HomeMy WebLinkAbout5.716 Original Contract
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AMENDMENT TO LICENSE AGREEMENT
THIS AMENDMENT TO LICENSE AGREEMENT is made and entered into thiS~ay
of June, 2005 between the City of Port Angeles, a municipal corporation, hereinafter referred to as
the "CIty", and the Nor'Wester Rotary Foundation, a non-profit corporatlOn, hereinafter referred to
as "Rotary".
F or the mutual benefits to be derived from this Agreement, the parties hereby recite and agree
as follows:
1. On the 15t day of April, 2005, the City and Rotary entered into a License Agreement. That
Agreement is attached hereto and incorporated herein by this reference.
2. On June 7, 2005, the City Council granted the City Manager authority to enter into an
amendment to the existing License Agreement.
4. The License Agreement is hereby amended by amending paragraph vn in its entirety to read
as follows:
The City shall pay Rotary for materials used in construction ofthe project,
provided, however, that in any event, the maximum total amount the City
shall pay to Rotary is $25,000.00.
5. As amended, the License Agreement is confim1ed and ratified.
;2ved as :0 F~
Wilham E. Bloor, City Attorney
NOR'WESTER ROTARY FOUNDATION
a non-profit corporation
BY~
Title ~"^t\t1+\M, "~S\~l-
CITY OF PORT ANGELES
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By:
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Bec:ky 1. Up n, . Clerk
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June 14, 2005
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S. 7 I LJ;
LICENSE AGREEMENT
FOR SKATE PARK AND SOCCER FIELD
IN
ERICKSON PARK
PORT ANGELES, WASHINGTON
This Agreement is entered into this ~day of ~ L, 2005, between the City
of Port Angeles, hereinafter referred to as "The City", and the Nor' Wester Rotary Foundation, a non-
profit corporation, hereinafter referred to as "Rotary".
In consideration of the terms herein, the City and Rotary hereby recite, covenant, and agree
as follows:
1. As a public service, for the benefit and improvement of the community, Rotary
intends to design and construct a structure for skateboards and in-line roller skates,
and a youth soccer field. The soccer field and the skate structure collectively may
hereafter be referred to ask "the facility". Once the facility is constructed, Rotary
shall offer it to the City as a donation.
n. Subject to the terms and conditions ofthis agreement, the City hereby grants Rotary
a revocable exclusive license to construct the facility on City owned land at the
northeast comer, and the youth soccer facility on the southeast comer of Erickson
Park, the location to be specifically approved by the City. This license may be
revoked at any time by giving notice as provided in Section XV1.B below. Upon
completion of the facility, the City shall accept the donation of the facility from
Rotary.
m. Terms and Conditions Relating to Construction of the Facility:
A. The City agrees that it shall:
1. Provide construction assistance at its discretion; and
2. Provide electricity and water to the site; and
3. Advise Rotary if it finds any conditions at the facility or during
construction which may be unsatisfactory and in need of change or
correction; and
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4. Allow Rotary freedom of design in the facility, provided that said
design complies with generally accepted standards ofthe industry and
that the same is approved or certified by a professional engineer
licensed in Washington; and
5. Allow Rotary to engage contractors and subcontractors to build the
facility; and
6. Allow sponsoring organizations and/or sponsoring businesses to erect
and maintain signs in the facility area during and after the term of this
Agreement. All such signs shall be subject to provisions of
applicable City sign codes and subj ect to prior approval by the Public
Works & Utilities Director, or his designee; and
7. Prior to the beginning of construction, allow Rotary to terminate this
agreement upon sixty days written notice, without penalty. After the
commencement of construction, allow Rotary to terminate without
notice, provided the construction of the facility becomes cost
prohibitive and Rotary agrees to remove the facility, or any portions
ofthe facility that have been constructed, and to restore Erickson park
to its original condition, as it existed prior to any construction
associated with the facility.
B. Rotary agrees it shall:
1. Not have any ownership interest of any kind in the approved location,
and not exclude the City from entering the location at any time and
for any reason.
2. Design and construct the facility on the designated property to meet
all requirements as set forth by the adopted plan and specifications;
and
3. Employ a professional engineer licensed in Washington or a person
with equivalenf qualification to design the facility and provide
supervision during construction of the facility; and
4. Require that the engineering and/or architectural design shall include
the number and placement of safety and warning signs; and
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5. Contract with a qualified professional contractor or builder who will
construct the facility; and
6. During site preparation and construction, require the contractor to
secure, protect and maintain the site until it is completely finished;
and at a minimum, the contractor shall be required to place fencing
and signs around the site to keep the public away during construction;
and
7. Require the engineer or architect to prepare as-built drawings of the
facility and a maintenance manual or maintenance routine, which
shall be delivered to the City when the City accepts the facility; and
8. Include in the construction contract indemnification language
favorable to the City and to the Rotary Club. Additionally, the
contractor should be required to carry insurance and the City and the
Rotary should be named as additional insureds for liability purposes
in the form described below; and
9. Require the contractor to clean the area used in construction of the
facility to the satisfaction ofthe Public Works & Utilities Director, or
his designee, following construction; and
10. Pay all expenses directly incurred by Rotary in a timely manner so as
to avoid the creation of any liens on or against the City, park property;
and
11. To construct and maintain a permanent perimeter fence satisfactory
to the City and adequate for the security of the facility to prevent
unauthorized entry; and
12. Indemnify, defend, and hold the City harmless from all claims, loss,
injury, and damage arising during construction of the facility except
for the sole negligence of the City; and
13. During construction, and until the facility is accepted by the City,
require the contractor to provide Commercial General Liability
insurance written on an occurrence basis with limits not less than
$1,000,000 combined single limit per occurrence, per location and
$2,000,000 aggregate for personal injury, bodily injury, and property
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damage, with coverage to include but not be limited to: blanket
contractual; products/completed operations; broad form property
damage; explosion, collapse and underground (XCD) if applicable;
and employer's liability if and when an employee is hired by Rotary;
and the City shall be named as an additional insured on the insurance
policy, and a copy of the endorsement naming the City as additional
insured shall be attached to the Certificate of Insurance; and such
certificate shall contain a clause stating that coverage shall apply
separately to each insured against whom claim is made or suit is
brought, except with respects to the limits of the insurer's liability;
and the contractor's insurance shall be primary insurance as respect
the City; and the City shall be given thirty (30) days prior written
notice of any cancellation, suspension or material change in coverage.
Failure to maintain acceptable insurance will result in the termination
ofthis use agreement.
IV. The construction ofthe facility shall be performed as set forth in the Project Manual,
which is attached hereto as Exhibit A. Before proceeding with construction, the
Contractor shall provide to the City Manager, or his designee, a construction
schedule.
V. Rotary shall not construct or allow construction of any ancillary facilities, such as a
registration booth, viewing structures, or landscaping, except as approved by the
City.
VI. All work shall be performed in a timely manner. The target date for the opening of
the facility October 1, 2005.
VII. The City shall pay Rotary for materials used in construction of the proj ect, provided,
however, that in any event, the maximum amount the City shall pay to Rotary is
$14,900.00 for a total expenditure.
Vill. Record Keeping and Reporting.
A. Rotary shall maintain accounts and records which accurately reflect the
details of construction, costs, and design ofthe facility. These and all records
relating to the performance of this Agreement shall be available for City
inspection.
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B. Rotary shall provide the City with monthly reports fully describing what work
has been performed pursuant to this Agreement and the anticipated date of
substantial completion of the facility. The final report shall include a
complete report describing and detailing how the performance ofthe services
has been accomplished in accordance with this Agreement.
IX. The relationship created by this Agreement is that of independent contracting entities.
Rotary is not an agent or employee ofthe City. Rotary, as an independent contractor,
shall control and direct the performance of the details of the work to be provided.
X. Rotary shall protect, defend, save harmless, and indemnify the City, its officers,
agents and employees from and against any and all claims, damages, losses and
expenses, including reasonable attorney fees, occurring, arising or resulting from the
performance of this Agreement.
XI. Breach.
In addition to all other rights and remedies available at law or in equity:
A. In the event Rotary fails to abide by any of the terms of this Agreement, the
City may send notice of breach of this Agreement and demand Rotary cure
such breach within thirty (30) days. If the breach is not cured, the City can
either (1) correct such breach and charge Rotary for any cost incurred; or (2)
terminate this Agreement under XVLB below.
B. Should the City fail to abide by any of its obligations under this Agreement,
Rotary, after ten (10) days' written notice of breach may (1) terminate this
Agreement according to XVLA below; or (2) bring suit to enforce this
Agreement. Although the City retains the right to possession and use of the
approved location, the City shall not unreasonably interfere with the Rotary's
construction. City shall be liable to Rotary for any cost incurred due to its
umeasonable interference.
XII. Rotary shall assure that all work done in furtherance of the agreement shall provide
fair, equal and non-discriminatory treatment of all persons, without respect to race,
creed or national origin, and, in particular:
A. The Contractor shall maintain open hiring and employment practices and will
welcome applications for employment in all positions from qualified
individuals who are members of minorities protected by federal equal
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opportunity/affirmative action requirements; and
B. The Contractor shall comply with all requirements of applicable federal, state
or local laws or regulations issued pursuant thereto, relating to the
establishment of non-discriminatory requirements in hiring and employment
practices and assuring the services of all persons without discrimination as
to any person's race, color, religion, sex, Vietnam era veteran's status,
disabled veteran condition, physical or mental handicap, or national origin.
xm. The rights under this Agreement shall not be assigned and the duties under this
Agreement shall not be delegated by either the City or Rotary.
XN. The signatories to this Agreement hereby represent that they have full legal authority
to execute this Agreement on behalf of their respective entities.
XV. The parties agree that this Agreement is the complete expression ofthe terms hereto
and any oral representation or understanding not incorporated herein is excluded.
Further, any modification of this Agreement shall be in writing and signed by both
parties.
XVI. Termination.
A. In the event that the facility becomes cost prohibitive, Rotary may terminate
this Agreement by giving to the City written notice of intent to terminate
sixty (60) days prior to termination date. In that event, if so directed by The
City, Rotary shall return to its original condition any portion of Erickson Park
that was disturbed by any work done in furtherance of this Agreement.
B. The City may terminate this Agreement at any time and without cause by
giving to Rotary written notice of intent to terminate sixty (60) days prior to
termination date.
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IN WITNESS WHEREOF, the parties hereto have caused this License Agreement to be
executed the day and year first hereinabove written.
NOR' WESTER ROTARY FOUNDATION
CITY OF PORT ANGELES
a non-profit corporation
BY~
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Title ~ ~. P''''-
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ATTEST:
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Becky J. Upt n, City Clerk
G ILEGAL\Parks\AgreementslSkatepark agreement, NorWest Rotary, 2004 wpd
FmaI4-01-05
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William E. Bloor, City Attorney
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Exhibit "A"
CONTRACT BETWEEN DREAMLAND SKA TEP ARKS, LLC
AND
NOR'WESTER ROTARY CLUB FOUNDATION
This Agreement is made this ~ day of r\..p..., l ' 200 ~ , between Dreamland Skateparks
(Dreamland), an Oregon limited liability company and the Nor'wester Rotary Club Foundation
(Nor'wester Rotary).
RECITALS
A. Nor'wester Rotary Foundation seeks a skateboard park (skatepark).
B. Dreamland will design and construct the skatepark.
C. Nor'wester Rotary Foundation will compensate Dreamland for Dreamland's labor, insurance,
equipment rental, and overhead expenses expended for the skatepark design and
construction.
AGREEMENT
In exchange for the consideration herein articulated, the parties agree as follows:
1. Description of Work.
(a) Plans and Specification. Dreamland will design and construct the skatepark,
pursuant to plans and general specifications selected by Nor'wester Rotary and
furnish all labor to finish in a timely manner. All work shall be in conformance with
applicable codes and regulations including the 2003 International Building code.
(b) Time for Completion of Work. Construction shall commence on May 4. 2005.
Dreamland shall complete within sixteen (16) weeks of commencement of
construction. Dreamland shall provide Nor'wester Rotary with a construction
schedule sufficient to satisfy its agreement with the City of Port Angeles.
( c) Excusable Delav. For each day in which work in prevented or substantially impeded
due to "Acts of God," court or government order (other than those caused by
Dreamland), or employee strike, one day shall be added to the date of completion.
Any delay in construction due in part or in whole to Dreamland itself shall not be
excused.
DREAMLAND/NOR'WESTER AGREEMENT - 1
Exhibit A
(d) Changes. Any deviation from the plans of construction must be authorized in writing
signed by a signatory agent of Nor'wester Rotary. No additional payment may be
requested or paid for a change to the plans made without written authorization.
Dreamland shall not commence work on the change without a written agreement
between Dreamland and Nor'wester Rotary as to the increase or decrease in payment
due under this Agreement. No additional compensation shall be paid due to any
changes necessitated from defects in Dreamland's design or construction.
2. Payment to Dreamland.
(a) Amount. Nor'wester Rotary shall pay Dreamland in the total amount of One
Hundred Sixty-one Thousand and Noll 00 Dollars ($161,000.00) under the terms of
this Agreement.
(b) Deposit. Nor'wester Rotary shall deposit with Dreamland the sum of Sixteen
Thousand One Hundred and Noll 00 Dollars ($16,100.00) prior to start of work.
(c) Schedule of Payment. Dreamland will request payment on the first and fifteenth of
the month in the amount equal to the percentage of work completed in the
construction. Nor'wester Rotary shall make payment within ten (10) days of request.
Payments shall first be drawn from the above described deposit until depleted before
Rotary shall owe further payment.
3. Final Payment. Dreamland acknowledges that construction is not complete until the site has
been inspected and Nor'wester Rotary accepts the construction as being compliant of the
design and plans. Within seven (7) days of receipt of written notice from Dreamland,
Nor'wester Rotary shall inspect the substantially completed construction and submit to
Dreamland a list of remaining requirements to complete construction ("punch list") including
any government inspections. Dreamland may request a representative to be present and
participate in the inspection. Final payment shall be paid within 5 days after Dreamland
confirms that it has completed all punch list items. For purposes of Schedule of Payment,
Section 2(b), final inspection and punch list construction shall constitute 2% of the
construction.
4. Responsibilities of Dreamland. Dreamland's duties and rights in connection with this project
are as follows:
(a) Responsibility for and Supervision of Construction. Dreamland shall be solely
responsible for all sequences, procedures, and means, and for coordination of all
work for which Dreamland is responsible. It shall supervise and direct the work to
the best of its ability, and give it all attention necessary for proper supervision and
direction.
(b) Payment of Taxes and Procurement of Licenses. Dreamland shall pay all taxes
required by law in connection with the work on the project in accordance with this
DREAMLAND/NOR'WESTER AGREEMENT - 2
Exhibit A
contract including but not limited to, sales, use, and similar taxes, and shall ensure all
licenses necessary for proper completion of the work.
(c) Warranty and Guarantee. Dreamland shall warrant and guarantee to Nor'wester
Rotary that for a period of one year from the date of completion of its work, all
general work pertaining to this project shall be free from faults. The term "faults"
shall mean defective materials or substandard workmanship. Dreamland shall have
the right to repair all faults discovered during the warranty period.
Dreamland warrants that its designs are original works and it shall indemnify, defend
and hold Nor'wester Ro~ary harmless against any claim that the design or
construction infringes another's intellectual property.
(d) Cleanup. Dreamland shall keep the work premises reasonably free of waste material
and rubbish caused by its work, and maintain the construction site in a manner
satisfactory to the Public Works and Utilities Director for the City of Port Angeles.
Dreamland agrees to remove upon termination of the project, its tools, equipment,
machinery, and surplus materials. Dreamland agrees upon terminating its work on
the site to conduct general cleanup operations.
(e) Safety Precautions and Programs. Dreamland has the duty of providing for and
overseeing all safety orders, precautions, and programs necessary to the reasonable
safety of the work. In this connection, it shall take reasonable precautions for the
safety of all work employees, all work and materials incorporated in the project, and
all property and improvements on the construction site.
(f) Hold Harmless. Dreamland shall indemnify, defend and hold Nor'wester Rotary and
the City of Port Angeles and each of their agents, employees or members, against any
claim or suit for damage to person or property arises from the construction of the
skatepark or the skatepark site itself.
(g) Fencing and Signs. Nor'wester Rotary shall place fencing and signs around the site
to keep the public away during construction. Dreamland shall maintain fencing and
SIgnS.
(h) Insurance. During construction, and until the facility is accepted by the City of Port
Angeles, Dreamland shall provide Commercial General Liability insurance written on
an occurrence basis with limits not less than $1,000,000 combined single limit per
occurrence, per location and $2,000,000 aggregate for personal injury, bodily injury,
and property damage, with coverage to include but not be limited to: blanket
contractual; products/completed operations; broad form property damage; explosion,
collapse and underground (XCU) if applicable; and employer's liability if and when
an employee is hired by Dreamland; and the City of Port Angeles and Nor'wester
Rotary shall be named as an additional insured on the insurance policy, and a copy of
the endorsement naming the City of Port Angeles and Nor'wester Rotary as
DREAMLAND/NOR'WESTER AGREEMENT - 3
Exhibit A
additional insured shall be attached to the Certificate of Insurance; and such
certificate shall contain a clause stating that coverage shall apply separately to each
insured against whom claim is made or suit is brought, except with respects to the
limits of the insurer's liability; and the contractor's insurance shall be primary
insurance as respect the City of Port Angeles and Nor'wester Rotary; and the City of
Port Angeles and Nor'wester Rotary shall be given thirty (30) days prior written
notice of any cancellation, suspension or material change in coverage. Failure to
maintain acceptable insurance will result in the breach of this Agreement.
(i) Open Employment Practices. Dreamland shall maintain open hiring and employment
practices and will welcome applications for employment in all positions from
qualified individuals who are members of minorities protected by federal equal
opportunity/affirmative action requirements; and
U) Non-Discriminatory Emplovrnent Practices. Dreamland shall comply with all
requirements of applicable federal, state or local laws or regulations issued pursuant
thereto, relating to the establishment of non-discriminatory requirements in hiring
and employment practices and assuring the services of all persons without
discrimination as to any person's race, color, religion, sex, Vietnam era veteran's
status, disabled veteran condition, physical or mental handicap, or national origin.
(k) Legal Requirements. Dreamland warrants that it, and its construction, shall comply
with all local, state and federal laws and regulations, unless compliance is specifically
delegated to Nor'wester Rotary under the terms of this Agreement.
5. Responsibilities of the Nor'wester Rotary Club of Port Angeles. Nor'wester Rotary's duties
and rights in connection with the project herein are as follows:
(a) Payment. Nor'wester Rotary shall pay Dreamland the full amount of any billing
under the Agreement within ten (10) days of such request by Dreamland. Interest at
the rate of one percent (1 %) per month will be charged on all unpaid portions of any
billing.
(b) Permits. Nor'wester Rotary shall provide all necessary permits for construction of
the Skatepark in regulation with all city standards and laws.
6. Termination.
(a) Discretion. Upon written notice, Nor'wester Rotary may terminate this Agreement in
its discretion for any reason. Upon notice oftermination by discretion, Dreamland
shall cease any further construction, and submit to Nor'wester Rotary a request for
payment for work performed but not yet paid. Nor'wester Rotary shall pay
Dreamland a percentage of final payment equal to the percentage of work completed.
(b) For Cause. Should Dreamland's construction be in less than a workmanlike manner
DREAMLAND/NOR'WESTER AGREEMENT - 4
Exhibit A
or Dreamland fail to meet any of its obligations under this Agreement, Nor'wester
Rotary may give written notice of the breach to Dreamland. Seven (7) days after
N or' wester presents such a notice, or mails such a notice to Dreamland by first class
mail, and Dreamland fails to come into compliance with this Agreement, this
Agreement shall terminate.
Upon termination for cause, Dreamland shall stop all work. Dreamland shall pay
Nor'wester Rotary for any costs incurred by Nor'wester Rotary as a result of
Dreamland's breach as well as any additional costs in completing construction.
6. Remedies.
(a) Cessation of Work by Dreamland. Dreamland may, on seven (7) days' notice to
Nor'wester Rotary cease work under this Agreement before completion date hereof
when for a period of ten (10) days after a payment is due for labor or an installment
of the Fee, through no fault of Dreamland, Nor'wester Rotary fails to make payment.
On such cessation of work, Dreamland may recover from Nor'wester Rotary
payment for all labor completed to date of cessation of work, plus that percentage of
Dreamland's fee which equals the percentage completion of the skatepark, plus any
loss sustained by Dreamland for materials, equipment, tools, or machinery to the
extend of the actual loss thereon. No consequential damages shall be owned.
(b) Cessation of Payment bv Nor'wester Rotary. Once work commences, Dreamland
shall work without delay. Since payment is made based on the percentage of work
performed, delay will impact payment.
(c) Remedies Cumulative. The remedies set forth herein are in addition to any other
remedies provided to the parties under law.
7. Disputes. This Agreement shall be subject to the laws of the State of Washington. In the
event of a dispute arising out of the performance of this Agreement, the parties agree to
binding arbitration under the rules of construction arbitration promulgated by the American
Arbitration Association and shall be arbitrated at an AAA office in Washington.
8. Complete Agreement. This Agreement represents the complete agreement of the parties and
all prior agreements, understandings, negotiations shall be merged herein and of no effect
unless stated herein. All modifications to this Agreement must be in writing and signed by
the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this hay
of~\ ,2005.
DREAMLAND/NOR'WESTER AGREEMENT - 5
Exhibit A
Nor'wester Rotary Club Foundation
By: ~
It( ~L--t-
Dreamland Skateparks, LLC
BY~~
Mark Scott, CEO & Senior Design!
Build Contractor
DREAMLAND/NOR 'WESTER AGREEMENT - 6
Exhibit A