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HomeMy WebLinkAboutYakima County - Performance Park Maintenance & Operation7 INTERLOCAL AGREEMENT PERFORMANCE PARK MAINTENANCE AND OPERATION AGREEMENT THIS INTERLOCAL AGREEMENT is entered into this a"4 day of April, 2013, by and between YAKIMA COUNTY, a political subdivision of the State of Washington, with County Courthouse at 128 North 2nd Street, Yakima, Washington 98901 (hereinafter referred to as "County "), and CITY OF YAKIMA, a municipal corporation of the State of Washington with City Hall located at 129 North 2nd Street, Yakima, Washington 98901 (hereinafter referred to as "City "). I. Recitals A. County owns two parcels of property located at the southwest corner of Second Street and "A" Street in the City of Yakima, Washington (Assessor's Parcel Numbers 191319 -22439 and 191319- 22440, hereinafter referred to as "Park Property "). The parcels are part of the Yakima County Courthouse campus. B. County has developed the Park Property with lawn, landscaping and paved pedestrian pathways for the benefit of the public, public park purposes, and to promote the purposes of the County Courthouse campus. County desires to facilitate the public purposes of the Park Property, and has developed and designated such property as "Performance Park." C. City desires to promote and schedule the use of Performance Park for special events designed to promote economic development, provide educational and recreational opportunities for City and County residents and visitors, and to provide a downtown location for the general public to gather for special events and enjoyment of the park. D. County and City desire to enter into an Intergovernmental Agreement pursuant to authority granted to each under Chapter 39.34 RCW (Interlocal Cooperation Act), defining the uses of Performance Park and the responsibilities and rights of each party regarding use, operation and maintenance of such property. WHEREFORE, in consideration of the mutual benefits, covenants, conditions and promises herein, the parties agree as follows: 1 II. Agreement 1. Grant of Authority to Occupy Performance Park. County hereby grants City the right to occupy and use for public park purposes, and for special event, educational and recreational purposes, the two parcels constituting the Park Property, as described in Exhibit "A" attached hereto and incorporated herein by this reference. 2. Use of Performance Park. City shall use the Park Property for public park purposes, including recreational, special event and educational purposes. "Special events," for purposes of this Agreement, shall include those events licensed and regulated by City pursuant to Chapter 9.70 of the Yakima Municipal Code (YMC). "Public recreational purpose" includes use for musical or other performance events that may charge a fee, and fundraising events for nonprofit and charitable organizations. 3. Routine Maintenance. County will be responsible for routine maintenance of the Park Property, including lawn mowing, maintenance of landscaping, irrigation and tree trimming upon need. "Routine maintenance" does not include cleanup of the Park Property following performances or other events scheduled by City, as further described in Section 4 below. 4 Event Maintenance. City will be responsible for assuring cleanup of the Park Property following performances or other events scheduled by City. Cleanup shall include picking up and removal of trash and restoration of the Park Property to the condition existing prior to the performance or event scheduled by City, normal wear and tear excepted. For events sponsored or licensed by City, City will require placement of sufficient trash and waste receptacles at suitable locations within and upon the Park Property to facilitate trash removal and cleanup. City will require event sponsors and promoters to comply with City's regulations pertaining to events and special events, including but not limited to cleanup, safety plans, emergency access plans and parking plans. 5. Utilities. County will allow City and its licensees access to electrical power from pre- existing service on the Park Property or on abutting or other suitable County property. County may install a separate meter to monitor electrical power use on the Park Property. City agrees to reimburse County on a quarterly basis for electrical power use attributed to City's and /or City's licensees' use of the Park Property. County will allow City and its licensees access to potable water from pre- existing service on the Park Property or on abutting or suitable County property. 2 City will require placement of sufficient portable toilet facilities at suitable locations to accommodate patrons and participants at any City sponsored or licensed event. 6. Scheduling of Events — Priority of County Uses and Events. City, by and through its Economic Development Manager, shall be responsible for scheduling, licensing and issuing permits for events and special events held on the Park property, all in accordance with City's licensing and permit codes and procedures, including but not limited to the special events provisions of Chapter 9.70 YMC; PROVIDED, however, that uses and events sponsored, permitted or promoted by County upon the Park Property shall have priority for scheduling purposes. County shall be responsible for issuance of any necessary or appropriate permit or license for any use or event upon Park Property sponsored, permitted or promoted by County. County and City will cooperate regarding scheduling of County and City uses and events. Upon City's receipt of notice of any application or proposal for an event to be held on Park Property, City will notify County of the proposed event and proposed date(s) of the event. County will then advise City of any County sponsored, permitted or promoted use or event that conflicts with such City proposed use or event, and the City event will be rescheduled or adjusted to avoid any conflicting County use or event. If no County use or event is scheduled, City may proceed to process the use or event application for the original date(s) requested by the applicant, and upon City's issuance of a permit authorizing such use or event, such permitted use or event shall be deemed to have priority over any other intervening use or event within and upon Park Property. The parties' points of contact for administration of events, uses and scheduling described above shall be: For City: Economic Development Manager Phone: 509 - 575 -6274 For County: Clerk of Board, Yakima County Commissioners Phone: 509 - 574 -1500 7. Suspension or Cancellation of Use — Emergencies. In the event County finds and determines that an emergency exists that constitutes an immediate and substantial threat to the health, life or safety of persons upon the Park Property, or an imminent threat of substantial damage to property therein, County shall immediately notify City of such condition. If, in the sole discretion of County, such danger cannot be remedied or removed prior to any scheduled use or event, County may cancel or suspend the use of 3 the Park Property for any scheduled use or event, or may otherwise condition such use or event so as to avoid or remedy any dangerous condition. 8. Term of Agreement. This Agreement shall be effective as and from the date first referenced above and shall continue through December 31, 2022. The Agreement shall be automatically extended for an additional ten -year period on the same terms, unless either party delivers written notice to the other party at least sixty (60) days prior to December 31, 2022 stating (a) that such Agreement shall be deemed terminated at the conclusion of the term, or (b) that such party desires to negotiate other or different terms and conditions to be included in a successor Agreement. 9. Early Termination. Either party may terminate this Agreement prior to the expiration of the Agreement, or any extension thereof, as stated in Section 8 above, by delivering written notice of early termination to the other party. Notice of early termination shall be given at least sixty (60) days prior to the effective date of termination. Notwithstanding the above, City shall retain jurisdiction to administer uses and events upon Park Property that (a) had been permitted by City prior to giving early notice of termination, and (b) are scheduled to occur after the effective date of termination. 10. Administration. This Agreement shall be administered by the City's Economic Development Manager. 11. Taxes and Assessments. Each party shall be solely responsible for compensating its employees and for paying all related taxes, deductions and assessments, including but limited to, leasehold excise taxes, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income as may be required by law or assessed against either party as a result of this Agreement. 12. 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 County may rely upon or enforce any provision of this Agreement. 13. Liabilitv — Insurance. 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. Each party shall maintain insurance sufficient for 4 such purposes, and each party reserves the right to review the insurance coverage of the other party from time to time to assure such sufficiency. B. It is understood the City does not maintain liability insurance for the County or its employees and subcontractors. It is understood the County does not maintain liability insurance for the City or its employees and subcontractors. C. In the case of negligence of both County and City, 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. D. The provisions of this Section shall survive the termination or expiration of this Agreement. E. Nothing contained in this Section or this Agreement shall create a liability or a right of indemnification in any third party. 14. 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. 15. 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. 16. 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. 17. Dispute Resolution. City and County agree to meet to discuss any outstanding issues related to the development of the Improvements and the performance of this 5 Agreement in order to resolve any disputes through cooperation and negotiation. 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 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. 16. 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. 17. 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. 18. 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. 19. Administration. This Agreement shall be administered by the City Manager of City and the Board of Commissioners of County, or their respective designees. The City Manager's designee shall be the City Economic Development Manager. The parties shall advise each other of their designees for the administration of this Agreement. 20. Improvements. City shall make no improvements that become fixtures to the property except upon prior written approval by County. For any improvement proposed by City and approved by County, City shall be solely responsible for compliance with applicable bidding laws and procedures, construction, construction management, and completion. Approval by County shall include consideration and agreement by the parties regarding maintenance of such completed improvements. 21. Acquisition and Disposal of Propert y. The parties do not intend to jointly acquire property pursuant to this Agreement. However, if property is acquired to accomplish the purposes of this Agreement, the following shall apply: R A. Personal Propert y. In the event the parties, or either of them, acquire personal property, title to such property shall vest in the party purchasing such property. If jointly acquired, title to such property shall vest in each party in proportion to the money contributed by such party for the acquisition. B. Real Property — Improvements. In the event the parties, or either of them, acquire real property, title to such property shall vest in the party purchasing such property unless otherwise agreed in writing by the parties. Unless otherwise agreed, if jointly acquired, title to such property shall vest in each party in proportion to the money contributed by such party for the acquisition. Title to improvements that become fixtures to the Park Property shall be vested in County. C. Disposition of Property. Upon termination of this Agreement, personal property and real property shall be disposed in accordance with the provisions above. If the property is sold, proceeds shall be distributed to each party in proportion to the amount originally contributed by each party for acquisition. 21. 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 (or successor) City of Yakima City Hall 129 North 2nd Street Yakima, WA 98901 TO: YAKIMA County Board of Yakima County Commissioners Yakima County Courthouse, Room 232 128 North 2nd Street Yakima, WA 98901 The parties may designate other officers from time to time to serve as designees for administration of this Agreement and to receive notices and demands. Upon such designation, the designating party shall notify the other party. 22. Governing Law — Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Venue for any action arising out of the implementation, performance or breach of this Agreement shall lie in Kittitas County, State of Washington, unless otherwise agreed by the parties. 23. Filing. Copies of this Agreement shall be filed with the Yakima County Auditor pursuant to RCW 39.34.040, or posted as otherwise permitted, and filed with the City Clerk of Yakima. 7 24. Effective Date. This Agreement is executed and effective on the date first given above. WHEREFORE, the Agreement is executed as follows: CITY OF YAKI ATTEST: �(;L< N Sonya Cla r City y Clerk °� r �y�ff i CITY CONTRAC r N0: b� RESOLUTION NO: j ®tee 0 BOARD OF YAKIMA COUNTY COMMISSIONERS Michael D. Leita, Chairman , Commissioner J. R d Elliott, Commissioner (tawfituting the Board of County Commissioners for Yakima County, Washington ATTEST: &-g..S4 r,PR� Tiera L. Girard • `��,, ``Q�ti OF;p- 9�;', � � C6 Clerk of the Board e - =0p BOCC185- 2013 April 2, 2013 �o° APP D AS TO RM: Te y Austin C ief Legal unsel of Yakima C WY, Washington