HomeMy WebLinkAboutContract CAG-13-072
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MEADOW CREST PLAYGROUND INTERLOCAL AGREEMENT BETWEEN THE
CITY OF RENTON AND
RENTON SCHOOL DISTRICT NO.403
THIS INTERLOCAL AGREEMENT ("Agreement") is made as of this day of April, 2013 (the
"Effective Date") by and between the City of Renton, a noncharter code city under RCW 35A,
and a municipal corporation under the laws of the State of Washington (hereinafter"Renton"),
and the Renton School District No. 403, a municipal corporation of the State of Washington
(hereinafter "District"). Renton and the District are sometimes referred to collectively in this
Agreement as the "Parties" and for full mutual consideration as more specifically detailed
below, the Parties agree:
RECITALS
WHEREAS, Renton owns real property in the Renton Highlands (hereinafter, the "City
Property") which is commonly known as the North Highlands Park and Neighborhood Center,
with a street address of 3000 NE 16th Street, Renton, Washington;
WHEREAS, the District owns real property in the Renton Highlands (hereinafter, the
"District Property") which is presently known as the Meadow Crest Early Learning Center, with
a street address of 1800 Index Avenue NE, Renton, Washington;
WHEREAS, eastern portion of the District Property abuts the western portion of the City
Property;
WHEREAS, Renton utilizes the North Highlands Park and Neighborhood Center and
provides to its citizens and guests diverse recreational programs and activities, including
preschool, youth, teen and adult leisure programs; youth, teen and/or adult athletics, fitness
and wellness programs; outdoor recreational opportunities including a playground and tennis
court; cultural arts programs; and programs designed to provide social and recreational
opportunities for senior citizens and those with special needs;
WHEREAS, the District currently utilizes the Meadow Crest Early Learning Center to
provide educational programs. Additionally, the District intends to tear down the current
structure and playground and construct a new educational facility, which the District
anticipates will include twenty-two (22) classrooms and will serve approximately four hundred
fifty (450) students, and to construct a new playground, in conjunction with the City of Renton,
on a portion of District Property and City Property immediately south of the new educational
facility;
WHEREAS, RCW 39.34.010 declares that it is the purpose of the Interlocal Cooperation
Act, RCW 39.34, to permit local governmental units to make the most efficient use of their
powers by enabling them to cooperate with other governmental entities on the basis of mutual
advantage and thereby to provide services and facilities in a manner pursuant to forms of
governmental organizations that will accord best with geographic, economic, population and
other factors influencing the needs and development of local communities;
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WHEREAS, to further serve the Parties' respective purposes and in order to more
efficiently and effectively use their respective resources, the Parties intend to share the design,
construction, operation, capital and maintenance costs, and use of a new jointly shared
accessible playground, that shall exist upon portions of the Parties real property; and
WHEREAS, this Agreement must and shall comply with the requirements of
RCW 39.34.030, and shall either be filed with the county auditor or listed on Renton's and the
District's respective websites consistent with RCW 39.34.040.
AGREEMENT
NOW THEREFORE, in consideration of the recitals, which are incorporated by reference,
and the following mutual promises and covenants contained in this Agreement, the Parties
mutually agree as follows:
1. PURPOSE
1.1 The Parties enter into this Agreement for the express purpose of detailing and
understanding their rights and responsibilities with respect to the design, construction,
use, operation, repair, maintenance, costs and future capital improvements, of a jointly
shared accessible playground to be located in the North Renton Highlands on a portion
of City Property and a portion of District Property(hereinafter "Playground").
1.2 To further that purpose, during the Term of this Agreement:
1.2.1 The Playground shall be a jointly shared accessible playground that shall
exist on portions of the real property owned individually by Renton and the
District with the Parties granting the other party a right to use the property and
the playground equipment that will be installed on that Party's property. During
the Term, the District grants Renton a license to enter upon the District Property
for purposes of exercising its rights and discharging its obligations arising under
this Agreement. During the Term, Renton grants the District a license to enter
upon the City Property for purposes of exercising its rights and discharging its
obligations arising under this Agreement.
1.2.2 As part of the mutual consideration between the Parties, Renton agrees
to provide a portion of its City Property, as described in Exhibit A, attached and
fully incorporated in this Agreement by reference, and the District agrees to
provide a portion of its District Property, as described in Exhibit B, attached and
fully incorporated in this Agreement by reference, for the sole purpose of
constructing, maintaining, and jointly and equally sharing or using the
Playground, as described in Exhibit C, attached and fully incorporated in this
Agreement by reference.
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1.2.3 The Parties shall jointly share the Accessible Playground, pursuant, and
subject, to the terms and conditions set forth in this Agreement, developed in
accordance with the plans and specifications set forth in Exhibit D, attached and
fully incorporated into this Agreement by reference (the "Approved Design"):
1.2.3.1 The costs to design, permit, and construct the Playground, as set
forth in Section 4 (Construction Contract Bidding and Construction).
1.2.3.2 Long-Term Capital contribution costs, as detailed in Section 9.
1.2.3.3 Access and control of the Playground and the Playground
equipment that rests or will rest on the Parties' respective properties,
and the authority to permit one or more authorized third-parties ("Third-
Party Users") to use the Playground, under the control and supervision of
one or both of the Parties, as detailed in Section 10, Playground Use and
Access.
1.2.3.4 The responsibility and the cost of maintaining and repairing the
Playground, as detailed in Section 12, Maintenance and Repair of
Playground.
1.2.3.5 The responsibility for maintaining insurance and shall equally
share liability for any losses or claims related to the Playground or the
Use of the Playground, as detailed in Sections 13 and 14, Insurance and
Indemnification.
2. TERM OF THE AGREEMENT
The term of this Agreement (the "Term") shall commence on the Effective Date and
shall remain in effect (i) fifteen (15) years from that day or (ii) until the date that this
Agreement is terminated pursuant to Section 15,Termination.
3. CONTRACT ADMINISTRATOR
3.1 Pursuant to RCW 39.34.030(4)(a), the District's Facilities Operations and
Maintenance Executive Director and Renton's Parks Planning and Natural Resources
Director (or such Director's appointed designee) will be jointly responsible for
administering this Agreement. At the direction of the Parties, the contract
administrators shall each take such actions as are necessary to implement this
Agreement in accordance with its terms.
3.2 This Agreement does not create a separate legal or administrative entity, and
consequently is being administered in accordance with RCW 39.34.030(4), as provided
in Section 3.1.
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3.3 The District Superintendent or designee and the Community Services
Administrator or designee shall serve as Project Liaisons for the purpose of this
Agreement. The designated contact persons shall meet on an "as needed" basis to
provide guidance for the Playground and serve as a coordination body between the
Parties.
4. CONSTRUCTION CONTRACT BIDDING AND CONSTRUCTION
4.1 Construction:The District will be the Lead Agency in the Playground construction
in order to establish a single point of contact for contractors, vendors, and other
entities, and shall have final authority regarding the Playground, space planning, site
planning and related program impact, and Playground design and improvements. As
Lead Agency, The District shall execute, hold and administer all contracts and
agreements necessary to execute the project improvements. This construction contract
responsibility is separate from the parties'jointly shared maintenance responsibilities.
4.2 Any deviation from the Approved Plans and Specifications that results in a
material change in the overall design, or any increase in Renton's and the District's
Contribution (defined below) to the cost to develop the Playground ("Material
Changes"), shall first be approved by Renton, which approval shall not be unreasonably
withheld, conditioned, or delayed. The Parties acknowledge that, in order to timely
construct the Playground, the District will have to make a variety of non-Material
Changes unilaterally, and Renton hereby authorizes the District to make any and all such
non-Material Changes as may be necessary in order to timely construct the Playground
in substantial conformity with the Approved Plans.
4.3 The District shall complete construction of the Playground on or before the
estimated completion date of October 15, 2013 ("Estimated Completion Date");
provided, however, if the District shall be unable to complete construction of the
Playground on or before the Estimated Completion Date, the District shall not be
deemed to be in default of its obligations arising under this Agreement so long as it is
pursuing the completion of the Playground with commercially reasonable diligence.
4.4 Renton shall cooperate with the District in connection with the construction of
the Playground and, if and as requested by the District, Renton shall execute and deliver
such further documents and instruments,and perform all such other acts and things, as
may be reasonably necessary to facilitate the completion of construction of the
Playground on or before the Estimated Completion Date. In addition, throughout the
period of construction, Renton will provide that portion of the City Property described in
Exhibit E attached and incorporated herein by this reference for access, parking and
staging purposes (the "Temporary Construction Area").
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4.5 The District Superintendent or designee and the Community Services
Administrator or designee shall serve as Project Liaisons for the purpose of this
Agreement. The designated contact persons shall meet on an "as needed" basis to
consult with respect to the construction of the Playground and serve as a coordinating
body between the Parties.
4.6 Bidding Process. The District shall provide Renton the following information
with respect to soliciting bids for the construction of the Playground:
4.6.1 The District will manage the Public Bid Process in accordance with
applicable state laws.
4.6.2 The District shall give Renton a copy of the District's Plans and
Specifications not less than seven (7) days prior to soliciting bids for the
construction of the Playground. Within seven (7) days following receipt of such
Plans and Specifications, Renton shall, in writing, either (i) approve such Plans
and Specifications or (ii) disapprove such Plans and Specifications if the same do
not comply with applicable law describing in reasonable detail the reasons for
such noncompliance ("Bid Disapproval Notice"). Any failure on the part of
Renton to respond to the District within such seven (7) day period shall be
deemed to be an approval of such Plans and Specifications by Renton. Upon
receipt of a Bid Disapproval Notice, the District shall revise the bid specifications
as necessary to comply with applicable law.
4.6.3 The District shall advertise the contract in the official legal publication for
the District and if necessary other publications to provide the widest possible
coverage commensurate with the size of the Playground.
4.6.4 The District shall notify Renton of the time and date of the bid opening.
Renton may attend the opening of the bids.
4.6.5 Prior to awarding the contract to construct the Playground the District
shall consult with Renton with respect to bidder qualifications, the
responsiveness of bids to the bid specifications, and such other matters as may
be relevant to a determination of the responsiveness of bids to the requirements
of applicable law. As between the Parties, the District shall have the final
authority to accept or reject any bid (including the right to reject any and all
bids) in accordance with the District's standard policies and practices (as
applicable) and the requirements of all applicable law concerning public contract
bidding, and Renton neither incurs nor assumes any responsibility for the
District's bid, award or contract process.
4.6.6 The District shall award the contract to the lowest responsible bidder for
the Playground subject to applicable laws and regulations.
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II
4.7 A "Construction Team" for the Playground will consist of two Renton
representatives and two District representatives.
4.7.1 The District will provide direction and cost review with the General
Contractor.
4.7.2 Once construction commences, the Construction Team will meet as
needed but no less than weekly throughout the construction.
4.7.3 The District shall be responsible for project management, providing
direction and coordinating cost reviews for the Playground. All change orders
that involve substitutions or that draw from the Playground contingency shall be
reviewed by Renton representatives on the Construction Team.
4.7.3.1 If the cost exceeds either Party's established Maximum
Contribution, that Party may agree to bring additional funds to the
Playground.
4.7.4 Neither Party will be responsible to Playground time delays or for
withheld determinations solely attributable to the other Party. The Parties will
share equally in paying for any Playground construction delays that if either
party has contributed in any direct manner to the delay.
5. CONSTRUCTION CONTRACT ADMINISTRATION
5.1 The District shall provide the necessary engineering, administrative, inspection,
clerical and other services necessary for the completion of the Playground.
5.2 Prior to the Playground completion, the Parties shall perform a joint inspection
of the Playground. Renton may provide the District a written list of any deficiencies that
constitute a Material Change to the Approved Plans within ten (10) business days after
the joint inspection/final inspection/any inspection. The list shall contain only
construction deficiencies that are Material Change to the Approved Plans and shall cite
the specification that it considers to be at issue in the deficiency. The District shall take
any necessary action to cure such deviations to Renton's reasonable satisfaction.
5.3 The District represents to Renton that it has or will have adequate supervision
for those participating in constructing the Playground and that all applicable rules,
regulations, statutes and ordinances will be complied with in their entirety.
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6. AUDITS AND INSPECTIONS
6.1 The records and documents with respect to all matters covered by this
Agreement shall be subject to inspection, review or audit by the Parties during the Term
of this Agreement and six (6) years after termination.
6.2 The party that conducts an audit pursuant to this Agreement must promptly
share its findings in writing to the other party.
7. PAYMENT
7.1 Renton's total financial contribution to the District to fund the Playground
construction is $1.25 million dollars. Renton's financial contribution shall not exceed
the amount of Renton's Funding Sources with the exception of additional costs Renton
agrees to contribute in accordance with Section 4.2 under Section 4. Construction
Contract Bidding and Construction.
7.2 The District shall be responsible for its share of the cost to construct the
Playground ("Construction Cost") not to exceed Nine Hundred Fifty-Four Thousand Eight
Hundred Thirty-Six Dollars [($954,836.00) (District's Contribution)]. The District's
contribution shall not be exceeded with the exception of additional costs the District
agrees to contribute in accordance with Section 4.2 under Section 4. Construction
Contract Bidding and Construction.
7.3 Renton shall be responsible for its share of the cost to construct the Playground
("Construction Cost"), not to exceed One Million Two Hundred Fifty Thousand Dollars
[($1,250,000.00) ("Renton's Contribution")].
7.4 The anticipated total project cost is Two Million Two Hundred Four Thousand
Eight Hundred Thirty-Six Dollars [($2,204,836.00) (the total of the District's Contribution
plus Renton's Contribution)]. If the construction bid exceeds this amount, the parties
agree to meet to determine whether the parties will agree to increase their respective
contributions or if a reduction in the scope of the project will be necessary.
7.5 Billing. On a monthly basis the District will prepare a reimbursement invoice for
Renton for its share of the Construction Cost based on Renton's Contribution and
payable in such calendar month.
7.5.1 The reimbursement invoices to Renton will include as documentation
photocopies of all of the underlying project invoices received by the District. The
Playground invoices will be copied after review and approval for payment by the
District and will include the District approval markings.
7.5.2 The District's invoices to Renton shall be payable within thirty (30)
calendar days unless there is a problem with the invoice or Renton disagrees
-with the computation of the reimbursement invoice. Renton and the District
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agree that time is of the essence regarding these payments. If the Parties are
unable to resolve the invoice related dispute, the Parties will follow the
procedure in Section 17, Dispute Resolution.
7.5.3 Billings shall be based on the District's progress payment request to the
contractor. The District shall include a copy of this progress payment request
with their billing.
7.5.4 The District shall include in the billing any additional costs to Renton
associated with the provisions of Section 4.2 under Section 4. Construction
Contract Bidding and Construction.
7.6 The District shall bill Renton for its share of the Construction Costs no more often
than monthly.
7.7 The District shall provide any necessary documentation if any, that Renton may
need to satisfy funding source obligations; and do everything reasonably possible to
facilitate Renton's compliance with the funding source requirements.
8. GENERAL RESPONSIBILITIES
8.1 The District shall be the lead agency for the Playground with regard to plans,
specifications, estimates (PS&E), environmental review and permitting and construction.
8.1.1 The District shall submit a Playground construction schedule to Renton,
including but not limited to the following: project permitting, advertisement for
bid and award of bid, construction duration, and final acceptance of the
Playground. The District and Renton's tasks shall be identified in the Playground
construction schedule. Renton shall review this schedule, and the schedule may
be periodically amended with the approval of the Parties.
9. LONG-TERM CAPITAL COSTS
9.1 Renton and the District shall share all long-term capital costs equally.
9.2 "Long-Term Capital Costs" include, but are not limited to, the replacement of
paving, Playground equipment and surfaces, site furnishings, synthetic turf, or any other
reasonable cost related to the long-term operation of the Playground.
10. PLAYGROUND USE AND ACCESS
10.1 Joint Access. The Parties shall have joint access to the Playground, its equipment
and restroom, subject to the terms and conditions of this Agreement, and agree that the
Playground is for the benefit of the District's students and for the purpose of
encouraging and providing an accessible playground to the general public.
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10.2 Playground Schedule and Access. To avoid scheduling conflicts the Parties
agree:
10.2.1 On Saturdays, Sundays, state or federal holidays, scheduled school
breaks, and summer break, consistent with signage (10.4, Signage), the
Playground and its restroom facility will be open to the public.
10.2.1.1 On these days Renton personnel or agents will unlock both
access gates and the restroom facility in the morning and lock both
access gates and the restroom facility in the evening.
10.2.2 On Fridays, consistent with signage (10.4, Signage), the Playground and
its restroom facility will be open the public.
10.2.2.1 On Fridays District personnel or agents will unlock both access
gates and the restroom facility in the morning and Renton personnel or
agents lock both access gates and the restroom facility in the evening at
dusk.
10.2.3 During regular school days and hours, Monday through Thursday,
consistent with signage (10.4, Signage), Meadow Crest students, shall have
exclusive access to the Playground from 9:30 a.m. to 4:30 p.m. Third-Party User
access will be limited to the scheduled daylight hours after 4:30 p.m. on these
days. If the Parties mutually determine that there is a day where there is not a
reasonable period of time for Third-Party User access after 4:30 p.m. there will
not be any Third-Party User access scheduled on such day.
10.2.3.1 On these days, District personnel or the District's agents will
unlock the District access gate and the restroom facility in the morning
and lock the District access gate and the restroom facility when the
Playground is not in use by the District. At 4:30 p.m., if there is scheduled
Third-Party User access, the District will unlock both access gates and the
restroom facility and Renton personnel or agents will lock both access
gates and the restroom facility in the evening at dusk.
10.2.3.2 On days, if there are no scheduled daylight hours for Third-Party
User access, District personnel or agents shall lock the District access gate
and ensure that the Renton access gate is locked, and lock the restroom
facility at 4:30 p.m.
10.2.4 The District's Central Security Office will serve as a backup for Renton on
Fridays, Saturdays and Sundays, state or federal holidays, scheduled school
breaks and summer break.
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10.3 Restroom. Generally, authorized Third-Party Users with scheduled access to the
Playground shall have reasonable access to the Playground restroom. In cases of severe
or repeated vandalism, the restrooms may be closed.
10.4 Signage. The Parties agree that signs reflecting the variable nature upon the
mutual approval of the Parties, which approval shall not be unreasonably withheld,
conditioned, or delayed Renton shall post at both entrances to the Playground
designating the hours which the Playground, and its restroom, is open to the Third-Party
Users.
10.5 Supervision. The Parties agree that during school hours the school shall be
solely responsible for the supervision of students in and/or around the Playground and
its restroom. The Parties further agree that on Fridays, Saturdays, Sundays, state or
federal holidays, scheduled school breaks and summer break, and on regular school
days after 4:30 p.m., Renton employees and/or agents will not be expected to supervise
the use of the playground, its equipment or the bathroom.
11. PARKING
For the purpose of lawful use of the Playground, during scheduled hours for Third-Party
access, public parking will be allowed on appropriate city property and/or on appropriate
District property during regular school days after 4:30 p.m., as may be designated by Renton
and the District, any time that the Playground is open on Fridays, Saturdays, Sundays,
scheduled school breaks, state or federal holidays, and summer break. By this language, the
Parties intent is to ensure that the public has reasonable access to all available parking for the
p P g
public's use and enjoyment of the Playground.
12. MAINTENANCE AND REPAIR OF PLAYGROUND
12.1 The Parties agree that each shall be jointly responsible for the maintenance and
general repairs of the Playground and Playground equipment.
12.2 In exchange for maintenance and general repairs, the District shall pay Renton
for fifty. percent (50%) of the costs of all maintenance and repairs, including but not
limited to mileage, depreciation, time, training costs, injuries/workers' compensation,
etc.
12.3 The Parties agree that both Parties shall be jointly responsible for all
maintenance and/or property repair, maintenance and/or repair equipment, equipment
storage and/or maintenance and repairs of the maintenance and/or repair equipment.
12.4 On Mondays through Thursdays during the school year, District personnel shall
walk the Playground and Playground restroom and pickup and/or remove litter, perform
a safety check of the Playground, the Playground equipment, and the restroom, to
ensure that nothing is damaged, broken or vandalized, and to ensure that the bathroom
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is appropriately stocked with paper products, and is in clean and operable condition.
The District personnel shall also be responsible during school hours for ensuring that
that there are no dangerous or foreign objects in or on the Playground, its equipment,
or in the Playground bathroom.
12.5 On Fridays, Saturdays, Sundays, state or federal holidays, and summer break,
Renton personnel shall walk the Playground and Playground restroom and pickup
and/or remove litter, perform a safety check of the Playground, Playground equipment
and the restroom, to ensure that nothing is damaged, broken or vandalized, and to
ensure that the bathroom is appropriately stocked with paper products, and is in clean
and operable condition.
12.6 The Parties shall establish and maintain purchase receipts, inventory records and
any other record, electronic, magnetic, paper or otherwise, related to the maintenance
and repair of the Playground, or the equipment utilized to maintain and/or repair the
Playground or the Playground equipment.
12.7 Maintenance billing.
12.7.1 Based on lack of history the Parties agree that for the first twelve (12)
months there shall be a Preliminary Joint Annual Maintenance Budget for
Playground Maintenance and Renton shall provide to the District with semi-
annual reports detailing those maintenance related expenses that can be
detailed and a fair estimate of those expenses that are less precise.
12.7.2 After the initial period of reports, the Parties agree to create a Joint
Annual Maintenance Budget for the Playground maintenance and to reevaluate
the fifty percent (50%) cost sharing plan that is in place to ensure that it is
adequate.
12.7.3 The Parties agree that if the school year changes or the number of days
changes, or if the number of hours in the school day increase, the Parties shall
meet to ensure the Joint Annual Maintenance Budget in place at that time is
appropriate, and if it is not, the Parties agree to make reasonable efforts to make
it appropriate.
12.8 Maintenance details. In exchange for the District's periodic payment of fifty
percent (50%)of the maintenance and repair work performed by Renton's personnel for
the duration of this Agreement, Renton agrees to do the following:
12.8.1 Renton personnel shall perform routine Playground, play equipment, and
Playground restroom facility maintenance for the duration of this Agreement.
12.8.2 The Parties shall clean the Playground restroom as reasonably needed
during their respective period of control, unless due to a Force Majeure event,
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Act of God, or simply unusual circumstances that makes cleaning the Playground
restroom unreasonable that day.
12.8.3 Renton shall perform the Playground safety inspections at reasonable
intervals determined by Renton and consistent with U.S. Consumer Product
Safety Commission (CPSC) guidelines and ASTM (American Society for Testing
and Materials) standards applicable to playground maintenance and applicable
law.
12.9 In addition to any inspections to be undertaken by Renton in accordance with an
approved Annual Operating Plan and Budget, either party may, at its own expense, at
any time undertake such further inspections of the Playground as it sees fit in order to
evaluate the condition and safety of the Playground. If a party shall discover a condition
or conditions on the Playground that it determines to be defective or unsafe, such party
shall post specific warnings identifying the danger or the hazardous condition, and take
such further steps as it deems necessary to mitigate such condition or conditions. If the
party discovering such condition or conditions determines, in its sole judgment, that it is
necessary to close the Playground, the other party authorizes such closure and such
further actions as may be necessary to prevent access to the Playground. In all cases,
the party that discovers any defective or unsafe conditions shall promptly notify the
other party thereof and of the steps that the party is taking to mitigate or correct such
conditions. Any and all repairs necessary to restore the Playground shall be made by
Renton and shall be charged against the appropriate contingency account established by
the Joint Annual Maintenance Budget.
12.10 Vandalism. The Parties agree:
12.10.1 That the costs of removing/repairing property or equipment that has
been vandalized shall be split evenly, at fifty percent (50%)for each party.
12.10.2 The District, unless the Parties agree that the District shall make the
repairs, shall make the payment of its fifty percent (50%) to remove/replace
vandalized property within fifteen (15) business days of Renton's request for the
monies.
12.11 The Parties agree that in order to provide appropriate maintenance and to make
reasonably timely repairs at or on the Playground, Renton shall coordinate Playground
access with the School District.
12.12 The Parties' responsibilities under this section shall survive the expiration of this
Agreement.
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13. INSURANCE
13.1 No Limitation. A Party's maintenance of insurance as required by the
Agreement shall not be construed to limit its liability to the amount of coverage
required by this Agreement.
13.2 Minimum Scope and limit of Insurance. Each Party shall obtain and/or continue
to maintain insurance, or self insurance, of the types and at the minimum limits
described below:
13.2.1 Commercial General Liability insurance at $1,000,000 per occurrence
and $2,000,000 aggregate.
13.2.2 Workers' Compensation coverage at statutory limits, including
Employers' Liability, or Stop Gap Liability, at$1,000,000 per occurrence.
13.3 Verification of Coverage. The Parties shall:
13.3.1 Furnish the other with certificates and a copy of the amendatory
endorsements, if any, or proof of participation in a self-insurance program.
13.3.2 The District, a State of Washington municipal corporation, established
under or in conformity with RCW 28A.315, is a member of Schools Insurance
Association of Washington (SIAW), a public entity joint self-insurance program
operating in the State of Washington, for the protection and handling of the
District's liabilities including injuries to persons and damage to property.
13.3.3 Renton, a State of Washington municipal corporation, is a member of
Washington Cities Insurance Authority (WCIA), which is a self-insured pool of
over 150 public entities in the State of Washington, for the protection and
handling of Renton's liabilities, including injuries to persons and damage of
property.
13.3.4 Should either of the Parties elect to cease self-insuring its liability
exposures and purchase Commercial General Liability insurance, that party
agrees to add the other party as an Additional Insured.
13.4 The Parties agree, at their own expense, to maintain, through its self-funded
program, coverage for all of its potential liability exposures for this Agreement. The
Parties agree to provide the other party with at least thirty (30) business days prior
written notice of any material change in the their self-funded program and will provide
the other party with a certificate of self-insurance as adequate proof of coverage.
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14. INDEMNIFICATION
District
14.1 The District agrees to indemnify, hold harmless and defend Renton, its elected
officials, officers, employees, agents, and volunteers (collectively, the "Renton
Indemnitees") from any and all claims, all third-party claims, demands, losses, actions,
violations and liabilities (including all reasonable court costs, expenses and attorneys'
fees) (collectively, the "District Liabilities") to or by any and all persons or entities,
including without limitation, their respective agents, licensees, or representatives,
arising from, resulting from, or connected with this Agreement, but only to the extent
such District Liabilities are caused by the negligent acts, errors or omissions of the
District, or by the negligent acts, errors or omissions of the District's officers, agents,
employees or representatives. Nothing shall, however, require the District to indemnify,
hold harmless and defend the Renton Indemnitees from any third-party claims,
demands, losses, actions, violations and liabilities (including all reasonable court costs,
expenses and attorneys' fees) to the extent the same are attributable to the sole
negligence of any one or more of the Renton Indemnitees.
14.2 In the event that any suit based upon such a claim, action, loss, or damage is
brought against Renton, the District shall defend the same at its sole cost and expense,
provided that Renton retains the right to participate in said suit if any principal or
governmental or public law is involved, and if final judgment be rendered against
Renton and/or its elected officials, officers, agents, and employees, or jointly against
Renton and the District and/or their respective elected or appointed officials, officers,
agents, and employees, the District shall satisfy the same to the extent of the District's
negligence or fault.
14.3 As the District is the lead agency in the design and construction of the Accessible
Playground, the District shall indemnify Renton for any claims of design or construction
defects, or negligence.
Renton
14.4 Renton agrees to indemnify, hold harmless and defend the District, its officials,
officers, employees, agents, and volunteers (collectively, the "District Indemnitees")
from any and all claims, third-party claims, demands, losses, actions, violations and
liabilities (including all reasonable court costs, expenses and attorneys' fees)
(collectively, the "City Liabilities") to or by any and all persons or entities,. including
without limitation, their respective agents, licensees, or representatives, arising from,
resulting from, or connected with (collectively, the "City Liabilities") arising from or in
connection with this Agreement, but only to the extent such City Liabilities are caused
by the negligent acts, errors or omissions of the City, or by the negligent acts, errors or
omissions of the City's officers, agents, employees or representatives. Nothing herein
shall, however, require the City to indemnify, hold harmless and defend the District
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Indemnitees from any third-party claims, demands, losses, actions, violations and
liabilities (including all reasonable court costs, expenses and attorneys' fees) to the
extent the same are attributable to the negligence of any one or more of the District
Indemnitees.
14.5 In the event that any suit based upon such a claim, action, loss, or damage is
brought against the District, Renton shall defend the same at its sole cost and expense,
provided that the District retains the right to participate in said suit if any principal or
governmental or public law is involved, and if final judgment be rendered against the
District and/or its elected officials, officers, agents, and employees, or jointly against
Renton and the District and/or their respective elected or appointed officials, officers,
agents, and employees, Renton shall satisfy the same to the extent of Renton's
negligence or fault.
Parties
14.6 As between the Parties and solely for the purpose of the indemnities contained
in this Section 14, each Party expressly waives any immunity, defense or protection that
may be granted to it under the Washington State Industrial Insurance Act, RCW Title 51,
as it exists or may be amended, or any other industrial insurance, workers'
compensation or similar laws of the State of Washington. This Section 14 shall not be
interpreted or construed as a waiver of a Party's right to assert such immunity, defense
or protection directly against any of its own employees or any such employee's estate or
other representatives. Neither Party's indemnification shall be limited in any way by
any limitation of the amount of damages, compensation or benefits payable to or by any
third-party under workers' compensation acts, disability benefit acts or any other
benefits acts or programs. THE PARTIES HAVE SPECIFICALLY NEGOTIATED SECTION 14,
INDEMNIFICATION.
14.7 Should a court of competent jurisdiction determine that this Agreement is
subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for
negligence relative to construction, alteration, improvement, etc.,...), as it exists or may
be amended, then, in the event of liability for damages arising out of bodily injury to
persons or damages to property caused by or resulting from the concurrent negligence
of the District, its officers, officials, employees, and volunteers and/or the Contractor, or
Renton, its elected officials, officers, officials, employees, and volunteers, and or the
Contractor, the Contractor's liability hereunder shall be only to the extent of the
Contractor's negligence.
15. TERMINATION
15.1 If the grant awarded or donations promised to Renton are withdrawn, reduced
or limited in any way prior to the District awarding the contract to construct the
Playground, then either of the Parties may, by written notice to the other party given
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not less than three (3) business days prior to the awarding of such contract, terminate
this Agreement, without penalty or further liability.
15.2 In the event of termination prior to completion of the term of this Agreement,
the Party requesting termination shall pay any outstanding contractual obligations due
at the time of termination. Payable termination costs shall not exceed the actual costs
incurred as a result of termination of this Agreement. This provision shall survive the
termination of this Agreement until all outstanding bills, costs, and/or payments have
been made or disputes about the same are agreed by the Parties to have been resolved.
15.3 Notice of Termination. Either of the Parties may terminate this Agreement for
default in the event the other party materially breaches this Agreement. Termination
shall be effected by serving a Notice of Termination by certified mail, return-receipt
requested, on the other Party setting forth the manner in which that Party is in default
and the effective date of termination, which shall not be less than thirty (30) calendar
days after the date of the notice; provided, however, such termination shall not take
effect if the default has been cured within fifteen (15) calendar days after the date of
the notice of termination. The withdrawal of the grant or promised donation shall not
be considered a breach of this Agreement, material or otherwise.
15.4 Penalty. In the event that either of the Parties defaults or materially breaches
this Agreement, and fails to cure that default or breach within the fifteen (15) calendar
day cure period, that Party shall be subject to the following penalties:
15.4.1 If the District defaults and fails to completely cure the default within
fifteen (15) calendar days, the District shall be responsible for repayment any
owed grant money, payment of its prorated share of the annual maintenance
and capital costs plus an inflationary factor and District shall provide Renton with
an easement to use the District's portion of the Playground property consistently
with this Agreement for the remainder of the Term, without a right of revocation
during that period.
15.4.2 If Renton defaults and fails to completely cure the default within fifteen
(15) calendar days, Renton shall be responsible for repayment any owed grant
money, payment of its prorated share of the annual maintenance and capital
costs plus an inflationary factor and Renton shall provide the District with an
easement to use Renton's portion of the Playground property consistently with
this Agreement for the remainder of the Term, without a right of revocation
during that period.
15.4.3 If either of the Parties defaults, that defaulting party shall pay the
prorated amount of the other party's cost for the design and the construction of
the playground.
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15.5 Exhaust Remedies. Neither Party may serve a Notice of Termination until they
have exhausted the dispute resolution provisions set forth in Section 17, Dispute
Resolution.
15.6 Equipment or Improvements. If at the expiration of this Agreement, there have
been no defaults or breaches that have caused the unscheduled termination of this
Agreement, the Playground equipment shall become the property of the real property
owner upon which the Playground equipment rests. If a default or breach has resulted
in the unscheduled termination of this Agreement, the non-defaulting party shall be
entitled to compensation for all outstanding expenses, costs, fees, and amounts
required to reimburse any Grantor.
16. EXTENSION OF THE AGREEMENT
Renton and the District may agree to extend the duration of this Agreement as
necessary to fulfill the purpose of this Agreement. In order for any such extensions to
occur, Parties must agree in writing to extend the agreement not less than thirty (30)
calendar days prior to the otherwise applicable expiration date. If the parties have not
agreed to the extension in writing by the otherwise applicable expiration date, the
Agreement shall expire.
17. DISPUTE RESOLUTION
17.1 Mediation. In the event that any dispute arises between the Parties as to the
interpretation or application of any term of this Agreement, or as to the validity of any
claim made by either party against the other arising under this Agreement, and the
Parties are .unable to resolve the dispute through negotiations, the parties agree to
participate in a nonbinding, evaluation and mediation of their dispute at a mutually
agreeable location prior to commencing legal action to enforce this Agreement. Either
party may request that any dispute be submitted to evaluation and mediation at any
time upon the giving of written notice to the other party.
17.2 Selection of Mediator. Upon the giving of notice by either party as provided
above, the Parties shall attempt to select a neutral person to mediate the dispute. If,
after thirty (30) days, the Parties cannot agree on any of the persons named, or if
acceptable persons are unable to serve, or if for any reason the appointment of a
mediator cannot be made, either party may request that a judge of the King County
Superior Court at the Maleng Regional Justice Center in Kent, King County, Washington,
appoint a mediator to assist in the dispute resolution process or the Parties may, by
agreement, seek other means of alternative dispute resolution by arbitration.
17.3 Conflicts of Interest. Each party to this Agreement shall promptly disclose to the
other any circumstances known by it that would cause justifiable doubt as to the
independence or impartiality of any individual under consideration or appointed as a
mediator. Any such individual shall promptly disclose such circumstances to the Parties.
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If any such circumstances are disclosed, the individual shall not serve as mediator unless
both Parties agree in writing.
17.4 Compensation of Mediator. The mediator's charges shall be established at the
time of appointment. Unless the Parties otherwise agree, the costs, fees and expenses
of the mediator shall be split equally and each party shall bear its own costs and
expenses.
17.5 Mediation Session. The mediation session is intended to provide each party
with an opportunity to present its best case and position to the other party and the
mediator and for the Parties to receive opinions and recommendations from the
mediator. The mediator shall facilitate communications between the Parties, identify
issues, and generate options for settlement or resolution of the dispute. The mediator
shall also discuss with each party separately the mediator's opinion and evaluation of
the strengths and weaknesses of that party's position. The terms of any settlement
made by the Parties as the result of the mediation shall be set out in a written
addendum to this Agreement.
17.6 Confidentiality. The dispute resolution process identified in this paragraph is a
compromise negotiation. The Parties agree to maintain in confidence all offers,
promises, conduct, and statements, oral or written, made in the course of the mediation
by either of the Parties, their agents, employees, experts, representatives or attorneys,
or by the mediator and agree that the same shall be deemed negotiations in pursuit of
settlement and compromise and not admissible or discoverable in subsequent legal
proceedings pursuant to Washington Evidence Rule (ER) 408. The mediator shall be
disqualified as a trial or deposition witness, consultant, or expert of either Party. This
paragraph, however, shall be subject to the Public Records Act, RCW 42.56.
17.7 Reservation of Rights. In the event that the Parties are unable to resolve the
dispute through the dispute resolution process established in this paragraph, the Parties
reserve any and all other rights and remedies available to each of them regarding such
dispute, including binding arbitration with a single arbitrator, to be selected as in the
same manner as a mediator set forth above. Binding arbitration must be by mutual
agreement of the Parties. In the absence of mutual agreement, any party reserves and
retains its right to have the dispute adjudicated in court.
17.8 Attorney's Fees. In the event that the Parties are unable to resolve any issue
and pursue their right to have the dispute adjudicated in court the prevailing party shall
recover their reasonable attorneys' fees OR each party shall bear their own attorneys'
fees and costs.
17.9 Duty to Perform. Unless otherwise expressly agreed to by the Parties in writing,
both Renton and the District shall continue to perform all their respective obligations
under this Agreement during the resolution of the dispute.
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18. DISCRIMINATION PROHIBITED
In connection with this Agreement and/or the Playground, including and not limited to
bidding, hiring and employment, neither party nor that party's employees, agents,
subcontractors, volunteers or representatives shall discriminate on the basis of race, color, sex,
religion, nationality, creed, marital status, sexual orientation or preference, age (except
minimum age and retirement provisions), honorably discharged veteran or military status, or
the presence of any sensory, mental or physical handicap, unless based upon a bona fide
occupational qualification in relationship to hiring and employment, in employment or
application for employment or in the administration of the delivery of services or any other
benefits under this.Agreement. The District shall comply fully with all applicable Federal, State,
and local laws, ordinances, executive orders and regulations that prohibit such discrimination.
A copy of this language must be made a part of any contractor or subcontractor agreement.
19. OTHER PROVISIONS
19.1 Administration and Notices. Each individual executing this Agreement on behalf
of Renton and the District represents and warrants that such individuals are duly
authorized to execute and deliver this Agreement on behalf of Renton or the District.
Any notices required to be given by the Parties shall be delivered at the addresses set
forth below. Any notices may be delivered personally to the addressee of the notice or
may be deposited in the United States mail, postage prepaid, to the address set forth
below. Any notice so posted in the United States mail shall be deemed received three
(3) days after the date of mailing. This Agreement shall be administered by and any
notices should be sent to:
CITY OF RENTON RENTON SCHOOL DISTRICT NO. 403
Community Services Administrator Assistant Superintendent for Business Operations
Department of Community Services 300 SW 7th Street
1055 South Grady Way Renton, Washington 98057
Renton, Washington 98057
Either party may change its contact information or contact person by providing written notice
of intent to change the contact information or contact person.
19.2 Amendment and Modification. This Agreement may be amended only by an
instrument in writing, duly executed by both Parties.
19.3 Assignment. Neither the District nor Renton shall have the right to transfer or
assign, in whole or in part, any or all of its obligations and rights hereunder without the
prior written consent of the other party. The party seeking assignment must seek
consent to the assignment in writing not less than thirty (30) business days prior to the
date of any proposed assignment.
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19.4 Captions or Headings. The captions or headings of the Sections or Paragraphs of
this Agreement are not a part of the terms or provisions of this Agreement.
19.5 Close the Playground. Both Parties shall have the authority to close the
Playground, or deny third-parties access to damaged, dangerous, or questionably safe
equipment unilaterally, with immediate notice to the other party.
19.6 Conflicts. If there is a conflict between this and any previous Agreement, the
terms of this Agreement shall supersede the terms of the previous Agreement.
19.7 Contributor. This term shall mean grantor, giftor, donor or financial contributor.
19.8 Duplicate Originals. This Agreement shall be executed with duplicate originals,
with each duplicate original having the same force and effect as the other.
19.9 Force Majeure. If either party cannot perform any of its obligations due to
events beyond its reasonable control (other than the payment of money), the time
provided for performing such obligations shall be extended by a period of time equal to
the duration of such events. Events beyond a party's reasonable control include, but
are not limited to, Acts of God, war, acts of domestic terrorism or violence, civil
commotion, labor disputes, strikes, earthquakes, fire, flood or other casualty, shortages
of labor or materials, government regulations or restrictions and weather conditions.
19.10 Funding Source. This term shall mean grant, gift, donation or other financial
contribution.
19.11 Governing Law. This Agreement shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington.
19.12 Interpretation of Renton Park Rules and Regulations. If there is a question
concerning the interpretation of any Renton ordinance, rule, or regulation, Renton's
decision will govern and will be binding in this Agreement.
19.13 Joint Drafting Effort. This Contract shall be considered for all purposes as
prepared by the joint efforts of the Parties and shall not be construed against one party
or the other as a result of the preparation, substitution, submission or other event of
negotiation, drafting or execution hereof.
19.14 Jurisdiction and Venue. Any lawsuit or legal action brought by any party to
enforce or interpret this Agreement or any of its terms or covenants shall be brought in
the King County Superior Court for the State of Washington at the Maleng Regional
Justice Center in Kent, King County, Washington.
19.15 Material Changes. A change in the design that significantly modifies the design
and functionality of the playground.
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i
19.16 Ownership. The District owns the District Property and Renton owns the City
Property, portions of which such properties are the subject of this Agreement. This
Agreement does not convey any right, title or interest in or to: (a) the District Property
to Renton or (b) the City Property to the District. During the Term, the Parties shall
share a joint and equal interest in the Playground, the restroom, and the Playground
equipment.
19.17 Police Powers of Renton. Nothing in this Agreement will diminish, or eliminate,
or be deemed to diminish or eliminate that governmental or police powers of Renton.
19.18 Public Document/Public Disclosure. This Agreement will be considered a public
document and will be available for reasonable inspection and copying by the public
during regular business hours. This document may be disclosed pursuant to RCW 42.56.
19.19 Remedies Cumulative. Any remedies provided for under the terms of this
Agreement are not intended to be exclusive, but shall be cumulative with all other
remedies available to Renton at law, in equity, or by statutes, unless specifically waived
in this Agreement or in a subsequent signed document.
19.20 Severability. A determination by a court of competent jurisdiction that any
provision or part of this Agreement is illegal or unenforceable shall not cancel or
invalidate the remainder of such provision of this Agreement, which shall remain in full
force and effect.
19.21 Singular, Plural and Gender. Whenever required by the context of this
Agreement, the singular shall include the plural and the plural shall include the singular.
The masculine, feminine and neuter genders shall each include the other.
19.22 Sole and Entire Agreement. This Agreement contains the entire agreement of
the Parties and any representations or understandings, whether oral or written, not
incorporated herein are excluded.
19.23 Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be
construed to give any rights or benefits in the Agreement to anyone other than Renton
and the District, and all duties and responsibilities undertaken pursuant to this
Agreement will be for the sole and exclusive benefit of Renton and the District and no
one else.
19.24 Waivers. All waivers shall be in writing and signed by the waiving party. Either
party's failure to enforce any provision of this Agreement shall not be a waiver and shall
not prevent either Party from enforcing that provision or any other provision of this
Agreement in the future. Waiver of breach of any provision of this Agreement shall not
be deemed to be a waiver of any prior or subsequent breach unless it is expressly
waived in writing.
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IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the
date last written above.
CITY r ENTON REN ON SCHOOL DISTRICT NO. 403
Denis Law, Mayor Vera Risdon
Attest: 8614�ua 4. C1,la4Zt�- Interim Superintendent
Bonnie I. Walton, City Clerk
Date Date
APPROV AS TO FORM: APP OVED AS TO FORM:
Lawrence J. Warren
Renton City Attorney
Date Date
.r
t
T �^1
Meadow Crest Playground ILA 22
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i •
Exhibit A
The City Property
Renton Highlands No.2,Corrected Plat Less Northerly 60 Feet,situate in King County,
Washington.
32012-0800/LEGAL22305733.2
Exhibit B
The School District Property
Parcel I:
Tract A,Block 5,Renton Highlands No.2,Corrected Plat recorded in Volume 57 of Plats,Pages
92 to 98,inclusive,records of King County,Washington,LESS that portion lying Easterly of a
line beginning at the Northwest corner of Tract B of said plat;thence North 04°41'00 East to the
Northerly line of Tract A.
Parcel II:
Tract C,Block 5,Renton Highlands No.2,Corrected Plat recorded in Volume 57 of Plats,Pages
92 to 98,inclusive,records of King County,Washington,LESS that portion lying Easterly of a
line beginning at the Northwest corner of Tract B of said plat;thence North 04041'00 East to the
Northerly,line of Tract C.
32012-08001LEOAL22305733.2
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THE EXISTING IRRIGATION AND QUARRY SPALL ACCESS ROAD.
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