HomeMy WebLinkAboutR-2014-083 Southeast Community Center Property Improvement Agreement with the Yakima Food Bank RESOLUTION NO. R- 2014 -083
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 7 Street within the City of Yakima, which Community Center is currently operated by
Opportunities Industrialization Center of Washington ( "OIC "); 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
ADOPTED BY THE CITY COUNCIL this 17 day of June, 2014. 0/ /2
ATTEST: Micah Ca ley, Mayor
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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
• RECITALS
• 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.
• Yakima Food Bank is a nonprofit corporation duly formed and existing under the
laws of the State of Washington.
• City owns fee title to property commonly known as 1211 South 7th 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 ( "OIC ") for the operation and maintenance of the Community Center
• 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."
• 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
• AGREEMENT
NOW, THEREFORE, in consideration of the mutual benefits, covenants, conditions and
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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 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
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and /or construction management. Yakima Food Bank may also engage the
services of qualified volunteers to perform such construction work, at its
discretion.
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
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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:
• 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 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.
• 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.
• 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.
• 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.
• 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.
• 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
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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.
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 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 Yakima Food Bank may rely upon
or enforce any provision of this Agreement.
Section 8. Indemnification and Hold Harmless.
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• 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.
o The provisions of this Section shall survive the termination or expiration of
this Agreement.
® 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 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
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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. 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 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.
• 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.
• 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 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
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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.
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
do Earl Hall, Registered Agent
350 North 24th Avenue
Yakima, WA 98902
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Section 20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
Section 21. 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.
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
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Tony O'R rke, City Manager Doug o rpron, Pr ident ((`
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Date Signed Betty Clark Corpron, Secrets
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Sonya Cl Tee, City Clerk y °, s ^- e .` i
City Contract No. Li - L �J
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City Resolution No.1
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 13.
For Meeting of: June 17, 2014
ITEM TITLE: 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.
SUBMITTED BY: Scott Schafer, Director of Public Works
Ken Wilkinson, Parks and Recreation Manager, 576 -6416
SUMMARY EXPLANATION:
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 N/A
Impact:
Strategic Priority: Improve the Built Environment
Insurance Required? Yes
Mail to: Ken Wilkinson
Phone: 509 - 576 -6416
APPROVED FOR
SUBMITTAL: - City Manager
RECOMMENDATION:
City staff respectfully requests City Council approval of the Agreement.
ATTACHMENTS:
Description Upload Date Type
0 Resolution for Food Bank Agreement 6/6/2014 Resolution
Agreement between City of Yakima and Yakima 6/6/2014 Contract
Food Bank
City of Yakima - Geographic Information Services Exhibit i b it A.
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Copyright 2013 City of Yakima, Washington. All rights reserved. trap oisclaHmor Information shown on Ins map is for planning and aw.slra ion pnrpo =es only rho Cuy or Yakima assumes no liability for s
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Created: Tuesday, Feb. 4, 2014 at 2:21 PM