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HomeMy WebLinkAboutR-2004-083 Yakima Valley Farm Workers Clinic Operating Agreement (re: former Senior Citizen Center )RESOLUTION NO. R-2004-83 A RESOLUTION authorizing the City Manager of the City of Yakima to execute an Operating Agreement with the Yakima Valley Farm Workers Clinic for the purposes of operating the former Yakima Senior Center located at 602 North Fourth Street, Yakima, Washington, as a neighborhood facility to meet the needs of youth and families in the greater Yakima area. WHEREAS, the City is the owner of the former Yakima Senior Center ("Center'), located at 602 North Fourth Street; and WHEREAS, the City desires that the Center be managed, operated, and maintained as a neighborhood facility in order to meet the needs of youth and families in the greater Yakima area, including but not limited to structured recreational and academic activities for youth, family enrichment services, and behavioral health services for community members; and WHEREAS, the Yakima Valley Farm Workers Clinic, in conjunction with the Northwest Community Action Center (''NCAC') and the Yakima Police Athletic League (''YPAL'), is willing to operate the Center as a neighborhood facility for said purposes and in accordance with the attached Operating Agreement; and WHEREAS, the City Council Economic Development Committee has reviewed the proposed use of the Center with representatives of NCAC, YPAL, and the Yakima Valley Farm Workers Clinic and recommends that the City enter into an Operating Agreement with the Yakima Valley Farm Workers Clinic; and WHEREAS, the City Council deems it to be in the best interest of the City to authorize execution of the attached Operating Agreement with the Yakima Valley Farm Workers Clinic, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached "Operating Agreement" with the Yakima Valley Farm Workers Clinic for the purposes of operating the former Yakima Senior Center located at 602 North Fourth Street, Yakima, Washington, as a neighborhood facility to meet the needs of youth and families in the greater Yakima area. The City Attorney shall approve the final form of the Agreement. ADOPTED BY THE CITY COUNCIL this 22nd day of June, 2004. ATTEST: City Clerk Paul P. George, Mayor YAKIMA YOUTH CENTER OPERATING AGREEMENT THIS AGREEMENT is made and entered into this day of , 2004, by and between the City of Yakima, a Washington municipal corporation (hereinafter "City"), and the Yakima Valley Farm Workers Clinic, a nonprofit corporation (hereinafter "Operator"). WITNESSETH: WHEREAS, the City is the owner of the Yakima Youth Center (hereinafter "Center"), which is located within the City of Yakima and is legally described as follows: Lots 1 and 2, Block 64, Town of North Yakima, now Yakima, as recorded in Volume "E" of Plats, Page 1, records of Yakima County, Washington; TOGETHER WITH the vacated right-of-way for East "F" Street. WHEREAS, the parties to this Agreement desire that the Center be managed, operated, and maintained in accordance with the provisions, terms, and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. General Management Responsibilities and Expenses of Operator. The Operator shall manage, operate, and maintain the Center consistent with City policies and with the general concepts of a non-profit facility. Specifically, the Operator shall manage, operate, and maintain the Center as a neighborhood facility in order to meet the needs of youth and families in the greater Yakima area, including but not limited to structured recreational and academic activities for youth and family enrichment services for community members. Except as otherwise provided herein, the Operator shall, at its sole expense and cost, promptly pay all costs of administration, operational expenses, maintenance costs, taxes, overhead, utilities, and other fees relating to or arising out of the use of the Center. The Operator may also seek additional financial resources from private and public sources (e.g., private foundations, government grants) to pay these costs and donations for equipment, personnel, supplies and services to enhance the Youth Center operations. The City shall not be required to reimburse the Operator for any of the operational expenses or maintenance costs which the Operator is obligated to pay as provided above or for any capital improvements which the Operator may make to the Center pursuant to Section 4 below. The Operator agrees to perform the services contemplated by this Agreement in consideration of the community action benefits to 1 be derived hereunder; the City shall have no obligation to pay the Operator for said services. 2. Term of Agreement. The term of this Agreement shall commence at 12:01 a.m., July 1, 2004, and shall terminate at midnight, June 30, 2009, unless earlier terminated by either party in accordance with Section 24 of this Agreement. 3. Maintenance. The Operator shall keep the interior of the Center at all times in as good repair and condition as the same now is, ordinary wear and tear resulting from careful usage and damage by the elements without fault on the part of the Operator alone excepted. The Operator shall maintain and repair the doors, windows, and all interior walls and fixtures for the Center. In addition, the Operator shall be responsible for routine maintenance (costing $500 less) of the heating and conditioning �! �e ! ! of of �e e� ! S 9Q33 94, �? 3�? MJF: -�., (costing 'v7 '�,de ae,) or less) dee 4.,9 9•d heating 4.x71 !�,- S,1L !�-1 air `-�� a e�-7Ab1`-a! 1!9 0� (HVAC) system and the interior electrical and plumbing fixtures. The Operator shall also provide janitorial/cleaning services and sidewalk snow removal. The City shall maintain and repair the foundation, outside walls, structure, and roof and shall be responsible for major repairs (costing in excess of $500) to the heating and air conditioning (HVAC) system and the electrical and plumbing systems, at the City's expense. In addition, the City shall maintain and repair the landscaping, parking lot (including lighting and providing for parking lot snow removal) and the park grounds adjoining the Center. Notwithstanding any other provision of this Section, the City's obligations hereunder are expressly made subject to the annual availability of funds that have been appropriated by the Yakima City Council. Such appropriations involve the legislative prerogative of the City Council, and no assurance can be given that appropriated funds will be available in any particular year. In the event that the City is unable to perform its obligations under this Section 3 due to insufficient appropriations, the Operator shall have no obligation to perform such maintenance and repair obligations at its expense, nor shaii it be responsible for any damage caused by the failure to do such maintenance and repair. 4. Alterations, Modifications and Capital Improvements. The Operator shall make no alteration, modification, and/or capital improvements to the Center building and surrounding property as legally described herein without the prior written consent of the City. Any such alterations, modifications, and/or capital improvements shall be made at the sole expense and cost of the Operator unless otherwise provided by mutual written agreement of the parties. 5. Leases and License Agreements. AH leases for a term of twelve (12) months or more in duration for space at the Center must be in writing and consented to by the City Manager or his authorized designee, which consent shall not be unreasonably withheld. Short-term license agreements and leases (having a duration of Tess than twelve (12) months) will not require consent by the City Manager. All leases and license agreements shall be executed and performed in compliance with all applicable federal, state, and local statutes, laws, and ordinances. Within thirty (30) days after the execution thereof, the Center shall provide the City with written copies of all lease 2 agreements and license agreements for space at the Center. Every such lease or license agreement shall also contain a provision requiring the tenant or licensee to pay the full amount of leasehold excise tax, if applicable, in accordance with the requirements of RCW Chapter 82.29A, as now or hereafter amended. It shall be the affirmative responsibility of the Operator to collect the leasehold excise tax, if applicable, from all tenants and licensees in accordance with the provisions of RCW Chapter 82.29A, as now or hereafter amended, and to remit said taxes to the City Department of Finance and Budget on a monthly basis. 6. Lease and License Revenue. All payments received and revenue from Center leases and license agreements shall be handled and controlled by the Operator for operational expenses and managing of the Center. The Operator shall provide the City with a written financial report, on at least an annual basis, showing the amount of lease and license revenue received from all sources. All of the Operator's lease and license revenue information shall be compiled and maintained in accordance with generally accepted accounting principles. 7. Utilities. The Operator shall pay all charges for water, heat, lights, power, and any other utilities which may be required or used by the Operator in the use or operation of the Center and agrees to pay the same in a timely fashion and agrees to pay the same so as to prevent any lien or shutoff of service from occurring. Any deposits or other charges required by any entity furnishing such utilities shall be paid by the Operator. 8. Taxes and Assessments. The Operator shall be solely responsible for compensating its employees and for paying all related taxes, deductions, and assessments, including but not limited to federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement, the Operator shall pay the same before it becomes due. 9. Independent Contractor Status of Operator. The Operator and the City understand and expressly agree that the Operator is an independent contractor in the performance of each and every part of this Agreement. The Operator, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the services required under this Agreement. Additionally, and as an independent contractor, the Operator and its employees shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and/or retirement benefits. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership or agency between the Operator or any officer, employee or agent of the Operator and the City. 3 10. Maintenance of Records, Annual Report and Inspections. a. The Operator shall maintain accounts and records, including property, financial, and program records, and such other records as the City may deem necessary to ensure proper accounting for aii project funds and compliance with this Agreement, including a system of internal controls and accounting systems which conform to generally accepted accounting principles and auditing standards. b. All such records and documents shall be retained by the Operator and shall be available for inspection, audit and copying by City representatives and/or appropriate federal/state officials during the term of this Agreement and for a period of three (3) years following the termination of this Agreement. c. On or by the July 1, 2005 and July 1 of each year thereafter that this Agreement is in effect, the Operator shall deliver to the City an annual written report describing in reasonable detail for the previous year the Center's uses, operations, maintenance, capital improvements, and any other significant information relating to the Center. The annual report shall include a written financial operating statement prepared by the Operator in accordance with generally accepted accounting principles_ Upon the City's request, the Operator shall provide such additional financial information as the City, in its sole discretion, desires to obtain relating to this Operating Agreement and all transactions pertaining thereto. 11. Access and Inspection. The City shall have the right at all reasonable times to have access to the Center property and to make inspections thereof, subject to giving the Operator one (1) day's prior notice thereof. City employees who may exercise such inspection right include but are not limited to police officers, fire inspection personnel, and code enforcement personnel. If any inspection demonstrates, in the opinion of the inspector clear and present danger to the public, the Center, or those in attendance at the Center, the inspector, the Fire Chief, the Police Chief or other appropriate City official/officer may order the event or activity concluded and the Center vacated, at no risk or liability to the City, its public officials, officers, employees, and/or agents. The Operator shall not enter into any lease or license agreement respecting space in the Center without incorporating into such lease or license agreement a provision that contains the language of this provision regarding the City's right of inspection and authority to order an event or activity concluded and to vacate the Center. 12. Drug-Free Workplace. The Operator shall maintain a drug-free workplace in accordance with the Drug-Free Workplace Act of 1988 and 34 C.F.R. Part 85, Subpart F for grantees (defined in 34 C.F.R. Part 85, Sections 85.605 and 85.610). The Operator shall not permit any tenant and/or other party to possess and/or consume any illegal drug(s) at the Center and the surrounding property as legally described herein during the term of this Agreement. 13. Prohibition Against Possession and/or Consumption of Intoxicating Liquor. The Operator shall not permit any tenant or other party to possess and/or consume any intoxicating liquor, beer, wine and/or similar beverage/substance at the 4 Center and the surrounding property as legally described herein during the term of this Agreement. 14. Maximum Occupancy of Center. The Operator shall comply, and shall ensure that tenants comply, with maximum occupancy levels as set forth in the applicable provisions of the Yakima Municipal Code and in accordance with federal, state and/or local laws and regulations. 15. Security. Operator shall, at its sole expense and cost, provide security for the Center building and property to the satisfaction of the City, which security shall, at a minimum, include an automatic intruder detection system, and secure door and window locks. 16. Personal Property. The Operator shall be responsible for the possession, use, and maintenance of all personal property (including personal property of the City) located at the Center and shall take all reasonable steps to ensure that such personal property is not removed from the Center. An inventory of the City's personal property is attached hereto as Exhibit "A" and incorporated herein by this reference. 17. Non -Discrimination. During the performance of this Agreement, the Operator shall not discriminate in violation of any applicable federal, state and/or local law or regulation on the basis of race, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, mental or physical handicap. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. This non-discrimination provision shall include but not be limited to the following: a. The benefits or services provided by the Operator at the Center; b. The rules, regulations, and/or practices established by the Operator for use of the Center; c. All lease and license agreements entered into by the Operator with respect to space in the Center; and d. The employment practice of the Operator at the Center, including but not limited to employment, promotion, demotion, transfer, recruitment, advertising, layoff, termination, rates of pay, compensation, and selection for training. The Operator shall not enter into any lease or license agreement respecting space in the Center without incorporating in such lease or license agreement provisions which will ensure that the use or occupancy of the Center, in the provision of neighborhood services and other benefits, will be available without regard to race, creed, color, national origin, religion, sex, marital status, age, or the presence of any sensory, mental, or physical disability. The Operator shall also furnish all information, 5 evidence, documents and reports required by the City to substantiate compliance with this non-discrimination clause. 18. Compliance with Applicable Laws. The Operator shall operate, maintain, and manage the Center in accordance with all applicable statutes, laws, regulations, and ordinances and shall not allow the Center to be used for any unlawful purposes. The Operator shall not commit any waste on the Center property nor damage same nor permit waste or damage by others. 19. Insurance Requirements. a. Property Insurance. The Operator shall procure and maintain a policy or policies of property insurance with respect to the Center covering all property owned by the Operator including personal property and tenants' improvements and betterments. The Operator will hold the City harmless for any damage to property owned by the Operator and waive its right of subrogation for any damage to its property. b. Liability Insurance. On or before the effective date of this Agreement, the Operator shall provide the City an Acord certificate as proof of liability insurance in the !.G liability the amount of One Million Dollars ($1,000,000.00) per occurrence combined bodily injury and property damage that states who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, its officers, elected officials, agents, and employees as additional insureds and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) days' prior written notice. The insurance shall be on an occurrence form with an insurance company rated A -IX in Best's Guide or companies approved by the City. A copy of all such policies shall be provided to the City upon request. c. Industrial Insurance. The Operator shall comply with the provisions of RCW Title 51, Industrial Insurance. For the duration of this Agreement, the Operator shall provide or purchase industrial insurance coverage for its employees, as may be required of an "employer" as defined in RCW Title 51, and shall maintain full compliance with RCW Title 51. d. Tenants must carry liability insurance. Unless otherwise authorized by the City Manager, the Operator shall require that all tenants of the Center maintain and provide proof of liability insurance coverage in accordance with Subsection b of this Section, including but not limited to the same level of coverage and naming the City, its officers, agents, and employees as additional insureds. e. City does not provide insurance for Operator. It is understood the City does not maintain any form of insurance for the Operator, its officers, employees, volunteers, and/or agents. It is further understood that the Operator is no obligation to maintain any form of insurance for the City, including the Center and the City's personal property contained therein, except as provided in this Section. 6 20. Indemnity. a. The Operator agrees to hold harmless, indemnify, and defend the City, its elected officials, officers, employees, agents, and/or volunteers from and against any and all suits, actions, claims, liability, damages, judgments, costs and expenses (including reasonable attorney's fees and disbursements) arising from the Operator's failure to perform or negligent performance of its obligations under this Agreement, and/or its negligent acts in connection with the operation and/or use of the Center. b. The City agrees to hold harmless, indemnify, and defend the Operator, its directors, officials, officers, employees, agents and/or volunteers from and against any and all suits, actions, claims, liability, damages, judgments, costs and expenses (including reasonable attorney's fees and disbursements) arising out of its negligent acts and/or its failure to perform its obligations under this Agreement. c. In the event that both the Operator and the City are negligent, each party shall be liable for its contributory share of negligence for any resulting suits, actions, claims, liability, damages, judgments, costs and expenses (including reasonable attorney's fees). d. Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. e. This Section of the Agreement shall survive the term or expiration of this Agreement and shall be binding on the parties to this Agreement. 21. Assignment. This Agreement, or any interest herein or claim hereunder, shall not be assigned or transferred in whole or in part by the Operator to any other person or entity without the prior written consent of the City. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of Operator stated herein. 22. Severability. a. If a court of competent jurisdiction holds any part, term or provision of this Agreement to be illegal or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. b. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict and shall be deemed modified to conform to such statutory provision. c. Should the City determine that the severed portions substantially alter this Agreement so that the original intent and purpose of the Agreement no longer exist, the City may, in its sole discretion, terminate this Agreement. 7 23. Non -Waiver of Breach. A waiver by either party hereto of a breach by the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency', rlclav nr fails ira of cithcr nark, to inClct 1 innn ctrirt nPrfnrmanrP of Any LVI IIV. IV„ '..l 7 V. .M.. M. V V. V1%... party ..V .. .v.vr v'.r V. • rr• •..r r-. • . .....vv . r.. ., agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 24. Termination. Either party may terminate this Agreement, with or without cause, by giving the other party thirty (30) days' written notice of termination. 25. Survival. Any provision of this Agreement which imposes an obligation after _ _ - 1. the of this termination or expiration of this Agreement shall survive the term orexpiration this Agreement and shall be binding on the parties to this Agreement. 26. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent to the parties to their addresses as follows: TO CITY: Richard A. Zais, Jr., City Manager Yakima City Hall 129 North Second Street Yakima, WA 98901 TO OPERATOR: Juan Carlos Olivares, Executive Director Yakima Valley Farm Workers Clinic/NCAC 518 West First Avenue Toppenish, WA 98948 or to such other addresses as the parties may hereafter designate in writing. Notices and/or demands shall be sent by registered or certified mail, postage prepaid or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 27. Integration and Suaersession. This Agreement sets forth all of the terms, conditions, and agreements of the parties relative to the subject matter hereof and supersedes any and all such former agreements which are hereby declared terminated and of no further force and effect upon the execution and delivery hereof. There are no terms, conditions, or agreements with respect thereto except as herein provided, and no amendment or modification of this Agreement shall be effective unless reduced to writing and executed by the parties. 28. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 8 29. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. CITY OF YAKIMA YAKIMA VALLEY FARM WORKERS CLINIC By: By: R. A. Zais, Jr. City Manager Date: Date: ATTEST: City Clerk City Contract No. Resolution No. STATE OF WASHINGTON County of Yakima On this day personally appeared before me , to me known to be the of Yakima Valley Farm Workers Clinic, the entity that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said entity, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute the said instrument. GIVEN UNDER my hand and official seal this day of , 2004. Printed Name: Notary Public in and for the State of Washington, residing at My commission expires 9 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 1 For Meeting of June 22, 2004 ITEM TITLE: Resolution Authorizing Execution of Operating Agreement for the former Senior Citizen Center, 602 North Fourth Street, Yakima. SUBMITTED BY: Chief Sam Granato, Police Department CONTACT PERSON/TELEPHONE: Lt. Mike Merryman, 575-6218 SUMMARY EXPLANATION: The Yakima Senior Center, located at 602 North Fourth Street, was vacated with the opening of a new Senior Center in May 2004. The Yakima Valley Farm Workers Clinic, in conjunction with the Northwest Community Action Center ("NCAC") and the Yakima Police Athletic League ("YPAL"), is willing to manage, operate and maintain the Center as a neighborhood facility in order to help meet the needs of youth and families in the greater Yakima area. The Council on Economic Development Committee met with representatives of NCAC, YPAL and the Yakima Valley Farm Workers Clinic and supports the concept of the Center's being utilized as a facility for providing community services for youth and families. The City Council is respectfully requested to adopt the attached resolution authorizing execution of an operating agreement with the Yakima Valley Farm Workers Clinic for said purposes. Resolution X Ordinance Contract X Other (Specify) Funding Source -d, tieleAcii City Manager APPROVED FOR SUBMITTAL: STAFF RECOMMENDATION: Adoption of resolution authorizing execution of operating agreement with Yakima Valley Farm Workers Clinic. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2004 83