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HomeMy WebLinkAboutStaff Report 230-07City of Palo Alto City Manager’s Report TO: FROM: DATE: SUBJECT: HONORABLE CITY COUNCIL O CITY MANAGER DEPARTMENT: COMMUNITY SERVICES JUNE 18, 2007 CMR:230:07 AGREEMENT WITH THE FRIENDS OF HERITAGE PARK, L.L.C., FOR THE DESIGN, CONSTRUCTION AND INSTALLATION OF PLAYGROUND FACILITIES AND OTHER IMPROVEMENTS AT HERITAGE PARK - CAPITAL IMPROVEMENT PROGRAM PROJECT PG-07000 RECOMMENDATION Staff recommends that Council authorize the City Manager to execute the attached agreement with the Friends of Heritage Park, L.L.C., for improvements located within Heritage Park, including the installation of playground equipment, site amenities and other improvements consistent with the Park Improvement Ordinance (#4947) approved by Council on April 16, 2007. BACKGROUND On August 7, 2006, Council approved the allocation of $75,000 from the Park Development Impact Fee Fund to Capital Improvement Project PG-07000 for this project. The project was reviewed by the Parks and Recreation Commission on January 30, 2007. A publicly-noticed meeting was held at City Hall on January 31, 2007 to receive comments and suggestions from the public on the project. A follow-up meeting was held on March 12, 2007, with representatives of the Palo Alto History Museum and Friends of the Palo Alto Parks and Heritage Park, LLC to resolve issues with the conceptual design. On April 16, 2007, Council approved a Park Improvement Ordinance and associated conceptual plan for a children’s playground and park improvements to the westerly portion of Heritage Park. Now that the plan for the playground improvements has been approved, the City is prepared to enter into a limited-term agreement with the Friends of Heritage Park, L.L.C. (Friends) to improve the park and construct the playground and associated amenities. DISCUSSION Staff has worked cooperatively with the Friends to develop an agreement and right-of-entry to provide the Heritage Park, LLC exclusive access to that portion of the park undergoing construction. The agreement specifies policy and procedural guidelines for the Heritage Park, LLC to follow regarding design, construction, safety, liability, and payment details. The agreement follows similar public/private partnership agreements that provide for authorized non- profits to manage the improvement of City facilities. Other examples of such partnerships CMR:230:07 Page 1 of 3 include the Friends of the Children’s Theatre for the construction of the Magic Castle, and an agreement with Perry-Arrillaga for the construction of a refrestunent stand at the Baylands Athletic Center. Under the terms of the agreement, the Friends will deposit accumulated donations for the project into a City-designated account. The Friends’ funds will be matched with the $75,000 in park development impact fees that Council approved for the project (CIP PG-07000). The Friends will solicit bids from qualified and State-licensed contractors. The selected contractor(s) will be responsible for providing performance bonds and insurance to indemnify the City and the Friends. The bonds and insurance required are similar to the levels of protection normally required for City public works construction projects. The Friends have provided a timeline for the proj ect (Exhibit B of the Agreement) that shows all phases and timing of the construction of the project, including staging, demolition, site preparation, construction, fencing and site clean-up. The Friends have also provided a detailed budget that corresponds to the phased construction plan, showing that all expenses for the project have been anticipated and adequately provided for (Exhibit C of the Agreement). The budget also includes a contingency amount to cover unforeseen construction or design expenses. The timeline and associated budget have been reviewed by staff to ensure that the project-is viable. and that the project can be successfully completed with minimal disruption to the park or neighbors. Once the document is signed and approved and all requirements met, the Friends Will obtain all necessary building permits from the City. Upon obtaining the necessary building permits, the Friends will then commence construction activities. The City’s Building Inspection Division will inspect the progress of the construction in order to ensure that the project is constructed safely and competently according to all codes and specifications. All construction work will be coordinated with the Utility Department to ensure that there is no adverse impact on utility infrastructure. If for any reason the Friends are unable to satisfactorily complete the project within the one-year time period allotted by the agreement, the construction bonds and retained dedicated funds for the project will be used to allow the City to complete the project according to plans. RESOURCE IMPACT Funds for this project are included in Capital Improvement Program Project - PG-07000 (Park Facilities Improvements). Funds were derived from park development impact fees. The $75,000 in development impact fees that were approved by Council for this project have been met by $175,000 in private contributions from the Heritage Park, LLC. The annual cost for maintaining and inspecting the playground is estimated at $6,000. This cost is approximately the same as the maintenance of the existing turf area and irrigation system in the area of the park where the playground will be developed. The Friends have presented a budget for the project based on real equipment, material and labor costs (Exhibit C of the Agreement). Its project cost estimates include a reasonable amount for CMR:230:07 Page 2 of 3 contingency expenses. If for some reason actual bids come in higher than anticipated, the Friends will use its prioritized budget to construct the essential infrastructure, pathways, drainage and core playground equipment. The Friends will continue to solicit contributions until all aspects of the plan are realized. POLICY IMPLICATIONS This project is consistent with the recently approved (Policies public/private partnership policy as a "joint partnership project." & Services Committee) The proposed project is consistent with existing City policy, including C-17: Continue to support provisions, funding, and promotion of programs for children and youth; and C-26: Maintain and enhance existing park facilities. ENVIRONMENTAL REVIEW An Environmental Impact Report for the Summerhill Homes development project, that included conceptual designs for a full-amenity public park, was adopted by the Council resolution (Resolution 7950) on March 27, 2000 (CMR 192:00). These plans are consistent with the original concepts evaluated in the EIR. ATTACHMENTS Attachment A:Agreement (including exhibits) PREPARED BY: Open Space and Parks Division Manager DEPARTMENT HEAD: CITY MANAGER APPROVAL: S of Community Selwices EMILY HARRISON Assistant City Manager CMR:230:07 Page 3 of 3 ATTACHMENT A AGREEMENT FOR THE DESIGN, CONSTRUCTION AND INSTALLATION OF PLAYGROUND FACILITIES AND OTHER IMPROVEMENTS AT HERITAGE PARK This Agreement for the Design, Construction and Ia~stallation of Playground Facilities and .Other hnprovements at Heritage Parl~ ("Agreement"), dated, for convenience, , 2007 ("Effective Date"), is made and entered into by and between the CITY OF PALO ALTO, a California chartered municipal corporation (the "CITY") and the FRIENDS OF HERITAGE PARIS, LLC, a California limited liability company (the "FRIENDS") (individually, a "Party" and, collectively, the "Parties"), in reference to the following facts and circumstances: RECITALS: o The CITY is the owner of the Heritage Park, an approximately two acre park, located at Holner and Waverley in Palo Alto, California. The FRIENDS intends to benefit the CITY and the general public by designing, constructing and installing on approximately 8,000 square feet of the westerly quadrant of the Park (the "Site") certain playground and associated playground equipment and other structures, including, but not limited to, a-below ground level drainage system and ground level curbs and pathways, arbors and tables (the "Facilities"). The description and map of the Site is described in "Exhibit A." A construction and installation schedule for the Facilities is set forth in "Exhibit B." o The FRIENDS will design, construct and install the Facilities at substantially its cost and expense. The CITY will grant to the FRIENDS an alnount of funds not to exceed $75,000 to be applied by the FRIENDS to the acquisition and construction and installation costs of the Facilities. °Upon the completion of the construction and installation of the Facilities, the FRIENDS will deliver possession of the Site to the CITY and it also will transfer all right, title and interest in the Facilities to the CITY. IN CONSIDERATION OF the foregoing and the following covenants, tel~nS and conditions, the Parties agree: AGREEMENT: 1. PURPOSES. (a) The purposes of this Agreement are to: (i) grant the FRIENDS temporary access to the Site during the Term in order that the FRIENDS may construct and install the Facilities; (ii) provide for the preparation by FRIENDS, and the review and approval by the CITY, of plans, specifications and working drawings for the 070612 jb 0072901 Facilities; (iii) provide for the FRIENDS’ completion of construction and installation of the Facilities and the CITY’s approval and acceptance of those Facilities; and (iv) provide for the transfer of possession of the Site and all rights, title and interest in the Facilities to the CITY upon the completion of construction and installation of the Facilities. (b) In the event the Site or the Park is destroyed by any cause that renders the Site or the Park unfit for the purposes described in Section l(a), and its condition cmmot be repaired within 180 days from the date of destruction, either Party may give notice of, termination of this Agreement, which will become effective 30 days after receipt of such notice. If the Site, but not the Park, is damaged and rendered unfit for the purposes described in Section l(a), this Agreement will remain in effect only if the repairs to the Site can be commenced within 180 days after the date of destruction, or either Party may give notice of tenr, ination in accordance with the preceding sentence if the repairs ca~mot be commenced within such period of time. If the Park, but not the Site, is damaged, this Agreement will continue in effect; provided, however, the City will use reasonable efforts to promptly commence repairs of the Park within 30 days after the date of destruction in order that the FRIENDS may cominue to enjoy access to the Site for the pnrposes hereof. -(c) Nothing in this Agreement will be construed to limit the CITY’s right to temporarily revoke the FRIENDS’ access to the Site for the purposes hereof in the event of a default or breach of this Agreement by the FRIENDS or in the interest of the public health, safety and welfare. 2.TERM, This Agreement shall be for a term of one (1) year (the "Term"), commencing upon the Effective Date, when the Parties have duly executed this Agreement. If the completion of construction and installation of the Facilities is delayed for any reason beyond the reasonable control of the FRIENDS, then the Parties may agree, in writing, to extend the Te~xn on a month-to-month basis, in order to permit the FRIENDS’ completion of construction and installation of the Facilities. Upon (a) the completion of the construction and installation work, (b) the City’s acceptance of the Facilities pursuant to Section 6(g)(6), and (c) the FRIENDS’ completion of may punch- list items within the time specified in Section 6(g)(6) this Agreement will terminate without notice to either Party. The Term will not extend after July 1, 2008. 3.USE; ACCESS TO THE SITE. Subject to all covenants, terms and conditions hereof, the CITY hereby grants to the FRIENDS, its members, officers, employees, consultants, contractors, agents and representatives the revocable, nonexclusive right to enter the Park and the exclusive right to enter the Site for the purposes hereof. No other right, title or interest, including, but not limited to, any estate, ownership, leasehold, easement or other property interest, in the Site or the Park is granted or intended to be granted to the FRIENDS by this Agreement. The FRIENDS shall use the Site and the Park without substantial 070612jb 0072901 interference or interruption of the public’s use and enjoyment of the other portions of the Park. 4.CONSIDERATION. (a)(1) The FRIENDS will obtain contributions from the comlmmity to defray substantially all of the costs and expenses of the design, construction and installation of the Facilities, excepting only those funds which the CITY will contribute. The contributions received by the FRIENDS will be used exclusively to pay for the services of a duly licensed landscape architect, a project manager, and any other individual whose services are reasonably required to complete the construction and installation of the Facilities, plus reasonably related project costs and expenses. The services of the foregoing individuals shall be obtained by means of an informal competitive selection process conducted by the FRIENDS. The FRIENDS will deliver all contributions that it receives to the CITY, which will deposit such contributions in a fund and disburse accordingly as described in Section 4(b)(1). The FRIENDS will be obligated to pay any fee or charge for utility services rendered to the FRIENDS at the Site in connection with the Facilities’ construction and installation. (a)(2) The FRIENDS also will undertake a community outreach program to provide information to the Park’s neighborhood concerning the Facilities for the purpose of soliciting the input and support for the Facilities. As practicable, the FRIENDS will coordinate its construction and installation efforts in the Park with the Palo Alto History Museum or any other party in connection with the renovation of the Roth Building located at 300 Homer Avenue, Palo Alto, adjacent to the Park. (a)(3) Prior to the co~mnencement of construction and installation of the Facilities, the FRIENDS shall furnish to the CITY’s Director of Administrative Services evidence that assures the CITY there will be sufficient funds available to complete the Facilities. The term "sufficient funds" means the total amount of all actual costs of construction and installation of the improvements, equipment, and structures that constitute the Facilities, as set forth in the FRIENDS’ itemized budget, attached hereto and incorporated herein by reference as "Exhibit C." The budget will include an additional ten percent (10%) of the total amount of all actual costs as a contingency to meet any unforeseen costs that may arise during the construction and installation of the Facilities. Evidence of assurance will take the following form: Evidence of the deposit by the FRIENDS of the total amount of sufficient funds for the Facilities, as defined herein, into the separate account maintained by the CITY with disbursements from that account requiring the signatures of authorized representatives of the Parties shalt be furnished. At such times as the FRIENDS has currently payable invoices for the Facilities, the CITY will take the steps necessary to expedite its approval process so that ftmds can be disbursed from the account maintained by the CITY which will be sufficient to satisfy the FRIENDS’s accounts payable. The CITY will use reasonable efforts to process the requests for payment in a mariner which permits the FRIENDS to remain 070612jb 0072901 cun’ent on its obligations. The Director of Administrative Services, or designee, will be the CITY’s representative for all purposes hereof. If this Agreement is terminated for any reason, before the expenditure of all the funds in the account can occur, the CITY will be entitled to all rights, title and interest in the funds; provided, however, the CITY will thereafter expend the funds only for the purpose of constructing and installing the Facilities, or part thereof, that is not completed at the time of termination. If any portion of the anaount remains and is not disbursed following the completion of the Facilities, the remainder will be retained by the CITY and used to defray the costs of maintenance of the Facilities and the playground at the Site. The account will be maintained in the name of the CITY in a form reasonably acceptable to the Director of Administrative Services. (b)(1) The CITY will establish a Heritage Park Playground Fund account within the Cormnunity Services Department budget for FY 2006-07 and/or FY 2007-08 and contribute an amount of not more than seventy-five thousand dollars ($75,000.00), which will be used to defray the costs and expenses of the design, construction and installation of the Facilities. The CITY will administer and coordinate the receipt and disbursement of these funds, which shall be expended for all costs and expenses related to the design, ~onstruction and installation of the Facilities at the Site. No interest on the accunmlated funds will be paid by the CITY. (b)(2) The CITY will waive the obligation of the FRIENDS to pay any and all permit- and permit-related fees and charges that are due and payable to the CITY’s general fund with respect to its design, construction and installation of the Facilities at the Site and any other related work in connection therewith; provided, however, that the CITY will not waive the obligation of the FRIENDS to pay any fee or charge that is due and payable to any of the CITY’s enterprise funds for utility services that are rendered to the FRIENDS at the Site or the Park. (b)(3) The CITY will provide staff support and other assistance to the FRIENDS, upon request, in com~ection with the initiation and completion of the Facilities. 5.PLAN INSTALLATION. FOR DESIGN,CONSTRUCTION AND (a) The FRIENDS will prepare or cause to be prepared final plans and specifications and worldng drawings ("Plans") for the design, construction and installation of playground equipment, structures and improvements at the Site, as described in "Exhibit B." The FRIENDS will submit the Plans to the City’s Community Services Department, Planning and Community Envirolnnent Department and the Public Works Department as well as to the appropriate board and commissions, including, but not limited to, the Parks and Recreation Commission, and the Council for review and approval. 070612jb 0072901 (b) The FRIENDS will obtain and maintain al! CITY-issued permits and other authorizations required for the completion of the Facilities and shall furnish to the CITY upon request during the construction and installation phases any and all financial and non-financial security deemed appropriate by the CITY, including, bm not limited to, evidence of insurance coverage, indemnity aga’eement, lien waivers, performance and payment bonds, and covenants. 6. CONSTRUCTION AND INSTALLATION OF PLAYGROUND EOUIPMENT AND FACILITIES; COMPLETION OF FACILITIES. (a) The FRIENDS will commence design, construction and installation within 30 days after the Effective Date in accordance with the construction and installation schedule, as set forth in "Exhibit B." All construction and installation work will be conducted in an efficient and workmanlike manner in substantial compliance with the approved time schedule. The FRIENDS, at its cost and expense, will arrange for the placement of a portable restroom at the SITE during the Term and at any time that work will be performed with respect to the Facilities. (b) The FRIENDS will comply with the CITY’s regulations governing construction noise controls and regulations governing dust control, all as set forth in the Palo Alto Muriicipat Code. (c) ~ The FRIENDS will be responsible to accomplish all associated work required to complete the Facilities and it will be required to comply with all conditions that are imposed on the Facilities during the approval process: (d) The FRIENDS shall include standard CITY requirements in all equipment purchases and construction contracts in regard to warranties and worlca~aansh.ip guarantees for the Facilities. The CITY, upon request, will provide the FRIENDS with a list of such requirements. (e) All contractors, subcontractors, and other personnel who will perforn~ the construction and installation work at the Site under contract with the FRIENDS shall possess all current licenses required by the State of California. (f)All Facilities will be constructed and installed at the Site in compliance with the approved Plans. Any conditions relating to the maturer, method, design and construction of the Facilities established under the CITY’s approval process will be conditions of this Section 6(f) as if they were stated in this Agreement. Upon the completion of constrnction and installation, the FRIENDS’s project manager for the Facilities will submit to the CITY’s Manager, Open Space and Parks, a certificate of inspection, verifying that the construction and installation were completed in conformance with Title 24 of the California Code of Regulations. (g) For the purposes of this Agreement, the Facilities will be deemed completed at the time all of the following have occurred: 070612jb 0072901 (1) The FRIENDS’ landscape architect has delivered a statement, in writing, to the CITY, stating that the Facilities have been substantially completed in accordance with the Plans; (2) The FRIENDS has obtained all necessary CITY inspections of and approvals for the Facilities; (3) The Parties’ representatives have inspected the Facilities, and all major defects and incomplete items that materially impair the use of the playground have been remedied and a "punch-list" of minor defects has been prepared for prompt repair and completion by the FRIENDS. (4)Atl trash and garbage has been removed from the Site. (5)The FRIENDS has made the playground available to the CITY for use by the public; (6) The CITY has confirmed, in writing, that the FRIENDS has complied with the provisions of this Section 6(g) and final acceptance by the CITY has been issued. As a condition precedent to the CITY’s acceptance of the Facilities, the FRIENDS will complete the "punch-list" items within a reasonable time but not later than 30 days after the CITY has made a preliminary determination that the Facilities is deemed completed. 7.MAINTENANCE AND REPAIR. (a)The FRIENDS, at its sole cost, will maintain the Site and the Facilities during the Term in a commercially reasonable, clean and safe rammer to the complete satisfaction of the CITY and in compliance with all applicable laws. The FRIENDS will provide approved containers for trash and garbage generated at the Site and arrange for their disposal. The CITY reserves the right to enter and inspect the Site for compliance with this maintenance requirement and applicable safety requirements. The FRIENDS will be responsible for any damage to the Site or the Facilities that arises in com~ection with the construction and installation activities at the Site. (b) If the FRIENDS fails to properly maintain the Site, then the CITY may notify the FRIENDS, in writing, of such failure. The FRIENDS will be afforded a reasonable period of time in order to bring the Site to a clean and safe condition. The CITY, at its option, may elect to enforce its rights and remedies, including, but not limited to, entering the Site to ensure the safety of all persons and property thereon. (c) The obligation of the FRIENDS to maintain and repair the Site and the Facilities will terminate upon the CITY’s acceptance of the Facilities pursuant to Section 6(g)(6). 8.AS-BUIILT DRAWINGS. 070612jb 0072901 Upon the completion of the Facilities, the FRIENDS will provide the CITY’s Director of Public Works with a complete set of 24" by 36" 3 rail Mylar® reproducible "as built" Plans reflecting the actual construction and installation performed or caused to be performed by the FRIENDS at the Site pursuant to this Agreement. 9.OWNERSH~ OF FACILITIES AND IMPROVEMENTS. The FRIENDS covenants that the Facilities will be free and clear of all liens, claims or liability for labor or materials at the time of completion of the construction and installation thereof. The FRIENDS will execute a quitclaim deed or other document acceptable to the CITY with respect to the Facilities’ ownership in the passing of all rights, title and interest therein to the CITY. 10. UTILITY SERVICE. The FRIENDS will be responsible for paying for all utility services, including electric, water and garbage services, provided at the Site, which the FRIENDS requires in order to construct and install the Facilities and the other improvements at the Site or the Park. Ia~ the construction and installation of the Facilities and other improvements, the FRIENDS will not cause damage to the CITY’s utilities at the Site or the Park. TheFRIENDS will be liable for the replacement costs of the CITY’s utilities at the Site or the Park that are damaged by the FRIENDS (including any person hired or used by the FRIENDS) in connection with the construction ’and installation of the Facilities and other improvements. The replacement costs will be payable on demand of the CITY. 11.INSURANCE. (a)The FRIENDS, its consultants and contractors, if any, at their sole cost and expense, will obtain and maintain during the Term the insurance coverage described in "Exhibit D," insuring not only the FRIENDS and its consultants and contractors, respectively, but also with the exception of workers compensation, employer’s liability and professional liability insurance, naming the CITY as an additional insured concerning the FRIENDS’ performance under this Agreement. (b)Any deductibles or self-insured retentions must be declm’ed to and approved by the CITY. At the option of the CITY either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the CITY, its elected or appointed offmials, officers, employees, and volunteers; or the FRIENDS shall procure a bond guaranteeing payment of losses and related investigations, claim administration alld defense expenses. The insurance shall remain in full force and effect during the Terna, commencing on the Effective Date and ending on the termination of this Agreement. Each insurance policy required by this Agreement shall contain the following clauses: 1."Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior, written notice by certified mail, return receipt requested, has been given to the CITY." 070612jb 0072901 2."All rights of subrogation are hereby waived against the CITY OF PALO ALTO and its elected and appointed officials, officers or employees, when acting within the scope of their employment or appoimment." 3. "The CITY OF PALO ALTO is named as a loss payee on the Facilities and builders’ risk insurance policies described above." 4."The CITY OF PALO ALTO, its elected and appointed officials, officers, employee, s, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the FRIENDS; products and completed operations of the FRIENDS; premises owned, occupied or used by the FRIENDS; or automobiles owned, subleased, hired or bon’owed by the FRIENDS. The coverage shall contain no special limitati6ns on the scope of protection afforded to the CITY, its elected and appointed officials, officers, employees, agents or volunteers." 5."For any claimsrelated to this Agreement, the FRIENDS’ insurance coverage shall be primary insurance as respects the CITY OF PALO ALTO, its elected and appointed officials, officers, employees, agents and volunteers. Any insurance or self-insm’m~ce maintained by the CITY, its elected and appointed officials, officers, employees, agents or volunteers shall be excess of the FRIENDS’ insurance and shall not contribute with it." 6."Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the CITY OF PALO ALTO, its elected and appointed officials, officers, employees, agents or volunteers." 7."The FRIENDS’ insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to tl~e limits of the insurer’s liability." (c) All insurance will be provided by insurer carriers with a current A.M. Best’s rating of not less than A:VII. The FRIENDS will deposit with the CITY, on or before the Effective Date, certificates of insurance necessary to satisfy the CITY that these insurance provisions have been complied with, and to keep such insurance in effect and the certificates therefor on deposit with the CITY during the Term. If the FRIENDS does not provide evidence of coverage at least three (3) days prior to the expiration of any existing insurance coverage, the CITY may purchase such insurance coverage for not more than a six-month period, on behalf of and at the sole cost and expense of the FRIENDS. The CITY retains the right to review the coverage, form, and amount of the insurance coverage required by this Agreement and require the FRIENDS to alter the coverage, as appropriate: The CITY’s. requirements shall be reasonable and shall be desiguaed to assure protection from and against the kind and extent of risk which exists at the time a change in insurance is required. A failure by the FRIENDS to provide acceptable insurance policies or certificates with the CITY incorporating such changes within 30 days of receipt of such notice will constitute a default under this Agreelnent. Such default will constitute a material breach and shall be grounds for termination of this Agreemem by the CITY. The procuring of such required insurance will not be construed to limit the FRIENDS’ liability hereunder or to fulfill the indemnification provision and 070612jb 0072901 requirements of this Agreement. Notwithstanding the policy or policies of insurance, the FRIENDS shall be obligated for the full and total amount of any damage, injury, or loss occurring during the Term that is caused by the FRIENDS or its landscape architect, contractors, or design professionals, or colmected with this Agreement or with use or occupancy of the Site by the FRIENDS or its landscape architect, contractors, or design professionals. 12. INDEMNITY. The FRIENDS will protect, defend, indemnify and hold harmless the CITY, its elected and appointed officials, officers, employees and representatives, from any and all demands, claims, damage, loss or liability of any nature, including death of or injury to persons, property damage, or any other loss, caused by or arising out of the FRIENDS’ or any of its landscape architect’s or contractor’s negligent acts, errors, or omissions, or willful lnisconduct, in the performance of or failure to perform its obligations under this Agreement. 13. WAIVER. The waiver by either Party of any breach or violation of any covenant, term, or condition of this Agreement or of the provisions of any park ilnprovement ordinance or other CITY law will not be deemed to be a waiver of any such covenant, term, condition, or ordinance or of any subsequent breach or violation of the same or any other covenant, term, condition, or ordinance. The subsequent acceptance by either Party of any consideration which may become due or payable hereunder will not be deemed to be a waiver of any preceding breach or violation by the other Party of any other covenant, term, or condition of this Agreement or any ordinance. 14. ASSIGNMENT. The FRIENDS will not assign, transfer, or convey this Agreement without the express written approval of the CITY, and any such assignment, transfer or conveyance without the approval of the CITY will be void and in such event, at the CITY’s option, this Agreement may be terminated upon notice to the FRIENDS. 15. DEFAULT. (a) Except as otherwise provided under this Agreement, should the FRIENDS default in the performance of any covenant, term or condition comained in this Agreement and such default is not corrected within 30 days of receipt of a notice of default from the CITY, the CITY may elect to enforce any of the following rights and remedies: (1) terminate this Agreelnent and all rights of the FRIENDS and its consultants and contractors, if any; (2) cure any default of the FRIENDS by performance of any act, including payment of money, and the cost and expense thereof, plus all reasonable administrative costs, will become immediately due and payable by the FRIENDS to the CITY; (3) initiate an action or suit in law or equity to enjoin any acts which may be unlawful or in violation of the rights of the CITY hereunder; or (4) pursue any other right or remedy as may be provided in this Agreement. 070612jb 0072901 (b) In the evem of a default which calmot reasonably be cured within 30 days, the FRIENDS shall have a reasonable period of time to cure the default. The remedies given to the CITY hereunder, or by any law now or hereafter enacted, are cumulative and the exercise of one right or remedy shall not impair the right of the CITY to exercise any or all other remedies. In case any suit, action or proceeding to enforce any right or exercise any remedy shall be brought or taken and then discontinned or abandoned, then, and in every such case, the Parties will be restored to their former positions, rights and remedies as if no such suit, action or proceedings had been brought or taken. 16. NOTICES. All notices, requests and approvals by a Party will be given, in writing, and delivered by personal service, the United States Postal Service, express delivery service, or facsimile transmission, as follows: TO CITY:City of Palo Alto 1305 Middlefield Road Palo Alto, CA 94301 Phone: (650) 463-4951 Fax: (650) 321-5612 E-Mail:Richard.James@Citvof PaloAlto. org ATTN: Richard James, Director TO FRIENDS:Friends of Heritage Park LLC 1027 Bryant Street Palo Alto, CA 94301 Phone: (650) 330-3600 Fax: (650) 330-3636 E-Mail: JTarlton@tarlton.com E-Mail: KERVING@aol.com Attention: Jolm Tarlto~fKristine Erring 14.MISCELLANEOUS PROVISIONS. (a)This Agreement will be governed by and construed in accordance with the laws of the State of California and the Charter of the City of Palo Alto and the Palo Alto Municipal Code. The Parties will comply with all applicable federal, state and local laws in the exercise of their rights and the performance of their obligations under this Agreement. (b) All provisions of this Agreement, whether covenants or conditions, will be deemed to be both covenants and conditions. (c) This Agreement represents the entire agreement between the Parties and supersedes all prior negotiations, representations and contracts, written or 070612 jb 0072901 oral. This Agreement may be amended by an instrument, in writing, signed by the Parties. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one and the salne instrument. (d) All exhibits referred to in this Agreement are by such references incorporated in this Agreement and made a part hereof. The following exhibits are made a part of this Agreement: Exhibit A - Site Description Exhibit B - Construction and Installation Schedule for the Facilities Exhibit C - Itemized Budget for Facilities Project Exhibit D - Insurance Requirements (e) Upon request of the CITY, the FRIENDS will furnish to the CITY for its review and approval copies of its articles of organization, operating agreement, and other information relating to its organization status. (f)This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This provision witl take precedence in the event of a conflict with any other covenant, term or condition of this Agreement. (g) The Parties agree that the normal rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be employed in the interpretation of this Agreemem or any amendment or Exhibit hereto. IN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement on the Effective Date. APPROVED AS TO FORM:CITY OF PALO ALTO Senior Asst. City Attorney APPROVED: City Manager FRIENDS OF HERITAGE PARK LLC Director of Administrative Services Member Director of Community Services Member 070612jb 0072901 Member EXHIBIT A DESCRIPTION OF THE SITE 070612jb 0072901 Layout Notes: Layout and stake all elements In the fiald for approval prior to procoedlng with construction Locate and protect all ~ilities prior to proceedln~ with construction. /%11 work shall conform to State and Io~al ~edes. l~e Contractor Is respenslble for obtaining all permits and peying all fees required for this work. Notify the Landscope Azchltsct at least 48 houm in advance of all field Homer Avenue Revisions IDato ~q~,r.:~H ?, Drawn U.- P~.",~. Sheet EXHIBIT B COSNTRUCTION AND INSTALLATION SCHEDULE FOR THE FACILITIES 070612jb 0072901 Exhibit.B Heritage Park Playground Construction Schedule ID Task Name Start Finish Duration 1 Task:Demolition ’7/5/07 7/10/07 4 days 2 Task:Drainage 7/11/07 7/20/07 8 days 3 Task:Irrigation 7/23/07 7/31/07 7 days 4 Task:Soil Preparation/Grading 8/1/07 8/7/07 5 days Task:Playground 5 Footing/Installati0n 8/10/07 8/15/07 3 days 6 Task:Headerboard 8/13/07 8/13/07 1 day 7 Task:Concrete Bands 8/14/07 8/20/07 5 days 8 Task:DG Pathway 8/21/07 8/23/07 3 days 9 Task:Entry Pylons and Walls 8/14/07 8/23/07 8 days 10 Task:Fencing and Gates 8/24/07 8/30/07 5 days 11 Task:Sand lot 8/24/07 8/24/07 1 day 12 Task:Planting 8/24/07 8/24/07 1 day 13 Task:Internal Tree Planting 8/24/07 8/24/07 1 day 14 Task:Mulch 8/27/07 8/29/07 3 days 15 Task:Sod 8/24/07 8/24/07 1 day 16 Task:Trash Receptacles 8/27/07 8/27/07 1 day 17 Task:Benches, Table Assembly 8/27/07 8/28/07 2 days July 8 2007 July 15 2007 July 22 2007 July 29 2007 August 5 2007 Aug 12 2007 Aug 19 2007 Aug 26 2007 i EXHIBIT C ITEMIZED BUDGET FOR FACILITIES PROEJCT 070612 jb 0072901 FRIENDS OF HERITAGE PARI(, LLC Playground Budget REVENUES: City of Palo Alto Named gifts and major donor tiles Individual tiles New donors in cultivation 75,000 (committed) 144,800 (raised) 28,780 (raised) 20,000 (pending) TOTAL REVENUES $ 268,580 EXPENSES: Playground Equipment (includes tax and freight) Ross Recreation Equipment: Train Swings Pi~macle and Point (Rock & Ridge) Playground stl~lcture w/slide & climbing bars Dolphin play st~cture Playground Equipment Installation Includes paid supervisor Equipment (fork-lift rental) Concrete, base rock & compactor Landscape Contractor Construction Items: Rental fencing/toilet/tree fencing Excavation and dirt removal Drainage hxigation Sod Walkways and playground surfaces Concrete bands Decomposed Grauite (Felton Gold) Mulch (Fibar) Sand Contractor’s Fee @10% Contingen.ey (10% for total laudscape construction) Bond (1% of total cost of const~xlction) $117,000 $ 82,000 $ 35,000 $ 4,250 $ 2,250 $ $ 1,50o $1,500 $ $ $ $ $ $ $ $ 5OO $ 69,280 6,630 5,000 11,500 3,300 15,175 11,025 14,500 65O $ 6,920 $ 6,920 $ 6 92 Separately Contracted Items: Fencing Bosk of Trees (4 English Ehn) Masom’y Pylons (4) Masom’y wing walls (w/tiles installed) Picnic furniture (3 x 700) and benches (4 x 800) Garbage receptacles (2) Tree grove (7) Tiles And Donor Recognition: Purchasing and firing Tile accent trim Professional Services: Attorney Landscape Designer Marketing And Graphic Design Marketing for tile event -- bmmers aud website Webpage design Graphic design Media sponsor Celebration event TOTAL ESTIMATED EXPENSES: $ 24,500 $54,500 $ 1,000 $10,000 $ 10,000 $ 5,5oo $ 2,500 $ 1,000 $ 4,000 $ 3,50o 5OO $ 3,000 pro bono $ 3,000 $1,000 $ 500 pro bono pro bono pro bono $ 500 $ 267,572 EXHIBIT D INSURANCE REQUIREMENTS THE FRIENDS, AT ITS SOLE EXPENSE, SHALL DURING THE TERM OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH A BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA.. REQUIRED YES YES YES YES YES YES TYPE OF COVERAGE WORKER’S COMPENSATION AUTOMOBILE LIABILITY COMPREHENSIVE GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL LIABILITY COMPREHENSIVE AUTOMOBILE LIABILITY, INCLUDING, OWNED, HIRED, NON-OWNED PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE REQUIREMENT STATUTORY STATUTORY BODILY INJURY PROPERTY DAMAGE BODILY INJURY & PROPERTY DAMAGE COMBINED. BODILY INJURY EACH PERSON EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED ALL DAMAGES MINIMUM LIMITS EACH OCCURRENCE $1,000,000 $1,000,000 $1,000,000 $I,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 AGGREGATE $I,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $I,000.000 $1,000,000 $1,000,000 $I,000,000 THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: PROPOSER, ATdTS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY PROPOSER AND. ITS SUBCONSULTANS, 1F AN’Y, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE NAMING AS ADDITIONAL INSURES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES, COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: 1.INSURANCE COVERAGE MUST INCLUDE: A PROVISION FOR A WRITTEN THIRTY-DAY ADVANCE NOTICE TO THE CITY OF A CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY -SEE SECTION , SAMPLE AGREEMENT FOR SERVICES. If.SUBMIT CERTIFICATE(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE. OR COMPLETE THIS SECTION AND IV THROUGH V, BELOW. A.NAME AND ADDRESS OF COMPANY AFFORDING BROKER): COVERAGE (NOT AGENT OR B.NAME, ADDRESS, AND PHONE NUMBER OF YOUR INSURANCE AGENT/BROKER: C.POLICY NUMBER(S): 070612jb 007290I DEDUCTIBLE AMOUNT(S)(DEDUCTIBLE AMOUNTS 1N EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL): IV. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO "ADDITIONAL INSURES" A.PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSURES. B.CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSURES UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C.NOTICE OF CANCELLATION IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON- PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. UNDERSIGNED CERTIFIES THAT THE FRIENDS’ INSURANCE COVERAGE MEETS THE ABOVE REQUIREMENTS: THE INFORMATION HEREIN IS CERTIFIED CORRECT BY SIGNATURE(S) BELO~V. Firm: Signature: Name: (Print or type name) (Print or type name) Signature: NOTICES SHALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303. 070612jb 0072901