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HomeMy WebLinkAboutResources for Independence Central Valley - Universally Accessible Park Funds - 2012MEMORANDUM OF UNDERSTANDING wit =,�j Resources for Independence Central Valley fr Regarding Universally Accessible Park This Memorandum of Understanding (MOU) Is entered into this le day of January, 2012, by and between the CITY OF FRESNO, a municipal corporation. ('City"), and RESOURCES FOR INDEPENDENCE CENTRAL VALLEY, a Calgpmia nonprofit public benefit corporation ('RICV'). WITNESS WHEREAS, City owns a future park she at 5770 W. Gettysburg that it Intends to dewlap into a universally accessible neighborhood park (Perk") to accommodate children and young adults with various densities; and WHEREAS, the mission of RICV is to encourage people with disabilities to be In control of their lives and to live more Independently though a diverse range of choices and communities; and WHEREAS. RICV's mission will be benefitted and advanced by the development of to Pah: and WHEREAS, the City and RICV now wish to anter into this MOU to work together In raising funds, establishing padrrers, and developing an operational plan for tine Pah ("RICVIUAP Instative"). NOW, THEREFORE, in consideration of the above recitals, which recitals are contractual In nature, the mutual covenants herein contained and such other and further consideration as Is hereby acknowledged, the partes agree as follows: 1. PARTICIPATING AGENCIES AND DESIGNATED CONTACT PERSONS City Representative: Paul A. Melikian, Administrative B Finance Manager Perks. After-school, Recreafion and Community Services 1515 E. Divoridem St Fresno, CA 93721 Tel. (559)621-2900 RICV Representative: Recent Hand, Executive Director 3008 N. Fresno St Fresno, CA 93703 Tel, (559)221-2330 2, ROLES, CONTRIBUTIONS AND RESPONSIBILITIES A. The City will, (i) Negotiate In good faith with RICV the terms of a tang -tens operational agreement for the Park. (ii) Use bast efforts to advance Me conab00tion of the Park, however, nothing in fie MOU shall bind future City action which may Is necessary to tend and approve fmure development et the Park. B. RICV wIII: (i) Raise funds, eskbfish partners and develop an operational plan for the Universally Accessible Park. (h) Establish an AEwaory Council of six to per members that will assist In the RICVAJAP Initiative. The Advisory Council will hold modely meetings, at minimum, to determine ongoing progress and sees up promotion add fund-raising efforts as needed. (lip Appoint a Project Director to lead the Advisory Council ere fund-raising efforts. (Iv) Establish a Parners Committee k solicit ash and fd-kind support for the on-going Operations of the Park (including program planning efforts). The PeMers Committee will hokl bl- monthly meetings, at minimum, to establish a cleared plan for Parr programming and supplement fundraising efforts. (v) Hold all funds raised in a segregated RICVIUAP InOlative Trost Account. (vi) Establish a marks urelpromotion plan to promOk Me Community FadllOes District, general fundraising, and Park efforts. (vii) Endeavor to establish written agreements or letters of intent whip community benefit Organizations and Other served and educational organizations to provide a full range of services to Me public at Me Per. (will Provide the City with a monthly activity, report to include Advisory CoundllPerners CommMeeIRICVIUAP Indiatiwr meeting minks, financial recall including use of donation proceeds toted campaign expenses; and fuMraising, marell and partnering efforts. (ix) Design and have ready for Implementation an operational plan for Me Per, designating specific responsibllNes of all community partnere and RICV staff Involved in Me operation of the Par and the RICVIUAP Initiative , including a detailed program plan and Met quarter calendar suormacknon to Me City. 3, EFFECTIVENESS, DURATION AND TERMINATION This MOU shall be effecOve as. of Me date Reel wagon above, and shell remain in effect for an initial mad running through January 31, 2013. Thereafter, this MOU may be administratively extended by the City Manager (or designee) for up to on additional year, ending January 31, 2014, TM City will negotiate In good faun with RICV the mads of a cad -Fenn operational agreement for the Par. Mich will replace this Agreement Once executed. Either party may at any time terminate MIs MOU (p MMON cause at the party's convedence by giving not leas then two months (sixty do) days) pror added notes to the other party, or (it) with cause upon written notice to the other party following the Omer party's failure to reasonably cure an event of non-performance hereunder fo lasing thirty (30) days written noted thereat. Terminated shall be effective (the 'Effective Date of TemtineEon') as of me date specified in said notice of termination. Upon such termination, all rights and obligations of each paM under this MOU shall cease as of the EMecurve Date of Termination, except for those specific obligations Mat shall SUM" termination as set form herein. 4. USE OF RICVNAP INITIATIVE FUNDS Funds relsed by the RICVlUAP Initiative shall be held by RICV in a segregated RICVIUAP Initiative Trust Account. Funds will be used Primarily for Me future development, operation, and maintenance of Me Park; however RICV may use up to 10% of donated proceeds for coals peltalning to supporting the fund4aislrg campagn during Me larm of this MOU. In Me evens that MIs MOU is termnated and the parties fail to enter into a long-term operational agreement, or either party definite or otherwise becomes unable to perform under this MOLL RICV shall return remaining funds held in the RICVNAP Initiative Trust Account to donom whin 30 days of the Effective Date of Termination. Costs pertaining to supporting the fund-raising campaign during the term of this MOU shall not be returnable to dorers, .with each IrMivqual donation being proportionately assessed those costs. For example, d a total of $100,OD0 is mused. and $10,000 Is spent to supportlite campaign (10%), then a donor of $1.000 would receive $900 back. 5. RECORDKEEPING AND PERFORIAANCE DATA Each party shall keep and maintain proper records and documentation suRclent to substantiate ifs contributions hereunder, and shall make such avatlalue for review and audit during normal ope2Mng hours upon Me reasonable within request M Me other Party for a Period of Mrea (3) years following expiration or earlier termination of this MOL. 8. COMPLIANCE WITR GOVERNING LAW Each party shall comply with all federal. state and local laws, rules arm regulations In as purest hereof. No party in ds performance of this MOU shall employ discriminatory practices on the basis Of race, religious creed, color, national origin, ancestry, physical dlsabiliy, mental disedlity, Medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled Wagon or veteran of the Vietnam era. T. CAPACITY OF CITY AND RICV Each party is acting in an independent capacity, Nothing In this MOU and nothing In he course of dealings between the parties hereunder shall be deemed to create any fiduciary relationship, trust, Partnership , joint venture, agency or employment relaronmp, jointly and severally. In addXion and without limitation, each party shall be solely responsible for all matters relating to payment ot Its employees, including, but not limited to, compliance AM applicants social security withholding, workerscompensation insurance, benefits antl all other regulations govemhg such matters. Personnel supplied by City will not for any Purpose be consitleretl employees or agents of the RICV. The City assumes full responsibility for Me actions ot such Personnel while they are performing services Pursuant M this fill and shall be solely responsible for their supervision, daily direction and control payment of salary (including withholding ot Income coxes and social securill disability benefds and Me like, as applicable. Conversely, personnel supplied by RICV will not for any purpose be consitleretl employees or agents of the Cly. RICV assumes full responsibility for Me actions of such personnel while they are performing serocae pursuant to Mie Al and shall W solely responsible for their supervision, dally direction and control, payment of salary (including withholding of income taxes and social security), drsabllily, benePos and the Ulm, as applicable. The CM and RICV agree and acknowledge Mat their relationship is strictly and solely that of an Independent contradd to each other Thal employees andror agents are not entitled to any employee benefits or insurance, including without limitation any health care, worker's compensation, unemployment or dlsablydy berrefhs, to be provided by RICV. RICV agrees and acknowledges Mat RICVs employees antlfor agents are not entitled to any employee benefits or Insurance, including without IImMtlon any health care, worker§ compensation, unemplaympnt or disability benefits, to be provided by the City. The pelves further agree and acknowedge that each pally i¢ solely responsible for determining Me method and means by which it will fulfill as obligations hereunder. Each shall be solely responsible for payment of all sales, use, or other taxes assessed against or associated with Me performance Of each party's respective obligations or on the exercise of Meir rights under MIs MOD, including without limhation Income, payroll or employment relatetl taxes and payments. Neither party shall engage any person or entity to serve In any capacity, or Incur any expense or obligation on behalf of the other witboutth r prior written consent of both partles. & INDEMNIFICATION RICV shall indemnity, hold harmless and defend City and each of no officers, officials, employees, agents and volunteers from any and all loss, [totally. fines, penalties, forfeitures, costs and damages (whether in contract, ted or and liability. Including but not limited to personal injury, death at any time and property damage) incurred by RICV. CITY or any other person, and from any and all claims, demands and actionsin law or equity (including ahomey's fees and legation expenses), snsing or alleged M have arisen directly or Indirectly from Me negigent or Intentional ads or omissions, or willful misconduct of RICV or any of its o cam odlcials, employees, agents or volunteers in the performance of Mis Agreement. City shall Indemnify, hold harmless ant defend RICV and each of its officers, officals emplayees, agents and volunteers from any and all loss, liability, fines , penerees, fodehmes, doses and damages (whether in conted, ted or sheat liability, Including but not Bmifed to personal Injury, death at any time and propend damage) Incurred by CM. RICV or any other person, and from any and all clams, demands and actions In law or equity (Including agoml fees are Iififi isn expenses), arising or alleged to have arisen directly or Indirectly from the negigent or Intentional ads or omissions, Of vi misconduct of City or any of its officers, offiak, employee¢, agents or volunteers In he performance of this Agreement; provided nothing harem shall constitute a waiter by City of governmental Immumiges including Calgomla Govemment Code Seddon 810 at seq. RICV agrees Mat Mia Agreement shall in no way act to abrogate or waive any trammeled available to City under Me Tort Claims Act of the Stab d California, In and event of mnculaed negligence on Me pad N RICV or any of Its officers officials, employees, agents or volunteers, and City or any of its officers, officials, employees, agents or volunteers, Me liedlity for any and all such claims, demands and actions in law or equl for such losses. Mes, penalties, fodehures, costs and damages shall be apportioned under the State of Calstornia's theory of comparative negligence as presently established or as may be mod?ed herea r. This section shall surae torminagon or expiration of this Agreement. 9. INSURANCE Throughout the life of this License Agreement, RICV shall pay for and maintain in full farce and effect all pobicy(ies) of insurance required hereunder with (on) insurance company(les) either (1) admitted by the California Inscul Commissioner to do business in the Slate of California and rated not less than -A-VII- In Beat's Insurance Rating Guide, or (2) authorizes by the City's Risk Manager. The following policies of Insurance are required: A. COMMERCIAL GENERAL LIABILITY insurance which shall be M least as broad as Insurance Services Office (ISO) forth CG 00 01 and shall Indicate insurance for 'bodily injury', "Mostly damage " and `personal and advertising Injury^, Including premises and opeation, products and completed operations and contractual liability with limits M liability of not less than $1,WOAW per occurrence for bodily all and property tlamage, $1,000,000 per occurrence for personal and advertising Injury, $2,000.000 aggregate for products and compiled operations, and $2,000,OW general aggregate. B. COMMERCIAL AUTOMOBILE LIABILITY inslmnes which shall be at least as broad as the most current version of Insurance Services Office (ISO) form CA 00 01 and shall Include coverage for any auto' with limits of Ilabllity of not bass than $11000000 per accident for bodily and property damage. Only required B automobiles are b be operated on City property, C. WORKERS'COMPENSATION Insurance as required under the California Labor Code. D- EMPLOYERS' LIABILITY Insurance with minimum limits of $1000.000 each scadent $1,000,000 disease each employee and $1 ding OW disease pollcy Ilmo. E. COMMERCIAL CRIME Insurance which shall be at least as broad as the most cannot version of Insurance Service Office (ISO) Come and Fidelity Form OR 00 20 with limits 0Insurance of not less than $200,000. In the avant RICV purchases an Umbrella or Excess insurance palicyles) t0 meet the minimum limits of Insurance set forth above, this insurance policy(bes) shall "follow form and Season no less coverage than to primary Insurance policyges). RICV shall be responsible for payment of any dedutlibhs contained in any Insurance policies required hereunder and RICV shall also be responsible for payment of any see -Insured retentions. Any deductibles or sell insured resonance must be declared to, and approved by, the City's Risk Manager or hislher desgnee. At the patch of the Cogs Risk Manager or hislher designee, ether (b) the Insurer shall issues or eliminate such retludiblee or self insured retentions as respects City, He Al officials, employees, agents and volunteers: or III RIOV shall provide a financial guarantee, satisfactory to Cbtys Risk Manager or hislher designee, guaranteeing payment of losses and related investiga0ons, calm adminisbaton and defense expenses. At no runs shall City be responsible for the payment of any deductibles or sae -Insured ratemons. The above described policies of insurance shall to endorsed to provide an masticated thirty (30) say woolen notice in favor of the City, a policy cancellation, change or reduction of coverage, xcept for the Workers' Casmpens mon pastry which shall provide a ten (10) day women notke of such cancellation, change or reduction of coverage In the event any palic a are due to emirs during the term of this Agreement, a new certigc2te evidencing modest of such putty shall ba proNded not less than paean (15) days prior to the expiration date of the expiring pollcy(bs). Upon issuance by Ne Insurer, booker, or agent of a ounce of cancellation, change or reduction in coverage, RICV shall file wdh the CM a cedded copy of Me new or renewel Polley and certificates for such policy. The General Liability and Automobile Liability insurance policies shall be written on an occurrence from and shall name the City, its officers. officials, agents, employees and volunteers as an addiXonal Insured. Such poficy(es) of Insurance shall be endorsed so RICV'a insurance shall W All and no contribution shall As required of Me City. The Crime insurance pricy shall name Me City as a joint loss payee Any WonsersCompensation insurance policy shall contain a waiver of subrogation as to me City and each of its officers. officials, employees, agents and volunteers. RICV shall furnish the City ARM me cortificare(s) and Applicable endorsements for ALL required insurance prior to the City's execution of Mrs License Agreement. If at any time during the lite of MIA Agreement or any extension, RICV fails to maintain any retil insurance In full force And effect, all of RICV'¢ activi ies under his Agreement shall W discontinued Immediately, unfit notice is received by City that Me inquired insurance has hae r batteretl to hill force and effect and that the premiums Merefere have been past for a period satisfactory to CM Any follure to maintain the required Insurance shall be different cause far CM to terminate Me Agreement. No action taken by City pursuant to the section shall in any my relieve RICV Corporation of its responsibllrfies under this Agreement. Upon request of City, RICV shall immediately furnish City with a complete copy of any insurance policy required under Agreement, including ag endorsements, with said copy eemfed by the underwriter to he a true and correct copy of Me original policy. The requirement shall survive expration or termination of this Agreement The fact that Insurance is obtained by RICV shall not be deemed to release or diminish the liability of RICV, including, without Ilmitaten, Ilabllity under the indemnfficafion provisions of this Agreement The duty to indemnify City and its omiials, officers, shall agents and volunteers Shall apply to all claims and liability regardless of whether any Insurance policies are applicable. The policy limits do not ad as a limitation upon the amount of indemnification to be preheated by RICV. Approval or purchese of any insurance contracts or pollees shall in no way relieve from liability nor limit the liability of RICV or any of its officers, board members, employees, agents, volunteers, involves, colors, concessionaires, suppliers, vendors, comudambe counsel or subcontractors. If RICV should subcontract all or any porton of the services to be performed under Nis Agreement. RICV shall require each subcontractor to provide Insurance patecdon in favor of City and each of Us officers, officials, employees, agents and i uffil volunteers in accepi with the terms of The eastern, except mat any requlred certmcees and appli gAe endorsements shall be on fie with RICV and City poor to the commencement of any services by ore subcontractor. 10, ATTORNEY'S FEES If a party is required to commence any proceeding or legal action to enforce or Interpret any term. movement or condion of this MCU, the prevailing pally In such proceeding or action shall he entitled M recover from Me other party'Wheir reasonable attorney's fees and legal evpenses. 11. NOTICES Any notice required or intended to be given to a parry under the terms of this MOU shall be in wrping and shall he dremed to he duly delivered the earner of (a) actual roc ipl by personal celrvery to the representative (as defied herl as the case may be, or in lieu of such personal service, by way of Federal Express, DHL, or other similar counter addressed to such parry in the appropriate address set forth herein do the data Of receipt by facernile to Me City Representative or the RICV Representative, or (c) three (3) business days after the date of mailing (postage pra� pad return receipt requested). Either path may change its address for the purpose of this Paragraph by Owing written notice of such change to the other. 12. BINDING Once this MOU IS signed by all the Sanies, t shall be binding upon, and shall Inure to Me bent of, the parges, and each partys respective heirs, successors, assigns, trarwferees, agents, servams, employees and represemaMnes. The terms and conditions Still MOU, express or Implied, a" only for Me. benefit of Me pedes to this MOU and Mair respective successors and assigns. No other person or entity will be deemed to be a third party beneficiary of this MOU. 13. ASSIGNMENT There shall be no assignment by any party of its rights or obligations under this MOU without the prior within approval of the other parry. Any aftempted assignment by a party, Its successors or assgns, shall be null and vold unless approved in within by Me other party. 14, WAIVER The waiver by any path of a breach by the other of any provision of MIs MOU shall not consttMe a continuing waiver or a waiver of any subsequent breach of alter the same or a dMerem provision Still MOU. No provisions W this MOU may be waived unless in writing and approved by and signed by all parties to this MOU. Wether of any One provid" herein shall not be deemed t0 be a vower of My other provision herein. No acgon or omission by ether party shall constitute a breach of MIS MOU unless the Injured party first notMes the other party of Me prmoded breech in writing setting forth the alleged breach or Shall and sad path does not cure Me same within a reasonable period of time. The payment of any fee or compensation or performance of any obligation hereunder by either parry shall not consMute a wanner of any breach by the most party or of any of the rights and remedies which either party may have as a heart of such breach. No Sever by either path of breach Of the MOU shall be implied from any failure by the Other party to fake aGlon On SOV SA of such breach if such breach persists or is repeated. Waivers by eller path of any co exam farm Or condition contained herein shall not be construed as a waiver of any subsequent breach o the same covenant. term Of windfall 15. GOVERNING LAW AND VENUE This MOU shall be goverment by, all contained and enforoml In ecomM nce Mir, the laws of Me Slate of California. Venue for purposes of the filing of any action regarding Me enforcement or interpretation of this MOU and any rigor and duties hereunder shall be Fresno. (]w la. 16. HEADINGS The sedion headings in Mfr MOU are for convenience and reference only and shall not be constmed or held In any way to explain, motley or add to the interpretation or meaning 0 the provisions of MIS MOU. 17. SEVERABILITY The promsions of Mia MOU are severable_ The invalltlHy or unenforceability of anyone provision In this MOU shall not affect the other provisions. 18. INTERPRETATION The parties acknowledge Met this MOU In as final fcnn Is the result of the combined efforts of the ponies and Mat, should any pmvisipn of MIS MOU be found to be ambiguous In any way, such ambiguity shall not be resolved by continuing MMS MOU In favor or against any party, not rather by conNming Me terms In accordance with their generally accepted meaning. 19. REPRESENTATIONS AND WARRANTIES RICO represents am warrants that a Is a duly au horized and Signal California nonprofit corporation In good standing, and shall remain In good Standing during the term dints MOU. Eatli party hereby represents and warrants M the oMm party, and agrees Mat it has the full power and a ummy to enter ima this MOU antl parlor eats of Its; obligations hereunder, and it Is legally authorized and has obtained all necessary regulatory approvals for Me Sxecutlon, delivery, and performance of MIS MOU. 20. ENTIRE MOU It is mutually understood Wd agreed that Nie foregoing continues the emire MOU between the panels. Any modifications or amendments aides MOU mug be in writing signed by an Sarni agent of each party. THE REST OF THIS PAGE IS INTENftONALLY LEFT RIANK SIGNATURES APPEAR ON NEXT PAGE IN WITNESS THEREOF, the parties have caused their authotlted agents to execute this MOD as of the date first set forth above: CITY OF FRESNO, a muniGpsl coryorafion By: /,�LY� ce Radd Intenm Directory Assistant City Manager Perks. Recreation and Community Services Department RESOURCES FOR INDEPENDENCE CENTRAL VALLEY, a Caldomia nonprofit Public benefit corporation By Robert Hat Ire ATTEST REBECCA E. nISCH City Clark BY: W GU �Y APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By 'na D , Senior Deputy City Attorney �p r^� REPORT TO THE CITYCOUNCIL AGENDA ITEM NO. C COLNCI M ETIN / January 12, 2012 y,�� AqF. n wawa FROM: BRUCE A. RUDD, Interim Director Parks, Aker School, Recreation and CommundyServices Department BY: PAULA. MEIJKIAN, Admmistrapve B Finance Manager / Parks, Aper SChool, Recreation and Community Sei Department SUBJECT: Approval of an Agreement with Resources for Intlependence, Central Valley, Inc. to raise funds, ftemleb perhrera, and devebp an operational plan for the future Universally AccessiWa Park a1Wp recommends Met the City Council appmve Me attached Memorandum of Understanding (MOU) wind Resources for Independence Central Valley for Me pumose of mining funds, establishing panders, and developing an oparatlonal plan for Me Univwroi Acceaeible Park. RICV a future park site at 5770 W. Gethii (Polk 6 Gekyabi Into a universally The project Is currently In plan one& and will adcerlize bids rest month, with a pletion dale. The Department cunentV does not nave Me madames 0 opemta merelore, crea w smutiona are necessary 10 ensure that the cllizens of Fresno services of parks & recreation. Threugh co laCmatlon win Counol District 1, the elawriship wXh Resources for Intlependence, Central Valley (RICV), an 'Encouraging people with disabilities to W m Central of their lives and m Ore diverse range M Rloices and opportunities'. RICV wishes to nake rea lead eaot armed, and developing an operational plan for the Park. in a aoamy, related to the objectives of the Me needs Of to disabled community, and an ismam me evendarn program plan, level of akened by the success of the Initial phase W under a separate long-term operational Thla MOU hoe been renewed by me City Attorney and Risk Management Offices. BACKGROUND jar me terms of the MOU, Me City will: • Negotiate in good faith with RIOV the terms of brg-burn operational agreement forte Park. Use best spots to advance Me construction of Me Park, however, noting In mus MOO shall bind future City action which may be necessary to fund and approve tutors development of the Park. "i"11 emegnon l / l2 Report to the City council MOU with Resources for Independence Central Valley January 12, M12 Page 2 of 2 Resources for Independence, Central Valley will, • Raise funds, establish partners and develop an opaladonal plan for the Universally Accessible Park. • Esall an Achill Counol of six to len members thafwill assist in the RICV/lfAp Imargive. The Advisory Cauntll will hold monthly meetings, at minimum, to determine ongoing progress aid scale u Promotion and fund-reieing efforts as reatled. the sory • ellead lerEslbian a FrmeC mmNtoSolicit cash Counts! nkind suPPmlfoMolig opanduch, of the Park (Including program penning indent). The Part MQs Committee will hold bi-monthly meetings, at minimum, lb usual a detailed plan for Pak programming and supplement fundreising effore. • Hold all Ponds raised In a segregated RICVAIAP Inglallve Test Account. • and Park efforts. 10 plan to Member the Community Facilities District general fuMralsing • Endeavor to eambitsh avoided agreements or letters of intent with community bearrafit organlfatlons and other service and educational organtaations m provide a NII range of seMcos to Me public at the Park • Provide Me City with a monthly activity nerd to Sell Advisory CounclUPeMers Commudere/ RICVIUAP Initiative meeting minutes, Mancial actiVity, Including use of doMtibn proceeds to fund campaign expenses: and fund-raising, marketing, and partnering efforts. Oeslgn and have ready for implementation an aperalfonal plan for the Pak, designating specific responsibilitles of all community Padders and RICV staff involved in the operation of the Park and has RICVIUAP Inlhadve, Including a detailed program Plan and first quarter calerdar submission to the Cls Reis MOU will M in effect far an initial term running pvough January 31, 2013, and may be administratively Mended by the City Worker for designee) for up Ib one additional year. ending January 31. 2014. The City all negotiate In good faith wipe RICV me terms of a long-tens operational agreement for the Park, which wool, ,place this Agreement once executed. pact m me char ral Fund or, any other City funds as a result of approving this Agreement. All funds by the RICV/UAP Initiative shell be had by RICV in a segregated RICV/UAP Initiative Trust Account. SIT be used primarily for Me future development, operation, and maintenance of the Pak; however may use up to 10% of donated proceeds for costs pada ding to supportitg the term of this Agreement the fund-raising campaign Agreement