FISCAL IMPACT/FINANCING
If approved, the agreement will require the Harbor Area Farmers Market to pay the city an amount equal to 1% of total income or $75 per operating day, whichever total amount is greater. On average, the farmers market will pay the city $3,900 per year.
All revenue will be entered into Rent & Concessions account # 111-0000-362.10-00.
CONCLUSION
Upon Council approval, staff will proceed with the recommended actions.
Respectfully submitted,
RICARDO REYES
City Manager
CYNTHIA NORZAGARAY
Director of Parks and Recreation
ATTACHMENT(S)
A. License Agreement to use Salt Lake Park
2 LICENSE AGREEMENT TO USE SALT LAKE PARK
This Agreement is made and entered into this 12th day of May, 2026, between the City of Huntington Park ("City") and the Harbor Area Farmers Markets, an agency of the South Coast Interfaith Council, a California non-profit corporation ("Licensee"). City hereby grants Licensee a non-exclusive revocable license ("the License") to use, on a weekly basis, the parking lot along the third base line of the ball diamond immediately east of the Recreation Center in Salt Lake Park, on the terms and conditions stated below, pursuant to existing actions of the City Council of the City of Huntington Park. 1) TYPE OF USE - Licensee shall use the parking lot for the sole purpose of conducting a Certified Farmers Market, and for no other purpose. All sales stalls and market area shall be located in the above-described parking lot.
Each seller at the market shall be regulated by and conform to all applicable regulations in Title 3, Article 6.5 of the California Code of Regulations and subsequent amendments thereto, and other applicable regulations and laws of the State of California, the County of Los Angeles, and the City of Huntington Park.
In its use of Salt Lake Park, Licensee and sellers shall not in any manner interfere with or impede persons holding local area vending permits. In addition, Licensee and sellers shall not interfere with or impede accessfor emergency vehicles.
2) TIME OF USE - Licensee shall be permitted to use the designated parking lot on Wednesdays between the hours of 8:30 am and 1:30 pm for sales.
Setup for the market shall take place between 6:30 and 8:30 am, and breakdown shall take place between 1:30 and 2:30 pm. Licensee has an option to modify hours during the 2022 summer due to the Covid19 pandemic between 7:00 am and 12:00 pm for sales. Setup for modified hours shall take place between 5:00 am 7:00 am, and breakdown shall take place between 12:00 pm and 1:00 pm. At the end of the day, the market area shall be free from all equipment, debris, trash or any other items associated with the event. Failure to abide by said hours of operation or any of the above-mentioned conditions shall be considered a violation of this Agreement and grounds for its revocation.
3) MARKET COMPOSITION - The Licensee shall be required, at a minimum, to provide on a weekly basis at least 12 vendors on each market day. The target composition of the market shall be as follows: 70% shall be dedicated to the sale of produce, and 30% shall be dedicated to the sale of other specialty (“Non-Ag”) items such as seafood, popcorn, hot food, baked goods and other pre-packaged foods. Crafts and industrial items are not included.
4) EXTENSION TERM - The extension term of this License agreement is for ATTACHMENT “A”
2 three years commencing on May 17, 2026, and terminating May 17, 2029.
At the City’s sole and absolute discretion, the term may be extended for up to two (2) years at a time. Prior to any such extension, an annual review shall be conducted by the Huntington Park Parks & Recreation Department.
5) REVOCATION, SUSPENSION FOR CAUSE - This License Agreement may be immediately revoked or suspended by the City of Huntington Park at any time that it is determined that the Licensee or any seller has violated any condition or requirement of this Agreement or any applicable code, law, rule or regulation, or that the City has evidence of unfair or bad faith dealing with the public by Licensee or any seller or of any other action adversely affecting the health, welfare or safety of the public. 6) COMPLIANCE - Licensee shall comply with all City, State and Federal laws, regulations, rules, codes and instructions from the City relating to the use of the parking lot. Notwithstanding anything to the contrary herein, failure to do so may result in immediate revocation or suspension of this Agreement. Licensee shall meet all requirements of the California Health and Safety Code Sections 114345 through and including 114351. 7) PERMITS, LICENSES AND TAXES - Licensee and sellers shall obtain, pay for and carry or display, as required, all permits or licenses required by law, regulation or code for the operation of a Certified Farmers Market, including but not limited to any permits required by the City, the Fire Marshall, or the Los Angeles County Health Department, including business licenses and health permits. Licensee and sellers shall produce said permits or licenses for inspection upon request of any police officer or other authorized representative of the City. In addition, Licensee shall pay all taxes which may be levied including possessory interest taxes. 8) NUISANCES - Licensee and sellers shall not use the parking lot or sell any item in any manner that will create a nuisance or unreasonable annoyance to the public. Licensee shall maintain the market area in a safe, clean, wholesome, and sanitary condition free from trash, garbage, rubbish or litter. No substance constituting a fire hazard or material detrimental to the public health shall be permitted or allowed to remain in the market area. 9) INSPECTIONS - The City shall have the right to inspect the market area at any time for the purpose of determining whether the market is being conducted in compliance with the requirements of this Agreement, and the applicable laws, regulations, codes or instructions. Licensee shall not hinder, impede, interfere with or obstruct any such inspection. 10) TERMINATION - Notwithstanding anything herein to the contrary, either partymay terminatethisAgreement withoutcauseupongivingtheother party written notice thirty (30) days prior to termination.
11) IMPROVEMENTS - Licensee and sellers shall not install, erect or maintain any permanent structure or improvements without the prior written consent of the City, which consent may be withheld at the City’s sole discretion. Any such structures or improvements erected by the Licensee and any seller shall become the property of the City upon the revocation or termination of this Agreement. During the term of this Agreement, Licensee and sellers shall be responsible for maintenance of such improvements. 12) DISCRIMINATION POLICY - Licensee and sellers shall not discriminate against any seller, employee, applicant for employment, invitee or business visitor, or in the sale of items, on the basis of age, sex, sexual orientation, medical condition including AIDS or AIDS-related conditions, marital status, race, color, religion, national origin, disability, handicap or any other reason related to a person’s basic human identify.
13) INSURANCE - Licensee shall obtain and maintain at Licensee’s expense for the duration of this Agreement, from an insurance company that is admitted to write insurance in California and that has a rating of at least A:VIII in Best’s Insurance Guide:
A) Comprehensive general liability insurance, including products, with a combined single limit of One Million Dollars ($1,000,000) for each occurrence or Two Million Dollars ($2,000,000) general aggregate. The entity constituting the City, its officials, employees and agents, shall be named as additional insureds on such policy with respect to liability arising from the use of the parking lot area or the sale of produce and other market products by Licensee, its volunteers, permittees, representatives, agents, employees and officers. Said insurance shall be primary and not contributing, shall contain a cross-liability endorsement, and an endorsement requiring a sixty (60) day written notice to the City prior to cancellation. Such insurance shall be written on an occurrence basis.
B) Workers Compensation insurance as required by the CA Labor Code.
C) Automobile liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000) combined single limit per accident for bodily injury and property damage covering owned, non-owned and hired vehicles.
4 Licensee shall deliver to the City certificates of insurance and original endorsements for approval as to sufficiency and form. Insurance required herein shall not be deemed to limit Licensee’s liability under this Agreement. The City reserves the right to require complete certified copies of all policies at any time. Any modification or waiver of the insurance requirements herein shall only be made with the written approval of the party affected by such waiver.
14) INDEMNIFICATION - Licensee shall defend, indemnify and hold harmless the City, its officials, employees and agents, from and against any and all claims, demands, damages, losses, liability, causes of action, costs and expenses (including reasonable attorneys’ fees incurred by the indemnified party with respect to counsel of its choice) of any kind or nature whatsoever arising or resulting from the alleged acts or omissions of Licensee, its officers, employees, permittees, agents, volunteers, invitees or business visitors connected with the use of the parking lot areas and the sale of items thereon or otherwise arising from the existence or operation of the farmers’ market of this Agreement.
15) CUSTOMER PARKING - Licensee is hereby granted the use of the other nearby parking lots in Salt Lake Park (other than the one the market is on) for the purpose of providing parking space for market customers.
Customers shall also be allowed to park in all legal spaces along the curbs of streets in the Park area. Licensee understands that all parking lots, especially including the parking lot just to the west of the Recreation Center, may occasionally be reserved for special events at the complete discretion of the Parks and Recreation Department.
16) NON-RESPONSIBILITY - The City shall not be responsible for and Licensee hereby waives all claims against the City for loss or damage by theft, fire, flood, burglary, vandalism, or any other cause of any of Licensee’s or sellers’ produce, supplies, equipment and other property or any personal injury suffered in, on, or about the market area, except to the extent caused by the City’s gross negligence or willful misconduct. 17) NO TITLE - Licensee acknowledges that, by this Agreement, Licensee and sellers do not acquire any right, title, or interest of any kind in the market parking lot area. The City shall have and retain absolute and full control of the entire Salt Lake Park area utilized by the market and its customers. 18) MAINTENANCE - Licensee shall at their own cost and expense provide all supplies, materials and equipment necessary for the market, and shall maintain the area in a clean and safe condition at all times. Licensee shall clean the entire are of market use, including the market parking lot, the 5 customer parking lots, and the surrounding park area, by 2:30 pm after each market day. Licensee shall be liable for any and all loss, injury or damage to City property resulting from the use of Park area by the Licensee, sellers and their employees, agents, invitees, business visitors and customers.
19) ASSIGNMENT - Licensee shall not assign this Agreement without the written consent of the City, nor shall Licensee in any manner transfer or convey or grant any of the rights or privileges granted herein without said written consent, which may be granted or withheld at the City’s sole discretion. Licensee shall not underlet or sublet any portion of Salt Lake Park or allow the same to be used or occupied by any other person or entity for any other use than specified above. Notwithstanding any other provision of this Agreement, this Agreement shall terminate automatically without prior notice upon any assignment, transfer, conveyance or grant in violation of this section.
20) NOTICE - Any notice required or desired hereunder shall be in writing and personally served or deposited in the US Postal Service, certified, return receipt, postage prepaid, to the Parks & Recreation Department of the City of Huntington Park at 3401 East Florence Ave., Huntington Park, CA 90255; and to the Harbor Area Farmer’s Market, and South Coast Interfaith Council, 759 Linden Avenue, Long Beach, CA 90813.
Change of address shall be given in the manner provided for notices.
Notice shall be deemed received on the date shown on the certified receipt, or on the date personal service is obtained, whichever occurs first. 21) UTILITIES - The City shall be responsible for providing water and electricity necessary for the operation of the market. It is understood that the market’s needs are minimal and, unless otherwise agreed by the parties in writing, include only a faucet for tap water and the electricity needed to provide light in City-owned toilet facilities, which will be open and available to both customers and sellers during the time of market setup, operation and breakdown (from 7:30 am to 2:30 pm).
22) POLLUTION DISCHARGE - Licensee shall be responsible for ensuring that the market is operated and maintained in compliance with the provisions of the National Pollution Discharge Elimination System (NPDES).
23) FEES - Licensee agrees to pay to the City at the close of each calendar month in which market business occurs an amount equal to 1% of the total market income for each market day of that month, or the sum of $75 (Seventy-Five Dollars) for each market day, whichever is more. The City reserves the right to revisit the fees in the future. This existing fee shall be judged in arrears on the last day of the following month. 6 24) SIGNAGE - Licensee may set out signage sufficient to advertise the existence of the market; provided that (i) Licensee shall provide to the Director of Parks & Recreation (the “Director”) or her designee a written description and/or depiction of the intended signage and its proposed location and length of use prior to setting out, (ii) Licensor shall have the right to approve/disapprove any signage proposed by Licensee, (iii) all costs and expenses associated with designing, permitting, constructing, setting out and maintaining the signage shall be borne exclusively by Licensee, and (iv) Licensee shall maintain all approved signage in good condition and repair. Utilization of the Parks & Recreation Department’s monument sign in front of the Recreation Center may also be allowed at the City’s sole discretion. All signage set out, displayed or utilized must conform to the City’s Sign Ordinance and be approved in writing by the Director or her designee. The Director or her designee maintains the right to request the removal any signage upon five (5) days notice, regardless of whether the signage had been approved. If the signage is not removed within five (5) days, the Director or her designee may remove said signage, 25) RESTORATION OF CITY PROPERTY — Licensee shall leave the City Property in the same condition it was in prior to the Farmer’s Market. City reserves the right to inspect the City Property at any time. Licensee shall be liable for the cost of any repairs the City Manager determines are necessary to restore the City Property to the condition it was in prior to the Farmer’s Market.
26) ENTIRE AGREEMENT OF THE PARTIES - This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the Licensee’s and City’s duties, responsibilities, and obligations hereunder and contains all of the covenants and agreements between the parties with respect to the Farmer’s Market. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any party or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing executed by the partieshereto. 27) WAIVER OF BREACH - No waiver of the breach of any of the covenants, agreements, restrictions, or conditions of this Agreement by either party to this Agreement shall be construed to be a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement. No delay or omission of either party to this Agreement in exercising any right, power or remedy herein provided in the event of default shall be construed as a waiver thereof, or acquiescence 7 therein, or be construed as a waiver of a variation of any of the terms of this Agreement.
INWITNESSTHEREOF, thepartiesbelowhaveexecutedthisLicenseAgreement on the date and year first hereinabove written.
SOUTH COAST INTERFAITH
COUNCIL, a California non-profit
Corporation dba Harbor Area Farmers
Market
By: ____________________
Kelli Johnson
Market Manager
ATTEST:
By:________________
Eduardo Sarmiento, City Clerk
CITY OFHUNTINGTON PARK
a Municipal Corporation
By: __________________
Ricardo Reyes
City Manager
ITEM 6
CITY OF HUNTINGTON PARK
Parks and Recreation Department
City Council Agenda Report
May 12, 2026
Honorable Mayor and Members of the City Council
City of Huntington Park
6550 Miles Avenue
Huntington Park, CA 90255
Dear Mayor and Members of the City Council:
CONSIDERATION AND APPROVAL TO ENTER INTO AN AGREEMENT WITH TACOS N BEER FOR THE 120TH ANNIVERSARY 5K RUN EVENT AND
CELEBRATION
IT IS RECOMMENDED THAT THE CITY COUNCIL:
1. Approve the Agreement with Tacos N Beer for the 120TH Anniversary 5K Run Event Celebration; and
2. Authorize City Manager to execute agreement.
BACKGROUND
On April 14, 2026, City staff met with Representatives from Tacos N Beer to discuss partnership and explore enhancing the annual 5K Run held in the city. Due to this being the City’s 120th Anniversary, this would be an optimal time to highlight Pacific Boulevard and continue celebrating throughout the city in conjunction with the annual 5K run. The race is proposed to start at 8 am, with the festivities ending at 12 pm, for an event total of four (4) hours. The original 5k was scheduled to take place March 21, 2026 but was postponed coinciding with the 120th anniversary celebrations taking place in the month of September.
Tacos N Beer has extensive experience in producing large scale runs in many other cities and provides a unique experience to participants that includes a professionally timed event, medal, t-shirt and music throughout the race in addition to providing participants with two tacos and a beer at the completion of the race for adults over the age of 21. This is a unique spin on the prior races that have been hosted by the Parks and Recreation Department over the past seven years. Tacos N Beer estimates approximately 2,000 runners to participate in the race, in comparison to our average of
CONSIDERATION AND APPROVAL TO ENTER INTO AGREEMENT WITH TACOS N BEER FOR THE 120TH ANNIVERSARY 5K RUN EVENT CELEBRATION May 12, 2026
500 runners. Depending upon the number of registered participants, the race will be conducted in waves with the most experienced and seasoned runners going first.
Reference checks were completed with the cities of Montebello and Santa Fe Springs and both reported having positive experiences with their races and their partnership with the Tacos N Beer staff.
Tacos N Beer will manage all race logistics, coordinate food and music vendor needs, obtain necessary ABC and health permits, order portable restrooms and hand-wash sinks, set up the stage and sound system, order medals and t-shirts, for the 120th Anniversary 5K and perform tasks that are related directly to the provision of a 5K event in partnership with the city. The city will be responsible for closure of the streets, permits, trash receptacles and providing staff for the race. The city will also be responsible for providing signage of the 120th Anniversary at the start and finish line. All Marketing will feature the City’s 120th Anniversary logo and Tacos N Beer 5K logo across all event materials to broadly advertise and promote the event. City staff will work closely with the Tacos N Beer staff leading up to the event.
FISCAL IMPACT/FINANCING
Expenditures:
There is no fee to partner with Tacos N Beer. The total cost for the closure and staffing of the event on Pacific Blvd from 8 am to 12 pm is estimated to not exceed $100,000; this amount was based on the cost to host the holiday parade which had street closure requirements. This amount also includes staff time across departments, permit fees, and promotional materials. Should an alternate race time be requested, the cost will be impacted due to prolonged street closures and additional staffing needs.
These costs will be a part of the proposed budget of FY 2026-27, if approved.
Revenues:
The City will be able to secure its own sponsors and collect 100% of the funds to offset the cost of the race. Tacos N Beer will keep all registration fees and will be able to secure its own sponsors to assist in the cost of producing the race.
CONSIDERATION AND APPROVAL TO ENTER INTO AGREEMENT WITH TACOS N BEER FOR THE 120TH ANNIVERSARY 5K RUN EVENT CELEBRATION May 12, 2026
CONCLUSION
Upon Council approval, staff will proceed with the recommended actions.
Respectfully submitted,
RICARDO REYES
City Manager
CYNTHIA NORZAGARAY
Director of Parks and Recreation
ATTACHMENT(S)
A. Professional Services Agreement with Tacos N Beer.
B. Map of 5k Proposed Route
PROFESSIONAL SERVICES AGREEMENT
(Engagement: SERVICE BEING PROVIDED)
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this 5/12/2026 (hereinafter, the “Effective Date”), by and between the CITY OF HUNTINGTON PARK, a municipal corporation (“CITY”) Tacos N Beer 5K (hereinafter, “CONSULTANT”). For the purposes of this Agreement CITY and CONSULTANT may be referred to collectively by the capitalized term “Parties.” The capitalized term “Party” may refer to CITY or CONSULTANT interchangeably.
RECITALS
This AGREEMENT is made and entered into with respect to the following facts:
WHEREAS, on May 12, 2026 the CITY entered into a Professional Services Agreement (the “Master Agreement”) with Tacos N Beer 5K to execute a 5K event which includes the following: serve as fiscal agent, shall manage all race logistics, coordinate vendor needs, obtain necessary permits, order portable restrooms and hand-wash sinks, set up the stage and sound system, order medals and t-shirts, for the 120th Anniversary 5K as outlined in Exhibit A, and perform tasks that are related directly to the provision of a 5K event;
WHEREAS, the CITY retains ownership and use of program name and materials associated with the “120th Anniversary” name, logo, branding, and any related materials developed or used in connection with the initiative shall remain the sole property of the City of Huntington Park;
WHEREAS, on the Professional Services Agreement was made to the CONSULTANT, which assignment the City agreed to on May 12, 2016. CONSULTANT then commenced providing 5K services under the terms and conditions of said Master Agreement;
WHEREAS, CONSULTANT requests that the Tacos N Beer logo and the City’s 120th Anniversary logo be featured across all 5K event materials and marketing to maximize visibility for our collaboration;
ATTACHMENT “A”
WHEREAS, CONSULTANT represents that it is fully qualified to perform such professional services by virtue of its experience and the training, education and expertise of its principals and employees;
WHEREAS, CONSULTANT further represents that it is willing to accept responsibility for performing such services in accordance with the terms and conditions set forth in this Agreement; and
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, Agency and CONSULTANT agree as follows:
I.
ENGAGEMENT TERMS
1.1 SCOPE OF SERVICES: Subject to the terms and conditions set forth in this Agreement and all exhibits attached and incorporated hereto, CONSULTANT agrees to perform the services and tasks set forth in that certain document entitled “Scope of Services” and attached hereto as Exhibit “A” (hereinafter referred to as the “Scope of Services”). CONSULTANT further agrees to furnish to CITY all labor, materials, tools, supplies, equipment, services, tasks and work necessary to competently perform and timely complete the services and tasks as set forth in the Scope of Services except for the items the city has agreed to do as set forth in Exhibit A. For the purposes of this Agreement the aforementioned services and tasks set forth in the Scope of Services shall hereinafter be referred to generally by the capitalized term “Work.”
1.2 TERM: This Agreement shall become effective upon execution by both parties and shall remain in effect through September 20, 2026, unless terminated earlier as provided herein. Nothing in this Section shall operate to prohibit or otherwise restrict the CITY’s ability to terminate this Agreement at any time for convenience or for cause as further set out herein.
1.3 COMPENSATION: During the term of this Agreement and any extension term provided herein, CONSULTANT shall perform the Services set forth in Section 1.2 above, at the rates of compensation set forth in the Rate Schedule reflected in Exhibit “A”. Subject to the CPI Index Adjustment section of Exhibit “A”, CONSULTANT further agrees that there is no total compensation due to CONSULTANT for the Work per term. In the event CONSULTANT’s charges are projected to exceed the Contract Price prior to the expiration of the Term or any single extension term, CITY may suspend CONSULTANT’s performance of any additional Work outside the Work as defined in Exhibit A, pending CITY approval of any anticipated expenditures in excess of the Contract Price or any other CITY-approved amendment to the compensation terms of this Agreement.
1.4 PAYMENT OF COMPENSATION: There is no direct compensation to the CONSULTANT during the term of this Agreement. The CONSULTANT (Tacos N Beer 5K) will retain the registration fees to cover all supplies and secure its own sponsors
to help cover the cost of the race. The CITY will be able to secure its own sponsors and collect 100% of the funds to cover the cost of the race and celebration.
1.5 ACCOUNTING RECORDS: CONSULTANT shall maintain complete and accurate records with respect to all matters covered under this Agreement for a period of three (3) years after the expiration or termination of this Agreement. CITY shall have the reasonable right to access and examine such records, without charge. CITY shall own and further have the right to audit such records, to make transcripts therefrom and to inspect all program data, documents, proceedings, and activities.
1.6 ABANDONMENT BY CONSULTANT: In the event CONSULTANT ceases to perform the Work agreed to under this Agreement or otherwise abandons the undertaking contemplated herein prior to the expiration of this Agreement or prior to completion of any or all tasks set forth in the Scope of Services, CONSULTANT shall deliver to CITY immediately and without delay, all written materials, including any electronic communications, records and other work product prepared or obtained by CONSULTANT in the performance of this Agreement. Furthermore, CONSULTANT shall not be compensated for the reasonable value of the services, tasks, and other work performed up to the time of cessation or abandonment, less a deduction for any damages, costs, or additional expenses which CITY may incur as a result of CONSULTANT’s cessation or abandonment.
II.
PERFORMANCE OF AGREEMENT
2.1 CITY’S REPRESENTATIVES: The CITY hereby designates the City Manager (hereinafter, the “CITY Representative”) to act as its representative for the performance of this Agreement. The City Manager shall be the chief CITY Representative. The CITY Representative or their designee shall act on behalf of the CITY for all purposes under this Agreement. CONSULTANT shall not accept directions or orders from any person other than the CITY Representative or their designee.
2.2 CONSULTANT REPRESENTATIVE: CONSULTANT hereby designates Carlos Gaspar & Vicente Ortiz to act as its representative for the performance of this Agreement (hereinafter, “CONSULTANT Representative”). CONSULTANT Representative shall have full authority to represent and act on behalf of the CONSULTANT for all purposes under this Agreement. CONSULTANT Representative or his designee shall supervise and direct the performance of the Work, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Agreement. Notice to the CONSULTANT Representative shall constitute notice to CONSULTANT.
CONSULTANT may, by written notice to CITY, advise CITY of any change in CONSULTANT Representative.
2.3 COORDINATION OF SERVICE; CONFORMANCE WITH REQUIREMENTS:
CONSULTANT agrees to work closely with CITY staff in the performance of the Work
and this Agreement and shall be available to CITY staff and the CITY Representatives at all reasonable times. All work prepared by CONSULTANT shall be subject to inspection and approval by CITY Representatives or their designees.
2.4 STANDARD OF CARE; PERFORMANCE OF EMPLOYEES: CONSULTANT represents, acknowledges, and agrees to the following:
A. CONSULTANT shall perform all Work skillfully, competently, and in accordance with industry standards of CONSULTANT’s profession;
B. CONSULTANT shall perform all Work in a manner in accordance with this Agreement;
C. CONSULTANT shall comply with all applicable federal, state, and local laws and regulations, including the conflict of interest provisions of Government Code Section 1090 and the Political Reform Act (Government Code Section 81000 et seq.); D. CONSULTANT understands the nature and scope of the Work to be performed under this Agreement as well as any and all schedules of performance; E. All of CONSULTANT’s employees and agents possess sufficient skill, knowledge, training and experience to perform those services and tasks assigned to them by CONSULTANT; and
F. Except as otherwise set forth in this Agreement, all of CONSULTANT’s employees and agents (including but not limited to SUBCONSULTANTs and subconsultants) possess all licenses, permits, certificates, qualifications and approvals of whatever nature that are legally required to perform the tasks and services contemplated under this Agreement and all such licenses, permits, certificates, qualifications and approvals shall be maintained throughout the term of this Agreement and made available to CITY for copying and inspection.
The Parties acknowledge and agree that CONSULTANT shall perform, at CONSULTANT’s own cost and expense and without any reimbursement from CITY, any services necessary to correct any errors or omissions caused by CONSULTANT’s failure to comply with its obligation set out herein or failure on the part of CONSULTANT’s employees, agents, consultants, and subconsultants to fulfill its obligations herein. Such effort by CONSULTANT to correct any errors or omissions shall be commenced as soon as reasonably practicable upon their discovery or notice by either Party and shall be completed within seven (7) calendar days from the date of discovery or such other extended period of time authorized by the CITY Representatives in writing, in accordance with applicable industry standards. The Parties acknowledge and agree that CITY’s acceptance of any work performed by CONSULTANT or on CONSULTANT’s behalf shall not constitute a release of any deficiency or delay in performance. The Parties further acknowledge, understand, and agree that CITY has relied upon the foregoing representations of CONSULTANT, including but not limited to the representation that CONSULTANT possesses the skills, training, knowledge, and experience necessary to perform the
Work skillfully, competently, and in accordance with applicable industry standards of CONSULTANT’s profession.
2.5 ASSIGNMENT: The skills, training, knowledge, and experience of CONSULTANT are material to CITY’s willingness to enter into this Agreement. Accordingly, CITY has an interest in the qualifications and capabilities of the person(s) who will perform the services and tasks to be undertaken by CONSULTANT or on behalf of CONSULTANT in the performance of this Agreement. In recognition of this interest, CONSULTANT agrees that it shall not assign or transfer, either directly or indirectly or by operation of law, this Agreement or the performance of any of CONSULTANT’s duties or obligations under this Agreement without the prior written consent of the CITY, which consent shall not be unreasonably withheld. CITY shall have up to sixty (60) calendar days to consider any proposed assignment by CONSULTANT.
CONSULTANT can withhold consent where the CITY determines that the proposed assignee does not have the financial capacity to comply with the terms of this Agreement. In the absence of CITY’s prior written consent, any attempted assignment or transfer shall be ineffective, null, and void and shall constitute a material breach of this Agreement.
2.6 CONTROL AND PAYMENT OF SUBORDINATES; INDEPENDENT CONSULTANT:
The Work shall be performed by CONSULTANT or under CONSULTANT’s strict supervision. CONSULTANT will determine the means, methods, and details of performing the Work subject to the requirements of this Agreement. CITY retains CONSULTANT on an independent CONSULTANT basis and not as an employee.
CONSULTANT reserves the right to perform similar or different services for other principals during the term of this Agreement, provided such work does not unduly interfere with CONSULTANT’s competent and timely performance of the Work contemplated under this Agreement and provided the performance of such services does not result in the unauthorized disclosure of CITY’s confidential or proprietary information. Any additional personnel performing the Work under this Agreement on behalf of CONSULTANT are not employees of CITY and shall at all times be under CONSULTANT’s exclusive direction and control. CONSULTANT shall pay all wages, salaries, and other amounts due such personnel and shall assume responsibility for all benefits, payroll taxes, Social Security and Medicare payments, and the like.
CONSULTANT shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: Social Security taxes, income tax withholding, unemployment insurance, disability insurance, workers’ compensation insurance, and the like.
2.7 REMOVAL OF EMPLOYEES OR AGENTS: If any of CONSULTANT’s officers, employees, agents, consultants, or subconsultants is determined by the CITY Representatives to be uncooperative, incompetent, a threat to the adequate or timely performance of the tasks assigned to CONSULTANT, a threat to persons or property, or if any of CONSULTANT’s officers, employees, agents, consultants, or subconsultants fail or refuse to perform the Work in accordance with this Agreement, such officer, employee, agent, consultants, or subconsultant shall be promptly removed by CONSULTANT and shall not be reassigned to perform any of the Work.
2.8 COMPLIANCE WITH LAWS: CONSULTANT shall keep itself informed of and in compliance with all applicable federal, state, or local laws to the extent such laws control or otherwise govern the performance of the Work. CONSULTANT’s compliance with applicable laws shall include, without limitation, compliance with all applicable Cal/OSHA requirements. To the extent that any changes in applicable law result in an increase in CONSULTANT’s cost of performance, the Parties shall negotiate in good faith to reach a mutually agreeable price adjustment. Should the Parties fail to reach such an agreement within 30 days (or such other agreeable time period) of CONSULTANT’s notice to CITY of its increased cost of performance, either Party may terminate this Agreement upon 60 days’ written notice. (a) In the event that water treatment violations occur following the effective date of this Agreement, subject to Sub-Section (b) below and the applicable Force Majeure provisions, the CONSULTANT shall, in respect of violations that may be imposed by Applicable Law and to the extent due to CONSULTANT’s fault, be responsible for: fines, penalties, or damages. Prior to settlement or payment of any such fines, penalties or damages, the CONSULTANT reserves the right to contest government or private actions, suits or proceedings for violations through administrative procedures or otherwise.
(b) To the extent that violations of applicable laws, rules, regulations or permits are caused by failures in the facilities or causes beyond CONSULTANT’s control, including the CITY’s failure to approve recommended repairs or maintenance, CONSULTANT will use its best efforts to maximize performance of the Facilities but shall not be responsible for associated violations or damages, fines or penalties which result.
2.9 NON-DISCRIMINATION: In the performance of this Agreement, CONSULTANT shall not discriminate against any employee, consultant, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental disability, or medical condition.
2.10. INDEPENDENT CONSULTANT STATUS: The Parties acknowledge, understand, and agree that CONSULTANT and all persons retained or employed by CONSULTANT are, and shall at all times remain, wholly independent CONSULTANTs and are not officials, officers, employees, departments or subdivisions of CITY. CONSULTANT shall be solely responsible for the negligent acts and/or omissions of its employees, agents, consultants, and subconsultants.
CONSULTANT and all persons retained or employed by CONSULTANT shall have no authority, express or implied, to bind CITY in any manner, nor to incur any obligation, debt, or liability of any kind on behalf of, or against, CITY, whether by contract or otherwise, unless such authority is expressly conferred to CONSULTANT under this Agreement or is otherwise expressly conferred by CITY in writing.
2.11 CITY RESPONSIBILITIES: During the term of this Agreement, the CITY shall:
a) obtain and maintain all state, federal, and local permits and licenses required for ownership, operation, and maintenance of the Facilities, including, without limitation, the CITY’s Permits;
c) comply with Applicable Law relating to the management, ownership, operation, maintenance, repair, and replacement of the Facilities (to the extent that the responsibility of complying with those laws is not specifically assumed by the CONSULTANT under this Agreement). The CONSULTANT shall not be responsible for the CITY’s failure to comply with any provision of Applicable Law that is not otherwise specifically assumed by the CONSULTANT hereunder.
III.
INSURANCE
3.1 DUTY TO PROCURE AND MAINTAIN INSURANCE: Prior to the beginning of and throughout the duration of the Work, CONSULTANT will procure and maintain policies of insurance that meet the requirements and specifications set forth under this Article. CONSULTANT shall procure and maintain the following insurance coverage, at its own expense:
A. Commercial General Liability Insurance: CONSULTANT shall procure and maintain Commercial General Liability Insurance (“CGL Coverage”) as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001) or its equivalent. Such CGL Coverage shall have minimum limits of no less than Two Million Dollars ($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) in the general aggregate for bodily injury, personal injury, property damage, operations, products, and completed operations, and contractual liability.
B. Automobile Liability Insurance: If utilizing automobiles as part of race day production, the CONSULTANT shall procure and maintain Automobile Liability Insurance as broad as Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). Such Automobile Liability Insurance shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per accident for bodily injury and property damage.
C. Workers’ Compensation Insurance/ Employer’s Liability Insurance: A policy of workers’ compensation insurance in such amount as will fully comply with the laws of the State of California. However, if the CONSULTANT has no employees, for example, a sole practitioner or a partner in a firm with only contracted support staff, then Workers’ Compensation is not required by the State. CONSULTANT shall submit the city’s form stating they are either the owner of the organization or a partner, and are exempt from the State’s workers’ compensation requirements because they have no employees, and agree to hold the Entity harmless from loss or liability for such. A waiver must be signed.
3.2 ADDITIONAL INSURED REQUIREMENTS: The CGL Coverage and the Automobile Liability Insurance shall contain an endorsement naming the CITY and CITY’s elected and appointed officials, officers, employees, agents, and volunteers as additional insureds.
3.3 The Entity, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT, including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
3.4 REQUIRED CARRIER RATING: All varieties of insurance required under this Agreement shall be procured from insurers admitted in the State of California and authorized to issue policies directly to California insureds. Except as otherwise provided elsewhere under this Article, all required insurance shall be procured from insurers who, according to the latest edition of the Best’s Insurance Guide, have an A.M. Best’s rating of no less than A:VII. CITY may also accept policies procured by insurance carriers with a Standard & Poor’s rating of no less than BBB according to the latest published edition the Standard & Poor’s rating guide. As to Workers’ Compensation Insurance/ Employer’s Liability Insurance, the CITY Representatives are authorized to authorize lower ratings than those set forth in this Section.
3.5 PRIMACY OF CONSULTANT’S INSURANCE: All polices of insurance provided by CONSULTANT shall be primary to any coverage available to CITY or CITY’s elected or appointed officials, officers, employees, agents or volunteers. Any insurance or self-insurance maintained by CITY or CITY’s elected or appointed officials, officers, employees, agents or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.
3.6 WAIVER OF SUBROGATION: All insurance coverage provided pursuant to this Agreement shall not prohibit CONSULTANT or CONSULTANT’s officers, employees, agents, SUBCONSULTANTs or subconsultants from waiving the right of subrogation prior to a loss. CONSULTANT hereby waives all rights of subrogation against CITY.
3.7 VERIFICATION OF COVERAGE: CONSULTANT acknowledges, understands, and agrees that CITY’s ability to verify the procurement and maintenance of the insurance required under this Article is critical to safeguarding CITY’s financial well-being and, indirectly, the collective well-being of the residents of the CITY. Accordingly, CONSULTANT warrants, represents, and agrees that it shall furnish CITY with original certificates of insurance and endorsements evidencing the coverage required under this Article. The certificates of insurance and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates of insurance and endorsements shall be received and approved by CITY as a condition precedent to CONSULTANT’s commencement of any work or any of the Work. Upon CITY’s written request,
CONSULTANT shall also provide CITY with certified copies of all required insurance policies and endorsements.
IV.
INDEMNIFICATION
4.1 The Parties agree that CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers (hereinafter, the “CITY Indemnitees”) should, to the fullest extent permitted by law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, or any other cost arising out of or in any way related to this Agreement subject to Paragraph 4.2 and 4.3.
Accordingly, the provisions of this indemnity provision are intended by the Parties to be interpreted and construed to provide the CITY Indemnitees with the fullest protection possible under the law. CONSULTANT acknowledges that CITY would not enter into this Agreement in the absence of CONSULTANT’s commitment to indemnify, defend, and protect CITY as set forth herein.
4.2 Work of CONSULTANT’s Design Professionals Services: Except for direct claims by the Parties against each other, the duty to indemnify, defend and hold harmless as set forth under this subsection shall apply to the negligence, recklessness or willful misconduct of any individual who qualifies as a “design professional” within the meaning of subsection (c)(2) of section 2782.8 of the California Civil Code in so far as such negligence, recklessness or willful misconduct occurs in the performance work or activities that must be performed by a “design professional.” Subject to the limitation of the preceding sentence, to the fullest extent permitted by law, CONSULTANT shall immediately defend and indemnify and hold harmless the CITY Indemnities, defined above, from and against any and all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation) of every nature arising out of the negligence, recklessness, or willful misconduct of CONSULTANT or any of CONSULTANT’s officers, employees, servants, agents, CONSULTANTs, SUBCONSULTANTs or authorized volunteers or any other person or entity involved by, for, or with or on behalf of CONSULTANT in the performance of design professional services under this Agreement. The Parties understand and agree that the duty of CONSULTANT to indemnify, defend and hold harmless pursuant to this subsection includes the duty to defend as set forth in section 2778 of the California Civil Code. CONSULTANT’s obligation to indemnify applies except to the extent that it is finally adjudicated that the liability was caused by the active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, then CONSULTANT’s indemnification obligation shall be reduced in proportion to the established comparative liability.
4.3 Work of All Other Persons/Non-Design Professionals: Except for direct claims by the Parties against each other and as otherwise provided under Section 4.2 of this Article, above, to the fullest extent permitted by law, CONSULTANT shall indemnify, defend and hold harmless the CITY Indemnitees from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and
all other reasonable costs and fees of litigation) of every nature to the extent caused by CONSULTANT’s negligent performance under this Agreement, including but not limited to the negligent acts, errors or omissions of CONSULTANT or CONSULTANT’s officers, employees, agents, servants, consultants, or subconsultants or the failure of the same to comply with any of the duties, obligations or standards of care set forth herein. The duty to indemnify, defend, and hold harmless under this subsection shall not encompass a duty to indemnity, defend, or hold harmless for liability, loss, suit, damage, expense, or cost to the extent caused by the negligence or willful misconduct of any or all of the City Indemnitees. The duty to indemnify, defend, and hold harmless as set forth under this subsection is intended to encompass liabilities, losses, damages, expenses, and costs not otherwise subject to subsection 4.2, above.
4.4 CITY shall have the right to offset against the amount of any compensation due CONSULTANT under this Agreement any amount due CITY from CONSULTANT as a result of CONSULTANT’s failure to pay CITY promptly any indemnification arising under this Article and related to CONSULTANT’s failure to either (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers’ compensation laws.
4.5 The obligations of CONSULTANT under this Article will not be limited by the provisions of any workers’ compensation act or similar act. CONSULTANT expressly waives its statutory immunity under such statutes or laws as to CITY and CITY’s elected and appointed officials, officers, employees, agents, and volunteers.
4.6 CONSULTANT agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Article from each and every SUBCONSULTANT or any other person or entity involved by, for, with, or on behalf of CONSULTANT in the performance of this Agreement. In the event CONSULTANT fails to obtain such indemnity obligations from others as required herein, CONSULTANT agrees to be fully responsible and indemnify, hold harmless and defend CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property resulting from any alleged intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of CONSULTANT’s subconsultants or any other person or entity involved by, for, with or on behalf of CONSULTANT in the performance of this Agreement.
Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of CITY’s choice.
4.7 CITY does not, and shall not, waive any rights that it may possess against CONSULTANT because of the acceptance by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense.
4.8 This Article and all provisions contained herein (including but not limited to the duty to indemnify, defend, and hold free and harmless) shall survive the termination or normal expiration of this Agreement and is in addition to any other rights or remedies which the CITY may have at law or in equity.
V.
TERMINATION
5.1 TERMINATION WITHOUT CAUSE: Either Party may, by written notice to the other, immediately terminate this Agreement at any time for convenience and without cause by giving written notice to Consultant of such termination, which notice shall specify the effective date of such termination, which effective date shall not be less than 90 days from the written notice. Upon such termination for convenience, CONSULTANT shall be compensated only for those services and tasks which have been performed by CONSULTANT up to the effective date of the termination. If this Agreement is terminated as provided herein, CITY may require CONSULTANT to provide all finished or unfinished Documents and Data, as defined in Section 6.1 below, and other information of any kind prepared by CONSULTANT in connection with the performance of the Work. CONSULTANT shall be required to provide such Documents and Data within fifteen (15) calendar days of CITY’s written request. No actual or asserted breach of this Agreement on the part of CITY pursuant to Section
5.2, below, shall operate to prohibit or otherwise restrict CITY’s ability to terminate this Agreement for convenience as provided under this Section.
5.2 EVENTS OF DEFAULT; BREACH OF AGREEMENT:
A. In the event either Party fails to perform any duty, obligation, service or task set forth under this Agreement (or fails to timely perform or properly perform any such duty, obligation, service or task set forth under this Agreement), an event of default (hereinafter, “Event of Default”) shall occur. For all Events of Default, the Party alleging an Event of Default shall give written notice to the defaulting Party (hereinafter referred to as a “Default Notice”) which shall specify: (i) the nature of the Event of Default; (ii) the action required to cure the Event of Default; (iii) a date by which the Event of Default shall be cured, which shall not be less than the applicable cure period set forth under Sections 5.2.B and 5.2C below or if a cure is not reasonably possible within the applicable cure period, to begin such cure and diligently prosecute such cure to completion. The Event of Default shall constitute a breach of this Agreement if the defaulting Party fails to cure the Event of Default within the applicable cure period or any extended cure period allowed under this Agreement.
B. CONSULTANT shall cure the following Events of Defaults within the following time periods:
i. Within three (3) business days of CITY’s issuance of a Default Notice for any failure of CONSULTANT to timely provide CITY or CITY’s employees or agents
with any information and/or written reports, documentation or work product which CONSULTANT is obligated to provide to CITY or CITY’s employees or agents under this Agreement. Prior to the expiration of the 3-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 3-day cure period. The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2 B.i. that exceeds seven (7) calendar days from the end of the initial 3-day cure period; or
ii. Within thirty (30) calendar days of CITY’s issuance of a Default Notice for any other Event of Default under this Agreement. Prior to the expiration of the 30- day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 30-day cure period. The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2B.ii that exceeds thirty (30) calendar days from the end of the initial 30-day cure period.
In addition to any other failure on the part of CONSULTANT to perform any duty, obligation, service or task set forth under this Agreement (or the failure to timely perform or properly perform any such duty, obligation, service or task), an Event of Default on the part of CONSULTANT shall include, but shall not be limited to the following: (i) CONSULTANT’s refusal or failure to perform any of the services or tasks called for under the Scope of Services; (ii) CONSULTANT’s failure to fulfill or perform its obligations under this Agreement within the specified time or if no time is specified, within a reasonable time; (iii) CONSULTANT’s and/or its employees’ disregard or violate any federal, state, local law, rule, procedure or regulation; (iv) the initiation of proceedings under any bankruptcy, insolvency, receivership, reorganization, or similar legislation as relates to CONSULTANT, whether voluntary of involuntary; (v) CONSULTANT’s refusal or failure to perform or observe any material covenant, condition, obligation or provision of this Agreement; and/or (vii) CITY’s discovery that a statement representation or warranty by CONSULTANT relating to this Agreement is false, misleading or erroneous in any material respect.
C. CITY shall cure any Event of Default asserted by CONSULTANT within forty-five (45) calendar days of CONSULTANT’s issuance of a Default Notice, unless the Event of Default cannot reasonably be cured within the 45-day cure period. Prior to the expiration of the 45-day cure period, CITY may submit a written request for additional time to cure the Event of Default upon a showing that CITY has commenced its efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 45-day cure period. The foregoing notwithstanding, an Event of Default dealing with CITY’s failure to timely pay any undisputed sums to CONSULTANT as provided under Section 1.4, above, shall
be cured by CITY within five (5) calendar days from the date of CONSULTANT’s Default Notice to CITY.
D. Either Party may also immediately suspend performance under this Agreement pending the Defaulting Party’s cure of any Event of Default by giving said Party written notice of the Party’s intent to suspend performance (hereinafter, a “Suspension Notice”). A Party may issue the Suspension Notice at any time upon the occurrence of an Event of Default. Upon such suspension, CONSULTANT shall be compensated only for those services and tasks which have been rendered by CONSULTANT in accordance with this Agreement up to the effective date of the suspension. No actual or asserted breach of this Agreement on the part of CITY shall operate to prohibit or otherwise restrict CITY’s ability to suspend this Agreement as provided herein.
E. No waiver of any Event of Default or breach under this Agreement shall constitute a waiver of any other or subsequent Event of Default or breach. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
F. The duties and obligations imposed under this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights, and remedies otherwise imposed or available by law. In addition to any other remedies available to CITY at law or under this Agreement in the event of any breach of this Agreement, CITY, in its sole and absolute discretion, may also pursue any one or more of the following remedies:
i. Upon a thirty (30) day written notice to CONSULTANT, the CITY may terminate this Agreement in whole or in part;
ii. Upon written notice to CONSULTANT, the CITY may extend the time of performance;
iii. The CITY may proceed by appropriate court action to enforce the terms of the Agreement to recover damages for CONSULTANT’s breach of the Agreement or to terminate the Agreement; or
iv. The CITY may exercise any other available and lawful right or remedy.
G. In the event CITY is in breach of this Agreement, CONSULTANT’s sole remedy shall be the suspension or termination of this Agreement and/or the recovery of any unpaid sums lawfully owed to CONSULTANT under this Agreement for completed services and tasks.
5.3 SCOPE OF WAIVER: No waiver of any default or breach under this Agreement shall constitute a waiver of any other default or breach, whether of the same or other covenant, warranty, agreement, term, condition, duty or requirement contained in this Agreement. No waiver, benefit, privilege, or service voluntarily given or performed
by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
5.4 SURVIVING ARTICLES, SECTIONS, AND PROVISIONS: The termination of this Agreement pursuant to any provision of this Article or by normal expiration of its term or any extension thereto shall not operate to terminate any Article, Section or provision contained herein which provides that it shall survive the termination or normal expiration of this Agreement.
VI.
MISCELLANEOUS PROVISIONS
6.1 DOCUMENTS & DATA; LICENSING OF INTELLECTUAL PROPERTY: All Documents and Data shall be and remain the property of CITY without restriction or limitation upon their use or dissemination by CITY. For purposes of this Agreement, the term “Documents and Data” means and includes all materials, equipment, reports, analyses, correspondence, plans, drawings, designs, renderings, specifications, notes, summaries, strategies, charts, schedules, spreadsheets, calculations, lists, data compilations, documents or other materials developed and/or assembled by or on behalf of CONSULTANT in the performance of this Agreement and fixed in any tangible medium of expression, including but not limited to Documents and Data stored digitally, magnetically and/or electronically. This Agreement creates, at no cost to CITY, a perpetual license for CITY to copy, use, reuse, disseminate, and/or retain any and all copyrights, designs, and other intellectual property embodied in all Documents and Data. CONSULTANT shall require all consultants and subconsultants working on behalf of CONSULTANT in the performance of this Agreement to agree in writing that CITY shall be granted the same right to copy, use, reuse, disseminate, and retain Documents and Data prepared or assembled by any consultant or subconsultant as applies to Documents and Data prepared by CONSULTANT in the performance of this Agreement.
6.2 CONFIDENTIALITY: All data, documents, discussions, or other information developed or received by CONSULTANT or provided for performance of this Agreement are deemed confidential and shall not be disclosed by CONSULTANT without prior written consent by CITY. CITY shall grant such consent if disclosure is legally required. Upon request, all CITY data shall be returned to CITY upon the termination or expiration of this Agreement. CONSULTANT shall not use CITY’s name or insignia, photographs, or any publicity pertaining to the Work in any magazine, trade paper, newspaper, television, or radio production or other similar medium without the prior written consent of CITY.
6.3 FALSE CLAIMS ACT: CONSULTANT warrants and represents that neither CONSULTANT nor any person who is an officer of, in a managing position with, or has an ownership interest in CONSULTANT has been determined by a court or tribunal of competent jurisdiction to have violated the False Claims Act, 31 U.S.C., Section 3789 et seq., and the California False Claims Act, Government Code Section 12650 et seq.
6.4 NOTICES: All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose:
CONSULTANT: CITY:
Carlos Gaspar
Associate Director
Tacos N Beer
4108 E. Florence Ave.
Bell Gardens, CA 90201
TEL (562) 896-0243
Email [email protected]
City of Huntington Park
Parks and Recreation
6550 Miles Avenue
Huntington Park, CA 90255
Attn: Cynthia Norzagaray,
Director of Parks and Recreation
Phone: (323) 582-6218
[email protected]
Such notices shall be deemed effective when personally delivered or successfully transmitted by facsimile as evidenced by a fax confirmation slip or when mailed, fortyeight (48) hours after deposit with the United States Postal Service, first class postage prepaid and addressed to the Party at its applicable address.
6.5 COOPERATION; FURTHER ACTS: The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as is reasonably necessary, appropriate or convenient to achieve the purposes of this Agreement.
6.6 SUBCONTRACTING: CONSULTANT shall not subcontract any portion of the Work required by this Agreement, except as expressly stated herein, without the prior written approval of CITY. Subcontracts (including, without limitation, subcontracts with SUBCONSULTANTS), if any, shall contain a provision making them subject to all provisions stipulated in this Agreement with the exception of provisions relating to insurance requirements and indemnification.
6.7 CITY’S RIGHT TO EMPLOY OTHER CONSULTANTS: CITY reserves the right to employ other consultants in connection with the various projects worked upon by CONSULTANT.
6.8 PROHIBITED INTERESTS: CONSULTANT warrants, represents and maintains that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONSULTANT, to solicit or secure this Agreement.
Further, CONSULTANT warrants and represents that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for CONSULTANT, any fee, commission, percentage, brokerage fee, gift or other
consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, CITY shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of CITY, during the term of his or her service with CITY, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
6.9 TIME IS OF THE ESSENCE: Time is of the essence for each and every provision of this Agreement.
6.10 GOVERNING LAW AND VENUE: This Agreement shall be interpreted and governed according to the laws of the State of California. In the event of litigation between the Parties, the venue, without exception, shall be in the Los Angeles County Superior Court of the State of California. If, and only if, applicable law requires that all or part of any such litigation be tried exclusively in federal court, venue, without exception, shall be in the Central District of California located in the City of Los Angeles, California.
6.11 ATTORNEYS’ FEES: If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and all other costs of such action.
6.12 SUCCESSORS AND ASSIGNS: This Agreement shall be binding on the successors and assigns of the Parties.
6.13 NO THIRD PARTY BENEFIT: There are no intended third-party beneficiaries of any right or obligation assumed by the Parties. All rights and benefits under this Agreement inure exclusively to the Parties.
6.14 CONSTRUCTION OF AGREEMENT: This Agreement shall not be construed in favor of, or against, either Party, but shall be construed as if the Parties prepared this Agreement together through a process of negotiation and with the advice of their respective attorneys.
6.15 SEVERABILITY: If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
6.16 AMENDMENT; MODIFICATION: No amendment, modification or supplement of this Agreement shall be valid or binding unless executed in writing and signed by both Parties, subject to CITY approval. The requirement for written amendments, modifications or supplements cannot be waived, and any attempted waiver shall be void and invalid.
6.17 CAPTIONS: The captions of the various articles, sections and paragraphs are for convenience and ease of reference only, and do not define, limits, augment, or describe the scope, content, or intent of this Agreement.
6.18 INCONSISTENCIES OR CONFLICTS: In the event of any conflict or inconsistency between the provisions of this Agreement and any of the exhibits attached hereto, the provisions of this Agreement shall control.
6.19 ENTIRE AGREEMENT: This Agreement including all attached exhibits is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed herein and supersedes all other agreements or understandings, whether oral or written, or entered into between CITY and CONSULTANT prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid or binding. No amendment, modification or supplement to this Agreement shall be valid and binding unless in writing and duly executed by the Parties pursuant to Section 6.15, above.
6.20 COUNTERPARTS: .This Agreement shall be executed in three (3) original counterparts each of which shall be of equal force and effect. No handwritten or typewritten amendment, modification or supplement to any one counterparts shall be valid or binding unless made to all three counterparts in conformity with Section 6.16, above. One fully executed original counterpart shall be delivered to CONSULTANT and the two remaining counterparts shall remain with the City for archiving and dayto-day reference by the department responsible for administering the Agreement on the City’s behalf.
6.21 Notwithstanding any provision to the contrary contained in this Agreement, in no event shall either party be liable for punitive damages.
6.22 FORCE MAJEURE: A party’s performance of any obligation under this Agreement shall be excused if, and to the extent that, the party is unable to perform because of any event of Force Majeure. In any such event, the party unable to perform shall be required to resume performance of its obligations under this Agreement upon the termination of the event or cause that excused performance hereunder. “Force Majeure” herein means an event which is beyond the reasonable control of a party, including without limitation: (a) acts of God; (b) flood, fire, earthquake, hurricane or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law that prevents CONSULTANT from performing its obligations as set forth in this Agreement; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority that prevents CONSULTANT from performing its obligations as set forth in this Agreement; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances, other than those involving the affected parties employees;] (i) shortage of adequate power or transportation facilities.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed the day and year first appearing in this Agreement, above.
CITY OF HUNTINGTON PARK:
By:__________________________
Ricardo Reyes
City Manager
Tacos & Beer
Bell Gardens, CA 90201
By:________________________________
_
Name: Carlos Gaspar
Title: Associate Director
APPROVED AS TO FORM:
By:_________________________
City Attorney
EXHIBIT “A”
SCOPE OF WORK
ATTACHMENT "B"