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HomeMy WebLinkAbout05/03/2011 11 Randall Park Pedestrian Bridge Replacement Fundraising Agreement with FABT BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON • AGENDA STATEMENT Item No. 1 l - For Meeting of May 3, 2011 ITEM TITLE: A Resolution authorizing an Agreement with For A Better Tomorrow (FABT) to Raise Funds and Private Donations for Pedestrian Bridge Replacement at Randall Park SUBMITTED BY: Chris Waarvick, Director of Public Works Ken Wilkinson, Parks and Recreation Manager CONTACT PERSON/TELEPHONE: Ken Wilkinson, 576 -6416 SUMMARY EXPLANATION: Randall Park has been enjoyed by many over the years — its nature trails, duck pond and wildlife area — but last year in the interest of safety the two foot bridges had to be removed at Randall Park. Those foot bridges were built in the 1970s and were very popular; however, due to the lack of sufficient City funds, Parks and Recreation has not been able to replace them. For A Better Tomorrow (FABT) would like to start a fund raising effort for donations to construct at least one of the replacement pedestrian bridges, and this agreement reflects that public benefit. 0 Staff respectfully requests City Council to adopt the resolution authorizing execution of an agreement with For A Better Tomorrow (FABT) for a fund raising effort for donations for pedestrian bridges at Randall Park. For A Better Tomorrow (FABT) is a 501(c) (3) tax exempt non - profit corporation. Resolution X Ordinance Contract X Other (Specify) Agreement Mail Contract to (name and address): FABT, C/o Craig Dwight, Chair, 1120 S. 18 ' St, Yakima, WA 98901 -3654 Funding Source APPROVED FOR SUBMITTAL: • . - T \ City Manager STAFF RECOMMENDATION: Staff respectfully requests the City Council to adopt the Resolution. BOARD /COMMISSION /COMMITTEE RECOMMENDATION: At its February 9, 2011 meeting, the Parks and Recreation Commission unanimously voted to endorse this request. COUNCIL ACTION: ID RESOLUTION NO. R -2011- r A RESOLUTION authorizing and directing the City Manager to execute an Agreement Between the City of Yakima and For A Better Tomorrow (FABT), a Washington Nonprofit Corporation, for the purpose of seeking contributions from donors to fund pedestrian bridge construction at Randall Park. WHEREAS, the Parks and Recreation Division of the Department of Public Works for the City of Yakima operates and maintains an extensive parks system and conducts a substantial recreation program; and, WHEREAS, For A Better Tomorrow (FABT) is a charitable organization duly formed and existing as a nonprofit corporation under the laws of the State of Washington and maintains tax exempt status under Section 501(c) (3) of the federal Internal Revenue Code ; and, WHEREAS, the City does not have the staffing levels necessary, nor the necessary budget allowances or source of funding needed, to rebuild the replacement pedestrian bridges at Randall Park; and, . WHEREAS, For A `Better Tomorrow (FABT) has the professionals' experience, expertise, and willingness necessary to successfully proceed with this fund raising effort for donations for this very worthwhile pedestrian bridge replacement project at Randall Park; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to enter into an agreement with For A Better Tomorrow (FABT), a Washington Nonprofit Corporation, for the purpose of seeking contributions from donors to fund pedestrian bridge construction at Randall Park in accordance with the terms of the attached agreement, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager hereby authorized and directed to execute the attached and incorporated "Agreement between the City of Yakima and For A Better Tomorrow (FABT) for Pedestrian Bridges at Randall Park. ADOPTED BY THE CITY COUNCIL this _ day of 2011. ATTEST: Micah Cawley, Mayor Debbie Kloster, City Clerk III ms/Resolution for FABT Agrmt for Randall Park Bridge doc r AGREEMENT BETWEEN THE CITY OF YAKIMA AND FOR A BETTER TOMORROW III FOR PEDESTRIAN BRIDGES AT RANDALL PARK THIS AGREEMENT is entered into between the City of Yakima (hereinafter the "City "), whose address is 129, North 2nd Street, Yakima, Washington 98901, and For A better Tomorrow (hereinafter called "FABT "), for purposes of funding and construction of pedestrian bridges at Randall Park. WHEREAS, City' owns and operates, through its Parks and Recreation Division, public parks within the City of Yakima. One of these public parks is Randall Park, located generally between South 44 and South 48 Avenues south of West Nob Hill Boulevard (hereafter called "Park "). Such Park contains water frontage, formerly served by two walking bridges ,.and pathway. The bridges have been removed for safety concerns because of deterioration caused by normal wear and tear, and have not been replaced due to lack of sufficient City funds; and WHEREAS, the Park is a valuable recreational resource for the community; and . WHEREAS the City is committed to ensuring that improvements to the Park serve the best interests of the community; and WHEREAS, FABT is a charitable organization duly, formed and existing as a 0 nonprofit corporation under the laws of the State of Washington, with registered office at 32 North 3rd Street, Suite 343, Yakima, Washington 98901. For A Better Tomorrow has received and maintains tax exempt status under Section.501(c)(3) of the federal Internal Revenue Code (IRC); and WHEREAS, FABT desires to promote the public benefit and use of the Park by seeking contributions from donors to fund the construction of at least one of the two bridges. Priority of funding will be to solicit gifts and donations to (1) first, reconstruct the smaller of the two bridges and (2) second, if sufficient funds are donated, reconstruct the larger of the two bridges. . WHEREAS, FABT is willing to use such donated funds to construct one or both bridges as supported by donations; and WHEREAS, City and FABT desire to enter into an Agreement setting forth the responsibilities and duties of each party with regard to such Park improvements; NOW, THEREFORE, in consideration of the covenants and agreements contained herein and performed by the parties hereto, it is hereby agreed as follows: • • City of Yakima — For A Better Tomorrow — Randall Park Bridges 1. Purpose. The purpose of this Agreement is to define .the responsibilities of the City and FABT in the funding and construction of pedestrian bridges and to provide for effective cooperation in the implementation of the provisions set forth herein. 2. Obligations of the Parties. City Obligations: City shall not be obligated to provide funding for the pedestrian bridges described herein, nor shall this Agreement be construed as a commitment to provide any funding for such pedestrian bridges project or the completion thereof. City shall perform the following obligations in regard to the Park: A. The City shall assist in planning for the pedestrian bridges in the Park, and . shall have final authority to approve the design, design engineering, site plan, landscaping elements, construction timeline, and any and all permits required for completion of the project. B. The City shall oversee the site development of the area where the construction of the pedestrian bridges is planned; C. The City shall ensure the site has accessibility for anyone with a disability; D. Upon completion, the pedestrian bridge(s) shall be incorporated within the public Park facilities, and the City shall maintain and repair the pedestrian bridges as the City deems necessary or appropriate; and E. The City shall take other steps, as necessary, to ensure public safety in the use and enjoyment of the pedestrian bridges. FABT Obligations: FABT's obligations herein are subject to, and conditioned upon, receipt of sufficient donated funds and services necessary, in FABT's sole discretion, to accomplish the work. The parties understand and agree that priority of funding will be to solicit gifts and donations to (1.) first, reconstruct the smaller of the two bridges and (2) second, if sufficient funds are donated, reconstruct the larger of the two bridges. FABT shall obtain any and all necessary permits for the construction of the pedestrian bridge project, and shall be responsible for design of the bridges and attendant facilities, subject to approval of City. When FABT determines that sufficient funding has been received, FABT shall perform the following obligations in .regard to the pedestrian bridge(s): A. FABT shall provide the funding, labor and materials for the design, development and construction of pedestrian bridges in the Park and reserves the right to voluntarily contribute additional sums as it deems necessary and appropriate, subject to the City's approval which it will not unreasonably withhold; B. The FABT shall assist the City in the planning and site development of the pedestrian bridges; City of Yakima — For A Better Tomorrow — Randall Park Bridges • C. The FABT shall provide, and /or select the contractor(s) to perform, the design and construction of the pedestrian bridges; . 4110 . D. The FABT shall assist the City in the selection of amenities for the site, including, but not limited to, benches and landscape elements; and E. The FABT reserves the right to participate in the construction of the pedestrian bridges and related landscaping subject to the direction of the . designated contractor, and with the approval of City. 3. Term. The term of this Agreement shall commence upon execution hereof and shall remain in effect unless the Agreement is terminated earlier by either party under Section 16 of this Agreement. FABT shall proceed with its obligations in a timely and diligent manner but shall, not have any:responsibility for delays caused by others beyond the control of the FABT or.that were-not reasonably foreseeable. • 4. Administration. This Agreement shall be administered by the City's Parks and Recreation Division. 5. Independent Contractor. FABT and the City understand and expressly agree that the FABT. is an independent contractor in the performance of each and every part of this Agreement. FABT, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the . work/services required for its performance under this ;Agreement. FABT, as an independent contractor, shall have the sole judgment of the means, smode or manner of the actual performance of work/services required for its performance under this Agreement. Additionally, and as • an independent contractor, FABT and its employees, agents and volunteers shall make no claim of City employment nor shall claim against the City any related employment benefits, social security and /or retirement. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership, or agency between FABT and /or any officer, employee or agent of FABT and the City. 6. No Third Party Rights. This Agreement is entered into for the sole benefit of . the parties. It shall confer no benefits or rights, direct or indirect, on any third parties. • No person or entity other than the City and FABT may. rely upon or enforce any provision of this Agreement. . 7. • Indemnification and Hold Harmless. A. Each party hereto agrees to maintain responsibility and assume liability in the performance of this Agreement for its own wrongful and /or negligent acts or omissions, and those of its officers, agents or employees to the fullest extent allowed by law. Additionally, City agrees to protect, defend, indemnify and hold harmless FABT and its officers, volunteers and employees from an and all claims demands losses liens liabilities •enaities fines lawsuits 'and other . proceedings and all judgments, awards, costs and expenses (including reasonable attorneys' fees and disbursements) caused by or occurring by reason of any negligent act and /or omission of the City, its officers, elected officials, employees, agents and /or volunteers arising out of or in . connection with the improvement, use and maintenance of the Park under and pursuant • •r 3 City of Yakima - For A Better Tomorrow — Randall Park Bridges • • to this Agreement, including but not limited to any personal injury and /or property damage claim. This City obligation to provide defense and indemnification shall not extend to or apply to any contractor or person retained and paid by FABT toperforni any of the work included within this Agreement. B. The provisions of this Section shall survive the termination or expiration of this Agreement. C. Nothing contained in this Section or this Agreement shall create a liability or a right of indemnification in any third party. 8. Nondiscrimination. During the performance of this Agreement, the Parties shall not discriminate in violation of any applicable federal, state and /or local law or regulation on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability, honorably discharged veteran or military status, pregnancy, sexual orientation, and any other classification protected under federal, state or local law. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, , and•the provision of services under this Agreement. 9. Compliance With Law. The Parties to this Agreement shall comply with all applicable federal, state and.local laws, and rules and regulations, in,car ying out the terms and conditions of this Agreement. 10. No Insurance. It is understood the City does not maintain liability insurance for the FABT or its employees, agents, volunteers and subcontractors, nor does FABT maintain liability insurance for the City or its employees and contractors. 11. Waiver of Breach. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 12. Dispute Resolution.• The City and FABT shall meet to negotiate any outstanding issues related to the development of the pedestrian bridges and the implementation of this Agreement in order to resolve any disputes through cooperation and negotiation to the greatest extent possible. If negotiation is not successful, the Parties may consent to mediation or another form of dispute resolution but only if agreed to in advance in writing. 13. Integration. This Agreement contains all of the terms and conditions agreed on by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement, are deemed to exist or to bind either of the parties. 4 City of Yakima — For A Better Tomorrow — Randall Park Bridges • • 14. Modifications. The parties may modify this Agreement but no proposed changes or modifications shall have validity or become binding on either party unless such changes or modifications are in writing and executed by both parties. 15. Severability. A. If a court of competent jurisdiction holds any part, term or provision of this Agreement illegal or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held invalid. B. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict and shall be deemed modified to conform to such statutory provision. 16. Termination. Either party may terminate this Agreement, with cause, by written notice of default from the non - defaulting party to the defaulting party, if the default is not cured within thirty (30) days following the giving of such notice. In addition, either party may terminate this Agreement, without cause, upon thirty (30) days' written notice to the other party before either party has incurred expenses in excess of $1,000 following the full execution of this Agreement to perform its obligations hereunder, but not thereafter, except for cause. • 17. Survival. Any provision of this Agreement which imposes an obligation after expiration or termination of this Agreement shall survive the expiration or termination and shall bind the parties. 18. Notices. Unless otherwise stated herein, all notices and demands are required in written form and sent to the parties at their addresses as follows: TO: CITY OF YAKIMA R. A. Zais, Jr., City Manager City of Yakima 129 North Second Street Yakima, WA 98901 TO: FOR A BETTER TOMORROW Craig Dwight, Chair .Yakima, WA 989 19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 20. Venue. Venue for an action arising under this Agreement shall be in Yakima County Superior Court. • 5 City of Yakima - For A Better Tomorrow - Randall Park Bridges 21. Filing. Copies of this Agreement shall be filed with the Yakima County Auditor or otherwise posted pursuant to RCW 39.34.040 and with the City Clerk of Yakima. CITY OF YAKIMA FOR A BETTER TOMORROW R.A. Zais, Jr., City Manager Craig D ht,.Chair 4(ig(// Date Signed Date Signed ATTEST: Deborah Kloster, City Clerk 6 City of Yakima — For A Better Tomorrow — Randall Park Bridges