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HomeMy WebLinkAboutR-2011-048 Upper Kiwanis Park Concession/Restroom Facility Development Agreement with Sun Yakima, LLC RESOLUTION NO. R- 2011 -48 A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute an agreement between the City of Yakima and Sun Yakima, LLC for development of a concession /restroom facility in Upper Kiwanis Park WHEREAS, the City of Yakima (hereafter called "City ") is a municipal corporation duly formed and existing under the laws of the State of Washington with City Hall located at 129 North Second Street, Yakima, Washington 98901; and WHEREAS, Sun Yakima, LLC is a limited liability company duly formed and existing under the laws of the State of Washington, the leadership of which is comprised of the Kiwanis Trust, Lions Trust and Yakima Rotary Trust, all nonprofit community service organizations; and WHEREAS, City owns, operates and maintains a public park known as Upper Kiwanis Park located within the City with common street address known as 405 Fair Avenue, Yakima, Washington. The Park is operated and managed by the Parks and Recreation Division of the City; and WHEREAS, Sun Yakima desires to enhance the Park for the benefit of the community by constructing a facility to house a concession stand and public restrooms. City and Sun Yakima have previously entered into an Agreement for the improvement of the Park, whereby Sun Yakima agreed to contribute $500,000 for the improvement project, with $200,000 designated for property acquisition and $300,000 for development, in order to secure state matching funds in like amounts for the same purposes as part of a State of Washington RCO Grant. Such Agreement (City Contract No. 2009 -63) between the City and Sun Yakima was approved pursuant to City Resolution No. R- 2009 -74 adopted May 19, 2009; and WHEREAS, City is authorized to enter into agreements with community service organizations for the construction of improvements to public parks pursuant to RCW 35.21.278 and other statutes, and desires to enter into this agreement with Sun Yakima for the design, construction and completion of a Concession /Restroom Facility at Upper Kiwanis Park; and WHEREAS, it is in the best interest of the City of Yakima to execute the attached agreement, now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is herby authorized and directed to execute the attached and incorporated "Agreement between the City of Yakima and Sun Yakima LLC for development of Concession /Restroom Facility in Upper Kiwanis Park." ADOPTED BY THE CITY COUNCIL this 5 day of April, 2011. 1 Micah Cawley, M or ATTEST: hrlsit City C er AGREEMENT BETWEEN CITY OF YAKIMA AND SUN YAKIMA, LLC FOR DEVELOPMENT OF CONCESSION/RESTROOM FACILITY IN UPPER KIWANIS PARK THIS AGREEMENT is entered into between the City of Yakima, a municipal corporation, and Sun Yakima, LLC, a Washington limited liability company, for the purpose of development of a Concession /Restroom Facility in Upper Kiwanis Park. I. RECITALS A. City of Yakima (hereafter called "City ") is a municipal corporation duly formed and existing under the laws of the State of Washington with City Hall located at 129 North Second Street, Yakima, Washington 98901. B. Sun Yakima, LLC (hereafter called "Sun Yakima ") is a limited liability company duly formed and existing under the laws of the State of Washington, the leadership of which is comprised of the Kiwanis Trust, Lions Trust and Yakima Rotary Trust, all nonprofit community service organizations. C. City owns, operates and maintains a public park known as Upper Kiwanis Park (hereafter called "Park') located within the City with common street address known as 405 Fair Avenue, Yakima, Washington. The Park is operated and managed by the Parks and Recreation Division of the City. D. Sun Yakima desires to enhance the Park for the benefit of the community by constructing a facility to house a concession stand and public restrooms. City and Sun Yakima have previously entered into an Agreement for the improvement of the Park, whereby Sun Yakima agreed to contribute $500,000 for the improvement project, with $200,000 designated for property acquisition and $300,000 for development, in order to secure state matching funds in like amounts for the same purposes as part of a State of Washington RCO Grant. Such Agreement (City Contract No. 2009 -63) between the City and Sun Yakima was approved pursuant to City Resolution No. R- 2009 -74 adopted May 19, 2009. Subsequently, Sun Yakima expended approximately $256,000 for property acquisition in compliance with the grant. E. City is authorized to enter into agreements with community service organizations for the construction of improvements to public parks pursuant to RCW 35.21.278 and other statutes, and desires to enter into this agreement with Sun Yakima for 1 the design, construction and completion of a Concession/Restroom Facility at Upper Kiwanis Park. II. AGREEMENT NOW, THEREFORE, in consideration of the mutual benefits, covenants, conditions and promises herein, the parties agree as follows: Section 1. Purpose. The purpose of this Agreement is to set forth the rights and responsibilities of the parties in the development of a Concession /Restroom Facility at Upper Kiwanis Park; to define the scope and financing of such project; and to set forth provisions for administration of such project. Section 2. Concession/Restroom Facility. The Concession/Restroom Facility (hereafter "Facility") shall consist of a unified structure with separate rooms and facilities to accommodate: (a) the sale of food and products of the type normally offered for sale at a concession stand for sporting events in public parks; and (b) public restroom facilities. Section 3. Obligations of Sun Yakima. Sun Yakima shall perform the following obligations: Funding of Project: Sun Yakima shall expend up to $300,000 toward the construction of the Facility as described below. The nature of this expenditure shall include, but is not limited to, the following: site preparation immediately surrounding the structure, provision of materials and labor for construction of a fully functional three season building, as well as fees for necessary architectural and engineering design services. A. Design of Facility. Sun Yakima shall be responsible for the design of the facility and pay all costs of engineers, surveyors and architects engaged by Sun Yakima for such purpose. The parties will cooperate in the planning, design, scheduling of construction and location of the Facility. All designs and construction plans for the Facility are subject to review and approval by City, and City shall have final authority regarding approval of design and location of the Facility within the Park. Design of the Facility shall be in compliance with all applicable codes of City. B. Obtain Permits and Approvals. Sun Yakima shall obtain all necessary permits from City and other agencies with jurisdiction for the design and 2 construction of the Facility. Specifically, without limiting the above, Sun Yakima shall present a dust abatement plan and obtain any applicable permit from the local clean air authority for the construction of the Facility. C. Construction of Facility. Sun Yakima shall be responsible for construction of the Facility in accordance with a construction plan and timeline approved by City. Sun Yakima shall be responsible for construction management, including necessary inspections, and may contract with licensed contractors for the performance of the construction and /or construction management. Sun Yakima may also engage the services of qualified volunteers to perform such construction work, at its discretion. D. City Inspections of Work. Sun Yakima shall permit City building and code inspectors on the construction site at all times, and shall provide City with inspection reports required pursuant to City codes and procedures. Sun Yakima shall also allow all inspectors of agencies with jurisdiction, including but not limited to the City, free access to the construction site and construction files as required by laws and procedures of such agencies. E. Final Completion and Acceptance. Upon final completion of the construction, Sun Yakima shall release the completed Facility to City, free and . clear of all liens and encumbrances, including but not limited to, contractors' and materialmen's liens. F. Costs of Design and Construction. Sun Yakima shall be responsible for payment of all costs of design and construction of the Facility. G. Safety of Construction Activities. Sun Yakima shall be responsible to assure that all construction activities are conducted in compliance with applicable safety standards, including but not limited to appropriate security measures to safeguard the site during non - construction hours. Sun Yakima shall submit a Safety Plan to the City for approval prior to commencement of construction. H. Insurance. , Sun Yakima shall provide proof of liability and Course of Construction /Builder's Risk insurance, naming City as an additional insured, with terms satisfactory to City covering construction activities and claims or 3 occurrences arising out of the construction of the Facility. The amount of the Course of Construction coverage shall equal the value of the construction contract. I. Reports of Expenditure. Sun Yakima shall provide City with reports of expenditures on the construction of the Facility, including but not limited to the following: (a) Prior to commencement of construction work, a report of anticipated expenses, including estimated costs of materials, and services of contractors and architects/engineers, including the value of in -kind, donated materials and /or services, and volunteer labor; and (b) Within thirty (30) days following final completion of the Facility, a written report of expenditures, including costs of materials, contractors, architects and engineers, and a report of the value of in -kind services, donated materials and/or services, and volunteer labor. Upon receipt, review and approval by City of the Final Report of Expenditure as described above, the amount approved shall be credited against the total $300,000 referenced in Section 3 ( "Funding of Project ") above. The parties agree that any balance of the $300,000 funding remaining after such credit shall be expended for additional improvements to the Park or Park facilities as mutually agreed. Section 4. Obligations of City. City shall perform the following: A. Planning and Design of Facility. City shall assist in the planning and design of the Facility, and will work with Sun Yakima regarding construction timeline and coordination with any other construction activity within the Park. City will cooperate with Sun Yakima regarding scheduling of Park use to facilitate efficiency and safety of Park users during construction activities. B. Review and Approval of Plans. City will review all plans for the Facility, including design, for compliance with applicable law and codes. All plans and permits are subject to final approval by City. C. Scheduling of Meetings. City will cooperate with Sun Yakima regarding scheduling of necessary and appropriate meetings, including pre -plan 4 • meetings, necessary or appropriate to review . plans for the Facility, construction progress and final acceptance. D. Incorporation of Finished Facility into City Park. Upon release of the completed Facility, such Facility shall be incorporated into the Park and used, managed, maintained and repaired by City as part of the public park system of City. E. Ownership of Facility. City shall at all times during the performance of this Agreement and afterwards be deemed the owner of the Park and the owner of the Facility. Such ownership shall attach to all structures of the Facility as constructed and affixed to the Park or affixed within the Facility during construction. Prior to attachment to or incorporation within the Facility during construction, all materials on site shall be deemed owned by Sun Yakima. Section 5. Term. The term of this Agreement shall commence upon execution hereof and shall remain in effect unless the Agreement is terminated earlier by either party under Section 18 of this Agreement. Sun Yakima shall proceed with its obligations in a timely and diligent manner but shall not have any responsibility for delays caused by acts of nature or others beyond the control of Sun Yakima or that were not reasonably foreseeable. Section 6. Administration. This Agreement shall be administered by the City's Parks and Recreation Division. Section 7. Independent Contractor. Sun Yakima and the City understand and expressly agree that Sun Yakima is an independent contractor in the performance of each and every part of this Agreement. Sun Yakima, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the work/services required for its performance under this Agreement. Sun Yakima, as an independent contractor, shall have the sole judgment of the means, mode or manner of the actual performance of work/services required for its performance under this Agreement. Additionally, and as an independent contractor, Sun Yakima 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. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership, or agency between Sun Yakima and /or any officer, employee or agent of Sun Yakima and the City. Section 8. No Third Party Rights. This Agreement is entered into for the sole benefit of the parties. It shall confer no benefits or rights, direct or indirect, on any third parties. No person or entity other than the City and Sun Yakima may rely upon or enforce any provision of this Agreement. 5 Section 9. Indemnification and Hold Harmless. A. Each party hereto agrees to maintain responsibility and assume liability in the performance of this Agreement for its own wrongful and /or negligent acts or omissions, and those of its officers, agents or employees to the fullest extent allowed by law. B. The provisions of this Section shall survive the termination or expiration of this Agreement. C. Nothing contained in this Section or this Agreement shall create a liability or a right of indemnification in any third party. Section 10. Nondiscrimination. During the performance of this Agreement, the Parties shall not discriminate in violation of any applicable federal, state and/or local law or regulation on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability, honorably discharged veteran or military status, pregnancy, sexual orientation, and any other classification protected under federal, state or local law. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. Section 11. Compliance With Law. The Parties to this Agreement shall comply with all applicable federal, state and local laws, rules and regulations in carrying out the terms and conditions of this Agreement. Section 12. No Insurance. It is understood the City does not maintain liability insurance for Sun Yakima or its employees and subcontractors, nor does Sun Yakima maintain liability insurance for the City or its employees and contractors, except as otherwise provided herein. Section 13. Waiver of Breach. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. Section 14. Dispute Resolution. The City and the Sun Yakima shall meet to negotiate any outstanding issues related to the construction of the Facility and the performance of this Agreement in order to resolve any disputes through cooperation and negotiation to the greatest extent possible. In the event any dispute cannot be resolved through cooperation and negotiation, the parties agree to submit such dispute to a mediator, mutually acceptable to both parties. Each party shall bear and pay its own expenses and costs of mediation, including attorneys' fees, and the parties will each pay one -half of the mediator's fee. If such dispute is not resolved through 6 mediation, the parties may seek redress through any court with jurisdiction, and the substantially prevailing party therein shall be entitled to recover its costs of suit together with its reasonable attorneys' fees. Section 15. Integration. This Agreement contains all of the terms and conditions agreed on by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement, are deemed to exist or to bind either of the parties. Section 16. Modifications. The parties may modify this Agreement but no proposed changes or modifications shall have validity or become binding on either party unless such changes or modifications are in writing and executed by both parties. Section 17. Severability. A. If a court of competent jurisdiction holds any part, term or provision of this Agreement illegal or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held invalid. B. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict and shall be deemed modified to conform to such statutory provision. Section 18. Termination. Either party may terminate this Agreement, with cause, by written notice of default from the non - defaulting party to the defaulting party, if the default is not cured within thirty (30) days following the giving of such notice. In addition, either party may terminate this Agreement, without cause, upon thirty (30) days' written notice to the other party before either party has incurred expenses in excess of $1,000 following the full execution of this Agreement to perform its obligations hereunder, but not thereafter, except for cause. Section 19. Survival. Any provision of this Agreement which imposes an obligation after expiration or termination of this Agreement shall survive the expiration or termination and shall bind the parties. Section 20. Notices. Unless otherwise stated herein, all notices and demands are required in written form and sent to the parties at their addresses as follows: TO: CITY OF YAKIMA - City Manager City of Yakima 129 North Second Street Yakima, WA 98901 7 TO: SUN YAKIMA c/o Yakima Rotary Trust Jim Berg, President P.O. Box 464 Yakima, WA 98907 -0464 Section 21. Governing Law. This Agreement shall be govemed by and construed in accordance with the laws of the State of Washington. Section 22. Filing. Copies of this Agreement shall be filed with the Yakima County Auditor or otherwise posted pursuant to RCW 39.34.040, and with the City Clerk of Yakima. CITY OF YAKIMA SUN YAKIMA, LLC, by the Kiwanis Trust, Lions Trust, and Yakima Rotary Trust R.A. Zais, Jr., City Manager Mike Wilson, President Ki anis Trust // !, ,;' . 4.. ,I1,r Dick Elliott, President Lions Trust i erg, President Ya 4 Rotary Trust io/ /i 4 /I i /11 Date Signed Date Signed ATTEST: Deborah Kloster, City Clerk AL � �SE of CITY CONTRAC r NO WD / \� ,gSHING .......... '?D / / RESOLUTION NO:, 8 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 1 • For Meeting of April 5, 2011 ITEM TITLE: A Resolution authorizing an Agreement with Sun Yakima, LLC to develop a new concession /restroom facility at Upper Kiwanis Park SUBMITTED BY: Chris Waarvick, Director of Public Works Ken Wilkinson, Parks and Recreation Manager Mark Kunkler, Senior Assistant City Attomey CONTACT PERSON/TELEPHONE: Ken Wilkinson, 575 -6020 SUMMARY EXPLANATION: Sun Yakima, LLC, a legal consortium of the Rotary, Kiwanis, and Lion's Trusts, has continued its generous assistance to the Community by contributing $300,000 to the Upper Kiwanis Park Project to develop improvements, including the design, construction and completion of a new concession/restroom facility at Kiwanis Park. Staff respectfully requests Council consideration of the attached resolution authorizing an agreement with Sun Yakima, LLC to provide a concession /restroom structure at Kiwanis Park that will be attractive to residents of the neighborhood, park visitors and the community. Resolution X Ordinance _ Contract X Other (Specify) Agreement, Contract Mail to (name and address): Funding Source Parks and Recreation Capital Budget APPROVED FOR SUBMITTAL: "` -, City Manager STAFF RECOMMENDATION: Staff respectfully requests City Council to adopt the Resolution authorizing and directing the City Manager of the City of Yakima to execute an agreement between the City of Yakima and Sun Yakima, LLC for development of a concession / restroom facility in Upper Kiwanis Park. BOARD /COMMISSION /COMMITTEE RECOMMENDATION: COUNCIL ACTION: •