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Contract No. 10813 (CCS), Formerly CT# 2999
AMENDED AND RESTATED PROFESSIONAL SERVICES AGREEMENT
This Amended and Restated Professional Services Agreement (“Amended and Restated Agreement”), entered into as of _______________ (“Execution Date”), by and between the City of Santa Monica (“City”) and The Superlative Group, Inc. (“SUPERLATIVE”), is made with reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. SUPERLATIVE is qualified to do business, and is doing business, in the State of California. SUPERLATIVE represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Amended and Restated Agreement.
C. On April 9, 2015, the City and SUPERLATIVE entered into an agreement for SUPERLATIVE to provide professional services to the City in connection with procuring sponsors for the City’s bikeshare system (“Original Agreement”) and the Original Agreement expired on June 30, 2018.
D. Pursuant to the terms and conditions of the Original Agreement, SUPERLATIVE procured Hulu as the sponsor for the City’s bikeshare system and orchestrated the execution of a five-year sponsorship agreement between the City and Hulu.
E. On March 5, 2019, the City Council of the City of Santa Monica authorized the City Manager to execute an agreement extending the terms and conditions of the Original Agreement at least two years with an option to extend an additional three years NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Term. This Amended and Restated Agreement begins on the Execution Date and terminates on November 12, 2020, unless sooner terminated in accordance with Section 14.
1.1 Option to Extend. The City, in its sole and absolute discretion, shall have the option to extend this Agreement for up to one (1) additional three (3)-year period (“Extension Term”) under the same terms and conditions. The City Manager may exercise the City’s option by letter to SUPERLATIVE no later than thirty (30) days prior to the end of the Term.
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2. SUPERLATIVE Services. SUPERLATIVE will perform all of the services (“Services”) described in Exhibit A, Scope of Services. SUPERLATIVE will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to SUPERLATIVE any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
3.3 Promptly examine and render findings on all documents submitted for staff review by SUPERLATIVE.
4. Compensation. This contract is solely commission-based. The amount of the commission paid to SUPERLATIVE shall be determined in accordance with Exhibit B. The City will compensate SUPERLATIVE based upon SUPERLATIVE's successful procurement of bikeshare sponsors accepted by the City in its sole and absolute discretion; provided, however, that the minimum level of sponsorship procured by SUPERLATIVE shall be no less than $250,000 net to the City per year, commencing from the date of system launch unless the City, at its sole and absolute discretion, agrees to accept a sponsorship offer for a lesser amount. SUPERLATIVE understands and acknowledges that SUPERLATIVE is not owed any remaining compensation from City under the Original Agreement and hereby releases City from any claims thereto. SUPERLATIVE further acknowledges and understands that and any and all compensation under this Amended and Restated Agreement shall be determined in accordance with Exhibit B.
5. Invoices. SUPERLATIVE will invoice the City for any commission earned by SUPERLATIVE in accordance with Exhibit B, herein, and the City will pay any undisputed amount within 30 days of receipt of such invoice.
6. Notices. All notices, demands, requests or approvals to be given under this Amended and Restated Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6.1 All notices, demands, requests or approvals to the City:
Mobility Division
City of Santa Monica
1685 Main St., Santa Monica, California 90401
Attention: Kyle Kozar, Bike Share Coordinator
Re: Bikeshare Sponsorship Contract
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with a copy to:
Santa Monica City Attorney’s Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Bikeshare Sponsorship Contract
6.2 All notices, demands, requests or approvals to SUPERLATIVE:
The Superlative Group, Inc.
26600 Detroit Road, Suite 250
Cleveland, Ohio 44145
Attention: Kyle D. Canter
Re: Bikeshare Sponsorship Contract
7. Independent Parties. Both parties to this Amended and Restated Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another. Neither the City nor its officers or employees will have any control over the conduct of SUPERLATIVE or any of SUPERLATIVE’s agents, employees, or subconsultants, except as otherwise provided in this Amended and Restated Agreement.
8. Integrated Contract. This Amended and Restated Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Amended and Restated Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement. This Amended and Restated Agreement may be modified only by written agreement signed by City and SUPERLATIVE, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, SUPERLATIVE must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by SUPERLATIVE or SUPERLATIVE’s agents, representatives, employees or subconsultants for the duration of this Amended and Restated Agreement. SUPERLATIVE must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10. Defense and Indemnification.
10.1 Indemnification. As to SUPERLATIVE’s Services produced under this Amended and Restated Agreement, SUPERLATIVE agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, boards and commissions, and employees (collectively, “City”) from and against any and all liability, claims, demands, damages, or costs, including but not limited to DocuSign Envelope ID: 27C71300-22BE-4ED9-B460-96D820633167 - 4 -
attorney’s fees, or payments for injury to any person or property (collectively, “Losses”) caused or claimed to be caused by the acts, errors and/or omissions of SUPERLATIVE, or SUPERLATIVE’s employees, agents, officers, and subconsultants. SUPERLATIVE’s responsibilities under this Section 10.1 include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, which may be in combination with the acts or omissions of SUPERLATIVE, its employees, agents or officers, or subconsultants; provided, however, that SUPERLATIVE’s duty to defend, indemnify, protect and hold harmless shall not include any Losses arising from the sole negligence or willful misconduct of the City. Notwithstanding SUPERLATIVE’s obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from SUPERLATIVE, if City chooses to do so.
10.2 Enforcement Costs. SUPERLATIVE agrees to pay any and all costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in Section 10.1.
11. Prohibition Against Transfers.
11.1 SUPERLATIVE may not assign, hypothecate, or transfer this Amended and Restated Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any attempt to do so without the City’s consent will be null and void, and any assignee, hypothecatee or transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of SUPERLATIVE or of any general partner or joint venturer or syndicate member of SUPERLATIVE, if a partnership or joint venture or syndicate exists, which results in changing the control of SUPERLATIVE, will be construed as an assignment of this Amended and Restated Agreement. Control means 50% or more of the voting power of the corporation.
12. Permits and Licenses. SUPERLATIVE, at its sole expense, must obtain and maintain during the term of this Amended and Restated Agreement all required business and professional permits, licenses and certificates.
13. Waiver. A waiver of any breach of this Amended and Restated Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Amended and Restated Agreement.
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14. Default and Termination.
14.1 If SUPERLATIVE fails or refuses to perform any of the provisions of this Amended and Restated Agreement, and if the default is not cured within a period of five days after the City’s written notice of default specifying the nature of the default, City may immediately terminate this Amended and Restated Agreement by written notice to SUPERLATIVE.
14.2 The City has the option, at its sole discretion and without cause, of terminating this Amended and Restated Agreement by giving ten days’ written notice to SUPERLATIVE. Upon termination of this Amended and Restated Agreement, City will pay SUPERLATIVE any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. SUPERLATIVE must comply with all laws of the State of California and the United States, and all ordinances, rules, and regulations enacted or issued by City.
16. Discrimination. SUPERLATIVE may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
17. Nuisance. SUPERLATIVE may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Amended and Restated Agreement.
18. Records.
18.1 SUPERLATIVE must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, subconsultant costs, or other direct costs. SUPERLATIVE must keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 SUPERLATIVE must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles. SUPERLATIVE must clearly identify all records and make them readily accessible to the City. At the City’s request, SUPERLATIVE must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
18.3 SUPERLATIVE must allow the City to have free access to SUPERLATIVE’s books and records and to inspect all work, data, documents, proceedings and activities related to this Amended and Restated Agreement. The City has the right to examine or audit SUPERLATIVE’s records, and SUPERLATIVE agrees to cooperate with any examination or audit of its records. If a City audit DocuSign Envelope ID: 27C71300-22BE-4ED9-B460-96D820633167 - 6 -
discloses an error of 5% or more in information reported by SUPERLATIVE, SUPERLATIVE agrees to pay the cost of the City’s audit computed on the basis of four times the direct payroll of the audit staff completing the audit and audit report.
19. Work Product; Reports.
19.1 Any work product prepared or caused to be prepared by SUPERLATIVE or any subconsultant for this Amended and Restated Agreement will be the exclusive property of City. No work product given to or prepared by SUPERLATIVE or any subconsultant pursuant to this Amended and Restated Agreement may be made available to any individual or organization by SUPERLATIVE without prior written approval by City.
19.2 At the City’s request, SUPERLATIVE must furnish reports concerning the status of the Services.
20. Standard of Care. SUPERLATIVE agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of SUPERLATIVE’s profession currently practicing in the same locality under similar conditions.
21. Subconsultants.
21.1 If SUPERLATIVE proposes to have any subconsultant perform any part of the Services, SUPERLATIVE must submit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed subconsultant, and the total price or hourly rates used in preparing an estimated cost for the subconsultant’s services. The City, in its sole discretion, may grant or deny the request.
21.2 SUPERLATIVE will be responsible for the quality of any subconsultant’s work.
Every subcontract or agreement of any kind entered into between SUPERLATIVE and any subconsultant (or between any subconsultant and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Amended and Restated Agreement No. 10813 (CCS)
entered into between the City of Santa Monica and
SUPERLATIVE on _____________.
22. Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Amended and Restated Agreement.
23. Venue and Jurisdiction. The City and SUPERLATIVE agree that the Services will take place in Los Angeles County. Any litigation arising out of this Amended and Restated Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los DocuSign Envelope ID: 27C71300-22BE-4ED9-B460-96D820633167 6/25/2019
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Angeles, West District, as appropriate. The parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Amended and Restated Agreement.
24. Survival of Provisions and Obligations. Any provision of this Amended and Restated Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Amended and Restated Agreement.
25. Exhibits. The following exhibits are incorporated by reference into this Amended and Restated Agreement as though fully set forth herein.
Exhibit A Scope of Services
Exhibit B Budget
Exhibit C Insurance Requirements
In witness whereof, the parties have caused this Amended and Restated Agreement to be executed the day and year first above written.
ATTEST:
______________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By: ______________________________
RICK COLE
City Manager
THE SUPERLATIVE GROUP, INC.
By: ________________________________
KYLE CANTER
Chief Operating Officer
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6/18/2019
6/27/2019 6/25/2019
Exhibit A
Scope of Services
Summary of Purpose:
This agreement is made for the procurement of major sponsors for Santa Monica’s Bikeshare system, offering company identification (names and/or logos) on specific locations on the bicycles. No identification on stationary elements of the bikeshare system shall be offered or allowed. The Superlative Group shall pursue only the highest two levels of sponsorship as presented in the RFP ($250,000/$500,000). Any other level, either higher or lower, may only be pursued if approved by the City.
Methodology: (Superlative Proposal)
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Rate Schedule
This contract is solely based on commission. Superlative shall not receive any reimbursements or direct payments from the City in connection with the Services. • Superlative’s commission shall be in the amount of 20% of the gross sponsorship proceeds received by City for years four and five of the Hulu agreement. • All artwork and materials are to be provided by the sponsor and placed on the bicycles by the system operator. The cost of artwork and materials shall not be counted as part of total sponsorship income and no commission shall be paid based on such costs.
DocuSign Envelope ID: 27C71300-22BE-4ED9-B460-96D820633167 Exhibit C
Insurance Requirements and Verifications
Consultant shall 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 the work hereunder by the Consultant, its agents, representatives, employees or subcontractors.
Minimum Scope/Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if the Consultant has no owned autos, Code 8 (hired) and Code 9 (nonowned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: Workers’ Compensation insurance as required by the State of California, with Statutory Limits and Employers’ Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).
If the Consultant maintains higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1.The policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status (CGL): The City of Santa Monica, 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 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 Insurance Services Office Form CG 20 10 11 85.
b. Primary Coverage (CGL and Auto): For any claims related to this Agreement, the Consultant’s insurance shall be primary as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or DocuSign Envelope ID: 27C71300-22BE-4ED9-B460-96D820633167 volunteers shall be in excess of the Consultant’s insurance and shall not contribute with it.
c. Notice of Cancellation (all policies): Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica.
d. Waiver of Subrogation (all policies): Consultant hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Consultant may acquire against the City of Santa Monica by virtue of payment of any loss.
Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Consultant to purchase coverage with a lower deductible or retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Verification of Coverage
Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements or copies of the applicable policy language providing the insurance coverage required herein. All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Consultant resulting from said breach. Alternatively, the City of Santa Monica may purchase such coverage (but has no special obligation to do so), and without further notice to the Consultant, the City may deduct from sums due to the Consultant any premium costs advanced by the City for such insurance.
DocuSign Envelope ID: 27C71300-22BE-4ED9-B460-96D820633167 Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
# 1: Workers’ Compensation insurance coverage is not required if the Consultant does not have employees. The Consultant must, however, execute the City’s Workers’ Compensation Coverage Exemption Declaration Form.
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