ORDINANCE _________________

AN ORDINANCE authorizing the Superintendent of Parks and Recreation to enter into an Agreement with the Arboretum Foundation and the Associated Recreation Council on behalf of the Japanese Garden Advisory Council, relating to the implementation of the Washington Park Arboretum Japanese Garden Entry Gatehouse Project; authorizing acceptance of funds from the Arboretum Foundation for such purpose; and increasing the expenditure authority in the Department of Parks and Recreation's 2008 Adopted Budget, all by a three-fourths vote of the City Council.

WHEREAS, the Washington Park Arboretum Japanese Garden ("Japanese Garden") is a City of Seattle ("City") facility under the jurisdiction of the Department of Parks and Recreation ("DPR"); and

WHEREAS, the Japanese Garden Advisory Council ("JGAC") is a member of the Associated Recreation Council ("ARC"), established to support the Japanese Garden by, among other things, managing membership and volunteer programs, providing public information services and raising funds for the Japanese Garden; and

WHEREAS, the Arboretum Foundation ("Foundation") is a private notfor-profit corporation established to manage membership and volunteer programs, raise funds and provide public information services for the Washington Park Arboretum; and

WHEREAS, the Japanese Garden Entry Gatehouse project is identified in the Master Plan for the Washington Park Arboretum and has been named as a high priority project by the Arboretum and Botanical Garden Committee, that advises the City, the University of Washington and the Foundation on the management and stewardship of the Arboretum; and

WHEREAS, the JGAC and the Foundation have committed to contribute funding to implement the Japanese Garden Entry Gatehouse Project; and

WHEREAS, the JGAC, in cooperation with ARC, the Foundation and DPR wish to enter into a formal agreement to define roles and responsibilities in order to allow for the implementation of the project;

NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. The Superintendent of Parks and Recreation ("Superintendent") or his or her designee, is authorized, on behalf of the City, to enter into an agreement with the Foundation, ARC and JGAC, substantially in the form of Attachment 1 to this ordinance, in order to implement the Japanese Garden Entry Gatehouse Project as described in the Washington Park Arboretum Improvements project (K733127) in DPR's 2008-2013 Adopted Capital Improvement Program.

Section 2. The Superintendent, or his or her designee, is authorized, on behalf of the City, to accept Eight Hundred Ninety-One Thousand Dollars ($891,000) from the Foundation for the implementation of the Japanese Garden Entry Gatehouse Project.

Section 3. Contingent upon the execution of the agreement authorized in Section 1 above, and in order to pay for necessary costs and expenses for which insufficient appropriations were made, the following appropriation amount is added to the 2008 Budget:

Department Fund Budget Control

Level/CIP Program Amount Parks and Recreation 2000 Parks Levy

Fund (33850) Neighborhood Park Development (K723003) $891,000

Any amounts unspent and unencumbered shall automatically carry forward from year to year until spent or abandoned by ordinance.

Section 4. This ordinance shall take effect and be in force thirty (30) days from and after its approval by the Mayor, but if not approved and returned by the Mayor within ten (10) days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020.

Passed by a three-fourths vote of all the members of the City Council the ____ day of _________, 2008, and signed by me in open session in authentication of its passage this _____ day of __________, 2008.

_________________________________

President __________of the City Council

Approved by me this ____ day of _________, 2008.

_________________________________

Gregory J. Nickels, Mayor

Filed by me this ____ day of _________, 2008.

____________________________________

City Clerk

(Seal)

Attachment 1: AGREEMENT Between THE CITY OF SEATTLE DEPARTMENT OF PARKS AND RECREATION and THE JAPANESE GARDEN ADVISORY COUNCIL and THE ARBORETUM FOUNDATION

AGREEMENT

Between

THE CITY OF SEATTLE DEPARTMENT OF PARKS AND RECREATION

and

THE JAPANESE GARDEN ADVISORY COUNCIL

and

THE ASSOCIATED RECREATION COUNCIL

and

THE ARBORETUM FOUNDATION

Regarding

THE DESIGN AND CONSTRUCTION OF THE

WASHINGTON PARK ARBORETUM

JAPANESE GARDEN ENTRY GATEHOUSE

This Agreement is made and entered into effective as of this ___ day of _____, 2008, by and between The Associated Recreation Council, a Washington nonprofit corporation ("ARC") on behalf of the Japanese Garden Advisory Council ("JGAC"), a member advisory council, The Arboretum Foundation ("Foundation"), a Washington nonprofit corporation, and the City of Seattle ("City"), a municipal corporation of the State of Washington, acting through the Superintendent of its Department of Parks and Recreation ("Superintendent").

WHEREAS, the City owns certain property commonly known as Washington Park

Arboretum and since 1948, has used the property as a public arboretum under the jurisdiction of the Department of Parks and Recreation ("DPR"); and

WHEREAS, in 1960 the City developed a portion of this property into a Japanese Garden; and

WHEREAS, the JGAC was established to support the Washington Park Arboretum Japanese Garden by, among other things, managing membership and volunteer programs, providing public information services, and raising funds for the Japanese Garden; and

WHEREAS, the Foundation is a private, not-for-profit corporation established to support the Washington Park Arboretum ("Arboretum") by, among other things, managing membership and volunteer programs, providing public information services, and raising funds for the Arboretum; and

WHEREAS, on May 7, 2001, the City adopted by City Council Resolution 30317, the Master Plan for the Washington Park Arboretum ("AMP"); and

WHEREAS, the Foundation and the JGAC have agreed to raise funds from individuals, corporations and foundations to support, implement and maintain projects provided for in the AMP; and

WHEREAS, the Foundation wishes to fund the construction of certain improvements to the Japanese Garden known as the Entry Gatehouse Project ("Project") provided the City agrees to contract for and manage the design and construction of the Project in accordance with the City's public works processes; and

WHEREAS, DPR is completing the design of the Project and the parties now desire to memorialize the terms and conditions under which the Foundation will provide the funds and City will cause the design to be completed and the Project constructed;

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows:

1. Authority and Ownership

The parties acknowledge and agree that the City owns the Washington Park Arboretum Japanese Garden (including, when completed, the improvements that comprise the Project referred to herein except the woody plants added to the landscape which will be owned by the University of Washington) and that the Superintendent has final administrative and decision-making authority with respect to the Japanese Garden and the Project, including decisions regarding ongoing maintenance and operation.

2. Approval of Project Design

The City has contracted with Hoshide Williams Architects ("Architect") to design all phases of the Project and DPR agrees to maintain the Architect's contract in force so long as the JGAC and the Foundation are not in default under this Agreement. The Parties have reviewed all Project documents to date including, but not limited to, the 95% construction documents (dated October 31, 2007), and are satisfied with and approve the design for the Project as described therein. It is the Parties' expectation that the Project design will be completed and that the Project will be constructed in accordance with the approved design concept. The JGAC and the Foundation shall have the right to review and comment on the final construction documents in a time frame and under conditions that the Superintendent reasonably establishes to avoid delay. The Parties agree to give all comments to DPR and not communicate separately with the Architect.

3. Project Costs

A. Basic Project Costs

The JGAC and the Foundation collectively agree to raise funds for the Project and to pay therefrom all Project construction costs to a minimum of $891,000 as outlined in the Project Budget chart below. The Parties have estimated the Project Budget components and agree that the amounts shown may be reallocated within the categories identified; provided, that in no event shall the Foundation or the JGAC be obligated to pay amounts in excess of the Total Project Budget without their express consent. DPR shall not authorize any contract change or expenditure or commitment of funds in excess of the Total Project Budget unless and until the Parties have mutually agreed to the change and identified a source of funding therefor.

B. Alternate and Additional Elements of the Project

It is conceivable that the JGAC and the Foundation may raise more than the minimum of $891,000 as provided in 3.A. above or that total project costs for the Project may be less than those set forth in the project estimate. In either event, there would be funds available to provide for alternate or additional elements for the Project or for the Japanese Garden. The Parties agree that all such funds shall be expended solely for the benefit of the Japanese Garden. A committee comprised of representatives of the JGAC, the Foundation and the Superintendent shall meet with the City Project Manager to approve such additional expenditures such as additional storage space or decorative front gates.

PROJECT BASE BUDGET

I. INCOME II. EXPENSE Sources Confirmed Amount Uses Amount Pro-Parks Levy 450,000 Consultant Costs 175,000 Anonymous Donor 229,710 Public Information 7,000 Allen Foundation 125,000 Landmark Nomination 7,000 Arboretum Foundation 20,000 Project Mgt. 18,000 Unit 86 9,000 Project Review 5,000 Ferguson Foundation 100,000 Permit Processing 20,000 Individual Donations 171,690 In-House Construction 12,000 Tateutchi Foundation 200,000 Bidding 5,000 Construction Admin. 22,500 Construction Inspection 22,500 Pendleton/Miller Grant 100,000 Utilities 50,000 Seattle Garden Club 35,000 Security 10,000 Lake Wa. Garden Club 400 Temporary Conditions 20,000 Tokyo Christian Alumni 200 Construction Contract 970,000 Other Construction Contingency 97,000 Total 1,441,000 1,441,000

Notes: The construction contract amount is based on construction contracts including Washington State Sales Tax. The total budget includes $450,000 in 2000 Pro-Parks Levy Funds and $100,000 in funds from the Pendleton and Elizabeth Miller Charitable Trust (which has already been paid directly to the City).

4. Payment Terms and Conditions

A. Transfer of Project Funds and Pledges

The Foundation shall pay the City at least $891,000 (the "Project Funds") to complete the Project. The Foundation shall pay $560,000 in cash and provide to the Superintendent copies of written pledges ("Pledges") from established charitable organizations or individuals with the financial means to pay the amount pledged, such Pledges to total not less than the balance of the Project Funds. The Foundation shall deliver the Project Funds and the copies of the Pledges to DPR within ten (10) days of DPR's written request therefore, which will occur approximately two (2) weeks prior to the date DPR intends to advertise for bids for the Project and which is presently anticipated to occur in May 2008. The JGAC will cause contributions to be paid directly to the Foundation.

To the extent necessary to ensure timely construction of the Project, the City will internally finance Project construction and will be reimbursed through Foundation Pledges, consistent with standard City practices and the costs of such funding shall be included in the Project Budget; however, it is expected that all but a small percentage of the Pledged funds will be paid in time to allow the City to meet its payment obligations without resorting to such internal financing.

Foundation Pledges will be reviewed by the City Finance Director ("Director"), who will endeavor to protect the confidentiality of donors and Foundation donor-related information, when requested. The Foundation will submit a copy of Pledge forms reasonably acceptable to the Director, with donor names verified by the Director but omitted from the copy submitted. The Director will approve a Pledge if it is from a person or entity of substantial net worth in relation to the amount pledged and the Director knows of no reason why the Pledge will not be honored.

Following receipt of the Project Funds and the Director's approval of the Pledges, DPR will advertise for contractors for the Project and provided sufficient funds are available and/or committed to complete the construction, will thereafter contract for the diligent prosecution of the Project work.

In order to secure Project Funds the Foundation has entered into agreements with certain charitable organizations, one of which is the Tateuchi Foundation. The City agrees to name the meeting room in the Japanese Garden Gatehouse the "Tateuchi Community Room," and will comply with the reporting and other requirements contained in that granting agreement.

B. Refunds:

If DPR fails to award the Project within two months from the date DPR receives the Project Funds, then, unless the Parties agree otherwise, DPR shall promptly refund the Project Funds to the Foundation, less DPR's costs and expenses incurred up to the date of refund, including design fees, bidding costs and project management expenses.

If the Foundation terminates this Project prior to the award of the construction contract, it may submit a written request to DPR for release and refund of any unencumbered or unexpended Project Funds, less DPR's expenses, as described above. Encumbered funds will be reviewed separately for possible refund on a case-by-case basis at the Superintendent's option.

5. Term of Agreement and Termination Provisions

This Agreement is effective on the date set forth above and unless terminated earlier as provided herein, shall remain in effect through the completion of construction of the Project, as evidenced by a letter of physical completion from DPR's Park Engineer. The City may, upon written notice to the JGAC, ARC and the Foundation, terminate this Agreement without incurring any liability whatsoever if the Foundation fails to pay the City the Project Funds when due or if bids for the Project exceed the Project Budget and the parties are unable to agree on a method to address the overrun. The Foundation may withdraw from and terminate this Agreement without recourse only prior to the date the City awards the Project construction contract. Notwithstanding the termination of this Agreement for any reason, the Foundation shall remain liable for all costs incurred by the City in furtherance of the Project prior to the effective termination date. The Foundation's obligation to pay such Project costs shall survive the termination or expiration of this Agreement. The Foundation shall pay such costs within 40 days from the date of the City's invoice therefore.

6. Notices / Contacts

For the City of Seattle:

Andrew Sheffer, Project Manager

Department of Parks and Recreation

800 Maynard Avenue South

Seattle, WA 98134

206-684-7071; FAX 206-233-3949; andy.sheffer@seattle.gov

For The Associated Recreation Council

Bill Keller

Executive Director

100 Dexter Ave N

Seattle, WA 98109

Phone: 206-684-7083; FAX: 233-3876; bill.keller@seattle.gov

For The Japanese Garden Advisory Council

Steve Garber

PO Box 20670

223 Harvard Ave E

Seattle WA 98102-1670

206-325-0987; FAX 206-325-0632; steve@garbers.com

For The Arboretum Foundation

Paige Miller

The Arboretum Foundation

2300 Arboretum Drive East

Seattle, WA 98112-2300

206-325-4510; FAX: 206-325-8893 pmiller@arboretumfoundation.org

7. Dispute Resolution

The Parties will work cooperatively to resolve all issues that may arise under this Agreement. If a dispute should arise, DPR's Project manager will meet with the Foundation's Executive Director to resolve the issue. Any problems not resolved at this level will be escalated as follows. First, the President of the Foundation will meet with the Director of Planning and Development for DPR. If no resolution is reached at this level, the President of the Foundation will meet with the Superintendent of DPR. If no resolution is reached at this level, the parties shall engage in non-binding mediation with a mutually acceptable mediator. Thereafter, the parties may pursue such judicial remedies as are available to them.

8. Compliance with Law

The Parties shall comply with all applicable laws of the United States and the State of Washington; the Charter, Municipal Code, and Ordinances of the City of Seattle.

9. Relationship of Parties

Nothing in this Agreement shall be construed to create a partnership, joint venture, or employment relationship between the Parties.

10. Applicable Law / Venue

This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington. The venue of any action brought hereunder shall be in the Superior Court for King County.

11. Entire Agreement

This Agreement contains all of the covenants, promises, agreements and understandings between the parties with respect to the subject matter hereof. No verbal agreements or conversations between any officers, agents, associates or employees of the parties prior to the execution of this Agreement shall affect or modify any of the terms or obligations contained herein. Any such verbal agreements shall be considered unofficial information and in no way binding on either party.

IN WITNESS WHEREOF, in consideration of the terms, conditions, and covenants contained herein, or attached and incorporated and made a part hereof, the parties have executed this Agreement by having their representatives affix their signatures below.

For the Associated Recreation Council:

________________________________________ ___________________

Bill Keller, for the Associated Recreation Council Date

For The Japanese Garden Advisory Council:

_________________________________________ ___________________

Steve Garber for The Japanese Garden Advisory Council Date

For The Arboretum Foundation:

________________________________________ _____________________

Paige Miller for the Board of Trustees Date

For The City of Seattle:

________________________________________ ___________________

Timothy A. Gallagher, Superintendent of Parks and Recreation Date

Attachment 1

Page 1 of 7

Attachment 1 to DPR Japanese Garden Entry Ord

Andy Sheffer

DPR Japanese Garden Entry ORD

1/31/08

Version #4

Form Last Revised on December 4, 2007 1