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MEMORANDUM OF UNDERSTANDING BY AND BETWEEN CITY OF SANTA MONICA AND DOWNTOWN SANTA MONICA, INC. FOR COMMUNITY EVENTS AT LOT 27
This Memorandum of Understanding (“MOU” or "Agreement"), dated ____________ (“Effective Date”), is entered into by and between the City of Santa Monica (“City”), a municipal corporation and charter city, and Downtown Santa Monica, Inc. (“DTSM”), a California nonprofit corporation, 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. DTSM is a nonprofit mutual benefit corporation, duly organized, validly existing and in good standing under the Nonprofit Mutual Benefit Corporation Law of the State of California.
C. DTSM was formed to promote business and commerce within the Downtown Santa Monica Business District.
D. Under the Amended and Restated Services Agreement Number 9063 (CCS) between the City and DTSM, as amended from time to time, including most recently the May 15, 2019 Fourth Amendment, (the “Services Agreement”), DTSM is responsible for promoting and continued economic revitalization of the Downtown business district as well as providing programs, projects and services that benefit Santa Monica residents, Downtown merchants, property owners, customers and visitors.
E. DTSM desires to produce and manage the 626 Night Market starting on February 26, 2022 (“Event”) as a re-occurring event to be held the second and fourth weekends of each month for the remainder of 2022 on the City-owned Parking Lot located at 1325 5th Street in Santa Monica, CA 90401 (“Lot 27”) - see Exhibit A. From time to time, DTSM also seeks to produce and manage other community events on Lot 27.
F. The activation of Lot 27 for community events is consistent with DTSM’s roles and responsibilities under the Services Agreement.
G. On September 28, 2021, the City Council of the City of Santa Monica authorized City to negotiate fees and enter into an Agreement with DTSM to allow for the expanded use of programming of Lot 27 for community-serving events and activations.
H. The City will have no obligation to fund any aspects of the Event contemplated by this MOU.
I. City and DTSM desire to enter into this Agreement to allow DTSM to operate the Event and to set forth DTSM’s responsibilities in producing and managing the Event on Lot 27.
Now, therefore, it is mutually agreed by and between the undersigned parties as follows:
ARTICLE 1 - TERMS AND CONDITIONS
DocuSign Envelope ID: B2B4F40B-38F5-4A66-AB6C-D8D328A8916F 2/28/2022
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1. Term: The initial term of this MOU shall commence upon the Effective Date and shall terminate on December 31, 2022. Subject to each Party’s right of termination in accordance with Article 3, below, the Parties may extend the term of this MOU in a writing signed by all Parties for up to one additional year period.
2. Frequency of the Event. The Event is anticipated to be held every other weekend and shall not exceed six (6) days per month including set-up and break-down. Other community events may also be held on Lot 27 under this maximum of six (6) days total per month.
3. Duration of the Event. All food-focused events, including the Night Market, shall consist of no more than a two-day activation, including set up and strike, at any given time.
Other types of community events may consist of up to a four-day activation, including set up and strike, at any given time.
ARTICLE 2 – REPSPONSIBILITIES OF THE PARTIES
1. DTSM Responsibilities. Subject to DTSM’s obligations under the Services Agreement, DTSM’s responsibilities for the Event include:
1.1 Obtaining any permits required by City, County, State and Federal agencies with regards to the event. (Note: A community event permit will not be required for DTSM event held on Lot 27).
1.2 Meeting all terms and conditions of this MOU and any other permits that may be required for the Event.
1.3 Coordinating outreach strategy and marketing materials to promote the Event.
1.4 Coordinating with City staff to develop, plan, and manage the Event, including but not limited to:
1.4.1. Coordinating and hosting site walks with the Santa Monica Fire Department and Santa Monica Police Department to address any concerns the departments may have regarding the use of Lot 27 for the Event.
1.4.2. Providing neighbor notification of the Event by emailing and hand delivering event notices to neighbors within the 500 feet of the Event area. In addition, preparing a communication flyer for the local community, including nearby churches, showing where other parking is available. A copy of the flyer should be shared with SP+ Team to help address any calls received by the community.
1.4.3. Coordinating with the Santa Monica Farmers Market staff to provide advance notice of event dates and assist with finding alternative Farmers Market vendor parking locations.
1.4.4. Coordination with the City of Santa Monica Parking Team and SP+ to facilitate the closure of Lot 27 for the Events, providing a minimum of 10 days advance notice emailed to [email protected]., to allow for closure preparations. DTSM staff to DocuSign Envelope ID: B2B4F40B-38F5-4A66-AB6C-D8D328A8916F 3 Conscious Night Market 2022
print and install the parking lot closure signs at Lot 27 at least one (1) week in advance of each Event.
1.4.5. Providing, at DTSM’s sole cost and expense, custodial services for Lot 27 and the immediately adjacent areas (Arizona Avenue, 5th Street), including increased trash pickup during and immediately after the activations. Food waste must be promptly removed from the site. Pressure washing and degreasing may also be required, as necessary to ensure that the Event site and its surroundings are clean following the Event; and
1.4.6. Collecting and neatly arrange any barricades provided by SP+, and setting them aside to help SP+ gather and store the barricades, by the next morning.
1.4.7. Ensuring all other barricades, equipment including port-a-potties by cleared from Lot 27 no later than 7 am the following day, post event.
1.4.6. Designating a DTSM point of contact to address any issues related to the Event from set up to take down and removing the equipment that was installed for the Event, if any.
1.4.7. Providing a daily site rental fee of $1,000 per day to the City of Santa Monica Parking Operations to compensate for lost parking revenue.
1.4.8. Scheduling a post-Event coordination meeting to evaluate the Event and logistics with City staff.
1.4.9 Requiring each participant in the Event (“Event Participant”) to indemnify the City and DTSM as provided in Article 4.
2. City Responsibilities. City’s responsibilities for the Event include:
2.1 Permitting DTSM use of Lot 27 for the 626 Night Market between the hours of 6:00am and 2:00 a.m. starting on February 22, 2022 through December 31, 2022, on the dates identified in Exhibit A, or as subsequently agreed to the parties in writing, for the purpose of setting up, holding, and striking the reoccuring Event and other related community events.
2.2 Authorizing the City’s contractor (e.g. SP+) to set up the reservation and closure of Lot 27 the evening before the activations, and collecting the City’s barricades by the next morning after the Event.
2.3 Meeting with DTSM staff for a post-Event coordination meeting to evaluate the Event and future Lot 27 programming opportunities.
2.4 Providing invoice(s) for the daily rental fee.
3. Use of Lot 27. DTSM will be solely responsible for all activities related to DTSM’s use of Lot 27 for the Event during the term of this MOU, including, without limitation, all activities of DTSM, its operators, volunteers, employees, vendors, and subcontractors.
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ARTICLE 3 – TERMINATION
1. Termination. If DTSM fails or refuses to perform any of the provisions of this MOU, and if the default is not cured within a period of five days after written notice of default specifying the nature of the default, the City may immediately terminate this MOU by written notice. Notwithstanding the foregoing, either party may terminate this MOU by giving ten days’ written notice.
ARTICLE 4 - INDEMNIFICATION AND INSURANCE
1. Defense, Indemnification, Hold Harmless. DTSM agrees to defend, indemnify, protect, and hold harmless the City, the City Council, agents, officers, boards and commissions, employees, and volunteers (collectively, "City Indemnitees") from and against any and all liability, claims, demands, damages, or costs, including but not limited to attorney's fees, or payments for injury to any person or property (collectively, "Losses") to the extent arising from the negligence or willful misconduct of DTSM, or DTSM’s officers, agents, employees, subcontractors, volunteers, agents, or representatives arising from or in any manner connected to: (i) the Event; (ii) use of Lot 27 for the Event; (iii) DTSM’s performance of its responsibilities, activities, or work conducted pursuant to this MOU; or (iv) claims by any persons or entities providing services, materials, tools, equipment or supplies in connection with DTSM’s responsibilities under this MOU. DTSM's responsibilities under this section include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of any of the City Indemnitees, which may be in combination with the acts or omissions of DTSM, its employees, agents or officers, or subconsultants; provided, however, that DTSM'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 Indemnitees. Notwithstanding DTSM's obligation to defend the City Indemnitees hereunder, City has the right to conduct the defense and seek reimbursement for reasonable costs of defense from DTSM, if City chooses to do so.
2. Enforcement Costs. DTSM agrees to pay any and all costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in section 1 of Article 4.
3. Insurance. DTSM must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit “B”, Insurance Requirements and Verifications.
4. Indemnification by Event Participants. DTSM will require all Event Participants to agree to indemnify and save City, its City Council, its boards and commissions, its agents, representatives, and employees, DTSM and DTSM’s respective officers, directors, agents, employees, and affiliates harmless from, and defend them against, all liabilities, losses and claims, and reimburse them for all expenses they incur (including the costs of litigation and reasonable attorneys’ fees) on account of personal injury or death to persons and damage to property which occurs to the extent caused, or alleged to be caused, by the misconduct or wrongful or negligent act or omission of such Event Participant, or employees or agents of such Event Participant, arising from or related to the Event, or from Event Participant’s property. Each Event Participant shall pay for and defend any and all suits or actions threatened or instituted against DTSM or City, its City Council, its boards and DocuSign Envelope ID: B2B4F40B-38F5-4A66-AB6C-D8D328A8916F 5 Conscious Night Market 2022
commissions, its agents, representatives, and employees, and shall pay all reasonable attorneys’ fees, litigation costs and all other expenses in connection therewith, and shall promptly discharge any judgements arising therefrom. Such provisions shall expressly survive the expiration of any contracts in which they are contained.
ARTICLE 5 - NOTICE
1. Notices. All notices, demands, requests or approvals to be given under this MOU, 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:
All notices, demands, requests or approvals to the City:
City of Santa Monica Economic Development
1685 Main Street, Mail Stop #12
Santa Monica, CA 90401
Attention: Economic Development Manager, email: [email protected] with copies to:
Santa Monica City Attorney's Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
All notices, demands, requests or approvals to DTSM shall be sent to:
Downtown Santa Monica, Inc.
1351 Third Street Promenade, Suite 201
Santa Monica, CA 90401
Attention: Mackenzie Carter, Acting CEO
ARTICLE 6 – MISCELLANEOUS PROVISIONS
1. Effective Date and Modification. This MOU is effective upon the date of execution by the Parties. This MOU shall not be modified except by written instrument executed by the Parties at the time of modification and approved as to form by the City Attorney. Such modifications shall be effective upon the date of full execution.
2. Governing Law. The interpretation, validity, and enforcement of this MOU shall be governed by and interpreted in accordance with the laws of the State of California. Any action, cause of action, lawsuit, claim, or legal proceeding of any kind related to or arising under this MOU shall be filed and heard in a court of competent jurisdiction in the County of Los Angeles.
3. Waiver of Authority. Nothing herein shall be interpreted as waiving or ceding the police power or governing authority of the City.
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4. Relationship of Parties. The Parties shall remain at all times as to each other, wholly independent entities. No Party shall have the authority to incur any debt, obligation, or liability on behalf of another Party unless expressly provided by written agreement of the Parties. No employee, agent, or officer of a Party shall be deemed for any purpose whatsoever to be an agent, employee or officer of another Party.
5. Jointly Drafted. Each Party acknowledges that it was represented by its legal counsel during the negotiation and execution of this MOU, and that it has had a full and fair opportunity to review and revise the terms of this MOU. Each Party further agrees that this MOU has been jointly drafted, and that no term contained herein shall be construed against or in favor of another Party.
6. Severability. If one or more of the provisions contained in this MOU are invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired in any manner.
7. No Waiver. No failure by any party to this MOU to insist on the strict performance of any obligation of the other party under this MOU, or to exercise any right, power, or remedy arising out of a breach hereof, shall constitute a waiver of such breach or of either party's right to demand strict compliance with any terms of this MOU. No acts or omissions by either party to this MOU, or any agents of either party to this MOU, shall waive any or all of either party's rights under this MOU.
8. Complete MOU. This MOU represents the complete understandings and agreement of the parties and no prior oral or written understandings are in force and effect.
9. Headings. The headings in this MOU are for reference and convenience of the parties and do not represent substantive provisions of this MOU.
10. Counterpart Execution. This MOU may be executed in counterparts with the same effect as if both parties hereto had executed the same document. All counterparts shall be construed together and shall constitute a single modification. Any signature to this MOU transmitted electronically through DocuSign or PDF shall be deemed an original signature and be binding upon the parties hereto (it being agreed that such electronic signature shall have the same force and effect as an original signature). may be executed in counterparts and each executed counterpart shall be effective as the original.
11. No Third Party Beneficiaries. This MOU is not intended, and will not be construed, to confer a benefit or create any right on a third party or the power or right to bring an action to enforce any of its terms.
12. Independent Parties. Both parties to this MOU will be acting in an independent capacity and not as agents, employees, partners, or joint ventures of one another. Under no circumstances shall DTSM’s employees, subcontractors, volunteers, agents, or representatives look to City as his/her/its employer, or as a partner, agent, or principal. DTSM and DTSM’s employees, subcontractors, volunteers, agents, or representatives shall not be entitled to any City paid benefits accorded to City employees including workers’ compensation, disability insurance, vacation or sick pay.
13. Compliance with Law. Both parties shall comply with all local, state, and federal laws, including any County of Los Angeles Department of Public Health orders and guidelines DocuSign Envelope ID: B2B4F40B-38F5-4A66-AB6C-D8D328A8916F 7 Conscious Night Market 2022
pertaining to COVID-19, and all ordinances, rules and regulations enacted or issued by City.
14. Prohibition Against Transfers. DTSM shall not assign, hypothecate, or transfer this MOU 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 City's consent shall be null and void, and any assignee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
15. Exhibits. The following exhibits are incorporated herein by reference into this MOU as though fully set forth herein.
Exhibit “A” Site Plan
Exhibit “B” Insurance
In witness whereof, the parties have caused this MOU to be executed the day and year first above written.
CITY OF SANTA MONICA,
ATTEST: a California municipal corporation
______________________________
By: _____________________________
APPROVED AS TO FORM:
______________________________
By: _____________________________
DocuSign Envelope ID: B2B4F40B-38F5-4A66-AB6C-D8D328A8916F Downtown Santa Monica, Inc.
2/24/2022
Interim Executive Director
Interim City Attorney Mackenzie Carter
Joseph Lawrence
2/27/2022
City Manager
David White
2/28/2022
3/1/2022
City Clerk
Denise Anderson-Warren
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EXHIBIT A
SITE PLAN – LOT 27 and Partnership Agreement with Dates DocuSign Envelope ID: B2B4F40B-38F5-4A66-AB6C-D8D328A8916F 626 Night Market Partnership Agreement
DTSM Partner Contribution: DTSM will have the following responsibilities with respect to the Agreement.
a. Provide Public Parking Lot 27(“Lot 27”), located at 1324 5th Street, Santa Monica, CA 90401, to 626 Night Market for use of the Event site
b. Assist with site map creation that abides by City of Santa Monica safety regulations c. Coordinate parking lot closures prior to each Event
d. Provide venue management for setup, Event, and strike e. Distribute a neighbor notification in advance of each Event f. Provide custodial services at the site, including trash pick up, street sweeping, and power washing when necessary
g. Provide trash dumpsters at the event site for each Event h. Provide 1-2 dedicated ambassadors to each Event, depending on availability i. Coordinate site walks with the Santa Monica Police and Fire Departments j. Handle scheduling of Fire Safety Officers and PD for each Event k. Provide marketing and PR services to assist with Event promotion l. Provide sign holders on Third Street Promenade for Event promotion m. Provide metal barricades for each Event
n. Provide 100 sq. feet of storage space for Event equipment during the term of this agreement
626 Night Market Contribution: 626 Night Market will have the following responsibilities with respect to the Agreement.
a. Produce a bi-monthly food market in Lot 27, every 2nd and 4th weekend beginning February 26 & 27,2022 to April 23-24, 2022
b. Manage vendor recruitment and communication in advance of the Event c. Provide an onsite venue manager for setup, Event and strike d. Provide or require vendors to provide tents, tables, chairs for vendor booths e. Provide or require vendors to provide their own power, lighting and wifi for their vendor booths
f. Obtain at your sole expense, all necessary Los Angeles County Health Permits g. Provide public restrooms, sinks and other materials required by the LA County Health Department
h. Cover costs for police and fire personnel, as required by the City of Santa Monica i. Obtain at your sole expense, Canopy, Open Flame and Propane Permits from the Santa Monica Fire Department
j. Obtain at your sole expense, all necessary permits/licenses to serve alcohol from the California Department of Alcoholic Beverage Control k. Provide signage for Third Street Promenade sign holders l. Agree to adhere to all applicable Covid-19 protocols as issued by LA County Department of Health and City of Santa Monica
DocuSign Envelope ID: B2B4F40B-38F5-4A66-AB6C-D8D328A8916F PROJECT #
CHECKED BY
DRAWN BY
700 FLOWER ST., Suite 2100
Los Angeles, CA 90017
O: 213.418.0201
F: 213.266.5294
www.kpff.com
DATE PREPARED
ADDRESS
CITY, STATE, ZIP
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##/##/20##
COMPANY
Area Closed
Oct. 2021-Jan.2022
Area Closed
Electrical Constuction
10'-0" 11 12 13 S
S S
S S S
BAR Legend
Food Booths
Bar Cooking Area Restrooms
11c
12c 13c Sinks 10'-0" S
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#
DISCLAIMER: Tentative Map; subject to change. For
vendor/sponsor reference only. Not for public release
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4 5
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8 9
101
1415161718192021222324 OPS #
Merchandise
1 1 2 3 4 5 6 7 8 9 10
DocuSign Envelope ID: B2B4F40B-38F5-4A66-AB6C-D8D328A8916F 9 Conscious Night Market 2022
EXHIBIT B
MOU Insurance Requirements and Verifications
DTSM its sub-contractors 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 DTSM, its agents, representatives, employees or sub-contractors.
Minimum Scope and 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 DTSM has no owned autos, Code 8 (hired) and Code 9 (non-owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.\
3. Liquor Liability: Insurance with limits of no less than $1,000,000 per occurrence.
4. 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 DTSM and its sub-contractors 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 DTSM. 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 insurance 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 DTSM 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 DTSM’s insurance at least as broad as Insurance Services Office Form CG 20 10 11
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b. Primary Coverage (CGL and Auto): For any claims related to this Agreement, DTSM’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 volunteers shall be in excess of DTSM’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): DTSM hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said DTSM may acquire against the City of Santa Monica by virtue of payment of any loss. DTSM 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.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Santa Monica for all work performed by DTSM, its employees, agents and sub-contractors.
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 DTSM 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 authorized to conduct business in California with a current a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Verification of Coverage
DTSM 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 DTSM’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
DocuSign Envelope ID: B2B4F40B-38F5-4A66-AB6C-D8D328A8916F 11 Conscious Night Market 2022
If DTSM, 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 DTSM resulting from said breach.
Sub-contractors
DTSM shall require and verify that all sub-contractors 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 DTSM does not have employees. DTSM must, however, execute the City’s Workers’ Compensation Coverage Exemption Declaration Form.
DocuSign Envelope ID: B2B4F40B-38F5-4A66-AB6C-D8D328A8916F