HomeMy WebLinkAboutContract CAG-13-219
AGREEMENT BETWEEN THE CITY OF RENTON
AND PEARLMARK HARVEST LAKESHORE,
L.L.C. RELATED TO THE MAINENTANCE OF
THE LANDING'S RIGHT OF WAYS
THIS AGREEMENT (Agreement") is made and entered into this 18'h day of December,
2013,by and between the City of Renton,a non-charter code city, under RCW 35A.03,and a
municipal corporation in the State of Washington ("Renton"), and Pearlmark Harvest
Lakeshore,L.L..C.,a Delaware limited liability company ("Owner").
RECITALS
A. Renton and Owner are known collectively as the"Parties."
B. In or near 2005 the Parties agreed to have Owner develop and urban village/mixed
use development called"The Landing"in Renton.
C. The project was completed without provisions for the maintenance of the
landscaping and lighting to a right-of-way that is adjacent to the Landing on North
8"Street.
D. The Parties have a mutual interest in maintaining the functional, financial and
aesthetic appearance of The Landing and those things reasonably related to The
Landing.
E. In valuable and needed consideration offered by the other,the Parties have entered
into this Agreement.
NOW,THEREFORE,in consideration of the terms and provisions,and with the Recitals
above being fully incorporated into this Agreement,the Parties agree as follows:
AGREEMENT
1. PURPOSE
The purpose of this Agreement is to set forth the Parties'respective rights,roles and
responsibilities relating to the Project.
2. SCOPE OF WORT
2.1 The scope of work includes the landscaping on right-of-way that is north of
the centerline of North 8" Street adjacent to The Ianding on North 10"
Street, Park Avenue North, Logan Avenue North, and the north side of
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North 8'fi Street as shown in the Site Plan, attached and fully incorporated
into this Agreement as Exhibit A.
2.2 Owner will be responsible for bed maintenance, irrigation operations,
maintenance and repair and turf management of planter strips, flower beds
and boulevards.
2.3 Turf, groundcover, flower and shrubs that become unhealthy or die shall be
replaced by Owner in the areas described above.
2.4 Renton shall be responsible for those areas outlined in the Irrigation System
section, 3.3.4.1 below. . Renton shall be responsible for all tree maintenance
in the right-of-way. Renton shall replace trees that become unhealthy or die
in the right-of-way.
3 GENERAL RESPONSIBILITIES
3.1 Owner shall perform the following shrub and flower bed maintenance:
3.1.1 Shrub beds and flower beds will be kept free of weeds weekly.
3.1.2 All leaves, litter and other debris shall be removed weekly from sites
and discarded.
3.1.3 Mulch areas shall be raked periodically to maintain fresh appearance.
3.1.4 Replenish bark mulch when less than three inches (3") deep.
3.1.5 Pruning shrubs and groundcovers. Owner shall prune shrubs and
groundcovers in accordance with the City of Renton specifications
attached and fully incorporated into this Agreement as Exhibit B.
3.2 Owner shall perform the following turf maintenance/management-
3.2.1 All turf areas shall be mowed weekly between May 1" and November
1 st and two times each month thereafter.
3.2.2 All clippings and associated debris shall be removed each visit, unless
otherwise specified.
3.2.3 Edging shall be completed every other mowing.
3.2.4 Line trimming shall be done with each mowing.
3.2.5 Fertilizing shall be completed 3 times a year.
3.2.6 Applications of pest and weed control shall be performed as
necessary using Integrated Pest Management techniques. Any
chemicals used shall be approved by Renton prior to use and must be
applied using a licensed Certified Pesticide Applicator.
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3.3 Owner shall perform the following irrigation system
maintenance/management•.
3.3.1 Owner shall be responsible for the operation of the automatic
irrigation system. The irrigation system shall be maintained and
operated using locally recognized water conservation.techniques.
3.3.2 The system shall be maintained at optimal flows for target plants and
spray heads adjusted to insure water is hitting soil surfaces and not
pavements or other non-target areas.
3.3.3 Repair any damage to the irrigation system. Repairs include general
operation, wear-and-tear, vehicle accidents, vandalism and other
repairs to restore the system to proper operating conditions.
3.3.4 All costs associated with operation of the system, including
maintenance, repairs and water-use billings in areas outlined in the
section,"Landscaping,"shall be paid directly by Owner.
3.3.4.1 Renton shall reimburse Owner for water consumption to
irrigate plants within the public rights-of-way along the north
side of Park Avenue North that is east of Logan Avenue
North, the south side of N. 8`s Street and south of N. 8"'
Street on Park Avenue North and Logan Avenue North
(includes one boulevard on Park avenue, south of N. 8"'
Street). The amount paid to Owner shall be based upon
twenty-four percent(24%o) of the total length of the irrigation
system (e.g. $100 for all water means $24 paid by Renton to
Owner). Reimbursement shall be yearly following
winterization of the irrigation system.
3.3.5 Renton shall be responsible for all maintenance and repair expenses
to irrigation equipment in those areas described in"3.3.4.1"above.
3.3.6 It is recognized that the irrigation system installed is a looped system
that is fed from the same water supply to all right-of-way
landscaping. Therefore,Renton and Owner shall work cooperatively
to repair the irrigation system whenever inoperability of the system
becomes a problem.
3.3.7 Access to the irrigation controllers shall be provided to Renton at all
times.
3.4 Owner shall perform the following fighting fixture maintenance/management
with respect to the street lighting fixtures on city-owned property. on North 101"Street
between Garden Avenue and Logan Avenue; Owner will be responsible for regular _
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maintenance.
3.4.1 Regular maintenance of a street light fixture shall be defined as light
bulb changes, cleaning of light poles and touch-up painting of light
poles.
3.4.2 Owner %till not be responsible for any and all issues covered by the
warranty Renton holds with their vendor, this includes any and all
acts of vandalism, and replacement and/or major repair of the light
poles.
4. DURATION/TERMINATIQN
4.1 This agreement shall remain in effect until December 31,2023.
4.2 Either Party 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 said party is in default
and the effective date of termination, which shall not be less than fourteen
(14) calendar days after the date of the notice; provided, however, such
termination shall not take effect if the default has been cured within seven(7)
calendar days after the date of the notice of termination.
5. Ll�lN
Washington State law shall govern the respective liabilities of the Parties to this
Agreement for any loss due to property damage or injury to persons arising out of
activities conducted pursuant to this Agreement.
6. DISPUTE RESOLUTION
6.1 In the event of a dispute between the Parties regarding this Agreement, the
Parties shall attempt to resolve the matter informally. If the Parties are unable
to resolve the matter informally within 30 calendar days, the matter shall be
decided by an arbitrator agreed on by the Parties.
6.2 Unless otherwise expressly agreed to by the Parties in writing, both Renton
and Owner shall continue to perform all their respective obligations under
this Agreement during the resolution of the dispute.
7. OTHER PROVISIONS
7.1 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,
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which shall remain in full force and effect.
7.2 Interpretation. The captions of the Sections or Paragraphs of this
Agreement are not a part of the terms or provisions of this Agreement.
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.
7.3 Waivers. All waivers shall be in writing and signed by the waiving pam,
Either party's failure to enforce any provision of this Agreement shall not be
a waiver and shall not prevent either parry from enforcing that provision or
any other provision of this Agreement in the future.
Waiver of the breach of any provision of this Agreement shall not be deemed
to be a waiver of any prior or subsequent breach and shall not be construed
to be a modification of the terms of this Agreement.
7.4 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, civil
commotion, armed conflict, labor disputes, strikes, fire, flood or other
casualty, shortages of labor or materials, government regulations or
restrictions and extreme weather conditions.
7.5 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.
7.6 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 Owner, and all duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and exclusive benefit of the
Parties and not for the benefit of any other party.
7.7 Phis Agreement contains the entire agreement of the Parties and any
representations or understandings, whether oral or written, not incorporated
herein are excluded.
7.8 'I7iis Agreement may be amended only by an instrument in writing, duly
executed by both Parties.
8. Indemnification.
8.1 Owner represents to Renton that it has or will have adequate supervision for
those participating in the maintenance and management of the specified
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property and that all applicable governmental rules, regulations, statutes and
ordinances will be complied with in their entirety.
8.2 Owner agrees to indemnify and hold Renton, its elected officials, officers,
employees, agents, and volunteers harmless from any and all claims,
demands, losses, actions, violations and liabilities (including costs and all
reasonable attorneys' fees) to or by any and all persons or entities, arising
from,resulting from, or connected with the Agreement to the extent caused
by the negligent acts, errors or omissions of Owner, its partners,
shareholders, officers, agents, and employees, or any of them, in performing
obligations pursuant to this Agreement. In the event that any, suit based
upon such a claim,action, loss, or damage is brought against Renton, Owner
shall defend the same at its sole cost and expense, provided that Renton
retains the right to participate in said suit if any principle or governmental or
public law is involved;and if final judgment be rendered against Renton and
its elected officials, officers, employees, agents, and volunteers, or any of
them, or jointly-against Renton and Owner and their respective officers,
agents,and employees,or any of them,Owner shall satisfy the same.
8.3 Owner shall require that Renton is included as an additional insured on the
contractor(s) insurance policy(s), and that Renton is included in the
contract(s) indemnification provisions and receives the same protection as
received by Owner. Details will be provided in section 9.
8.4 Owner waives any immunity that may be granted to it under the Washington
State Industrial Insurance Act, Title 51 RCW. Owner' indemnification shall
not be limited in any way by 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 benefit acts or
programs.
8.4.1 Renton shall indemnify and hold harmless Owner and its officers,
agents and employees from any and all claims, demands, losses, actions and
liabilities (including costs and all reasonable attorneys' fees) to or by any and
all persons or entities arising from, resulting from or connected with the
Agreement to the extent caused by the negligent action or omission of
Renton, its officers, agents, and employees, in performing obligations
pursuant to this Agreement. In the event that any suit based upon such a j
claim,action, loss, or damage is brought against Owner, Renton shall defend
the same at its sole cost and expense, provided that Owner retains the right
to participate in said suit if Owner finds it necessary;and if final judgment be
rendered against Owner and its officers, agents, employees, or any of them,
or jointly against Renton and Owner and their respective officers,agents,and
employees or any of them,Renton shall satisfy the same.
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9. Insurance.
9.1 Owner shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which
may arise from or in connection with performance of the work hereunder by
Owner,their agents,representatives, and employees or subcontractors.
9.2 No Limitation: Owner' maintenance of insurance as required by the
Agreement shall not be construed to limit the liability of Owner to the
coverage provided by such insurance, or otherwise limit Renton's recourse to
any remedy available at law or in equity.
9.2.1 Minimum Scope of Insurance:
9.2.2 Owner shall obtain insurance of the types described below:
9.2.2.1 Automobile Liability insurance covering all owned, non-
owned, hired and leased vehicles. Coverage shall be
written on Insurance Services Office (ISO) form CA 00
O1 or a substitute form providing equivalent liability
coverage. If necessary, the polity shall be endorsed to
provide contractual liability coverage.
9.2.2.2 Commercial General Liabilily insurance shall be written
on ISO occurrence form CG 00 01, or a substitute form
providing equivalent liability coverage and shall cover
liability arising from premises, operations, stop gap
liability, independent contractors, products-completed
operations, personal injury and advertising injury, and
liability assumed under an insured contract. The
Commercial General Liability insurance shall be endorsed
to provide the Aggregate Per Project Endorsement ISO
form CG 25 03 11 85 or a substitute form providing
equivalent liability coverage. There shall be no
endorsement or modification of the Commercial General
Liability insurance for liability arising from explosion,
collapse or underground property damage. [The City of
Renton shall be named as an additional insured under
Harvest Partner's Commercial General Liability insurance
policy with respect to the work performed for the City of
Renton using ISO Additional Insured endorsement CG
20 10 10 01 and Additional Insured-Completed
Operations endorsement CG 20 37 10 01 or substitute
endorsements providing equivalent coverage.]
9.2.2.3 Wor ts' CoDaMnsation coverage and, if applicable,
employer's liability insurance in sufficient amounts as
required by the Industrial Insurance laws of the State of
Washington.
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9.3 Minimum Amounts of Insurance:
9.3.1 Owner shall maintain the following insurance limits:
9.3.1.1 :automobile Liability insurance with a minimum
combined single limit for bodily injury and property
damage of no less than$1,000,000 for each accident.
9.3.1.2 Commercial General Liability insurance shall be written
with limits no less than $1,000,000 for each occurrence,
$2,000,000 general aggregate, and a no less than
$2,000,000 products-completed operations aggregate
limit.
9.4 Other Insurance Provisions:
9.4.1 The insurance policies are to contain, or be endorsed to contain, the
following provisions for Automobile Liability, Commercial General
Liability and Builders Risk insurance:
9.4.1.1 Owner' insurance coverage shall be primary insurance as
respect to the City of Renton. Any insurance, self-
insurance, or insurance pool coverage maintained by the
Citv of Renton shall be excess of Owner' insurance and
shall not contribute with it.
9.5 Owner Insurance for Other Losses:
9.5.1 Owner shall assume full responsibility for all loss or damage from
any cause whatsoever to any tools, Owner' employee or volunteer
owned tools, machinery, equipment, or motor vehicles owned or
rented by Owner, or Owner' agents, suppliers or contractors as well
as to any temporary structures,scaffolding and protective fences.
9.6 Waiver of Subrogation:
9.6.1 The Parties waive all rights against the other, any of their respective
officials, officers, agents and employees, for damages caused by fire
or other perils to the extent covered by property insurance obtained
pursuant to the Insurance Requirements Section of this Contract or
other property insurance applicable to the work. The policies shall
provide such waivers by endorsement or otherwise.
9.7 Acceptability of Insurers:
9.7.1 Insurance is to be placed with insurers acceptable to the City of
Renton.
9.8 Verification of Coverage:
9.8.1 Owner shall furnish Renton with original certificates and a copy of
the amendatory endorsements, including but not necessarily limited
to the additional insured endorsement(s), evidencing the Automobile
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Liability and Commercial General Liability insurance of Chvner
before commencement of the work before any exposure to loss may
occur.
9.9 Assignment.
The Parties may not assign any portion of this Agreement without the non-assigning
party's written consent,and any assignment in violation of this provision shall be void. If
the non-assigning party gives its written consent to any assignment,the terms of this
Agreement shall continue in full force and effect and no further assignment shall be made
without additional written consent.
9.10 Assigns and Successors.
Renton and Owner each binds itself,its partners,successors,assigns,and legal
representatives to the other party to this Agreement,and to the partners,successors,
assigns,and legal representatives of such other party with respect to all covenants of the
Agreement.
9.11 Counterparts.
This Agreement may be(i)executed in several counterparts,all of which shall constitute
one and the same instrument,and(ii)delivered by telecopy,facsimile or in portable
document format(PDF)by electronic mail,each of which shall be deemed an original for
all purposes hereunder.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of
the date last written below.
PEARLMARK HARVEST LAKESHORE, CITY OF RENTON
L.L.C.,a Delaware limited liability company
Pearlmark Harvest Lakeshore Mezz Borrower,
L.L.C., a Delaware limited liability Chip Vincent,CED
company,its sole member Administrator
City of Renton
By: Pearlmark Harvest Lakeshore JV, 1055 South Grady Way
L.L.C.,a Delaware limited liability Renton,Washington 98057
company,its sole member
APPROVED AS TO
By: Asian II Lakeshore,L.L.C., FORM;
a Delaware limited liability
company,a member and
manager Lawrence J.Warren,Esq.
B`,; Renton City Attorney.
Name•
Date:
Title:
Date: 1• a ew ey
Managin Director
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i
IN WITNESS WHEREOF, the Patties have entered into this Agreement effective as of
the date last written below. r
PEARLMARK HARVEST LAKESHORE, CITY OF RENTON
L.L.C.,a Delaware limited liability company
P
Pearlmark Harvest Lakeshore Mezz Borrower,
L.L.C.,a Delaware limited liability Chip Vincent,CED
company,its sole member Administrator
City of Renton
By: Pearl nark Harvest Lakeshore JV, 1055 South Grady Way
L_L.C.,a Delaware limited liability Renton,Washington 98057
company,its sole member
APPROVED AS TO
By: Aslan 11 Lakeshore,L.L.C., FO
a Delaware limited liability
company,a member and
manager Lawrence J.W ,Esq.
Renton City Attorney
By:
Name: Date:
Title:
Date:
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Exhibit - Map of Maintena a Areas
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Notes Legend
Yellow=The Landing Operator Areas The Landing maintenance areas-shrub,groundcover, beds
Green=City Street Trees/The Landing Operator &irrigation maintenance
Areas
Undesginated=City Operations Areas . City stree tree maintenance and replacement only;shrub,
groundcover, beds and replacement by The Landing
0 ❑ Parcels
1:4,317
360 0 180 360 Feet
WGS_1984_Web_Mercator_Auxiliary_Sphere
TJ Flatley This map is a user generated static output from an Internet mapping site and
f is for reference only.Data layers that appear on this map may or may not be
Em Reffron e Tflatley @Rentonwa.gov accurate,current.or otherwise reliable.
Finance&IT Division 12/13/2013 THIS MAP IS NOT TO BE USED FOR NAVIGATION
EXHIBIT B
City of Renton Shrub Maintenance Guidelines
Introduction
This exhibit provides guidelines for pruning shrubs in The Landing area so that the goal of proper
pruning will ensure vigorous, healthy and attractive shrubs. Hand tools are best for pruning shrubs but
can require more time investment initially overpower tools. Use of power tools,such as gas-powered
hedge clippers,will shorten the lifespan of plants, increase insect and disease problems, result in
mutilated shrubs and increase shrub replacement costs. Thinning of branches and reducing the length
of shrub branches requires use of hand tools, keeps shrubs healthier, reduces the frequency of
maintenance, and provides attractive, natural shrubs. There are slight differences between maintaining
deciduous shrubs (e.g. spirea), evergreen shrubs(e.g. rhododendron) and coniferous shrubs(e.g.
juniper);these are shown below.
With this basic information,the City of Renton provides the following shrub pruning guidelines.
General Shrub Pruning Guidelines
1. Use hand tools that include a hand pruner(e.g. Felco#2), a loppers capable of cutting stems less
than 2-inches in diameter. A hand shear can be used,which can help to make a shrub more
formal but can also damage woody tissues and increases pruning frequency. A shears used on
leafy material only provides a formal shape of the shrub canopy and minimizes woody tissue
damage.
2. To control the size of shrubs use thinning cuts on branches toward the base of the shrub or
remove portions of a branch at the node(see Figure 1). Avoid pruning between nodes to reduce
the risk of disease and more profuse sprouting.
Figure 1. Prune at the node
using a hand tool.
Exhibit B.City of Renton Shrub Maintenance Guidelines Page 1 of 3
3. The severity of pruning should be adjusted to what is to be accomplished and according to the
shrub's response to previous pruning. For example, overgrown shrubs may have to be cut to
the ground and re-establish their more compact size when they outgrow their space.
4. Target 1 in shrub pruning: remove dead,damaged, infected and infested wood first. It is
especially important to prune damaged and broken branches immediately following damage.
5. Target 2: control suckers. Suckers are unwanted growth that originate below the soil surface or
graft union. Unless they are wanted,they should be cleanly cut close to their origin.
Maintaining Shrub Structure
Shrub structure is important for attractive plants that perform in the landscape well.
6. Target 3:Vigorous shoots growing from the base of a young shrub should be selected to develop
a well-balanced branch structure. This is especially important for species that,when mature,
have most of their growth at the periphery of the shrub but few vigorous shoots from the bases.
7. A properly pruned shrub will be one that has been pruned to allow air circulation to avoid leaf
and branch disease, insect habitat(dark and leaf-litter accumulation)and allows sunlight to
reach around the shrub crown and the interior branches.
8. Shrubs pruned into perfect globes or tight squares will lose vigor and health and become leggy
(loss of leaves in the lower canopy). Angling branch thinning will create shorter branches at the
top and longer branches towards the bottom;this allows sunlight to reach the entire plant more
readily.
Deciduous Shrub Pruning
9. Deciduous shrubs should be pruned primarily by thinning cuts so that the plants appear
unpruned even though they are pruned to control size and/or shape (see Figure 2).
Figure 2.The center shrub can be pruned so that it becomes more spreading(left)or upright(right)in habit. Short stubs
indicate where the cuts were made.
Exhibit B.City of Renton Shrub Maintenance Guidelines Page 2 Of 3
10. Spring-flowering shrubs should be pruned soon after blooming is completed to foster vigorous
growth for the next year. Remove some of old stems to the ground. Thin out weak one-year-
old growth. Remaining stems that have flowered should be pruned back to one or two side
laterals near their nodes that have not bloomed. Thin new shoots leaving the healthiest.
Evergreen Shrub Pruning
Evergreen shrubs include broad-leaved and coniferous plants.
11. Do not shear broad-leaved evergreen shrubs;growth of shrubs sheared stimulates many shoots
to grow, requiring more frequent pruning, and the plants will increase in size each year. Severe
pruning is recommended only for overgrown shrubs in certain situations, but will not usually
endanger the plants. This should be done when the plants out-grow their location. Otherwise,
for general plant maintenance, remove individual branches at nodes.
12. Coniferous shrubs can be kept compact and natural looking by thinning back to lateral branches.
Thin back long stems in early spring so new growth can quickly fill any voids.
For further information, please contact the City of Renton,Community Services Departement, Parks
Planning and Natural Resources Division at 425-430-6600.
Exhibit B.City of Renton Shrub Maintenance Guidelines Page 3 of 3