. Prior to April 1st of each calendar year during the Term of this
Agreement, the City shall submit to the YMCA the City's reasonably requested
programs, special events, and schedule dates for general public use of the Aquatic Center
for addition to the Aquatic Center's program calendar for the following calendar year.
The YMCA shall consider and address the City's requested Aquatic Center program use
schedule when preparing the upcoming calendar year's program schedule. The City shall
have the opportunity to review and comment on the final proposed annual program
schedule to ensure public access and use of the Aquatic Center is a primary objective and
that public availability and participation requirements under Section 6.1 above are met.
The Aquatic Center shall be managed and operated as a not-for-profit institution available
to the general public without discrimination as to age, race, creed, religion, sex, marital
status, national origin, political affiliation, physical handicap, or ancestry.
7. Financial Terms.
Operating Agreement 8
7.1 Pre -Opening Expenses and the Initial Budget.
(a) Pre -Opening Expenses. The City acknowledges that in addition to the
construction costs incurred by the YMCA in the development and construction of
the Aquatic Center, the YMCA will also incur certain non -construction
operational expenses in preparing the Aquatic Center for the Opening Date. Said
expenses include, but are not necessarily limited to, salary and benefits for the
Aquatic Center's Aquatic Director (who will need to be hired at a reasonable
period of time in advance of the Opening Date); recruitment, wages and training
for Aquatic Center staff; purchasing chemicals, supplies, and program
equipment; calibrating and testing the Aquatic Center's water, equipment, and
systems; utility charges; pre -opening promotional costs; and other costs
incidental to the preparation and organization of the Aquatic Center's operations
prior to the Opening Date. The City will share equally with the YMCA in all
reasonable non -construction operational expenses incurred in preparing and
organizing the Aquatic Center for the Opening Date (the "Pre -Opening
Expenses") and will reimburse the YMCA for fifty percent (50%) of the same in
accordance with procedures substantially similar to the post -Opening Date
reimbursements under Section 7.3 below.
(b) Initial Budget. Within ninety (90) days of the satisfaction of the Due Diligence,
Funding, and RCO Contingencies, the YMCA will prepare and submit to the City
Manager a proposed Initial Budget. The proposed Initial Budget must (1) set
forth the YMCA's forecast of anticipated Pre -Opening Expenses and Gross
Operating Revenue, Gross Operating Expenses, and Capital Improvement
Expenditures for the Aquatic Center for the period running from the Opening
Date through the first occurring July 31st after Opening Date; and (2) be
prepared in accordance with (i) the YMCA's internal planning and budgeting
process and (ii) a commercially reasonable degree of detail and specificity.
Following the YMCA's submission of the proposed Initial Budget to the City
Manager, representatives designated by the YMCA and the City Manager who
are familiar and involved with the YMCA's and the City's respective budgeting
processes will meet to discuss and review the proposed Initial Budgets when and
as needed to reach joint approval of final Initial Budget for the Aquatic Center at
least nine (9) months before the anticipated Opening Date. The YMCA and the
City will confer in good faith to reconcile all differences with regard to said
budgeting process.
7.2 Budgets.
(a) Annual Budgeting Process. With exception to the Initial Budget described in
Section 7.1 above, each year on or before July 1st, the YMCA will prepare and
submit to the City Manager a proposed Annual Operating Budget and a proposed
Annual Capital Improvements Budget for the Aquatic Center for the upcoming
Fiscal Year (i.e., September 1st through August 31st) (collectively the "Proposed
Budgets").
The Proposed Budgets must (1) set forth the YMCA's forecast of anticipated
Gross Operating Revenue, Gross Operating Expenses, and Capital Improvement
Operating Agreement 9
Expenditures for the Aquatic Center for the upcoming Fiscal Year; and (2) be
prepared in accordance with (i) the YMCA's internal planning and budgeting
process and (ii) a commercially reasonable degree of detail and specificity.
Each year, following the YMCA's submission of the Proposed Budgets to the
City Manager, representatives designated by the YMCA and the City Manager
who are familiar and involved with the YMCA's and the City's respective
budgeting processes will meet to discuss and review the Proposed Budgets. The
City and the YMCA will reach joint approval of final Annual Operating and
Capital Improvements Budgets for the Aquatic Center at least fifteen (15) days
before the commencement of each Fiscal Year. The YMCA and the City will
confer in good faith to reconcile all differences with regard to the annual
budgeting process.
It is acknowledged and confirmed that the Initial Budget and each Annual Budget
thereafter must include, contemplate, and provide for the payment of expenses,
including, without limitation, Capital Improvement Expenditures, sufficient to
cover and satisfy the Operating Standards and all other obligations for the
management and operation of the Aquatic Center under this Agreement in
accordance with the Aquatic Center's anticipated usage.
In the event the YMCA and the City are unable to timely approve the Initial
Budget or an Annual Operating Budget and/or an Annual Capital Improvements
Budget under this Section, either party may compel the other party to participate
in mediation for the purpose of resolving the budgetary impasse. The mediator
for any such mediation must be mutually agreed upon and jointly appointed by
the YMCA and the City, with the mediator's cost to be shared equally by the two
parties. The mediation will be held in Yakima, Washington and conducted as
soon as reasonably possible after mediation is compelled with attention given to
the time -sensitive nature of the budgetary impasse. In the event the parties are
unable to agree upon a mediator, a mediator will be appointed by the Presiding
Judge for the Superior Court of Yakima County.
Until a new Annual Budget is approved, the YMCA will continue to operate and
manage the Aquatic Center in its customary manner in keeping with the Aquatic
Center's historical and ordinary practices and activities, with use of the Aquatic
Center's most recently approved Annual Operating Budget as a guide until the
contested budget(s) is/are jointly approved by the YMCA and the City under this
Section.
(b) Budget Variances. The YMCA and the City acknowledge that the Initial
Budget and each subsequent Annual Operating and Capital Improvement Budget
will only represent estimates for the Aquatic Center's annual revenues and
expenses from year -to year and that the Aquatic Center's actual revenues and
expenses may vary from the Initial and Annual Operating and Capital
Improvement Budgets for reasons beyond the reasonable control of the YMCA.
Nevertheless, the YMCA will act in good faith at all times in the operation of the
Aquatic Center and shall use commercially reasonable efforts to operate the
Aquatic Center in accordance with the approved Initial and Annual Operating
and Capital Improvement Budgets, and shall only stray from such budgets when
required by emergency, unexpected events, or to satisfy the YMCA's Operating
Operating Agreement 10
Standards and other obligations under this Agreement. Accordingly, while the
YMCA will use commercially reasonable efforts to adhere to the Initial and
Annual Operating and Capital Improvement Budgets, variances in the Aquatic
Center's estimated revenues and expenses are anticipated and the City will
remain obligated to participate in and contribute toward the City's obligations
when and as set forth in this Agreement even if said contributions are larger than
contemplated in the applicable budget.
7.3 Operations.
(a) Generally. The YMCA is obligated to operate the Aquatic Center in accordance
with the terms and conditions set forth in this Operating Agreement. The City is
obligated to reimburse the YMCA for fifty percent (50%) of all annual Operating
Deficits under this Agreement in connection with the Aquatic Center incurred by
the YMCA during each Fiscal Year during the Term of this Agreement.
(b) Invoice and Payment Procedures. After the Opening Date, within thirty (30)
days after the end of each calendar month, the YMCA will submit financial
reports to the City that summarize the Gross Operating Revenue and Gross
Operating Expenses incurred by the YMCA in the operation and management of
the Aquatic Center during the preceding calendar month (the "Monthly Financial
Reports"). The Monthly Financial Reports will set forth and compare the
Aquatic Center's actual revenues and expenses with the budgeted revenues and
expenses for the applicable time period on both monthly and year-to-date bases.
The Monthly Financial Reports will be accompanied by an invoice from the
YMCA for 50% of any Operating Deficit incurred by the YMCA during the
applicable month. The City will remit full payment for all such invoices within
twenty (20) days of receipt.
In the event of an Operating Surplus for a particular month, 50% of the Operating
Surplus would be credited to the YMCA's required operating reserve and 50%
would be credited to the City's required operating reserve.
(d) Operating Reserve Fund. Throughout the Term of this Agreement, the YMCA
and the City shall each separately maintain operating reserve funds to prepare for
and offset periods when operating expenditures exceed anticipated revenue for
the Aquatic Center.
7.4 Capital Improvements.
(a) Generally. The City is obligated to reimburse the YMCA for fifty percent
(50%) of all annual Capital Improvement Expenditures (as defined under Section
1.6 above) incurred by the YMCA during each Fiscal Year during the Term of
this Agreement. Except when needed to keep the Aquatic Center safe, habitable,
in good repair and proper working order, and in compliance with all Applicable
Laws, the City will not be obligated to reimburse the YMCA for any Capital
Improvement Expenditure not included in the Initial Budget or an Annual Budget
unless and until the Capital Improvement Expenditure is approved by the City.
(b) Invoice and Payment Procedures. After the Opening Date, within thirty (30)
days after the end of each calendar month, the YMCA will submit financial
Operating Agreement 11
reports to the City that summarize the Capital Improvement Expenditures
incurred by the YMCA in the operation and management of the Aquatic Center
during the preceding calendar month (the "Monthly CAPEX Reports"). The
Monthly CAPEX Reports will set forth and compare the Aquatic Center's actual
Capital Improvement Expenditures with the budgeted Capital Improvement
Expenditures for the applicable time period on both monthly and year-to-date
bases. The Monthly CAPEX Reports will be accompanied by an invoice from
the YMCA for 50% of all Capital Improvement Expenditures incurred by the
YMCA during the applicable month. The City will remit full payment for all
such invoices to the extent due and owing under this Agreement within twenty
(20) days of receipt.
(c) Capital Replacement/Refurbishing Plan. The YMCA shall develop a capital
replacement and refurbishing plan for all FF&E and major systems for the
Aquatic Center and Common Areas that will be subject to review and approval
from time to time by the City as part of the budgeting processes set forth in this
Agreement. The capital replacement and refurbishing plan will outline the
YMCA's and the City's joint priorities and plans for Capital Improvements over
the upcoming years, serve as guide during the Annual Capital Improvements
Budgeting process, and aid the City and the YMCA in making timely Capital
Improvements to ensure the Aquatic Center and Common Areas remain in
compliance with the Operating Standards set forth in Section 5.2 above.
Commencing in the fifth (5th) year after the Opening Date and again on a
periodic basis no less frequently than every five (5) years, the YMCA, as a Gross
Operating Expense, will hire a professional consultant experienced in inspecting
and assessing aquatic center facility FF&E and major systems to produce a report
in which the consultant will make recommendations concerning the Aquatic
Center and Common Areas' then -current and anticipated upcoming Capital
Improvement needs in order to remain in compliance with the Operating
Standards set forth in Section 5.2 above. Said report will guide the YMCA and
the City in the preparation and maintenance of the above-described replacement
and refurbishing plan.
(d) Capital Improvement Reserve Funds. In anticipation of Capital Improvements
that will be needed to maintain the Aquatic Center and Common Areas in
compliance with the Operating Standards set forth in Section 5.2 above and to
ensure both the YMCA and the City have a source of readily available funds to
pay Capital Improvement obligations as they become needed, the YMCA and the
City will each create and maintain separate Capital Improvement Reserve Funds
into which they will each annually contribute $40,000.00 until such time as their
respective Funds hold $1,000,000.00 (in which event additional funds will not
have to be placed in the respective Capital Improvement Reserve Funds except to
fill the funds back up to the $1,000,000.00 cap when and as money is drawn out
of the Funds to cover Capital Improvement costs). The money held in the
separate Capital Improvement Reserve Funds will remain owned and controlled
by the separate parties; provided, however, each party may withdraw money from
said Funds only when and as needed to meet and pay for Capital Improvement
obligations under this Agreement. Upon request, each party will provide the
other party with reasonable written evidence of the establishment of said party's
Capital Improvement Reserve Fund and compliance with the requirements of this
paragraph (e.g., the annual deposit of $40,000.00 into the Fund and the
Operating Agreement 12
withdrawal of money from the Fund only when and as needed to pay for Capital
Improvement obligations under this Agreement). Eachparty will deposit its first
$40,000.00 into its separate Capital Improvement Reserve Fund on or before the
first annual anniversary of the Opening Date and again annually on or before
each subsequent annual anniversary of the Opening Date. It is expressly
acknowledged and agreed that each party's obligation to pay its share of Capital
Improvements under this Agreement is in no way limited by the amount of
money held in said party's Capital Improvement Reserve Funds, but instead that
the Capital Improvement Reserve Funds required under this paragraph are merely
intended to serve as a planning tool to aid the parties in preparing for their
Capital Improvement obligations as they arise under this Agreement.
7.5 Quarterly Reports. No more frequently than four times per year (quarterly, unless the
YMCA agrees otherwise), on dates and at times mutually convenient for the YMCA and
the City Manager, the YMCA will meet with the City Manager and provide written report
summaries and in-person updates on the status of the Aquatic Center's financial
performance, usage, and programs.
7.6 Books & Records; Audit Rights. The YMCA shall keep and maintain books and records
that reflect the YMCA's management and operation of the Aquatic Center under this
Agreement, including, without limitation, copies of purchase orders, invoices,
correspondence, receipts, vouchers, memoranda, and other documentation that
memorialize the Gross Operating Revenue, Gross Operating Expenses, and Capital
Improvement Expenditures incurred by the YMCA hereunder and used to calculate
Operating Surpluses and Deficits. All such books and records must be kept and be
available at the YMCA's administrative offices, and may be kept in paper and/or
electronic form; provided, however, the YMCA is not required to keep or maintain any
books or records under this paragraph (either in paper or electronic form) for longer than
six (6) years after their respective creation.
The City, at the City's sole expense and at all times throughout the Term of this
Agreement and for the six (6) years following the termination of this Agreement, has the
right to audit, examine, and take copies during normal working hours at the YMCA's
administrative offices of all books and records the YMCA is obligated to keep and
maintain under the preceding paragraph.
7.7 Audited Financial Statements. Each year during the Term of this Agreement, within
one hundred eighty (180) days of the close of the YMCA's Fiscal Year, the YMCA will
prepare and submit to the City an annual financial statement. The annual financial
statement must be prepared in accordance with generally accepted accounting principles
and include a supplemental schedule, sufficient in detail to permit a reasonable
determination by the City of the annual Gross Operating Revenue, Gross Operating
Expenses, and Capital Improvement Expenditures of the Aquatic Center. The annual
financial statement, at the YMCA's sole expense, must be audited by a licensed or
certified public accountant selected by the YMCA. The scope of the audit, as it relates to
the Aquatic Center, must be sufficient for the accountant to issue the following opinion:
"The information has been subjected to the auditing procedures applied in the audit of the
basic financial statements and is fairly stated in all material respects in relation to the
basic financial statements taken as a whole."
Operating Agreement 13
8. Entry and Inspection. With reasonable prior notice to the YMCA, the City and the City's
authorized representatives may enter and inspect the Aquatic Center during the Aquatic Center's
hours of operation for the purpose of confirming the YMCA's compliance with this Agreement;
provided, however, when entering and inspecting the Aquatic Center, the City may not
unreasonably interfere with or disrupt the activities being conducted in the Aquatic Center. It is
expressly confirmed that the YMCA may keep locked desks and secure files at the Aquatic
Center.
9. Additional/Future Aquatic Facilities. This Agreement pertains to the Aquatic Center described
in Section 2 of the Development Agreement and no other facilities. Should the parties wish to
expand this Agreement to include additional facilities, including, without limitation, an outdoor
pool, the terms of said expansion would have to be negotiated, agreed upon, and set forth in a
signed and acknowledged written amendment to this Agreement.
10. Trade Names. The names "Young Men's Christian Association of Yakima," "Young Men's
Christian Association," "Yakima Family YMCA," "YMCA," "The Y," and any other trade names
used by the YMCA may not be used by the City unless approved by the YMCA and when used
alone or in connection with another work or works and/or the YMCA trademarks, service marks,
symbols, logos, and designs will in all events remain the exclusive property of the YMCA and
nothing contained herein will confer on the City the right to use any of the same.
11. Defaults, Remedies, and Dispute Resolution.
11.1 YMCA Default. In the event the YMCA materially breaches the terms of this
Agreement, the Development Agreement, and/or the Ground Lease and said breach is
not, in whole or in part, caused by the wrongful actions or omissions of the City, the City
may elect and proceed with one of the following EXCLUSIVE remedies, but only if the
City has first given the YMCA written notice of the specific default(s) alleged by the City
and the default(s) is/are not cured by the YMCA within sixty (60) days after said notice is
given (provided, however, if the nature of the default is such that more than sixty (60)
days are required for performance, the City may not act under this Section 11.1 so long as
the YMCA commences performance within said sixty (60) day period and thereafter
diligently prosecutes the same to completion):
(a) Specific Performance. The subject matters of this Agreement, the Development
Agreement, and/or the Ground Lease are unique and, for this reason, it is
stipulated that in the event of an actionable default of this Agreement, the
Development Agreement, and/or the Ground Lease under Section 11.1 above, the
City will have the right to seek equitable relief in the form of specific
performance of this Agreement's, the Development Agreement's, and/or the
Ground Lease's provisions.
(b) Termination. In lieu of seeking specific performance under Section 11.1(a)
above, in the event of an actionable default of this Agreement, the Development
Agreement, and/or the Ground Lease under Section 11.1 above by the YMCA,
the City, with an additional ninety (90) days' prior written notice to the YMCA
of the termination after the expiration of the cure period under Section 11.1
above, is permitted to terminate all (but not less than all) of the YMCA/City
Agreements to the extent any obligations remain owed thereunder. It is
acknowledged and agreed that the City may not terminate one or two of the
YMCA/City Agreements and leave one or two of the YMCA/City Agreements in
Operating Agreement 14
effect (i.e., if one YMCA/City Agreement is terminated, all of the YMCA/City
Agreements must be terminated), in which event the provisions of Section 4.1
above will apply just the same as they would upon the expiration of the Term and
the YMCA would have no obligation to reimburse the City for any of the City's
Financial Contribution made under Section 3 of the Development Agreement.
Notwithstanding the foregoing provisions of this Section 11.1(b), if the City
gives the YMCA written notice that this Agreement, the Development
Agreement, and the Ground Lease are terminated under this Section 11.1(b), the
City refuses to rescind the alleged termination within twenty (20) days after
written request by the YMCA, and it is later ruled by a court of competent
jurisdiction that the City was not entitled to terminate this Agreement, the
Development Agreement, and the Ground Lease under this Section 11.1(b) (e.g.,
it is determined that the YMCA had not materially breached the terms of this
Agreement, the Development Agreement, and/or the Ground Lease; it is
determined that the YMCA had cured the breach within the allowed cure period;
etc.) (a "Wrongful City Termination"), the YMCA will likely suffer damage to
the YMCA's reputation and other harms that will be difficult or impossible to
quantify. Therefore, in the event of a Wrongful City Termination, the City, in
addition to paying the YMCA all costs and attorneys' fees awarded to the YMCA
in the proceeding, will also be obligated to immediately pay the YMCA (as a fair
approximation of the likely harm the YMCA would suffer from the Wrongful City
Termination) liquidated damages in the amount of One Million and No/100 U.S.
Dollars ($1,000,000.00) plus an amount equal to the percentage increase in the
CPI from September 30, 2015, through the September 30th immediately
preceding the date of termination under this Section 11.1(b) multiplied by
$1,000,000.00; provided, however, in no event will an amount due under this
paragraph in the event of a Wrongful City Termination be less than
$1,000,000.00. For example, in the event of a Wrongful City Termination under
this paragraph, if the CPI percentage increase between September 30, 2015, and
the September 30th immediately preceding the date of termination was 10%, the
liquidated damages due under this paragraph would be $1,100,000.00 (i.e.,
$1,000,000.00 plus $100,000 based on the 10% CPI increase).
For purposes of this Section 11.1(b) and Section 11.2(b) below, the term "CPI"
means and refers to the Consumer Price Index for All Urban Consumers (West
Urban - Size B/C) published by the Bureau of Labor and Statistics of the United
States Department of Labor (Base is 1982-84=100). In the event said Index is
not published at the time it is needed under the terms of this paragraph, the
parties will mutually agree upon a substitute index which is comparable to the
Index referred to above. If the parties are unable to agree on a substitute,
comparable index, then the matter of an appropriate substitute and comparable
index to be used to implement the intent of this Section 11.1(b) will be
determined by a court of competent jurisdiction.
11.2 City Default. In the event the City materially breaches the terms of this Agreement, the
Development Agreement, and/or the Ground Lease and said breach is not, in whole or in
part, caused by the wrongful actions or omissions of the YMCA, the YMCA may elect
and proceed with one of the following EXCLUSIVE remedies, but only if the YMCA has
first given the City written notice of the specific default(s) alleged by the YMCA and the
default(s) is/are not cured by the City within sixty (60) days after said notice is given
Operating Agreement 15
(provided, however, if the nature of the default is such that more than sixty (60) days are
required for performance, the YMCA may not act under this Section 11.2 so long as the
City commences performance within said sixty (60) day period and thereafter diligently
prosecutes the same to completion):
(a) Specific Performance. The subject matters of this Agreement the Development
Agreement, and/or the Ground Lease are unique and, for this reason, it is
stipulated that in the event of an actionable default of this Agreement, the
Development Agreement, and/or the Ground Lease under Section 11.2 above, the
YMCA will have the right to seek equitable relief in the form of specific
performance of this Agreement's, the Development Agreement's, and/or the
Ground Lease's provisions.
(b) Termination. In lieu of seeking specific performance under Section 11.2(a)
above, in the event of an actionable default of this Agreement, the Development
Agreement, and/or the Ground Lease under Section 11.2 above by the City, the
YMCA, with an additional ninety (90) days' prior written notice to the City of
the termination after the expiration of the cure period under Section 11.2 above,
is permitted to terminate all (but not less than all) of the YMCA/City Agreements
to the extent any obligations remain owed thereunder. It is acknowledged and
agreed that the YMCA may not terminate one or two of the YMCA/City
Agreements and leave one or two of the YMCA/City Agreements in effect (i.e.,
if one YMCA/City Agreement is terminated, all of the YMCA/City Agreements
must be terminated), in which event the provisions of Section 4.1 above will
apply just the same as they would upon the expiration of the Term; provided,
however, the City would be obligated to pay the YMCA an amount equal to the
fair market value of the Other Facility and other facilities constructed on the
Leased Premises under the Ground Lease and fifty percent (50%) of the Aquatic
Center to compensate the YMCA for the loss of said assets as a result of the early
termination of this Section 11.2(b). Said amounts will be due and owing by the
City to the YMCA within ninety (90) days of the date of termination under this
paragraph. In the event of termination under this Section 11.2(b), the YMCA
would have no obligation to reimburse the City for any of the City's Financial
Contribution made under Section 3 of the Development Agreement.
Notwithstanding the foregoing provisions of this Section 11.2(b), if the YMCA
gives the City written notice that this Agreement, the Development Agreement,
and the Ground Lease are terminated under this Section 11.2(b), the YMCA
refuses to rescind the alleged termination within twenty (20) days after written
request by the City, and it is later ruled by a court of competent jurisdiction that
the YMCA was not entitled to terminate this Agreement, the Development
Agreement, and the Ground Lease under this Section 11.2(b) (e.g., it is
determined that the City had not materially breached the terms of this
Agreement, the Development Agreement, and the Ground Lease; it is determined
that the City had cured the breach within the allowed cure period; etc.) (a
"Wrongful YMCA Termination"), the City will likely suffer damage to the City's
reputation and other harms that will be difficult or impossible to quantify.
Therefore, in the event of a Wrongful YMCA Termination, the YMCA, in
addition to paying the City all costs and attorneys' fees awarded to the City in the
proceeding, will also be obligated to immediately pay the City (as a fair
approximation of the likely harm the City would suffer from the Wrongful YMCA
Operating Agreement 16
Termination) liquidated damages in the amount of One Million and No/100 U.S.
Dollars ($1,000,000.00) plus an amount equal to the percentage increase in the
CPI from September 30, 2015, through the September 30th immediately
preceding the date of termination under this Section 11.2(b) multiplied by
$1,000,000.00; provided, however, in no event will an amount due under this
paragraph in the event of a Wrongful YMCA Termination be Less than
$1,000,000.00.
11.3 Mediation. In the event of a dispute between the YMCA and the City with respect to the
interpretation, implementation, or performance of any obligation under this Agreement,
the Development Agreement, and/or the Ground Lease, the YMCA and the City will
attempt to resolve the dispute through a mediation process before taking action under
Section 11.1(a) -(b) or 11.2(a) -(b) above. The mediator for any such mediation must be
mutually agreed upon and jointly appointed by the YMCA and the City, with the
mediator's cost to be shared equally by the two parties. The mediation will be held in
Yakima, Washington and conducted as soon as reasonably possible after mediation is
compelled, with attention given to the time -sensitive nature of the dispute. In the event
the parties are unable to agree upon a mediator, a mediator will be appointed by the
Presiding Judge for the Superior Court of Yakima County.
12. Miscellaneous Terms.
12.1 Amendments. This Agreement may not be modified or amended except by written
agreement signed and acknowledged by each of the parties hereto.
12.2 No Joint Venture. Nothing contained in this Agreement creates the relationship of
principal and agent or of joint venture between the parties hereto.
12.3 Time is of the Essence. Time is of the essence as to all terms of this Agreement.
12.4 Notices. All notices under this Agreement must be in writing and will be deemed given
to the receiving party when (a) personally delivered to the City Manager for the City of
Yakima (for notices to the City) or personally delivered to the CEO or President of the
Yakima Family YMCA (for notices to the YMCA) or (b) three days after being deposited
in the United States Postal Service by certified mail (with return receipt requested) to the
receiving party at the receiving party's last known address(es).
12.5 Exhibits. There are no attachments to this Agreement except for the Exhibits expressly
referenced in this Agreement, each of which constitutes a part of this Agreement as if set
forth in full herein.
12.6 Headings; Construction. The captions and paragraph headings used in this Agreement
are inserted for convenience of reference only and are not intended to define, limit, or
affect the interpretation or construction of any term or provision of this Agreement. This
Agreement shall not be construed more strictly against one party than the other by virtue
of the fact that one party drafted this Agreement and/or certain clauses contained herein.
It is hereby recognized that both parties to this Agreement and their respective counsel
have had a full and fair opportunity to negotiate and review all terms and provisions of
hereof and to fully contribute to this Agreement's substance and form.
Operating Agreement 17
12.7 Governing Law. This Agreement will be interpreted, construed, and governed by the
laws of the State of Washington.
12.8 Assignment; Binding Effect. Except as expressly provided otherwise herein, neither
party hereto may assign any of its rights or obligations under this Agreement unless the
other party consents thereto in writing, which consent may be withheld for any reason.
Subject to any limitations on assignments provided for in this Agreement, all of the
provisions of this Agreement will inure to the benefit of and be binding on the successors
and assigns of the City and the YMCA.
12.9 Waivers. The failure of either party to seek redress for violation of or to insist upon the
strict performance of any covenant or condition of this Agreement will not prevent a
subsequent act, which would have originally constituted a violation, from having the
effect of an original violation.
12.10 Attorneys' Fees; Venue. In the event of any dispute arising out of or relating to this
Agreement, whether or not suit or other proceedings is commenced, and whether in
mediation, in arbitration, at trial, on appeal, in administrative proceedings, or in
bankruptcy (including, without limitation, any adversary proceeding or contested matter
in any bankruptcy case), the prevailing party will be entitled to its costs and expenses
incurred, including reasonable attorneys' fees. The sole venue for any dispute arising out
of or relating to this Agreement will be in a court of competent jurisdiction in Yakima
County, Washington.
12.11 Counterparts and Copies. This Agreement may be executed in any number of identical
counterparts, with each counterpart having the same effect as if all parties to this
Agreement had signed the same document. All executed counterparts of this Agreement
will be construed as and constitute one and the same instrument. A facsimile or
electronic copy (e.g., a PDF copy) of an executed counterpart of this Agreement will
have the same effect as an original executed counterpart of this Agreement.
12.12 Severability. If any provision of this Agreement or the application thereof to any person
or circumstances shall to any extent be held to be invalid or unenforceable, such
provision shall not affect or invalidate the remainder of this Agreement, and to this end
the provisions of this Agreement are declared to be severable. If such invalidity becomes
known or apparent to the parties, the parties agree to negotiate promptly in good faith in
an attempt to amend such provision as nearly as possible to be consistent with the intent
of this Agreement.
12.13 Entire Agreement. This Agreement, together with the associated Master Agreement,
Ground Lease, and Development Agreement, constitutes the entire understanding and
agreement of the parties to this Agreement with respect to its subject matter. All prior
agreements, understandings, or representations with respect to this Agreement's subject
matter are hereby canceled in their entirety and are of no further force or effect. It is
expressly acknowledged that there are no oral or other agreements which modify or affect
this Agreement.
12.14 Survival. All representations, warranties, covenants, agreements, and indemnities set
forth in or otherwise made pursuant to this Agreement shall survive and remain in effect
following the expiration or earlier termination of this Agreement; provided, however, that
Operating Agreement 18
nothing herein is intended to extend the survival beyond any applicable statute of
limitations period.
12.15 Authority. The execution, delivery, and performance by each party of this Agreement
has been duly authorized by their respective governing bodies (i.e., the YMCA's Board
of Directors and the City Council for the City of Yakima) in accordance with their
respective governing documents and applicable law, and no further action is necessary on
the part of either party to this Agreement or their respective governing bodies to make the
execution, delivery, and performance of this Agreement by the undersigned persons valid
and binding upon the parties to this Agreement.
[Signatures on Following Page]
Operating Agreement 19
EFFECTIVE as of the Effective Date first written above.
YOUNG MEN'S CHRISTIAN CITY OF YAKI A
ASSOCIATION OF YAKIMA
By:
o Romero, CEO
Operating Agreement
ourke, City Manager
CITY CONTRAC r N0: 2°15 - 2. 13
RESOLUTION NO: R LO 15- 128
20
STATE OF WASHINGTON
COUNTY OF YAKIMA
1 certify that I know or have satisfactory evidence that BOB ROMERO is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument and acknowledged it as the CEO for the YOUNG
MEN'S CHRISTIAN ASSOCIATION OF YAKIMA to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument. -
DATED: 7c7< 2 / 7 , 2015.
Notary Public
State of Washington
JODI L STEPHENS
MY COMMISSION EXPIRES
August 11, 2018
STATE OF WASHINGTON
COUNTY OF YAKIMA
NOTARY P BLIC for the State o Washingto
residing at /2-1?
My appointment expires:
rnjn
l/; z'
I certify that I know or have satisfactory evidence that TONY O'ROURKE is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument and acknowledged it as the CITY MANAGER for the
CITY OF YAKIMA to be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument. f n �]
DATED: 1 V )``/
Notary Public
State of Washington
SONYA R CLAAR TEE
MY COMMISSION EXPIRES
OCTOBER 25, 2018
, 2015.
iceioV
[PRINT NAME] u 4 -(110 -
NOTARY
-V IV I
NOTARY PUBLIC or the State of Washington,
residing at i,Q O
My appointor ne t expires: I C / �( .
Operating Agreement 21
PARTIES:
DEVELOPMENT AGREEMENT
EFFECTIVE DATE: _a 7 52015
CITY OF YAKIMA,
a Washington municipal corporation
129 North 2nd Street
Yakima, Washington 98901
(referred to in this Agreement as the "City")
YOUNG MEN'S CHRISTIAN ASSOCIATION OF YAKIMA
(d/b/a YAKIMA FAMILY YMCA),
a Washington nonprofit corporation
5 North Naches Avenue
Yakima, Washington 98901
(referred to in this Agreement as the "YMCA")
BACKGROUND. See the Recitals set forth in the Master Agreement.
AGREEMENT. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY
ACKNOWLEDGED, THE UNDERSIGNED PARTIES AGREE AS FOLLOWS:
1. Definitions. Unless the context clearly indicates another meaning and except for terms defined in
this Agreement, all capitalized terms used in this Agreement have the same meaning given to said
terms in the Operating Agreement and Ground Lease. The following terms, when used in this
Agreement, have the following meanings, unless the context clearly indicates another meaning:
1.1 "Aquatic Center" has the meaning given to said words in Section 2 below.
1.2 "City's Financial Contribution" has the meaning given to said words in Section 3 below.
1.3 "Construction Contracts" has the meaning given to said words in Section 5 below.
1.4 "Due Diligence Contingency" has the meaning given to said words in Section 2.1 of the
Ground Lease.
1.5 "Funding Contingency" has the meaning given to said words in Section 2.2 of the
Ground Lease.
1.6 "Ground Lease" means and refers to the Ground Lease dated even herewith by and
between the City as "Landlord" and the YMCA as "Tenant" for the YMCA's lease of the
Leased Premises and all future amendments to said Ground Lease (if any).
1.7 "Leased Premises" has the meaning given to said words in Section 1.7 of the Ground
Lease.
1.8 "Master Agreement" means and refers to the Master Agreement dated even herewith by
and between the City and the YMCA and all future amendments to said Master
Agreement (if any). This Lease is entered into pursuant to the Master Agreement and the
Development Agreement 1
recitals and all other terms set forth in the Master Agreement are part of, incorporated
into, and constitute a part of this Agreement as if set forth in full herein.
1.9 "Operating Agreement" means and refers to the Operating Agreement dated even
herewith by and between the City and the YMCA in connection with the operations and
management of the Aquatic Center to be constructed by Tenant on a portion of the
Leased Premises under this Agreement and all future amendments to said Operating
Agreement (if any).
1.10 "Other Facility" has the meaning given to said words in Section 2 below.
1.11 "Possession Date" has the meaning given to said words in Section 3 of the Ground Lease.
1.12 "RCO Contingency" has the meaning given to said words in Section 2.3 of the Ground
Lease.
1.13 "Required Specifications" has the meaning given to said words in Section 2 below.
2. Aquatic Center. Subject to the Due Diligence, Funding, and RCO Contingencies, the YMCA
will construct an aquatic center on the Leased Premises (the "Aquatic Center"). The Aquatic
Center will be connected to a separate facility (including additions/expansions) also constructed
on the Leased Premises by the YMCA for non -aquatic YMCA activities (the "Other Facility").
Both the Aquatic Center and the Other Facility will be solely owned by the YMCA and will be
subject to the terms and conditions of this Agreement and the Ground Lease and Operating
Agreement.
Unless the City and the YMCA agree otherwise in writing, the Aquatic Center will be constructed
in accordance with the minimum required specifications set forth on attached Exhibit B (the
"Required Specifications").
3. City's Financial Contribution. The City will contribute Four Million Five Hundred Thousand
and No/100 U.S. Dollars ($4,500,000.000) toward the construction of the Aquatic Center (the
"City's Financial Contribution"). The City's Financial Contribution will be paid out when and as
required under this Agreement. The YMCA will be responsible for procuring all other funds
needed to construct the Aquatic Center, as well as all funds needed to construct the Other Facility.
4. Design and Engineering Phase. Subject to the Required Specifications, the Aquatic Center's
design and engineering (including, without limitation, layout, building plans, specifications, and
site plan) will be determined by the YMCA in consultation with the architect(s), engineer(s),
contractor(s), and other construction consultant(s) hired in connection with the development of
the Aquatic Center. Notwithstanding the foregoing, before commencing construction on the
Aquatic Center, the Aquatic Center's layout, building plans, specifications, and site plan will be
presented to the City Manager for the City to confirm the Aquatic Center's design is in
compliance with the Required Specifications.
In the interest of initiating construction of the Aquatic Center as soon as reasonably possible after
the satisfaction of the Due Diligence, Funding, and RCO Contingencies, it is expressly confirmed
that the Aquatic Center's design and engineering (including, without limitation, layout, building
plans, specifications, and site location) will commence and be prepared when and as determined
by the YMCA after the satisfaction of the Due Diligence Contingency. The YMCA and the City
will share equally in and timely pay when due all design and engineering costs in connection with
Development Agreement 2
the development of the Aquatic Center; provided, however, it is expressly confirmed that all
amounts paid by the City under this paragraph for Aquatic Center design and engineering costs
will come from and be paid out of the City's Financial Contribution under Section 3 above. It is
further provided and expressly confirmed that all such costs paid by the City for design and
engineering shall be reimbursed to the City by the YMCA in the event the Funding Contingency
is not satisfied and the project fails to be developed as set forth herein.
5. Construction Contracts. Subject to the provisions of this Section 5, the City and the YMCA
will jointly conduct a standard RFP process to request proposals for the architectural and
engineering design of the Aquatic Center and Other Facility. Once proposals have been obtained
from prospective architects and engineers, the YMCA shall be responsible, in accordance with
applicable public contracting requirements, for interviewing and selecting the architects and
engineers that will be used in connection with the development and construction of the Aquatic
Center and the Other Facility. The YMCA shall cooperate with the City's procurement
professionals to negotiate all construction and professional service agreements associated with the
architectural and engineering design that will be used for the development and construction of the
Aquatic Center and the Other Facility and that will be included in the RFP documents presented
to prospective proposers during the RFP process. It is expressly confirmed that all architects and
engineers hired in connection with the development and construction of the Aquatic Center and
the Other Facility shall be hired by and provide independent contractor services for the YMCA
(and not by or for the City) and that all construction and professional service agreements will be
by and between the third party professional service providers and the YMCA (and not with the
City).
The contracts for the actual construction of the Aquatic Center and the Other Facility shall be
performed as a public works project and all construction bid advertisements, bidding processes,
and contract awards and close-outs associated therewith shall be performed in accordance with
Washington public works bidding and performance requirements. The City and the YMCA will
jointly conduct the complete construction bidding process and shall prepare and award the
contracts in accord with these requirements and the City's standard bidding and contracting
practices.
All construction and professional service agreements associated with the architectural and
engineering design and construction that will be used for the development and construction of the
Aquatic Center and the Other Facility are collectively referred to as the "Construction Contracts"
under this Agreement. The Parties agree that contract elements providing for adequate and
proper insurance coverage during the performance of the contracts, as well as those deemed
necessary to protect the City's interests as the owner of the property, shall be included in all of
the construction contracts and subcontracts and shall be reviewed and approved by the City prior
to the contracts being executed.
Subject to the Required Specifications, all change orders to any Construction Contract must be
approved by the YMCA in writing. Moreover, it is expressly confirmed that with exception to
the City's obligations under this Agreement, the Ground Lease, and the Operating Agreement, the
YMCA is solely responsible for all costs necessary for the development and construction of the
Aquatic Center, including, without limitation, all Construction Contract cost overruns and added
expense from any change orders thereto.
Development Agreement 3
6. Construction Phase. The construction contracting processes described in Section 5 above', as
well as the actual construction of the Aquatic Center, will commence as soon as reasonably
possible after the satisfaction of each of the Due Diligence, RCO, and Funding Contingencies
under Sections 2.1, 2.2, and 2.3 of the Ground Lease (unless the City and the YMCA mutually
agree in writing on some earlier or later date).
Upon the Possession Date, the City will timely pay all costs incurred under the Aquatic Center
design, engineering, and construction performance contracts until the City's Financial
Contribution is exhausted (i.e., until the City has contributed a total of $4,500,000.00 under the
Construction Contracts for design/engineering costs under Section 4 above and construction
costs under this Section 6). Thereafter, the YMCA will be responsible for all additional costs
under the Construction Contracts necessary for the development and construction of the Aquatic
Center. It is expressly confirmed that aside from the design and engineering costs described in
Section 5 above, which will be paid in equal proportion by the City and the YMCA as set forth in
Section 4 above, no construction costs will be incurred with respect to the Aquatic Center until
the Possession Date.
During all phases of construction of the Facilities, the YMCA shall be responsible to provide
security fencing around the construction site to protect the safety of the public and the project.
The YMCA shall be responsible for maintaining a clean and workmanlike construction site
throughout the construction process and shall keep all construction debris, waste and trash
contained and properly disposed of within the site.
7. Zoning, Offsite Improvements, and Site Preparation.
7.1 Zoning. The City represents and warrants that the Leased Premises at the time of the
Possession Date and through the Term of the Ground Lease will be appropriately zoned
for the Aquatic Center described herein and the Permitted Uses allowed under Section 6.2
of the Ground Lease. The City, at the City's expense and with no reduction to the City's
Financial Contribution under Section 3 above, will take all action necessary to ensure
compliance with the provisions of this paragraph prior to the Possession Date.
7.2 Offsite Improvements. To the extent any traffic or other improvements outside of the
Leased Premises are required by the City or any other applicable government authority as
a result of the construction of the Aquatic Center and Other Facility on the Leased
Premises, the City, at the City's expense and with no reduction to the City's Financial
Contribution under Section 3 above, will make all such improvements, to the extent
practicable, within one hundred twenty (120) days of the Possession Date.
8. Naming Rights. It is expressly confirmed that all naming rights with regard to the Aquatic
Center will belong solely to the YMCA and the discretion of the YMCA's Board of Directors;
provided, however, the Aquatic Center's name must include the word "Yakima."
9. Contingencies.
9.1 Contingencies. The YMCA's and the City's respective obligations under this Agreement
are each contingent on and subject to the satisfaction of the Due Diligence, RCO, and
' It is expressly acknowledged and confirmed that the architectural and engineering design contracting
process may commence after the satisfaction of the Due Diligence Contingency as set forth in Sections 4
and 5 above.
Development Agreement 4
Funding Contingencies. Subject to the provisions of Section 10.16 below (i.e., the
"Survival" clause) and the reimbursement obligations set forth in Section 4 above (if
any), and except as otherwise expressly provided in this Agreement, in the event the
Ground Lease is terminated as permitted under Section 2.1, 2.2, or 2.3 of the Ground
Lease as a result of the non -satisfaction of the Due Diligence Contingency, Funding
Contingency, or RCO Contingency, this Agreement will automatically terminate when
the Ground Lease terminates, and neither party to this Agreement will have any further
rights, duties, and obligations hereunder.
9.2 Ground Lease and Operating Agreement. This Agreement is subject to and together
with the terms of the Ground Lease and Operating Agreement and the undersigned
parties' respective rights and obligations thereunder. In the event of a conflict between
the provisions of said three documents, the terms of the Operating Agreement shall
prevail.
9.3 Survival of Existing Obligations. In the event this Agreement is terminated under
Section 9.1 above, the YMCA will be responsible for all of the design and engineering
costs incurred under Section 4 above prior to the termination of this Agreement.
10. Miscellaneous Terms.
10.1 Amendments. This Agreement may not be modified or amended except by written
agreement signed and acknowledged by each of the parties hereto.
10.2 No Agency Relationship. Nothing contained in this Agreement creates the relationship
of principal and agent between the parties hereto.
10.3 Time is of the Essence. Time is of the essence as to all terms of this Agreement.
10.4 Notices. All notices under this Agreement must be in writing and will be deemed given
to the receiving party when (a) personally delivered to the City Manager for the City of
Yakima (for notices to the City) or personally delivered to the CEO or President of the
Yakima Family YMCA (for notices to the YMCA) or (b) three days after being deposited
in the United States Postal Service by certified mail (with return receipt requested) to the
receiving party at the receiving party's last known address(es).
10.5 Points of Contact. The City and the YMCA shall each provide a dedicated contact
person to be the point of contact for their respective party hereto for any communication
or contact that is necessary between the Parties. The City's initial contact person shall be
Scott Schafer, Director of Public Works, and the YMCA's contact person shall be Bob
Romero, YMCA Executive Director. Either party may change its contract person under
this Section 10.5 by giving the other party notice of the change.
10.6 Exhibits. There are no attachments to this Agreement except for the Exhibits expressly
referenced in this Agreement, each of which constitutes a part of this Agreement as if set
forth in full herein.
10.7 Headings; Construction. The captions and paragraph headings used in this Agreement
are inserted for convenience of reference only and are not intended to define, limit, or
affect the interpretation or construction of any term or provision of this Agreement. This
Agreement shall not be construed more strictly against one party than the other by virtue
Development Agreement 5
of the fact that one party drafted this Agreement and/or certain clauses contained herein.
It is hereby recognized that both parties to this Agreement and their respective counsel
have had a full and fair opportunity to negotiate and review all terms and provisions of
hereof and to fully contribute to this Agreement's substance and form.
10.8 Governing Law. This Agreement will be interpreted, construed, and governed by the
laws of the State of Washington.
10.9 Assignment; Binding Effect. Except as expressly provided otherwise herein, neither
party hereto may assign any of its rights or obligations under this Agreement unless the
other party consents thereto in writing, which consent may be withheld for any reason.
Subject to any limitations on assignments provided for in this Agreement, all of the
provisions of this Agreement will inure to the benefit of and be binding on the successors
and assigns of the City and the YMCA.
10.10 Waivers. The failure of either party to seek redress for violation of or to insist upon the
strict performance of any covenant or condition of this Agreement will not prevent a
subsequent act, which would have originally constituted a violation, from having the
effect of an original violation.
10.11 Attorneys' Fees; Venue. In the event of any dispute arising out of or relating to this
Agreement, whether or not suit or other proceedings is commenced, and whether in
mediation, in arbitration, at trial, on appeal, in administrative proceedings, or in
bankruptcy (including, without limitation, any adversary proceeding or contested matter
in any bankruptcy case), the prevailing party will be entitled to its costs and expenses
incurred, including reasonable attorneys' fees. The sole venue for any dispute arising out
of or relating to this Agreement will be in a court of competent jurisdiction in Yakima
County, Washington.
10.12 Defaults, Remedies, and Dispute Resolution. This Agreement is subject to the default,
remedy, dispute resolution, and other provisions set forth in Sections 11.1, 11.2, and 11.3
of the Operating Agreement. In the event of a default of this Agreement, said provisions
of the Operating Agreement will control and should be consulted.
10.13 Counterparts and Copies. This Agreement may be executed in any number of identical
counterparts, with each counterpart having the same effect as if all parties to this
Agreement had signed the same document. All executed counterparts of this Agreement
will be construed as and constitute one and the same instrument. A facsimile or
electronic copy (e.g., a PDF copy) of an executed counterpart of this Agreement will
have the same effect as an original executed counterpart of this Agreement.
10.14 Severability. If any provision of this Agreement or the application thereof to any person
or circumstances shall to any extent be held to be invalid or unenforceable, such
provision shall not affect or invalidate the remainder of this Agreement, and to this end
the provisions of this Agreement are declared to be severable. If such invalidity becomes
known or apparent to the parties, the parties agree to negotiate promptly in good faith in
an attempt to amend such provision as nearly as possible to be consistent with the intent
of this Agreement.
10.15 Entire Agreement. This Agreement, together with the associated Master Lease, Ground
Lease, and Operating Agreement, constitutes the entire understanding and agreement of
Development Agreement 6
the parties to this Agreement with respect to its subject matter. All prior agreements,
understandings, or representations with respect to this Agreement's subject matter are
hereby canceled in their entirety and are of no further force or effect. It is expressly
acknowledged that there are no oral or other agreements which modify or affect this
Agreement.
10.16 Survival. All representations, warranties, and indemnities set forth in or otherwise made
pursuant to this Agreement shall survive and remain in effect following the expiration or
earlier termination of this Lease; provided, however, that nothing herein is intended to
extend the survival beyond any applicable statute of limitations period.
10.17 Authority. The execution, delivery, and performance by each party of this Agreement
has been duly authorized by their respective governing bodies (i.e , the YMCA's Board
of Directors and the City Council for the City of Yakima) in accordance with their
respective governing documents and applicable law, and no further action is necessary on
the part of either party to this Agreement or their respective governing bodies to make the
execution, delivery, and performance of this Agreement by the undersigned persons valid
and binding upon the parties to this Agreement.
[Signatures on Following Page]
Development Agreement 7
EFFECTIVE as of the Effective Date first written above.
YOUNG MEN'S CHRISTIAN CITY OF YAKIMA
ASSOCIATION OF YAKIMA
Bob Romero, CEO
Tony O'R
urke, City Manager
CITY C •' TRACT NO:
RESOLUTION N0: '' Z2l5-128
Development Agreement 8
STATE OF WASHINGTON
) ss.
COUNTY OF YAKIMA
I certify that I know or have satisfactory evidence that BOB ROMERO is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument and acknowledged it as the CEO for the YOUNG
MEN'S CHRISTIAN ASSOCIATION OF YAKIMA to be the free and voluntary act of such party for
the uses and purposes mentioned/in the instrument.
en
DATED: VG4 &— 4=9-7 , 2015.
Notary Public
State off Washington
JODI L STEPHENS
MY COMMISSION EXPIRES
August 11, 2018
STATE OF WASHINGTON
) ss.
COUNTY OF YAKIMA
NOTARY PUBLIC for the State of Was ington,
residing at /?
//
My appointment expires:
I certify that I know or have satisfactory evidence that TONY O'ROURKE is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument and acknowledged it as the CITY MANAGER for the
CITY OF YAKIMA to be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
DATED:
Notary Public
State of Washington
SONYA R CLAAR TEE
MY COMMISSION EXPIRES
OCTOBER 25, 2018
, 2015.
Dionti
_gyp
[PRINT NAME] �U itL{,{ %`� P /i -70Q
NOTARY PUBLIC1for the State of Washington,
residing at Uhlx/1,CZ(
My appointment expires:
Development Agreement 9
EXHIBIT A
Required Specifications
1. Minimum eight lane 25 yard lap pool
2. Therapy pool area
3. Multiuse pool area for water walking and family/youth recreation
EXHIBIT A
PARTIES:
GROUND LEASE
EFFECTIVE DATE:
CITY OF YAKIMA,
a Washington municipal corporation
129 North 2nd Street
Yakima, Washington 98901
(referred to in this Lease as "Landlord")
, 2015
YOUNG MEN'S CHRISTIAN ASSOCIATION OF YAKIMA
(d/b/a YAKIMA FAMILY YMCA),
a Washington nonprofit corporation
5 North Naches Avenue
Yakima, Washington 98901
(referred to in this Lease as "Tenant")
BACKGROUND. See the Recitals set forth in the Master Agreement.
AGREEMENT. LANDLORD HEREBY LEASES TO TENANT AND TENANT HEREBY LEASES FROM
LANDLORD THE LEASED PREMISES IN ACCORDANCE WITH THE FOLLOWING TERMS AND CONDITIONS:
1. Definitions. Unless the context clearly indicates another meaning and except for terms defined in
this Lease, all capitalized terms used in this Lease have the same meaning given to said terms in
the Development Agreement and Operating Agreement. The following terms, when used in this
Lease, have the following meanings, unless the context clearly indicates another meaning:
1.1 "Aquatic Center" means and refers to the "Aquatic Center" described in Section 2 of the
Development Agreement.
1.2 "Development Agreement" means and refers to the Development Agreement dated even
herewith by and between Landlord and Tenant in connection with the development of the
Aquatic Center to be constructed by Tenant on a portion of the Leased Premises and all
future amendments to said Development Agreement (if any).
"Due Diligence Contingency" has the meaning given to said words in Section 2.1 below.
"Extended Term" has the meaning given to said words in Section 3.2 below.
"Funding Contingency" has the meaning given to said words in Section 2.2 below.
"Initial Term" has the meaning given to said words in Section 3.1 below.
"Leased Premises" means and refers to the Yakima County, Washington real property
described on attached Exhibit A-1, together with all utility and other improvements
located thereon. The Leased Premises, which is approximately seven and one-half (7.5)
acres in area and constitutes a portion of the Parent Parcels, is generally depicted and
labeled as the "Leased Premises" on the drawing attached as ExhibitA-2.
Ground Lease 1
1.8 "Master Agreement" means and refers to the Master Agreement dated even herewith by
and between Landlord and Tenant and all future amendments to said Master Agreement
(if any). This Lease is entered into pursuant to the Master Agreement and the recitals and
all other terms set forth in the Master Agreement are part of, incorporated into, and
constitute a part of this Lease as if set forth in full herein.
1.9 "Opening Date" has the meaning given to said words in Section 1.22 of the Operating
Agreement.
1.10 "Operating Agreement" means and refers to the Operating Agreement dated even
herewith by and between Landlord and Tenant in connection with the operations and
management of the Aquatic Center to be constructed by Tenant on a portion of the
Leased Premises under the Development Agreement and all future amendments to said
Operating Agreement (if any).
1.11 "Other Facility" means and refers to the "Other Facility" described in Section 2 of the
Development Agreement.
1.12 "Parent Parcels" means and refers to the Yakima County, Washington real property
commonly referred to as Yakima County Assessor Parcel Nos. 181315-13002, 181315-
31003, 181315-13005, and 181315-13006.
1.13 "Possession Date" has the meaning given to said words in Section 3 below.
1.14 "RCO Contingency" has the meaning given to said words in Section 2.3 below.
1.15 "Term" has the meaning given to said word in Section 3.3 below.
2. Contingencies and Other Agreements.
2.1 Due Diligence Contingency. Tenant's obligation to lease the Leased Premises under this
Lease is contingent on and subject to Tenant's determination that the conditions and
features of the Leased Premises are acceptable to Tenant, in Tenant's sole and absolute
discretion (the "Due Diligence Contingency"). In making said determination, Tenant
shall have the right, at Tenant's expense, to inspect, review, and investigate the Leased
Premises and its conditions and features. Said inspection, review, and investigation may
include, without limitation, (a) hazardous waste inspection (including borings for water
and soil sampling); (b) engineering, geotechnical, and soil studies; (c) utility, zoning, and
other development studies; (d) economic feasibility of operating facilities on the Leased
Premises for Tenant's intended uses; (e) a survey of the Leased Premises; (f) title review;
(g) contacting any or all state, county, and city agencies, as well as all water, sewer, and
other special districts, in which the Leased Premises is located (if any); and (h) such other
due diligence as may be deemed reasonably necessary by Tenant in determining whether
the Leased Premises is suitable for Tenant's intended uses.
Tenant intends to obtain a Phase I Environmental Site Assessment (a "Phase 1 ESA") for
the Leased Premises. If the Phase I ESA indicates that hazardous substances may be
located on the Leased Premises or if the Phase I ESA recommends further environmental
testing, Tenant may, at Tenant's expense, obtain a Phase II Environmental Site
Assessment (a "Phase H ESA") for the Leased Premises as recommended by the Phase I
ESA.
Ground Lease 2
Tenant will provide Landlord with complete copies of any and all Phase I and Phase II
ESAs (and amendments and supplements thereto) obtained or otherwise received by
Tenant that pertain to the Leased Premises within ten (10) business days of Tenant's
receipt of the same. Tenant makes no representation or warranty as to the accuracy,
correctness or otherwise of any Phase I or Phase II ESA (and amendments and
supplements thereto). Tenant provides copies to Landlord and such copies are not
intended to be relied upon by Landlord or any third parties.
The Due Diligence Contingency will be deemed satisfied unless Tenant gives written
notice to Landlord of Tenant's termination of this Lease under this Section 2.1 on or
before April 30, 2016.
From and after the Effective Date of this Lease, Tenant and Tenant's authorized agents,
employees, contractors, and invitees shall have the right at reasonable times to enter upon
the Leased Premises for the purpose of conducting the due diligence review described in
this Section 2.1; provided, however, Tenant shall keep the Leased Premises free and clear
of any liens resulting from such investigation and inspection by Tenant or any of
Tenant's agents, employees, contractors, or invitees, and Tenant agrees to indemnify,
defend, and hold harmless Landlord from all injuries, deaths, claims, losses, damages,
and/or other liabilities (collectively "Claims") caused by the negligent acts or omissions
or intentional misconduct of Tenant or Tenant's agent(s), employee(s), or
representative(s) while present on the Leased Premises under this Section 2.1; provided,
however, that in no event shall such indemnity extend to any (a) release of pre-existing
hazardous substances present on the Leased Premises as of the Effective Date; (b) any
pre-existing conditions on or about the Leased Premises, or (c) any Claims to the extent
said claims result from the negligent act or omission or intentional misconduct of
Landlord or any agent, contractor, employee, representative, or invitee of Landlord.
2.2 Funding Contingency. Landlord's and Tenant's respective obligations to lease the
Leased Premises under this Lease are each contingent on and subject to Tenant securing
at least eighty percent (80%) of the funding needed to construct the Aquatic Center, the
Other Facility, and such other improvements (collectively the "Project") Tenant intends
to construct and operate on the Leased Premises (the "Funding Contingency"), which
may include Tenant's cash holdings, donation pledges made to Tenant for the Project (as
evidenced by bona fide written pledges), Landlord's Financial Contribution under
Section 3 of the Development Agreement, and financing secured by Tenant (as evidenced
by one or more bona fide financing commitment letter(s)).
If the Funding Contingency is not satisfied by Tenant giving Landlord written notice of
the satisfaction of the Funding Contingency (and reasonable evidence confirming the
satisfaction thereof) on or before December 31, 2017 (the "Funding Deadline"), either
Landlord or Tenant may thereafter terminate this Lease upon at least sixty (60) days'
prior written notice given to the other party; provided, however, in the event Landlord
gives Tenant written notice of termination under this Section 2.2, Tenant will have the
opportunity during said 60 -day notice period to satisfy the Funding Contingency and
prevent Landlord's termination of this Lease under this Section 2.2.
2.3 RCO Contingency. Landlord's and Tenant's respective obligations to lease the Leased
Premises under this Lease are contingent on and subject to the Interagency Committee for
Outdoor Recreation for Washington State or its successor(s) (which are believed to be the
Ground Lease 3
National Park Service and/or Washington Recreation Conservation Office) (collectively
"RCO"), permitting the Leased Property to be removed from the existing outdoor
recreational use restriction that applies to the Leased Premises ("RCO Consent") and
thereby consenting to Tenant's use of the Leased Premises under this Lease (the "RCO
Contingency"). It is understood that RCO Consent will be granted (and the RCO
Contingency satisfied) if Landlord provides and places a comparable outdoor recreational
use restriction on separate property of comparable value and use (the "Replacement
Property").
Landlord will act in good faith and use its best efforts and due diligence to promptly (a)
meet the Replacement Property requirements established by RCO, (b) obtain the RCO
Consent in recordable form, and (c) satisfy the RCO Contingency. In doing so, Landlord
will, at a minimum, offer as Replacement Property certain property now owned or under
contract for purchase by the City that is located adjacent to the new SOZO soccer
development that is of equal (or greater) size and of equal (or greater) fair market value to
the Leased Premises (the "SOZO-Adjacent Property"). In the event the SOZO-Adjacent
Property, in spite of the City's due diligence and good faith and best efforts, is rejected as
Replacement Property by RCO, the City will identify and offer different property as
Replacement Property for the purpose of obtaining RCO Consent and satisfying the RCO
Contingency; provided, however, in the event RCO Consent cannot be obtained and the
RCO Contingency satisfied by December 31, 2017 (the "RCO Deadline"), either
Landlord or Tenant may thereafter terminate this Lease upon at least ninety (90) days'
prior written notice given to the other party.
2.4 Effect of Termination. Subject to the provisions of Section 13.16 below (i.e., the
"Survival" clause) and except as otherwise expressly provided in the Development
Agreement and/or Operating Agreement, in the event this Lease is terminated as
permitted under Section 2.1, 2.2, or 2.3 above as a result of the non -satisfaction of the
Due Diligence Contingency, Funding Contingency, or RCO Contingency, the
Development Agreement and Operating Agreement will automatically terminate when
this Lease terminates, and neither party to said agreements will have any further rights,
duties, or obligations under the Lease, the Development Agreement or the Operating
Agreement.
2.5 Development Agreement and Operating Agreement. This Lease is subject to and
together with the terms of the Development Agreement and Operating Agreement and the
undersigned parties' respective rights and obligations thereunder. In the event of a
conflict between the provisions of said three documents, the terms of the Operating
Agreement shall prevail.
2.6 Boundary Adjustments. On or before the Possession Date, Landlord, at Landlord's
expense, will cause the boundary lines for the Parent Parcels to be reconfigured such that
the Leased Premises will become and exist as a separate standalone Yakima County
parcel.
3. Term.
3.1 Initial Term. The "Initial Term" of this Lease will commence ninety (90) days after the
satisfaction of each of the Due Diligence, Funding, and RCO Contingencies under
Sections 2.1, 2.2, and 2.3 above (unless Landlord and Tenant mutually agree in writing
on some earlier or later date) (the "Possession Date") and will expire exactly forty (40)
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years after the Opening Date under the Operating Agreement. Upon the determination of
the Opening Date under the Operating Agreement, Landlord and Tenant will execute a
written and acknowledged memorandum for the purpose of confirming the expiration
date for the Initial Term of this Agreement. Subject to the terms of this Lease, Tenant
will take possession of the Leased Premises on the Possession Date free of all other
leases and tenancies.
3.2 Extended Terms. The Initial Term will automatically extend for three (3) separate and
additional ten (10) year periods (each an "Extended Term") on the same terms and
conditions set forth in this Lease unless Tenant, at least six (6) months before the
commencement of an Extended Term, gives Landlord written notice of Tenant's election
to not extend the term of this Lease for the next Extended Term.
3.3 Term (Defined). The word "Term," when used in this Lease, means and refers to the
Initial Term set forth in Section 3.1 above and the Extended Terms provided for under
Section 3.2 above when and if the term of this Lease is extended under said Section 3.2.
In the event the Term is extended for each of the three (3) Extended Terms described in
Section 3.2 above, the total Term of this Lease would be seventy (70) years from the
Opening Date.
4. INTENTIONALLY OMITTED.
5. Rent.
5.1 Base Rent. During the Term, Tenant will pay Landlord "Base Rent" in the amount of
One and No/100 U.S. Dollars ($1.00) per year for Tenant's rental and use of the Leased
Premises. It has been determined by Landlord that the nominal rent set forth in this
paragraph is reasonable considering the benefits to be derived by Landlord and the public
from the development and operation by Tenant of the Aquatic Center to be constructed
by Tenant on a portion of the Leased Premises.
5.2 Additional Rent. In addition to the Base Rent described in Section 5.1 above, Tenant
will also pay those other charges and expenses this Lease provides are to be paid by
Tenant. All payments required to be paid by Tenant under this Lease, other than Base
Rent, will constitute "Additional Rent"
6. Use.
6.1 Easements, Restrictions, Etc. Tenant's lease of the Leased Premises under this Lease is
together with all rights of and appurtenances to the Leased Premises (including, but not
limited to, all water and water rights and all access, utility, and other easements that
benefit the Leased Premises) and is subject to the following (collectively the
"Restrictions"): (a) all easements, covenants, restrictions, and other agreements of record
as of the Effective Date of this Lease; and (b) all zoning and building laws applicable to
the Leased Premises. Landlord represents and warrants that the Restrictions will not
prevent nor unreasonably interfere with Tenant's use and occupancy of the Leased
Premises for the Permitted Uses as set forth in this Lease. Moreover, from the Effective
Date of this Lease and until the conclusion of Tenant's rights hereunder, Landlord
covenants that Landlord will not encumber the Leased Premises with any new easement,
covenant, restriction, agreement, or other encumbrance that limits or otherwise affects the
title to or use of the Leased Premises after the Effective Date of this Lease unless and
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until Tenant consents thereto in a signed and acknowledged writing recorded in the
records of Yakima County, Washington. Moreover, subject to satisfaction of the RCO
Contingency and Landlord's obligations under Section 2.3 above, Landlord will cause the
instrument recorded on or about August 12, 1976, under Yakima County Auditor's File
No. 2431304 to be released from the Leased Premises so that it no longer encumbers the
Leased Premises.
To accommodate Tenant's construction on and/or use of the Leased Premises, Tenant, at
Tenant's expense, is permitted to relocate any City utilities that run over, under, or
otherwise across the Leased Premises to new locations within the Leased Premises (or the
areas located within fifty (50) feet south and fifty (50) feet east of the Leased Premises) so
long as said work is completed in a workmanlike manner and in accordance with the City
of Yakima Public Works Department's reasonable design and construction specifications
for the relocated location of the utilities. In the course of relocating any utilities under
this paragraph, Tenant will be permitted to abandon existing portions of utilities that are
replaced with new utility improvements under this paragraph. Landlord and Tenant
specifically acknowledge Tenant's anticipated need to relocate the City wastewater
pipeline that runs east -west across the center of the Leased Premises.
6.2 Permitted Uses. Tenant shall have the right to use the Leased Premises for not-for-profit
purposes that include the construction and operation of (a) an aquatic center (including
both the Aquatic Center and any additions, modifications, expansions, or improvements
thereto made by Tenant from time to time); (b) a YMCA facility (including both the
Other Facility and any additions, modifications, expansions or improvements thereto
made by Tenant from time to time) initial facilities and any expansion facilities) and
YMCA programming; (c) community center; (d) nonprofit office, program, service,
and/or meeting space; (e) health, fitness, medical, and/or wellness facility; and (f) all
reasonably related business and/or incidental operations/activities, and for no other use,
unless and until Landlord consents in writing to the other use, which consent may not be
unreasonably withheld (the "Permitted Uses"). It is expressly acknowledged and agreed
that the following activities (whether conducted in a non-profit or for-profit capacity)
constitute Permitted Uses under this Lease: (a) Tenant's operation and/or sublease of a
portion of Tenant's facilities on the Leased Premises (including the Other Facility and
Common Areas, but excluding the Aquatic Center) to one or more third parties for the
operation of a cafe, coffee cart, concession stand, and/or a similar food/beverage-related
businesses; (b) Tenant's sublease of a portion of Tenant's facilities on the Leased
Premises (including the Other Facility and Common Areas, but excluding the Aquatic
Center) to one or more third parties for the operation of onsite healthcare services,
including, without limitation, physical therapy in the Aquatic Center and/or Other
Facility operated by Tenant on the Leased Premises; and (c) Tenant's sublease of a
portion of Tenant's facilities on the Leased Premises (including the Other Facility and
Common Areas, but excluding the Aquatic Center) to one or more nonprofit entities for
non-profit purposes.
6.3 Parking. The parking lot, entryway, sidewalks, curbs, lighting, landscaping, and other
improvements generally depicted and labeled as the "Existing Parking Lot" on the
drawing attached as Exhibit A-2 (the "Existing Parking Lot") are included within the
Leased Premises; provided, however, the Existing Parking Lot will remain under
Landlord's control for general public use (e g., Chesterley Park users). Notwithstanding
the foregoing, during the entire Term of this Lease, Tenant and Tenant's agents,
independent contractors, employees, customers, suppliers, representatives, and invitees
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will at all times (a) have access to and from the Leased Premises over the Existing
Parking Lot and (b) be permitted the shared use of the Existing Parking Lot on a "first
come/first served/non-reserved basis" in connection with their use of the facilities
operated on the Leased Premises; provided, however, said use, during periods of
construction on the Leased Premises shall not include Tenant's contractors utilizing part
or all of the Existing Parking Lot for locating construction trailers, storing construction
materials, and staging equipment or supplies, , or in any way substantially impacting the
public access to and use of the Existing Parking Lots (instead, said uses activities must be
confined to the remainder of the Leased Premises).
During the Term, Landlord, at Landlord's expense (but subject to the terms of the
Operating Agreement), will operate and keep and maintain the Existing Parking Lot and
each of its existing amenities (e g , parking lot spaces, entryway to and from River Road,
sidewalks (if any), landscaping, lighting, etc.) in good condition and in the customary
manner as other paved and lighted public parking lots are maintained by Landlord, and in
doing so, Landlord covenants to maintain the same number of parking spaces now
contained within the Existing Parking Lot and at least half of the number of handicapped
parking spaces needed to meet all legal requirements in connection with the Existing
Parking Lot's use in connection with the Aquatic Center. Furthermore, Landlord, at
Landlord's sole expense, is responsible for all ice and snow removal from the Existing
Parking Lot's driveways, walkways, and parking area.
Except when caused by the negligent act or omission or intentional misconduct of Tenant
or Tenant's agent(s), employee(s), invitee(s), or representative(s), Landlord will
indemnify, defend, and hold harmless Tenant and Tenant's directors, officers, employees,
agents, and representatives from and against any and all injuries, deaths, claims, losses,
damages, and/or other liabilities occurring on or about the Existing Parking Lot incurred
in connection with or as a result of the public's presence on or use of the Existing Parking
Lot.
During the Term, with an insurer and in form and substance reasonably satisfactory to
Tenant, Landlord, at Landlord's sole expense, will procure and maintain Commercial
General Liability insurance covering the Existing Parking Lot that covers Bodily Injury,
Property Damage and Personal Injury with limits of not less than $2,000,000 Each
Occurrence; $4,000,000 General Aggregate. The insurance policy/policies required under
this Section 6.3 will be endorsed to name Tenant as an additional insured on a primary
and non-contributory basis. The insurance coverage values shall be subject to review and
revision, to be consistent with current costs and values, no less than once every ten years
from the beginning of the Lease Term until the Lease terminates.
When requested by Tenant, Landlord will furnish Tenant with complete copies of the
insurance policy/policies required under this Section 6.3 and certificates of insurance
from the insurer(s) for said policy/policies that evidence that the insurance required under
this Section 6.3 is in full force and effect, that Tenant has been and continues to be named
as an additional insured thereon, and that the policy/policies may not be cancelled unless
at least twenty (20) days' prior written notice of a contemplated cancellation has been
given to Tenant at Tenant's above -written address.
Notwithstanding the foregoing, it is acknowledged and confirmed that Tenant will have
the exclusive use, responsibility for, and control of any additional parking lot constructed
by Tenant on the remainder of the Leased Premises.
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6.4 Compliance with Laws. Tenant's use of the Leased Premises will comply, at Tenant's
expense (but subject to the terms of the Operating Agreement), with all applicable laws,
regulations, and requirements.
6.5 Nuisance. Aside from the Permitted Uses allowed under Section 3.2 above, Tenant will
not conduct nor permit any other activities on the Leased Premises that will create a
public or private nuisance.
6.6 Supervision. Tenant will supervise Tenant's employees and use reasonable efforts to
cause Tenant's agents, independent contractors, employees, customers, suppliers,
representatives, and invitees to conduct their activities in such a manner as to comply
with the requirements of this Lease.
6.7 Violations of Law. Landlord represents and warrants that Landlord is not aware of any
violations of law that exist with regard to the Leased Premises, including, without
limitation, laws pertaining to occupational hazards, environment violations (e.g.,
hazardous materials or substances, leaking underground storage tanks, etc.), or violations
of the Americans With Disabilities Act (or any similar federal, state, or local law).
Landlord will indemnify, defend, and hold harmless Tenant and Tenant's directors,
officers, employees, agents, and representatives from any costs, expenses, attorneys' fees,
or liabilities relating to any violation of law that existed with regard to the Leased
Premises on the Possession Date and will be responsible for all expenses needed to
correct or remedy the violation of law.
7. Utilities and Taxes.
7.1 Utilities. Except as set forth in Section 6.3 above, Tenant will pay, prior to delinquency,
all charges for utilities and services supplied to the Leased Premises during the Term,
including, without limitation, service charges for electricity, gas, telephone, internet,
water, sewer, irrigation, and garbage collection. Landlord will not be liable for any
failure or interruption of utilities or services to the Leased Premises, unless caused by the
negligent act or omission or intentional misconduct of Landlord or Landlord's agent(s),
employee(s), or representative(s). Tenant shall also be responsible for payment of all
stormwater fees assessed by the City for stormwater costs resulting from any new parking
facility constructed by Tenant on the Leased Premises.
7.2 Real Property Taxes. Landlord will pay, prior to delinquency, all real property taxes and
other assessments assessed against and/or levied during the Term on the Leased Premises
(to the extent the Leased Premises are not exempt from said taxation); provided, however,
Tenant will pay, prior to delinquency, all real property taxes and other assessments
assessed against and/or levied during the Term on real property improvements
constructed on the Leased Premises by Tenant (to the extent said improvements are not
exempt from said taxation).
7.3 Personal Property Taxes. Tenant will pay, prior to delinquency, all personal property
taxes and other assessments assessed against and/or levied during the Term on
machinery, equipment, trade fixtures, furnishings, and other personal property kept on the
Leased Premises by Tenant (to the extent said property is not exempt from said taxation).
When possible, Tenant will cause said machinery, equipment, trade fixtures, furnishings
Ground Lease 8
and all other personal property to be assessed and billed separately from the Leased
Premises.
8. Insurance and Indemnification.
8.1 Tenant's Insurance Obligations. During the Term, with an insurer and in form and
substance reasonably satisfactory to Landlord, Tenant, at Tenant's expense (but subject to
the terms of the Operating Agreement), will procure and maintain Commercial General
Liability insurance over the Leased Premises that covers Bodily Injury, Property Damage
and Personal Injury with limits of not less than $2,000,000 Each Occurrence; $4,000,000
General Aggregate. The insurance policy/policies required under this paragraph will be
endorsed to name Landlord as an additional insured on a primary and non-contributory
basis. The insurance coverage values shall be subject to review and revision, to be
consistent with current costs and values, no less than once every ten years from the
beginning of the Lease Term until the Lease terminates.
When requested by Landlord, Tenant will furnish Landlord with complete copies of the
insurance policy/policies required under this Section 8.1 and certificates of insurance
from the insurer(s) for said policy/policies that evidence the insurance required under this
Section 8.1 is in full force and effect, Landlord has been and continues to be named as an
additional insured thereon, and that the policy/policies may not be cancelled unless at
least twenty (20) days' prior written notice of a contemplated cancellation has been given
to Landlord at Landlord's above -written address.
During the Term, Tenant, at Tenant's expense (but subject to the terms of the Operating
Agreement), will be solely responsible for insuring any and all personal property that is
not part of the Leased Premises that is stored or otherwise kept in or on the Leased
Premises by Tenant, whether said personal property is owned by Tenant or any other
third party, and on all tenant improvements and betterments Tenant incorporates into the
Leased Premises.
8.2 Waiver of Subrogation Rights. Tenant and Landlord each waive any and all rights of
recovery against the other, or against the agents, independent contractors, employees,
customers, suppliers, representatives, and invitees of each other, for loss of or damage to
such waiving party, property, or property of others under its or their control, where such
loss or damage is insured against under any insurance policy in force at the time of such
loss or damage. Further, Landlord and Tenant will cause their respective insurers to
waive said insurers' respective rights of subrogation/recovery against the other party
pursuant to this provision and to provide one another, at their respective requests, with
written notice of said waivers.
8.3 Indemnification by Tenant. Except when caused by the negligent act or omission or
intentional misconduct of Landlord or Landlord's agent(s), employee(s), or
representative(s), but subject to the provisions of Section 8.2 above, Tenant will
indemnify, defend, and hold harmless Landlord and Landlord's elected and appointed
officials, employees, agents, and representatives from and against any and all claims of
third parties arising from Tenant's use of the Leased Premises, or from the conduct of
Tenant's business, or from any activity, work, or things done, permitted, or suffered by
Tenant in or about the Leased Premises; and, further, subject to the provisions of Section
8.2 above, Tenant will indemnify, defend, and hold harmless Landlord and Landlord's
elected and appointed officials, employees, agents, and representatives from and against
Ground Lease 9
any and all other injuries, deaths, claims, losses, damages, and/or other liabilities on or
about the Leased Premises caused by the negligent act or omission or intentional
misconduct of Tenant or Tenant's agent(s), employee(s), or representative(s). The
liability of Tenant, and any indemnities provided by Tenant under this paragraph, will not
extend to hazardous materials that were not placed in, on, or about the Leased Premises
by Tenant, or by any of Tenant's agents, employees, representatives, or invitees.
8.4 Indemnification by Landlord Except when caused by the negligent act or omission or
intentional misconduct of Tenant or Tenant's agent(s), employee(s), or representative(s),
but subject to the provisions of Section 8.2 above, Landlord will be responsible for and
indemnify, defend, and hold harmless Tenant and Tenant's directors, officers, employees,
agents, and representatives from and against any and all claims arising from any breach
of or default in the performance of any obligation of Landlord's part to be performed
under the terms of this Lease; and, further, subject to the provisions of Section 8.2 above,
Landlord will be responsible for and will indemnify, defend, and hold harmless Tenant
and Tenant's directors, officers, employees, agents, and representatives from and against
any all other injuries, deaths, claims, losses, damages, and/or other liabilities on or about
the Leased Premises caused by the negligent act or omission or intentional misconduct of
Landlord or Landlord's agent(s), employee(s), or representative(s). The liability of
Landlord, and any indemnities provided by Landlord under this paragraph, will not
extend to hazardous materials that were not placed in, on, or about the Leased Premises
by Landlord, or by any of Landlord's elected or appointed officials, agents, employees,
representatives, or invitees.
8.5 Additional Indemnification Provisions. Each party to this Lease ("Indemnfing Party")
shall indemnify, defend, and hold harmless the other party to this Lease (the "Indemnified
Party") from and against all claims asserted by persons not parties to this Lease arising
from or relating to the Indemnifying Party's breach of this Lease, negligence, intentional
misconduct, or violation of law.
Notwithstanding the foregoing provisions of Sections 8.3, 8.4, and 8.5 above, in
compliance with RCW 4.24.115 as in effect on the date of this Lease, in the event of the
concurrent negligence of Landlord or Landlord's agent(s), employee(s), or
representative(s), on the one hand, and that of Tenant or Tenant's agent(s), employee(s),
or representative(s), on the other hand, which concurrent negligence results in claims
occurring on or about the Leased Premises, either party's obligation to indemnify the
other party as set forth in Sections 8.3, 8.4, and 8.5 above shall be limited to the extent of
the negligence of such party or its agent(s), employee(s), or representative(s), including
such party's proportional share of costs and attorneys' fees incurred in connection with
such claims. In no event shall Landlord or Tenant be indemnified for its sole negligence
or that of its agent(s), employee(s), or representative(s).
9. Condition, Maintenance, Repairs, and Alterations.
9.1 Condition of Leased Premises. Landlord represents and warrants to Tenant that on the
Possession Date the Leased Premises will be free of structures, debris, and improvements
aside from those that exist as of the Effective Date of this Lease (e.g., existing utilities
and Existing Parking Lot improvements). Landlord represents and warrants to Tenant
that on Opening Day the Exhibit Parking Lot will be in a condition suitable for public use
in connection with the Aquatic Center and Other Facility and that within a reasonable
period of time after Operating Day (but in no event longer than six months after Opening
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Day) the City will fill all cracks, repair all curbs, and sealcoat all pavement within the
Existing Parking Lot. If any warranty made in this Section 9.1 is violated, then it will be
the obligation of Landlord, after notice from Tenant setting forth the nature of the
violation, to promptly, at Landlord's expense, rectify such violation. Except as otherwise
provided in this Lease, Tenant accepts the Leased Premises "AS IS" and in their
condition existing as of the Possession Date.
9.2 Tenant's Obligations. Subject to the provisions of Sections 6.3 and 9.1 above and except
for ordinary wear and tear, damage by fire or other casualty, and damage caused by the
negligent acts or omissions or intentional misconduct of Landlord or Landlord's agent(s),
employee(s), or representative(s), during the Term, Tenant, at Tenant's expense (but
subject to the terms of the Operating Agreement), will keep the Leased Premises in good
repair and proper working order. Furthermore, Tenant, at Tenant's expense (but subject
to the terms of the Operating Agreement and Section 6.3 above), is responsible for all ice
and snow removal from the Leased Premises' driveways, walkways, and parking area.
9.3 Alterations. Tenant shall have the right, without further consent or approval from
Landlord, to construct facilities, conduct renovations, and make alterations to
improvements located on the Leased Premises when and as determined by Tenant,
provided said construction, renovations, and alterations (a) are not in violation of the
Development Agreement or the Operating Agreement; (b) are for Permitted Uses under
this Lease; (c) do not unreasonably impair the public use of the Aquatic Center in
accordance with the terms of the Operating Agreement; and (d) are in compliance with all
applicable laws, regulations, and requirements, including, without limitation, all zoning
and construction permit requirements.
Tenant will pay when due all claims for labor and materials furnished for or to Tenant for
use in or on the Leased Premises. Except as expressly set forth in this Section 9.3,
Tenant will not permit any mechanics' or materialmen's liens to be levied against the
Leased Premises for any labor or materials furnished to Tenant or claimed to have been
furnished to Tenant or Tenant's agents or contractors in connection with work of any
character performed or claimed to have been performed on the Leased Premises by or at
the direction of Tenant; provided, however, Tenant may, in good faith, contest any claim
of lien so long as Tenant prevents foreclosure and, in such event, Tenant will defend and
hold Landlord and the Leased Premises harmless from any consequences of such action,
including, without limitation, costs and reasonable attorneys' fees incurred. Except as
provided in the immediately preceding sentence, if Tenant fails to pay any such lien
claim or to discharge any such lien within one hundred eighty (180) days following the
filing of such lien, Landlord may do so and collect such amount as Additional Rent.
Amounts paid by Landlord will bear interest and be repaid by Tenant as provided in
Section 12.2 below.
9.4 Signage. Tenant, at Tenant's expense (but subject to the terms of the Operating
Agreement), may install and maintain signs on the Leased Premises, provided such signs
are installed and maintained in compliance with all applicable laws, regulations, and
requirements.
9.5 Surrender of Leased Premises. On the last day of the Term, Tenant will surrender
possession of the Leased Premises (and all improvements, renovations, and alterations
constructed on the Leased Premises) to Landlord in their "AS IS" condition at said time.
All improvements, renovations, and alterations constructed on the Leased Premises by or
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on behalf of Tenant, including, but not limited to, the Aquatic Center and the Other
Facility, shall be and remain Tenant's property until the expiration of the Term, at which
time such improvements shall be surrendered by Tenant as part of the Leased Premises
and Landlord will become the owner of said items. Notwithstanding the foregoing, at the
end of the Term, Tenant's machinery, trade fixtures, furnishings, and equipment will
remain the property of the Tenant and may be removed by Tenant from the Leased
Premises, subject to Tenant's obligation to repair any damage to the Leased Premises
caused by the removal of Tenant's machinery, trade fixtures, furnishings, and equipment,
which repair will include the patching and filling of holes and repair of any structural
damage; provided, however, it is hereby acknowledged Tenant may not remove any
building or aquatic systems (e.g., HVAC, electrical, plumbing, filtration, heating, etc.)
from the facilities constructed on the property.
9.6 Entry and Inspection. With reasonable prior notice to Tenant, Landlord and Landlord's
authorized representatives may enter the Leased Premises and the Aquatic Center placed
thereon (but not the non -aquatic center improvements placed on the Leased Premises) at
any reasonable time for the purpose of confirming Tenant's compliance with this Lease;
provided, however, when entering and inspecting the Leased Premises and Aquatic
Center, Landlord may not unreasonably interfere with or disrupt any activities being
conducted on the Leased Premises.
10. Assignment and Subletting. Tenant is permitted to sublease all or any portion of the Leased
Premises with Landlord's prior written consent, which consent may not be unreasonably
withheld, so long as the subtenants' use of said areas is within the Permitted Uses allowed under
Section 6.2 above; provided, however, no such sublease will operate to release or otherwise alter
any of Tenant's obligations under this Lease. Moreover, in the event Tenant subleases all or any
portion of the Leased Property, unless Landlord agrees otherwise in writing, the expiration of this
Lease or any permitted termination hereof will entitle Landlord to terminate any or all subleases
of the Leased Property by Tenant and/or to assume any or all such subleases as the landlord with
the subtenant(s) thereunder.
11. Other Rights and Obligations.
11.1 Mortgages and Estoppel Certificates. Landlord is not permitted to mortgage, grant a
deed of trust in, or otherwise grant a security interest in the Leased Premises.
Tenant shall have the right to grant mortgages and/or deeds of trust in Tenant's right,
title, and interest in, to, and under this Lease (i.e., leasehold mortgages and/or leasehold
deeds of trust) (each a "Leasehold Mortgage") and in connection with said leasehold
mortgage(s) and/or deed(s) of trust, Landlord will consent to and execute documentation
reasonably requested by Tenant and Tenant's lender(s) in connection therewith, which
may include, but not necessarily be limited to, agreements that include standard leasehold
mortgagee protection provisions, including non -disturbance provisions, lender notice
requirements before exercise of remedies, bankruptcy protection, and lender cure
opportunity provisions. In the event Tenant seeks to obtain or modify a Leasehold
Mortgage, and the mortgagee for the Leasehold Mortgage requires amendments to this
Section 11.1 or other parts of this Lease for the purpose of defining the mortgagee's
rights in connection with the Leasehold Mortgage, then Landlord agrees to amend this
Section 11.1 or other sections of this Lease to the extent requested by Tenant and the
mortgagee, provided that the form and content of such amendments are reasonable and
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that such proposed amendments do not materially or adversely affect the rights of
Landlord hereunder or its interest in the Leased Premises.
Moreover, within ten (10) days after Landlord's or Tenant's written request, the other
party will deliver a written statement to the requesting party stating whether the
requesting party is in compliance will all of said party's obligations under this Lease, the
date to which the rent and other charges owed under this Lease have been paid, whether
this Lease has been modified and is in full force and effect, and any other matters that
may reasonably be requested by the requesting party concerning this Lease to the extent
true and without waiving any rights of the answering party.
11.2 Landlord's Liability; Sale. In the event the original Landlord hereunder, or any
successor owner of the Leased Premises, sells or conveys the Leased Premises, then from
and after the date of such sale, transfer, or conveyance, the original Landlord, or such
successor owner, shall have no liability to Tenant for liabilities or obligations arising or
accruing under this Lease after the date of such sale, transfer, or conveyance, provided
the assignee expressly assumes all liabilities and obligations under this Lease. Tenant
agrees to attorn to such new owner. Notwithstanding the foregoing, Landlord and Tenant
expressly acknowledge and agree that no sale, transfer, or conveyance of the Leased
Premises will affect, eliminate, terminate, or otherwise reduce Landlord's obligations
under the Development Agreement or Operating Agreement.
11.3 Eminent Domain. Any award for taking of all or any part of the Leased Premises under
the power of eminent domain will be the property of Landlord; provided, however,
nothing precludes Tenant from seeking and obtaining any award for (a) Tenant's lost use
of the Leased Premises under this Lease; (b) any improvements owned by Tenant that are
taken; (c) any loss of, damage to, or cost of removal of Tenant's improvements, trade
fixtures, and removable personal property; and/or (d) damages for cessation or
interruption of Tenant's business. Tenant shall have the right to negotiate directly with
the condemnor for the portion of the award Tenant is entitled to hereunder. A sale by
Landlord to any authority with power of eminent domain that adversely affects Tenant's
use of the Leased Premises, either under threat of condemnation or while condemnation
proceedings are pending, will be deemed a taking under the power of eminent domain
under this Section 11.3.
12. Defaults, Remedies, and Dispute Resolution. This Lease is subject to the default, remedy,
dispute resolution, and other provisions set forth in Sections 11.1, 11.2, and 11.3 of the Operating
Agreement. In the event of a default of this Lease, said provisions of the Operating Agreement
will control and should be consulted.
13. Miscellaneous Terms.
13.1 Amendments. This Lease may not be modified or amended except by written agreement
signed and acknowledged by each of the parties hereto.
13.2 No Agency Relationship. Nothing contained in this Lease creates the relationship of
principal and agent between the parties hereto and no provisions contained herein will be
deemed to create any relationship other than that of landlord and tenant.
13.3 Time is of the Essence. Time is of the essence as to all terms of this Lease.
Ground Lease 13
13.4 Notices. All notices under this Lease must be in writing and will be deemed given to the
receiving party when (a) personally delivered to the City Manager for the City of Yakima
(for notices to Landlord) or personally delivered to the CEO or President of the Yakima
Family YMCA (for notices to Tenant) or (b) three days after being deposited in the
United States Postal Service by certified mail (with return receipt requested) to the
receiving party at the receiving party's last known address(es).
13.5 Exhibits. There are no attachments to this Lease except for the Exhibits expressly
referenced in this Lease, each of which constitutes a part of this Lease as if set forth in
full herein.
13.6 Headings; Construction. The captions and paragraph headings used in this Lease are
inserted for convenience of reference only and are not intended to define, limit, or affect
the interpretation or construction of any term or provision of this Lease. This Lease shall
not be construed more strictly against one party than the other by virtue of the fact that
one party drafted this Lease and/or certain clauses contained herein. It is hereby
recognized that both parties to this Lease and their respective counsel have had a full and
fair opportunity to negotiate and review all terms and provisions of hereof and to fully
contribute to this Lease's substance and form.
13.7 Governing Law and Venue. This Lease will be interpreted, construed, and governed by
the laws of the State of Washington. The exclusive venue for any legal action to interpret
or enforce this Lease will be Yakima County, Washington.
13.8 Assignment; Binding Effect. Except as expressly provided otherwise herein, neither
party hereto may assign any of its rights or obligations under this Lease unless the other
party consents thereto in writing, which consent may be withheld for any reason. Subject
to any limitations on assignments provided for in this Lease, all of the provisions of this
Lease will inure to the benefit of and be binding on the successors and assigns of
Landlord and Tenant.
13.9 Waivers. The failure of either party to seek redress for violation of or to insist upon the
strict performance of any covenant or condition of this Lease will not prevent a
subsequent act, which would have originally constituted a violation, from having the
effect of an original violation.
13.10 Attorneys' Fees; Venue. In the event of any dispute arising out of or relating to this
Lease, whether or not suit or other proceedings is commenced, and whether in mediation,
in arbitration, at trial, on appeal, in administrative proceedings, or in bankruptcy
(including, without limitation, any adversary proceeding or contested matter in any
bankruptcy case), the prevailing party will be entitled to its costs and expenses incurred,
including reasonable attorneys' fees. The sole venue for any dispute arising out of or
relating to this Lease will be in Yakima County, Washington.
13.11 Quiet Enjoyment. Provided Tenant is not in default, Tenant will peaceably and quietly
hold and enjoy the Leased Premises for the Term without interruption by Landlord or any
of Landlord's assignees or any person or persons lawfully or equitably claiming by,
through, or under Landlord or any of Landlord's assignees.
13.12 Counterparts and Copies. This Lease may be executed in any number of identical
counterparts, with each counterpart having the same effect as if all parties to this Lease
Ground Lease 14
had signed the same document. All executed counterparts of this Lease will be construed
as and constitute one and the same instrument. A facsimile or electronic copy (e.g., a
PDF copy) of an executed counterpart of this Lease will have the same effect as an
original executed counterpart of this Lease.
13.13 Severability. If any provision of this Lease or the application thereof to any person or
circumstances shall to any extent be held to be invalid or unenforceable, such provision
shall not affect or invalidate the remainder of this Lease, and to this end the provisions of
this Lease are declared to be severable. If such invalidity becomes known or apparent to
the parties, the parties agree to negotiate promptly in good faith in an attempt to amend
such provision as nearly as possible to be consistent with the intent of this Lease.
13.14 Recording. Neither Landlord nor Tenant will record this Lease. However, following the
execution of this Lease, the parties, at Tenant's request, will execute a Memorandum of
Lease that will be recorded by Tenant in the Yakima County Auditor's Office for the
purpose of providing constructive notice to the public of the existence of this Lease and
the length of the Term. Said Memorandum of Lease will not disclose any of the financial
or other economic terms contained in this Lease.
13.15 Entire Agreement. This Lease, together with the associated Master Agreement,
Development Agreement, and Operating Agreement, constitutes the entire understanding
and agreement of the parties to this Lease with respect to its subject matter. All prior
agreements, understandings, or representations with respect to this Lease's subject matter
are hereby canceled in their entirety and are of no further force or effect. It is expressly
acknowledged that there are no oral or other agreements which modify or affect this
Lease.
13.16 Survival All representations, warranties, and indemnities set forth in or otherwise made
pursuant to this Agreement shall survive and remain in effect following the expiration or
earlier termination of this Lease; provided, however, that nothing herein is intended to
extend the survival beyond any applicable statute of limitations period.
13.17 Authority. The execution, delivery, and performance by each party of this Lease has
been duly authorized by their respective governing bodies (i.e., the YMCA's Board of
Directors and the City Council for the City of Yakima) in accordance with their
respective governing documents and applicable law, and no further action is necessary on
the part of either party to this Lease or their respective governing bodies to make the
execution, delivery, and performance of this Lease by the undersigned persons valid and
binding upon the parties to this Lease.
[Signatures on Following Page]
Ground Lease 15
EFFECTIVE as of the Effective Date first written above.
YOUNG MEN'S CHRISTIAN
ASSOCIATION OF YAKIMA
Bob Romero, CEO
CITY OF YAKIMA
urke, City Manager
� o ) 5 -a2.5
CITY CONTRAC r
RESOLUTION NO. R- oZ 0 (5 - 1 2 a 8
Ground Lease 16
STATE OF WASHINGTON
) ss.
COUNTY OF YAKIMA
I certify that I know or have satisfactory evidence that BOB ROMERO is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument and acknowledged it as the CEO for the YOUNG
MEN'S CHRISTIAN ASSOCIATION OF YAKIMA to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
DATED: (Vr/4 , - o2-] , 2015.
Notary Public
State of Washlogtos
JOD11. STEPHENS
MY COMMISSION EXPIRES
August 11, 201S
STATE OF WASHINGTON
) ss.
COUNTY OF YAKIMA
[PRINT NAME] Jc/
NOTARY PUBLIC for the....Stalf of Washin ton
residing at /off- 1 �i va
My appointment expires: ./g .
I certify that I know or have satisfactory evidence that TONY O'ROURKE is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument and acknowledged it as the CITY MANAGER for the
CITY OF YAKIMA to be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
DATED: ON- / , 2015.
Notary Public
State of Washington
SONYA R CLAAR TEE
MY COMMISSION EXPIRES
OCTOBER 25, 2018
\.J
[PRINT NAME] cci Y
NOTARY PUBLIC for the State of Washington,
residing at V- 04
My appointment expires:
Ict<
Ground Lease 17
EXHIBIT A-1
Leta] Description of the Leased Premises
That portion of the Southwest quarter of the Northeast quarter of Section 15, Township 13 North,
Range 18 East, W.M. described as follows: Beginning at the Northwest corner of said Subdivision;
thence South 89°42'45" East, along the North line thereof, 75.00 feet to the Easterly right of way
line of the Pacific Power and Light Company's canal; thence continuing South 89°42'45" East
104.00 feet to the True Point of Beginning; thence South 0°17'15" West 310.45 feet; thence South
30°52' West 4.06 feet; thence along the arc of a curve to the left having a radius of 145.00 feet, a
central angle of 54°39' and a length of 138.30 feet; thence South 23°47' East 165.63 feet; thence
North 66°13' East 13.05 feet; thence along the arc of a curve to the right having a radius of 4.00
feet, a central angle of 83°03' and a length of 5.80 feet; thence South 30°44' East 11.24 feet; thence
along the arc of a curve to the left having a radius of 53.00 feet, a central angle of 167°26' and a
length of 154.89 feet; thence North 18°10' West 12.40 feet; thence along the arc of a curve to the
right having a radius of 4.00 feet, a central angle of 84°23' and a length of 5.89 feet; thence North
66°13' East 13.19 feet; thence North 89°26'10" East 265.00 feet; thence North 56°04' East 80.00
feet; thence North 89°26' 10" East 170.00 feet; thence North 0°33'50" West 486.42 feet to the
North line of said Subdivision; thence North 89°42'45" West, along said North line, 680.56 feet
to the True Point of Beginning;
EXCEPT that portion lying Northerly of the following described line:
Beginning at the Northwest corner of said Subdivision; thence South 89°42'45" East, along the
North line thereof, 75.00 feet to the Easterly right of way line of the Pacific Power and Light
Company's canal; thence continuing South 89°42'45" East 104.00 feet; thence South 0°17'15"
West 78.18 feet to the True Point of Beginning; thence North 89°26' 10" East 165.00 feet; thence
North 0°33'50" West 15.00 feet; thence North 89°26'10" East to the East line of said Subdivision
and the terminus point of the herein described line.
Situated in Yakima County, Washington.
Parcel contains 326,692 SQ. FT./7.50 acres
EXHIBIT A-1
EXHIBIT A-2
General Depiction of the Leased Premises
[See Attached]
EXHIBIT A-2
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a
PARTIES:
MASTER AQUATIC CENTER AGREEMENT
EFFECTIVE DATE:
01-41
, 2015
CITY OF YAKIMA,
a Washington municipal corporation
129 North 2nd Street
Yakima, Washington 98901
(referred to in this Agreement as the "City")
YOUNG MEN'S CHRISTIAN ASSOCIATION OF YAKIMA
(d/b/a YAKIMA FAMILY YMCA),
a Washington nonprofit corporation
5 North Naches Avenue
Yakima, Washington 98901
(referred to in this Agreement as the "YMCA")
RECITALS
WHEREAS: The City, with one indoor public pool and one outdoor public pool owned and operated
by the City pursuant to RCW 35.21.020, has inadequate public aquatic facilities to meet the diverse needs
of its population, which is approaching 100,000 people; and
WHEREAS: The City's only existing indoor public pool consists of a six (6) lane, single body of water
housed in a worn and aging facility; and
WHEREAS: The City's only existing indoor public pool is frequently unavailable for public use due to
school district needs and competitive swimming uses; and
WHEREAS: There is no warm water therapy pool or dedicated youth/family indoor pool in the
Yakima area, either public or private; and
WHEREAS: A citizens pool advisory committee established recommendations for desired elements of
a new aquatic center, and the now proposed Aquatic Center plan incorporates those recommendations;
and
WHEREAS: Yakima has been ranked as one of the most obese cities in America, pointing out the need
for more recreation and exercise opportunities for youth and adults in our community; and
WHEREAS: Access to aquatic facilities is a valuable community resource because it provides the
City's residents with low-cost recreation options, encourages residents to learn how to swim, discourages
dangerous swimming conditions in rivers and irrigation canals, and provides access to therapeutic
activities; and
WHEREAS: In an effort to promote the overall health, safety, and welfare of Yakima's residents, the
City and the YMCA desire to enter into this Agreement in order to construct and operate new aquatic
facilities that will be open to the public for recreation, instruction, fitness, and therapeutic uses; and
Master Aquatic Center Agreement 1
WHEREAS: The Aquatic Center that is the subject of the incorporated agreements and all programs
conducted therein will remain open for public use at reasonable costs with no required YMCA
membership; and
WHEREAS: The Aquatic Center will more than double the existing indoor public aquatic facilities
located in Yakima and increase public access to additional and diverse indoor aquatic offerings by adding
at least three (3) separate bodies of water for public use and programming, including (a) an eight (8) lane
25 yard lap pool, (b) a warm water therapy pool, and (c) a multiuse pool area for family and youth
recreation; and
WHEREAS: The Aquatic Center's multi -pool configuration, unlike the City's current pool offerings
(both public and private), will be suitable for offering multiple programming options at the same time and
not be limited to single use options (e.g., it will be possible to simultaneously offer lap swimming, water
walking, youth/family recreation activities, and warm water therapy/fitness classes); and
WHEREAS: The siting, construction, and operation of the Aquatic Center will have expanded days
and hours of operation compared to current public offerings, will create substantial benefits to and
improve the quality of life of the City's residents by providing valuable and much needed indoor aquatic
opportunities for all ages, and particularly for youth in the youth/family portions of the facility and
seniors in the increased water walking areas and warm water therapy pool; and
WHEREAS: The Aquatic Center will promote_ public safety by offering additional lifeguard
supervised facilities for water activities and increasing public opportunities for swim lessons; and
WHEREAS: The siting, construction, and operation of the Aquatic Center in the City will generate
new jobs, promote commerce, generate new sales tax revenue to the City (both from construction and
operations), and result in additional related economic benefits to the City and its residents; and
WHEREAS: The Aquatic Center's location at Chesterley Park will be (a) centrally located within the
City, (b) located within a fifteen minute drive of almost all of the City's residents, (c) easily accessed
from several major thoroughfares and a major highway interchange, (d) served by frequent and regular
public transit service, (e) connected to the Yakima Greenway and Powerhouse Canal Pathway, and (f) in
close proximity to several public schools; and
WHEREAS: The YMCA has been operating and offering quality youth and family programming in
Yakima for over 100 years, including aquatic programming at the YMCA's downtown pool for over 50
years; and
WHEREAS: The YMCA offers financial assistance in connection with the YMCA's membership and
programming fees for the purpose of increasing public access to YMCA programs and facilities for low
income individuals and families; and
WHEREAS: The YMCA has the professional experience and capability to manage and operate the
Aquatic Center, and thereby limit the City's day-to-day operation obligations and risk in connection
therewith; and
WHEREAS: The Ground Lease, Development Agreement, and Operating Agreement will establish a
public/private partnership under which (a) the City's financial contribution to the Aquatic Center's
construction costs are capped, with the YMCA assuming the obligation for construction cost overruns and
(b) the YMCA and City share equally in the long-term operational, maintenance, repair, and capital needs
of the Aquatic Facility; and
Master Aquatic Center Agreement 2
WHEREAS: Without the public/private partnership established under the Ground Lease, Development
Agreement, and Operating Agreement the City (a) would not be able, due to cost constraints, to construct
and operate a new indoor aquatic facility of the size and scope required under the Development
Agreement, (b) would have to pay the full cost of constructing a new indoor aquatic facility (or forego
doing so), and (c) would be solely responsible for managing and operating a new indoor aquatic facility
and be solely responsible for all of its operational, maintenance, repair, and capital needs; and
WHEREAS: The YMCA's ability to participate in the construction and operation of the Aquatic
Center, from both mission and sustainability standpoints, is dependent on the YMCA's ability to offer
additional non -aquatic programs and services on the Leased Property in connection with the aquatic
programs and services that will be offered by the YMCA at the Aquatic Center; and
WHEREAS: The YMCA's construction and operation of additional non -aquatic facilities on the
Leased Premises in connection with the Aquatic Center will increase the amount, scope, and diversity of
youth, family, and community outreach the YMCA currently offers in Yakima, and specifically in the
North Central portion of Yakima, which is a federally designated economically distressed area and
severely underserved by youth programs and facilities; and
WHEREAS: The non -aquatic facilities constructed on the Leased Premises will be fully funded by the
YMCA, but will become City owned facilities (at no cost to the City) at the expiration of the Ground
Lease; and
WHEREAS: The non -aquatic programs offered in the non -aquatic facilities constructed on the Leased
Premises, like the aquatic programs and facilities, will be open to the public for participation and use for
reasonable fees and serve a wide range of community interests, including, community meeting space,
health and wellness programs, youth outreach, and youth sports and other programming; and
WHEREAS: The YMCA offers financial assistance in connection with the YMCA's membership and
programming fees for the purpose of increasing public access to YMCA programs and facilities for low
income individuals and families; and
WHEREAS: The long term nature, reliability, and terms of the Ground Lease, Development
Agreement, and Operating Agreement will be relied upon by both parties and are necessary for the
YMCA's ability to procure the additional private funds and community investments needed to cover the
YMCA's portion of the Aquatic Center's construction costs and other funds needed for the non -aquatic
facilities to be constructed by the YMCA on the Leased Premises; and
WHEREAS: The Operating Agreement includes important requirements for continued investment by
the YMCA and the City in the upkeep, repair, and capital needs of the Aquatic Center and associated
common areas in order to maintain said facilities in accordance with the Operating Standards set forth
therein; and
WHEREAS: Because the City, its residents, and the public in general will derive innumerable long-
term recreation, safety, health, youth, family, outreach, social, economic, and other benefits from the
YMCA's construction and operation of the Aquatic Center and other facilities on the Leased Premises
under the Ground Lease, Development Agreement, and Operating Agreement, and as such it is hereby
determined by the parties hereto that the City's and the YMCA's contributions and participation under the
Ground Lease, Development Agreement, and Operating Agreement are warranted and a good and proper
use of City and YMCA resources.
Master Aquatic Center Agreement 3
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY
ACKNOWLEDGED, AND IN LIGHT OF THE ABOVE -STATED RECITALS AND THE BENEFITS TO BE DERIVED
HEREUNDER, THE UNDERSIGNED PARTIES AGREE AS FOLLOWS:
AGREEMENT
1. Definitions. Unless the context clearly indicates another meaning and except for terms defined in
this Agreement, all capitalized terms used in this Agreement have the same meaning given to said
terms in the Operating Agreement, Development Agreement, and Ground Lease. The following
terms, when used in this Agreement, have the following meanings, unless the context clearly
indicates another meaning:
1.1 "Aquatic Center" has the meaning given to said words in Section 2 of the Development
Agreement.
1.2 "Development Agreement" means and refers to the Development Agreement dated even
herewith by and between the City and the YMCA in connection with the development of
the Aquatic Center to be constructed by the YMCA on a portion of the Leased Premises
and all future amendments to said Development Agreement (if any).
1.3 "Ground Lease" means and refers to the Ground Lease dated even herewith by and
between the City as "Landlord" and the YMCA as "Tenant" for the YMCA's lease of the
Leased Premises and all future amendments to said Ground Lease (if any).
1.4 "Leased Premises" has the meaning given to said words in Section 1.7 of the Ground
Lease.
1.5 "Operating Agreement" means and refers to the Operating Agreement dated even
herewith by and between the City and the YMCA in connection with the operations and
management of the Aquatic Center to be constructed by the YMCA on a portion of the
Leased Premises and all future amendments to said Operating Agreement (if any).
2. Recitals Incorporated. The above -stated Recitals are part of, incorporated into, and constitute
part of this Agreement.
3. Other Agreements. Subject to the Due Diligence, Funding, and RCO Contingencies set forth
therein and in anticipation of the benefits to be derived thereunder as described in the above -
stated Recitals, the undersigned parties agree to enter into and execute the Ground Lease attached
as Exhibit 1, the Development Agreement attached as Exhibit 2, and the Operating Agreement
attached as Exhibit 3 simultaneously with the execution of this Agreement.
4. Miscellaneous Terms.
4.1 Amendments. This Agreement may not be modified or amended except by written
agreement signed and acknowledged by each of the parties hereto.
4.2 No Agency Relationship. Nothing contained in this Agreement creates the relationship
of principal and agent between the parties hereto.
4.3 Exhibits. There are no attachments to this Agreement except for the Exhibits expressly
referenced in this Agreement and those separately attached to the agreements attached as
Master Aquatic Center Agreement 4
exhibits hereto, each of which constitutes a part of this Agreement as if set forth in full
herein.
4.4 Headings; Construction. The captions and paragraph headings used in this Agreement
are inserted for convenience of reference only and are not intended to define, limit, or
affect the interpretation or construction of any term or provision of this Agreement. This
Agreement shall not be construed more strictly against one party than the other by virtue
of the fact that one party drafted this Agreement and/or certain clauses contained herein.
It is hereby recognized that both parties to this Agreement and their respective counsel
have had a full and fair opportunity to negotiate and review all terms and provisions of
hereof and to fully contribute to this Agreement's substance and form.
4.5 Governing Law. This Agreement will be interpreted, construed, and governed by the
laws of the State of Washington.
4.6 Binding Effect. Subject to any limitations on assignments provided for in this
Agreement, all of the provisions of this Agreement will inure to the benefit of and be
binding on the successors and assigns of the City and the YMCA.
4.7 Counterparts and Copies. This Agreement may be executed in any number of identical
counterparts, with each counterpart having the same effect as if all parties to this
Agreement had signed the same document. All executed counterparts of this Agreement
will be construed as and constitute one and the same instrument. A facsimile or
electronic copy (e.g., a PDF copy) of an executed counterpart of this Agreement will
have the same effect as an original executed counterpart of this Agreement.
4.8 Severability. If any provision of this Agreement or the application thereof to any person
or circumstances shall to any extent be held to be invalid or unenforceable, such
provision shall not affect or invalidate the remainder of this Agreement, and to this end
the provisions of this Agreement are declared to be severable. If such invalidity becomes
known or apparent to the parties, the parties agree to negotiate promptly in good faith in
an attempt to amend such provision as nearly as possible to be consistent with the intent
of this Agreement.
4.9 Entire Agreement. This Agreement, together with the associated Ground Lease,
Development Agreement, and Operating Agreement, constitutes the entire understanding
and agreement of the parties to this Agreement with respect to its subject matter. All
prior agreements, understandings, or representations with respect to this Agreement's
subject matter are hereby canceled in their entirety and are of no further force or effect. It
is expressly acknowledged that there are no oral or other agreements which modify or
affect this Agreement.
4.10 Authority. The execution, delivery, and performance by each party of this Agreement
has been duly authorized by their respective governing bodies (i.e., the YMCA's Board
of Directors and the City Council for the City of Yakima) in accordance with their
respective governing documents and applicable law, and no further action is necessary on
the part of either party to this Agreement or their respective governing bodies to make the
execution, delivery, and performance of this Agreement by the undersigned persons valid
and binding upon the parties to this Agreement.
[Signatures on Following Page]
Master Aquatic Center Agreement 5
EFFECTIVE as of the Effective Date first written above.
YOUNG MEN'S CHRISTIAN
ASSOCIATION OF YAKIMA
By:
Bob Romero, CEO
Master Aquatic Center Agreement
CITY OF YA
Tony O'Rourk: City Manager
CITY CONTRAC r No: a 0 j 5 - Co
RESOLUTION N0: - a0 ' 5 - 12-8
6
STATE OF WASHINGTON
) ss.
COUNTY OF YAKIMA
I certify that I know or have satisfactory evidence that BOB ROMERO is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument and acknowledged it as the CEO for the YOUNG
MEN'S CHRISTIAN ASSOCIATION OF YAKIMA to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
DATED: ®hp Ar" e?" --1) , 2015.
Notary Public
State of Washington
JODI L STEPHENS
MY COMMISSION EXPIRES
August 11, 2018
STATE OF WASHINGTON
) ss.
COUNTY OF YAKIMA
T NAMSlee/e Gtr
NOTARY PUBLIC fori‘tc State of Was n to ,
residing at /.2e, a'11 i G ft4C.
My appointment expires
I certify that I know or have satisfactory evidence that TONY O'ROURKE is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that
he/she was authorized to execute the instrument and acknowledged it as the CITY MANAGER for the
CITY OF YAKIMA to be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument. �
DATED: Oa- Y` (/
, 2015.
Notary Public
State of Washington
SONYA R CLAAR TEE
MY COMMISSION EXPIRES
OCTOBER 25, 2018
Master Aquatic Center Agreement
tee
[PRINT NAME] •-•..vr1
NOTARY PUBLIC for the State of Washington,
residing at
My appointment expires:
7
EXHIBIT 1
Ground Lease
[See Attached]
EXHIBIT 1
EXHIBIT 2
Development Agreement
[See Attached]
EXHIBIT 2
EXHIBIT 3
Operating Agreement
[See Attached]
EXHIBIT 3
AGREEMENT
THIS AGREEMENT ("Agreement") is entered into effective the J -11 ' day of n
, 2015 (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.
SOZO plans to purchase property located south of the Yakima Air Terminal, legally described in
Exhibit A, attached hereto and incorporated herein by this reference. The property is located
contiguous to the City limits on two sides of the property but is not within the City limits. SOZO
intends to acquire the property from Bohannon. The property described in Exhibit A may
sometimes herein be referred to as the "Bohannon Property". Upon SOZO's purchase of the
property SOZO will apply for annexation to the City. Upon successful completion of the
annexation, which the City pledges to support throughout the required process, the City shall
purchase from SOZO a specified portion of approximately forty (40) acres of the Bohannon
Property for the appraised value of the property, said specified portion to exclude that portion
described hereinbelow as the SOZO Sports Campus. As the owner the City will lease the
property so purchased, referred to as the "Yakima Sports Park", to SOZO and SOZO will
develop the Yakima Sports Park as specifically set forth herein, in addition to developing
SOZO's own parcels. From the Bohannon Property, SOZO has also arranged to convey a
specified portion thereof to a sponsoring entity, Cleat City, LLC, said specified portion to consist
of approximately twenty (20) acres of land upon which Cleat City will construct buildings and
other improvements for utilization by soccer participants and others and shall lease them to
SOZO. Approximately five (5) years after commencement of the Lease referred to hereinbelow,
Cleat City, LLC shall convey those improved properties to SOZO for utilization in conjunction
with the Yakima Sports Park as described herein. The portion of the Bohannon property to be
conveyed to Cleat City has no current legal description, but is intended by the Parties to
comprise approximately twenty (20) acres in the southeastern corner of the Bohannon Property
approximating a square, the precise size, configuration and servitudes of which shall be
determined by SOZO and Cleat City, but not in derogation of this Agreement. Parties agree that
the property owned by SOZO and the property leased by SOZO from Cleat City (both prior to
and following its conveyance from Cleat City) shall be referred to herein, from time -to -time, as
"the SOZO Sports Campus". The entirety of the Bohannon Property and the SOZO Sports
Campus may be referred to herein as "the Yakima Sports Complex". A proposed Building and
Site Plan depicting preliminary intent of the Parties is attached hereto as Exhibit B and
Agreement Between City of Yakima and -1-
SOZO Sports of Central Washington
incorporated herein by this reference. In order to ensure the availability of necessary irrigation
water for the proposed Yakima Sports Complex, it is understood and agreed that all water rights
associated with the Bohannon Property shall remain appurtenant to the Yakima Sports Complex
and may be utilized with any portion or portions of the Yakima Sports Complex as SOZO may
determine, not inconsistent with state law.
1.2 SOZO.
SOZO has the experience, ability, and resources to develop and operate the athletic, recreation
and associated facilities at the Yakima Sports Complex. SOZO intends to develop a regional
facility to provide premier soccer and other, related athletic and recreational uses, to serve multi-
age soccer teams within an approximate 6D mile radius from the boundaries of the Yakima
Sports Complex (the "service area").
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1.3 Facilities.
The Parties intend this Agreement to specifically identify the terms by which SOZO is granted
the exclusive rights to lease the Yakima Sports Park from the City and to develop, construct, and
operate SOZO Sports Campus and the Yakima Sports Complex, as described more fully in
attached Exhibit C. SOZO shall operate concessions and impose fees and charges within areas
of the Yakima Sports Complex, described herein, notwithstanding that the Yakima Sports Park
and all publicly funded improvements thereon shall remain 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 Yakima Sports
Complex and associated landscaping. All improvements to the Yakima Sports Park shall remain
the property of the City at the termination of this Agreement.
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 Yakima Sports Complex, 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 Park; SOZO will be responsible
to provide adequate parking to support the Yakima Sports Complex and its operations, as
required by M-1 zoning as anticipated by the Parties. SOZO also agrees to provide all costs
Agreement Between City of Yakima and -2-
SOZO Sports of Central Washington
associated with the installation of signalization for traffic control at the intersection of 3 8th
Avenue and Ahtanum Blvd.
1.8 Financing.
1.8.1 SOZO will be responsible for obtaining all necessary financing for the development and
operation of the Yakima Sports Complex, 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 SOZO Sports Campus will require this Agreement 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 Sports Campus 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 taking possession of the SOZO Sports
Campus; lender operating the Yakima Sports Complex pursuant to the terms of this Agreement;
and/or, lender selling, assigning and/or transferring SOZO's interest in this Agreement, the
Lease, and/or the SOZO Sports Campus.
ARTICLE 2
GROUND LEASE AND USE GRANT
2.1 Yakima Sports Complex.
2.1.1 City shall by separate lease instrument, forthwith upon gaining title thereto, convey and
grant unto SOZO an exclusive lease of the Yakima Sports Park, for the development,
construction and operation of that portion of the Yakima Sports Complex, as described herein.
The Lease shall set forth, in substance, the intended outcome, terms and conditions of the
operation of this Agreement. A preliminary building and 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 Sports Campus are or shall be owned by or
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 Yakima Sports Park shall remain the property of and be solely owned by
the City.
2.1.2 The common address of the Yakima Sports Complex is
Yakima, WA 98908.
2.2 Possession, Quiet Enjoyment and Covenants.
Agreement Between City of Yakima and -3-
SOZO Sports of Central Washington
Except as provided in Article 4.13 herein, SOZO shall be entitled to exclusive possession and
use of the Yakima Sports Park upon effective date of the Lease. Upon taking possession of the
Yakima Sports Park, and subject to SOZO's continuing performance under this Agreement and
the Lease, SOZO shall peaceably and quietly have, hold, and enjoy the Yakima Sports Park 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 Yakima Sports Park
during the full term of the Lease and this Agreement, and shall extend to the heirs, legal
representatives, successors and assigns of the Parties. No change in City's ownership of the
Yakima Sports Park, 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 Yakima Sports Park 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 enhancement and ongoing
operation of the Yakima Sports Complex.
Agreement Between City of Yakima and -4-
SOZO Sports of Central Washington
4.3 Investment.
SOZO will raise and invest not less than Four Million dollars ($4,000,000) in capital
expenditures, loans and/or pledges for the design, development and operation of the Yakima
Sports Complex, including the initial funding of SOZO operations, acquisitions and expenses
provided by Cleat City, LLC and/or its principals.
4.4 Athletic Center Building.
SOZO will construct an athletic center building on the SOZO Sports Campus parcel with at least
two indoor soccer facilities and associated uses to include, but not limited to concession sales,
pro shop, locker room facilities, three basketball courts, batting cages, office space, training
programs, league play, and tournaments to the youth and adults of the City and the surrounding
service areas.
4.5 Synthetic Turf Fields.
SOZO will construct a minimum of three outdoor lighted engineered FIFA -sized, championship -
quality synthetic turf soccer fields (or equivalent) and two indoor engineered fields and will
make these fields available to the youth and adult teams from the City and surrounding service
areas.
4.6 Grass Fields.
SOZO will construct and maintain fourteen full size grass soccer fields and will make these
fields available to the youth and adult soccer teams from the City and surrounding service areas.
4.7 Education — Scholarships.
4.7.1 SOZO will provide athletic skills, educational and development programs. SOZO will
also provide team fee scholarships for disadvantaged youths from the City and surrounding
service areas.
4.7.2 SOZO, as part of its community involvement program, will provide scholarships, grants,
awards, and other benefits to the underprivileged as SOZO shall, in good faith, determine from
time -to -time, taking into account its net profitability from operation of the Yakima Sports
Complex, its need to fund future operations, improvements and acquisitions, and reflecting the
intent of the Parties as set forth in this Agreement. SOZO's minimum annual contribution
toward meeting this goal shall be no less than five percent (5%) of the net annual revenue
derived from Yakima Sports Complex operation. The City may assist SOZO in this effort by
publicizing availability of scholarships and recommending to SOZO worthy potential recipients
of such scholarships who may have come to the attention of the City.
Agreement Between City of Yakima and -5-
SOZO Sports of Central Washington
4.8 SOZO Liaison.
Upon City request, SOZO will provide a dedicated contact person and liaison with the City for
all permit and license applications, changes and variances to complete the SOZO Sports
Complex in an expedited manner.
4.9 SOZO Sports Campus and Yakima Sports Complex.
SOZO will be fully responsible for all costs of improvement, operation and maintenance of the
Yakima Sports Complex, except as described in Section 5, below.
4.9.1 Incidental Uses.
SOZO may provide and/or authorize concessions, to include but not be limited to food and
beverages; sale of incidental items directly related to the use of the SOZO Sports Campus
including, but not limited to, pro shop athletic equipment, clothing, awards and related
merchandise; soap, shampoo, sundries and supplies; day-care/babysitting service, fitness and
sport training and gym activities.
4.9.2 Security and Nuisance During Use.
SOZO shall take reasonable precautions to secure the Yakima Sports Complex throughout the
full term of this Agreement. SOZO shall not use the Yakima Sports Complex for unlawful
purposes and shall not use or occupy the Yakima Sports Complex in any manner that would
constitute a public nuisance or violate Federal, State or local laws.
4.9.3 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 Yakima
Sports Park to serve the general public when not anticipated for use as a soccer facility or other
pre -scheduled events. SOZO recognizes that the Yakima Sports Park's primary purpose is to
provide community youth sports activities when the fields are not in use for specific pre -
scheduled events; the Yakima Sports Park shall be made available to the youth and adult teams
from the City and surrounding service areas. Except as specifically provided herein, the general
public shall retain access during regular business hours to the Yakima Sports Park, which access
may include "passive" individual activities that include, but are not limited to walking and
jogging. Accordingly, throughout the full term of this Agreement SOZO shall continuously
conduct and carry on SOZO's permitted uses and shall keep the Yakima Sports Park open for
business and cause SOZO's business to be conducted therein during the usual business hours of
each and every business day as shall be determined by SOZO based upon commercially
reasonable standards. This provision shall not apply if the Yakima Sports Complex should be
closed and the business of SOZO is temporarily suspended on account of labor strikes, lockouts,
or similar causes beyond the reasonable control of SOZO, or for maintenance, remodeling,
repair, or renovation as provided in the Lease. SOZO covenants and agrees to provide sufficient
Agreement Between City of Yakima and -6-
SOZO Sports of Central Washington
personnel, and to keep the SOZO Sports Campus adequately stocked with merchandise,
recreational equipment, fixtures and facilities so as to conduct its business in accordance with
sound business practice. SOZO, in order to keep its business commitments, shall be in operation
in accordance with standard business practices.
4.10 Entry by City.
City may, during normal operating hours, enter the Yakima Sports Park at all times to inspect,
provide services required hereunder, 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 Yakima Sports Park.
4.11 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
Yakima Sports Complex as said health department may deem proper.
4.12 Maintenance, Repair, Improvements.
4.12.1 Maintenance.
SOZO shall, at its sole cost and expense, clean and maintain the Yakima Sports Complex, and
make repairs, restorations, and replacements to the Yakima Sports Complex, including without
limitation the heating, ventilating, air conditioning, mechanical, electrical, and plumbing
systems, structural roof, walls, and foundations, roof coverings, sprinkling and irrigation
systems, playing surfaces and the fixtures and appurtenances to the Yakima Sports Complex as
and when needed to preserve them in "first class" condition and repair (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 the playing of sports and the
comfort of players. SOZO shall paint the exterior of the buildings on the Yakima Sports Park
(except the metal) with such frequency as may be required to maintain their 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
Yakima Sports Park 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 a statement for such expense.
Agreement Between City of Yakima and -7-
SOZO Sports of Central Washington
4.12.2 Sidewalk Maintenance.
At its sole cost and expense, SOZO shall maintain any sidewalks on the Yakima Sports Complex
in good and presentable condition during the full term of this Agreement, shall be responsible for
correcting any unsafe sidewalk conditions and shall be responsible for the removal of ice and
snow from the sidewalks.
4.12.3 Janitorial Services.
At its sole cost and expense, SOZO shall keep the Yakima Sports Complex clean, and shall
provide sufficient janitorial services to maintain a tidy appearance on and about the Yakima
Sports Complex. SOZO shall provide landscaping maintenance services, lawn and turf care,
mowing, fertilizing, irrigation, aeration, sweeping, cleaning, field and parking lot cleanup, trash
and litter collection, portable sanitation cleanup when and as required, such that landscaping on
the Yakima Sports Complex remains healthy, attractive, clean and well maintained.
4.12.4 Repair of Damage.
In the event any material damage shall occur to the Yakima Sports Park of any kind or nature
whatsoever, SOZO shall promptly cause said damage to be fully repaired or replaced, as is
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 Yakima Sports Park 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.
4.12.5 Improvements.
SOZO shall be solely responsible for providing adequate funding for any alterations or
improvements to the Yakima Sports Complex 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
and 5.10. All alterations and/or improvements made upon the Yakima Sports Complex 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.
4.12.6 Alterations of Premises After Construction.
After such time as the Yakima Sports Park has been completed and accepted as defined above,
SOZO shall not make any material alteration to the Yakima Sports Park, 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.
Agreement Between City of Yakima and -8-
SOZO Sports of Central Washington
4.13 Signs.
SOZO may place and maintain signs upon the Premises in accordance with the City sign
ordinance.
4.14 Utilities.
4.14.1 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, electricity, telephone, and other utilities and
communications services used by SOZO on the Yakima Sports Complex, 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 Yakima Sports Complex of utility
appurtenances and appliances for use in supplying such utilities and services to and upon the
Yakima Sports Complex. 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
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.
4.14.2 Trash & Garbage.
SOZO shall place all trash and garbage from the Yakima Sports Complex into such areas and
containers as are designed and intended to accommodate the trash and garbage generated within
or on the Yakima Sports Complex. SOZO shall not allow trash and/or garbage to accumulate
such that a nuisance or health hazard results or attract wildlife that could cause potential hazards
to aircraft operations at the Yakima Air Terminal.
4.15 Hazardous Substances.
4.15.1 Definition.
As used herein, the term "Hazardous Substance" means any hazardous, toxic or dangerous
substance, waste, or material, which is or 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.
Agreement Between City of Yakima and -9-
SOZO Sports of Central Washington
4.15.2 Access to Environmental Information.
SOZO shall keep upon the Yakima Sports Complex, 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 Yakima Sports Complex 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 Yakima Sports Park 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 pursuant to Chapter 42.56 RCW.
4.15.3 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 Yakima Sports Park as of the Effective
Date of the Lease; or (b) Hazardous Substances thereafter used, disposed of, or generated on the
Yakima Sports Complex by the City. These indemnities will survive the termination of this
Agreement, whether by expiration of the Term or otherwise.
4.16 Risk of Loss.
All SOZO's personal property of any kind or description whatsoever on the Yakima Sports
Complex 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 and shall assist in the annexation of
property subject to this Agreement in serving a municipal purpose, as is authorized under State
law.
Agreement Between City of Yakima and -10-
SOZO Sports of Central Washington
5.2 Off -Premises Street Access, Parking and Stormwater.
5.2.1 The City will maintain all existing public access areas serving the Yakima Sports
Complex that are not part of the Yakima Sports Complex, including, but not limited to,
stormwater retention facilities, 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 property, including landscaping associated therewith, located adjacent to or providing
access to and egress from the Yakima Sports Complex, consistent with applicable City standards.
5.2.3 The City will extend to exterior boundary lines of the Yakima Sports Complex such
utility services, roads, sidewalks, gutters and lighting as are reasonably necessary to gain
approval for zoning modification and/or development of the Yakima Sports Complex, or to
operate the Yakima Sports Complex, as part of City's Investment set forth in Section 5.10.
5.3 Naming Rights — Signs — Zoning.
5.3.1 The City grants to SOZO all rights to Yakima Sports Park naming and advertising,
including the naming of the complete Complex, which shall be coordinated by SOZO as part of
the property acquisition with real property funders/lenders/donors. Provided, however, the
reference "Yakima," "City of Yakima", or other reference to "Yakima" as approved by the City
shall be incorporated into names and signage when reasonably feasible.
5.3.2 The City agrees to cooperate with SOZO to modify the zoning code to facilitate the
development of any portion of the Yakima Sports Complex not otherwise permitted outright
under the zoning code, and Parties agree that if the full intent of this Agreement cannot be
achieved absent such zoning modifications, then either Party may terminate this Agreement prior
to entry into the Lease
5.3.3 The City will install directional signage to the Yakima Sports Complex as appropriate in
various locations throughout the City.
5.4 Liquor License.
The City will support SOZO obtaining a liquor license for the SOZO Sports Campus through the
established City approval process.
5.5 Public Safety.
The City will provide police and fire services to the Yakima Sports Complex consistent with
applicable City standards.
Agreement Between City of Yakima and -11-
SOZO Sports of Central Washington
5.6 Permitting.
The City will make its best effort to expedite all permits, licenses and other municipal approvals
required for completion and operation of the Yakima Sports Complex.
5.7 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 Yakima Sports Complex in an
expedited manner.
5.8 Promotion.
The City will use its best efforts to promote and support the Yakima Sports Complex within the
business community for the benefit of the Parties and the enhanced recreational use of the
resources.
5.9 Fees and Charges.
City grants and authorizes SOZO to establish and collect rents, fees and charges, and to retain all
revenues, including special event/tournament parking revenues, associated with the use of
Yakima Sports Complex. SOZO shall make reasonable efforts to balance admission fees for
events within the Yakima Sports Park open to the public to represent (1) the cost of the event or
activity, (2) the generation of revenue and (3) the regulation of Yakima Sports Park use, with the
primary goal to maintain Yakima Sports Park use fees at a cost affordable to the public.
5.10 Investment.
The City will provide Four Million One Hundred Thousand Dollars ($4,100,000) in capital
expenditures toward the acquisition of property for and the development of the Yakima Sports
Park as soccer fields and parking lots, as its part in development of the Yakima Sports Park, to
include, but not be limited to, extension of sewer, water and other utilities to the Yakima Sports
Park, construction of sidewalks, gutters and installation of lighting and on-site traffic control, if
deemed reasonably necessary. Except as specifically stated hereinabove, City resources shall not
be used for the acquisition of land for, or the design or development of the SOZO Sports Campus
or for the structures and assets associated with the soccer building located on the SOZO Sports
Campus parcel owned by or leased to SOZO upon which the soccer buildings and associated
structures are located.
ARTICLE 6
DESIGN AND CONSTRUCTION OF PREMISES
Agreement Between City of Yakima and -12-
SOZO Sports of Central Washington
6.1 Design.
6.1.1 SOZO shall retain a Washington State licensed architect or professional engineer to
design the Yakima Sports Complex and associated exterior landscaping which shall visually
blend with the setting. The City shall have the right to approve the final design of the Yakima
Sports Park, which shall 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 Yakima
Sports Complex.
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 building and site plans for the Yakima Sports Complex,
which shall depict and describe the structures, utilities, and landscape plan. The City shall have
the right to approve the final building and site plans comprising the Yakima Sports Park, such
approvals to not be unreasonably withheld.
6.3 Construction/Site Work/Fencing.
SOZO shall be solely responsible for all development and construction of the Yakima Sports
Complex and shall be responsible for the site work, all required permits and grading. SOZO
shall properly barricade the work area and install signage restricting unauthorized persons from
entering onto the building site during any phase of development or construction. Unless
otherwise specifically agreed by the City in writing, fencing shall be placed around the entire
work area during construction. In addition, the building site shall be kept in a clean and
organized condition during development periods. 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 commence development of the Premises within (6) months of
the Effective Date of the Lease. Commencement of development of the Yakima Sports Complex
is defined as that date upon which SOZO files its first application for a project permit, as defined
in RCW 36.70(a).020(4).
6.4.2 SOZO shall be required to complete the development and construction of the Yakima
Sports Park within one (1) year of the Effective Date of the Lease and thereafter proceed with
due diligence to complete the remainder of the Yakima Sports Complex construction and
development as described herein. Completion of the development and construction of the
Yakima Sports Complex is defined as that date upon which all final occupancy permits are
obtained by SOZO for all structures on the Yakima Sports Complex.
Agreement Between City of Yakima and -13-
SOZO Sports of Central Washington
6.4.3 SOZO may phase construction of improvements to those portions of the Yakima Sports
Complex not comprising the Yakima Sports Park.
6.5 Failure to Meet Construction Deadlines/Time of Essence.
6.5.1 Except as provided in Section 6.4.3 or 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 permit(s) for the Yakima Sports Complex.
6.6 Stormwater Drainage, Sewer and Water Lines.
SOZO will be responsible for installing all required storm drains, stormwater facilities, sewers,
water and irrigation lines from exterior boundary lines of the Yakima Sports Complex to all
required use points within the Yakima Sports Complex, as required to complete development and
construction of the Yakima Sports Complex.
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 Yakima Sports Complex. In
addition, SOZO shall be responsible for any additional costs for inspections billed to the City by
any government agency, including 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) and expense, 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
Complex. City shall be responsible for any such fees in excess of the amount set forth in this
Section 6.7.2.
6.8 Partial Public Works Project.
6.8.1 The development and construction of that portion of the Yakima Sports Complex
constructed on the City owned property shall be constructed as a public works project requiring
the payment of prevailing wages. SOZO is the developer and the City is an investing partner in
the cost of construction of that portion of the Yakima Sports Complex constructed on the City
owned property. The City shall be involved with and shall have responsibility for the bidding
and contracting processes for the public work portion of the Yakima Sports Complex. With
respect to the construction of that portion of the Yakima Sports Complex constructed on SOZO's
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SOZO Sports of Central Washington
property the City shall have no financial or other interest in the cost of property acquisition,
design, construction or development thereon. The portion of the acquisition, design and
development occurring on SOZO's property shall not be considered a public work and SOZO
shall not be required to follow public works bidding requirements or to pay prevailing wages, nor
will SOZO be obligated to pay or to contract for prevailing wages or any other standard of
payment controls associated with this privately owned portion of the project. 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 not
indicate in any manner that the development of the privately owned property is a City project, is
subject to a City public work contract, or any other such misleading statement indicating that this
private property development portion of the project is a public work project, either directly or
indirectly.
6.9 No Liens.
Except liens and 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 lien or 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 Yakima Sports Park, 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
portion of the Yakima Sports Park 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
Agreement Between City of Yakima and -15-
SOZO Sports of Central Washington
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 Yakima Sports Complex, 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 Yakima Sports Complex, Builders Risk insurance covering interests of the
City and the constructions contractor in the work. Builders Risk Insurance shall be on all-risk
policy form 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,
Agreement Between City of Yakima and -16-
SOZO Sports of Central Washington
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 share in the financing of construction improvements carried out upon, to, or with
respect to all portions of the Yakima Sports Park, excluding any and all improvements upon
SOZO's property, up to the total amount not to exceed Four Million One Hundred Thousand
Dollars ($4,100,000). Costs of improvements to the Yakima Sports Complex beyond the City's
"not to exceed" value set forth above shall be solely SOZO's responsibility for all financing
requirements for all property acquisition, project design, property development, construction,
maintenance, repairs, or subsequent improvements to the Yakima Sports Complex. The City
shall be under no obligation directly or indirectly to pay for any labor, material, or improvement
associated with the Yakima Sports Complex except as provided herein or mutually agreed upon
in writing hereafter. 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 portion of the Yakima Sports Complex beyond
what is provided herein, and the City shall have no responsibility or participation obligation
whatsoever in the development or construction of the privately owned SOZO property that is part
of the overall Yakima Sports Complex.
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 Yakima Sports Park 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, and in any SOZO building facility, personal property and fixtures in the Yakima
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SOZO Sports of Central Washington
Sports Park ("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 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 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 Collateral either by a deed in lieu of foreclosure or actual
foreclosure;
7.3.2 Rent and/or grant a ground lease of the Yakima Sports Park subject to this Agreement
pending foreclosure of the Collateral by lender;
7.3.3 Assign, sell and/or transfer the Collateral in whole or in part to any person or entity;
7.3.4 Take possession of any or all of the Collateral, obtain right of substitution for SOZO and
operate said 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 Yakima Sports Complex.
7.5 Surrender of the Collateral.
No surrender of Collateral or the Yakima Sports Complex 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.
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SOZO Sports of Central Washington
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:
a. 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
b. 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.
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SOZO Sports of Central Washington
7.7. Right to Assign.
Lender shall have the right to assign its interest in the 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 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 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 Collateral, as provided in this Agreement, and
realizes upon the Collateral, City agrees that lender is entitled to remove the Collateral, including
but not limited to building facility, furniture, movable trade fixtures and equipment, from the
Yakima Sports Complex at any reasonable time and that the Collateral shall remain personal
property even though the trade fixtures may be affixed to or placed upon the Yakima Sports
Park. In the event lender so realizes on its Collateral, City waives any right, title, claim, lien or
interest in the 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
Agreement Between City of Yakima and -20-
SOZO Sports of Central Washington
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 ten 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 (1%) 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 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
Agreement Between City of Yakima and -21-
SOZO Sports of Central Washington
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) SOZO Sports Campus becomes vacant or deserted for a period of sixty (60) days; or (4) if
this Agreement or the Lease shall be assigned, or any portion of the Yakima Sports Complex 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 (5) 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 Yakima Sports
Complex is destroyed or damaged by fire or other casualty, then SOZO shall proceed to rebuild
and restore the Yakima Sports Complex, 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 Yakima Sports Complex and replace the improvements,
fixtures, and equipment, which may be damaged or destroyed by such casualty.
8.4.2 Notwithstanding the forgoing, in the event the Yakima Sports Complex is destroyed by
fire or other casualty SOZO may elect to restore the Yakima Sports Complex 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.
Agreement Between City of Yakima and -22-
SOZO Sports of Central Washington
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 personal property, goods, and effects from the Yakima
Sports Park. In the event that SOZO fails to perform this duty at termination, the City may cause
such removal to be made and said personal property, goods, and effects to be stored, the actual
cost and expense to be paid by SOZO. It is mutually understood and agreed that all
improvements to the Yakima Sports Park shall revert to the City at the termination of this
Agreement.
8.6 Eminent Domain.
The following rules shall govern the rights and duties of the Parties in the event of interference
with SOZO's use or possession of SOZO's privately owned portions of the Yakima Sports
Complex as a result of the exercise of eminent domain or private purchase in lieu thereof
8.6.1 Rights of Termination.
If the whole of SOZO's privately owned portions of the Yakima Sports Complex shall be taken
for any public or quasi -public use under any statute or by right of eminent domain, or by private
purchase in lieu thereof, then this Agreement and the Lease shall automatically terminate as of
the date that title shall be taken. If more than twenty-five percent (25%) of the privately owned
portion of the Yakima Sports Complex shall be so taken and if the taking renders the remainder
thereof unusable for the purposes for which the Yakima Sports Complex was intended in accord
with this Agreement, then City and SOZO shall each have the right to terminate this Agreement
and the Lease on thirty (30) days notice to the other given within ninety (90) days after the date
of such taking. Provided, however, that if the City is exercising its rights of eminent domain, a
fair value shall be placed on this Agreement and SOZO's leasehold interest and the SOZO Sports
Campus with the compensation thereof awarded solely to SOZO, or lender pursuant to its
security interest, if any.
8.6.2 Non -Termination.
If any part of the privately owned portion of the Yakima Sports Complex shall be so taken and
this Agreement and Lease are not terminated, then the City shall, at its own cost and expense,
restore the remaining portion of the Yakima Sports Complex to the extent necessary to render it
reasonably suitable for the purposes for which it was intended in accordance with this
Agreement.
8.6.3 Compensation.
The compensation awarded or paid upon such a total or partial taking of the privately owned
portion of the Yakima Sports Complex and/or this Agreement and the Lease shall belong to and
be apportioned between the City and SOZO in accordance with their respective interests under
Agreement Between City of Yakima and -23-
SOZO Sports of Central Washington
this Agreement and the Lease as determined by a court of competent jurisdiction. Additionally,
SOZO may prosecute any claim directly against the condemning authority for the costs of
removal of the goodwill, stock, trade fixtures, furniture and other personal property belonging to
SOZO. City shall have no claim to condemnation proceeds that are attributable to SOZO's
interest in the Collateral, including the Lease, nor shall lender have any interest in City's
condemnation proceeds, if any.
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 as granting a ground
lease to SOZO for which the City contributes investment capital for development of soccer
playing fields. SOZO has the experience, ability, and resources to develop and operate the
Yakima Sports Complex 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
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SOZO Sports of Central Washington
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.
Tony O'Rourke, City Manager
City of Yakima
129 North Second Street
Yakima, WA 98901
SOZO Sports of Central Washington, Inc.
P.O. Box 48299
Yakima, WA 98908
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.
Agreement Between City of Yakima and -25-
SOZO Sports of Central Washington
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 Yakima Sports Complex and its contents, including all 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
Yakima Sports Complex 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
Agreement Between City of Yakima and -26-
SOZO Sports of Central Washington
SOZO shall be liable to the other party or to any insurance company (by subrogation or
otherwise) insuring the other party for an loss or damage to any building, structure or tangible
personal property of the other occurring in or about the Yakima Sports Complex, 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 soccer 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, specifically
recognizing and accepting, nonetheless, the intent of the Parties to permit SOZO to convey a
portion of the Bohannon parcel to Cleat City, LLC, and to lease it back after construction of
improvements, without need for further consent by the City. Except as provided in Article 7 and
Section 9.7.2 herein, neither party shall assign the Agreement in part or as a whole, without the
Agreement Between City of Yakima and -27-
SOZO Sports of Central Washington
written consent of the other. Except as provided in Article 4.8 herein, SOZO shall not sublease
any of the Yakima Sports Park, without written notice to and approval from the City.
9.7.2 The City acknowledges that SOZO is authorized under this Agreement and the 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
consistent with Section 4.12.1.
9.7.3 When requested, City's approval of a subcontract or sublease shall not be unreasonably
withheld or delayed.
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 responsibilities 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, 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
Agreement Between City of Yakima and -28-
SOZO Sports of Central Washington
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.
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 Yakima Sports Park 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 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.
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.
Agreement Between City of Yakima and -29-
SOZO Sports of Central Washington
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.
Agreement Between City of Yakima and -30-
SOZO Sports of Central Washington
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.
Agreement Between City of Yakima and -31-
SOZO Sports of Central Washington
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 April, 2015.
CITY OF YAKIMA
A Washington Municipal Corporation
By
Tony O'R. rke, City Manager
Date:
APPROVED AS TO FORM:
By
(L#/'
Jeff Cu e f�¢ity Attorney
�
ATTEST
By
SOZO SPORTS OF CENTRAL
WASHINGTON, INC.
A Not -for -Profit Washington Corporation
Sonya Claar Te-, City Clerk
City Contract No.:
.o)S-Ob'i
Resolution No.:
Exhibit A – Legal Description of Yakima
Sports Complex
Exhibit B – Preliminary Building and Site
Plans
Exhibit C – SOZO Sports Campus
Agreement Between City of Yakima and -32-
SOZO Sports of Central Washington
LEASE AGREEMENT
CITY OF YAKIMA TO SOZO SPORTS OF CENTRAL WASHINGTON, LLC
This lease agreement (the "Lease"), made and entered January 4, 2016, by and between
the CITY OF YAKIMA, WASHINGTON, a municipal corporation, ( the "City") and SOZO
SPORTS OF CENTRAL WASHINGTON, a Washington non-profit corporation, or permitted
assigns, ("SOZO").
WITNESETH:
WHEREAS, City has certain property owned by it that is located south and west of Yakima
Air Terminal -McAllister Field (the "Airport") and more properly described in Exhibit A (the
"Property"), available for development as provided by this Lease, and SOZO desires to
develop the Property in accordance with the specific terms and conditions set forth in the
Agreement entered by the Parties hereto, and,
WHEREAS, City has approved certain conditions to the Lease set forth in that certain
Agreement between the parties hereto dated April 9, 2015, a copy of which is attached
hereto as Exhibit B and incorporated herein by this reference (the "Agreement").
NOW THEREFORE, in consideration of the entry into the Agreement and of the mutual
covenants contained herein and the benefit to be derived by each party, the parties agree
as follows:
1. INTENT OF AGREEMENT:
The intent of this Lease is to allow SOZO to develop the leasehold from bare land
into a Soccer/Sports Complex. The development includes the construction of all
necessary interior infrastructure (utilities, paving, parking area, soccer fields,
concession stands, fencing, etc.), as depicted on Exhibit C attached hereto and
incorporated herein by this reference, at the sole expense of SOZO. SOZO shall
apply to the City for leasehold building/development permits no later than six (6)
months after the date of entry of this Lease as set forth above. SOZO's failure to
apply for building/development permits required for leasehold development within
six (6) months from date of entry of this lease written above and to comply with the
specific development provisions set forth in the Agreement shall be grounds for
termination of this Lease at the sole discretion of the City. It is understood and
agreed by the parties that the Agreement previously entered into by the parties
contains terms and conditions necessarily incorporated by this reference into the
Lease as if fully set forth herein. In the event of discrepancy between the terms of
this Lease and the Agreement, the Agreement shall prevail.
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2. DEMISE OF PROPERTY:
City hereby leases to SOZO and SOZO leases from City the Property, together with
all rights of ingress, egress, public road access and utility connections to the
Property.
SOZO shall develop the Property as provided in the conceptual site plan attached
hereto as Exhibit C as soon as feasible following Effective Date of this Lease,
subject to the terms and conditions set forth elsewhere herein. Failure by SOZO to
meet the development deadlines herein contained and as represented in the
Agreement shall constitute a material breach of the Lease, in which event City, at its
option, may terminate the Lease and the Agreement for cause.
3. TERM — EFFECTIVE DATE:
The tenancy provided by this Lease shall commence on January 4, 2016 and shall
end on December 31, 2055. SOZO shall have the option to extend its tenancy
under this Lease for two (2) additional ten (10) year terms by providing written notice
to City at least six (6) months prior to the end of the preceding lease term. The sum
of the term provided by the preceding two (2) sentences but as otherwise potentially
terminated pursuant hereto is the lease term (the "Term"). The Effective Date of
this Lease shall be the date upon which SOZO first submits an application for a
building/development permit for the subject leasehold with the City.
4. MORTGAGE:
SOZO and its subtenants or assigns shall have, and are hereby given, the right to
mortgage the leasehold created by this Lease or by any sublease thereunder or
assignment thereof, in whole or part, for a period of time not to exceed the Term.
City shall be given written notice of any such mortgage, including the mortgagee's
address and loan number. City shall have no right to terminate this Lease or retake
possession of the Property unless thirty (30) days' written notice of such default is
given by the City to SOZO and the mortgagee at the last address provided in writing
by SOZO to City. Mortgagee shall have the authority to effect cure of said default to
the same extent as SOZO if said cure is effected as provided in Section 21 hereof.
5. RENT:
In consideration of the demise of the Property, SOZO agrees to pay to City rentals
as follows:
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Ten dollars ($10.00) per year, payable entirely in advance, upon execution of this
Lease.
Payments shall be made to the City of Yakima at the City Finance Office or at such
other place as shall be directed by City. In the event of exercise of Options to
Extend this Lease, payments for such renewal terms shall likewise be paid in
advance, at commencement of each such extended term.
6. DEPOSIT:
[Not applicable — deposit not required].
7. TAXES AND LIENS:
In addition to the reserved rent as it comes due, SOZO promises and agrees to pay,
as the same become due and payable, all governmental fees and taxes, if any,
payable by reason of this Lease, the use of the Property, or the construction or
ownership of improvements thereto; provided, however, that leasehold excise tax
shall be paid by City and not by SOZO. SOZO shall neither suffer nor permit the
attachment of any lien or other encumbrance on the Property except as permitted
by Section 4 hereof. SOZO agrees to defend, indemnify and hold harmless City
from any such fees, taxes or liens.
8. USE:
SOZO shall not commit waste and shall use the Property only for the
construction, modification, remodeling and maintenance of a soccer/sports
complex as described in the Agreement. SOZO's use of the Property shall be
subject to the following additional limitations:
A. Use, development and construction on the Property shall be compatible with
private and commercial aircraft operations at, to or from the Airport as of the
commencement of the Term, inclusive of considerations respecting takeoff and
landing from existing runways overflight, avoidance of electrical interference with
aircraft or ground control radio communications, lighting that interferes with visual
location of the Airport, siding, lighting, or roofing that creates glare that materially
affects pilots using the Airport, the creation of dust, smoke or steam that constitutes
a danger to aircraft using the Airport, and crops, ground cover, or other
improvements that attract wildlife constituting a danger to aircraft using the Airport.
B. The Property shall be used only for sports -oriented community activity and
reasonably -related activities and for any other use allowed by the Agreement,
the Airport Master Plan and by the specific zoning of the Property in effect at the
commencement of the Term or as otherwise approved by the City, such approval
not to be unreasonably withheld or delayed.
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C. Due to the proximity of the Yakima Air Terminal the Property shall not, at any
time, other than with the express written approval of the Yakima Airport
Manager, be used for staging, launching, over flight, hovering, performance or
exhibition of any kind involving remote control (RC) aircraft, hover craft, drones,
helicopters or unmanned aerial vehicles for any purpose whatsoever, including,
but not limited to, recreational or commercial uses.
9. UTILITIES:
SOZO shall be responsible for all utility services including, but not limited to, power,
natural gas, water, sewer, and garbage from the exterior edge of the Property.
10. PREMISES CONDITION:
SOZO accepts the Property AS -IS. Nothing contained in the preceding sentence
shall affect SOZO's rights to indemnity from City as provided in Section 19 hereof.
11. MAINTENANCE:
SOZO agrees,, at its sole cost and expense, to keep the Property clean, and shall
provide landscaping maintenance services, lawn and turf care, mowing, fertilizing,
irrigation, aeration, sweeping, cleaning, field and parking lot cleanup, trash and litter
collection, portable sanitation cleanup when and as required, such that landscaping
on the Property remains healthy, attractive, clean and well-maintained. SOZO shall
implement an effective program of weed control, garbage and debris removal, ash
removal, snow removal and pavement maintenance.
12. SIGNS:
SOZO shall have all rights to naming of the Property and its activities, including
advertising and signage, subject to City codes generally applicable to all similarly
situated uses. Notwithstanding the foregoing, the reference "Yakima", "City of
Yakima", or other reference to "Yakima" as approved by the City shall be
incorporated into names and signage when reasonably feasible.
13. IMPROVEMENTS:
All buildings, fields, trade fixtures and other improvements to the Property by SOZO
shall conform to applicable land use laws and building codes and shall be
performed in accordance with the specific terms set forth in the Agreement. SOZO
shall be responsible for procuring all building and other permits therefore. All
4
improvements shall be designed and constructed in accordance with SOZO's
development plan, as amended from time to time and as disclosed from time to time
by SOZO to City. City shall be entitled to approve such development plan and each
material modification thereto before it becomes effective, such approval not to be
unreasonably denied or delayed. Approval of such development plan or
modifications thereof shall be deemed granted forty-five (45) days after submitting
the proposal in writing to City if no specific response has been provided by City to
SOZO within that time. City does not represent the feasibility or governmental
approval, other than by City of any such development plan or modification thereto.
City shall not impose a condition upon the approval of such Development Plan or
modifications thereto that violate any applicable law, other than ones applicable to
the Airport, or which would be violative of any insurance policy required to be
maintained by SOZO.
14. REVERSION OF IMPROVEMENTS:
Upon expiration or termination of this Lease for any reason, unless otherwise
agreed to in writing between City and SOZO, all improvements to the Property shall
revert to the City without requirement of payment of any type by City to SOZO.
Upon termination or expiration of this Lease, SOZO shall remove all its trade
fixtures and repair any damage to the premises caused by removal of trade fixtures
to the reasonable satisfaction of the City Manager. Fixtures not removed within
sixty (60) days after termination or expiration shall become the property of the City
unless other arrangements have been previously approved in writing by the City
Manager.
SOZO shall, as additional consideration for grant of this Lease, insure that all liens,
security interest and other encumbrances against said improvements and structures
except those created or suffered by City, whether consensual or involuntary, shall
be paid, discharged or satisfied prior to time for reversion thereof to City; and, in any
event, the parties acknowledge that City shall not, by virtue of termination of the
leasehold interest nor reversion of the structures or other improvements, be liable
for any debt or encumbrance associated therewith, whether now existing or
hereafter incurred, levied or attached.
15. REGULATIONS:
SOZO agrees to comply with all applicable laws, ordinances, rules, regulations and
policies of all governmental authorities having jurisdiction over the Property,
including policies adopted by City, as such laws, ordinances, rules, regulations and
policies apply to the use and operation of the Property.
16. SUBLETTING; PARTIAL ASSIGNMENT:
5
Subject to the agreement to perform and the performance of the terms hereof by
any subtenant or partial assignee of SOZO, City's consent is required for any
sublease or partial assignment of the Property by SOZO, which consent shall not be
unreasonably withheld or delayed. No sublease or partial assignment shall relieve
SOZO of its obligation to perform this Lease.
17. ASSIGNMENT:
SOZO shall have the right to assign its interest in this Lease to an affiliated entity
owned or controlled by SOZO or in a merger in which SOZO is the surviving entity
or to a lender for security purposes, subject to the terms set forth in Articles 7 and
9.7 of the Agreement without City's consent, provided that SOZO shall give City
written notice of and opportunity to review such assignment documents. Except as
permitted in this paragraph, SOZO shall not assign its rights in this Lease without
the prior written consent of City, which consent shall not be unreasonably withheld
or delayed. City may withhold consent only based upon the financial condition of
the proposed assignee and/or material change in proposed use of the Property.
Any assignee of this Lease and/or SOZO's rights hereunder shall assume SOZO's
obligations under this Lease and the Agreement, however said assignment shall not
relieve SOZO of its obligation to perform this Lease in every respect. Such
assignment shall be in conformance with all City, local, state and federal laws,
ordinances, rules, regulations and policies and the assignee shall comply with all
laws, ordinances, rules, regulations and policies applicable to the use and operation
of the Property, facilities and operations as those laws, ordinances, rules,
regulations and policies now exist or may hereafter become effective. Consent to
assignment by City shall not be construed to be consent to any subsequent
assignment.
City agrees that, without need for further approval or consent, SOZO is authorized
under this Lease to enter into space leases, rental agreements, and/or grant sub -
concessions within the Property for individual facility operations, food and beverage
services, athletic equipment operation, sales and service and similar supporting
entities consistent with Section 4.12.1 of the Agreement.
18. MISCELLANEOUS PROVISIONS:
A. City may further develop or improve Airport property and facilities regardless of
the desire or views of SOZO regarding any such development or improvement, and
without interference or hindrance on the part of SOZO and without liability to SOZO.
B. SOZO shall limit the building area to that portion of the Property which is south
of the building restriction line as defined by the Airport Layout Plan and to a height
not to exceed thirty five (35) feet unless approved by Airport Manager and the
Federal Aviation Administration. SOZO shall not erect or build temporary/
6
permanent objects or structures which could cause a hazard to aircraft operations
and/or penetrate the Airport's Part 77 Navigable Airspaces as described on the
Airport Layout Plan and 14 Code of Federal Regulation Part 77 (all applicable
sections).
C. This Lease shall be subordinate to the provisions of any existing or future
agreement between City and the United States of America relative to the operation
or maintenance of the Airport, the execution of which has been or may be required
as a condition to the expenditure of federal funds for the development of the Airport.
D. Air space above the property may be exposed to aircraft noise, vibration, fumes,
dust and fuel particulates, as may be inherent in the operation of aircraft, now
known or hereafter used for aircraft navigation and flight while using said air space
for landing at, taking off from, or operating within the Airport area.
E. SOZO shall be responsible for weed control on non-developed parcels, including
but not limited (where appropriate) to: mowing; spraying; removal of noxious
weeds, etc.
F.SOZO shall post undeveloped portions of the Property against trespass by
unauthorized individuals, including no hunting signs, and shall prevent illegal
dumping of debris on the property.
19. INDEMNITY/DUTY TO DEFEND:
A. Except as provided in Paragraph 19(E), SOZO shall defend, indemnify and hold
harmless City and its elected and appointed officials, employees and agents, from
any and all losses directly suffered by City and from any and all liability, damages,
suits, claims, actions, judgments or decrees, made against the City or its elected
and appointed officials, employees and agents based on the use or occupancy of
the Property during the Term or from default by SOZO or any assignee or
subtenant hereunder, in any term or condition of this Lease.
B. Except as provided in Paragraph 19(E), City shall defend, indemnify and hold
harmless SOZO and its managers, members, agents, independent contractors, and
employees, from any and all losses directly suffered by SOZO, its managers,
members, agents, independent contractors and employees, and from any and all
liability, damages, suits, claims, actions, judgments or decrees, made against SOZO
or its managers, members, agents, independent contractors, or employees based
on the use or occupancy of the Property for any time other than during the Term or
as a result of City's default in any term or condition of this Lease, excepting any
liability, damage, suit, or claim arising from the occupancy or use of the Property by
SOZO or as a result of SOZO's operations on the Property or from any other act or
omission of SOZO, its servants, employees, agents, invitees, independent
contractors, assignees, subtenants or any other entity, person, firm or corporation
acting on behalf of SOZO or under its direction, whether such claim shall be by
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SOZO or a third party; provided, however, that SOZO shall not be liable for any
injury, damage or Toss occasioned solely by the sole negligence of City, its agents or
employees. City shall give to SOZO prompt and reasonable notice of any such
claims or actions and SOZO shall have the right to investigate, compromise and
defend the same to the extent of its interest.
C. City shall defend, indemnify, and hold harmless SOZO, its managers, members,
agents and employees, from any and all claims and actions, loss, damage, expense
or cost, resulting from, arising out of, or caused by City and which leads to any
liability under the Federal Comprehensive Environmental Response Compensation
Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq.; Hazardous Materials
Transportation Act, 49 U.S.C. 1801 et seq.; Resource Conservation and Recovery
Act, 42 U.S.C. 6901 et seq.; the Clean Water Act, 42 U.S.C. 1251 et seq.; the
Washington Environmental Policy Act, RCW Ch. 43.21C; the Washington Water
Pollution Control Act, RCW Ch. 90.48; the Washington Hazardous Waste
Management Act, RCW Ch. 70.105; the Washington Model Toxic Control Act, RCW
Ch. 70.105D, and the regulations promulgated thereunder, or under any applicable
local or state environmental ordinance, statute, law, rule or regulation. The
provisions of this Paragraph 19(C) shall survive the termination of this Lease.
D. SOZO shall defend, indemnify, and hold harmless City, its elected and
appointed officials, agents and employees, free and harmless from any and all
claims and actions, loss, damage, expense or cost, resulting from, arising out of, or
caused by SOZO, its assignees and/or subtenants, resulting in any liability under
the Federal Comprehensive Environmental Response Compensation Liability Act of
1980, as amended, 42 U.S.C. 9601 et seq.; Hazardous Materials Transportation
Act, 49 U.S.C. 1801 et seq.; Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; the Clean Water Act, 42 U.S.C. 1251 et seq.; the Washington
Environmental Policy Act, RCW Ch. 43.21C; the Washington Water Pollution
Control Act, RCW Ch. 90.48; the Washington Hazardous Waste Management Act,
RCW Ch. 70.105; the Washington Model Toxic Control Act, RCW Ch. 70.105D, and
the regulations promulgated thereunder, or under any applicable local or state
environmental ordinance, statute, law, rule or regulation. The provisions of this
Paragraph 19(D) shall survive the termination of this Lease.
E. The defense, indemnity, and hold harmless provided in Paragraphs 19(A)
through 19(D) hereof shall apply only to the extent the party claiming same is not at
fault with respect to the event giving rise thereto. If both parties are at fault, such
defense, indemnity, and hold harmless shall be applied under principles of
comparative fault.
20. INSURANCE:
SOZO agrees that, at all times during the full term of the Lease, it shall, at its own
expense, maintain in full force and effect adequate fire and other casualty coverage
8
for the Property and its contents, including all personal property, fixtures and
improvements of SOZO. 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 Property to its pre -casualty
condition.
Prior to execution of this Lease, SOZO, at its 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 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 Lease or the Agreement. 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 Lease and the Agreement. SOZO shall ensure 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.
21. DEFAULT; TERMINATION; AND FORFEITURE:
A. The failure by SOZO to comply with any material term, provision or condition
of this Lease shall constitute grounds for termination of this Lease. This Lease
and tenancy shall terminate for cause as specified above on written notice by
City to SOZO stating in detail the manner in which SOZO fails or has failed to
comply with this Lease. SOZO shall comply with this Lease in the manner
specified in the notice within sixty (60) days (except twenty days with respect to
default regarding payment of rent or other monetary obligation) from SOZO's
receipt of such notice, provided, however, that if the nature of SOZO's default
(other than for monetary defaults) is such that more than sixty (60) days are
reasonably required for its cure, then SOZO shall not be deemed to be in default
if SOZO commences such cure within said sixty (60) day period and thereafter
diligently prosecutes such cure to completion, otherwise this Lease and tenancy
shall be terminated. Such notice shall be given in writing and served on SOZO
by personal delivery or mailed by certified mail with return receipt requested
addressed to SOZO at its address stated below or such other address as the
parties may advise each other in writing. Notices shall be deemed received
three (3) days after mailing. In addition to the provisions hereinabove, and/or as
an alternative or cumulative remedy, City may, at its sole election, pursue any
other action, redress, or remedy now or hereafter available to City under the laws
9
of the State of Washington, including state Landlord -Tenant laws.
B. As respects land and land improvements only, and not the building, as additional
and not alternative remedy, optional with City and upon sixty (60) days written notice
to SOZO, should SOZO be in default hereunder, City may cure or correct the same
and the cost of such action by City shall immediately become due and payable from
SOZO, together with late fees on said sum at a rate of ten percent (10%) per
annum, and the non-payment of said sum by SOZO shall be adequate grounds for
City to invoke the other remedies as provided in this Lease.
C. The failure by City to comply with any material term, provision or condition of this
Lease shall constitute grounds for termination of this Lease. This Lease and
tenancy shall terminate for cause as specified above on written notice by SOZO to
City stating in detail the manner in which City fails or has failed to comply with this
Lease. City shall comply with this Lease in the manner specified in the notice within
sixty (60) days from City's receipt of such notice, provided, however, that if the
nature of City's default is such that more than sixty (60) days are reasonably
required for its cure, then City shall not be deemed to be in default if City
commences such cure within said sixty (60) day period and thereafter diligently
prosecutes such cure to completion, otherwise this Lease and tenancy shall be
terminated. Such notice shall be given in writing and served on City by personal
delivery or mailed by certified mail with return receipt requested addressed to City at
its address stated below or such other address as the parties may advise each
other in writing. Notices shall be deemed received three (3) days after mailing. In
addition to the provisions hereinabove, and/or as an alternative or cumulate remedy,
SOZO may, at its sole election, pursue any other action, redress, or remedy now or
hereafter available to it under the laws of the State of Washington, including state
Landlord -Tenant laws.
22. VENUE, ATTORNEY FEES:
In the event of litigation to enforce the rights and obligations hereunder, venue shall
lie in a court of competent jurisdiction in Yakima County, Washington. The
prevailing party shall be entitled to its reasonable attorney fees in addition to court
costs.
23. NON-DISCRIMINATION CLAUSE:
To the extent required by law, SOZO, for itself, its personal representatives,
successors in interest and assigns, as a part of the consideration hereof, does
hereby covenant and agree as follows:
A. No person, on the grounds of race, color, religion, sex, age, marital status,
handicap or national origin, shall be unreasonably excluded from participation in,
denied the benefits of, or be otherwise subjected to discrimination in SOZO'
10
personnel policies and practices or in the use or operation of SOZO' services or
facilities.
B. SOZO agrees that in the construction of any improvements on, over or under
City land and the furnishing of services thereon, no person, on the grounds of race,
color, religion, sex, marital status, handicap, age or national origin, shall be
unreasonably excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination.
24. INTEGRATION:
Exhibits and Recitals are incorporated herein by this reference. This Lease and the
Agreement incorporated herein embody the entire agreement between the parties
with respect to the subject matter herein contained. No amendments or
modifications hereof shall be enforceable unless in writing, signed by the party to be
charged.
25. NOTICE:
All notices allowed or required hereunder shall be effective if given in writing and
served by personal delivery or delivered by certified mail, return receipt requested,
at the address shown below unless a different address is designated by a party in
writing:
If to City:
If to SOZO:
YAKIMA CITY MANAGER
129 N. 2nd Street
Yakima, Washington 98901
SOZO SPORTS OF CENTRAL WASHINGTON
1200 Chesterley Drive, Suite 140
Yakima, Washington 98902
26. BINDING EFFECT AND BENEFIT:
This Lease shall be binding upon and inure to the benefit of the parties hereto, their
successors, assigns and subtenants.
27. ESTOPPEL CERTIFICATES:
11
City shall issue estoppel certificates to tenants, assignees, and lenders of SOZO
upon request and in forms required by such tenants, assignees, and lenders.
CITY:
CITY OF YAKIMA, WASHINGTON
By.
Jeffre NCu er, Interim City Manager
By: �`\✓_���� �', -204
Mark Kunkler,4Acting City Attorney Date
/2-//-°/�
Date
STATE OF WASHINGTON )
) ss
County of Yakima
I certify that I know or have satisfactory evidence that Jeffrey R. Cutter and Mark Kunkler
signed this instrument, on oath stated that they were authorized to execute the instrument
and acknowledged it as the Interim City Manager and the Acting City Attorney,
respectively, of the City of Yakima, Washington to be the free and voluntary act of such
party for the uses and purposes mentioned in the instrument.
Date: I ' ' 1
By: IJ & 1.,
Notary PublicJ
Appointment Expires
SOZO:
io. S1'
00
CITY CONTRACT M _ c r - p 51
RESOLUTION N0
SOZO SPORTS OF CENTRAL WASHINGTON
By:
Kerry Martin,
12
resident
Notary Public
State of Washington
SONYA R CLAAR TEE
MY COMMISSION EXPIRES
OCTOBER 25, 2018
Date
STATE OF WASHINGTON
County of Yakima
)
) ss
)
isit.Ifk A ..... 4 A P Al. A
TAMMY A. REGIMBAL
Notary Public
State of Wlashington
My Commission Expires
July 9, 2017
I certify that I know or have satisfactory evidence that Kerry Martin signed
this instrument, on oath stated that they were authorized to execute the instrument and
acknowledged it as the President and , of SOZO Sports of Central Washington,
a Washington non-profit corporation, to be the free and voluntary act of such party for the
uses and purposes mentioned in the instrument.
Date /- .7- 2_0/ 6
By: deo-nm--2 10,t,1'
Notary Public
Appointment Expires 7 " 9 " /
13
EXHIBIT A
CITY OF YAKIMA TO SOZO SPORTS OF CENTRAL WASHINGTON
LEASE
Lots 3 and 4 of Short Plat 7893928, records of Yakima County, Washington.
Assessor's Parcels 181334-34003, 181334-43403
AMENDMENT No. 1
THIS AMENDMENT No. 1 (the "Amendment") is entered into effective the 5 lay of August, 2015 for
the purpose of amending that certain AGREEMENT entered into on April 9, 2015, 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 "Agreement"). The City and SOZO are referred to in the
Agreement as the "Parties".
1. Authority. This Amendment is in accordance with Section 9.13 of the Agreement.
2. Substitution of Seller. City agrees that SOZO may assign its purchase of the property described in
Section 1.1 and Exhibit A of the Agreement (the "Property") to a third party. In the event of such assignment, City
agrees to purchase the property identified in the Agreement as the "Yakima Sports Park", from such assignee upon
the same terms and conditions as those set forth in the Agreement as if the seller were SOZO. City further agrees
,that such assignment will have no other effect on the terms and conditions of the Agreement and City affirms its
performance thereof.
3. Remaining Provisions. Except as specifically set forth herein, the remaining provisions of the
Agreement are ratified by the Parties.
4. Counterparts. This Amendment 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.
IN WITNESS WHEREOF, this Amendment has been entered into between the City of Yakima and SOZO Sports of
Central Washington as of this day of August, 2015.
CITY OF YAKIMA
A Washington Municipal Co.'
4
By. �.:..�.L J►:
Tony O' ' i ke, City Manager
Date: U ' , 45 -
APPROVED
APPROVED AS TO FORM:
By:
ATT -T
�i�Lr111
By:
utter, City Attorney
SOZO SPORTS OF CENTRAL
WASHINGTON, INC.
A Not -for -Profit Washington Corporation
By
Date: Avc. 5 261.5
Son Claar Tee, City Clerk
City Contract No.: .;2-65 — 08 /
Resolution No.• ' a -0(s'--/03
.4 -
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1958
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Scale 1 80b"
Parcel #: 18133434001 Address: 2210 S 38TH AVE, YAKIMA ,WA 98903
58.57 Acre(1) Owner. Cleat City LLC
Zoning: MI
OWNFR DATA
Name: Dr Lloyd Butler
Phone Number (509) 307-4534
Address: Plan IL LLC
1214 No. 20th Ave.
Yakima, WA 98902
SITF PI AN KFY
.I'-- 162'
1964'
.docaping Public R/W
Water Service
Sewer Service
Fence
Required oftstreet parldng table 6-1 94.100 / 200 = 471 required stall
Parking Stalls Provided 1,238
Compliance planter area per 15A.06.090
Impervious Area
A
Par4ang lot area
Sidewalk
Mao Building
Support Building
Tota Area
Total Site Area
510.311.1 sq N
64,361 sq ft
80.000 sq ff
18.549 sq 0
675.221.1 sq ft
2.551.309 sq ft
Impervious Coverage 26.46%
NOTFS-
Standard Parking Stag Dimensions:
9'019'
Standard Driveways:
25
DESIGN
DEVELOPMENT
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SITE PLAN / EAST
Scale 1 80b"
Parcel #: 18133434001 Address: 2210 S 38TH AVE, YAKIMA ,WA 98903
58.57 Acre(1) Owner. Cleat City LLC
Zoning: MI
OWNFR DATA
Name: Dr Lloyd Butler
Phone Number (509) 307-4534
Address: Plan IL LLC
1214 No. 20th Ave.
Yakima, WA 98902
SITF PI AN KFY
.I'-- 162'
1964'
.docaping Public R/W
Water Service
Sewer Service
Fence
Required oftstreet parldng table 6-1 94.100 / 200 = 471 required stall
Parking Stalls Provided 1,238
Compliance planter area per 15A.06.090
Impervious Area
A
Par4ang lot area
Sidewalk
Mao Building
Support Building
Tota Area
Total Site Area
510.311.1 sq N
64,361 sq ft
80.000 sq ff
18.549 sq 0
675.221.1 sq ft
2.551.309 sq ft
Impervious Coverage 26.46%
NOTFS-
Standard Parking Stag Dimensions:
9'019'
Standard Driveways:
25
DESIGN
DEVELOPMENT
Drawing Data
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