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12/11/2012 04H Elks Park Athletic Complex Maintenance and Concessions Agreement with the Yakima National Little League Association ti , sl i BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 1 For Meeting of: December 11, 2012 L,'.xir rrk,;tk3-if ,1'•e« e % a.. z,.,. x.. ' �:.Jgi7ys _x a'w'. „i H. , �, ", -, AT ;r 7 ,. ITEM TITLE: Resolution authorizing an agreement with the Yakima National Little League Association for baseball field maintenance and concession stand operation at Elks Park Athletic Complex SUBMITTED BY: Chris Waarvick, Director of Public Works Ken Wilkinson, Parks and Recreation Manager Mark Kunkler, Senior Assistant City Attorney CONTACT Ken Wilkinson, 575 -6020 PERSON /TELEPHONE: SUMMARY EXPLANATION: Attached is a five -year agreement with the Yakima National Little League Association for its use of Elks Park for Little League activities. The agreement specifies terms and conditions for ball field and facility maintenance scheduling, use and operation of the concession stand, and outlines a variety of responsibilities and obligations for both the City and the Yakima National Little League Association for use of Elks Park. Resolution X Ordinance Other (specify) Contract: X Mail to: President YNLLA, P 0 Box 9664, Yakima, WA 98907 Contract Term: January 1, Amount: Expiration Date: 12/31/2017 2013 - December 31, 2017 w /auto 5 yr renewal Insurance Required? Yes Funding Parks and Recreation Phone: Source: APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Staff respectfully requests Council to adopt Resolution authorizing and directing the City Manager to execute "Agreement Between City of Yakima and Yakima National Little League Association (Elks Park Athletic Complex)" for baseball field maintenance and concession stand operation at Elks Park. BOARD /COMMISSION RECOMMENDATION: The Parks and Recreation Commission supports this request. - ATTACHMENTS: Click to download ❑ Resolution ❑ Agreement between the City of Yakima and Yakima National Little League Association I RESOLUTION NO. R -2012- A RESOLUTION authorizing the City Manager of the City of Yakima to execute an agreement between the City of Yakima and the Yakima National Little League Association regarding the Elks Park Athletic Complex. WHEREAS, the City of Yakima ( "City ") owns the Elks Park Athletic Complex ( "Elks Park "); and WHEREAS, the Yakima National Little League Association ( "Little League ") uses Elks Park for its League activities; and WHEREAS, the City and the Association desire to execute a contract regarding scheduling and coordination of maintenance for Elks Park and regarding management and operation of a concession stand at Elks Park; and WHEREAS, the City Council has determined that it is in the best interest of the City of Yakima to execute the attached agreement, now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated "Agreement between City of Yakima and Yakima National Little League Association (Elks Park Athletic Complex)." ADOPTED BY THE CITY COUNCIL this day of December 2012. Micah Cawley, Mayor ATTEST: Sonya Claar Tee, City Clerk AGREEMENT BETWEEN CITY OF YAKIMA AND YAKIMA NATIONAL LITTLE LEAGUE ASSOCIATION (Elks Park Athletic Complex) THIS AGREEMENT (hereinafter "Agreement ") is made and entered into by and between the City of Yakima, a Washington municipal corporation (hereinafter "City "), and the Yakima National Little League Association (hereinafter "Association "). WHEREAS, the Association uses the Elks Park Athletic Complex (hereinafter "Elks Park "), a public parked owned by the City, for its Little League activities; and WHEREAS, City and Association desire to execute a contract regarding scheduling and coordination of maintenance for Elks Park and regarding management and operation of a concession stand at Elks Park. NOW, THEREFORE, in consideration of the mutual covenants, conditions, promises, terms and conditions set forth herein, it is agreed by and between the City and the Association as follows: 1. City's Responsibilities. A. Pre - Season Maintenance. City shall work with Association in determining the dates for pre- season maintenance. All pre- season maintenance activities, including City's activation of the irrigation system and opening of restrooms, are dependent on the weather. The determination of whether the weather permits provision of the maintenance service is at the sole discretion of City. Dates will coincide with City's spring maintenance schedule. B. Provision of City shall furnish one trash deposit dumpster for the season. Placement of the dumpster will be by mutual agreement of the parties and the costs of placement will be borne by City. C. Activation of Irrigation System. City will attempt to turn on the irrigation water at Elks Park for Association's first pre- season work party, depending on weather conditions. D. Opening of Restrooms for Pre - Season City will attempt to have the restroom facilities available for use by the time of the Association's first pre- season work party, depending on weather conditions. E. Key to Facilities. City will provide Association with a key to the restroom facilities and concession facility. F. Maintenance of Irrigation System. City shall maintain the irrigation system at Elks Park, including repair and replacement of broken irrigation heads. 1 G Special Maintenance or Irrigation Needs. City will work with Association on special maintenance or irrigation needs. Such maintenance shall include providing mason sand and topsoil to prepare the fields for use, but is limited to no more than an annual aggregate total of seventy -five (75) yards material. H. Mowing. City will mow Elks Park on a regular basis. 2. Association's Responsibilities. A. Notification of Pre - Season Work Parties. Association shall notify City at least two (2) weeks in advance of the dates for Association's pre- season work parties. B. Spot Maintenance of Sod. Association will spot -sod or de -sod the Elks Park fields as needed. C. Responsibility for Damage — Early Activation of Irrigation. Association shall be responsible for any damages resulting from early activation of the irrigation system at Elks Park that is done at the request of the Association. D. Pre - Season Maintenance of Restroom. Association shall be responsible for cleaning and closing of restrooms during March or before restrooms are open for the regular season by City. Association shall be responsible for damage to restrooms which occurs during the time the restrooms are opened early at the request of Association, except for damage to the exterior of the restrooms resulting from vandalism. E. Preparation of Baseball Fields. Association will prepare the baseball fields for play for all Association games and practices. Association shall make necessary repairs to the baseball fields and control litter within a thirty (30) foot radius of the concession stand at Elks Park. Association will empty garbage receptacles into the outside garbage container. F. Bases. Association will store the bases each night. Association shall be responsible for and shall replace all lost or stolen bases. G. Improvements to Facilities. Association will work with City regarding future construction, rehabilitation or other building remodeling at Elks Park. Association shall provide City with all construction proposals, including budget and building plans, to the Parks and Recreation Division Manager for review and approval. Association shall work with City to standardize all future building materials. All construction projects proposed by Association are expressly conditioned upon the prior written approval of the Parks and Recreation Division Manager. H. Use of Facility Application. Association will complete and submit a Use of Facility" application indicating the scheduling needs of Association no later than March 1 of each 2 year. Association shall submit a detailed schedule of baseball field use prior to the start of each season such that when Association is not using the field, the community can have use of at least one field. I. Designation of Contact Person. Association will designate an Association Board Member who will represent Association and work with City's Athletic Supervisor on all conditions of this Agreement. 3. Consideration. In consideration for the responsibilities and obligations undertaken by Association pursuant to this Agreement, City waives all field use fees otherwise required of Association for the use of Elks Park for Little League programs. Such waiver is expressly conditioned upon Association complying with all terms and conditions of this Agreement. • • When additional mowing and /or other special maintenance services beyond the normal maintenance schedule are requested by Association, Association shall compensate City on a per hour basis in accordance with the current fee schedule for the Yakima Parks and Recreation Division as adopted by the Yakima City Council and as may be amended during the term of this Agreement. 4. Concession Stand. A. Exclusive Right to Operate. City grants Association the exclusive right to operate the concession stand at Elks Park and to sell to visitors thereon food products, non- alcoholic beverages, and other merchandise, provided that Association complies with all of the terms and conditions of this Agreement. B. Assignment and Subcontracting. The right to operate the concession stand shall not be assigned, transferred and /or subcontracted in whole or in part by Association to any other person or entity without the prior written consent of the parks and Recreation Division Manager. In the event that such prior written consent is granted, then the assignee, transferee and /or subcontractor shall assume all duties, obligations, and liabilities of Association as stated herein. Further, Association shall in no way be relieved of its duties, obligations and liabilities under this Agreement by such assignment, transfer and /or subcontract. Any such assignee, transferee and /or subcontractor shall comply with the hold harmless /indemnification requirements of Section 13 and the insurance requirements of Section 14 of this Agreement. C. Books and Records. Association shall maintain accurate books and records of all concession stand income and expenses. Association shall provide a written annual accounting report for the concession stand to the Parks and Recreation Division Manager by December 31 of each year of this Agreement. If Association does not produce such a report, 3 the exclusive right to operate the concession stand granted by this Agreement shall terminate at midnight on December 31. D. Association Fund for Capital Improvements. Pursuant to previous Agreement, and since January 1, 2007, Association has reserved at least ten percent (10 %) of the net profits realized from the operation of the concession stand each year for capital improvements to Elks Park. In continuation of such account, Association shall reserve at least ten percent (10 %) of the net profits realized from operation of the concession stand per year for capital improvements to Elks Park. Such funds shall be held and maintained in an account established by Association. The money in the reserve fund may accumulate over a period of years for long- term capital improvements. Use of any and all funds from the reserve is and shall be subject to the prior written approval of the Parks and Recreation Division Manager. Upon termination of this Agreement, any money remaining in the reserve fund shall become the property of the City. E. Maintenance of Concession Stand. Association shall maintain the concession stand and all equipment necessary for the proper operation of the concession stand in a clean, sanitary and properly functioning condition at all times and shall conduct operation of the concession stand strictly in accordance with all applicable local, state and /or federal laws and regulations, .including but not limited to, building code, fire code and public health requirements. Association shall be responsible for all necessary repair, maintenance, janitorial and utility costs associated with the operation of the concession stand. F. Inspection. City reserves the right to inspect the concession stand premises at any and all reasonable times throughout the term of this Agreement; provided, however, that it shall not interfere unduly with Association's operation of the concession stand. The right of inspection reserved to City hereunder shall impose no obligation upon City to make such inspections or to ascertain the condition of the premises and shall impose no liability upon City for failure to make such inspections. G. Removal of Association Property upon Termination. Upon termination of this Agreement, Association shall remove its property and effects from the concession stand premises and peacefully vacate, surrender and deliver up possession of the concession stand premises. The concession stand premises shall be surrendered to City in good order and condition, reasonable wear and tear excepted. If Association fails to remove its property and effects within fourteen (14) calendar days of termination of this Agreement, City shall have the right to remove and store all of said property and effects at the expense of Association. 5. Term of Agreement — Renewal. This Agreement shall be for an initial term of five years commencing January 1, 2013 and terminating Midnight of December 31, 2017, unless earlier terminated by either party in accordance with Section 30 of this Agreement. Notwithstanding the above, this Agreement shall be renewed automatically for an additional term of five years commencing January 1, 2018 and terminating Midnight of December 31, 1923 4 unless either party delivers written notice of intent to not renew, or to negotiate new terms, not later than September 30, 2017. 6. Ownership of Improvements. Association understands and agrees that any improvements it makes to Elks Park, including the addition of benches, fields or any other improvement, become the permanent property of City once the improvement is made. 7. Status of Association. Association and City understand and expressly agree that Association is an independent contractor in the performance of each and every part of this Agreement. Association and its employees shall make no claim of City employment nor shall claim against City any related employment benefits, social security and /or retirement. 8. Taxes and Assessments. Association 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, 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 City is assessed a tax or assessment as a result of this Agreement, Association shall pay the same before it becomes due. 9. Nondiscrimination Provision. During the performance of this Agreement, Association shall not discriminate 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, and selection for training, and the provision of services under this Agreement. 10. The Americans With Disabilities Act. Association agrees to comply with the Americans With Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA), and its implementing regulations insofar as such are applicable to the programs and services offered by Association. The ADA provides comprehensive civil rights to individuals with disabilities in the area of employment, public accommodations, state and local government services and telecommunications. City and Association shall cooperate to maintain and assure compliance with ADA standards applicable to capital improvements to Elks Park. 11. Compliance with Law. Association agrees to perform all services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local or otherwise. 12. No Insurance Provided by City. It is understood the City does not maintain liability insurance for Association and /or its members, officers, agents, employees and /or volunteers. 13. Indemnification and Hold Harmless. 5 A. Association agrees to protect, indemnify and hold harmless the City, its elected officials, officers, employees, agents, and volunteers from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses resulting from death or bodily injury to any person or damage or destruction to a third party or third parties to the extent caused by any negligent act and /or omission of Association, its officers, employees, agents, volunteers and /or subcontractors, arising out of the performance of this Contract. B. Nothing contained in this Section or this Contract shall be construed to create a liability or a right of indemnification in any third party. C. The provisions of Section 13 regarding Indemnification and Hold Harmless and applicable insurance coverage under Section 14 of this Agreement shall survive the termination of this Agreement. 14. Liability Insurance A. General. At all times during the term of this Agreement, Association shall secure and maintain in effect insurance to protect the City and Association from and against all claims, damages, losses, and expenses arising out of or resulting from the performance of this Contract. Association shall provide and maintain in force insurance in limits no less than that stated below, as applicable. The City reserves the right to require higher limits should it deem it necessary in the best interest of the public. B. Commercial General Liability Insurance. Before this Contract is fully executed by the parties, Association shall provide the City with a certificate of insurance as proof of commercial liability insurance and commercial umbrella liability insurance with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000 00) general aggregate (per project). The policy shall include employers liability (Washington Stop Gap). The certificate shall clearly state who the provider is, the coverage amount, 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 elected officials, officers, agents, employees, and volunteers as additional insureds. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. 15. Assignment and Subletting. A. General. This Agreement, or any interest herein or claim hereunder, shall not be assigned, transferred or subleased in whole or in part by Association to any other person or entity without the prior written consent of City. 6 B. Association - Sponsored Tournaments. Tournaments sponsored or co- sponsored by Association shall not be considered an assignment under this Agreement. The provisions of this Agreement shall apply in full force and effect for any baseball tournament in Elks Park sponsored or co- sponsored by Association, and Association shall be responsible to assure any co- sponsor's compliance with applicable terms of this Agreement, including but not limited to, requiring such co- sponsor to execute and deliver to the Parks and Recreation Division Manager an executed Indemnification and Hold Harmless form substantially in the form stated in Section 13 of this Agreement, indemnifying and holding harmless the City, its elected officials, officers, employees, agents, and volunteers. C. Tournaments Sponsored by Third Party. Association shall not permit any third party to conduct any tournament in Elks Park facilities. Instead, such requests received by Association shall be referred to City, and City shall be solely responsible to permit, deny, or condition any approval for such use in accordance with its procedures and regulations. 16. Severability. If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and. effect. 17. Integration. This written document constitutes the entire agreement between City and Association and supersedes any and all previous written and /or oral agreements between the parties. There are no other oral or written agreements between the parties as to the matters covered herein. No changes or additions to this Agreement shall be valid or binding upon either party unless such change or addition be in writing and executed by both parties. 18. Non- Waiver. The waiver by Association or City of the breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by either party or prevent either party thereafter enforcing any such provision. 19. Performance Excused Under Certain Circumstances. Either party's failure to perform any of its obligations under this Agreement shall be excused if due to causes beyond the control and without the fault or negligence of the party, including but not limited to acts of God, acts of the public enemy, acts of any government, fires, floods, epidemics, strikes and /or weather conditions, or field conditions resulting from the early activation of the irrigation systems or early opening of the restrooms at Elks Park. 20. Termination. Either party may terminate this Agreement, with or without cause, by giving the other party ninety (90) calendar days' prior written notice of termination. In the event of such termination, Association shall pay City for any additional mowing and /or other special termination services rendered by City up to the termination date. 21. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows. 7 TO CITY: Parks and Recreation Division Manager City of Yakima Public Works 2301 Fruitvale Boulevard Yakima, Washington 98902 TO ASSOCIATION. President Yakima National Little League Association P.O. Box 9664 Yakima, Washington 98907 or 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. 22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 23. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. 24. Effective Date. This Agreement shall be effective upon execution by both parties, with the term commencing January 1, 2013. CITY OF YAKIMA YAKIMA NATIONAL LITTLE LEAGUE ASSOCIATION By By: Tony O'Rourke, City Manager Mike Saxton, President Date Date: ATTEST - By: Sonya Claar Tee, City Clerk City Contract No. Resolution No. 8