City of San Marino RFP for Transportation Services
Professional Licensing
The professional services provider shall possess any necessary professional certification(s) and/or license(s) relative to the work to be performed required by an appropriate licensing authority of the State of California and shall provide evidence of such to the City with their proposal or prior to commencement of the work in such a form as the City shall require.
Insurance Requirement
The vendor shall, at its own expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the consultants, its agent, representatives, or employees. The vendor shall not assign, transfer, or subcontract any of its rights, burdens, duties, or obligations. Only affiliates of the parent company may be permitted to provide services with written consent from the City.
See Exhibit C for specific insurance requirements and provisions.
Public Record
Be advised that all information contained in proposals submitted in response to this solicitation shall become a matter of public record upon contract award, and made available upon request, unless otherwise marked. The vendor must identify, in writing, all copyrighted material, trade secrets, or other proprietary information the vendor claims are exempt from disclosure pursuant to the California Public Records Act.
The vendor who claims such an exemption must also state in the proposal that:
"The vendor agrees to indemnify and hold harmless the City and its officers, employees, and agents from any claims, liability, or damages against the City and to defend any actions brought against the City for its refusal to disclose such material, trade secrets, or other proprietary information to any party."
Equal Opportunity
The City of San Marino requires all vendors to comply with equal opportunity policies.
Independent Contractor
The vendor will be an independent contractor. All persons employed by an organization in accordance with an Agreement resulting from this RFP will be employees of the organization and not of the City of San Marino.
X. EXHIBITS
Exhibit A - Proposal Price Sheet
Exhibit B - Professional Services Standard Agreement
Exhibit C - Insurance Requirements and Indemnification
Issued January 27, 2022
City of San Marino RFP for Transportation Services
EXHIBIT A- PROPOSAL PRICE SHEET
Name of Company: __ Mi_s_sio__n_Sc_h_o_ol_T_r_an__s__._p_ort_a_t_io__n�, ln__c. _________________ _ Address: _____ 6=5::;.;:0'""0'-'h""'o::..:.l:..:..:lis:..::te=r'-'Ave� =-'.'-'' S=u=it=e:......:....:I O::;.;:O:..i.., --=G=o=le=ta.=-C==--A:....9:....:3:....:lc..;l..:..7 __________ _ Business Phone: __ .....,(=80�5c.-,.)--=6=8�1---=8=3=55�--- RFP Contact Person: -J..Cla=m�es=�L=as==kv.,__ _____ ________________ _ _ Title: Dir. of Business Development
Business Phone: (323) 513-5330 Email Address: [email protected] Person Submitting Bid (if different): ------.---------- ------- Title: ----- -----------l �� Signature of Pe,son SubmiWng Bid, �- � Contract Pricing
Summer Day Camp/Contract Class Programs/Field Trips
Total Cost: ____________ _
Hourly Rate: _________ __ _
Excess Hourly Rate: $80.00 per hour after the first five OR Daily Rate: $450.00 for the first 5 hours or part
thereof
The rate for "additional transportation services" beyond the Scope of Work detailed in this RFP.
Additional transportation services are not guarantee. Based on a passenger bus capable of transporting an average of sixty (60) passengers at one time. If hourly rate varies for weekends or after hour time frames, please include all varied per hour rates.
Issued January 27, 2022
EXHIBIT B- PROFESSIONAL SERVICES STANDARD AGREEMENT
PROFESSIONAL SERVICES AGREEMENT
between
The City of San Marino
2200 Huntington Drive
San Marino, CA 91108
&
CONSULTANT'S NAME
CONSULTANT'S ADDRESS
CONSULTANT'S ADDRESS
This Professional Service Agreement ("the Agreement") is made as of INSERT DATE (the "Effective Date"), by and between CONSULTANT'S NAME ("Consultant"), FORM OF CONSULTANT'S LEGAL ENTITY [E.g. "a California corporation"], and the City of San Marino ("City"), a California municipal corporation, (collectively, "the Parties").
RECITALS
A. City desires certain professional services as specified in this Agreement.
B. Consultant represents that it is qualified and able to provide City with such services.
NOW TH ERE FORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows:
AGREEMENT
1.0 Scope of Services
1.1. Consultant shall provide those services ("Services") set forth in the attached Exhibit A.
1.2. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City.
1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local laws, ordinances, codes, and regulations. 1 .4. Consultant shall not be compensated for any work performed unless it is specified in Exhibit A or City authorizes such work in advance and in writing. Any work so authorized by City shall become part of the Services for purposes of this Agreement.
2.0 Term
The term of this Agreement shall commence as of the Effective Date and shall continue through INSERT END DATE unless sooner terminated as provided in Section
5.0 of this Agreement.
3.0 Consultant's Compensation
City will pay Consultant in accordance with the fee schedule set forth in Exhibit B but in no event will the City pay more than $INSERT AMOUNT-NOT-TO-EXCEED FOR THIS CONTRACT. Any additional work authorized by the City pursuant to Section 1.4 will be compensated in accordance with the fee schedule set forth in Exhibit B, unless otherwise approved by City in writing. Pursuant to Section 02.06.05 of the San Marino City Code, this Agreement shall not be effective unless previously approved by the City Council if it is for professional services of greater than thirty thousand dollars ($30,000.00).
4.0 Method of Payment
4.1. Consultant shall submit to City monthly invoices for all services rendered pursuant to this Agreement. Such invoices shall be submitted within 15 days of the end of the month during which the services were rendered and shall describe in detail the services rendered during the period, the days worked, number of hours worked, the hourly rates charged, and the services performed for each day in the period. City will pay Consultant all undisputed charges within 30 days of receiving Consultant's invoice. City will not withhold any applicable federal or state payroll and other required taxes, or other required or authorized deductions from payments made to Consultant.
4.2. Upon 24-hour notice from City, Consultant shall allow City or City's agents or representatives to inspect at Consultant's offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City's rights under this Section 4.2 shall survive for two years following the expiration or earlier termination of this Agreement.
5.0 Termination
5.1. City may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to Consultant at least five (5) calendar days before the termination is to be effective.
5.2. Consultant may terminate this Agreement for cause in the event City fails to cure a default under this Agreement within thirty (30) days after Consultant has given City notice of such default.
5.3. Upon termination of this Agreement, Consultant shall cease all work under this Agreement and deliver to City all materials, reports, documents, notes or other written materials compiled through the last working day this Agreement is in effect. City shall pay Consultant for all services satisfactorily rendered through the last working day this Agreement is in effect; provided that in no event, including but not limited to termination, shall Consultant be entitled to receive more than the maximum compensation set forth in Section 3. Neither party shall have any other claim against the other party by reason of termination pursuant to this Section 5.0.
6.0 Reports, Information, and Work Product
6.1. Consultant shall deliver to City: (1) any reports on the status of the Services upon City's request and in such time and in such form as City may require; and (2) all material furnished to Consultant by City upon City's request and/or upon the expiration or termination of this Agreement.
6.2. Unless the Parties agree in writing, all draft and final reports, documents, and other written material, and any and all images, ideas, concepts, designs including without limitation any website designs, source code, object code, electronic data and files, and/or other media whatsoever created or developed by Consultant in the performance of this Agreement (collectively, "Work Product") shall be considered to be "works made
for hire" for the benefit of City. All Work Product and any and all intellectual property rights arising from their creation, including, but not limited to, all copyrights and other proprietary rights, shall be and remain the property of City without restriction or limitation upon their use, duplication or dissemination by City upon final payment being made.
Consultant shall not obtain or attempt to obtain copyright protection as to any of the Work Product. Consultant hereby assigns to City all rights of ownership to the Work Product, including but not limited to any and all related intellectual property and proprietary rights that are not otherwise vested in the City pursuant to this paragraph.
6.3. Consultant warrants and represents that it has secured all necessary licenses, consents or approvals necessary to the production of the Work Product, and that upon final payment, City shall have full legal title to the Work Product, and full legal authority and the right to use and reproduce the Work Product for any purpose.
Consultant shall defend, indemnify, and hold City, and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of city officials, harmless from any loss, claim, or liability in any way related to a claim that any use by the City of any of the Work Product violates federal, state, or local laws, or any contractual provisions, or any rights or laws relating to trade names, licenses, franchises, copyrights, patents, or other means of protecting intellectual property rights, and/or interests in products, ideas, or inventions.
Consultant shall bear all costs arising from the use of patented, copyrighted, trade secret, or trademarked documents, materials, equipment, devices, or processes in connection with its provision of the Work Product produced under this Agreement. If any use by city of any of the Work Product or other deliverables is held to constitute an infringement and the use of any of the same is enjoined, Consultant, at its expense, shall: (a) secure for City the right to continue using such Work Product and/or other deliverables by suspension of any injunction, or by procuring a license or licenses for City; or (b) modify the Work Product and other deliverables so that they become non-infringing while remaining in compliance with the requirements of this Agreement.
6.4. Consultant's obligations under this Section 6.0 shall survive the expiration or termination of this Agreement.
7 .0 Party Representatives
7 .1. City's representative for purposes of this Agreement is the City Manager or the person designated in writing by the City Manager. The City Manager's designee may exercise the authority of the City Manager provided in this Agreement excepting approval of any expenditure that would exceed a total compensation allowed under the Agreement.
7.2. INSERT NAME OF CONSULTANT'S REPRESENTATIVE is Consultant's representative for purposes of this Agreement.
8.0 Notices
8.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United
States Mail, first class postage prepaid and addressed to the party at the following addresses:
To City:
To Consultant:
City of San Marino
2200 Huntington Drive
San Marino, California 91108
Attn: City Manager
CONSULTANT'S NAME
CONSULTANT'S ADDRESS
CONSULTANT'S ADDRESS
Attn: -------
8.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
9.0 Independent Consultant
9.1. Consultant is an independent contractor and not an employee of City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be 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 in connection with their performance of services under this Agreement and as required by law. 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, and workers' compensation insurance.
9.2. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs, and expenses of any nature to the extent arising from Consultant's personnel practices.
City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section.
All duties of Consultant under this Section 9.2 shall survive termination of this Agreement.
9.3. In the event that Consultant provides any of the Services by or through any employee or any person whose work under this Agreement becomes cause for any payment or contribution required by law, including but not limited to the California Public Employees' Pension Reform Act (PEPRA), to the Public Employee Retirement System, Consultant shall be solely responsible for all such payments or contributions. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs, and expenses of
any nature to the extent arising from Consultant's failure to make any such payment or contribution. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section. All duties of Consultant under this Section 9.3 shall survive termination of this Agreement.
10.0 Subcontractors
Unless otherwise specified in Exhibit A, no portion of this Agreement shall be subcontracted without the prior written approval of the City Manager. Consultant is fully responsible to City for the performance of any and all subcontractors, if any.
11.0 Assignment
Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City Manager. Any purported assignment without such consent shall be void and without effect.
12.0 Insurance
12.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements, including but not limited to additional insured endorsements, effecting coverage required by this Agreement on forms satisfactory to City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by City, ifrequested.
All certificates and endorsements shall be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
12.2. Consultant shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement.
Insurance is to be placed with insurers licensed to do business in California with a current A.M. Best's rating no less than A:VIII unless otherwise approved in writing by City.
Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability Coverage form (CG 0001); (2) Workers' Compensation: Consultant shall maintain Workers' Compensation insurance as required by the State of California and Employer's Liability insurance with limits of at least $1,000,000) per occurrence; (3) Automobile Liability: Insurance Services Office BusinessAuto Coverage formnumber CA 0001, code 1 (any auto); and, (4) Sexual Abuse/Molestation Insurance. Consultant shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injuryand property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this
Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Workers' Compensation: Consultant shall maintain Workers' Compensation insurance as required by the State of California and Employer's Liability insurance with limits of at least $1,000,000) per occurrence; (3) Automobile Liability: $10,000,000 per accident for bodily injury and property damage; and (4) Sexual Abuse/Molestation Insurance: $1,000,000 per occurrence and $2,000,000 general aggregate.
12.3. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by City to state: (1) coverage shall not be suspended, voided, reduced or canceled by Consultant except after 30 days prior written notice by certified mail, return receipt requested, has been given to City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City, its directors, officials, or officers; (3) coverage shall be primary insurance as respects City, its directors, officials, officers, employees, agents and volunteers, orif excess, shall stand in an unbroken chain of coverage excess of Consultant's scheduled underlying coverage and that any insurance or self-insurance maintained by City, its directors, officials,officers, employees, agents and volunteers shall be excess of Consultant's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of Consultant, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Consultant or for which Consultant is responsible.
12.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope ofprotection afforded to City, its directors, officials, officers, employees, agents, and volunteers.
12.5. Any deductibles or self-insured retentions shall be declared to and approved by the City Manager. Consultant guarantees that, at the option of the City Manager, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its directors, officials, officers, employees, agents, and volunteers; or (2) Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.
12.6. Consultant waives any right to subrogation that any insurer of Consultant may acquire by virtue of payment of any loss under the policies required by this Agreement. Consultant shall obtain any endorsement that may be necessary to affect this waiver of subrogation.
13.0 Indemnification, Hold Harmless, and Duty to Defend
13.1. To the maximum extent permitted by law, Consultant shall defend, indemnify, and hold City, its officials, officers, employees, volunteers and agents serving
as independent contractors in the role of city officials (collectively "lndemnitees") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Consultant, its employees, its agents, or its subcontractors in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses, except for such loss or damage arising from the sole negligence or willful misconduct of City. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against lndemnitees, Consultant shall defend lndemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against lndemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, City, its directors, officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement.
13.2. Consultant must obtain executed indemnity agreements with provisions identical to those in Section 13.1 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of the Services. If Consultant fails to obtain such indemnities, Consultant shall be fully responsible and indemnify, hold harmless, and defend the lndemnitees from and against any and all Claims in law or equity, whether actual, alleged, or threatened, arising or claimed to arise out of, pertaining to, or relating to the acts or omissions of Consultant's subcontractor, its officers, agents, servants, employees, subcontractors, materialmen, contractors, or their respective officers, agents, servants or employees (or any entity or individual that Consultant's subcontractor shall bear the legal liability thereof) in the performance of this Agreement, including the lndemnitees' active or passive negligence, except for Claims arising from the sole negligence or willful misconduct of the lndemnitees, as determined by final arbitration or court decision or by the agreement of the Parties.
14.0 Equal Opportunity
Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non-discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination.
15.0 Labor Certification
15.1. By its signature hereunder, Consultant certifies it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance
with the provisions of that Code. Consultant shall provide evidence of such coverage before commencing the performance of the Services.
15.2. Consultant certifies that in the performance of the Services, Consultant shall not, in any manner, employ any person or contract with any person so that any Services so performed by such person would be subject to the workers' compensation laws of the State of California unless and until Consultant gives City a certificate of consent to selfinsure or a certificate of Workers' Compensation Insurance Coverage.
15.3. In the event Consultant hires a subcontractor who has employees to perform the Services or any part thereof, then Consultant shall either require the subcontractor to obtain Workers' Compensation Insurance Coverage, or must obtain Workers' Compensation Insurance Coverage for the subcontractor's employees.
15.4. Any Workers' Compensation Insurance Coverage required by or for this Agreement shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, its agents, and its subcontractors.
16.0 Entire Agreement
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties. 17 .0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement.
18.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California.
19.0 No Third Party Rights
No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement.
20.0 Waiver
No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall givethe other party any contractual rights by custom, estoppel, or otherwise.
21.0 Headings
Headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement.
22.0 Force Majeure
Consultant shall not be liable for any failure to perform any obligation under this Agreement if Consultant presents that City in its sole judgment deems acceptable that such failure was due to strikes, lockouts, labor disputes, embargoes, acts of God, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond Consultant's reasonable control and not due to any act by Consultant.
23.0 Final Payment Acceptance Constitutes Release
Consultant's acceptance of City's final payment under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for the Services or anything done or furnished relating thereto. Neither City's payment to Consultant nor approval of payment constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, sub-contractors and agents for the accuracy and competency of the information provided and/or work performed; nor shall such or payment or approval be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors and agents.
24.0 Prohibited Interests; Conflict of Interest
24.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any mannerwith the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services.
Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code §§1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained.
24.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift.
24.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of thisAgreement, Consultant shall immediately make a complete, writtendisclosure of such interest to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws as described in this subsection.
25.0 Attorneys' Fees
If either party commences any legal, administrative, or other action against the other party arising out of or in connection with this Agreement, the prevailing party in such action shall be entitled to have and recover from the losing party all of its attorneys' fees and other costs incurred in connection therewith.
26.0 Exhibits
Each exhibit referenced in this Agreement is hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control.
27 .0 Corporate Authority
27.1. Each person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of Consultant and that by his or her execution, Consultant is formally bound to the provisions of this Agreement.
27.2. Consultant certifies it is aware of the requirements of Sections 313 of the California Corporations Code. If Consultant is a corporate entity, it shall either: (a) provide City written proof that each person executing this Agreement on Consultant's behalf is duly authorized to bind Consultant; or (b) provide two signatories to this Agreement, of whom the first must be Consultant's chairman of the board, president, or a vice president and the second must be Consultant's secretary, an assistant secretary, its chief financial officer, or an assistant treasurer.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the Effective Date.
CITY OF SAN MARINO CONSULTANT
By: By:
Marcella Marlowe, Ph.D. (Sign)
City Manager Name:
Attest: (Print)
Title:
By: (Print)
City Clerk
By:
Approved as to Form: (Sign)
Name:
By: (Print)
Joseph Montes Title: City Attorney (Print)
See attached proposal (Page XXX)
Exhibit A
Scope of Services
See attached proposal (Page XXX)
Exhibit 8
Fee Schedule
City of San Marino RFP for Transportation Services
EXHIBIT C- INSURANCE REQUIREMENTS AND INDEMNIFICATION
Without limiting the Vendor's indemnification of the City, and prior to commencement of work, the Vendor shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the types and amounts described below and in a form that is satisfactory to City.
General Liability Insurance
Vendor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 0 I, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted.
Automobile Liability Insurance
Vendor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 0 I covering bodily injury and property damage for all activities of the Vendor arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than $10,000,000 combined single limit for each accident.
Workers' Compensation Insurance
Vendor shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000).
Umbrella or Excess Liability Insurance
Vendor shall obtain and maintain an umbrella liability insurance policy with limits that will provide bodily injury, personal injury, and property damage liability coverage, including commercial general liability, automobile liability, and employer's liability. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason, other than bankruptcy or insolvency of said primary insurer;
• "Pay on behalf of' wording as opposed to "reimbursement"; • Concurrency of effective dates with primary policies.
Should Vendor obtain and maintain an excess liability policy, such policy shall be excess over commercial general liability, automobile liability, and employer's liability policies. Such policy or policies shall include wording that the excess liability policy follows the terms and conditions of the underlying policies.
Sexual Abuse/Molestation Insurance
Vendor shall procure and maintain sexual abuse/molestation liability coverage with limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate. Coverage may be provided as part of commercial general liability coverage, professional liability coverage, or as a separate policy.
Issued January 27, 2022
City of San Marino RFP for Transportation Services
Other Provisions or Requirements
Proof of Insurance
Vendor shall provide certificates of insurance and required endorsements to the City as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by the City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with the City for the contract period and any additional length of time required thereafter.
The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of Coverage
Vendor shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the performance of the work hereunder by Vendor, their agents, representatives, or employees.
Primary/Non-Contributing
Coverage provided by Vendor shall be primary and any insurance or self-insurance procured or maintained by the City shall not be required to contribute with it.
The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City before the City's own insurance or self- insurance shall be called upon to protect it as a named insured.
City's Rights of Enforcement
In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by the City will be promptly reimbursed by Vendor or the City will withhold amounts sufficient to pay premium from Vendor payments. In the alternative, the City may cancel this Agreement.
Acceptable Insurers
All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager.
Waiver of Subrogation
All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Vendor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against the City and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Issued January 27, 2022
City of San Marino RFP for Transportation Services
Enforcement of Contract Provisions (Non-Estoppel)
Vendor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Vendor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
Rec;iuirements not Limiting
Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Vendor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Notice of Cancellation
Vendor agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten ( I 0) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Vendor's insurers are unwilling to provide such notice, the Vendor shall have the responsibility of notifying the City immediately in the event of Vendor's failure to renew any of the required insurance coverages or insurer's cancellation or non-renewal.
Additional Insured Status
General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that the City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
Prohibition of Undisclosed Coverage Limitations
None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to the City and approved of in writing.
Separation of Insureds
A severability of interests provision must apply for all additional insureds ensuring that Vendor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
City's Right to Revise Specifications
The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Vendor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Vendor, the City and Vendor may renegotiate Vendor's compensation.
Self-Insured Retentions
Any self-insured retentions must be declared to and approved by the City. The City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
Issued January 27, 2022
City of San Marino RFP for Transportation Services
Timely Notice of Claims
Vendor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Vendor's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
Additional Insurance
Vendor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
Indemnification
Vendor shall indemnify, defend, and hold harmless the City, and its officers, employees, and agents ("City indemnitees"), from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels' fees and costs of litigation ("claims"), arising out of the Vendor's performance of its obligations under this agreement or out of the operations conducted by Vendor, including the City's active or passive negligence, except for such loss or damage arising from the sole negligence or willful misconduct of the City. In the event the City indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from Vendor's performance of this agreement, the Vendor shall provide a defense to the City indemnitees or at the City's option reimburse the City indemnitees their costs of defense, including reasonable legal counsels' fees, incurred in defense of such claims.
Issued January 27, 2022
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STRATEGIC PLAN CRITICAL SUCCESS FACTORS
• Engaged and Connected Residents
• Efficient, Responsive, and Effective City Services
• Inviting and Relevant City Facilities
• Beautiful, Preserved, Single-Family Neighborhoods
BACKGROUND
The Old Mill is a City-owned property that allows for a variety of cultural, educational, and community uses. It is operated and maintained by the Old Mill Foundation (Foundation). For many years, the City has had a Memorandum of Understanding (MOU) with the Foundation to formalize this arrangement. On July 26, 2013, the Council considered and approved an MOU with an expiration date of June 30, 2018.
In early 2015, the Foundation approached the City with a request to modify the MOU to enable the Foundation to assume full responsibility of the Old Mill facility rental program. Previously, rentals were handled through the City’s Recreation Division. The MOU was drafted and presented to the Council on April 24, 2015. The agreement was approved by both parties but it was never signed and executed. Even though the agreement was not executed and the July 26, 2013 MOU had expired, the Foundation assumed responsibility for all rentals at the Old Mill per the 2015 approved agreement.
On January 8, 2020, the City Council approved an MOU with a 2-year term that expired on January 8, 2022. The MOU was amended to include the following changes:
• A two year term instead of five;
TO: Mayor and City Council
FROM: Marcella Marlowe, Ph.D., City Manager
BY: Isidro Figueroa, Community Development Director
DATE: April 13, 2022
SUBJECT: APPROVAL OF A MEMORANDUM OF UNDERSTANDING
REGARDING THE USE AND OPERATION OF THE OLD MILL
BETWEEN THE CITY OF SAN MARINO AND THE OLD MILL
FOUNDATION
Susan Jakubowski, Mayor
Steve Talt, Vice Mayor
Steven W. Huang, DDS, Council Member
Gretchen Shepherd Romey, Council Member
Ken Ude, Council Member
• Clarification of what constitutes a minor or major maintenance issue, with the Foundation continuing to handle all minor maintenance issues, and the City continuing to handle major maintenance issues;
• Limiting rentals to non-profit and community groups;
• Detailed event and operating guidelines (Exhibits A and B of the MOU); and • An annual payment to the Foundation of $56,000 instead of $55,000 to account for the Foundation assuming the cost of their own General Liability insurance policy.
DISCUSSION
The City and the Foundation have been discussing amendments to the previously approved MOU to reflect the Old Mill’s current operations that have been adopted by the Foundation as a result of the impacts of COVID-19. The Foundation decided to make the gardens available to the public during hours when the buildings are closed. Currently, the Foundation operates the gardens (without any staff present) daily from around 8 a.m. to around 5:00 p.m. The buildings (with staff present) are open Tuesday, Wednesday, Saturday, and Sunday from 11:00 a.m. to 2:00 p.m., and are fully staffed. The Foundation is exploring options to increase staffing to facilitate the reopening of the building daily with the exception of Monday.
The main changes between the previous and proposed MOUs include:
• Section 1.0- change in term from 5 years instead of 2 years; • Section 4.2.3.- require that a Foundation volunteer or employee be on site during public hours when the building is open but not when only the garden is open; • Section 4.2.4.- require that the Foundation lock all buildings when staff or volunteers are not present and the grounds from sunset to 8:00 a.m. daily, except as needed for scheduled maintenance or trash collection;
• Section 4.5- require the Foundation to provide Exhibit A and Exhibit B upon request as opposed to, only to parties renting the facility as it currently states; • Section 5.0- increase the City’s to contribute an annual payment to the Foundation of $60,000 instead of $56,000; and
• Sections 1 and 2 of Exhibit A are proposed to be amended to identify the separate staffing requirements for the Old Mill and garden, as noted in the proposed Agreement.
FISCAL IMPACT & PROCUREMENT REVIEW
A contribution of $60,000 is proposed in the MOU. If the MOU is approved, staff will include $60,000 budget to Account 101-95-4150-0000 (Other Contract Services) for the FY 2022-23 Proposed Budget.
LEGAL REVIEW
The City Attorney reviewed the staff report and has approved it to legal form.
RECOMMENDATION
Staff recommends the City Council authorize the City Manager to execute the new MOU with the Old Mill Foundation. If the City Council concurs with staff’s recommendation, an appropriate motion would be:
“I move to authorize the City Manager to execute an MOU with the Old Mill Foundation for the use and operation of the Old Mill.”
ATTACHMENTS
1. Memorandum of Understanding Regarding the use and operation of the Old Mill between the City of San Marino and the Old Mill Foundation
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MEMORANDUM OF UNDERSTANDING REGARDING THE USE AND
OPERATION OF THE OLD MILL BETWEEN THE CITY OF SAN MARINO AND
THE OLD MILL FOUNDATION
THIS AGREEMENT (the “Agreement”) is dated _____, 2022 and is entered into by and between the CITY OF SAN MARINO, a municipal corporation (the “City”) and the OLD MILL FOUNDATION, a California non-profit corporation, created by Articles of Incorporation (the “Foundation”).
RECITALS
A. The City is the owner of certain property in the City of San Marino known as the Old Mill (El Molino Viejo), located at 1120 Old Mill Road, San Marino, CA (the “Old Mill”).
B. The Foundation is a non-profit, 501(c)(3) corporation that was established in 1995 to preserve, protect, maintain and operate the Old Mill.
C. The Old Mill is designated as a California State Historical Landmark.
D. The Old Mill was a gift from the Brehm Family to the City in 1962 for the purposes of maintaining the Old Mill as a City monument and park.
E. The City recognizes the Foundation’s past assistance and desires that the Foundation continue to assist the City with the operation, maintenance, and development of the Old Mill.
F. The City and the Foundation desire to operate the Old Mill with due respect for its neighbors, recognizing that the Old Mill is situated in a residential neighborhood and lacks off-street parking.
G. The City desires to provide an annual contribution to the Foundation pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration for the mutual promises hereinafter set forth the parties hereto agree as follows:
AGREEMENT
1.0 TERM
1.1 Term. The term of this Agreement shall be five (5) years, beginning on ________, 2022 and expiring on _______, 2027, subject to earlier termination or cancellation as provided in Article 8 of this Agreement.
2.0 APPOINTMENT OF FOUNDATION
2.1 Foundation’s Role. City hereby retains the Foundation as an independent contractor to manage, operate and maintain the Old Mill, and the Foundation hereby agrees to manage, operate and maintain the Old Mill as an independent contractor, on the terms and conditions stated in this Agreement. The parties agree that this Agreement is a contract for services only.
2.2 Foundation Improvements. The Foundation may make improvements, additions, alterations or changes (“Improvements”) to the Old Mill upon satisfying all of the following conditions: (i) Foundation obtains the prior written approval of the City, which approval may be granted or withheld in the City’s sole and absolute discretion; (ii) Foundation secures all applicable licenses, permits and other governmental approvals necessary to complete the construction of the Improvements; and (iii) Foundation causes all Improvements to be designed and constructed so as to be consistent with the terms and conditions of those same approved licenses and permits. Written approval is not required for repairs and alterations needed to maintain the property as described in Section 3.1.
3.0 MAINTENANCE
3.1 Maintenance. The Foundation shall at all times keep and maintain the facilities of the Old Mill in good condition and repair, and in a clean and safe condition satisfactory to the City in the City’s sole and absolute discretion, consistent with the historical nature of the facility. The Foundation’s duty to maintain the Old Mill includes, but is not limited to, normal and customary custodial services (mopping, trash removal, dusting, event set-up and tear down, etc.), landscape maintenance, replacement of light bulbs and light fixtures, minor fence repairs; drain cleaning; plumbing fixture repairs and parts replacement, replacement of electrical sockets and switches, security systems, touch-up painting and similar items. All improvements shall be completed by licensed contractors if required by State law. The Foundation is responsible for purchasing all materials associated with routine maintenance, including cleaning supplies and public use supplies, such as bathroom stock.
3.2 Furnishings and Appliances. The Foundation shall be responsible for the furnishings and appliances in all buildings.
3.3 Major Maintenance.
3.3.1. “Major Maintenance” is defined as the repair or replacement of failed or failing building components as necessary to return a facility to its currently intended use, to prevent further damage, or to make it compliant with current law, regulations, codes or
standards. Major maintenance does not include the purchase of appliances. Whether any work is deemed to amount to Major Maintenance shall be in the sole and absolute discretion of the City.
3.3.2. The Foundation shall notify the City in the event Major Maintenance must be completed. Upon its receipt of such notice, the City shall provide or cause to be provided the Major Maintenance. The City shall pay for the completion of all Major Maintenance. The City shall, in its sole discretion, determine the time, place, and manner of providing all Major Maintenance.
3.3.3 The City shall be solely responsible for all on-site tree care including, trimming, pruning, and removal.
3.4 Compliance with Laws. The Foundation represents and warrants that its maintenance obligations under this Agreement shall be constructed in compliance with applicable legal requirements, including all applicable federal and state occupation, safety and health standards. In performing this Agreement, the Foundation is an independent contractor and not the agent of the City. The City shall not have any responsibility for making payments to any contractor or supplier of the Foundation.
3.5 Utilities. The Foundation shall pay when due, all utilities including but not limited to water, gas, electricity, telephone, video (cable or satellite), and other public utility charges furnished to the Foundation for the operations of the Old Mill.
4.0 USE AND OPERATION
4.1 Operation of the Old Mill. The Old Mill, as a City landmark dedicated to cultural purposes, must be made open and available as a public facility in accordance with the rules and regulations described in Exhibit A and Exhibit B of this Agreement. The Old Mill may not be operated as a private club or used solely for the benefit of the members of the Foundation.
The Foundation shall maintain, operate, and develop the Old Mill as an historic resource and shall manage all activities conducted at the Old Mill in accordance with this Agreement.
4.2 General Operating Regulations. The City Council may amend the rules and regulations described in Exhibit A and Exhibit B, and such modifications shall not require an amendment to this Agreement.
4.2.1. The Foundation shall ensure the Old Mill is open to the public in accordance with hours of operation and rules set forth in Exhibit A of this Agreement. The Foundation shall provide docents and tour guides, as needed, during such hours.
4.2.2. The Foundation shall at its cost hire staff, which may include an on-site caretaker, to facilitate the use and operations of the Old Mill. Staff hired by the Foundation pursuant to this provision shall be fingerprinted and background-checked pursuant to the City’s Personnel Rules and Regulations. Foundation employees and volunteers are not employees or volunteers of the City and are not entitled to receive from City any of the benefits or rights afforded to employees of City, including but not limited to any type of leave, Public Employees
Retirement System benefits, or health, life, dental, long-term disability and workers' compensation benefits.
4.2.3. The Foundation shall ensure that a Foundation volunteer or employee is on site during public hours when the building is open but staffing is not required when only the garden is open. At special events, a Foundation volunteer or employee shall be on site to monitor the Old Mill for safety and to ensure adherence to the terms and conditions of this Agreement.
4.2.4. The Foundation shall ensure all buildings are locked when staff or volunteers are not present. The grounds shall be locked from sunset to 8 a.m. daily, except as needed for scheduled maintenance or trash collection.
4.2.5. The Foundation shall submit a security plan for review and approval to the City upon request. Approval of the Foundation’s security plan shall be in the sole and absolute discretion of the City.
4.2.6. The Foundation may offer goods for retail, but is prohibited from selling food and alcoholic beverages. This provision does not prohibit food and alcohol from being served and consumed at events pursuant to the rules and regulations included in Exhibit A of this Agreement.
4.2.7. The City reserves the right to utilize the Old Mill for its own special events, public meetings, private rentals and filming at no cost. Such events shall not count toward the event maximum described in Exhibit B. All filming requests shall be managed by the City with access coordinated with the Foundation. All other such uses shall be coordinated between City and the Foundation and shall be subject to scheduled arrangements mutually agreed upon. The City and Foundation shall coordinate a facility monitor when conducting these activities.
4.2.8. The Foundation shall ensure that the ambient noise levels do not exceed the limits included Chapter 14, Article 04 of the San Marino City Code. Furthermore, the Foundation and the City shall prevent persons who violate or abuse Old Mill rules, regulations and privileges from using the Old Mill.
4.5 Old Mill Rental. The Foundation may rent the Old Mill and specific areas of the Old Mill to non-profit organizations, community groups, and members of the Old Mill Foundation subject to the rules and regulations included in Exhibit A and Exhibit B of this Agreement. Upon request, the Foundation agrees to provide Exhibit A and Exhibit B to any party renting the Old Mill and shall be responsible for the enforcement of the terms provided by Exhibit A and Exhibit B. Exhibits A and Exhibit B may be included as part of the rental agreement.
4.5.1. The Foundation shall require any party who uses the Old Mill to complete a Rental Agreement. The Rental Agreement shall be approved by the City Manager prior to use by the Foundation.
4.6 Collection of Fees. Foundation may charge reasonable admission, use or similar fees or charges to the public users of the Old Mill for events including but not limited to fundraisers and summer concerts, and the use of the Old Mill gallery space. Any fees collected for such activities shall be established and approved by the Foundation Board. All fees collected pursuant to this provision shall be deposited and held in a fund under the control of the Foundation to be used solely for the furtherance of the items and responsibilities described in this Agreement. The Foundation agrees to provide the City an annual fee schedule of Old Mill activities and charges to the public.
4.7 Compliance with Laws. The Foundation shall comply with all local, state and federal laws and regulations applicable to the operation of the Old Mill. The Foundation shall not knowingly permit any illegal activities to be conducted on or about the Old Mill.
4.9 Foundation’s Obligation to Refrain from Discrimination. The Foundation shall not discriminate against any person or group of persons on account of race, color, creed, religion, ancestry, national origin, gender, sexual orientation or disability in the performance of the Foundation’s duties and obligations under this Agreement. Neither the Foundation nor any person claiming under or through it shall establish or permit any practice of discrimination in the hiring of staff, selection of vendors, the access to and use of the Old Mill or in the performance of the Foundation’s duties and obligations under this Agreement. The Foundation shall be an equal opportunity employer in conformance with all applicable laws.
4.10 Safety. The Foundation shall immediately correct any unsafe condition of the Old Mill, as well as any unsafe practices by persons reasonably under its control occurring thereon. Promptly after the occurrence of damage to persons or property occurring on, at or near the Old Mill, the Foundation shall submit to the City a written report on the incident. The Foundation shall cooperate fully with the City in the investigation of any damage to persons or property occurring on or about the Old Mill.
4.11 Meetings. Representatives of the Foundation and the City shall meet as may be reasonably requested by the City or the Foundation to discuss matters related to the implementation of this Agreement.
4.12 No Assignment. The Foundation acknowledges that the City is entering into this Agreement in reliance on the unique skills, reputation, and experience of Foundation to maintain and operate the Old Mill facilities. Consequently, the Foundation shall not assign all or any part of its rights or obligations under this Agreement without the prior written consent of the City, which consent may be withheld or conditioned in the reasonable discretion of the City.
5.0 FUNDING OF OPERATIONS
5.1 City Payment. The City agrees to pay the Foundation annually the amount of $60,000 in consideration for the Foundation providing annual maintenance and operation services for the Old Mill in accordance with his Agreement. The payment must be made as soon as practicable, but no later than September 30th of each year.
6.0 BUSINESS RECORDS
6.1 Types of Records. The Foundation shall maintain a method of accounting for all the revenues and expenses in connection with the operation of the Old Mill, which shall correctly and accurately reflect the gross revenues received and disbursements made by the Foundation related to the operation of the Old Mill. The method of accounting established for the operation and maintenance of the Old Mill shall be separate from the accounting system used for any other business operated by the Foundation.
6.2 Inspection of Records. All documents, books and accounting records kept by Foundation pursuant to this Article 6 shall be open for inspection by the City Manager or Finance Director at any reasonable time during the term of this Agreement and for at least three years thereafter. The City Manager or his or her designee shall use reasonable efforts to minimize the interruption with the normal operation of the Foundation during any inspection performed pursuant to the provisions of this Section.
6.3 Annual Financial Statements. Foundation shall submit financial statements for the operation of the Old Mill to the City within one hundred-twenty (120) days after the end of each fiscal year. The Foundation shall also submit annual documentation supporting their 501(c)(3) status at the same time.
7.0 INSURANCE AND INDEMNIFICATION
7.1 Insurance. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. The following insurance shall be obtained and maintained by the Foundation during the term of this Agreement:
7.1.1. Worker’s Compensation Insurance. The Foundation shall take out and maintain during the term of this Agreement worker’s compensation insurance and employer’s liability insurance, for all workers employed pursuant to this Agreement. The Foundation shall require their subcontractor(s) to provide worker’s compensation insurance for all of subcontractor’s employees. The Foundation shall submit to the City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City, its officers, agents, employees, and volunteers
7.1.2. Automobile Liability. b) Automobile Liability coverage (Form CA 00 01 with Code 1 – any auto) with minimum limits of $1,000,000 per accident for bodily injury and property damage.
7.1.3. General Liability. a) Commercial General Liability coverage (occurrence Form CG 00 01) with minimum limits of $1,000,000 per occurrence for bodily injury, personal injury, products and completed operations, and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
7.1.4. Insurance Requirements.
A. Acceptability of Insurers: Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to City. Insurers shall also be licensed to operate as an admitted carrier in the State of California unless specifically waived by all parties hereto.
B. Cancellation of Coverage: Each insurance policy required by this Section 7.1. shall provide that the coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to all parties hereto.
C. Additional Insured: For the general liability coverages, the policies shall be endorsed to add the City and their officers, officials, employees and volunteers as additional insureds as respects: liability arising out of work or operations performed by or on behalf of the Foundation; products and completed operations of the Foundation; premises owned, occupied or used by the Foundation; and automobiles owned, leased, hired or borrowed by the Foundation. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees or volunteers.
D. Primary Insurance: For any claims related to this Agreement, insurance coverage shall be primary insurance. Any insurance or self-insurance maintained by the parties entitled to be insured hereunder shall be excess of the insurance of the party required to purchase it and shall not contribute with it.
7.1.5. Certificate of Insurance. The Foundation shall complete and file with the City, prior to engaging in any operation or activity set forth in this Agreement, original certificates of insurance and endorsements effecting coverage as required in this Section 7.1.
No cancellation, change in coverage or nonrenewal by the insurance company will be made during the term of this Agreement, without thirty (30) days’ written notice to all parties hereto prior to the effective date of such cancellation or change in coverage. In the event that (i) a party informs another party that it cannot provide the coverage or a related endorsement for each of the above requirements; or (ii) a party tenders a claim to another party or otherwise notifies that party in writing of a claim, and that party or its insurer fails to respond in writing within ten (10) working days; then the insured party shall have the right to require the insuring party to provide complete, certified copies of all insurance policies for the Old Mill (or, if the policies cover other facilities in addition to the Old Mill, those portion of the policies which are necessary to understand the terms and conditions of coverage), including endorsements effecting the coverage required by this Article 7.
7.1.6. Material Breach. Failure of a party to meet any requirement as specified in this Article 7, after written notice and cure period, if any, provided by Article 8, shall be deemed to be a material breach of the Agreement with consequences resulting as specified in this Agreement.
7.2 Waiver of Subrogation. The parties release each other, and their respective authorized representatives, from any claims for damage to any person or to the Old Mill that are caused by or result from risks insured against under any insurance policies carried by the parties and in force at the time of any such damage.
7.3 Indemnification
7.3.1. Each Party shall indemnify, defend, protect, hold harmless, and release the other Party and its elected bodies, officers, agents, and employees, from and against any and all claims, losses, proceedings, damages, causes of action, liability, costs, or expense (including attorneys’ fees and witness costs) arising from or in connection with, or caused by any negligent act or omission or willful misconduct of such indemnifying Party. This indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages or compensation payable to or for the indemnifying party under workers’ compensation acts, disability benefit acts, or other employee benefit acts.
7.3.2. The acceptance by a party or deposit with that party of any of the insurance policies described in this Article 7 shall not relieve the City or the Foundation of their indemnification obligations under Article 7, which shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, in the facilities or on the property of the Old Mill or in connection with the operations of the Foundation, regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.
8.0 DEFAULT
8.1 Default. The occurrence of any one or more of the following events if not cured within thirty (30) days after written notice thereof to the Foundation shall constitute a default and breach of this Agreement by the Foundation: (a) the Foundation’s abandonment of its duties or vacation of the Old Mill; (b) the Foundation’s failure promptly and fully to perform any other covenant, condition or agreement contained in this Agreement where such failure continues for thirty (30) days after written notice from the City to the Foundation or, in the event that any such failure is of a nature such that it cannot be remedied within thirty (30) days, the Foundation’s failure immediately to commence and thereafter continuously to pursue to completion a cure of such failure; or (c) the filing by or against the Foundation of a petition for relief or other proceeding under the federal bankruptcy laws or state or other insolvency laws.
8.2 Termination.
8.2.1. In the event of the Foundation’s default as described in Sections 8.1, the City may immediately terminate this Agreement by written notice to Foundation.
8.2.2. The Foundation may terminate this Agreement with or without cause by providing ninety (90) days prior written notice to the City. The City may terminate this Agreement with or without cause by providing ninety (90) days prior written notice to the Foundation.
8.2.3. The Foundation shall, upon the expiration or earlier termination of the term of this Agreement, immediately surrender and deliver the Old Mill to the City in good condition and repair, together with all improvements made by the Foundation, and all furniture, furnishings, equipment and personal property then provided or purchased by the City and located at the Old Mill. The Foundation reserves the right to keep appliances, furnishings, equipment, or personal property purchased by the Foundation, and must return to the
respective party all appliances, furnishings, equipment, or personal property that was neither provided for or purchased by the City or the Foundation.
8.2.4. The Foundation will pay the City all costs and reasonable attorney’s fees which the City may be required to incur in enforcing any of the rights or remedies under this Agreement.
9.0NOTICES
9.1 Notice. Any notice, demand, request, consent, approval or communication that any party desires or is required to give to another party shall be in writing and shall be deemed given as of the time of hand delivery to the addresses set forth below, by one day after deposit into the United States mail, postage prepaid, or by registered or certified mail, return receipt requested. Unless notice of a different address has been given in accordance with this Article 9, all such notices shall be addressed as follows:
If to the City of San Marino:
City of San Marino,
2200 Huntington Drive, San Marino, CA 91108,
Attn: City Clerk.
If to the Foundation:
Old Mill Foundation
1120 Old Mill Road, San Marino CA 91108
Attn: President
or such other address as either party may from time to time specify in writing to the other.
10.0 MISCELLANEOUS
10.1 Exhibits. All Exhibits attached hereto are incorporated herein by this reference as if fully set forth herein; provided, however, in the event that at the time of the execution of this Agreement any of the Exhibits to be attached are incomplete, the parties shall use their best efforts to complete such Exhibits at the earliest possible date. To the extent this Agreement may be rendered unenforceable by the lack of completion of any of the Exhibits, such defect shall be cured as such incomplete Exhibits are made complete in accordance with this Section, except to the extent that such Exhibits are deemed and stipulated by the parties to be complete on the execution of this Agreement by the parties hereto. If any Exhibits are subsequently changed by the mutual written agreement of the parties, the Exhibits shall be modified to reflect such change or changes and initialed by the parties.
10.2 Attorney Fees. In the event of any action between City and Foundation seeking enforcement of any of the terms and conditions of this Agreement, the prevailing party in such
action shall be awarded, in addition to damages, injunctive or other relief, reasonable costs and expenses and reasonable attorney’s fees.
10.3 Authority of Person(s) Signing. The City Manager or his or her designees is authorized to execute all the terms and conditions of this Agreement and take any action to carry out the City’s responsibilities pursuant thereto. Any individual signing this Agreement in his or her capacity as a representative for the Foundation warrants and represents that he or she is expressly authorized by the Foundation to execute this Agreement on the Foundation’s behalf and to bind the Foundation.
10.4 Entire Agreement. This Agreement and the Exhibits hereto embody the entire agreement and understanding of the parties relating to the subject matter hereof and supersede all prior representations, agreements, and understandings, oral or written, relating to such subject matter.
10.5 Amendment and Waiver. This Agreement may not be amended or modified in any way except by an instrument in writing executed by all parties hereto; provided, however, either party may, in writing, (i) extend the time for performance of any of the obligations of the other, (ii) waive any inaccuracies and representations by the other contained in this Agreement, (iii) waive compliance by the other with any of the covenants contained in this Agreement, and (iv) waive the satisfaction of any condition that is precedent to the performance by the party so waiving of any of its obligations under this Agreement.
10.6 No Partnership or Joint Venture. Nothing contained herein shall be deemed or construed by the parties hereto or by any third party as creating the relationship of (i) a partnership, or (ii) a joint venture between the parties hereto.
10.7 Severability. Except as expressly provided to the contrary herein, each section, part, term, or provision of this Agreement shall be considered severable, and if for any reason any section, part, term, or provision herein is determined to be invalid and contrary to or in conflict with any existing or future law or regulation by a court or governmental agency having valid jurisdiction, such determination shall not impair the operation of or have any other affect on other sections, parts, terms, or provisions of this Agreement as may remain otherwise intelligible, and the latter shall continue to be given full force and effect and bind the parties hereto, and said invalid sections, parts, terms, or provisions shall not be deemed to be a part of this Agreement.
10.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
10.9 Survival. The Foundation’s and the City’s responsibility for such defense and indemnity shall survive termination or completion of this Agreement for the full period of time allowed by law.
10.10 Construction and Interpretation of Agreement. This Agreement shall be governed by and construed under the laws of the State of California. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or
considering same shall not apply the presumption that the terms hereof shall be more strictly construed against a party by reason of the rule or conclusion that a document should be construed more strictly against the party who itself or through its agent prepared the same. It is agreed and stipulated that all parties hereto have equally participated in the preparation of this Agreement and that legal counsel was consulted by each party before the execution of this Agreement.
10.11 Captions. Captions, titles to sections, and paragraph headings used herein are for convenience of reference and shall not be deemed to limit or alter any provision hereof.
10.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same Agreement.
[Signatures on the following page]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
CITY OF SAN MARINO:
ATTEST:
_____________________________
Christina Baker, City Clerk
By:
_________________________________
Name: Marcella Marlowe
Title: City Manager
FOUNDATION:
OLD MILL FOUNDATION, a California
Non-Profit Corporation
By:
_________________________________
Name: John H. Quinn
Title: President
By:
_________________________________
Name: Ruth Pasqualetto
Title: Vice President
Exhibit A
GENERAL OPERATING GUIDELINES OF THE OLD MILL
1. At minimum, the Old Mill building and garden will be open to the public Tuesday through Sunday from 11 a.m. to 2 p.m.
2. The Old Mill Foundation will provide staff or volunteers on-site at the Old Mill during the public visiting hours when the building is open, and ensure a facility monitor is present during all facility rentals.
3. Rental uses shall be limited to events hosted by non-profit or community groups.
The Foundation will ensure facility agreements, waivers, and insurance are obtained for these uses. Additionally, it shall be the responsibility of the Foundation to ensure outside vendors have all applicable licenses and insurance.
4. In order to maintain proper Fire Department access, on-site parking for visitors is prohibited on the Old Mill property.
5. Smoking is not permitted on the property.
6. Amplified music is only permitted as prescribed by Section 3 of Exhibit B.
7. Alcohol service shall comply with appropriate Department of Alcoholic Beverage Control requirements.
8. The Foundation may impose penalty fees on renters that fail to comply with the above requirements.
9. The Old Mill Foundation shall make available on its website a calendar of scheduled events. The Calendar will be updated periodically to ensure accuracy and notice to the neighbors. In addition, on a quarterly basis, the Foundation shall provide all neighbors within a 300-foot radius of the Old Mill a copy of the quarterly newsletter, which shall include a calendar of upcoming events.
Exhibit B
OLD MILL EVENT POLICIES
Section 1. Frequency/ Attendance
1. “Event” shall mean any gathering of 25 or more people.
2. A total of 32 events per year are allowed at The Old Mill.
3. Maximum of 20 total events per year on the Pomegranate Patio, including a maximum of six events per year on the Pomegranate Patio that will have over 100 expected attendees.
4. One event per weekend (Fri-Sun) is permitted on the Pomegranate Patio.
5. Events that are inside or on the upper patio may be scheduled at the discretion of the Foundation as long as the total number of events at The Old Mill does not exceed 32 per year.
6. No facility permits/ rentals for outside events shall be issued for events or groups of more
than 135 persons. Old Mill Foundation concerts may have up to 200 persons.
Section 2. Time/Cleanup
1. Events may occur:
a. Monday – Thursday, 8 a.m. – 9 p.m.
b. Friday – Saturday, 8 a.m. – 10 p.m.
c. Sunday, 10 a.m. – 9 p.m.
2. Events may not occur during public hours (Tue – Sun, 11 a.m. – 2 p.m.) except for the annual Diggers Garden Club event.
3. Property must be vacated by 9:30 p.m. Sunday – Thursday and by 10:30 p.m. Friday and Saturday.
Section 3. Sound
1. Permitted Amplification:
a. Background Music
b. Old Mill Concerts
c. Public address system
2. An Old Mill staff member on site will be responsible for monitoring the sound. One hour after the start of an event, the facility monitor shall measure the sound for compliance. A sound level meter device or application may be used.
3. The Foundation shall ensure that the ambient noise levels are maintained in accordance with Chapter 14, Article 04 of the San Marino City Code.
Section 4. Parking
1. Catering staff shall not park on Mill Canyon Road or Mill Lane.
2. Catering vehicles will be directed to use the Old Mill driveway at the rear of the property when possible (and not to park east of the residential driveway serving the corner residence.)
3. The renter shall be responsible for monitoring vendor vehicles to ensure they are not blocking neighboring driveways.
4. Sufficient curb space on Mill Canyon Road should be kept available to those requiring an accessible entrance.
Section 5. Violations
1. A violation of any of the rules and regulations provided herein will result in a penalty of up to $250 per violation, which will be deducted from the rental deposit.
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