HomeMy WebLinkAbout06/17/2014 13 Southeast Community Center Property Improvement Agreement with the Yakima Food BankBUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 13.
For Meeting of: June 17, 2014
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ITEM TITLE:
SUBMITTED BY:
SUMMARY EXPLANATION:
Resolution authorizing an agreement between Yakima Food
Bank and City of Yakima for development of Food Bank
improvement to the Southeast Yakima Community Center
property.
Scott Schafer, Director of Public Works
Ken Wilkinson, Parks and Recreation Manager, 576-6416
The City of Yakima (City) owns the property of the Southeast Community Center. The Yakima
Food Bank also resides on this property and has been in operation for many years in providing
needed food for the surrounding community.
It is the desire of the City and of the Yakima Food Bank to enter into an agreement for the
development of improvements to the Southeast Yakima Community Center property. The
Agreement is entered into between the City and Food Bank, a nonprofit corporation organized
for charitable purposes, for the purpose of construction of a new building, replacing the current
Yakima Food Bank building. The $346,000 funding for the food bank improvements comes
from:
City of Yakima - $50,000
Rotary Clubs - $222,500
Private contributions - $73,500
The current building is in very poor condition. This will ensure Yakima Food Bank's commitment
to continue to operate as a food bank for the community for several more years. The initial
terms of the Agreement is for twenty (20) years.
Attached for your review is the Agreement.
Resolution: X Ordinance:
Other (Specify):
Contract: X Contract Term:
Start Date: End Date:
Item Budgeted: No Amount:
Funding Source/Fiscal
Impact:
Strategic Priority:
Insurance Required? Yes
Mail to: Ken Wilkinson
Phone: 509-576-6416
APPROVED FOR
SUBMITTAL:
RECOMMENDATION:
N/A
Improve the Built Environment
City Manager
City staff respectfully requests City Council approval of the Agreement.
ATTACHMENTS:
Description
Resolution for Food Bank Agreement
Agreement between City of Yakima and Yakima
Food Bank
Upload Date
6/6/2014
6/6/2014
Type
Resollution
Contract
RESOLUTION NO. R -2014-
A RESOLUTION approving and authorizing the City Manager to execute an
agreement between Yakima Food Bank and City of Yakima for
development of food bank improvement to Southeast Yakima
Community Center property.
WHEREAS, the City of Yakima (City) owns and operates the Southeast Yakima
Community Center ("Community Center") located upon property commonly known as
1211 South 7th Street within the City of Yakima, which Community Center is currently
operated by Opportunities Industrialization Center of Washington ("010"); and
WHEREAS, Yakima Food Bank, a Washington nonprofit corporation and
charitable organization, has for many years operated a food bank for the benefit of
community members out of a building located upon the south parking lot of the
Community Center facilities, which facilities are depreciated and in need of replacement;
and
WHEREAS, the City of Yakima has previously entered into a License Agreement
with Yakima Food Bank for operation of the food bank upon the south parking lot of the
Community Center; and
WHEREAS, the City of Yakima and Yakima Food Bank have negotiated an
Agreement for construction of a new food bank facility, which Agreement, entitled
"Agreement Between City of Yakima and Yakima Food Bank for Development of
Improvement to Southeast Yakima Community Center Property," a copy of which is
attached hereto as Exhibit "A" and incorporated herein by this reference; and
WHEREAS, the City Council finds and determines that approval of such
Agreement is in the best interests of residents of the City of Yakima, and will promote the
general health, safety and welfare; now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
Section 1. The "Agreement Between City of Yakima and Yakima Food Bank
for Development of Improvement to Southeast Yakima Community Center Property," a
copy of which is attached hereto and incorporated herein as Exhibit "A," is hereby
approved.
Section 2. The City Manager is hereby authorized to execute and administer
the attached Agreement between Yakima Food Bank and the City of Yakima; now,
therefore
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ADOPTED BY THE CITY COUNCIL this 17th day of June, 2014.
ATTEST: Micah Cawley, Mayor
City Clerk
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AGREEMENT BETWEEN CITY OF YAKIMA AND
YAKIMA FOOD BANK
FOR DEVELOPMENT OF IMPROVEMENT TO
SOUTHEAST YAKIMA COMMUNITY CENTER PROPERTY
THIS AGREEMENT is entered into between the City of Yakima, a municipal corporation, and
Yakima Food Bank, a nonprofit corporation organized for charitable purposes, for the purpose of
construction of a building on property currently occupied by the Southeast Yakima Community
Center, to facilitate operation of a food bank for the community.
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. Yakima Food Bank is a nonprofit corporation duly formed and existing under the laws of
the State of Washington.
C. City owns fee title to property commonly known as 1211 South 71h Street, Yakima,
Washington, which property consists of buildings, facilities and parking lots for the
Southeast Yakima Community Center ("Community Center"). City has entered into an
agreement with Opportunities Industrialization Center of Yakima ("010") for the operation
and maintenance of the Community Center.
D. City has also entered into a License Agreement with Yakima Food Bank, a nonprofit
corporation duly formed and existing under the laws of the State of Washington. Such
License Agreement authorizes Yakima Food Bank to operate charitable food bank
operations out of a City -owned building currently occupying a parcel approximately sixty
(60) feet by seventy-five (75) feet in size situated upon the south parking lot of the
Community Center property. The location of such building is shown in the map attached
hereto as Exhibit "A."
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 Yakima Food Bank for the design
and construction of a new building on the Community Center property.
II. AGREEMENT
NOW, THEREFORE, in consideration of the mutual benefits, covenants, conditions and
promises herein, the parties agree as follows:
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Section 1. Purpose. The purpose of this Agreement is to set forth the rights and
responsibilities of the parties in the development of a new building on Community Center
property to facilitate food bank operations and other public purposes (the "Facility"); to define
the scope and financing of such project; and to set forth provisions for administration of such
project.
Section 2. Obligations of Yakima Food Bank.Yakima Food Bank shall perform the
following obligations:
Funding of Project: Yakima Food Bank intends to seek donations of funds, and to use
volunteer services as available and appropriate, toward the construction of the Facility as
described below. Yakima Food Bank will notify City when it determines that sufficient funds are
available to proceed with the Project. In the event Yakima Food Bank determines that it is
unable to secure sufficient funding to accomplish such construction, it will notify City and may
terminate this Agreement pursuant to Section 17 below.
Upon notification to City that sufficient funds are available for construction, Yakima Food Bank
will perform the following:
A. Design of Facility. Yakima Food Bank shall be responsible for the design of the
Facility and pay all costs of engineers, surveyors and architects engaged by Yakima
Food Bank 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
Community Center property. Design of the Facility shall be in compliance with all
applicable codes of City, but shall not include landscaping. The Facility shall be
designed so as to result in no net loss of parking spaces serving the Community
Center.
B. Obtain Permits and Approvals. Yakima Food Bank shall obtain all necessary
permits from City and other agencies with jurisdiction for the design and construction
of the Facility. Specifically, without limiting the above, Yakima Food Bank 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. Yakima Food Bank shall be responsible for
construction of the Facility in accordance with a construction plan and timeline
approved by City. Yakima Food Bank 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.
Yakima Food Bank may also engage the services of qualified volunteers to perform
such construction work, at its discretion.
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D. City Inspections of Work. Yakima Food Bank 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. Yakima Food Bank 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,
Yakima Food Bank shall release the completed Facility to City, free and clear of all
liens and encumbrances, including but not limited to, contractors' and materialmen
liens.
F. Costs of Design and Construction. Yakima Food Bank shall be responsible for
payment of all costs of design and construction of the Facility.
G. Safety of Construction Activities. Yakima Food Bank 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. Yakima Food Bank shall submit a Safety Plan
to the City for approval prior to commencement of construction.
H. Insurance. Yakima Food Bank 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 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. Naming Rights. In recognition of the anticipated donation of significant funds and
services from Yakima Rotary Trust, the parties agree that Yakima Rotary Trust shall
have the right to name the completed building and to erect appropriate signage
assigning credit for construction of the Facility. Such name and signage shall be
maintained for the duration of such Facility's use as a food bank facility.
J. Cost Overruns. In the event Yakima Food Bank determines that the cost of
construction or completion of any of the above items will exceed Yakima Food
Bank's funds allocated for such purpose, Yakima Food Bank will notify City. The
parties will thereupon meet and confer, and may adjust the scope of work to address
such cost constraints, or undertake any other action deemed necessary or
appropriate to meet the purposes of this Agreement.
Section 3. 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 Yakima Food Bank regarding construction timeline and
coordination with any other construction activity upon the Community Center
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property. City will cooperate with Yakima Food Bank regarding scheduling of
Community Center use, and public services provided by other providers such as the
Yakima School District, to facilitate efficiency and safety of Community Center users
and students 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 Yakima Food Bank regarding
scheduling of necessary and appropriate meetings, including pre -plan meetings,
necessary or appropriate to review plans for the Facility, construction progress and
final acceptance.
D. Incorporation of Finished Facility into City Property. Upon release of the
completed Facility, such Facility shall be incorporated into the City property and
used, managed, maintained and repaired by City as part of the public property 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 property and the owner of
the Facility. Such ownership shall attach to all structures of the Facility as
constructed and affixed to the property 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 Yakima Food Bank.
F. Use of Facility. The parties understand that City, concomitant with the execution
of this Agreement, is entering into a License Agreement with Yakima Food Bank for
the use, operation and maintenance of the completed Facility as a food bank serving
the needs of the Yakima community. The initial term of such License Agreement is
twenty (20) years, with extensions for two additional ten (10) year terms. City
intends to allow the use of the Facility for charitable food bank purposes for the full
term of such License and any extension thereof. In the event Yakima Food Bank is
unable or unwilling to perform such charitable food bank operations for the full term
of the License, City will use best efforts to assign such License to a qualified
successor for continuation of such food bank operations and use. Notwithstanding
the above, City reserves the right to change or modify the use of the Facility in the
event such change or modification is deemed necessary or appropriate to protect or
promote the general health, safety or welfare of the community.
NOTE: As part of its sole responsibility to maintain city property, City has previously determined
and decided to remove the existing building currently serving as the food bank facility, and to
remove an adjacent tree or trees. City reserves the right to maintain and improve Facility upon
completion, together with the parking lot and landscape facilities adjoining the Facility, and will
coordinate such activities with Yakima Food Bank so as not to unreasonably interfere with
Yakima Food Bank's construction of the new Facility.
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Section 4. Term. The term of this Agreement shall commence upon execution hereof and
shall remain in effect until completion of the Project or until the Agreement is terminated earlier
by either party under Section 17 of this Agreement. Yakima Food Bank 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 Yakima Food Bank or that were not
reasonably foreseeable.
Section 5. Administration. This Agreement shall be administered by the City's Parks and
Recreation Division.
Section 6. Independent Contractor. Yakima Food Bank and the City understand and
expressly agree that Yakima Food Bank is an independent contractor in the performance of
each and every part of this Agreement. Yakima Food Bank, as an independent contractor,
assumes the entire responsibility for carrying out and accomplishing the work/services required
for its performance under this Agreement. Yakima Food Bank, 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, Yakima Food Bank 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 Yakima Food Bank and/or any officer,
employee or agent of Yakima Food Bank and the City.
Section 7. No Third Party Riqhts. 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 Yakima Food Bank may rely upon or enforce any
provision of this Agreement.
Section 8. 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 9. 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
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termination, rates of pay or other forms of compensation, selection for training, and the provision
of services under this Agreement.
Section 10. 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 11. No Insurance. It is understood the City does not maintain liability insurance for
Yakima Food Bank or its employees and subcontractors, nor does Yakima Food Bank maintain
liability insurance for the City or its employees and contractors, except as otherwise provided
herein.
Section 12. 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 13. Dispute Resolution. The City and the Yakima Food Bank 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 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 14. Inteqration. 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 15. 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 16. 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
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and void insofar as it may conflict and shall be deemed modified to conform to such statutory
provision.
Section 17. 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 (unless a shorter or longer
time is agreed to in writing signed by both parties) to the other party in accordance with the
following:
A. Architect's Estimate. The parties shall meet and confer to review the Architect's
Estimate for the cost of the Improvements. If such cost exceeds the total funds available
to Yakima Food Bank for construction of the Project, the parties, or either of them, may
terminate this Agreement. In the alternative, Yakima Food Bank may modify the timing
or scope of the Project or Project improvements to fit within Yakima Food Bank's budget
of funds on hand, subject to approval of such modification by City, and proceed with the
modified scope of improvements.
B. After Review of Architect's Estimate but Prior to Commencement of Construction.
Either party may terminate this Agreement any time prior to commencement of
construction of the Project. "Commencement of construction" is defined as, and
includes: (a) execution of any contract by Yakima Food Bank with a contractor that
obligates Yakima Food Bank to commence construction of the Project or any portion
thereof, termination of which constitutes a breach of such contract; or (b) actual
commencement of the construction of the Project improvements by Yakima Food Bank.
"Commencement of construction" does not include design of the Project facilities
undertaken by Yakima Food Bank, nor any work conducted by City to demolish the
existing structure, remove trees and landscaping, or any work performed by either party
that can be characterized as site preparation. Such termination shall be by written notice
of termination delivered to the other party at the address given in Section 19 below.
C. After Commencement of Construction. Yakima Food Bank reserves all rights to
terminate any contract with any third party retained by Yakima Food Bank to perform any
work of construction of the Project or any portion thereof in accordance with the terms of
such construction contract(s). In the event Yakima Food Bank exercises any right to
terminate any such contract, it will notify City. City and Yakima Food Bank will meet and
confer to examine any available options for completion of the work. Yakima Food Bank
may propose modifications to the Project or Project improvements, subject to approval
by City, to accomplish the completion of such modified Project. If the parties are unable
to agree as to scope or means to complete such Project, either party may terminate this
Agreement. Upon termination, the parties may agree to (a) removal of any constructed
portion of the improvements; or (b) all constructed portions of the Project, together with
all materials purchased by Yakima Food Bank and intended to be incorporated into such
Project, excluding equipment belonging to Yakima Food Bank, shall be delivered, with
title conveyed to, City; or (c) any other resolution mutually agreed by the parties.
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Section 18. 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 19. 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
TO: YAKIMA FOOD BANK
c/o Earl Hall, Registered Agent
350 North 24th Avenue
Yakima, WA 98902
Section 20. Governinq Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
Section 21. Filinq. 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.
Section 22. Effective Date. This Agreement shall be effective upon the date executed by the
last party to sign below.
CITY OF YAKIMA YAKIMA FOOD BANK
Tony O'Rourke, City Manager Doug Corpron, President
Date Signed Betty Clark Corpron, Secretary
ATTEST:
Sonya Claar Tee, City Clerk
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Date Signed
City Contract No.
City Resolution No.
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