AGREEMENT between the City and County of San Francisco. Recreation and Park Department. and the San Francisco Parks Trust. for the

Transcription

1 EXECUTION COPY AGREEMENT between the City and County of San Francisco Recreation and Park Department and the San Francisco Parks Trust for the GOLDEN GATE PARK STABLES RENOVATION PROJECT under and pursuant to the PUBLIC PRIVATE SUPPORT AND COOPERATION FRAMEWORK This AGREEMENT ( Agreement ) is made and entered into as of November, 2007 (the Effective Date ), by and between the City and County of San Francisco (the City ), acting by and through its Recreation and Park Commission (the Commission ), and the San Francisco Parks Trust, a California nonprofit public benefit corporation (the Trust ) formerly known as the Friends of Recreation and Park Corporation. For purposes of this Agreement, Party means City or Trust, as a party to this Agreement; and Parties means both City and Trust, as parties to this Agreement. RECITALS A. Whereas, the Golden Gate Park Stables (the Stables ) were closed to public operations as of September 30, 2001; B. Whereas, substantial repairs have been needed for many years to reinstate the Stables as a viable component of the recreational opportunities in Golden Gate Park; C. Whereas, the Board of Supervisors created the Stables Working Group to assist the Recreation and Park Department (the Department ) in developing and implementing a general plan for renovating the Stables and bringing riding back to Golden Gate Park (the Project ); D. Whereas, the general plan was presented to the Commission and received approval to proceed; E. Whereas, the Trust and the Department currently contemplate that the necessary funding for the planning, design and renovations relating to the Project will be in the range of $10 million to $12 million, which will significantly exceed the $1.4 million in public funds v10

2 allocated from State Proposition 40, and such other funds that may specifically be appropriated by the City for the Project (collectively, City Appropriated Funds ), for such projects; F. Whereas, the City desires and Trust is agreeable that the Trust act, among other things, as the designated fundraising agency for the Project on behalf of the City; G. Whereas, on July 1, 2003, the Parties, in contemplation of activities such as those contemplated hereby, entered into a comprehensive Public Private Support and Cooperation Framework (the Framework ) to govern the Parties rights, obligations and duties as between each other; H. Whereas, the Parties desire to enter into an agreement pursuant to the Framework so that the Trust may raise funds in support, and jointly with the Department undertake the design and planning, of the Project (such part of the Project, the Design Phase ); I. Whereas, the Parties also expect that they will enter into related agreements to implement the Design Phase, including the possibility of gifts in place and the engagement of a project manager by Trust for Stables-related projects, and for ongoing support of the Stables and the Project after construction, including a scholarship program (such part of the Project, the Construction Phase ); J. Whereas, it is contemplated that, in furtherance of and to induce members of the private sector financially to support the Project, to the extent that City Appropriated Funds or other private funds are available therefor, the City will undertake certain improvements and infrastructure projects relating to the Stables in Golden Gate Park in conjunction with the Design Phase, as further provided herein: Now, Therefore, in consideration of the promises, covenants and agreements made in this Agreement, and other good and valuable consideration, the Parties agree and express their intent to act and cooperate as follows: 1. Term of Agreement; Framework Applies. 1.1 Term. This Agreement shall become effective upon approval of this Agreement by the City in accord with applicable City Charter and Code provisions and full execution by the Parties (the Effective Date ) and shall expire, unless otherwise earlier terminated as set forth in Section 6 below, upon the earlier of (i) five (5) years from the Effective Date, or (ii) full performance of the terms hereof, including, without limitation, entry of any further agreements desired by the Parties (the Term ). 1.2 Framework Applies. In accordance with Section 3.1(a) of the Framework, the parties intend and agree that the terms and conditions of the Framework shall apply, and specifically, that the Framework for Project-Specific Cooperation of Article 3 of the Framework shall apply to this Agreement v10-2 -

3 1.3 Capitalized Terms. Capitalized terms not defined in this Agreement shall be used as defined in the Framework. Each reference in the Framework to Friends shall by operation of law refer to the Trust. 1.4 Incorporation by Reference. Pursuant to Article 3 of the Framework Agreement, the following provisions are incorporated by reference into this Agreement: The Department s responsibilities (Section 3.2(b) thereof); The Trust s responsibilities (Section 3.2(c) thereof); Administration, accounting and use of funds (Section 3.3 thereof); Insurance (Section 4.2 thereof); Indemnification (Section 4.4 thereof); and The Trust s compliance with City laws and ordinances (Exhibit B thereof). 2. The Project and City Undertakings. 2.1 Joint Project. (a) This Agreement is intended to set forth the Parties understandings regarding their respective rights, duties and obligations relating to the Design Phase of the Project. The Design Phase of the Project includes (i) researching and engaging the services of a designer that will develop, consistent with the Environmental Impact Report (the EIR ) relating to the Stables, a conceptual plan for the following, as may be modified by the approved EIR: removing the Grandstand stalls; constructing a retaining wall to support the all-purpose trail bordering the south end of the Stables; rehabilitating the satellite riding rings; expanding, covering and lighting the Central Arena; retrofitting the existing WPA Stall buildings; building a new Hay Barn, a new Classroom/Meeting Room, new restrooms and additional stalls; and such other changes that may from time to time be approved by the Joint Committee (established in accordance with Section 3.1 below); (ii) securing the approval of the Commission of a final design; and (iii) after the selection and approval by the Commission of a final design, preparation by the designer of full construction contract documents, including plans and specifications, and a detailed project cost estimate. (b) In accordance with the Framework, the Joint Committee shall develop and administer a budget and schedule for the Design Phase. Following the Construction Phase, the Joint Committee (or any successor committee thereto) will assist the Department in preparation of any Requests for Proposals (RFPs) for operation of the Stables, including providing industry best practices research, and may recommend to the Department one person to participate in the selection committee that reviews responses to such RFPs. 2.2 City Undertakings. The City undertakes to make certain site improvements and infrastructure investments at the existing Stables facility in conjunction with the Design Phase, including the improvements and investments listed on Schedule 1 hereto, which may be amended from time to time by the Parties. The City s undertaking to complete any such improvements is expressly limited to the availability for use of City Appropriated v10-3 -

4 Funds or, to the extent such funds are exhausted or otherwise unavailable, any Private Funds that the Trust may provide therefor. 2.3 Trust Undertakings. The Trust undertakes to solicit, commission and administer a professional services contract for the design of the project as set forth in Section 2.1(a) above. 3. Roles and Responsibilities. 3.1 Joint Committee. (a) A Joint Committee (as defined in Section 3.2(a)(ii) of the Framework) is hereby established to administer the Project, whose initial members shall be as follows: Department representatives: Trust representatives: Yomi Agunbiade, General Manager Mary Hobson Jay Banfield, Executive Director Hilary Bates The Joint Committee may be reconstituted or enlarged at the joint agreement of the General Manager of the Department and the Executive Director, with the approval of the Joint Committee. (b) The Joint Committee shall have the authority, duties and responsibilities with respect to the Project set forth in Section 3.2(a)(iii) of the Framework, except those provisions relating to the operation of the facility. The Joint Committee shall evaluate, discuss and recommend a final design for the Commission s approval. In addition, the Joint Committee may identify, assess and recommend certain other improvements, along with a funding plan, that may enhance the success of the Project; provided, however, that the Commission shall have final decision-making authority in respect thereof. 3.2 The City. The City shall have the authority, duties and responsibilities with respect to the Project set forth in Sections 3.2(a) and 3.2(b) of the Framework. 3.3 The Trust. (a) The Trust shall have the authority, duties and responsibilities with respect to the Project set forth in Sections 3.2(a) and 3.2(c) of the Framework. In accordance with the provisions of this Agreement, the Trust shall use commercially reasonable efforts to raise private funds through private donations or grants (collectively, Private Funds ) for the Project and, specifically, the Design Phase. After the Joint Committee shall have determined that sufficient funds have been raised for the Design Phase, the Parties contemplate that any excess Private Funds may be expended in support of the Construction Phase, other Stables-related projects v10-4 -

5 contemplated in the recitals hereto and such other activities or expenses consistent with the purposes of this Agreement as shall be recommended by the Joint Committee. (b) In addition, the Trust shall directly engage and supervise the work of the designer referenced in Section 2.1(a) hereof. 4. Private Fundraising. In addition to the provisions of Section 3.3 of the Framework regarding the solicitation, administration, accounting and use of Private Funds, the Parties agree that: 4.1 To assist the Parties in timely raising the Private Funds, in addition to developing the Project Plan required by Section 3.2(a)(i) of the Framework, the Joint Committee shall also establish a project schedule to set forth the anticipated funding needs of the Project. The Joint Committee shall ensure that the Project Plan, the Schedule (as defined in Section 5 below), and the project schedule do not conflict with one another. 4.2 The Trust shall present to the Joint Committee a proposed fundraising plan that fully funds the Project consistent with the timing and funding schedules established in the project schedule contemplated by Section 4.1 above, the Project Plan and the Schedule (as defined in Section 5 below). The Joint Committee shall ensure that such fundraising plan, the project schedule contemplated by Section 4.1 above, the Project Plan and the Schedule (as defined in Section 5 below) do not conflict with one another. For the avoidance of doubt, and notwithstanding any provision of Section 8 to the contrary, any fundraising plan and the information contained therein shall remain the exclusive property of the Trust. 4.3 In accordance with Section 3.3 of the Framework, the City acknowledges the Trust shall be entitled to a reasonable administrative fee from the Private Funds raised pursuant to this Agreement to cover the Trust s direct and indirect costs of soliciting funds and performing its obligations hereunder; such fee shall be determined through the budgeting process contemplated by Section 3.2(a) of the Framework. 4.4 In order to enable the City to ascertain that the Trust will meet its financial commitments, the Trust agrees to provide to the Joint Committee such quarterly and other periodic reports of its cash, pledges and other sources of funding for the Project as the City shall reasonably request. 4.5 The Trust shall not accept any proposed gifts that could impose financial or other obligations or liabilities on the City or the property, programs or activities under the Commission s jurisdiction, including the Stables, except as provided in this Section 4.5. The Trust shall provide the City with not less than 10 days prior written notice of the terms and conditions of any such gift, and prior to acceptance of any such gift, the Trust shall obtain the approval of the Department s General Manager or his or her designee, which shall be conditioned on the eventual acceptance by the Commission, and the Board of Supervisors, if required under applicable laws or regulations. With respect to disclosure of gift and donor information, the Trust agrees to comply with all applicable laws, including any applicable provision of chapter 67 of the San Francisco Administrative Code (the Sunshine Ordinance ) v10-5 -

6 5. Schedule. The Joint Committee shall agree upon certain milestones to be set forth in Exhibit A attached hereto (the Schedule ), which it may amend from time to time. 6. Early Termination. (a) Either Party may terminate this Agreement upon 30 days prior written notice to the other Party. City may terminate this Agreement upon written notice to the Trust if the Trust fails to meet the funding milestones set forth in the Schedule, and the Trust may terminate this Agreement upon written notice to City if the Trust reasonably determines in its sole discretion based on its best business judgment that it will not be able to meet the milestones in the Schedule or to raise additional Private Funds. For the avoidance of doubt, among other things, it shall be deemed a reasonable termination if the Trust determines that the Project cannot financially succeed by building the design that meets the EIR standards. (b) Upon any termination of this Agreement pursuant to this Section, all Private Funds (net of any administrative fees) received as a result of the Stables fundraising campaign by the Trust shall be promptly delivered to the Department by commercially reasonable means acceptable to both Parties, and the Department shall cause such amounts to be deposited into an account or accounts established for the Project until conclusion of the Project, and thereafter for the Stables; provided, however, that if the donors shall have indicated an intent to the contrary, the Trust shall dispose of such Private Funds consistent with the instructions of the donors. The Department shall use all funds transferred to it pursuant to this Section 6(b) for Project-related costs until conclusion of the Project, and thereafter for the Stables, consistent with the wishes of the donors, subject to the provisions of Section 4 above. City s and the Trust s obligations under this Section related to the Private Funds shall survive the expiration or other termination of this Agreement. 7. Access to Information. The Department shall give the Trust all reasonable access to its employees and public records necessary to accomplish the purposes of this Agreement. In addition, the Department shall, when necessary, encourage other departments, agencies, and employees within the City to likewise give the Trust all reasonable access to employees and public records necessary to accomplish the purposes of this Agreement. The Trust recognizes, however, that the Commission s execution of this Agreement does not bind other departments and/or agencies of the City. 8. Ownership of Information. The Trust agrees not to infringe upon any trademark or copyright now or hereafter owned by the City. City agrees not to infringe upon any trademark or copyright now or hereafter owned by the Trust. Any interest of the Trust or its agents or contractors, in drawings, plans, specifications, blueprints, studies, reports, memoranda, computation sheets, computer files and media or other documents prepared by Trust or its agents or contractors in connection with services to be performed under this Agreement, except for fundraising materials (including, but not limited to, donor lists), educational materials and historical research developed by the Trust (such excepted materials, the Trust Materials ), shall become the property of and will be transmitted to City. However, Trust may retain and use copies for reference and as documentation of its experience and capabilities. In addition, during the Term the City hereby grants to the Trust a non v10-6 -

7 exclusive, nontransferable, fully paid, royalty-free license and right to use all such materials in furtherance of its obligations under and contemplated by this Agreement. If, in connection with services performed under this Agreement, the Trust or its agents or contractors create artwork, copy, posters, logos, billboards, photographs, videotapes, audiotapes, systems designs, software, reports, diagrams, surveys, blueprints, source codes or any other original works of authorship (other than the Trust Materials), such works of authorship shall be works for hire as defined under Title 17 of the United States Code, and all copyrights in such works are the property of the City. If it is ever determined that any works created by the Trust or its agents or contractors under this Agreement are not works for hire under U.S. law, the Trust hereby assigns all copyrights to such works to the City, and agrees to provide any material and execute any documents necessary to effectuate such assignment. With the approval of the City, the Trust may retain and use copies of such works for reference or educational purposes and as documentation of its experience and capabilities, or to use as necessary in connection with the Project or fundraising efforts for the Project. In addition, during the Term the City hereby grants to the Trust a non-exclusive, nontransferable, fully paid, royalty-free license and right to use all such materials in furtherance of its obligations under and contemplated by this Agreement. The Trust hereby assigns to the City all logos, trademarks or service marks featuring or depicting the Stables that the Trust may create during the Term. All other works of authorship, logos, trademarks, service marks or materials featuring or depicting the Stables prepared by the Trust or its agents during the Term in connection with the Project without the use of Private Funds shall be the property of the Trust; provided, however, that the Trust shall reasonably grant the City a perpetual, non-exclusive license thereto at no cost for use of any fundraising materials, educational materials and historical research related to the Stables developed by the Trust. 9. Public Relations. The Department and the Trust shall use all good faith efforts to cooperate on matters of public relations and media responses related to the Stables. The Parties shall use good faith efforts to cooperate with any inquiry by the other Party or by the public in regard to this Agreement. Any report or memorandum between the Parties shall be subject to the disclosure requirements of the City s Sunshine Ordinance and the California Public Records Act. Any response to an inquiry by a news or community organization to the Trust or the Department in reference to the Project shall include a recommendation to contact the other Party. Neither the Trust nor the Department shall issue a press release in regard to this Agreement without providing prior notice to the other party. To facilitate the execution of this Section, the Department and the Trust have each designated one person as a spokesperson with respect to this Agreement. All media contacts to the Department will be directed to the Public Information Officer at the address provided for the Department in Section 11.3 below. All media contacts to the Trust will be directed to its Executive Director at the address provided for the Trust in Section 11.3 below. At a time and in a format to be determined later by the Parties, the Department and the Trust may hold at least one joint public press conference, to announce this Agreement. At any such event, the Department and the Trust shall participate on an equal basis. If the Department or the Trust holds any other press conferences solely or largely dedicated to the Project, the Department or the Trust shall, as time permits, notify the other Party and allow that Party to v10-7 -

8 participate on an equal basis. Nothing in this Agreement shall prohibit the Trust or the Department from discussing this Agreement in response to inquiries from the public or the press. 10. Exclusivity. The Department will not endorse or encourage the efforts of any other organization to conduct a fundraising campaign for the restoration or reconstruction of the Stables during the Term, without the prior written consent of the Trust. 11. Miscellaneous Amendment. This Agreement may be amended only by the mutual written consent of each of the Parties Good Faith and Fair Dealing. Subject to the terms and conditions of this Agreement, the Trust and the Department shall use their good faith best efforts to do, or cause to be done, all things reasonably necessary or advisable to carry out the purposes of this Agreement as expeditiously as practicable, subject to all applicable approvals. The Parties acknowledge that mutual covenants of good faith and fair dealings are implicit terms of this Agreement Notices. All notices under this Agreement shall be sufficiently given if hand delivered or mailed by registered or certified mail, postage prepaid, or by overnight express delivery, cost prepaid, to: City: Yomi Agunbiade General Manager Recreation and Park Department McLaren Lodge 501 Stanyan Street San Francisco, CA with a copy to: Office of the City Attorney City Hall, Room Dr. Carlton B. Goodlett Place San Francisco, CA Attn: Virginia Dario Elizondo Deputy City Attorney Fax No.: (415) Trust: Jay Banfield Executive Director San Francisco Parks Trust McLaren Lodge 501 Stanyan Street San Francisco, CA with a copy to: Brian M. Wong, Esq. Pillsbury Winthrop Shaw Pittman LLP 50 Fremont Street San Francisco, CA Fax No.: (415) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California and the City s Charter Approvals. All City approvals under the agreements contemplated hereby shall be given by the Department s General Manager except as otherwise specified herein or in the City Charter v10-8 -

9 11.6 Avoidance of Potential Conflicts of Interest. The Trust s appointees to the Joint Committee (collectively, Trust representative ) and any corporation, partnership or other business entity with which any Trust representative is affiliated shall be ineligible for any contract awarded related to the design or construction of the Project Independent Relationship of the Parties. The City shall not be liable for any act of the Trust and the Trust shall not be liable for any act of the City, and nothing herein contained shall be construed as creating the relationship of employer and employee between the City and the Trust or any of their respective agents or employees. The Trust shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it performs the duties required of it by the terms of this Agreement. The Trust has and hereby retains the right to exercise full control and supervision of its duties and full control of employment, direction, compensation and discharge of all persons assisting it in the performance this Agreement. The Trust agrees to be solely responsible for all matters relating to payment and employment of employees, including compliance with social security, withholding and all other regulations governing such matters. Nothing set forth in this Agreement shall be deemed to render the City a partner in the Trust s business, or joint venturer or member in any joint enterprise with the Trust Controller s Certification of Funds. The terms of this Agreement shall be governed by and subject to the budgetary and fiscal provisions of the City s Charter. Notwithstanding anything to the contrary contained in this Agreement, there shall be no obligation for the payment or expenditure of money by City under this Agreement unless the Controller of the City and County of San Francisco first certifies, pursuant to Section of the City s Charter, that there is a valid appropriation from which the expenditure may be made and that unencumbered funds are available from the appropriation to pay the expenditure Non-Liability of City and Trust Officials, Employees and Agents. No elective or appointive board, commission, member, officer, employee or other agent of City shall be liable to the Trust, its successors and assigns, in the event of any default or breach by City or for any amount which may become due to the Trust, its successors and assigns, or for any obligation of City under this Agreement or otherwise. No elective or appointive board, commission, member, officer, employee or other agent of the Trust shall be liable to City, its successors and assigns, in the event of any default or breach by the Trust or for any amount which may become due to City, its successors and assigns, or for any obligation of the Trust under this Agreement or otherwise No Third Party Beneficiaries. Nothing contained in this Agreement shall create or justify any claim against the City or the Trust by any third person with respect to the performance of any duties or other projects being undertaken by the Trust or the City. The provisions of this Agreement are not intended to benefit any third party, and no third party may rely hereon Time is of the Essence. Time is of the essence in each and all of the agreements, conditions, and covenants of this Agreement v10-9 -

10 11.12 Further Assurances. The Parties shall cooperate, one with the other, to carry out and effectuate the terms of this Agreement, including, without limitation, given further assurances regarding their respective performance of this Agreement and making and executing such further documentation and agreements as may be necessary for such purpose. 12. Counterparts. This Agreement may be signed in multiple counterparts, which shall, when executed by all parties, constitute a single binding agreement. above. EXECUTED at the City of San Francisco, California, as of the Effective Date set forth SAN FRANCISCO PARKS TRUST: Jay Banfield Executive Director San Francisco Parks Trust CITY: Approved as to form: DENNIS J. HERRERA, City Attorney Yomi Agunbiade General Manager Recreation and Park Department City and County of San Francisco By: Deputy City Attorney Approved: San Francisco Recreation and Park Commission By: Margaret McArthur Commission Secretary Resolution No. Dated: v

11 EXHIBIT A DESIGN PHASE PROJECT SCHEDULE v10

12 SCHEDULE 1 CITY UNDERTAKINGS 1. Contract for and provide a topographic survey describing the site boundaries, building locations, building elevations and other major geographic features of the Stables site. 2. Contract a service that can identify underground utilities and provide a CAD file containing such information. 3. Contract for and provide a soils and geotechnical report for the Stables site. 4. Contract for and provide a hazardous material assessment, and if necessary, subsequent hazardous material abatement at the Stables site. 5. Provide any and all available drawings and records pertaining to previous improvements and/or requirements made by the City to the site, including but not limited to utility placement and capacity, utility stub-outs, emergency access corridors, fire suppression equipment, site access, etc. 6. Retain and provide professional services to evaluate compressive strength of existing concrete foundation at historic stall buildings v10