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12/11/2012 09 Franklin Park Playground Facility Development Agreement with Downtown Yakima Rotary Club I I ! I K frn Y .4. 11 1 � , 47 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: December 11, 2012 .b.. $ )::;x:c$ „",i' . ,.2W6te .a71ek ', $. rrr 'ftt: g.^ .. ryi4;414 �^. ITEM TITLE: Resolution authorizing an agreement with the Downtown Yakima Rotary Club for a New Playground at Franklin Park 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: Staff respectfully requests Council consideration of the attached resolution authorizing an agreement between the City of Yakima and the Downtown Yakima Rotary Club for new playground at Franklin Park. Downtown Yakima Rotary Club is offering its generous assistance to the community by contributing financial and other resources for a new playground at Franklin Park. The old playground was removed in 2011 due to its age, poor condition from vandalism and the difficulty of locating replacement parts. The new playground is a component of the City of Yakima business plan strategic goals for 2013. The City of Yakima will oversee site development and provide input on playground design The Downtown Yakima Rotary Club will utilize volunteers from the club to assemble the playground. The new playground will provide a park amenity for the general public to use and enjoy. Resolution X Ordinance Other Agreement (specify) Contract: X Mail to: Downtown Rotary Club, David Hargreaves, President, P 0 Box 464; Yakima, 98907 -0464 Contract Term: upon execution Amount: $83,000 Expiration Date: Insurance Required? No Funding Parks and Recreation Capital Budget Phone: Source: APPROVED FOR City Manager SUBMITTAL: 4 A l twt a) 0 STAFF RECOMMENDATION: Staff respectfully requests City Council to adopt the Resolution authorizing and directing the City Manager of the City of Yakima to execute "Agreement between the City of Yakima and the Downtown Yakima Rotary Club for development, maintenance and use of Franklin Park" for a new playground at Franklin Park. BOARD /COMMISSION RECOMMENDATION: Kellie Connaughton, a member of the Downtown Yakima Rotary Club, presented The proposed playground at Franklin Park to the Parks and Recreation Commissioners on November 14, 2012 and the Parks and Recreation Commission accepted the project proposal and recommends approval to the full City Council. ATTACHMENTS: Click to download ❑ Resolution ❑ Agreement RESOLUTION NO. R -2012- A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute an agreement between the City of Yakima and the Downtown Yakima Rotary Club for development of a playground facility in Franklin 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, Downtown Yakima Rotary Club ( "Rotary Club ") is duly formed and existing as a nonprofit organization under the laws of the State of Washington; and WHEREAS, City owns, operates and maintains a public park known as Franklin Park located within the City with common street address known as 2101 Tieton Drive, Yakima, Washington. The Park is operated and managed by the Parks and Recreation Division of the City; and WHEREAS, Rotary Club desires to enhance the Park for the benefit of the community by expending up to $83,000 for development and construction of a new playground facility; 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 Rotary Club for the design, construction and completion of a playground facility at Franklin 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 the Downtown Yakima Rotary Club for development, maintenance and use of Franklin Park." ADOPTED BY THE CITY COUNCIL this _day of December, 2012. Micah Cawley, Mayor ATTEST Sonya Claar Tee, City Clerk AGREEMENT BETWEEN THE CITY OF YAKIMA AND THE DOWNTOWN ROTARY CLUB FOR DEVELOPMENT, MAINTENANCE AND USE OF FRANKLIN PARK THIS AGREEMENT is entered into between the City of Yakima (hereinafter the "City "), whose address is 129 North 2 Street, Yakima, Washington 98901, and, the Downtown Rotary Club (hereinafter the "Rotary Club "), for purposes of the development, maintenance and use of Franklin Park (hereinafter the "Park "). WHEREAS, the City is the owner of the Park located at 2101 Tieton Drive, Yakima, Washington; and WHEREAS, the Park is a valuable recreational resource for the community; and WHEREAS, the City is committed to ensuring that improvements to. the Park serve the best interests of the community; and WHEREAS, the Rotary Club is dedicated to enhancing the Park for the benefit of the community; and WHEREAS, the Rotary Club is willing to contribute financial and other resources to the City for the design and development of a playground at the Park; and WHEREAS, the City is willing to accept the financial and other resources offered by the Rotary Club for the design and development of a playground at the Park; NOW, THEREFORE, in consideration of the covenants and agreements contained herein and performed by the parties hereto, it is hereby agreed as follows: 1. Purpose. The purpose of this Agreement is to define the responsibilities of the City and the Rotary Club in the development of Franklin Park and to provide for effective cooperation in the implementation of the provisions set forth herein. 2. Obligations of the Parties. The City shall perform the following obligations in regard to the Park: A. The City shall assist in planning for a new playground in the Park; B. The City shall oversee the site development of the area where the playground will be constructed; C. The City shall ensure the site has accessibility for the handicapped; D. The City shall maintain and repair the playground; and E. The City shall take other steps, as necessary, to ensure public safety in the use and enjoyment of the playground. Page 1 of 4 City of Yakima — Downtown Rotary Club Franklin Park Development The Rotary Club shall perform the following obligations in regard to the Park: A. The Rotary Club shall spend up to Eighty -Three Thousand Dollars ($83,000.00) for the development and construction of the new playground in the Park, and reserves the right to voluntarily contribute additional sums as it deems necessary and appropriate, B. The Rotary Club shall assist the City in the planning and site development of the playground C. The Rotary Club shall select the contractor(s) to perform the design and construction of the playground and shall select the playground equipment for installation therein; D. The Rotary Club shall confer with the City as necessary in regard to any outstanding . matters related to the maintenance and repair of the playground; E. The Rotary Club shall assist the City in the selection of amenities, not including the specific playground equipment, for the site, including, but not limited to, benches and tables; and F. The Rotary Club shall participate in the construction of the playground subject to the direction of the selected contractor. 3. 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 16 of this Agreement. The Rotary Club shall proceed with their obligations in a timely and diligent manner but shall not have any responsibility for delays caused by others beyond the control of the Association or that were not reasonably foreseeable. 4. Administration. This Agreement shall be administered by the City's Parks and Recreation Division. 5. Independent Contractor. The Rotary Club and the City understand and expressly agree that the Rotary Club is an independent contractor in the performance of each and every part of this Agreement. The Rotary Club, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the work/services required under this Agreement. The Rotary Club, as an independent contractor, shall have the sole judgment of the means, mode or manner of the actual performance of work/services required under this Agreement. Additionally, and as an independent contractor, the Rotary Club and their employees shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and /or retirement. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership, or agency between the Rotary Club and /or any officer, employee or agent of the Rotary Club and the City. 6. No Third Party Rights. This Agreement is entered into for the sole benefit of the parties. It shall confer no benefits or rights, direct or indirect, on any third parties. No person or entity other than the City and the Rotary Club may rely upon or enforce any provision of this Agreement. 7. 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 Page 2 of 4 City of Yakima -• Downtown Rotary Club Franklin Park Development of its officers, agents or employees to the fullest extent allowed by law; Provided, however, that upon completion of the playground improvements, and acceptance thereof by City, City shall be solely responsible for maintenance and operation of the playground improvements and shall hold Rotary Club harmless from any responsibility or liability arising after City's acceptance caused by the wrongful and /or negligent acts or omissions of City or any third party. 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. 8. 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. 9. 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. 10. No Insurance. It is understood the City does not maintain liability insurance for the Rotary Club or its employees and subcontractors. 11. 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. 12. Dispute Resolution. The City and the Rotary Club shall meet to discuss any outstanding issues related to the development of the playground and the implementation of this Agreement in order to resolve any disputes through cooperation and negotiation. 13. 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. 14. 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. 15. 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, • Page 3 of 4 City of Yakima — Downtown Rotary Club Franklin Park Development 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. 16. Termination. The parties may terminate this Agreement, with or without cause, by written notice from either party to the other party thirty (30) days in advance of the termination. 17. 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. 18. 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 Tony O'Rourke, City Manager City of Yakima 129 North Second Street Yakima, WA 98901 TO. DOWNTOWN ROTARY CLUB: David Hargreaves, President P.O. Box 464 Yakima, WA 98907 -0464 19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 20. Filing. Copies of this Agreement shall be filed with the Yakima County Auditor pursuant to RCW 39.34.040 and with the City Clerk of Yakima CITY OF YAKIMA DOWNTOWN ROTARY CLUB Tony O'Rourke, City Manager David Hargreaves, President Date Signed Date Signed ATTEST. Sonya Claar Tee, City Clerk Page 4of4 City of Yakima -- Downtown Rotary Club Franklin Park Development