CITY OF SEATTLE

ORDINANCE __________________

COUNCIL BILL __________________

AN ORDINANCE relating to the City of Seattle's Department of Parks and Recreation and Atlantic City Nursery; authorizing the Superintendent to enter into a five-year agreement, with options to extend, with Seattle Tilth and the Friends of Rainier Beach Urban Farm and Wetlands to operate and provide management of the Atlantic City Nursery located at 5513 S. Cloverdale Street, Seattle, WA 98118.

WHEREAS, Seattle Parks and Recreation ("DPR") owned and operated the Atlantic City Nursery in the Rainier Beach neighborhood for fifty years, providing trees and plants for City parks; and

WHEREAS, in 2009 DPR decided to consolidate horticultural operations at one location at Jefferson Park and closed the Atlantic City Nursery in 2010; and

WHEREAS, after a public process that included community meetings and review by the Board of Park Commissioners, DPR concluded that future use for the nursery property would include public access, community gardening, and management by a nonprofit partner; and

WHEREAS, DPR initiated a Request for Proposal process ("RFP") in 2011that was designed to secure a nonprofit partner to provide for the overall development, renovation, management, and operation of the nursery site; and

WHEREAS, DPR completed the RFP process and selected Seattle Tilth and the Friends of Rainier Beach Urban Farm and Wetlands ("FRBUFW") as the winning proposer of the RFP; and

WHEREAS, Seattle Tilth and FRBUFW will be providing public benefits including classes, workshops, and community events; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. The Superintendent of the Department of Parks and Recreation ("Superintendent"), or his designee, is authorized to enter into a five-year operation and management agreement for the City's Atlantic City Nursery with Seattle Tilth and the Friends of Rainier Beach Urban Farm and Wetlands, substantially in the form of the Agreement between the City of Seattle and Seattle Tilth and the Friends of Rainier Beach Urban Farm and Wetlands, which is attached to this ordinance as Attachment 1 ("Agreement").

Section 2. The Superintendent is authorized to renew and extend the term of the Agreement for two five-year extensions at the Superintendent's option and as provided in the Agreement.

Section 3. This ordinance shall take effect and be in force 30 days after its approval by the Mayor, but if not approved and returned by the Mayor within ten days after presentation, it shall take effect as provided by Seattle Municipal Code Section 1.04.020.

Passed by the City Council the ____ day of ________________________, 2012, and signed by me in open session in authentication of its passage this

_____ day of ___________________, 2012.

_________________________________

President __________of the City Council

Approved by me this ____ day of _____________________, 2012.

_________________________________

Michael McGinn, Mayor

Filed by me this ____ day of __________________________, 2012.

____________________________________

Monica Martinez Simmons, City Clerk

(Seal)

Attachment 1: Management and Operating Agreement Between the City of Seattle Department of Parks and Recreation, Seattle Tilth, and the Friends of Atlantic City Nursery AKA/ Friends of Rainier Beach Urban Farm and Wetlands

Charles Ng/RH DPR Atlantic City Nursery July 2, 2012 Version #2

MANAGEMENT AND OPERATING AGREEMENT

BETWEEN THE CITY OF SEATTLE DEPARTMENT OF PARKS AND RECREATION,

SEATTLE TILTH

AND

THE FRIENDS OF ATLANTIC CITY NURSERY

AKA/ FRIENDS OF RAINIER BEACH URBAN FARM AND WETLANDS

FOR

ATLANTIC CITY NURSERY URBAN FARM AND

WETLAND PRESERVATION AND ENHANCEMENT PROJECT

THIS DEVELOPMENT AND OPERATING AGREEMENT ("Agreement") is entered into by and between the City of Seattle, a municipal corporation, acting through its Department of Parks and Recreation ("Department"), AND Seattle Tilth, a Washington nonprofit corporation and the Friends of Rainier Beach Urban Farm and Wetlands, (both referred herein as "Operators").

RECITALS

WHEREAS, pursuant to Article XI of the Seattle Charter, the Superintendent has the responsibility for the operation and control of the parks and recreation system of the City; and

WHEREAS, the City owns Atlantic City Nursery thereon that is administered by the Department of Parks and Recreation acting through its Superintendent; and

WHEREAS, the City desires to enter into an agreement with an experienced nonprofit to provide for the overall management and operation of an Urban Farm and Wetland Preservation and Enhancement Project at the Atlantic City Nursery Site ( herein referred to as "Premises"); and

WHEREAS, the City conducted a publicly-advertised Request For Proposals (RFP) to select an operator for the management and operation of the Premises at Atlantic City Nursery; and

WHEREAS, the Operators submitted a Proposal in response to the RFP that was evaluated by an impartial evaluation panel against predetermined objective criteria and was judged to be most advantageous to the City; and

WHEREAS, the City and the Operators intend that any proposed improvements to the Premises and subsequent future contracts between the Operators and any contractor of the Operators to make such improvements to the Premises shall be subject to the review and approval of the City PRIOR to commencing work on any of the proposed improvements;

NOW, THEREFORE; In consideration of the mutual promises made herein, the Operators and the City hereby agree as follows:

ARTICLE I. DEFINITIONS

The following words and terms shall have the following meanings for the purposes of this Agreement. Terms otherwise not defined herein shall be given their usual and customary meaning.

1.1 "City" shall mean the City of Seattle, a municipal Corporation.

1.2 "Department" shall mean the City of Seattle Department of Parks and Recreation and its Superintendent or designee.

1.3 "Premises" also referred to as "Property" and or "Site" shall mean the real property upon which the buildings, wetlands, and uplands are located and the property to be used by the Operators. (See Exhibit D -Site Map.) The 10.9 acre site is located at 5513 S Cloverdale Street and currently known as the Atlantic City Nursery.

1.4 "Operators" shall mean Seattle Tilth and the Friends of Rainier Beach Urban Farm and Wetlands.

1.5 "Contractor" and "Subcontractor" shall mean any person or business entity employed by the Operators, which shall assume parts of the Operators' rights and responsibilities arising from this Agreement pursuant to a contract with the Operators.

ARTICLE II. USE GRANT

2.1 Grant of Right. The City hereby grants to the Operators, for the term and upon the conditions and provisions herein, the right and privilege to manage and operate the Site within Atlantic City Nursery as described in Exhibit A and hereinafter included in this Agreement by reference.

Seattle Tilth is acting as the Fiscal agent for this Agreement and is responsible for all financial and tax reporting purposes. (See Exhibit B -Fiscal Sponsorship Agreement and Exhibit C -Memorandum of Understanding Between Seattle Tilth and the Friends of Rainier Beach Urban Farm and Wetlands.) Therefore, Seattle Tilth retains the decisionmaking authority on projects within the Site while collaborating with and receiving advice and input from the Friends of Rainier Beach Urban Farm and Wetlands; and with final approval from the Department.

2.2 Quality. The Operators agree to complete the programs and services described in Exhibit A in a diligent and efficient manner within the limits of the authority herein granted.

2.3 Maintenance Requirements. The Operators, at no costs to the Department, are responsible for any and all major maintenance and minor repairs required at the site and under their jurisdiction. The Operators are specifically responsible for:

? winterizing the irrigation system;

? removal of snow or removal of the poly/shade cloth from the greenhouse structures during winter months;

? upland mowing;

? maintaining the wetlands as defined in 1.3 Premises and to agreed-upon standards;

? stabilizing ground cloth on the fields; and

? maintaining the perimeter service road.

The Department will not be responsible for any maintenance on the premises.

ARTICLE III. TERM

The rights granted to the Operators under this Agreement shall be in effect for a period of five (5) years, unless this Agreement is terminated earlier pursuant to the provisions hereof. Two extensions may be possible in five (5) year increments at the sole option of the Department.

Amendments. No modification of this Agreement shall be binding upon the City or Operators unless reduced to writing and signed by an authorized representative of each of the parties hereto. Any future agreement/amendment between the City and the Operators that adds to, changes, or deletes specific responsibilities of this Agreement will be negotiated and if agreed upon, then memorialized in writing by the City.

ARTICLE IV. SITE BUILDINGS AND SITE RENOVATIONS, CONSTRUCTION, AND DEVELOPMENT BY THE CITY.

4.1 The City shall be responsible for any capital improvements to the Site that are funded by the Opportunity Fund Project in the Department's Capital Improvement Program, including managing the design and construction of the improvements to the Site.

4.2 The City and Operators will work together to conduct a Public Involvement Process (PIP) with the objective of soliciting feedback from the neighborhood communities and stakeholders of the Site regarding what types of improvements are appropriate and within the available budget in the Department's Capital Improvement Program Budget for the Site. The PIP will follow the schedule referenced in Exhibit A.

ARTICLE V. POSSIBLE FUTURE IMPROVEMENTS OR ALTERATIONS FINANCED BY THE OPERATORS

5.1 Any future plans for improvements or alterations to the Site by the Operators must be reviewed and approved by the Department. No work on these improvements or alterations will begin without the Department's approval. Any and all approved renovations or improvements are the property of the Department. Any and all alterations, additions, renovations, or improvements shall remain in and be surrendered with the Premises as a part thereof at the expiration or earlier termination of this Agreement; provided, to the extent that the Department determines in its sole discretion that it approves and that it is practicable, Operators may remove any approved improvements at Operators' sole expense. If so removed, Operators shall repair at their sole expense any damage done to the Premises as a result of such removal. Operators shall be responsible for obtaining all permits, licenses, and meeting all applicable development and construction standards or other requirements including but not limited to compliance with applicable building codes and with the Americans with Disabilities Act (ADA) and its design standards under both Titles II and III thereof. Operators acknowledge expressly that the provisions of the ADA may exceed the building code and will design and construct to comply therewith.

5.2 If such proposed plans and improvements are approved by the Department, the Operators will be responsible for the following requirements, including but not limited to:

5.2.1 Securing all required permits at no cost to the Department, providing evidence to the Department as requested, and paying all of their construction contractor costs, paying all required prevailing wages and City public works requirements, and all applicable City, State, and Federal Taxes associated with these improvements.

5.2.2 The Operators shall keep the Site free and clear of any liens and encumbrances arising or growing out of its use and occupancy of the Premises. At the City's request, the Operators shall furnish the City written proof of payment of any item which would or might constitute the basis for such a lien on the facility if not paid.

5.2.3 Minimization of Adverse Impacts. All proposed demolition, construction, alteration, addition, and improvement work performed by or for the Operators at the Premises shall be submitted to the City for review and approval and if approved then must be carried out in a manner that minimizes any adverse impacts on the use of the Premises by the visiting public.

5.2.4 Inspections for any Operators Proposed work on the Premises. Authorized representatives of the Department may inspect all plans, contracts, and work of or for the Operators at any time to determine whether such work is in accordance with the plans and specifications approved by the City for the Operators. If any such work is not according to such plans and specifications, the City may send to the Operators, return receipt requested, a Notice of NonCompliance. Immediately following the Operators' receipt of any such Notice of Non-Compliance, at the City's sole election the Operators shall either (i) desist from the construction of such improvement, addition, installation, or alteration and remove it from the Site, or (ii) make such improvement, addition, installation, or alteration consistent with such approved plans and specifications. The Operators' failure to make such corrections within five (5) calendar days after the Operators' receipt of such Notice of Non-Compliance, or in the event such corrections require more than five (5) calendar days for completion, the Operators' failure to commence such correction work within five (5) calendar days after receipt of such notice and to diligently prosecute such correction work to completion within a reasonable time shall constitute a material breach of this Agreement.

5.2.5 Utilities, Trash, Debris and Maintenance. The Operators, without charge to the City, shall be responsible for all utilities and containerizing in appropriate containers all waste and debris from their programming and construction activities at the Site. Any hazardous waste shall be placed in air and water tight containers as may be appropriate. The Operators shall be liable for any cost for utilities and any charge or expense involved in removing any trash or construction debris including hazardous waste. The Operators are responsible for maintenance of the premises as described in Section 2.3.

5.2.6 No Unlawful Use of Site. During the duration of the agreement, the Operators shall not permit the Site or any part thereof to be used for any unlawful or immoral purpose or injure persons or property in, on, or near said Site; nor permit any act to be done which will in any way mar, deface, or injure any part of the Site.

5.2.7 Emergency Closure. The City has reserved the right to direct the Operators and any subcontractors, during the duration of the Agreement, to temporarily close the site or any portion thereof without notice to meet any emergency, as determined by the Superintendent. In the event of any such closure, the City shall post a sign notifying the public of the closure.

5.2.8 Subcontractors. It is the responsibility of the Operators to assure compliance by any Contractor or Subcontractor(s) with the record-keeping requirements of this Agreement, and shall be responsible for ensuring payment of all subcontractor fees and charges for all work performed as per contractor agreement scope of work as developed by the Operators.

ARTICLE VI USE FEES; TAXES; OFFSETS; LATE FEES

6.1 Base Fee and Use Fee. For the term of this Agreement, the Operators shall pay to the Department a minimum Base Fee of $1,000.00 and a Use Fee of $40,000.00, payable in arrears in two installments of $20,000.00; one payable and due annually on the thirtieth (30th) day of June and the second one due annually on the thirty-first (31st) day of December.

6.2 Base Fee and Use Fee Exclusive of Taxes. The Base Fee and Use Fee are exclusive of any sales, business, occupation, leasehold excise tax, or other tax levied or assessed as a consequence of this Agreement or any activity of Operators. Any and all taxes shall be paid by Operators with no offset or deduction whatsoever.

6.3 Use Fee Offset. One hundred percent (100 %) of the Use Fee due under this Agreement and noted in Article 6.1 is eligible for offset with programming services to or for the benefit of the City ("Service Credits"). Services that are eligible for Service Credits are Community Programming and other activities as specified in Exhibit A. If Operators desire to take advantage of this opportunity during the term of this Agreement, then Operators must perform these program services prior to the due dates noted in Article 6.1. Operators shall send a written report in accordance with Exhibit A which details the program services and maintenance rendered and the value of such services, supported by an itemized accounting of time, labor rates, and materials, with corresponding dollar values.

The parties recognize that the value of the Community Programming and maintenance and other items that the Operators must provide under this Agreement may exceed the amount of the Use Fee. Under no circumstances will the City owe Operators any money or credit if the value of the Community Programming and Capital Improvement Offsets and other items exceeds the amount of the Use Fee. Under no circumstances may program activities funded from grants or other financial assistance provided by the City of Seattle be used to offset the Use Fee. Moreover, Operators' obligation to use the Premises for Community Programming and to provide maintenance and perform its obligations under this Agreement shall not be limited by the amount of Service Credits that offset the Use Fee.

The Use Fee may be offset by Department-approved new programs that are a Public Benefit to the extent that these programs support the public mission. If the Operators produce events or programs that are commercial in nature and are not related to the public mission (such as an auto show, corporate or business rental, third party rentals for weddings, birthdays, etc.) then that would not be offset to the fair market rent and the Operators would pay a percentage of the rental fee to the Department.

6.4 Late and Refused Payments. Operators acknowledge that late payment to the City of the Use Fee or any other sum due to the City hereunder will cause the Department to incur costs not contemplated by this Agreement, including, but not limited to, processing and accounting charges. Therefore, in the event Operators fail to pay any sum after such amount is due to the City, such amount shall bear interest at the rate of twelve percent (12%) per annum from the date due until the date paid. Additionally, a Twenty-five Dollar ($25.00) charge shall be paid by Operators to the City for each check refused payment for insufficient funds or any other reason.

6.5 Leasehold Excise Tax. The Operators shall remit to the Department with each payment the appropriate payment for Washington State Leasehold Excise Taxes. These Leasehold Excise Taxes payments shall be made to the Department and shall be listed separately. Leasehold Excise Taxes are not included in the payments shown in this Agreement. The Leasehold Excise Tax rate at the time this agreement is drafted is 12.84% (Twelve and eighty-four hundredths percent) of the Use Fee paid to the Department.

ARTICLE VII. COMPLIANCE WITH LAW

7.1 General Requirements. The Operators, at no cost to the City, shall perform and comply with all applicable, current, and future laws of the United States and the State of Washington; the Charter and Municipal Code of the City of Seattle; and rules, regulations, orders, and directives of their administrative agencies and the officers thereof now or hereafter enacted or promulgated. Whenever the Operators are informed of any violation of any such law, ordinance, rule, regulation, license, permit, or authorization committed by it or any of its officers, employees, contractors, subcontractors, agents, or invitees, the Operators shall immediately desist from and/or prevent or correct such violation.

7.2 Licenses and Other Authorizations. The Operators, at no cost to City, shall secure and maintain in full force and effect during the term of this Agreement, all required licenses, permits, and similar legal authorizations, and comply with all requirements thereof.

7.3 Equality of Treatment. The Operators and any Subcontractors shall conduct their business(es) in a manner that assures fair, equal, and nondiscriminatory treatment at all times in all respects to all persons without regard to Age, Ancestry, Color, Creed, Disability, Gender identity, Marital status, National Origin, Parental status, Political ideology, Race, Religion, Sex, Sexual orientation, Use of a Section 8 certificate, Use of a service animal, Military status or Veteran. Any failure to comply with this provision shall be a material breach of this Agreement.

7.4 Nondiscrimination and Affirmative Action. The Operators and all of its Contractors and Subcontractors shall comply with all applicable equal employment opportunity and nondiscrimination laws of the United States, the State of Washington, and the City of Seattle, including but not limited to Chapters 14.04, 14.10, and 20.42 of the Seattle Municipal Code (SMC), as they may be amended; and rules, regulations, orders, and directives of the associated administrative agencies and their officers.

7.5 Workers Compensation Act. The Operators shall at all times during the term of this Agreement subscribe to and comply with workers compensation laws of the State of Washington and pay such premiums as may be required thereunder and to indemnify and hold harmless the City, its officers, agents, and employees from any liability arising under such act. Prior to any operations being performed in the Site and at such other times as may be requested, the Operators shall furnish a copy of the official certificate of receipt, showing payments in compliance with the Act.

7.6. Operator's Indemnification of the City Against Liability under Visual Artists Rights Act of 1990. The Operators shall protect, defend, and hold the City harmless from and against any and all claims, suits, actions, or causes of action, damages, and expenses (including attorneys' fees and costs) arising as a consequence of (a) the installation or integration of any work of visual art on or into the Premises; (b) the destruction, distortion, mutilation, or other modification of the art work that results by reason of its removal; or (c) any breach of this section; or (d) any violation of the Visual Artists Rights Act of 1990, as now existing or hereafter amended; by the Operators or any of their officers, employees, agents, invitees, or licensees. This indemnification obligation shall exist regardless of whether the City or any other person employed by the City has knowledge of such installation, integration, or removal or has consented to any such action or is not required to give prior consent to any such action. The indemnification obligation of this subsection shall survive the expiration or earlier termination of this Agreement.

ARTICLE VIII. INSURANCE AND INDEMNIFICATION

8.1 Minimum Coverages and Limits Of Liability. Prior to undertaking any work under this Agreement, the Operators, at no direct expense to City, shall secure and thereafter maintain during the full term of this Agreement the following insurance applicable to its operations at the Site.

8.1.1 Commercial General Liability (CGL) insurance including Premises/Operations, Products/Competed Operations, Contractual, Independent Contractors, Tenant Fire Legal Liability, and (if applicable) Employers Liability/Stop Gap with minimum limits of liability of $1,000,000 each occurrence combined single limit bodily injury and property damage and Tenant Fire Legal Liability of $100,000.

8.1.2 Automobile Liability insurance covering owned, non-owned, and hired automobiles as applicable with minimum limits of liability of $1,000,000 each occurrence combined single limit bodily injury and property damage.

8.1.3 If applicable, Workers Compensation in accordance with the provisions of Title 51 of the Revised Code of Washington (RCW).

8.2 Additional Insurance Requirements.

8.2.1 As respects CGL and Automobile Liability insurance, "the City of Seattle" shall be an additional insured on a primary and non-contributory basis subject to a standard separation of insureds provision.

8.2.2 The limits of liability specified in section 8.1.1 and 8.1.2 are minimum limits of liability only and the City shall be an additional insured for the full valid and collectible limits of liability available to the Operators, whether such limits are primary, excess, contingent, or otherwise.

8.2.3 All insurers must either be rated A-VII or higher in the A.M. Best's Key Rating Guide and licensed to do business in the State of Washington or issued as surplus lines under the provisions of chapter 48.15 RCW, unless otherwise approved by the City.

8.2.4 In the event that the City deems then current insurance coverages and limits of liability to be inadequate to adequately protect the interests of the City and/or Operators, the City may require Operators to increase said coverage and liability limits to such amounts as the City shall deem reasonable within sixty (60) days after the date of notice to Operators.

8.3 Certification of Insurance.

8.3.1 Operators shall cause certification of insurance evidencing compliance with the insurance provisions herein to be delivered to:

Seattle Parks and Recreation

Attn: Charles Ng, Manager

6310 NE 74th Street #109E

Seattle, WA 98115

An electronic copy shall also be emailed in PDF format to riskmanagement@seattle.gov .

8.3.2 Such certification shall include an actual copy of the additional insured endorsement or policy wording that verifies that the City is an additional insured under the Commercial General Liability insurance for primary and noncontributory limits of liability and shall provide not less than thirty (30) days notice of cancellation to the City, except ten (10) days as respects cancellation for non-payment of premium to be sent to the address in paragraph 8.3.1.

8.3.3 The failure of Operators to comply with any of the terms of the insurance provisions herein shall be considered a material breach of this Agreement. Alternatively, at the option of the City and without waiving any other remedies to which the City may be entitled for such material breach, the City may procure the required insurance for Operators from whatever source the City deems reasonable, and charge Operators the cost of the required premium plus an administrative fee equal to twenty percent (20%) of the premium, which shall be due and payable as of the date of the invoice therefore. Any amount due to the City pursuant to this section that is not paid in full within thirty (30) days after the date invoiced shall bear interest at the maximum legal rate.

8.4 Indemnification by the Operators.

8.4.1 Operators shall fully indemnify and hold the City free and harmless from all liability, risks, costs, claims, actions, suits, demands, losses, expenses, injuries, and/or damages of any kind whatsoever, tangible or intangible, including any consequential damages that may accrue to or be suffered by any person (including the Operators, its Contractor(s), Subcontractor(s), officers, employees, agents, invitees, assigns) arising, directly or indirectly, or suffered by any person by reason of or in connection with any negligent or willful act or omission of the Operators or any of its Contractor(s) or Subcontractor(s), if any, or of any officer, employee, or agent of the Operators' Contractor or its Subcontractors, or any combination thereof, which arise, directly or indirectly, in connection with the program services and any improvement projects, including but not limited to claims for labor or materials in connection with the program services and any future project(s) and from the cost of defending against such claims, including attorneys' fees, whether such construction, repair, and maintenance was performed before or after the commencement of the term of this Agreement, or for or on behalf of the Operators Contractors, any of its Subcontractors, or a third party. The obligations of the Operators under this section shall survive the expiration or earlier termination of this Agreement with respect to any event occurring prior to such expiration or termination.

8.4.2 In the event of any such suit or action against the City, the Operators and their Contractor(s) or Subcontractors, upon notice of the commencement thereof, shall appear and defend the Operators at its sole cost and expense. If judgment is rendered against the City and the Operators or any of its Subcontractors jointly, the Operators and its Subcontractors shall cause the City to be satisfied within ninety (90) days after a final determination thereof. The liability described in this section shall not be diminished except to the extent that any such death, injury, damage, loss, cost, or expense was contributed to in part by the negligence of City, or of any of its officers, employees or agents, except where such death, injury, damage, loss, cost, or expense arose, directly or indirectly, out of the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of any building, excavation, or other structure, project, development, or improvement attached to real estate; provided, however, that in such situation, the liability of the Operators and their Contractor(s) or Subcontractors shall be enforceable to the extent of their negligence as provided in RCW 4.24.115.

8.4.3 In consideration of the various negotiated commitments made and obligations assumed herein, the Operators and its Contractor(s) and Subcontractors respectively waive their immunity under Title 51 RCW. The obligations of the Operators and its Contractor(s) and Subcontractors under this section shall survive the expiration or earlier termination of this Agreement with respect to any event occurring prior to such expiration or termination. This indemnity Agreement shall extend to protect the City from liens by mechanics, material men, and suppliers (which liens are expressly prohibited) which shall be deemed to include all purchases of expendables, consumables, and other merchandise. The Operators expressly waive any and all claims for compensation and release and discharge the City and its officers, agents, and employees from any and all demands, claims, actions, and causes of action arising from any and all loss or damages sustained by reasons of any defect, deficiency, or impairment of the water supply system, drainage system, heating system, electrical apparatus, or wiring furnished for the Site which may occur from time to time from any cause or for any loss resulting from water, tornado, civil commotion, riot, windstorm, and earthquake.

8.4.4 In the event of any claim made or suits filed, the City shall give the Operators timely written notice thereof, and the Operators shall have the right to defend or settle to the extent of its interest hereunder. The Operators shall promptly accept all tenders of such cases from the City; and if it is necessary for the City to incur attorney's fees, legal expenses, or costs to enforce this provision, all such expenses shall be recoverable from the Operators.

8.5 Damage or Destruction.

8.5.1 If the Site is damaged by fire or other casualty, provided that sufficient funds are available to the City, it may, at its sole election, commence such repairs as will restore the Site, including the improvements therein, to the condition immediately preceding the casualty as near as reasonably possible.

8.5.2 Upon such fire or other casualty either party may, at their option and within thirty (30) days after the casualty, terminate this Agreement by written notice to the other, specifying the effective date of such termination.

8.5.3 If repairs or replacement are made to the Site, rent shall be abated in the proportion that the untenantable portion of the Site bear(s) to the whole thereof, as reasonably determined by the City, unless the casualty results from or is contributed to by the negligence of Operators or any of its officers, contractors, agents, invitees, guests, or employees, or Operators' breach of this Agreement, in which event there shall be no abatement. In no case, however, shall the Operators' total liability for repair or replacement exceed the available valid and collectible limits of Tenant Liability.

8.5.4 In the event of damage by casualty to its own business personal property, Operators shall, to the extent they deem necessary or desirable, at their sole cost and expense, repair all such damage or replace such property. The City shall not be liable to Operators for damages, compensation, or other sums for inconvenience, loss of business, or disruption arising from any repairs to or restoration of any portion of the Structure.

ARTICLE IX. TERMINATION; SURRENDER AND PROPERTY REMOVAL.

9.1 Termination for Material Breach. In addition to the material breaches and defaults identified throughout this Agreement, each of the following acts and omissions constitutes a default and material breach, for which the City shall be entitled to terminate the Operators' rights and interests in and under this Agreement:

9.1.1 The non-compliance by the Operators or any of its Contractors or Subcontractors of any law, ordinance, rule, or regulation pertinent to this Agreement after notice and opportunity to cure.

9.1.2 Operators' or any of its Contractors' or Subcontractors' repeated failure to perform, or violation of, any other material condition or covenant of this Agreement, the RFP requirements, or its Proposal.

9.2 Removal of Construction Debris. In the event that after the completion of a future project, the Operators have not removed or caused to be removed all construction materials and debris from the Site or the adjacent park property, whether or not such property or material is owned by the Operators, the City may, but need not, remove and store such property, all at the expense and risk of the Operators, which shall reimburse the City for any expense incurred by the City in connection with such removal and storage. Upon notice to the Operators, the City shall have the right to sell such stored property after it has been stored for a period of thirty (30) days or more, with the proceeds of such sale being applied first, to the cost of the sale; second, to the payment of the charges for storage; and third, to the payment of any other amounts which may then be due from the Operators to the City; the balance, if any, shall be paid to the Operators.

9.3 Costs and Expenses. The Operators shall pay in a timely manner legal costs and expenses incurred by the City, including the reasonable fees and expenses of legal counsel, in connection with the approval of any proposed transfer of the Operators' interest in this Agreement, and the enforcement of the City's rights hereunder. Such costs and attorneys' fees shall include, without limitation, costs and attorneys fees incurred in any appeal, forfeiture proceeding, or in any proceedings under any present or future federal bankruptcy or state receivership law.

ARTICLE X. MISCELLANEOUS.

10.1 Notices. Any notices required in accordance with any of the provisions herein shall be sent by registered or certified mail addressed as follows:

To the City:

The City of Seattle Department of Parks & Recreation

Magnuson Park & Business Resources

Attention: Charles Ng

6310 NE 74th Street #109E

Seattle, WA 98115

And to the Operator, Seattle Tilth:

Andrea Platt Dwyer, Executive Director

Seattle Tilth Association

4649 Sunnyside Avenue N, #100

Seattle, WA 98103

And to the Operator, The Friends of Rainier Beach Urban Farm and Wetlands:

Harry Hoffman, Co-Chair

8621 Island Drive S

Seattle, WA 98118

And

Peter Masundire, Co-Chair

9342 57th Avenue S

Seattle, WA 8118

or at such other place as the Operators or the City may in writing direct. All notices shall be deemed effective upon receipt, refusal of delivery, or attempted delivery.

10.2 Governing Law, Time. This Agreement and the rights of the parties hereto shall be governed and construed in accordance with the laws of the State of Washington. In the event any action is brought to enforce the provisions of this Agreement, the venue of any such action shall be King County, Washington, and the parties hereto do hereby stipulate to the jurisdiction and venue of the Superior Court for King County, Washington. Time is of the essence of this Agreement.

10.3 Assignment. The Operators shall not sublet, transfer, convey, assign, nor permit the use of the rights, privileges, or Site granted under this Agreement in whole or in part to any other person, firm, or corporation without the prior written authorization of the City. Said rights, privileges, and Site are not assignable or transferable by any process or proceedings in any court, or by attachment, execution, proceedings in insolvency, or bankruptcy either voluntary or involuntary, or receivership proceedings. Any assignee approved by the City must accept and assume in writing all the terms and conditions of this Agreement to be kept and performed by the Operators and such assignment shall not in any manner discharge or release the Operators or its sureties herein from any other obligation under the terms of this Agreement. Non-compliance with this section shall be deemed to be a default hereunder. The City may transfer or convey this Agreement or any right or interest herein of the City with the prior written consent of the Operators. The terms and provisions of this Agreement shall bind and inure to the benefits of the City's successors and assigns.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year set forth below.

For the City of Seattle, Department of Parks and Recreation

_______________________________, ______________, 2012

Christopher Williams, Acting Superintendent

For Seattle Tilth

_______________________________, ______________, 2012

Andrea Dwyer, Executive Director

For Friends of Rainier Beach Urban Farm and Wetlands

______________________________, _______________, 2012

______________________________

EXHIBITS: A. -Program Goals and Requirements

EXHIBIT A

Seattle Tilth and the Friends of Rainier Beach Urban Farm & Wetlands,

Atlantic City Nursery Urban Farm and

Wetland Preservation and Enhancement Project

Program Goals & Requirements &

Schedule of Public Benefits

Seattle Tilth, a non-profit 501(c)3 organization, and the Friends of Rainier Beach Urban Farm and Wetlands (Operators) shall provide the following programs and services for the City of Seattle Parks and Recreation (DPR) and residents of the City.

Each year during the term of the Agreement, the Operators shall submit a list of the programs/ services, staff and volunteer time and maintenance proposed as offset to the annual Use Fee; and the value of such services, supported by an itemized accounting of time, labor rates and materials, with corresponding dollar values. The City will allow the value of these services to offset the Use Fee up to $40,000. During the first year of the Agreement, $40,000 will be provisionally offset to the annual rent. By January 15, 2013 the Operators shall submit to the Superintendent for approval within 30 days a list of the services proposed as offset for the previous year. In the event the Superintendent fails to timely provide certification or written notice, the offsets shall be deemed certified. If the offset certified value is below $40,000 the Operators will pay the City the difference within 30 days of notification. Under no circumstances will the City owe Operators any money or credit if the value of the Community Programming and Capital Improvement Offsets and other items exceeds the amount of the Use Fee.

In subsequent years, beginning October 1, 2012, the Operators will include in their Management and Operations Plan (as noted in Section VI. c. and d.) proposed services to be offset for the following year. On January 15th of each year a list of actual services delivered as offsets credited to the previous year will be submitted to the Superintendent for approval within 30 days. In the event the Superintendent fails to timely provide certification or written notice, the offsets shall be deemed certified.

The following programs/services may be used as offsets to the annual Use Fee.

I. Public Access

1. Public Access to facility and resources. The premises will be open during normal park hours for free public access to the Atlantic City Nursery Site for passive recreation. The Operators will provide a minimum of 8 hours a week in the premises for meetings, classes, workshops, and family and community events to local organizations, neighborhood groups, individuals and families throughout the term of the Agreement.

II. Educational Programs

1. Community Service. The Operators shall recruit community members including Rainier Beach residents and/or organizations along with students from the Seattle Public Schools to participate in work parties to teach, demonstrate and implement organic gardening and sustainability practices. The Operators will host multiple work parties, one of which will be targeted to youth for a total of 8 activity hours. These work parties will consist of an average of 20 volunteers. It is anticipated the number of participants shall be a total of 40 duplicated/30 unduplicated volunteers and 320 volunteer hours annually.

2. Workshops. The Operators will host workshops on organic gardening principles and practices. At least one of the workshops will target Rainier Beach residents. It is anticipated these workshops will include a total of 100 duplicated/75 unduplicated participants for a total of 6 hours of education annually.

3. Programming. The Operators shall incorporate City and Department initiatives into its programming, including:

a. Race and Social Justice Initiative training shall be required of all employees of the Site; and

b. Urban Agriculture Initiative.

III. Community-building and Events

1. The Operators shall consistently reach out to the local Rainier Beach residents and/or organizations at the Site.

2. The Operators will host festivals or large community events to celebrate community assets and/or urban farming. It is anticipated these event(s) will attract over 200 participants of all ages.

3. Events that require an admission fee or other charges to participants that are outside the permitted uses, goals and mission of this agreement will require a 10% payment of all sales and admission fees to the Department. Any event of this nature that anticipates over 50+ participants or has amplified sound will also require a Special Event Permit from the Department. The Operators will be responsible for all associated fees, permits, and requirements. (examples of requirements: liquor control, trade show, health department, etc.)

IV. Site Maintenance

1. The Operators will recruit and support volunteer Garden Crew and Work Parties to provide an average of 6 hours a week in general site maintenance activities for a total of 264 hours per year valued at the 2012 rate for volunteer service as defined by Independent Sector at the following web site: http://www.independentsector.org/programs/research/volu nteer_time.html

2. The Operators will oversee and support Garden Interns to maintain the site. Interns lead work parties which average 10 volunteers.

V. Design, Planning and Construction Management

1. The maximum amount of the Operator's award from the 2008 Seattle Parks and Recreation Opportunity Fund is $500,000.

a. The Operators will work with Seattle Parks and Recreation along with the greater community to identify the most appropriate improvements for the site.

2. The Capital Improvements will be implemented per the tentative schedule for the Capital Improvements, as follows:

Planning: fall -winter 2011

Design: spring 2012 -winter 2013

Construction: spring --fall 2013

3. The Public Involvement Process shall be managed by the Department in conjunction with the Operator.

4. The Capital Improvements shall include an Urban Farm, Wetland Enhancement, and Public Access.

a. The specific details shall be reviewed by the public, the Department and the Operators to insure feasibility.

b. The improvements shall take into consideration the site limitations based on areas designated as wetlands and wetland buffers and the requirements for any changes to those areas.

c. Detailed review of proposed plans is required prior to any implementation.

5. The Capital Improvements shall be consistent with programming goals, safety and reuse of as much existing infrastructure as possible.

Other Requirements

VI. Financial Plan and Monitoring

1. The Operators will report to the Department including the Department's urban food committee.

a. Reports shall include quarterly program metrics and financial reports.

b. The Operators shall identify any fee-based programs, value added produce/food sales, and number of pounds of product donated to food banks or nonprofit organizations.

c. The Operators' Operation and Maintenance Plan shall be consistent with the Capital Improvements.

d. By October 1st of each year the Operators will submit to the Superintendent for his or her approval within 30 days, an annual Operating/Maintenance Plan that will outline plans for the following year and include the planned services to be used to offset the rent for the following year. In the event the Superintendent fails to timely provide certification or written notice, the plan shall be deemed certified.

VII. Corporation Organization

1. The Friends of Rainier Beach Urban Farm and Wetlands and Seattle Tilth shall develop an agreement together as Operators of the Site, which identifies their roles and responsibilities. These roles and responsibilities shall be defined and reporting actions required. This agreement shall be used throughout the Operator Agreement to explain the management of the Site. A copy of this agreement shall be delivered to the Department within 30 days of signing the long-term management and operating agreement.

2. The Friends of Rainier Beach Urban Farm and Wetlands shall register with the Department as a volunteer "Friends Of" group and will follow the guidelines for "Friends Of" groups. They will also develop a volunteer agreement with Seattle Tilth which will specifically detail their commitment and responsibilities.

3. The Operators' program management shall be similar to Seattle Tilth's organization.

4. The Operators' Program Manager and the advisory committee, which consists of members from Seattle Tilth and the Friends of Rainier Beach Urban Farm and Wetlands, shall meet regularly to oversee the management of the site. Department staff may attend these meetings in an ex officio capacity, and shall be notified in advance of their time, date and location.

Charles Ng/RH DPR Atlantic City Nursery ORD ATT 1 EXH A May 3, 2012 Version #3

EXH A to ATT 1 to DPR Atlantic City Nursery ORD Page 1 of 4

B. -Fiscal Sponsorship Agreement

C. -Memorandum of Understanding between Seattle Tilth and the

Friends of Rainier Beach Urban Farm and Wetlands

D. -Site Map

Exhibits A-D to Attachment 1

Rita Hollomon/Charles Ng DPR Atlantic City Nursery ORD ATT 1 March 7, 2012 Version #3

ATT 1 to DPR Atlantic City Nursery ORD 1

Rita Hollomon/CN DPR Atlantic City Nursery ORD ATT 1 March 7, 2012 Version #3

ATT 1 to DPR Atlantic City Nursery ORD