The Friends of the Rutherford Pool are asking the Ypsilanti City Council to approve a document outlining the pool’s ownership and operation between the two parties.

Without the council’s approval of the document prepared by the Friends, they say they cannot save the aging public pool on South Congress Street.

But not everyone in the city is agreeing to all of the Friends’ terms, laid out in what's called a memorandum of understanding. The City Council will discuss the issue at its meeting tonight.

The Friends group is trying to fully fund a $600,000 rebuild of the nearly 40-year-old facility and continue operating it in the future without cost to the city. The Friends recently established themselves as a nonprofit in Michigan and have filed their paperwork for federal 501c3 exemption.

The memorandum is needed so the Friends can establish a fund with the Ann Arbor Community Foundation to capture $170,000 in donations and grants it has raised for the new facility. The foundation's trustees have approved the fund contingent upon a memorandum with the city.

City Manager Ed Koryzno recommended removing a section of the memorandum stating that the city would employ the pool’s staff. The city currently employs the workers, but is reimbursed by the Friends from entrance fee revenue.

Attorney Heidi Salter-Ferris, whose husband and law partner, Don Ferris, drew up a memorandum of understanding, said it is essential that the city be the employer of record for several reasons.

The city receives governmental immunity, meaning in the event of an injury it can only be sued on grounds of reckless disregard. If the Friends owned the pool and someone was injured, a party suing would only have to prove negligence.

Salter-Ferris said reckless disregard is a “much higher” burden of proof. If the city didn’t technically own the pool and employ the staff, the Friends would be unable to obtain insurance required to run the pool, she said.

The Friends talked to two pool insurers and was told visitors would have to sign waivers upon entering, Salter-Ferris said. Because many kids come to the pool without a legal guardian, that wouldn’t be possible.

“We’ve been told by insurers that they wouldn’t write insurance for us,” she said. “This is going to decide whether or not we get a pool.”

Koryzno was not immediately available for comment.

Council Member Mike Bodary said concerns over owning a pool or employing its staff are due to the city’s poor financial outlook. But he also said that the pool staff are technically city employees now, though they are paid with Rutherford Pool receipts, and it makes sense to continue that arrangement.

He also said the city would be affected by a lawsuit no matter who employed the staff because the city owns the property on which the pool sits. "I don’t think the city can be out of the pool business regardless," he said. "It’s on city property, that pool sits in Recreation Park, so it's always going to be ours.”

Council Member Brian Robb said he would be more comfortable with a memorandum of intent. He said the memorandum of intent is less formal and would still allow the Friends to capture the funds through the Community Foundation.

He said the City of Ann Arbor and the Ann Arbor Skatepark Action Committee signed a memorandum of intent under similar circumstances and the skatepark group was able to capture their donations.

“I don’t think we’re to a point where we need a memorandum of understanding,” Robb said. “It will make this live with the Ann Arbor Community Foundation so people can donate tax-deductible gifts.”

The city ran the now 40-year-old pool until its parks and recreation department closed in 2003. Since then, the Friends and the city have been in a “mutual management arrangement.” The Friends trimmed $10,000 to $20,000 from the cost of maintaining and managing the pool, which costs $50,000 to $60,000 annually, though the city has contributed for utilities and other minor expenses.

Per the memorandum, the city would help pay for utilities and closing the pool for the season in summer 2011, and the Friends would assume those responsibilities next summer. Salter-Ferris said a new pool would decrease the maintenance and utility costs associated with its operation.

The memorandum also states that the Friends would raise an additional 10 percent above the cost of rebuilding the pool for an endowment and an additional 5 percent to serve as a maintenance fund. The rebuild of the pool, deck and demolition alone would cost around $523,000. The remainder of the money raised would buy fencing and other amenities.

“Not having that part in the memorandum of understanding could significantly affect the ability of the friends to carry on,” he said. “If they don’t have that, they’re doomed."

Tom Perkins is a freelance reporter for AnnArbor.com. Reach the news desk at news@annarbor.com or 734-623-2530.