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Trails Amenity ProgramAGENDA ITEM MEETING DATE: January14, 2020 TO: Honorable Mayor and Councilmembers FROM: Kim Szczurek, Administrative Services Director Andy Morris, Town Attorney SUBJECT: Revisions to Amenity Sponsorship Program Agreement with Truckee Trails Foundation r, APPROVED BY eff Loux, To%kn Manager RECOMMENDATION: Council direct staff whether to remove indemnification language from the Trails Amenities Adoption Program Agreement with Truckee Trails Foundation prior to execution by Town Manager. DISCUSSION: On December 10, 2019 the Town Council authorized the Town Manager to execute the Trail Amenities Adoption Program Agreement with Truckee Trails Foundation (Attachment A). While Councilmember Commendatore commented on the agreement's indemnification language (and whether it is necessary), the Council did not take any action to amend or remove it. Since the December Council meeting, the Truckee Trails Foundation has formally requested that the indemnification be removed from the Trails Amenities Adoption Program Agreement (see attached letter, Attachment B). Staff recommends that the Council provide direction regarding whether or not the indemnification language should be included in the agreement. FISCAL IMPACT: While there is no immediate fiscal impact, removal of the indemnification clause could expose the Town up to additional liability should issues occur with the plaques (such as an injury caused by an improperly installed plaque). PUBLIC COMMUNICATIONS: None beyond standard agenda postings and communication with Truckee Trails Foundation. ATTACHMENTS: Attachment A: Trails Amenities Adoption Program Agreement with Truckee Trails Foundation Attachment B: Letter from Truckee Trails Foundation Page 1 of 1 Town Council David Tirman, Mayor David Polivy, Vice Mayor Jessica Abrams, Council Member Anna Klovstad, Council Member Tony Commendatore, Council Member December , 2019 Allison Pedley, Executive Director Truckee Trails Foundation P.O. Box 1751 Truckee, CA 96160 Re: Letter Agreement for Trail Amenities Adoption Program Dear Ms. Pedley: Attachment A Department Heads Jeff Loux, Town Manager Andy Morris, Town Attorney Robert Leftwich, Chief of Police Kim Szczurek, Administrative Services Director Judy Price, Communications Director/Town Clerk Daniel Wilkins, Public Works Director/Town Engineer Denyelle Nishimori, Community Development Director PARTIES: This letter shall be our agreement ("Letter Agreement") regarding the establishment and operation by Truckee Trails Foundation, a California corporation ("TTF"), of a trail amenity sponsorship program ("Program") for trails managed by the Town of Truckee ("Town"). TTF shall be an independent contractor with regard to this Letter Agreement and is not an employee of the Town. PROGRAM GUIDELINES: Town shall allow TTF to install plaques on trailside amenities on trails managed by the Town of Truckee, as set forth in the Amenities Adoption Program Guidelines ("Guidelines") attached hereto along with its attachments as Exhibit "A" and incorporated herein by reference. TTF shall operate the Program strictly in accordance with the Guidelines, and shall not alter the Guidelines without the Town's written consent. STANDARD of CARE: TTF shall install all amenity plaques in a skillful and competent manner, avoiding damage to the amenity to which each plaque is affixed. TTF shall not install plaques on rocks or trees, and shall not damage or remove rocks, trees, or any portion of a trail. HANDLING OF DONATIONS: TTF shall remit to Town all donations received as part of the Program, after subtracting the cost of plaques and TTF's administrative costs. TTF shall provide Town with a written explanation of its administrative cost schedule for the Program, and shall provide Town with written updates when and if the cost schedule changes. Town shall use any Program -related donations received exclusively for trail building, trail maintenance and repair, replacement of trail amenities, acquisition of land and/or easements for trails, and other trail -related purposes. 10183 Truckee Airport Road, Truckee, CA 96161-3306 www.townoftruckee.com 530-582-7700 1 email: truckee@townoftruckee.com Printed on recycled paper. Page 2 TERMAND TERMINATION: Either TTF or Town may terminate this Letter Agreement at any time with or without cause. INDEMNIFICATION: To the fullest extent permitted by law, TTF shall defend, indemnify and hold the Town, its directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of TTF, its officials, officers, employees, subcontractors or agents in connection with the Program or this Letter Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys' fees and other related costs and expenses. TTF's obligation to indemnify shall survive expiration or termination of this Letter Agreement, and shall not be restricted to insurance proceeds, if any, received by the Town, its directors, officials, officers, employees, agents, or volunteers. LAWS & REGULATIONS: TTF shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements. By its signature hereunder, TTF certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. Finally, TTF represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment in violation of state or federal law. As provided for in the indemnity obligations of this Letter Agreement, TTF shall indemnify Town against any alleged violations of this paragraph, including, but not limited to, any fines or penalties imposed by any governmental agency. GOVERNING LAW, VENUE, GOVERNMENT CODE CLAIM COMPLIANCE, ATTORNEYS FEES: This Letter Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Letter Agreement, the action shall be brought in a state or federal court situated in Nevada County, State of California. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, TTF must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the Town. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, TTF shall be barred from bringing and maintaining a valid lawsuit against the Town. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Letter Agreement, the prevailing party shall be entitled to recover all reasonable fees and costs incurred, including reasonable attorney's fees, as determined by the court. ASSIGNMENT, AMENDMENT: TTF shall not assign, sublet, or transfer this Letter Agreement or any rights under or interest in this Letter Agreement without the written consent of the Town, which may be withheld for any reason. This Letter Agreement may not be modified or altered except in writing signed by both parties. Except to the extent expressly provided for in the termination paragraph, there are no intended third party beneficiaries of any right or obligation of the Parties. Town of Truckee Truckee Trails Foundation Letter Agreement re Trail Amenity Adoption December 2019 Page 3 ENTIRE AGREEMENT, CONSTRUCTION AND CAPTIONS: This is an integrated Letter Agreement representing the entire understanding of the parties as to those matters contained herein, and supersedes and cancels any prior oral or written understanding or representations with respect to matters covered hereunder. Since the Parties or their agents have participated fully in the preparation of this Letter Agreement, the language of this Letter Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. The captions of the various paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Letter Agreement. If you agree with the terms of this Letter Agreement, please indicate by signing and dating where indicated below. Please mail two copies with original signatures to: Town of Truckee, 10183 Truckee Airport Road, Truckee, CA 96161, Attn: Sarah Ring. A fully executed copy will be returned for your records. TOWN OF TRUCKEE Approved by: Approved as to Form: Jeff Loux Andrew Morris Town Manager Town Attorney TRUCKEE TRAILS FOUNDATION Reviewed and Accepted by Truckee Trails Foundation Signature Signature Name Name Title (Must be Chairperson of the Board, Title (Must be Secretary, Assist. Secretary, President, or Vice President) Chief Financial Officer, or Treasurer) Date Date Town of Truckee Truckee Trails Foundation Letter Agreement re Trail Amenity Adoption December 2019 TRUCKEE TRAILS = EST. 2002 = EXHIBIT A TRAIL AMENITY ADOPTION PROGRAM GUIDELINES FOR ACCEPTING DONATIONS FOR TRAIL AMENITIES AND PLAQUES The Trail Amenity Adoption Program provides civic -minded individuals the opportunity to make a donation to trails that will also allow for the recognition of an organization, business, or loved one in a unique and lasting manner. & v 1. Members of the public will have the opportunity to "adopt" trail amenities on trails managed by the Town of Truckee. Adoptable amenities include existing pet waste bag stations, benches, picnic tables, kiosks, trash cans, trail bridges, the Glenshire trailhead log exhibit, and other amenities, structures, or art installations as approved by the Town of Truckee. A complete list of trail amenities can be found in Appendix A. 2. A Trail Amenity Adoption Agreement will be used to clarify the understanding between the Donor, Truckee Trails Foundation, and Town of Truckee, and will include the amenity to be adopted, adoption fee, plaque details, and additional agreements regarding the amenity adoption. See Appendix B. 3. The adoption fee will cover the cost of a (4"x 6") commemorative plaque. To maintain consistency, plaques must be arranged through the Truckee Trails Foundation. Commemorative plaques will be installed on trail amenities. Guidelines for plaque inscriptions can be found in Attachment 1 of Appendix B. OLIN 4. Plaques are guaranteed for life against manufacturer defects, but it will be up to the Donor to fund the replacement of the plaque due to vandalism or theft. 5. The Donor agrees not to add any additional items to or beside the amenity including but not limited to flowers, photographs, etc. 6. Trail amenity donations received by the Truckee Trails Foundation, minus the cost of the plaque and administrative fee ($335 total), shall be placed in a special revenue and expenditure account with the Town of Truckee. This fund shall be used exclusively for trail building expenses, trail maintenance, repair, replacement of trail amenities, land acquisitions necessary for trail building, and other trails -related expenses on trails managed by the Town of Truckee. As plaque costs are subject to market price fluctuations, the plaque and administrative fee shall be evaluated annually and may be increased if mutally agreed to by the Town and the Truckee Trails Foundation. 7. The selected amenity is the property of the Town of Truckee. The Town of Truckee will maintain the amenity only for its expected life cycle. If the amenity deteriorates due to age or other wear and tear, or damage by others, it may need to be removed in the interest of public safety. The Town of Truckee also reserves the right to remove and/or relocate the amenity if it interferes with maintenance or construction activities. 8. In the event that the amenity must be permanently removed, the Town of Truckee will seek aa alternative location, and the original donor will have the opportunity to re -adopt the amenity at replacement cost and mount a new plaque, unless the program has been discontinued. 9. The Truckee Trails Foundation will be responsible for installing plaques on the amenities. Plaques will be installed bimonthly during the trails season: April, June, August, & October. 10. The Truckee Trails Foundation will inventory, date, and maintain a listing of all existing amenities and plaques that have been installed. The inventory will be provided to the Town on an annual basis. 11. The Town Manager of the Town of Truckee will be the final source of appeal for any disputes regarding this program. Appendix A - 2019 Trail Amenity Inventory Location AmenitylD Fee Location AmenitylD Fee Glenshire-Legacy Trailhead Log1 $26,000 Legacy Trail Pet10 $1,000 Glenshire-Legacy Trailhead Bike1 $2,000 Legacy Trail Pet11 $1,000 Legacy Trail Benchl $2,400 Legacy Trail Pet12 $1,000 Legacy Trail Bench2 $2,400 Legacy Trail Pet16 $1,000 Legacy Trail Bench3 $2,400 Glenshire-Legacy Trailh Tablel $3,500 Legacy Trail Bench4 $2,400 Glenshire-Legacy Trailh Tablet $3,500 Legacy Trail Bench5 $2,400 Legacy Trail Table3 $3,500 Legacy Trail Bench6 $2,400 Legacy Trail Table4 $3,500 Legacy Trail Bench7 $2,400 Legacy Trail Table5 $3,500 Legacy Trail Bench8 $2,400 Legacy Trail Bench9 $2,400 Brockway Road Trail Pet13 $1,000 Legacy Trail BenchlO $2,400 Brockway Road Trail Pet14 $1.,000 Legacy Trail Benchll $2,400 BrockN,,,ay Road - a.. Pets 5 ' .,000 Legacy Trail Benchll $2,400 Brock\ ay Road -rail B dge $1 0,000 Legacy Trail Bench13 ;-,'OC' Brock\ ay Road -rail K >sk3 $3,500 Cga. Trail b nc 114 $2, 0( .egac' T �;' Benc 115 ,,,400 Frishman Hollow Kiosk5 $3,500 .eg? ✓ Tr,:' Bench16 $2,400 Frishman Hollow Bridge3 $190,000 Legacy Trail Bench17 $2,400 Legacy Trail Bench18 $2,400 Trout creek Bench19 $2,400 Legacy Trail Bridgel $750,000 Trout creek Bench20 $2,400 Legacy Trail Bridget $75,000 Trout creek Benchll $2,400 Legacy Trail Garbagel $3,900 Trout creek Bridge4 $230,000 Legacy Trail Garbage2 $3,900 Trout creek Garbagell $3,900 Legacy Trail Garbage3 $3,900 Trout creek Garbage12 $3,900 Legacy Trail Garbage4 $3,900 Trout creek Garbage13 $3,900 Legacy Trail Garbage5 $3,900 Trout creek Garbage14 $3,900 Legacy Trail Garbage6 $3,900 Trout creek Garbage15 $3,900 Legacy Trail Garbage7 $3,900 Trout creek Garbage16 $3,900 Legacy Trail Garbage8 $3,900 Trout creek Kiosk4 $3,500 Legacy Trail Garbage9 $3,900 Trout creek Pet17 $1,000 Legacy Trail GarbagelO $3,900 Trout creek Pet18 $1,000 Legacy Trail Kioskl $3,500 Trout creek Pet19 $1,000 Legacy Trail Kisok2 $3,500 Trout creek Pet20 $1,000 Trout creek Pet21 $1,000 Legacy Trail Pett $1,000 Trout creek Pet22 $1,000 Legacy Trail Pett $1,000 Legacy Trail Pet3 $1,000 Legacy Trail Pet4 $1,000 Legacy Trail Pet5 $1,000 Legacy Trail Pet6 $1,000 Legacy Trail Pet7 $1,000 Legacy Trail Pet8 $1,000 Legacy Trail Pet9 $1,000 Ida Way °ay oe'1P Qa FURNTYPE Coyote Moon ° a Glenshre Dr �F Golf Cou ast e e 1, .fP 9°tuner Loop a No Other W ay Il I p er St yy Q m tiieW 3�y Riverview I • Bike Rack r bacµ �e 51 p °<c ERly I, 111 U,c`t 4° y v r0 se 9 r`� oeiye` �� `11 ci �` o )` Truckee River eaa Oay y 3 :. `�`� -- • Bridge Ridge Rd Lake Park 11 cµ RYt°Y Ct c _r c Be, - r ei St r \deo R� Estates Dr _ '_I, `� i__ 1 `� �, I v Donner Pass Rd River'' SE J '!C c Reynold Vd aY '� • Kiosk i atter Dr y u 'a o a \cCt Label o `\`� o U1 Sitzmark Wdy @ o Pa edCO y China GaF� v Sara Bear Ln o q y hinter Creek" Lynn Plc 71r Sailpta°e� • Log Exhibit y ata m` °Rd o a �� Goncwb yet $ JetlerY Pine Ftd m � RoY Mougle Ln o al Gr.,y s °coq, O Pet Waste Station s Net Torrey Pine Rd n Red Fir Rd 'A°, U.. wng White Fir R .Soi reW t Indian Pine Rd De .��`\ TrULkee-Table Picnic Table o Fq O u a d RdO C` a �e Ra OH Greenwood o ° y ` �a Town Maintained Trails GollC tub 1 °04 roti•. -.nom_ „'y.___—_—_—____—�' o , U 9 `---- Thor_—_—_—_—_ oy Q` yy __-- -- —_- _ _ ° ` n Cavalier Kite reyanneWa`1 1' F la ce r Golden Pine Ra Sources: Esri, HERE, Garmin, USGS, Intermap, INCREMENT P, NRCan, Esri Japan, METI, Esri China (Hong Kong), Esri Korea, Esri (Thailand), NGCC, (c) Samuel Or 8 Ge osisN Basel PI OpenStreetMap contributors, and the GIS User Community Looe µoat 3 0° v mil I n Bdyd W c Legao9 11 vd�Way O O` ri a° O v U `T $� Fairway o Parµ eaµwood Ln S L I F gL T4�tlrd site Or Ura -_ —` Caleb Dr Settt ers c do � Dr C, i�' % i _` eOr I a°1 sy G\e°srl` Ry J I Goa�\ac c _ Olympic Blvd Polaris 1 ecr i Highland Ave Gt � \1 ervlew � � i E Ridge\d Ct R lv - 2a C / c ul\\ O, aye Or \ Vn1n r, a; -.lire Glen shirt Or oe'1P FURNTYPE Coyote Moon ° a Glenshre Dr Golf Cou ast e e • Bench Ra r"g501a`�� 6, Sth er St m tiieW 3�y Riverview I • Bike Rack bacµ �e 51 p °<c ERly River View Or O Sports Park 4° r0 se 9 r`� oeiye` �� 1 Y Valle Rd Valley Meadow �` o )` Truckee River Nic° y 3 :. `�`� -- • Bridge Ridge Rd Lake Park Regional Park _r c ,,k Glen Rd Forest Ln o - r ei St r \deo R� Estates Dr _ '_I, `� i__ 1 `� �, I —_—_—_ —_—_—_—_—_—_—_—_—_—_ O Garbage Enclosure Donner Pass Rd River'' SE oe c Reynold Vd aY '� • Kiosk atter Dr y P 1 `� I o `\`� n spring Ln 5` v Sara Bear Ln o q y hinter Creek" Lynn Plc 71r Sailpta°e� • Log Exhibit Pay Jeri Ln `� College Tri\� yet $ JetlerY Pine Ftd m � ` °coq, O Pet Waste Station . Torrey Pine Rd n Red Fir Rd 'A°, � � aye{a hdnae'/e White Fir R .Soi reW t Indian Pine Rd De .��`\ TrULkee-Table Picnic Table o �c n Sµy� o u a d RdO C` a �e Ra Aiilon n "Rtl .0ct�it o �sValley �3` 'a�� otumbine ° �`� Town Maintained Trails Q Purple Sage 1 °04 roti•. -.nom_ „'y.___—_—_—____—�' ' 9 `---- Thor_—_—_—_—_ _ N I d I __-- -- —_- _ _ _—_—_—_oc___---_—_—_—_—_—_—_' _—_—_—___—_—_—_—__ _ _ _ _ _ _ . _ , _ — _ _ _ _ _ �y�s _ _ _ Sri°efFir Or `do OPOSdO F la ce r Golden Pine Ra Sources: Esri, HERE, Garmin, USGS, Intermap, INCREMENT P, NRCan, Esri Japan, METI, Esri China (Hong Kong), Esri Korea, Esri (Thailand), NGCC, (c) 8 Ge osisN OpenStreetMap contributors, and the GIS User Community Appendix B TRUCKEE TRAILS = ESI. 2002 = Trail Amenity Adoption Agreement Name Date Address City State Zip Code Phone Email I would like to adopt a (trail amenity of choice) First choice of location, if applicable Second choice of location, if applicable Third choice of location, if applicable As a participant in the Trail Amenity Adoption Program, I agree to the following: 1. 1 will pay a trail amenity adoption fee of $ to the Truckee Trails Foundation. 2. 1 will not add any additional items to the chosen trail amenity including but not limited to flowers, photographs, etc. 3. If the plaque is damaged or stolen after one year, I may pay the replacement cost of the plaque if I desire to have the plaque replaced. By signing this document, I also understand and agree to the terms outlined below: 1. My adopted trail amenity is the property of the Town of Truckee. The Town of Truckee will maintain my adopted trail amenity only for its life expectancy. If my adopted amenity deteriorates due to age or other wear and tear, or damage by others, it may need to be removed in the interest of public safety. 2. If my adopted trail amenity must be replaced due to wear and tear or damage, I will have the opportunity to re -adopt the amenity at replacement cost and mount a new plaque, unless the amenity adoption program has been discontinued. 3. The Town of Truckee reserves the right to remove and/or relocate my adopted amenity if it interferes with site safety, maintenance, or construction activities, and/or to discontinue the Trail Amenity Adoption Program at any time. 4. In the event that my adopted trail amenity must be permanently removed, the Town of Truckee will seek an alternative location for the amenity and I will have the opportunity to re -adopt the amenity for the replacement cost of the plaque, unless the amenity adoption program has been discontinued. 5. 1 acknowledge that the text of the plaque must consist of one of the options listed in Attachment 1 to this Agreement. I acknowledge that I have read and agree to the above terms and conditions of the Trail Amenity Adoption Agreement. Signature Printed Name Pleases specify desired plaque inscription in the 4 x 6 space elow. Plaque inscription approved by the Truckee Trails Foundation Date Initials Date plaque ordered Date plaque mounted on trail amenity Attachment 1 All plaques will have standard wording consisting of one of the following ("Name" may be the name of a person or business): "Dedicated to (Name)"; "Donated by (Name)"; "In Memory of (Name)"; "In Loving Memory of (Name)"; "Dedicated to the Memory of (Name)"; "Given in Loving Memory of (Name)"; "In Celebration of (Name)"; "In Honor of (Name)"; "In Honor and Memory of (Name)"; "In Tribute to (Name)"; "In Appreciation of (Name)"; or "In Grateful Appreciation to/of (Name)". �f The following two options may be applied to the standard wording selection: 1) Birth and death dates (full dates or just years): 2) Inclusion of Title and/or Rank and/or United States Military affiliation to the name. o� WW' —ft TRUCKEE TRAILS kff Dear Truckee Town Council: January 2, 2020 I am writing to respectfully request that the "Indemnification" section be deleted from TTF's Letter Agreement for Trail Amenities Adoption Program with the Town of Truckee. After discussion with the TTF board, TTF believes that the indemnity clause should be deleted for the following reasons: The essence of the Amenities Program is that TTF will collect donations for the town amenity adoptions, use a portion of the donations to install donor plaques along town trails, and remit the balance of the donations to the town to be used for trail projects. In sum, TTF is providing a charitable service that will drive funding to the town so that the town can build and maintain trails that are used by the public. Given that TTF is providing a good -faith charitable service to the town for public benefit, it is unfair for the town to request that TTF take on the serious and expensive burden of indemnifying the town from any issues that arise out of the Amenities Program. • TTF is a small non-profit organization and cannot afford the risk and burden of the town's indemnification request. Among other things, it is unclear if TTF's existing insurance policy will cover this request, and TTF's volunteer board members are uncomfortable with the risk that the town's indemnification request may present to themselves personally. • The town likely has immunity for most of the types of claims from which they are requesting protection from TTF via the indemnification clause, so the clause is unnecessary to protect the town's interests. Furthermore, TTF has established a reputation in the area for doing high quality trails work, and that reputation is based on years of good works, so it is very unlikely that the town would ever need the requested protection in any event. • Under the Letter Agreement for Trail Amenities Adoption Program, the town has substantial control over TTF's Amenities Program work, and TTF agrees to provide high quality work. If, for any reason, the town is dissatisfied with TTF's work, the town can terminate the agreement at any time. I appreciate your consideration of this request. Sincerely, Allison Pedley,Yxecutietor Truckee Trails Foundation Post Office Box 1751 Truckee, CA 96160 info@truckeetrails.org