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HomeMy WebLinkAboutCC Resolution 10341 (Traffic Mitigation Fees)RESOLUTION NO. 10341 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE SIGNING OF AN AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND MARIN Y.M.C.A. CONCERNING ALTERNATIVE PAYMENT OF TRAFFIC MITIGATION FEES. (TERM OF AGREEMENT - JULY 1, 1998 UNTIL JUNE 30, 2007) THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES AS FOLLOWS: WHEREAS, the City Manager and City Clerk are authorized to execute, on behalf of the City of San Rafael, an Agreement with Marin Y.M.C.A. concerning alternative payment of traffic mitigation fees in a form to be approved by the City Attorney. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the San Rafael City Council held on the 21" day of December, 1998, by the following vote to wit: AYES: Councilmembers: Heller, Miller, Phillips and Mayor Boro NOES: Councilmembers: None ABSENT: Councilmembers: Cohen JEAMI E M. LEONCINI, City Clerk AGREEMENT BETWEEN CITY OF SAN RAFAEL AND MARIN Y.M.C.A. CONCERNING ALTERNATIVE PAYMENT OF TRAFFIC MITIGATION FEES This Agreement is made and entered into this 22"d day of December, 1998, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and MARIN YMCA (hereinafter "YMCA"). AGREEMENT Based upon their mutual promises, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY. The City Manager shall be the representative of the CITY for all purposes under this Agreement. B. YMCA. YMCA shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement. Seth Goldman is hereby designated as the PROJECT DIRECTOR for YMCA. 2. OBLIGATIONS OF YMCA. YMCA agrees to the following determinations and obligations: A. The total peak trips allocated to YMCA's San Rafael site, totals 157, and the mitigation fee for the site, totals ( $2,455/trip X 157 trips) $385,435.00. B. YMCA has paid a total of $152,210.00 in cash and owes to the CITY the balance of $233,225.00. C. In partial satisfaction of the outstanding balance, YMCA has agreed and is providing pursuant to an Agreement dated 6-4-98, a total of 50 "split time" monthly memberships to CITY staff, plus a one-time $165.00 joining fee, for five (5) years (at $42.50/mo. each), beginning 11-1-97 and ending 10-31-02; the total value to be credited against YMCA's debt is $135,750.00. A copy of the June 4,1998 Agreement is attached hereto and incorporated herein. D. In further satisfaction of the outstanding balance, YMCA will provide program services, subsidies and scholarships for the Canal and Terra Linda communities of $9,747.50 per year for ten years, beginning 7-1-98 and ending 6-30-07; the total value to be credited against YMCA's debt is $97,475.00. The determination of the nature and extent and value of these services, subsidies and scholarships shall be mutually determined by the parties at an annual meeting called by the CITY. Failure of YMCA to perform its obligations hereunder will result in termination of this Agreement and the reinstatement of YMCA's obligation to pay to the CITY the remaining balance of its traffic mitigation fees. 3. OBLIGATIONS OF CITY. CITY agrees that YMCA's completed performance of the obligations specified in paragraph two(2) herein, will satisfy YMCA's debt to the CITY for traffic mitigation fees for its San Rafael site. 4. TERM OF AGREEMENT. The term of this Agreement shall be from July 1, 1998 until June 30, 2007, unless terminated earlier pursuant to paragraph five (5). 5. TERMINATION. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other, but their outstanding prior obligations to each other shall remain. 6. INDEMNIFICATION. YMCA shall indemnify, release, defend and hold harmless CITY, its officers, agents, employees, and volunteers, against any and all claims, demands, suits, actions, administrative actions, judgments, loss, liability, damages, costs or expenses of any kind, including attorney's fees and administrative costs, arising out of or resulting in any way, in whole or in part, from YMCA's, it officers, agents and employees performance of its duties and obligations under this Agreement. YMCA's obligations under the preceding sentence shall apply regardless of whether CITY, its officers, agents employees or volunteers are actively or passively negligent, but shall not apply to any loss caused solely by the sole active negligence of CITY. 7. NONDISCRIMINATION. YMCA shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 8. COMPLIANCE WITH ALL LAWS. YMCA shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. YMCA shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. YMCA shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 9. NO THIRD PARTY BENEFICIARIES. CITY and YMCA do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 10. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal 2 delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY: Rod Gould, City Manager City of San Rafael 1400 Fifth Avenue P.O. Box 151560 San Rafael, CA 944915-1560 TO CONTRACTOR: Seth Goldman (Project Director) Marin YMCA 1500 Los Gamos Drive San Rafael, CA 94903 Linda Spackman YMCA Executive Director of Property Management 44 Montgomery St., Suite 770 San Francisco, CA 94104 11. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, YMCA, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. YMCA and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 12. ENTIRE AGREEMENT -- AMENDMENTS,. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the YMCA and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the YMCA and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 13. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 14. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 15. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL ROD GOULD, City Manager ATTEST: M. LEO Cg, City Clerk APP)(OVE. j ORM: GAR T. PA HANTI, City Attorney 51 YMCA AGREEMENT FOR YMCA MEMBERSHIPS FOR CITY EMPLOYEES This Agreement is made and entered into this y -1� day of v u n -- , 1998, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and Marin YMCA (hereinafter "CONTRACTOR"). RECITALS WHEREAS, City of San Rafael desires Marin YMCA memberships for its employees; and WHEREAS, Marin YMCA represents that it has the ability to provide such memberships, and is willing to provide such memberships in place of direct cash payments for a portion of the debt owed to City for traffic mitigation fees; AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. The Assistant to the City Manager is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. The Executive Director of the Marin YMCA is hereby designated as the PROJECT DIRECTOR for YMCA- 2. MCA 2. MEMBERSHIPS A. CONTRACTOR shall provide fifty (50) Adult Split -time memberships per year to CITY employees. B. In the event that a City employee desires to upgrade the membership from Adult to Family, Single Parent or Senior Couple, the upgrade will be permitted at the employee's expense. City employees will not be permitted to upgrade memberships from Split -time to Full time. 3. COMPENSATION 1 A. There shall be no direct compensation for the memberships described in section 2. of this Agreement. B. In the first year of the Agreement, City agrees to decrease Consultant's debt owed to City for traffic mitigation fees in the amount of $33,750 ($510 yearly fee + $165 joining fee/ per membership). In all subsequent years of the Agreement, City agrees to decrease Consultant's debt owed to City for traffic mitigation fees in the amount of $25,500 ($510 yearly fee per membership). 4. TERM OF AGREEMENT The term of this Agreement shall be five (5) years commencing November 1, 1997 and ending on October 31, 2002. 5. TERMINATION Either party may terminate this Agreement without cause upon thirty (3 0) days written notice mailed or personally delivered to the other party. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. 6. EVDEMNIFICATION CONTRACTOR shall indemnify, hold harmless and defend CITY, its officers, agents, employ- ees, and volunteers, against any and all claims, demands, suits, loss, liability, cost and damages including attorney's fees, litigation expenses, and cost of administration (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) alleged against CITY, CONTRACTOR or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees, litigation expenses, and cost of administration, arising or alleged to have arisen directly or indirectly out of the services provided under this Agreement. CONTRACTOR'S obligations under the preceeding sentence shall apply regardless of whether City or any of its officers, agents, employees or volunteers are actively or passively negligent, but shall not apply to any loss, liability cost or damages caused solely by the active negligence or willful misconduct of CITY. 7. NONDISCRIlVIINATION CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 2 8. COMPLIANCE WITH ALL LAWS CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under. this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 9. NO THIItD PARTY BENEFICIARIES CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one parry, under the terms and conditions of this Agreement, to the other party. 10. NOTICES All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY: Sharon E. Andrus Assistant to the City Manager City of San Rafael 1400 Fifth Avenue POB Box 151560 San Rafael, CA 94915-1560 TO CONTRACTOR Seth Goldman Executive Director Marin YMCA 1500 Los Gamos Drive San Rafael, CA 94903 11. INDEPENDENT CONTRACTOR For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of 3 CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 12. ENTIRE AGREEMENT -- AMENDMENTS The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 13. WAIVERS The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other tern, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any tern, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 14. COSTS AND ATTORNEY'S FEES The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 15. APPLICABLE LAW The laws of the State of California shall govern this Agreement. IN WPINESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL 7bert/'Boro, r ATTEST: a.a ti Ge M. Leoncini,"City Clerk z FORM: City/Attorney CONTRACTOR By: AM 91k L4A,-- Name: of i. Lr -c- J S P E- tir e- 6 Title: Y` U- PIU IYL 5