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HomeMy WebLinkAbout5.7 Amendment V. 7 AGREEMENT TO RESTRUCTURE THIS AGREEMENT is entered into this 1st day of Ja nuary 2010, by and between the City of Port Angeles "City and the Port Angeles Downtown Association "PADA WHEREAS, the City is authorized by state law to render governmental services and to engage in economic development activities; and WHEREAS, as the commercial hub of Port Angeles, the downtown area is vital to the economic health of the City; and WHEREAS, City government derives sales tax revenues from downtown businesses, which revenues would be enhanced by efforts to strengthen and revitalize the downtown area; and WHEREAS, City and PADA cooperative efforts have included participation in the Washington State Main Street Program, the development, adoption and implementation of downtown sign regulations, downtown beautification projects, and other related activities; and WHEREAS, the City and the PADA find it desirable to enter into an agreement restructuring their combined efforts to strengthen, rebuild, and revitalize the physical, economic, social and cultural environment in downtown Port Angeles; NOW, THEREFORE, in consideration of the mutual benefits provided by this agreement, the parties hereby recite, covenant and agree as follows: 1. Recitals: The PADA in the past has performed for the City a variety of services relating to and for the benefit of the City's central business district. The parties agree that it is in the best interest of the City that PADA continue to perform certain functions and duties relating to the City's central business district. However the parties agree that it is in the best interests of the City, of PADA, and of the public to revise the contractual relationship of the City and the PADA and to refocus the efforts of the PADA. 2. Prior Agreements: The parties have previously entered into a series of agreements. Those agreements include, but may not be limited to: February 7, 1986: Agreement; December 3, 1997 Amendment to February 7, 1986 Agreement; June 6, 1995 1st Funding Agreement; January 7, 1997 2 Funding Agreement for period May 1, 1996 April 30, 1997; -1- March 2, 1999 3rd Funding Agreement for period January 1, 1999 December 31, 1999; May 17, 2001 4 Funding Agreement for period January 1, 2001 to December 31, 2001; February 5, 2002 5 Funding Agreement for period January 1, 2002 December 31, 2002; March 12, 2003 6 Funding Agreement for period January 1, 2003 to December 31, 2003; February 3, 2004 7th Funding Agreement for period January 1, 2004 December 31, 2004; July 19, 2005 8th Funding Agreement for period ending December 31, 2006; and July 11, 2007 9 Funding Agreement for period ending December 31, 2007. October 21, 2008, Funding Agreement for period ending December 31, 2008. July 23, 2009, Funding Agreement for period ending December 31, 2009. All prior agreements between the parties, including but not limited to those listed above, collectively may hereafter be referred to as "the Prior Agreements." 3. Termination of the Prior Agreements: The parties hereby fully and unequivocally terminate and rescind all of the Prior Agreements, and each one of them individually and separately. The parties will supercede those Prior Agreements with a new single agreement that describes the services and duties to be performed by the PADA and the method by which the City will compensate the PADA for performance of those services and duties. 4. Agreements: a. The parties recognize and acknowledge services and duties of the PADA under the new agreement are different from the services and duties of PADA under the Prior Agreements. b. Each party hereby waives, releases, and agrees to hold the other party harmless from and against all claims, rights, causes of action, duties and obligations related to or in any way arising from or relating to the Prior Agreements or from the performance of the party under the Prior Agreements. c. The parties agree they shall enter into a new "Funding Agreement." The new Funding Agreement shall replace and supercede all of the Prior Agreements. The new Funding Agreement shall be substantially in the form as shown as the attached Exhibit A. d. The parties also recognize and agree that under and on the basis of the Prior Agreements, the PADA has made several claims against the City and the City has made several claims against PADA. Each party hereby forever settles, waives, releases and compromises all rights, obligations, claims, causes of action, and duties based upon the Prior Agreements or any part of them, or arising in any fashion or on any basis prior to the date of this agreement. This is intended to constitute an absolute and complete settlement, accord, satisfaction, compromise, release and -2- termination of all claims, rights, and causes of action of either party against the other, existing as of this date, whether known or unknown. 5. Relationship of the PADA and the City will remain that of independent contracting parties. The PADA will be responsible for its officers, members and employees and the City will be responsible for its officer and employees. While they are performing services pursuant to this agreement, neither one is the agent of the other. IN WITNESS WHEREOF, the City and the PADA have executed this agreement to take effect on the date and year first written above. CITY OF PORT ANGELES PORT ANGELES DOWNTOWN ASSOCIATION By By Kent Myers, Manager f -6 /P6 Title: Attest: Ja a Hurd, City Clerk Approv as to form: r William E. Bloor, City Attorney G Legal_ Backup\AGREEMENTS &CONTRACTS\2009 Agrmts &Contracts\PADA RESTRUCTURE AGREEMENT 081809 wpd (October 19, 2009) -3- mac . 1/1 IQ 5.7 FUNDING AGREEMENT THIS AGREEMENT is entered into this I st day of January ,2010,by and between the City of Port Angeles ("City") and the Port Angeles Downtown Association ("PADA"). WHEREAS,the City is authorized by state law to render local social,cultural,recreational, educational, and governmental services and to engage in economic development activities; and WHEREAS, as the commercial hub of Port Angeles, the downtown area is vital to the economic health of the City; and WHEREAS,City government derives sales tax revenues from downtown businesses,which revenues would be enhanced by efforts to strengthen and revitalize the downtown area; and WHEREAS, the City of Port Angeles and the Port Angeles Downtown Association have previously cooperated in various activities for the purpose of maintaining and strengthening the existing economic base of downtown Port Angeles; and WHEREAS, City and PADA cooperative efforts have included promotion of business and tourism in the downtown area, participation in the Washington State Main Street Program (MSP), the development, adoption and implementation of downtown sign regulations, downtown beautification projects, and other activities; and WHEREAS, the City and the PADA find it necessary and desirable to enter into an agreement describing the rights and obligations of each in their mutual efforts to strengthen,rebuild, and revitalize the physical, economic, social and cultural environment in downtown Port Angeles; NOW, THEREFORE, in consideration of the above representations and the promises and covenants set forth herein, the parties hereby agree as follows: I. PERFORMANCE BY THE PADA AND BY THE CITY. (1) EXECUTIVE DIRECTOR. In order to continue to participate in the Washington State Main Street Program and to broaden community knowledge and involvement in downtown and to further mutual efforts to strengthen, rebuild, and revitalize the downtown Port Angeles, the PADA will employ the services of a full-time executive director. The Executive Director will assure compliance with the Washington State Main Street Program and will support the PADA and City relationship by providing assistance in directing PADA organizational efforts, facilitating regularly scheduled meetings of the membership, coordinating activities, and the development and distribution of newsletters and other communication materials to the membership and others in the community. (2) COMMUNICATION. The PADA will continue to develop and implement programs and activities to broaden community knowledge about and involvement in the efforts to revitalize downtown Port Angeles. -1- I I (3) PROMOTION. The PADA will continue to develop, coordinate, and implement programs and activities to promote, market, and enhance economic development and employment opportunities in downtown Port Angeles. The City will facilitate such efforts by providing in-kind services as appropriate on a case-by-case basis as approved by the City Manager.The PADA shall use its resources to market the facilities and capabilities of the City to new and existing businesses with the goals of increasing City revenues and employment opportunities for City residents. (4) DESIGN. The PADA will continue to develop and implement measures to improve the design qualities and physical appearance of downtown Port Angeles, including building facades, window displays, pedestrian lighting, signage and all other elements that contribute to the visual message about downtown Port Angeles. The PADA will coordinate with the City on design measures. The City will support the PADA's efforts by providing a facade improvement program and by other programs as may be implemented by the City from time to time. The City's financial support shall be subject to the appropriation of funds in the City's annual budget. (5) MAIN STREET PROGRAM. The PADA will continue to be responsible to maintain active membership and participation in the Main Street Program. Through the Main Street Program, the PADA will provide assistance to existing businesses for expansion and will recruit new businesses in the downtown commercial core. (6) PARKING MANAGEMENT. The City will manage,allocate spaces,collect receipts for, and enforce applicable ordinances in the City-owned, off street parking lots in the downtown area and the PBIA. To assist the City in collecting revenue, the PADA will report to the City monthly on new business in the downtown area and its suggestions for current and future parking requirements. (7) ADDITIONAL PARKING FACILITIES. In the event the compensation to the PADA under this agreement in any calendar year exceeds$45,000 under section IV(3) or $15,000 under section IV(4), the PADA shall devote the excess exclusively to the acquisition and construction of new parking facilities for the benefit of the PBIA;provided however,nothing shall prevent the PADA, in its discretion, from devoting other revenue under this agreement to the acquisition and construction of new parking facilities for the benefit of the PBIA. All amounts subject to this section shall be shown in a separate line item in the PADA's budget. (8) MAINTENANCE OF PARKING LOTS. The PADA will maintain the City- owned off street parking lots in the downtown area and the City's Parking and Business Improvement Area. At a minimum, such maintenance will include: (a) Sweeping to include blowing out all corners and around parking stops; (b) Pavement repairs to include patching and crack sealing; (c) Seal coating; (d) Striping and pavement markings every three years on average; (e) Parking stop replacement or repair; -2- (f) Ice and snow response; (g) Customer complaint response for issues such as dumped garbage, couches, etc; (h) Maintain landscaping. The City will work together and consult with the PADA in order to plan, control,regulate and amend,as appropriate, the PBIA and parking within the PBIA. The parties agree and understand that PADA has no obligation to maintain parking within "The Gateway." (9) GRANT-FUNDED ACTIVITIES. The PADA will continue to find, obtain and implement grants to be used to fund a marketing survey/study of the downtown area, to provide technical, clerical and staff support for the development of a downtown building survey/inventory, and to provide technical, clerical and staff support to develop a downtown business inventory/directory. II. REPORTING. (1) The PADA shall maintain accounts and records that accurately reflect the revenues and costs for the activities under this agreement. These financial records,and all records related to the performance of this agreement,shall be available for City inspection and audit at any time requested by the City. (2) The PADA shall provide the City with written reports monthly, fully describing what work has been performed pursuant to this agreement, and including a current statement of revenues and costs, and also including the Washington Downtown Revitalization Services Managers Quarterly Report as submitted to the State of Washington consistent with the Washington State Main Street Program. (3) The PADA's Executive Director shall appear before the City Council at least quarterly to report on the PADA's activities and planned future activities pursuant to this agreement and to answer questions. (4) The PADA will cooperate with the City by facilitating audits by the City of PADA finances every year during the first quarter of the year and at other times as designated by the City. The PADA shall use its best efforts to economize on overhead expenses to the maximum extent feasible in providing the services to be performed pursuant to this agreement. (5) The PADA shall provide the City with its annual budget, including current salaries and benefits for all employees and a listing of each fund and fund balance. -3- III. OTHER TASK ORDERS. From time to time,the City may add task orders to this contract for specific projects involving economic development and commercial redevelopment activities. The PADA shall not perform any such work until given a specific task order that authorizes such work and describes the scope of work to be performed and the project budget. IV. COMPENSATION. For services performed by the PADA under this agreement, the City shall pay compensation to the PADA as follows: (1) An annual amount of twenty thousand dollars ($20,000.00), to be paid in equal quarterly installments;provided,however,that this paragraph shall not be construed as (1) binding the City to expend in any one calendar year any sum in excess of appropriations made by the City in its budget process for the purposes of this agreement for that calendar year or(2)obligating the City to further expenditure of money in excess of such appropriations. (2) The full amount collected by the City from that lease agreement between the City and First Street Plaza L.L.C., a limited liability company of the State of Washington relating to "parking facilities" located in the Port Angeles downtown central business area. (3) The full amount collected by the City from assessments imposed under the City's PBIA. The PADA recognizes and agrees that the monies collected by the City under the ordinance creating the PBIA are subject and remain subject to limitations as to purposes of spending. PADA agrees and understands that monies from the PBIA that were previously transferred to the PADA are to be used only for purposes authorized by state law and by PBIA ordinances. The PADA covenants and agrees that it will not use those monies for any other purposes. For purposes of this provision, "assessments" do not include the initial $7,500 per-parking-space fee required by PAMC 14.40.140(B). (4) The full amount collected by the City from sales of long-term parking decals within the City's PBIA. (5) Compensation due under paragraphs (2), (3) and (4) above shall be paid by the City to the PADA monthly. (6) In the event the City's allocation of parking spaces or the City's ordinance setting the rates for the assessments collected above is modified,either party may request that the terms of this section IV be renegotiated. V. RELATIONSHIP. The relationship of the PADA and the City shall be that of independent contracting entities. The PADA will be responsible for its officers, members and employees, and the City will -4- be responsible for its officials and employees, while they are performing services pursuant to this agreement. Neither party is or shall represent itself to be an agent of the other. VI. HOLD HARMLESS AND INDEMNIFICATION. Each party shall indemnify, defend, and hold harmless the other party, its officers, employees and agents,from any and all claims,injuries,damages,losses or suits,including attorney's fees arising out of or in connection with the performance of this agreement. VII. TERM AND OPTION FOR EXTENSION. The initial term of this agreement shall be 5 years beginning January 1, 2010. The PADA is hereby granted an option to extend the term of this agreement for an additional term of 5 years. This option may be exercised only if the PADA throughout the initial term of this agreement and at the time of exercise of the option has fully performed all obligations of the PADA under this agreement and complied with all terms of this agreement. To exercise this option,the PADA must give to the City written notice of the exercise of this option not earlier than January 1,2013 and not later than March 1,2013. This option shall terminate and expire on March 2, 2013, if notice in compliance with the preceding sentence is not given to the City. VIII. NON-DISCRIMINATION. (1) The PADA shall conduct its business in a manner which assures fair, equal and non-discriminatory treatment of all persons, without respect to race, creed or national origin, and, in particular: (2) The PADA shall maintain open hiring and employment practices and will welcome applications for employment in all positions, from qualified individuals who are members of minorities protected by federal equal opportunity/affirmative action requirements; and, (3) The PADA shall comply with all requirements of applicable federal, state or local laws or regulations issued pursuant thereto,relating to the establishment of non-discriminatory requirements in hiring and employment practices and assuring the service of all persons without discrimination as to any person's race, color, religion, sex, Vietnam era veteran's status, disabled veteran condition, physical or mental handicap, or national origin. IX. TERMINATION FOR CAUSE. This agreement may be terminated by either party for breach or default in performance by the other party. No such termination shall be effective unless the terminating party gives to the other at least (30) days' written notice of the breach or default. If, during the notice period,the defaulting party cures its defective performance,the contract will not be terminated. The non-defaulting party may also withhold payment of any payments due and owing until such time as the defaulting party complies with or cures defects in the performance of this agreement. -5- i I X. ENTIRE CONTRACT. The parties agree that this writing is the complete expression of the terms of their agreement, and any oral representation or understanding not incorporated herein is excluded. Further, any modification of this Contract shall be in writing and signed by both parties. IN WITNESS WHEREOF, the City and the PADA have executed this agreement to take effect on the date and year first written above. CITY OF PORT ANGELES PORT ANGELES DOWNTOWN ASSOCIATION By �r By Title / Title Attest: J ssa Hurd, City Clerk Approved as to form: William E. Bloor, City Attorney G:\L.egal_Backup\AGREEMENTS&CONTRACTS\2009 Agrmts&Contracts\PADA.Punding Agmt.102009,wpd (October 21,2009) -6- i