Draft Kiwanis Park Agreement
RECEIVED
APR 1 4 2004
Interoffice
MEMORANDUM
City Of Meridian
City Clerk Office
To:
William G. Berg, Jr. (originals via email)
Cc:
Doug Strong, Parks Director (via email)
From:
Wm. F. Nichols
Subject:
Development and License Agreement between the City and Sunrise Kiwanis Club
Date:
April 14,2004
Please find attached the City of Meridian Parks & Recreation Department
Development and License Agreement for the Kiwanis Park. You will need to obtain the
signature of the President of Sunrise Kiwanis Club, and then this agreement may be placed upon
an upcoming Council agenda.
If you have any questions in this matter, please let me know.
Z:\WorkIMlMeridianlMeridian 15360M'ParkslBerg Kiwanis Park Memo 04 12 04.da:
CITY OF MERIDIAN
PARKS & RECREATION DEPARTMENT
DEVELOPMENT AND LICENSE AGREEMENT
THIS AGREEMENT made and entered into this - day of ,
2004, by and between the City of Meridian, an Idaho Municipal Corporation, hereinafter
called "City", and the Sunrise Kiwanis Club, a 501(c)(3) Corporation, hereinafter called
"KIWANIS."
WHEREAS, "Kiwanis" is a service organization dedicated to public service for fund
raising in support ofthe youth and residents of Meridian; and
WHEREAS, "Kiwanis" and the "City" desire to cooperate to improve recreation
opportunities for youth and the residents of Meridian; and
WHEREAS, the "City" has available a 9 acre parcel located between Los Alamitos and
Thousand Springs Subdivisions; and
WHEREAS, the "City" and "Kiwanis" agree to designate the 9 acre parcel site as a park
to support youth and residents of Meridian; and
WHEREAS, the "City" is willing, upon certain terms and conditions, to provide use of
the entire 9 acre site for a period oftime defined within this AGREEMENT; and
NOW, THEREFORE, the parties hereto agree as follows:
1.
DEVELOPMENT AND USE OF PREMISE
"Kiwanis" will construct the park property for the use of Meridian youth
and residents of Meridian and within the above-described area, which
shall be constructed and maintained in accordance with the following
provisions:
a.
"Kiwanis" will provide all funding necessary for the construction
of the facilities and premises as described by the department and
shown on the Park Master Plan.
b.
Development of the premises shall be as noted, which shall be
completed within one (1) year of the date hereof provided, and that
one additional year may be granted if necessary and so long as
good faith efforts to raise funds and make progress toward
completion are demonstrated.
CITY OF MERIDIAN
PARKS & RECREATION DEPARTMENT
DEVELOPMENT AND LICENSE AGREEMENT
PAGE 1 OF 7
2.
c.
Kiwanis construction shall include:
1.
The Master Plan and construction documents.
2.
The labor and equipment for under ground utility
installation.
3.
All volunteer labor for the duration of the project.
4.
The complete excavation for the irrigation lake.
5.
The complete excavation for the irrigation system.
6.
The picnic shelter, material and labor.
7.
The basketball court, materials and labor.
8.
The restroom, some materials and labor.
d.
Park rules and regulations and applicable city ordinances will be
observed and complied with.
e.
"Kiwanis" understands that the premises licensed for use is first
and foremost a "City" park and must obtain permission from
"City" prior to the start of any earth work, grading or construction
being performed.
f.
"Kiwanis" agrees to develop the park to "City" park construction
specifications and all construction will require a building permit
prior to the start of construction.
g.
"Kiwanis" agrees to maintain records of donations and record
volunteer labor hours and provide the "City" copies of such
records every six (6) months during the construction period.
CONDITIONS OF USE
a.
It is understood that during construction that the facility will be
secured in a manner that reduces the opportunity for injury to
anyone entering the property.
b.
It is understood and agreed by the parties that "City" has no
obligation to pay for construction ofthe park unless agreed to in
writing and attached to this License Agreement. "City" makes no
CITY OF MERIDIAN
PARKS & RECREATION DEPARTMENT
DEVELOPMENT AND LICENSE AGREEMENT
PAGE 2 OF 7
warranty or promise as to the condition, safety, usefulness or
habitability of the premises and "Kiwanis" accepts the premises
"as is".
3.
INDEMNIFICATION AND INSURANCE
"Kiwanis" indemnifies "City" and holds "City" harmless from any loss,
liability, claim or action for damages or injury to "Kiwanis", or personal
property, or their employees, agents, guests or business invitee(s)
attending or participating in any "Kiwanis" event, game or practice and
arising out of or resulting from the condition of the premises or any lack of
maintenance or repair thereon. It is further understood and agreed
"Kiwanis" shall not be considered agents of "City" in any manner or for
any purpose whatsoever in their use and occupancy of the premises, and
"Kiwanis" hereby agrees to indenmify and hold "City" harmless from any
loss, liability, claim or action from damages or injuries to persons or
property in any way arising out of or resulting from the use and occupancy
of the LICENSED premises by "Kiwanis", their agents, employees, guests
or business invitee(s) attending or participating in any organized
"Kiwanis" event, game or practice. If any claim, suit or action is filed
against "City" for any loss or claim described in this paragraph,
"Kiwanis", at "City's" option shall defend "City" and assume all costs,
inCluding attorney's fees, associated with the defense or resolution thereof,
or indemnify "City" for all such costs and fees incurred by "City" in the
defense or resolution thereof, however the "City" shall not be relieved
hereby from liability for its own negligence or that of its employees.
In addition, "Kiwanis" shall maintain, and specifically agrees to maintain
throughout the term of this AGREEMENT, liability insurance in which
"City" shall be named insured in the minimum amount as specified in the
Idaho Tort Claims Act set forth in Title 6, Chapter 9 ofthe Idaho Code.
The limits of insurance shall not be deemed a limitation of the covenants
to indemnify and saye and hold harmless "City"; and if "City" becomes
liable for an amount in excess of the insurance limits, herein proyided,
"Kiwanis" coyenants and agrees to indemnify and save and hold harmless
"City" from and for all such losses, claims, actions, or judgments for
damages or liability to persons or property occurring as a result of
attending or participating in any organized "Kiwanis" event, game or
practice. "Kiwanis" shall provide "City" with a certification of insurance
or other proof of insurance evidencing "Kiwanis" compliance with the
requirements of the paragraph and file such proof of insurance with:
City of Meridian
33 East Idaho Avenue
CITY OF MERIDIAN
PARKS & RECREATION DEPARTMENT
DEVELOPMENT AND LICENSE AGREEMENT
PAGE30F7
4.
Meridian, Idaho 83642
In the event the insurance minimums of the Idaho Tort Claims Act are
changed, "Kiwanis" shall immediately submit Proof of Compliance with
the changed limits.
The "Kiwanis" will proyide "City" a detailed Master Plan as approved by
the Board of Parks and Recreation Commissioners for which construction
will be designed and built.
CITY RESPONSIBILITIES
a.
The "City" will apply for and pay associated fees for all "City" and
County permits and applications for construction purposes for
improvements to the site. The "City shall pay all ACHD fees
associated with this development.
b.
The "City" will review, and when accepted, approve all detailed
specifications for construction of all site improvements to the park.
c.
The "City" will provide project inspections during construction to
assure that all improvements are constructed to the approved
specifications.
d.
The "City" shall perform all site maintenance other than what
"Kiwanis" has agreed to maintain as noted above in item 3. L. of
this AGREEMENT. The City will accept maintenance after each
phase of construction is complete and acceptable to the City as
outlined herein.
e.
Provide some parts for utilities.
f.
Provide electric power to property.
g.
Provide irrigation pump station.
h.
Provide parts for irrigation system.
i.
Provide liner for irrigation pond.
j.
Provide general support throughout the project.
k.
Provide grass seed for the park site.
CITY OF MERIDIAN
PARKS & RECREATION DEPARTMENT
DEVELOPMENT AND LICENSE AGREEMENT
PAGE 4 OF 7
5.
TERMINATION UPON BREACH OR DEFAULT
This AGREEMENT may be terminated by either party upon a breach of
this agreement and failure to cure such breach after sixty (60) days written
notice. In such event, "Kiwanis" shall be required to remove all personal
property and otherwise vacate the premises on or before the expiration of
the sixty (60) day period. In the event of a holdover by "Kiwanis" beyond
the sixty (60) day period, "City", in addition to and without waiver of any
other rights or remedies it may have, may immediately re-enter and take
possession and expel "Kiwanis" from the premises, with or without
process of law. In the event of re-entry by "City", "Kiwanis" shall be
liable for any damages suffered by "City", its agents or employees, and
any costs, including legal expenses and attorneys fees, incurred by "City"
in recovering the premises.
6.
NON-WAIVER
"City's" waiver on one or more occasion of any breach or default of any
term, covenant or condition of this AGREEMENT shall not be construed
as a waiver of any subsequent breach or default of the same or a different
term, covenant or condition, nor shilll such waiver operate to prejudice,
waive or affect any right or remedy "City" may have under this
AGREEMENT with respect to such subsequent default or breach by
"Kiwanis" shall be liable to "City" for all damages and costs, including
legal expenses and attorney's fees, suffered or incurred by "City" in the
enforcement of any of the terms, covenants or conditions of the
AGREEMENT.
7.
ASSIGNMENT, SUBLEASE OR TRANSFER
"Kiwanis" shall not assign or transfer its responsibilities under this
AGREEMENt, or any portion thereof, or cause or suffer any alterations
thereto, other than as specified in this AGREEMENT, without the express
written consent of "City".
8.
NOTICES
a.
All notices to be given with respect to this AGREEMENT shall be
in writing addressed as follows:
TO "KIWANIS":
President, Donna Grummer
Sunrise Kiwanis Club
P.O. Box 1266
Meridian, Idaho 83680
CITY OF MERIDIAN
PARKS & RECREATION DEPARTMENT
DEVELOPMENT AND LICENSE AGREEMENT
PAGE 5 OF 7
TO "CITY":
City of Meridian
Director, Parks and Recreation Dept.
11 West Bower Street
Meridian, Idaho 83642
With a copy to:
City Clerk
33 East Idaho Avenue
Meridian, Idaho 83642
b.
Notice shall be either delivered or sent by certified mail, postage
prepaid, return receipt requested to the party to be notified at the
address specified above, or such other address as either party may
designate in writing. Every notice shall be deemed to have been
given at the time it is deposited in the United States mail, or upon
delivery to the party above specified, or their agent or legal
representative.
9.
ALTERATIONS
"Kiwanis" shall not make, or permit to be made, alterations on or to the
premises without first obtaining "City's" written consent. Additions to, or
alterations of, the premises shall become at once a part of the real property
and belong to "City". "Kiwanis" shall keep the premises free from any
liens arising out of any work performed for, materials furnished to, or
obligations incurred by "Kiwanis."
10.
INSPECTON
"Kiwanis" shall permit "City" and "City's" contractors and employees, at
any time, to enter the premises for the purposes of inspection for
compliance with the terms of this Use AGREEMENT and for the exercise
of "City's" rights, the posting of notices, and for all other lawful purposes.
11.
APPROVAL BY CITY COUNCIL
This AGREEMENT shall not be effective for any purpose whatsoever
until it is approved by the resolution of the City Council and executed by
the Mayor. By the granting of this LICENSE, the City Council is not
obligating itself, the City of Meridian, its officers or agents, with regard to
any other discretionary action relating to development or operation of said
premises. Such discretionary actions include, but are not limited to, the
granting or rezoning, variances, use permits, environmental clearances, or
any other governmental agency approval that is required by law.
CITY OF MERIDIAN
PARKS & RECREATION DEPARTMENT
DEVELOPMENT AND LICENSE AGREEMENT
PAGE 6 OF7
12.
BINDING EFFECT:
This AGREEMENT and the terms and conditions hereof shall apply to
and are binding upon the heirs, legal representative, successors and assigns
of the parties.
13.
PRIOR AGREEMENTS SUPERCEDED:
This AGREEMENT contains the entire agreement between the parties as
it pertains to the premises.
IN WITNESS WHEREOF, the parties hereto have subscribed their names the
day and year first above written.
MERIDIAN CITY:
SUNRISE KIWANIS CLUB:
BY:
Tammy de Weerd, Mayor
BY:
Donna Grummer, President
Attest:
BY
William G. Berg, Jr., City Clerk
APPROVED AS TO FORM AND CONTENT:
Director, Parks & Recreation Department
City Attorney
Risk Manager
Z:\Work\M\MeridianlMeridian 15360MIParksIDevelopment and license Agmt Kiwanis Park 04 09 04.doc
CITY OF MERIDIAN
PARKS & RECREATION DEPARTMENT
DEVELOPMENT AND LICENSE AGREEMENT
PAGE 7 OF 7