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HomeMy WebLinkAboutCC Resolution 13400 (Canal Alliance)RESOLUTION NO. 13400 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL TO AUTHORIZE THE CITY MANAGER TO ENTER INTO AGREEMENTS WITH TRUST FOR PUBLIC LAND FOR THE CONSTRUCTION OF, AND CANAL ALLIANCE FOR THE MANAGEMENT OF THE CANAL COMMUNITY GARDEN, KERNER BOULEVARD AND WINDWARD WAY WHEREAS, the CITY owns certain real property located at the southwest corner of the intersection of Bellam Boulevard and Windward Way in the Canal neighborhood of San Rafael, which property is known as Assessor Parcel No. 09-280-08; and WHEREAS, in 2005, the Pickleweed Park Community Center located at 40 Canal Street was renovated and expanded, during which the community garden facility was eliminated; and WHEREAS, since 2005, interest has been demonstrated and numerous efforts made to re-establish a community garden in the Canal Neighborhood by community groups, concluding that the City -owned property at Bellam Boulevard and Windward Way is the most feasible property for the project; and WHEREAS, the City does not have capacity to design, build, maintain or manage a community garden facility, therefore the concept of a non profit collaborative to utilize City property to install and operate a desired public community garden is a realistic approach to accomplish this goal; and WHEREAS, in 2007 Marin County Supervisor Steve Kinsey assisted in initiating the Canal Community Gardens and Trails Collaborative, consisting of representatives from Canal Alliance, Marin Master Gardeners, Conservation Corps North Bay, the Supervisor's office and City of San Rafael; and WHEREAS, in 2008, Trust for Public Land (TPL), through a grant from Marin Community Foundation, was commissioned to provide community outreach, coordinate the design of the proposed garden; and conduct the capital campaign for the project; and WHEREAS, TPL sponsored and held a series of public workshops in 2010 that produced a community supported conceptual plan for a community garden at the project site; and WHEREAS, in September of 2010, the San Rafael Park and Recreation Commission, after several months of review, approved and recommended the project proposal as presented by TPL, and the operational and management proposal, as presented by Canal Community Alliance to the City Council; and A . WHEREAS, on October 18, 2010, the City Council approved the use of the Bellam Boulevard/Windward Way site for the proposed community garden, subject to planning process approvals, formal Agreements with TPL and Canal Alliance for construction and operation, along with successful fundraising; and WHEREAS, on June 28, 2011, the Planning Commission held a duly noticed public hearing on the proposed Use Permit and Environmental and Design Review Permit application, accepting all public testimony and the written report of the Department of Community Development; and approved both the Use Permit and Environmental and Design Review Permit; and WHEREAS, TPL has completed plans and satisfied all conditions of the Use Permit; and raised the necessary funds for construction of the project; and WHEREAS, Canal Alliance agrees to all stipulations for the operation and management of the Canal Community Garden utilizing funds raised by participant fees and a generous contribution procured by Marin County Supervisor Steve Kinsey. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES RESOLVES to authorize the City Manager to enter into Agreements with Trust for Public Land for the construction of, and Canal Alliance for the Management of, the Canal Community Garden, at Kerner Boulevard and Windward Way. 1, Esther C. Beirne, 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 City Council of the City of San Rafael, held on Monday, the 20`x' of August, 2012, by the following vote, to wit: AYES: Councilmembers: Connolly, Heller, Levine, McCullough & Mayor Phillips NOES: Councilmembers: None ABSENT: Councilmembers: None �x Esther C. Beirne, City Clerk AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND THE TRUST FOR PUBLIC LAND FOR CONSTRUCTION OF THE CANAL COMMUNITY GARDEN This Agreement, for Construction of the Canal Community Garden ("Agreement"), is entered as of August 20, 2012 by and between The Trust for Public Land ("TPL"), a California non-profit public benefit corporation, and the City of San Rafael ("CITY"). RECITALS WHEREAS, the CITY owns certain real property located at the southwest corner of the intersection of Bellam Boulevard and Windward Way in the Canal neighborhood of San Rafael, which property is known as Assessor Parcel No. 09-280-08 and further described in Exhibit A ("Project Site"); and WHEREAS, TPL sponsored and held a series of public workshops in 2010 that produced a community supported conceptual plan ("Conceptual Plan") for a community garden at the Project Site that is described in Exhibit B. and WHEREAS, the CITY will not be required to commit any funds to implement the Conceptual Plan improvements ("Improvements"); and WHEREAS, TPL proposes to install at its own expense the Improvements, estimated to cost $600,000, as a gift -in-place ("Gift") to the CITY; and WHEREAS, on October 18, 2010, the San Rafael Park and Recreation Commission has recommended that the San Rafael City Council accept the Gift and approve the Conceptual Plan, subject to the approval of this Agreement; and WHEREAS, if the estimated costs of the Improvements will exceed $487,000, then TPL will either raise additional funds to cover the added costs and/or will scale back the Conceptual Plan to reduce the cost of the Improvements, provided however that any material modifications of the Conceptual Plan will be subject to the CITY's approval, which approval will not be unreasonably withheld. Now, therefore, the parties agree as follows: 1. PROJECT COORDINATION A. CITY. The City Manager shall be the representative of the CITY for all purposes under this Agreement. The Community Services Director is hereby designated the PROJECT MANAGER for the CITYand said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. TPL. TPL shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for TPL. TPL's PROJECT DIRECTOR for the project shall be Philip Vitale. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR for any reason, TPL shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF TPL. A. Construction Plans. TPL, at its own expense and no cost to CITY, has developed detailed construction plans ("Plans") for the Property that have been reviewed and approved by CITY. TPL will provide the CITY with one (1) set of digital pdf files of these final Plans. B. Selection of Contractor. TPL will select a general contractor ("Contractor") to construct the Improvements. The Contractor will contract with TPL for the fabrication and installation of the Improvements in accordance with the Plans. C. Pavments. TPL will be fully responsible for all contract payments to the general contractor ("Contractor"). TPL shall provide evidence satisfactory to CITY of the Contractor's acknowledgement that CITY is not a party to any of the construction contracts and has no obligation or liability thereunder. TPL shall not permit the placement of any lien or encumbrance upon the Property, or the filing of any Stop Notice with the CITY, related to TPL's construction of the Improvements on the Property under this Agreement, including any lien, encumbrance or Stop Notice by a TPL contractor, or subcontractor of such a TPL contractor, who may furnish labor or materials for construction of the Improvements on the Property. If TPL is informed of the existence of any such lien, encumbrance or Stop Notice, TPL shall arrange for the discharge or dismissal of such lien, encumbrance or Stop Notice by payment, bonding or otherwise within 60 days of the recording or filing of same. If TPL fails to have any such lien, encumbrance or Stop Notice discharged or dismissed within such time, CITY at its option may arrange for the discharge or dismissal by payment, bonding or otherwise, without any obligation to inquire into the validity of same, and TPL shall indemnify and hold harmless CITY for any loss, cost or expense incurred by CITY in having such a lien, encumbrance or Stop Notice discharged or dismissed. D. Construction Management. TPL will provide general management of construction activity, including, but not limited to, scheduling construction and paving activity, ensuring that construction meets the Plans, conducting progress meetings, providing meeting minutes and coordinating communications between all parties. TPL will provide CITY with documentation of the scheduled progress meetings to keep abreast of construction activity and to ensure that work follows approved Plans. K E. Construction Inspections. TPL will cooperate with CITY's on-site construction inspections, per a predetermined schedule of critical work, to ensure that construction of the Improvements conforms to the Plans. Following TPL's substantial completion of the Improvements, TPL shall complete to CITY's satisfaction the work specified in the punch -list prepared by CITY for the CITY's approval and acceptance of the Improvements. F. Permits and Fees. TPL will obtain all required building permits from the CITY's Building Division, any required planning approvals from the CITY's Planning Division, and any required Fire Permits from the CITY's Fire Department, in connection with installation of the Improvements, and TPL shall pay all required fees for such permits. TPL also will obtain any required water connection permits from the Marin Municipal Water District, and pay all required fees for such permits. G. Prevailing Wages. TPL will pay, and arrange in its contracts with subcontractors to pay, prevailing wages to laborers working on the Improvements provided under this Agreement. H. Completion of Improvements. TPL will complete construction of the Improvements in conformance with the approved Plans, to CITY's reasonable satisfaction, within 12 months following execution of this Agreement. 3. DUTIES OF CITY. A. CITY shall make available the PROJECT SITE to TPL for the purpose of constructing the Improvements in conformity with the approved Plans. B. CITY will conduct inspections of the Improvements, prepare a punch -list of work to be done to conformity with the Plans, and accept the Improvements as a Gift to the CITY upon their completion to the satisfaction of the CITY, as evidenced by the CITY's issuance of an Acceptance Letter as set forth in Section 15. C. CITY will enter into an agreement with a third party non-profit suitable to CITY to operate and manage a community garden at the Project Site within a reasonable period following CITY's acceptance of the improvements; provided, however, that CITY may terminate such agreement as provided therein and either enter into an agreement with another third party non-profit for such purpose or assume operation and management of a community garden at the Project Site with CITY's staff or agents; and provided further, that CITY may cease use of the Project Site as a community garden altogether at any time should the City Council determine that such use must cease because of budgetary reasons, public health and/or safety, or because of the need to use the Site for other public purposes. 4. COMPENSATION. TPL shall receive no payment from CITY for the work described herein, including the installation of the Improvements at the Project Site, such work and Improvements being deemed a Gift by TPL to the CITY. TPL shall not be required to pay CITY any compensation for use of the Project Site, consideration for such use consisting of TPL's donation of the Improvements to the CITY as a Gift. 5. TERM OF AGREEMENT. This Agreement shall become effective upon full execution and delivery hereof by the parties hereto. This Agreement shall expire on the date upon which the CITY executes and delivers the Acceptance Letter (as defined in Section 15) to TPL accepting the Improvements, or upon such earlier date of termination of this Agreement in accordance with Section 6 or 10(E) below. 6. TERMINATION. Any failure to perform or comply with any of the terms, covenants, obligations, conditions or representations made under this Agreement shall constitute an event of default ("Event of Default"), provided that each party shall have a period of 15 days from the date of written notice from the other of such failure within which to cure such default under this Agreement, or if such default is not capable of cure within such 15 -day period, such party shall have a reasonable period of time to complete such cure if that party promptly undertakes action to cure such default within such 15 -day period and uses its best efforts to complete such cure within 60 days after receipt of notice of default. Upon occurrence of an Event of Default by a party the other party shall have the right, in its sole discretion, to seek enforcement of the terms and conditions of this Agreement, to terminate this Agreement or to exercise any of its rights or remedies available at law or in equity. 7. OWNERSHIP OF DOCUMENTS. The original or copies of written documents and materials prepared by TPL in connection with the performance of its duties under this Agreement are owned by TPL but shall be provided to CITY. 8. INSPECTION AND AUDIT. Upon reasonable notice, TPL shall make available to CITY or its agent for inspection and audit, all documents and materials maintained by TPL in connection with its performance of its duties under this Agreement. TPL shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. During the term of this Agreement, TPL shall maintain, at no expense to CITY the following insurance policies: V 1. A comprehensive general liability insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury, or property damage. 2. An automobile liability insurance policy for owned, non -owned and hired vehicles in the minimum amount of one million ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million ($1,000,000) dollars to cover any claims arising out TPL's performance of services under this Agreement. 4. If it employs any person, TPL shall maintain worker's compensation and employer's liability insurance, as required by the State Labor code and other applicable laws and regulations, and as necessary to protect both TPL and CITY against all liability for injuries to TPL's officers and employees. B. The insurance coverage required of TPL by section 11.A, shall also meet the following requirements: 1. The insurance shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY'S insurance or coverage for any contribution. 2. Except for professional liability insurance, the insurance policies shall be endorsed for contractual liability and personal injury. 3. Except for professional liability and workers' compensation insurance, the insurance policies shall provide in the text of the policies or by a special endorsement to the policies that the CITY, its officers, agents, employees, and volunteers, are additional insured under the policies, and that such policies will provide primary insurance. 4. TPL shall provide to PROJECT MANAGER, (a) Certificates of Insurance evidencing the insurance coverage required herein, and (b) the text of the policies or special endorsements as specified in Section 10.13.3. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7 The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. C. Any deductibles or self-insured retentions in TPL's insurance policies must be declared to and approved by the CITY Project Manager and the City Attorney. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or TPL shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. TPL contracts for work on Improvements on the Project Site, such contracts shall include a requirement that the contractors and any subcontractors will cant' the same insurance as required by Section 10 (A), as applicable, with coverage and endorsements as specified in Section 10 (B). E. Notwithstanding anything to the contrary in this Agreement, upon the lapse of any required insurance coverage, the CITY shall have the right to terminate this Agreement upon fifteen (15) days' prior written notice to TPL. TPL shall be responsible, at its expense, for separately insuring TPL's personal property. 11. INDEMNIFICATION. During the Term of this Agreement, TPL shall indemnify and save harmless CITY and its officers, agents and employees from any and all loss, expense, damage, injury, liability and claims thereof for injury to or death of a person or loss of or damage to property, resulting directly or indirectly from any activity or use under this Agreement, except and to the extent where such loss, damage, injury, liability or claim is the direct or indirect result of any act of or any omission to perform some duty imposed by law or agreement on CITY its agents, or employees, or is the direct or indirect result of the negligence, gross negligence or willful misconduct of CITY, its officers, agents, or employees. In addition to TPL's obligation to indemnify the CITY, TPL specifically acknowledges and agrees that it has an immediate and independent obligation to defend CITY from any claim that actually or potentially falls within this indemnification provision. This indemnification shall survive the expiration or termination of this Agreement. After the issuance by the CITY of the Acceptance Letter pursuant to Section 15 of this Agreement, the CITY shall indemnify and save harmless TPL and its officers, agents and employees from any and all loss, expense, damage, injury, liability and claims thereof for injury to or death of a person or loss of or damage to property, resulting directly or indirectly from any activity or use under this Agreement, except and to the extent where such loss, damage, injury, liability or claim is the direct or indirect result of any act of or any omission to perform some duty imposed by law or agreement on TPL its agents, or employees, or is the direct or indirect result of the negligence, gross negligence or willful misconduct of TPL, its officers, agents, or employees. In addition to CITY's obligation to indemnify the TPL, CITY specifically acknowledges and agrees that it has an immediate and independent obligation to defend TPL from any claim that Z actually or potentially falls within this indemnification provision. This indemnification shall survive the expiration or termination of this Agreement. 12. NONDISCRIMINATION. TPL shall not discriminate, in any way, against any person on the basis of age, sic, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. TPL 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. TPL shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. TPL 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. 14. NO THIRD PARTY BENEFICIARIES. CITY and TPL do not intend, by a 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. 15. FINAL ACCEPTANCE. Upon notice from TPL that the Improvements are complete, in accordance with the Plans, and that TPL has obtained all necessary regulatory approvals, and upon submission to CITY of the waivers and releases and assignments required under Section 16 of this Agreement, CITY shall, within 10 working days of such notice, perform a final inspection. Upon CITY'S inspection and decision to accept the work, CITY will, no later than seven (7) days from such decision to accept the work prepare a letter of final acceptance (the "Acceptance Letter") addressed to TPL. Upon receipt of the Acceptance Letter, TPL shall immediately remove all of its property from the Property and shall repair, at TPL's cost, any damage to the Property caused by such removal or caused by TPL's construction activities on the Property as permitted hereunder. 16. DELIVERY OF IMPROVEMENTS. TPL shall deliver the Improvements free of all liens and claims and shall provide CITY executed waivers and releases from the Contractor and subcontractors of all claims against CITY. Upon delivery of the Acceptance Letter to TPL and the Improvements to CITY, TPL shall assign to CITY any warranties or guaranties required by its contracts with the Contractor and subcontractors. TLP shall also assign to the CITY the right to any available remedies for latent defects. 17. MAINTENANCE. Prior to CITY's delivery of the Acceptance Letter to TPL, TPL shall be responsible for maintenance of the Improvements, and thereafter CITY or the non-profit designated by CITY of manage and operate the community garden shall be responsible for such maintenance, provided that CITY may terminate or reduce this maintenance obligation if the CITY ceases to use the Project Site for a community garden as provided in Paragraph 3. C. or if the CITY determines that such action is necessary for budgetary or other reasons. 18. 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, address 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 Untied States Postal Service. Notice shall be given as follows: To CITY: Carlene McCart, Project Manager City of San Rafael 1400 Fifth Avenue (P.O. Box 151560) San Rafael, CA 94915-1560 To TPL: Philip Vitale Project Manager 101 Montgomery St. Suite 1100 San Francisco, CA 94105 19. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, TPL its officers, agents and employees shall act in the capacity of an Independent contractor, and not as employees of CITY. 20. 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 TPL and 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. Terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by TPL and CITY. r-1 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. 21. 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, or 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. 22. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. 23. ATORNEY'S FEES In the event of any litigation to enforce the terms of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL NANCY MACkLE, City Manager ATTEST: �5- � • ,� azo ESTHER C. BEIRNE, City Clerk APPROVED AS TO FORM: ROBERT F. EPTSTEIN, City Attorney TRUST FOR PUBLIC LAND v SAM HODDER, State Director Exhibit A Project Site San Rafael High School 1481 of LTi U cad em marina 0 Df C% S4ioen Park q c I K 0 V11POW o * , i T� Cyr A0 q % 0� 41 SiF Harbor, Shopp!ng cerciCioler Ck ra j!OW>%r 04bb. 1101 t 10 t'j � ?� �.•r M is t�K i' fk ��[;���*. F h:v t-,' � �.L.i. o,�r, 4i NIP --- .try.� � is f � a; l• �♦ ., }� � �� %�' A �'r�~�d,� .` �„ 4 „� �lr i i .�' �`-. ;c`s k I -.+Cj� f�'7�` ,a ��^�:��,4`�'..� � ; .� ���+t fllj ��i � • f f .: i,' tt t"'h es k AVM GUVMGNIM - MA • I F— duMdOPDU� �JT GulAvd aM-03 tly - EA EJ Hl Ea FEE]! E-1 EA EJ 6. P4 Exhibit B FACILITY USE AND MANAGEMENT AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND CANAL ALLIANCE FOR THE CANAL COMMUNITY GARDEN This Agreement is made and entered into this 20th day of August, 2012 between the City of San Rafael, herein referred to as "City" and Canal Alliance, a private, non- profit corporation herein referred to as "Alliance". RECITALS WHEREAS, for many years the City of San Rafael had a community garden facility in Pickleweed Park; and WHEREAS, that facility was removed to make way for the expansion of the Pickleweed Park Community Center and Library in 2004, and WHEREAS, community residents and neighborhood serving agencies desire to replace the community garden; and WHEREAS, a collaborative of non profit agencies formed in 2007 to organize efforts to replace the facility; and WHEREAS, Trust for Public Land was granted funds by the Marin Community Foundation to conduct public outreach and develop a conceptual design, and plan for a garden in the Canal Neighborhood, and WHEREAS, the property at the corner of Bellum Blvd. and Windward Way, owned by the City of San Rafael, APN 009-280-08, is identified as the most suitable for a community garden installation in the Canal Neighborhood; and WHEREAS, the Park and Recreation Commission from May to September 2010 reviewed a proposal for a community garden installation and the management of such a facility with The Trust for Public Land; and WHEREAS, the Commission is satisfied the proposal meets the needs of the community and the City as the landowner, and recommends the proposal to the City Council; and WHEREAS, the City Council approved the proposed concept of a community garden facility on the City owned site, and the proposal for management by Alliance; NOW, THEREFORE, THE CITY AND ALLIANCE HEREBY AGREE AS FOLLOWS: AGREEMENT Section 1: The Canal Communitv Garden The Canal Community Garden, heretofore referred to as "Garden", which is the subject of this Facility Use and Management Agreement, is defined as the City owned site at the corner southwest corner of Bellam Blvd and Windward Way, APN 009-280-08 Park as is more specifically designated in attached Exhibit "A". Section 2: Duties and Responsibilities of Alliance. 2.1: Alliance shall, during the term of this Agreement, maintain its status as a private, non-profit corporation pursuant to IRS Section 501(c)(3), or any subsequent regulation. Proof of status is included in Exhibit "B", attached and incorporated herein. 2.2: Alliance shall routinely and regularly, at its sole expense and resources, manage and maintain Garden, and all its related equipment and furnishings, in accordance with the specifications and requirements enumerated in Exhibit "C" attached hereto and incorporated herein. Alliance shall be responsible for property damage due to normal wear and tear, minor vandalism and graffiti for amounts up to $5,000 per year. 2.3: Alliance shall establish, organize, promote, conduct and supervise Garden plot allocation and use, and horticultural education programs by any resident of San Rafael who wishes to engage in such activities. Alliance shall not prevent any resident of San Rafael from participating in any or all Garden activities, without cause as per rules and regulations established by Alliance, as capacity allows. Garden participants must sign a liability waiver approved by Alliance and the City. 2.4: Alliance shall develop reasonable rules and procedures for persons using Garden, including plot allocation rules, subject to the review and approval of the Park and Recreation Commission and the Director of Community Services (Director). Such rules shall be in conformity with and shall not conflict with any other rules and regulations governing the use of the City's parks and facilities. 2.5: Alliance shall, quarterly, provide the Director with a complete schedule of all Garden organized activities which will require Alliance's organized use of the Garden, including but not limited to classes, socials, interpretive events. 2.6: Alliance shall establish a reasonable fee schedule for persons using assigned plots, or participating in its organized activities, and/or using equipment subject to the review and approval of the Director. Fee schedules shall be uniformly applied to all persons participating in Alliance's organized activities. 2.7: Alliance shall be responsible for collection and disbursement of fees generated by Alliance and its organized Garden activities. The fees collected shall be used exclusively for Alliance programs, administration and maintenance costs at the Garden. The City reserves the right to conduct periodic City -organized programs at the Garden that compliment the Alliance activities and schedule, at no fee to the City. 2.8: Alliance shall provide monitors, attendants or other supervisory personnel for its programs and organized activities. Alliance shall not be required to provide monitors, attendants, or other supervisory personnel for City -organized programs. 2.9: Alliance shall comply and shall require all of its participants, guests and other persons using the Garden with its permission to comply with the San Rafael Municipal Code Chapter 8. 10, as amended from time to time. 2.10: Alliance shall notify the Community Services Department at least 60 days in advance, of Alliance events, programs or organized activities, involving more than 150 participants. In such cases, Alliance shall, at its sole expense, prepare a parking plan for the Garden, sanitation and garbage facilities for the dates affected. Said plan shall be provided to the City for review and approval. Alliance shall at its sole expense, implement said plan. 2.11: Alliance shall not sublet any portion of the Garden to third parties nor permit any concessions of goods or services on the site, or commercial activity including sale of produce or Garden products. 2.12: Alliance shall not make repairs valued at over $500, or modifications, alterations, improvements or renovations or expansions to the Garden facility without expressed permission from the Director. 2.13: Alliance shall be responsible for payment of all utility services to the Garden. 2.14: Alliance shall submit for City approval all signage for display on the exterior of the Garden. Interior signage shall be posted in a manner to be easily changed or removed. 215: Alliance shall be responsible for security of the Garden and costs related to participant access. Section 3. Duties and Resvonsibilities of Citv. 3.1: City shall permit the Alliance use of the Garden by the Alliance and its participants and guests for community garden purposes and for its organized activities pursuant to the submitted schedules and subject to the provisions outlined in this Agreement. 3.2: City shall cooperate with Alliance in the promotion and supervision of its organized activities. 3.3: Subject to the City's limitations of budget and other resources, City shall provide resources to address damages to the garden as a result of acts of God, vandalism, or intentional or negligent acts of third parties, the repair of which will cost in excess of $5,000 in any one year. The parties agree that because of fiscal constraints, the City's expenditures for repairs to the Garden are contingent upon the city having funds available for this purpose. Section 4. Compensation. In recognition of Alliance's contribution of management resources, its ongoing maintenance of the Garden, City shall waive facility use fees for Garden for the term of this Agreement. Upon any renewal of this Agreement, the parties shall re -negotiate the terms of compensation. Section 5. Reports and Audits. 5.1: No later than February 18` of each year, Alliance shall provide to the Park & Recreation Commission a written report containing the following: a) A comprehensive status report describing_all organized activities conducted and supervised during the previous year; b) A detailed proposal of site repairs, including the estimated costs, time for completion and funding sources; c) Recommendations regarding the operation of the Garden. d) Identification of assigned plots, revenue generated and other funds collected. 5.2: Alliance shall maintain books, statements, ledgers, accounts and all other documents related to its management and use of Garden under this Agreement. 5.3: City shall have the right, upon reasonable notice, to obtain access to, review, and to audit Alliance's statements, ledgers, accounts, and all other documents relating to its management and use of Garden under this Agreement. 5.4: Alliance shall provide to the Director a copy of its annual financial statement, pertaining to Garden operation as regularly prepared. Section 6. Term. Upon expiration, the term of this Agreement may be renewed in writing by the Alliance and the city, with the City Manager's approval, for five (5) additional years if a) Alliance has complied with all the terms and conditions of this Agreement and of any modifications made by mutual written consent. b) Alliance and the city have agreed, prior to expiration to any compensation for the additional term. 4 c) There are no other changes to the terms and conditions of the Agreement. Section 7. Termination of Agreement. 7.1. If, upon sixty days (90) written notice of deficiency in performance, the party so notified fails to correct the deficiency, the party giving notice may terminate this Agreement. Deficiency in performance shall be defined as failure of a party to perform or comply with any of the terms and conditions of this Agreement. 7.2 The City may terminate this Agreement immediately upon giving written notice to alliance in the event of the financial insolvency of the alliance as evidenced by: a) Any filing for reorganization under the bankruptcy statutes or otherwise being named as a debtor in such proceeding, which is not set aside within thirty days of filing, or b) Any audit, or c) The dissolution of Alliance. Section 8. Indemnitv. Alliance shall defend, indemnify and hold harmless City, its officers, employees, agents and volunteers from and against any and all claims, demands, losses, or liability which may be alleged by any person, or by Alliance, for injury to, or death of persons or damage to property, however arising, from the obligations and actions of Alliance, its officers, employees, agents or volunteers under the terms of this Agreement, excepting only the sole gross negligence or willful misconduct of City. Alliance assumes all responsibility for damages to property or for injuries to persons a) directly or indirectly caused by services or equipment provided by Alliance under the terms of this Agreement, b) occurring in or on any portion of the Garden during any and all Alliance -sponsored events, or c) caused by the condition of the Garden. Section 9. Insurance. 9.1: Alliance at its sole cost and expense, shall obtain and maintain, during the life of this agreement, such public liability insurance in the amount of $1,000,000, satisfactory in form to the City, and with the City, its officers, employees, agents and volunteers added as additional named insureds, as shall protect Alliance and City, its officers, employees, agents and volunteers, from claims for damages or personal injury, including accidental death as well as for claims for property damage with may arise from or out of this Agreement, 9.2: Each such policy of insurance described in Section 9.1 shall be endorsed to provide as follows: a) It is agreed that Alliance's insurance shall be primary insurance, and that any insurance coverage maintained by the City shall be excess and not contribute with the insurance provided by Alliance under this Agreement. b) It is further agreed that the coverages afforded shall apply as if separate policies were issued to each (gross liability). c) All rights or subrogation are hereby waived against the City of San Rafael and the members of its City Council and elective or appointive officers or employees, when acting within the scope of their employment or appointment. d) This insurance shall not be canceled, limited or non -renewed until after thirty (30) days written notice has been given to the City. 9.3: Alliance shall provide the City with a Certificate of Insurance evidencing all the coverages required herein, as well as copies of the specified endorsements, upon execution of this Agreement and at the time of any renewals of such insurance. Section 10. Indeoendent Contractor. It is understood and agreed that Alliance, in its performance of the duties and obligations under this Agreement, shall act as and shall be an independent contractor and not an agent or employee of the City. As such, Alliance, its employees, agents and volunteers shall obtain no rights or benefits, which accrue, to City employees. Alliance expressly waives any claims it, its employees, agents or volunteers may have to any such rights or benefits. Section 11. Assignability: No Third Partv Beneficiaries. 11.1: Alliance shall not assign or transfer any interest in this Agreement, nor its duties and obligations under this Agreement, without the prior written consent of the City, and any attempt by Alliance to so assign this Agreement, or any rights, duties, or obligations arising hereunder, shall be void and of no effect. 11.2: Neither party shall assign or transfer its rights to enforce any part of this Agreement. The obligation of the City and the obligations of the Alliance stated in this Agreement are not intended to, and do not, create any rights to any other person or entity which such person or entity would not otherwise have in the absence of this Agreement. Section 12. Comniiance With All Laws, Non-discrimination. Alliance shall comply with all applicable laws, ordinances, codes, and regulations of the State, Federal and local governments. Alliance shall not discriminate, in any way, against any person, on the basis of age, sex, race, color, creed, national origin, or disability in connection with or related to the performance of this Agreement. 0 Section 13. Authoritv. Each party represents that it has duly approved the signing of this Agreement and has duly authorized the person named below to sign this Agreement on its behalf in accordance with applicable law. Each such named person personally warrants that he/she has such approval and authority. Section 14. Waiver. Alliance understands and agrees that waiver by the City of any breach or violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition. The acceptance by the City of the performance of any duty or obligation by Alliance shall not be deemed to be a waiver of any term or condition of this Agreement. Section 15. Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid addressed to the responsive parties as follows: To City: City of San Rafael Attn: Director, Community Services P.O Box 151560 San Rafael, California 94915-1560 To Alliance: Canal Alliance Attn: Executive Director 91 Larkspur Street San Rafael, California 94901 Notice shall be deemed effective on the date personally delivered or, if mailed, upon deposit in the mail. Section 16. Whole Agreement. This Agreement, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. No prior oral or written representation or understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may only be modified by a written amendment executed by the parties to this Agreement. Section 17. Attorney's Fees. In the event litigation is initiated to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its attorney fees and costs, including witness and expert fees. City of San Rafael By _Xletit61,7 �Z Nancy Mackle, �ity Manager Attest: ' LShK�a "_ , /_Q� Esther C. Beirne, City Clerk Approved as to Form: Qr Robert Epstein, City Attorne Canal Alliance Tom Wilson, Executive Director Canal Alliance Attached: Exhibit "A" Site Map Exhibit "B" Proof of Non -Profit 501 C3 Status Exhibit "C" Canal Alliance Maintenance and Repair Responsibilities for The Canal Community Garden ©met 01 m011a� 20 sto way vvow* �Xb�b�t A FACILITY USE AND MANAGEMENT AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND CANAL ALLIANCE FOR THE CANAL COMMUNITY GARDEN Specifications and Requirements The following list outlines the required tasks to be completed by Canal Alliance to operate and maintain the Canal Community Garden. The intent of the list is to specify tasks and operational procedures to provide for a safe, clean, functional, public facility. 1. Operations A. Garden Rules and Regulations must be established and reviewed and approved by the San Rafael Parks and Recreation Commission prior to the opening of the Garden. B. Canal Alliance shall appoint the initial Garden Steering Committee, with membership consisting of at least five active garden participants, and two members at large from the community. The Committee shall meet with staff monthly from February through October with Canal Alliance program manager to review and advise on issues pertaining to the Garden. C. Canal Alliance shall install an informational sign with contact telephone number(s) and with standard Garden Rules at or around the main entry. D. Participation in the Garden is open to the general public. Priority may be given to residents of San Rafael, with proportionate, but not exclusive, priority to residents of the Canal Neighborhood of San Rafael. E. Garden plots shall be assigned to qualified applicants, according to Garden Rules and Regulations. Participants must sign a City liability waiver prior to conducting any gardening activity on the site. F. Canal Alliance may assess an annual fee per plot to apply to operational costs. G. No more than one plot may be assigned to any individual, family or organization, however more than two people may be assigned to the same plot. H. Canal Alliance shall maintain an active Garden wait list. Participation must be made from a wait list on a first-come first-served basis. 1. Participation in the Garden can be revoked for non-compliance with the Rules and Regulations. The Garden manager shall notify non-compliant gardeners of infractions to be resolved. Gardeners shall have thirty days to respond, or participation is revoked and the plot shall be reassigned to the next person on the wait list. Exhibit C J. Canal Alliance may coordinate and produce programs and events related to horticulture in the Garden for the benefit of Garden participants, schools, non profit organizations, and other civic groups. Revenues generated by such programs must be applied to Garden operations. K. The seasonal Garden schedule shall include a minimum of 6 dates per year where the general public is invited to access the Garden. These dates may coincide with programs, seminars, open house activities or other Garden events. L. No commercial activity is permitted. 2. Maintenance of Garden Elements A. Maintenance of the exterior landscape shall be performed at least twice yearly to sustain vigorous growth and health of the materials and preserve the aesthetic value of the site. B. Maintenance of the interior, debris removal, weed eradication in the common areas, cleaning of the common areas, etc. of the Garden shall be preformed weekly. C. Perimeter fencing and gates shall be maintained and repaired as needed to provide security and maintain aesthetic value to the site. Gates shall have locking devises. Canal Alliance shall provide current keys, combinations or information on locking devises to the Community Services Department Director. D. Pathways shall be maintained free of debris, weeds, tools, equipment, plant material, and hazards of any sort. Pathways shall comply with Title 24 of the California Building Code, and the Americans with Disabilities Act. Decomposed granite will be installed and maintained for ADA compliant pathways, all other pathways shall be surfaced with bark mulch. E. Irrigation equipment shall be maintained in good repair and in compliance with Marin Municipal Water District criteria for conservation and efficiency. Automatic watering systems are not permitted. Drip irrigation systems may be installed. F. Garden plots may not be used for purposes other than active gardening. G. Garden amenities such as the outdoor classroom, green house, and rain water tanks shall be maintained in good order, free of hazards, weeds, debris and graffiti. N H. Graffiti on the exterior or interior of the Garden must be removed within 24 hours of discovery. 1. Each Garden member is responsible for the maintenance of his/her assigned plot and to participate in the ongoing maintenance of common areas within the Garden. Canal Alliance shall provide clear, written descriptions of expectations in the registration materials supplied to gardeners. Regular inspections shall be conducted by the Garden Committee. J. Canal Alliance is responsible for enforcing maintenance standards and providing seasonal, and general, facility maintenance coordinating community resources. K. Weekly garbage service is required and shall be paid for by Canal Alliance. Garbage receptacles must be covered and may not be left outside the gate for pick up. Canal Alliance shall be responsible for removal of illegal dumping on the site. 3. Installation of Additional Garden Elements A. Tool sheds may be installed with approval of the Director. Garden plots may not be used or displaced for tool sheds. Tool sheds must be sturdy and lockable with flooring to prevent contact with ground moisture. Tools stored in the sheds shall be shared for use by all gardeners. Tools shared may not be taken off site. No private or general Canal Alliance storage is allowed on site. B. Compost bins may be installed with approval of the Director. Plots may not be used or displaced for compost bins. Bins must have lids and be rodent -proof. C. Bulletin/message boards may be installed with approval of the Director. Bulletin/message boards are limited to general community announcements and are not available for commercial advertisements or postings that are discriminatory or offensive in nature. D. Permanent fixtures (benches, tables, shade structures, tool sheds, compost bines, etc) must be approved by the Director before installation. M Internal Revenue Service Director, Exempt Organizations Rulings and Agreements Date: Fart 2 0 2009 Canal Alliance 91 Larkspur Street San Rafael, CA 94901 Dear Sir or Madam: Department of the Treasury P.O. Box 2508 Cincinnati, Ohio 45201 Person to Contact - ID#: 'Ms. K. Wilmer 52-05885 Contact Telephone Numbers: 877-829-5500 Phone 513-263-3756 Fax Federal Identification Number: 94-2832648 By our determination dated September 1982, you were held to be exempt from Federal Income Tax under the provisions of section 501(c)(3) of the Internal Revenue Code. You recently furnished us information that the San Rafael Canal Ministry merged with Canal Community Alliance Inc. on December 31, 2004. At the same time, the entity changed it's name as shown above. Based on the information submitted, we have determined that the merger does not affect your exempt status. The organization will continue using Employer Identification Number 94-2832648. Please let us know about any further changes in the character, purposes, method of operation, name or address of your organization. If you have any questions regarding this matter, please contact the person whose name and telephone number appear in the heading of this letter. Sincerely, Lois G. Lerner Director, Exempt Organizations Rulings and Agreements Enclosure