HomeMy WebLinkAboutStaff Report 5.A 7/1/2013 Agenda/ Itenw #5 .A
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DATE: July 1,2013
TO: Honorable Mayor and Members of the City Council
FROM: John C. Brown, City'Manager
I I.
SUBJECT: Resolution Approving;a Professional Services,Agreement--between the City of Petaluma
and the Petaluma Downtown Association for Operation of the Visitor's Center and
Petaluma Visitors Program, and Authorizing the,CityManagerto Execute Said
Agreemenfand All Associated Documents.
RECOMMENDATION
It is recommended that the City;Council adopt the attached Resolution approving a Professional
Services Agreement between the City of.'Petaluma and the Petaluma-Downtown Association for
operation of the Visitor's Center and Petaluma Visitors Program,and authorizing the-City Manager to
execute said agreement and all associated documents.
BACKGROUND
The existin g p rofessional servicesa reement (then
Agreement) with the Petaluma Downtown
Association (PDA) for the.operation of the Petaluma Visitor Center and the Petaluma Visitors Program
(PVP) was approved by the City Council in;June, 2010. Requests for proposals to operate the Visitors
Center and PVP were solicited in-2009;only two responses were received, one from the Chamber of
Commerce(then-current and long-time operator of the Programj'and'a private company. The City
Council's Transient Occupancy Tax (TOT) review committee felt a proposal that placed greater
emphasis;on'outreach and marketing activities was more suited to the,City's needs, and asked staff to
obtain a proposal that provided greater focus in these areas. The'PDAsuhmitted such a proposal, and
after conducting additional interviews with both the Chamber of Commerce and.the PDA, the review
committee recommended that theCouncilaward operation of the PVP tothe PDA. On,June 10, 2010
the City Council,adopted,Resolution Number 2010-090 N.C.S'.;
resources, but was less than optimal to conduct a,viable:visitor's program. As was'noted in the staff
report presented to the City,Council''in June, 2010, in the-years between 2000 and 2009 (prior to the
economic downturn), City funding for the PVP Was as high as $372,000, but never lower than
' $210,000.
Under the existing Agreement, the PDA is responsible for the following scope of work:
• Staff and operate the Visitors Center to agreed-up In-season and Off-season schedules;
• Provide Visitors Services including but not limited to response to inquiries, distribution of
visitor packets, coordinate distribution of community information and maintain informational
kiosks;
• Complete website upgrades, including a booking agent, links to community sites, and
development of an itinerary binder;
• Develop partnerships-With local industry professionals and collaborate with the lodging
coalition;
• Develop partnerships with local and regional events and event coordinators;
• Host and coordinate holiday events
• Implement comprehensive media outreach;
• Develop and engages target markets, maintaining a focused objective of increasing overnight
stays;
• Develop, coordinate, and maintain a Community Calendar; and
• Develop and implement a meeting request_procedure.to assist and encourage prospective
meeting hosts.
The PDA has completed, made progress towards, pr commenced initial tasks in these areas. On
December 3, 2012, the PDA provided the City Council with a comprehensive presentation on its
activities, as they relate to the PVP and the PDA. There is synergy between the two functions that did
not exist to the same level when the PDA did not operate the PVP. That synergy leverages funding
and adds.value to the services the City:receives from the PVP. The PDA has been successful in its
efforts to operate the PVP, and received:enthusiastic comments from the City Council at the December
3, 2012 meeting. Among the results and'contributions highlighted during that presentation were:
• Achieved a 6.7 percent increase in the total number of visitors;
• Delivered 75,000 Visitors Guides to over 120 locations;
• Logged over 150,000'website visits annually;
• Personally greeted over 10,000 visitors annually at the Petaluma Visitors Center
• Liaison and leveraging the buying power of Sonoma County, San Francisco, Sacramento, and
California Tourism Programs;
• Participating in Citywide, monthly marketing meetings;
• Participating in design and implementing Sonoma County's Certified Tourism Ambassador's
Program;
• Producing "What's Happening this Week"'for all hotels;
• Working with travel, food, and wine writers to gain national attention;
• Producing Santa's Riverboat Arrival and Lighted Boat Parade, and the City of Lights Driving
Tour; and
• Establishing'social networking presence including:Facebook, Twitter, Pinterest, Linkedln, and
MySpace.
These accomplishments were the work of one full time staff member, five part-time staff members,
and 11 volunteers—in partnership with PDA staff and volunteers. In addition, tourism opportunities
were further expanded bythePDA's production of events including:
• Butter and Egg Days Parade
• Spring and Fall Antique Faires
• Petaluma Art'and'Garden Festival
• Merchant Sale Events
These events, and the PVP-produced holiday events, bring an estimated.90,000 visitors to Petaluma
annually. The PDA is also involved in, or supports, events produced by other organizations including:
• Cruisin' the Boulevard
• Veterans' Day Parade
• Farmers Markets
• Chili Cook-off
• Taste of Petaluma
• Rivertown Revival
• Petaluma Music Festival
• Art in the Park
The PDA has made goodFprogress addressing the services required by the City under the Agreement, is
' coordinating well with City Economic Development staff, and in particular is achieving the greater
emphasis on outreach and marketing activities desired by the City Council. The PDA has also
expanded the use of social media and the PVP's online presence and updated the website to make it
more relevant,and user-friendly: In short,the PDA is operating the PVP in a manner consistent with
the Council's vision for that program.
The PDA is limited in achieving,greater success for the PVP bythe funding it receives. As noted,
funding was increased two year ago from $140,000 to $169,000'annually. That larger amount,.
however, is still below comparable ten-year historical funding lows (excluding the 2009/10 transition
year when the program was operated at a subsistence level for approximately $100,000). The PDA has
asked for additional funding, which will be used to expand PVP activities. Such funding would also
offset the loss of funding the PDA previously received from the Petaluma Community Development
Commission, with which the PDA was able to leverage Petaluma tourism and promotional
opportunities.
Amongthe statistics provided-to-the City Council during the PDA/PVP presentation last fall was a
comparison that showed a significant increase in TOT revenues from 2010 to 2012. The presentation
stated that Petaluma's 2012 TOT collections represented.6.35 percent of the TOT collected in Sonoma
County. This suggests ample opportunity exists to increase Petaluma's,market share. From staff s
' perspective, it is difficult to quaniify how much of the increase in the City's TOT collections reflects a
recovering economy, how much is due to the individual marketing efforts of our lodging industry, and
how much was generated by'the Visitor's Program. It seems likely, however, that the Visitor's
Program played a key role in bringing tourism to town and influencing lodgers' decisionto stayin
Petaluma. Accordingly, it appears money spent on the Visitors Program is a good investment, and that
increasing the Program's funding will pay additional dividends.
3
Granting the requesqoriadditional funding requires a.contracTamendment,to'aeldress a new not-to-
exceed amount.,Now that the PDA;has had an opportunity to show its capabilities to operate the
Visitors program, a longer contract term appears warranted.,Additional`changes to the contract are
desirable at this time, all of which together are sufficient to.justify issuing a new contract A new
agreement provides more funding, a longer term and greater stability for the PDA, and reduces the
administrative effort'associated with processing two annual amendntentsrand a contract renewal that
would otherwise occur'in.thenext two years. A new Agreement is negotiated, drafted, and presented
to your Council for considerationiani approval.
The PDA has operated the PVP;not only pursuant'to the services agreement between the City and the
PDA, but also pursuant to a license agreement ("License")between the former Petaluma Community
Development Commission ("PCDC") and the PDA.: The License authorizes the PDA's use of depot
facilities on Lakeville Street The License relies in turn on the commercial lease agreement
("Commercial Lease") with Sonoma Marin Area.Rail Transit. The.City has taken action pursuant to
Ordinance 246.7 N.C.S. adopted June 17, 2013,to'-take assignment of the Commercial Lease, the
License, and related agreements to which the former PCDC was a party. The Oversight Board to the
City, when acting as the Petaluma'Community Development Successor.Agency, approved the
assignment at its June 19,;2013 meeting, The assignment must also be formally approved by SMART.
In.addition, the extension of the License and approval of the new Agreement with the PDA requires
exercise of one of the extension options under:the(Commercial Lease. Currently, the Commercial
lease is set to expire August 1, 2013, subject to three 5-year options:to,extend the Commercial Lease
term. Staff has received,informal;communications from SMART indicating support for the assignment
and extension of the Commercial Lease. Extension of the License and award of the new PVP
Agreementwith the PDA,ultimately rely on assignment and.extension'of the Commercial Lease.
The scope of work associated with:this Agreement is incorporated,as Exhibit A to the Agreement.
Although.compensation:under the Agreement is increased, the scope of work is virtually unchanged
from the scope of work developed in 2010. The PDA will develop and continueto provide all the
same services; performance Will.be with greater depth. Compensation primarily reflects the cost of
additional staff time needed to operate the PVP at"a higher level of function.
With respect to the Agreement, it generally conforms to the City's current standard contract provisions
and requirements. The indemnification provisions represent those that were negotiated for the 2010
agreement. Substantive changes are in the following.sections:
34A.. .Compensation. Compensation is increased from $169,000 to $206,000 per year.. The previous
contract included an escalator clause that allowed compensation to increase from $140,000 to
c
69;000, subject to a negotiated;contract amendment: This Agreement also includes an escalator
clause that provides compensation to the PDA,can increase by ten percent (10%), if the City's TOT
proceeds increase from $1,654,000 to $1,819,400 annually, and by another ten percent(10%), if the
City's proceeds increase from $1,819;400 to $2,001,340 annually. Such increases would not be
automatic, but would require agreeinent,on an expanded scope of work and a contract amendment.
Annual payments include$6,000 to support licensing costs,associated with space use. The space lease
between the former PCDC and SMART expires on Augu"stl, 2013 and obligates the PCDC to $12,000
annual lease payments. As noted, that lease will be assigned to the City, as will the obligation to pay
the $12,000 annual lease amount. As the City does not have this funding; costs will need to be
1
supported by the;subleases on the,property. The cost of the;PVP2s share of these payments is passed
on through the License Agreement"thatis incorporated as;Exhibit B'to the Agreement.
3 F. Financial Retorting. Previous financial reporting requirements were quarterly. This timing was
labor intensive for the PDA and:the City, and was not adhered to as-a result. This provision requires
"semi-annual reporting, which should be less.labor'intensive for both parties and foster improved
compliance with reporting standards.
4. Term. The new Agreement allows for.a total of six years. The initial term of the agreement is for
three years, ending on June 30,2016. Three one-year extensions can be negotiated following the
conclusion of the initial term.
14., Annual Reports. The former,Agreement required the submission of narrative progress reports on
a semi-annual and annual basis. Similar to,the changes noted,in:Section 3F, narrative reporting
requirements are now annual. As'With•finaneial reports, this:change.will reduce the amount of labor
expended producing and reviewing;reports, and.promote compliance,with this section. This section is
further modified to reflect the:changes noted to section 3F.above:
Finally, the License Agreement for use of the Depot building has been updated to provide a new term
consistent with this Agreement,to provide the necessary lease payment,,and to reflect that the property
lease with.SMART is now between the City and SMART; rather than the forme': PCDC.
With these various changes,.the attached Agreement is recommended:for'the Council's approval,
effective July 1, 2013. PDA representatives will be available at your July 1, 2013 meeting to answer
any questions you may have regardingthe Visitors Program.
FINANCIAL IMPACTS
The initial not-to-exceed amount under this new agreement is $206;000. This provides-the PDA with
compensation'for•services in.the-amount of$200,000,and an additional $6,000 to support license (sub-
lease)costs associated with the Visitors Center building_. 'These costs will be supported from
Transient-Occupancy Tax-proceeds, TOT proceeds are estimated at $1;654,000 for fiscal year
2013/14, which is sufficient to support the proposed increases'inrthe PDA Agreement and to support
the City uses for which they are-also budgeted.
ATTACHMENTS
1. Resolution
2. ProfessionalvServicesAgreement, With:
• Exhibit Scdpe,ofWelk (Services)
• Exhibit'$ —License
• Exhibit B-2 to Professional Services Agreement— Insurance Requirements
ATTACHMENT 1
, A,RESOLUTION APPROVING.A PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF PETALUMA AND THE PETALUMA DOWNTOWN ASSOCIATION.F.OR
OPERATION OF THE VISITOR CENTER AND THE PETALUMA VISITORS PROGRAM
AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT AND ALL
ASSOCIATED DOCUMENTS
WHEREAS,the City of Petaluma owns and has through the Visitors Program operated the
Petaluma Visitors Center: and
WHEREAS, in 2009 the Citysolicited and reviewed proposals to provide visitors services; and
WHEREAS, the Petaluma Downtown Associations proposal was viewed as providing the
most beneficial approach to operating the Visitors Program and marketing the City of Petaluma; and
WHEREAS, in 2010 the City awarded a professional services agreement to the Downtown
Association to operate the Visitors Center and the'Visitors'Program; and
WHEREAS the original;term of that Agreement has expired and,the Visitors Center and
Visitors Program are being operated in an Extension Period; and
WHEREAS, the Petaluma Downtown Association has operated the Visitors.Center,and
' Visitors Program in a manner that is consistent with the City Council's goals for the Program; and
WHEREAS, it is desirable to award a new Agreement to the Petaluma Downtown Association
that extends the term and increases the compensation available to support the Scope of Services
required under the Agreement.
NOW, THEREFORE BE`1T RESOLVED that the City Council of the City,of Petaluma hereby:
1. Approves a.Professional-Services Agreement between the City of Petaluma andthe.Petaluma
Downtown Association for the operation of the Visitors:Center and Petaluma Visitors Program;
and
2. Authorizes the City Manager to execute said Agreement:and all associated documents.
I �
ATTACHMENT 2
PROFESSIONAL SERVICES AGREEMENT
WITH PETALUMA DOWNTOWN ASSOCIATION FOR OPERATION OF THE
VISITOR CENTER AND PETALUMA VISITORS PROGRAM
FY 13/14 Fund#25200 Cost Center 57360 Object Code. Project# Amount$206,000.00
For.multi-year contracts or contracts with multiple accounts:
FY 14/15 Fund#25200 Cost Center 57360 Object Code. Project# Amount$206'000.00
FY 15/16 Fund#25200 Cost Center 57360 Object Code Project# Amount$206,000.00
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into and effective
as of ., 20 ("Effective Date"), by and between the City of Petaluma, a
municipal corporation and a charter city ("City") and the Petaluma Downtown Association
(PDA), a California nonprofit public benefit corporation ("Contractor"), (collectively, the
"Parties").
WHEREAS, the Parties enter into this Agreement for the purpose of Contractor providing
professional services to City under the terms and conditions set forth herein.
THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties
agree as follows:
1. Services. Contractor shall provide the services as described in and in accordance with
the schedule and terms set forth in Exhibit "A" attached hereto and incorporated herein
("Services").
2. Occupation of Premises for Purposes of Providing Services. This Agreement is
subject to all terms and conditions of that certain License Agreement between the former
Petaluma Community Development Commission and the Contractor attached hereto as
Exhibit "B" ("License"). The City Council has authorized assignment of the License
Agreement to the City, and the City has sought formal approval from Sonoma Marin
Area Rail Transit, owner of the Premises' under License, for assignment of the
commercial lease to the Premises (which go/ems the License Agreement) to the City,
and exercise of an option to extend the commercial lease to the Premises for five years.
Contractor's performance of the Services requires the,Contractor's use and occupancy of
the licensed Premises as defined in the License for the purposes of performing the
Services. The assignment to the City of the commercial lease to the Premises, extension
of the commercial lease, and amendment of the License executed by the City and the
Contractor taking effect are a conditions precedent to this Agreement taking effect, and
upon termination or"expiration of the License, this Agreement shall terminate or expire in
accordance with provisions 4 and/or 5 below.
3. Compensation; Business Tax Certificate.
A. For the full performance of the Services as described herein, Contractor shall
receive an amount not-to-exceed $618,000.00 ($206,000.00 annually) for Services
provided from July 1, 2013 through June 30, 2016. Payment shall be made in
twelve (12) installments of $51,500.00. each on July 1, 2013, October 1, 2013,
PROFESSIONAL SERVICES AGREEMENT
(iManage#609321)March 2013 1
January 1, 2014, April 1, 2014; July 1; 2014, October, 1; 2014, January 1, 2015,
April 1, 2015; July 1, 2015, October 1, 2015; January-1,-2016 and April 1, 2016.
Electronic payments can be made and are subject to agreement between the
Parties:
B. City's Transient ,Occupancy Tax proceeds for FY 2013/14 are estimated at
$1,654;000. In any fiscal year'where actual proceeds are at least $1,819,400, City
may increase the annual not-to-,exceed'amount toa%maximum of$226,000 for the
following fiscal year, for every year this Agreement or any extensions are in
force. In any fiscal year where actual proceeds exceed $2,001,340, City may
increase the annual not-to-exceed amount to a maximum of $248,000 for the
following fiscal year; for every year this ,Agreement or any extensions are in
force. If such increase(s) is/are granted, quarterly payments, as specified in
Paragraph A above, shall be adjusted proportionately. Such increase(s) shall not
be automatic, and shall only be granted if,the City and Contractor agree upon
additional services to be performed' by Contractor by amendment to this
Agreement:
C. Contractor shall be compensated for services in addition to those described in
Exhibit A only if Contractor and City execute a written amendment to this
Agreement: describing the additional services; 'to be performed and the
compensation to be paid-for such services.
D. Notwithstanding any provision herein, Contractor' shall not be paid any
compensation until such time as Contractor has on file with the City Finance
Department a _current W-9 form available from the IRS website (wwwirs;gov)
and has obtained'a currently valid Petaluma business tax certificate.
E. City's Obligation to `pay compensation to Contractor as provided herein is
contingent:upon .Contractor's performance of the Services pursuant to the terms
and conditions of this Agreement and any amendments thereto.
F. In addition to annual reporting required. by Section 14. of this Agreement,
Contractor shall provide semi-annual financial reports and supporting
documentation for the periods covering.July 1, 2013 through December 31,.2013;
July 1,2014 through,December'31, 2014; and,July. 1, 2015 through December 31,
2015, Financial reports shall be due within 45 days following-the end of each
reporting'period and shall provide an accounting of`all monies expended from
City advances,during the period. Unexpended funds from a particular reporting
period may be retained to fund performance of the :Services in subsequent
reporting periods: However, funds advanced during the term of this Agreement
and.not expended in accordance with this Agreement by June 30, 2016 must be
returned to the City. In the event of termination of this Agreement pursuant to
Section 5 below, Contractor shall return funds advanced by the City in accordance
with this provision. The funds:returned shall be equal to the+amount of the last
advance installment paid by the;City prior to termination, multiplied by a fraction
in which the denominator is the number of days in the installment/reporting
period and the numerator is the number;of days in the installment/reporting period
after the,termination date. The funds returned must also include any unexpended
PROFESSIONAL SERVICES AGREEMENT
()Manage 4609331)March 2013
fundsretained by Contractor from'prior_insfallment/reporting.periods. However,
funds that have been advanced by the City and used for Services for which
documentation acceptable to the City, in the City's sole discretion, is provided to
theiCity,.need•notbe returned.
4. Term. The of this Agreement commences.on the Effective Date, and terminates on
June 30,.2016,unless sooner terminated in,accordande with Section 5.
This Agreement may be extended for up to three(3) consecutive one-year periods on the
same terms and conditions contained herein, at the sole discretion of City. Should
Contractor desire:to extend this Agreement, for each year of extension, Contractor shall
give notice to City of Contractor's desire to extend at least ninety (90) days prior to the
expiration, requesting extension for an additional year City shall inform Contractor of
City's acceptance or rejection of the extension request in Writing prior to the expiration
date of the Agreement. Should City reject a request for an extension, the Agreement
shall expire in accordance with its terms. Upon termination, any and all of City's
documents or materials provided to Contractor and any and all of the documents or
materials produced as a result of this Agreement shall be the property of City and shall
be delivered to the City as soon as possible, but not later than fourteen (14) days after
termination of the Agreement.
5. Termination. City-may terminate this Agreement without cause upon ninety (90) days'
written notice. City-may 'immediately'°terminate or suspend this Agreement for cause.
Cause for immediate termination or suspension shall'include Contractor's bankruptcy or
insolvency and/or any'breach of this Agreement by Contractor, including but not limited
to failure to provide any item of service as specified in Exhibit A to this Agreement.
Notwithstanding anything to the contrary in this Agreement, the City reserves the right to
immediately terminate this Agreement upon the revocation, expiration or earlier
termination of the License, including but not limited to, revocation, expiration or
termination of the License relating to action or consent of the Sonoma.Marin Area Rail
Transit District, or "SMART". Upon receipt of notice-of termination or suspension for
cause, Contractor shall 'immediately stop all work in progress under this Agreement:
Subject to the requirements of the License, Contractor shall,have up to ninety (90) days
following termination to vacate the premises, provided that:
A. Contractor's occupancy of the licensed premises following: Agreement
termination is in accordance with all `applicable terms of the License and the
Master Lease'incorporated`in the License.
B. The Petaluma City Council, through its City Manager, by -amendment to the
License, authorizes an extension of the License, which would otherwise terminate
upon termination of this Agreement, solely for the purpose of permitting
Contractor to effect an orderly vacation of the licensed premises.
C. Contractor's occupancy following Agreement termination, in the sole discretion
of the City, does not interfere with Or otherwise impair the City's ability to
conduct:a 'Visitor Program on the licensed premises.
PROFESSIONAL SERVICES AGREEMENT (1/
(iManage 460932 I)March 2013 �� 11
D. Foranyperiod during which Contractor occupies the licensed premises following
termination of this Agreement, the Contractor shall agree:by amendment to the
License;to°pay the City a fair market rental-rate for the tinietof occupancy.
In the event of early"termination-of this Agreement by City, Contractor shall be entitled to
payment for all Services performed to the date of termination to the extent such Services
were performed to•the satisfaction of City in,accordance with the terms.and conditions of
this Agreement: If City terminates this Agreement for cause;Contractor shall be liable to
City for any excess cost.Cityincurs for completion of the Services.
6. Contractor's Representation; Independent Contractor. Contractor represents that
Contractor possesses distinct. professional skills in performing the Services. City has
relied upon said "representation as a Material inducement to enter into this Agreement.
Contractor shall, therefore, provide properly skilled`professionaland technical personnel
to perform all Services under this Agreement. It is expressly understood that Contractor
and its agents and employees shall act in an independent capacity and as,an independent
contractor and not as officers, employees or agents of City. This Agreement shall not be
construed as an agreementfor employment. •
7. Subcontracting. Contractor shall directly perform all Services; and shall not subcontract
any portion of performance of the Services without the prior written consent of City.
Any such subcontractors shall be required to comply, to the full extent applicable, with
the terms and conditions,of-this Agreement, including but:not limited-to, procuring and
maintaining insurance coverage as required herein and which :shall name City as an
additional insured.
8. Persons Employed liy Contractor/Subcontractor, Background Checks. Each person
in Contractor's employ Working at the Premises, or those in the employment of
subcontractors„must be a United States citizen or be an individual who has a legal right.
to work in the United;States. The Contractor must verify citizenship or legal right to
• work in the United States and retain an I-9 form for all Contractor personnel working at
the Premises. On the I=9 form, the Contractor must verify-the employment eligibility and
identity documents presented by the employee and record the document;information on
the 1-9 form prior to said employee beginnink any work at the Premises. No person
designated by Contractor to work at the Premises shall have been convicted of any felony
•or a crime relating to theft; violence, sexual misconduct or a violation of the California
Health & Safety Code. Any violation of•this provision shall constitute grounds for
termination of this.Agreement.
9. Facilities and Equipment. Contractor shall, at its sole cost and expense, furnish all
-facilities and•equipment+that may be required for furnishing the Services pursuant to this
Agreement, other than the:licensed Premises, which shall be provided subject to the terms
and conditions of the License: City shall furnish to Contractor no facilities or equipment
other than as set forth in this Agreement and the License, unless the:City otherwise agrees
in ,writing to provide the same:
10. Damage to Existing Property. Contractor-will be held responsible for any damage to
the licensed'Premises, existing City real property,, work, materials or equipment, as a
result of performance' of the Services, and shall repair or replace any damaged real
PROFESSIONAL.SERVICES AGREEMENT
• (!Manage 4609321)March 2013
property, work,n aterials or equipment-to the satisfaction of and at no-additional cost, to
the City. If the City finds that repairs or changes are required in connection with this
Agreement, which, in the opinion of the City are rendered necessary as a result of
damage by Contractor, the Contractorsshall, within five (5) days upon receipt of notice
from the City,,place imsatisfactory condition all of such work,.correctrall-defects therein,
and make ;good on all damages. If Contractor fails to correct any such, damage at
Contractor's"expense, the City may affect such'repairias necessary and require,Contractor
to pay for the cost of such repair within fourteen (14) days of presentation of a demand
for payment from City., Failure to pay any such amount on demand shall constitute
breach of this Agreement.
11. Licenses, Permits, and .Certificates:. Contractor,shall, at Contractor's sole cost and
expense, keep in effect at all times during the term of-this Agreement, any licenses;
permits, certificates, of Other such approvals which are legally required for performing
the Services.
12. Time. Contractor shall devote such time to the performance of the Services.as may be
reasonably necessary for,satisfactory performance of Contractor's obligations pursuant to
this Agreement.
13. Inspection. Contractor shall provide the City every-reasonable opportunity to ascertain
that the Services are:beingperformed in accordance with the,requirements`and intentions
of this. Agreement.. All work done and materials furnished, if,any, shall be subject to
inspection and approval by the City. The inspection, of such work shall not relieve
Contractor of'anyof its obligations pursuant to this Agreement.
14. Annual'Reports. In;additiowto the semi-annual financial_.reporting required pursuant to
Section 3 above, Contractor shall provide comprehensive narrative and financial reports
concerning Contractor's performance of the Services to the City Manager on an annual
basis. Such reports shall be submitted not later than 45 days following June 30, 2014,
June 30, 2015, June 30, 2016 and June 30th in any subsequent year(s) in which a one-
year contract extension is.authorized by the City pursuant to Section 4 of this,Agreement;
In addition, Contractor shall provide to the City Council an annual presentation,-and other
presentations as may be from time to time. Such presentations "shall contain
pertinent information, Ms determined`by the., City, on Contractor's activities for the
applicable reporting period.
15. Confidentiality. In the course of Contractor's employment, Contractor may haveaccess
to ,trade secrets and'confidential,.information, disclosure of which is protected or limited.
by law. Contractor shall not-directly or'indirectly discloseor use any such confidential
information, exceptas required for the performance of the Services.
16. Conflict of :Interest. Contractor represents that it presently has no interest, and
covenants that:it shall not acquire`any interest, direct or financial or otherwise,
which would conflict in any manner or degree with the performance of the Services
hereunder. Contractor further covenants that, in the performance of this Agreement, it
shall not employ any subcontractor :or person having such a conflict of interest.
Contractor represents that no one whorhas or will have any financial interest under the
Agreementais.an Officer of employee of,City. If such conflict of interest during this
PROFESSIONAL.SERVICES AOREEM ENT VI
(iManage°609321 j'March 2013
Agreementor any extension, Contractor will immediately advise City and City may, at its
sole,discretion; immediately terminate this Agreement.
17. Contractor.No Agent. Except as City may:specify in writing, Contractor shall have no
authority,express or implied, to act on behalf of City in any capacity whatsoever,as an
agent. Contractor:shall have no authority, express or implied, pursuant to this Agreement
to bind.City to'any:obligation whatsoever.
18. Standard of Performance. Contractor .shall perform all the Services in a manner
consistent with the standards of Contractor's profession-and any applicable regulatory or
statutory provisions. All instruments of service-of whatsoever nature, which,Contractor
delivers to City pursuant to:this Agreement, shall be,prepared in a substantial, first class,
and workmanlike manner and,conform to the standards of Contractor's profession. All
such instruments of service shall become the sole and exclusive property of City upon
delivery of the same.
19. -Assignment/Transfer. No assignment or transfer in whole or in part of this Agreement
shall be made without the prior written consentof City.
20. Compliance With All Laws. Contractor shall fully comply with all applicable local,
state and federal rules,laws, regulations and ordinances pertaining to the performance of
the Services.required'hereunder.
21. Americans:with Disabilities Act (ADA). It-is the intent of the,City and Contractor to
hilly comply with the Americans with Disabilities.Act of 1990. Every attempt will be
made to hold meetings; hearings, conferences, classes, and other events in accessible
locations; and auxiliary aides will be provided, if possible, upon request,to participants .
with disabilities. Complaints regarding Contractor's compliance with the ADA should be
directed to the City Manager, 1,1 English Street, Petaluma, California 94952; phone 707-
778-4345.
22. Discrimination: During, the performance of this Agreement Contractor shall not
discriminate against:any employee or applicant for employment because of race, religion,
creed, color, national origin, ancestry, gender, sexual orientation, age or physical or
mental disability in violation of any applicable law.
-23. Notice. Except as,otherwise specified in this Agreement,all,notices to be sent pursuant
to this-Agreement,shall be made in writing, and sent to the,Parties, at their respective
addresses specified below or to such other address as a Party may designate by written
notice'delivered to the other Party in accordance with this Section. All such notices shall
be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case notice shall be
deemed delivered on receipt if delivery is confirmed by a return receipt;
(iii) nationally recognized overnight courier, with charges prepaid or charged to the
sender's account; in which case notice is effective on delivery if delivery is
confirmed byithe delivery service; or
PROFESSIONAL SERVICES AGREEMENT kre/
(iManage 609321)March 2013
(iv) facsimile transmission,, in which case notice shall be deemed delivered upon
transmittal,. that (a) "a duplicate copy of the notice is promptly delivered
by first-class or certified mail, or by overnight delivery, or (b) a transmission
,report is generated reflecting the,accurate:transmission thereof Any notice given
by facsimile shall be considered to have been received on the next business day if
it is received after.5:00 p.m. recipient's time or on a nonbusiness day.
City:: City Clerk
City of Petaluma
Post Office`Box=61
Petaluma, California 94953
Phone: (707) 778-4360
Fax: (707) 778-4554
Email: cityclerk @ci.petaluma.ca.us
And:
City Manager
City of Petaluma
11 English Street
Petaluma, CA 94952
Phone: 707-778=4345
Fax: 707=778-4419
Email:, -citymgr @ci.petaluma.ca.us
Co ntractor: Petaluma Downtown Association
210 Lakeville'Street
Petaluma, CA 94952
Phone: 707-762-9348
Fax: 707-762-431.7
Email: marie @petalum'adowntown.com
24. Ownership'of Documents. All original papers, documents or computer material on disk
or microfilm, and.copies thereof, produced as a result of this Agreement, shall be the
property of City and may not be used by Contractor without the written consent of City.
Copies of such documents or papers shall not be disclosed to others without the written
consent of the City Manager or his or her designated representative..
25. Indemnification. Contractor shall indemnify, defend with counsel acceptable to the
City,and hold harmless City and its officers, officials, employees, agents and volunteers
("Indemnitees") from)and against';any.;and all liability, loss, damage, claims, expenses,
and costs (including, without'_limitation, attorney's fees and costs and fees of litigation)
(collectively, "Liability") of every nature arising out of or in connection with
Contractor's ;performance of the Services or its failure to comply with, any of the
obligations contained,in'this,Agreement.
In addition; and notwithstanding the foregoing, to the extent this Agreement is a
"construction contract" as defined by `California Civil Code Section 2783, as may be
amended from time to time, such duties of Contractor to indemnify shall no_t apply when
to do so would be prohibited by California Civil Code Section 2782.
PROFESSIONAL S ER VICES,AGREEMENT
(!Manage 6609321)March 2013.
26. Insurance. Contractor shall comply with the "InsuranceRequirements for Contractors"
in Exhibit B-2 attached hereto ;.and' incorporated herein by reference, and with all
insurance requirements:contained{in the License.
27.. Amendment. This Agreement may be amended only by a written instrument executed
by both Parties.
28. Litigation. If litigation ensues which pertains to the subject matter of Contractor's
services hereunder, Contractor, upon request from City, agrees to testify therein. To the
extent that Contractor's testimony does not relate to Contractor's status as a percipient
witness in any matters complained of, City shall pay Contractor a reasonable and
customary fee.
29. Construction. This•Agreernent is the'product of•negotiation and compromise on the part
of both Parties and'that the Parties agree that, notwithstanding.Civil Code Section 1654,
any uncertainty in the Agreement shall not be construed against the drafter of the
Agreement.
30. Governing Law; Venue. This Agreement shall be enforced and interpreted under the
laws of the State of California and the City of Petaluma. Any action arising from or
brought in connection with this Agreement shall be venued in a court of competent
jurisdiction in the County of Sonoma, State of California.
31. Non-Waiver. The City's failure to enforce any provision of this Agreement or the
waiver thereof in,w particular instance shall not be construed as a general waiver of any
part of such provision. The provision shall remain in full force and effect.
32. Severability. If any term or portion of this Agreement-is held to be-•invalid, illegal, or
otherwise unenforceable by a.court of competent jurisdiction, the remaining provisions of
this Agreement shall'continue in full force.andleffect.
33. No Third Party Beneficiaries. The Parties do not intend to create, and nothing•in this
Agreement:shallbe.construed to create, any benefit or right in any third party.
34. Mediation: The Parties'agreeto make a good,faith.attempt to resolve any dispute arising
out of this Agreement through mediation prior to commencing litigation. The Parties
shall mutuallyagree;uponthe:mediator and shall divide the costs of Mediation requally.
35. ,Attorney's Fees. If a Party to this Agreement brings%any action, including'an action for
declaratory'relief, to enforce,or interpret any term of this Agreement, the prevailing Party
will be entitled to reasonable attorneys fees in addition to any-other relief to which that.
Party niaybe entitled. The court may set such fees in the same-action or in a separate
action brought for that,purpose.
36. Contractor's Books and Records.
A. Contractor shall .maintain any and all ledgers, books of accounts, invoices,
vouchers, canceled checks, andiother records or documents evidencing or relating
PROFESSIONAL SERVICES AGREEMENT
(iManagc 460932 I)March 2013
•
tokCOsts; expenditures; disbursements.Land/orrevenues'''relating to provision of the
Services or Contractor's:performance under this Agreement fora minimum period
of three (3) years or for any longer period required bylaw, from the date of final
payment to 'ontractor pursuantto this Agreement:
B. Contractor shall maintain all documents and records which demonstrate
performance under this Agreement for a minimum period of three (3) years or for
any longer period required by raw,from the date'of_termination or,completion of
this Agreement.
C. Any recordsordocuments required to be maintained pursuant to this.Agreement
shall'be made available for_inspection or audit; at any time during regular business
hours, upon written request by the City Manager, City Attorney, City Finance
Director, or a designated representative of these officers: Copies of such.
documents shall be provided to the City for inspection at Petaluma City Hall
when This practical to do so. Otherwise, unless'an alternativeis mutually agreed
upon, the'records,shall be°available'at Contractor's'address indicated for receipt of
notices:inthis Agreement:
D. Where City has reason-to believe that such records or documents may be lost or
discarded due to dissolution, disbandment or termination-of Contractor's business,
City may; by written,request by any of the above-named officers, require that
custody of the.records be given,ito the City and,that the records and documents be
maintained in Petaluma City Hall. Accessto such:records and documents'shall,be
granted to any"party authorized by Contractor, Contractor's representatives, or
Contractor's successor in interest.
37. Headings. The headings used in this Agreement are for convenience only and are not
intended to affect the;interpretation or construction of any provisions herein.
38. Survival. All obligationsarising prior to the termination or expiration of this.Agreement
and all provisions of this Agreement 'allocating liability between City and Contractor
shall survive the"terminationor expiration of this Agreement:
39. Entire Agreement. This Agreement, including the exhibits attached hereto and
incorporated herein, constitutes;the entire:agreement.between-the Patties with respect to
the Services, and supersedes, all prior agreements or understandings, oral or written,
between the Partiesin°this regard.
SIGNATURES ON NEXT PAGE
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PROFESS IONAL SERVICES AGREEMENT h/
1 J
(iManngep609321)March 2013
IN WITNESS WI-IEREOE ,;the Parties hereto have executed'this document the'day; month and
year first above written.
CITY OF PETALUMA CONTRACTOR
By
City Manager Name
ATTEST:
Title
City Clerk Address
APPROVED AS TO.FORM:
City State Zip
City Attorney Taxpaye?I.D.Number
APPROVED:
Petaluma Business Tax Certificate Number
Risk Manager
APPROVED:
Finance Director
ci/manager/brown/Petaluma Visitors Program agrmt
PROFESSIONAL SERVICES AGREEMENT ILA
1iManage 9609321)March 2013 ''((!!
EXHIBIT A
SCOPEf OF SERVICES
Contractor shall perform the following services, consistent with all applicable regulatory
requirements.
1. Visitors Center
a. Provide sufficientistaffing, paid and volunteer,to operate the Visitor's center
according-to wn-season and Offseason schedules.
i. In-season shall be from the Monday preceding Memorial Day through the,
Mondayfollowing;Labor Day. ;Operations during this time period shall be
7 days per week; a minimum,6 hours per
ii. Off-season hours shall be 5 days per week,:a;minimum of 6 hours per day.
2. Visitor'Services
a. Respond.to inquiries and,contacts, including those through the web-site,
telephone, email and walk-in. Assemble;and provide comprehensive visitor
packets.
b. Coordinate, develop,manage and distribute visitor information, including
brochures, catalogs, flyers and other printed,-digital or otherwise electronic
information.
c. Assure appropriate management and maintenance,of visitor information kiosk
locatedat:retail outlet mall.
3. Web-Site
a. Upgrade, consolidate, maintain;and.manage the web-site: Coordinate and seek
approval of designated City staff relative to changes contemplated and made. •
b. Incorporateltinerary'builder and link Web-site to museum, galleries, theater and
music options.
c. Examine feasibility of including a booking'agent, and consider implementation.
4.. 'Partnerships
a. Seek and develop partnerships with local:industry professionals and,businesses
and develop and implement communication and collaboration strategies:
Included within:this,task shall be coordination and collaboration,with the lodging
co'alitionvand county, regional and national tourism professionals and
organizations.
b. Seek and develop partnerships with local events and organizations who promote
local events that increase•overnight stays. Such groups include, but are not
limited to; Infineon;Recreational sport providers such as Youth Soccer, Little
Baseball and Lacrosse Organization; Service Clubs; Mystic Theatre; American
Graffiti; and, other similar organization`s and event-hosts.
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c. Support, consult, advise and collaborate with•local organizations and residents
who are engaged in development of tourism activities.
d. Seek joint marketing:opportunities.
5. Holiday`Events
a. Coordinate and/or support,important community.Holiday events, including but
not limited to; Santa's Arrival; Lighted Boat Parade; Tree Lighting; Lighting and
Decoration Contests;and, other•similar or future events.
6. Media& Outreach
a. Coordinate, promote; conduct outreach and develop relationships with the press
and media including travel writers and others promoting tourism.
b. Conduct outreach to travel organizers, in order to promote for example,
restaurants; the,RiverorCoast and golfing.
c. Develop and distribute materials such as, media kits, press releases, story ideas •
and an image library.
d. Take full advantage of social networking opportunities, such as Facebook,
MySpace;Twitter, Linkedln and YouTUbe.
7. Target Markets
a Develop target markets, with emphasis,and priority placed on promotions that will
increase overnight stays;such as recreational isports events, the film industry,
local professionals seeking to host meetings and conventions, wedding planners
and target touritmarkets.
b. Develop distinct in and off season target markets. Intentionally'increase
overnight stays-in:off season period.
c. Develop, circulate and make available an event calendar, including development
of an event notification;system.
d. Develop•a series oftravel packages and,deals and marketand promote such.
e. Prepare and:formalize!ameeting-request procedure, whereby prospective hosts
can submit the requirements.of the event for Visitor.;staff to circulate to
appropriate venues.
8. Reporting
a. Provide mid-year and annual reports to the City of Petaluma
EXHIBIT B
LICENSE BETWEEN THE CITY OF PETALUMA AND THE
PETALUMA DOWNTOWN ASSOCIATION
EXHIBIT B
FIRST AMENDMENT TO LICENSE AGREEMENT
Petaluma Downtown Association
THIS FIRST AMENDMENT TO LICENSE AGREEMENT (this "Amendment") dated
as of .,,2013, is entered into by and between the City of Petaluma, a-
California municipal corporation and-charter-city ("Licensor" or"City"), and the Petaluma
Downtown Association, a.California nonprofitcorporation ("Licensee"). Licensor and Licensee
are referred to collectively herein as the "Parties".
RECITALS
A. Pursuant to operation of law, the Petaluma Community Development:Successor Agency,
a public entity ("Successor Agency"), succeeded to the former Petaluma Community
Development Commission ("Agency").
B. Pursuant to Successor Agency Resolution No 20.13-03 adopted on June 3, 2013; City
Ordinance No.'2467 adopted on June 17,2013; and the Successor,Agency Oversight
Board.Resolution To 2013-03^:adopted;on June 19, 2013, and;the subsequent execution
of an Assignment=and.Assumption Agreement:between the Successor Agency and the
City, dated as of , 2013, the City assumed all right, title and interest
of-Successor=Agency ht that.certain License.Agreement ("License Agreement")
entered into as of October 4, 2010 between the Agency and Licensee. A copy of the
License Agreement.is attached hereto as Exhibit A and incorporated herein by this
reference.
C The City Council hasrapproved and authorized execution of this Amendnient.pursuant to
Resolution No adopted July. 1, 2013:
D. The Parties desire to amend the License Agreement by entering into this Amendment for
the purposes set forth.herein.
E. Substantially, concurrently herewith, the Parties are entering into,a Professional Services
Agreement!("Agreemeni")'between them, effective:as of July 1, 2013;
F. Capitalized terms not defined herein shall have='the meaning ascribed'to them=iri the
License Agreement.
NOW THEREFORE,,.'in consideration,of the premises and the mutual,covenants herein
contained and-other goodjand valuable consideration, the receipt and sufficiency of which are
hereby acknowledged; the Parties agree as follows:
1. Recitals. Theforegoing.Recitals are true and correct;.and are incorporated herein by
reference:
2. Licensor. The License:Agreement is amended to delete all references to the "Petaluma
Community Development Commission" and "Agency", and to substitute therefor the
"City of Petaluma" and "City".
3. Term. The text of Section 4 of the License Agreement is deleted in its entirety and the
following language is substituted therefor: "The term of this License shall commence on
July 1, 2010 (the "Commencement Date") and,shall terminate on the date.of termination
of the Professional.Services Agreement, or sooner as provided herein. In the event that
the Professional Services Agreement is terminated, this License Agreement shall
terminate and the License shall be revoked concurrently with termination of the
Professional Services Agreement unless, at the-City's option and-in its sole discretion,
City permits Licensee's continued use and occupancy of the Licensed Premises, or
portion thereof,for a Permitted Use consistent with the definition of"Permitted Use" in
Paragraph 5 of the Master Lease. In that event:City shall require the execution of a new
agreement for use of the premises subject to this License, including Licensee's obligation
to pay fair market rent, and/or such other conditions as City may require in its sole
discretion."
4. License Fee. The.text of Section-5 of the License Agreement is deleted in its entirety and
the following language is substituted therefor: "Commencing on July 1, 2013, on or
before the first day of each calendar month during the term of this License Agreement,
Licensee shall pay to'City'a fee ("License Fee") in the,amount of Five Hundred Dollars
($500) per month, payable at City offices or such other address-as Licensor may direct.
For any partial month at the beginning or end of the term of this.License Agreement, the
License-Fee shall-be prorated on the basis-ofa thirty (30)-day month. This.License
Agreement is not intended to, nor shall it be interpreted to, create or vest in Licensee any
leasehold or any other property rights or interests in the Licensed Premises, or any part
thereof".
5. All Other Terms. Except as amended herein, all other terms and conditions of the
License Agreement-shall remain unchanged and in full force and effect:
6. Counterparts. This Amendment may be executed in counterparts, each of which shall be
an original, and all of which taken together shall constitute one agreement.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment to
License Agreement as of the date first set forth hereinabove.
5A
LICENSEE:
PETALUMA.DOWNTOWN ASSOCIATION,
a California nonprofit corporation
By
Print Name
Its
LICENSOR:
CITY OF PETALUMA.
a California municipal corporation and charter city
By
John C. Brown , City Manager
Al !EST
By
Claire Cooper, City Clerk
APPROVED AS TO FORM:
By:
Eric W. Panty, City Attorney
EXHIBIT A
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to First Amendment to License Agreement
•
LICENSE AGREEMENT
(Petaluma Downtown Association)
THIS LICENSE AGREEMENT (this "Agreement") isyentered into as of OC.t T
, 2010 ("Effective Date") by and between the Petaluma Community
Development Commission, a public body, corporate and politic ("Agency") of the City of
Petaluma (the "City"),and,the Petaluma DowntowmAssociation, a California nonprofit
corporationt Licensee")-Agency and-Licensee are hereafter referred to as the
"Parties".
RECITALS
A. Agency is the lessee under that certain Commercial Lease ("Master
Lease") dated August 1, 2003 and executed by and between Northwestern Pacific
Railroad Authority, a public joint powers authority ("Northwestern") and Agency.
B. The Sonoma Mann Area Rail Transit District ("SMART") is the successor
in interest to Northwestern under the master Lease.
C. Pursuant to the Master Lease, Agency leases the real property known as
Sonoma County Assessors Parcel No: 007-131-004 located:on Lakeville Street
between East Washington and D'Streets in the City;of Petaluma, including three
buildings located thereon consisting of the "Passenger Depot,"'the "Baggage Shed,"
and.the "Freight Shed" (collectively, "Depot Property") and each more particularly
described in the Master Lease)`for a term of (10) years with an option to renew for
fifteen (15) additional years, subject to SMART's right to terminate the Master Lease by
giving one-year's notice if the property or portion thereof is required for transportation-
related purposes.
D. Licensee is a California nonprofit corporation whose primary mission is to
maintain the historic downtown of the City of,Petaluma as an active and dynamic retail
center.
E. On June 7, 2010, by Resolution No. 2010-090 N.C.S., the Petaluma City
Council authorized the City Manager to execute a professional services.agreement
between the City and Licensee ('Professional Services Agreement") for, among other
things, operation.of the Petaluma Visitors Center, presently located in the Passenger
Depot.
F. Use of the Depot Property for offices, meeting rooms and associated
activities in connection with the operation of the Petaluma Visitors Center by the
' Petaluma Downtown Association is a permitted use under the Master Lease between
SMART and Agency.
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G Agency desires to.grant Licensee; and Licensee desires to accept, a
'revocable license,to use the Licensed Premises, defined below, in accord ance with the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuablezonsideration,the•receiptand
sufficiency of which are hereby acknowledged, the+Parties agree as follows:
-.-- ----1. Licensed Premises-The-Licensed Premises consist^of the building
(located on Lakeville Street in the City of Petaluma,iconsisting of approximately 2540
'square feet, commonly known as the Passenger Depot, and parking and related
facilities further described in Exhibit A:attached hereto and incorporated herein by this
reference.
2. Grant of License. Agency grants to Licensees revocable license to enter
upon and use the Licensed Premises for the specific purposes and subject to the terms
and conditions set forth in this,Agreement (the "License"). The right to.use the
Licensed Premises consists only of the Permitted Use specified in Section 6 of this
Agreement. This grant of License shall not constitute a grant of property rights and shall
be governed by the terms and conditions contained in this Agreement.
3. Master.Lease; Prior Rights. This License is made subject and subordinate
to the prior and continuing rights'of Agency and SMART as described in the Master
Lease, a copy of which is attached hereto as Exhibit B and incorporated herein by this
reference.
4. Term. The term of this License shall commence on July 1, 2010 (the
"Commencement Date") and shall'terminate on the second (2n4) anniversary thereof
(the "License Termination Date"), unless the Professional-services Agreement is
sooner terminated or this License is sooner terminated as provided herein. In the event
that the Professional Services,Agreementiseterrriinated prior to the License Termination
Date, this Agreement shall terminate and this License shall be revoked concurrently
with termination of the Professional Services Agreement unless, at the Agency's option
and in it sole discretion, Agency permits Licensee's continued use and occupancy of the
Licensed Premises, or portion thereof for a Permitted Use consistent with the,definition
of"Permitted.Use" in Paragraph 5 of the Master Lease. In thatevent Agency shall
require the:execution;of a new agreement for use of the premises subject to this
License, including Licensee's obligation to pay fair market rent, and/or such other
conditions as Agency may require in its sole discretion.
5. License Fee. The License Fee for the Term shall be One Dollar($1.00),
payable upon execution of this:License:
6. Use of Licensed Premises. For so,long as this License is in effect,
Licensee shall have the nonexclusive right to use the.Licensed Premises, solely and
exclusively for thefollowing purposes: operation of the Petaluma Visitors Center, a
,visitors' bureau serving current and`,prospective Petaluma businesses, residents,
tourists and visitors,,,and for offices, meeting rooms,and associated activities of the
Licensee elte (collectively,o eti t "Licensed d Use"), and
consent to any request by Licensee to use the
Licensed Premises for anyuse which is nota Licensed Use, or to condition its consent,
as Agency in its sole discretion deems appropriate. Licensee acknowledges that the
violation:of any provision of this,Section 6 shall, without limiting the terms of Section 9,
be cause for revocation of this Agreement and the License granted hereby.
7. Compliance with Laws. Licensee shall,at all times during the Term hereof
comply with all state, federal and local laws, ordinances, orders, rules and regulations
applicable to this License andthe Licensed Use(collectively, "Laws"), including without
limitation those Laws relating to signage, health, disability accommodation (including the
Americans with Disabilities Act),,;safety; historic building codesand guidelines, and
environmental protection;,,including all Environmental Laws (defined in Exhibit C
attached hereto and incorporated.herein by this reference).
8. Environmental Matters.
(a) Licensee.shall not commit, permit,;or suffer the commitment by any
Contractor, employee, agent, permittee, invitee, visitor or guest, of damage,waste:or
nuisance in, on or about the Licensed Premises or the Depot Property, nor shall it,use
or allow,the Licensed Premises or the Depot Property to be used'in violation of Laws,
including without limitation Environmental Laws.
(b) Licensee shall not-cause orper`mitftheuse or release of Hazardous
Materials, including without limitation any gasoline, diesel fuel, oil, other petroleum
products, or any hazardous or'explosive material, waste, or substance in, on, under or
from the Licensed Premises or the Depot Property, provided, however, that the
presence or use of Hazardous Materials in products required for the prudent and
ordinary management and operation of the LicensedPremises held and used strictly in
accordance with applicable law and prudent standards of practice,shall not violate this
covenant. If Agency or any governmental enforcement agency finds Licenseeto be in
violation of this Section 8, then unless otherwise agreed upon by the;Parties, Licensee
shall perform investigations, removal, or other remedial work required under applicable .
law, Licensee may delay commencement ofremedialwork pending resolution of a
good faith contest regarding the application, interpretation or validity of laws, orders, or
agreements. Agency shall;approve any remedial work, which approval shall not be
unreasonably withheld or delayed.
(c) If during the Term; Licensee knows or has,cause.to believe that any
Hazardous Materials have come to be located in, on, under or about the Licensed
Premises, other than aspreviously consented to by Agency, Licensee shall immediately
give Agency written notice thereof, together with a copy of any statement, report, notice,
registration, application, permit, business plan, license, claim, action:or proceeding
given to, or received from, any governmental,authority or private,party concerning said
Hazardous Material's: Should any discharge; leakage; spillage; or emission of any
Hazardous Materials;;,orpollution of any type, occur upon or from the=Licensed
Premises duringqhe Term; Licensee, at Licensee's expense, shall clean all property
affected thereby to the'satisfaction of Agency (insofar as the property is owned or
controlled by Agency) and any governmental body having jurisdiction thereover.
(d)Licensee,shall indemnify, hold harmless, and defend each and all of
the Indemnitees (defined in Section 19)from and against all Claims (defined in Section
"19)-incurred-bysuch?Indemnitees orahy of-them as:a result of Licensee's breach of this
Section 8, regardless whether such Claim arises during or after the Term, and
regardless"whether the Claim is contributed to or caused by the negligence, active or
,passive, of Agency.
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The provisions of this Section 8 shall survive:the expiration or termination
of this Agreement.
9. Revocation of License. The.Agency reserves the right to revoke and
terminate immediately the.License'herein,granted upon;the expiration or earlier
termination of the.Professional Services Agreement In addition;to Agency's right to
revoke this License for Licensee's Default as defined in Section 12, the Parties
acknowledge that pursuant to the Master Lease, SMART has the,right to terminate the
Master Lease or restrict Agency's use of the.Depot Property upon delivery to Agency of
one-year's notice if the Depot'Property or portion thereof is required,for transportation-
'elated purposes. The.Parties further agree that within thirty (30) days following
Agency's receipt of any such notice that would affect the:Licensed Premises, Agency
shall provide Licensee (at Agency's sole discretionywith a notice of revocation or
proposed modification of this License. If Agency elects to revoke this License pursuant
to receipt of notice from SMART, it shall;provide no less.than sixty (60) days written
notice to Licensee, and Licensee shall;surrender the Licensed Premises-on the date
Specified in Agency's notice (the "Termination Date"). Agency and'Licenseeifurther
acknowledge that written consent'of SMART may be required to allow the Licensed Use
by Licensee. In theevent'that SMART refuses,such consent whether any such refusal
a�
is or is not legally appropriate under the provisions of the Master Lease, Agency may
terminate and revoke this License and require Licensee to vacate the Premises on
written notice specifying the date on which Licensee shall surrender-the Licensed
Premises. Agency shall use its best efforts to secure consent-of'SMART to Licensee's
.Licensed Use.
!Oa Waiver of Relocation.Benefits. To the=maximum extent permitted by law,
Licensee, for itself.and for any permittees, knowingly waives-any and all benefits,.
monetary or otherwise, under California Relocation Assistance,Law(Government
Code Section 7260 etseq.) the Federal Uniform Relocation Assistance arid Real
• Property Acquisition Policies Act of 1970 (Title 42, U.S. Code Section 4601 etseq.), and
•
the implementing regulations thereunder, as such laws and regulations may be.
amended, and agrees toindemnify, defend and hold harmless Indemnitees from and
against any and all Claims,arising in connection with or filed pursuant to the foregoing
41
laws by any permitteeof Licensee. The provisions`of'this Section 10 shall,survive the
expiration or termination of this Agreement.
Licensee Initials
11. Default. The occurrence of any of the'following shail.constitute a material
breach and default ("Default') of this License by Licensee:
(a) Licensee violates, or fails to perform, any term, provision, covenantor
agreement set forth in this Agreement and,;:following notice of such default, fails to cure
same within ten (10) days after written notice thereof-from Agency ; or if such failure
cannot be cured within this ten (10) day period,;as determined by Agency in its sole
discretion, if such cure is not commenced within thirty (30) days;of Agency's written
notice and thereafter diligently pursued to completion.
(b) Licensee abandons or vacates the Licensed Premises for a period of
More than fifteen (15)-consecutive days.
(c) Licensee filehor institutes any proceeding under the Bankruptcy Act
and any amendment thereto, or any otherr federal or statelaw.now or hereafter relating
to the subject of bankruptcy; insolvency, arrangement, reorganization, or other form of
debtor relief; is the subject of an involuntary proceeding filed or instituted under any of
the aforementioned laws:unless,such proceeding iwdismissed Within thirty (30) days of
filing; is adjudicated as bankrupt or found or judged:to be insolvent; makes an
assignment for the benefit of creditors, is the subject-of the levyof'a writ of execution of
the business of Licensee or the:assets of Licensee located on the Licensed Premises,
that'isnot discharged'within ten (10)days.of the date of levy; or a;receiver is appointed
to take:possession of any property of Licensee.
(d) Licensee,fails to perform any obligation required of Licensee by the
Professional Services Agreement which Agencyelects to treat as a breach of the
Professional Service'Agreement byLicensee pursuant to the terms Of said Agreement.
`12. Remedies. In the event of Default by Licensee, Agency may, at any time
thereafter:
(a) Terminate this Agreement-and.revoke the License, in which case
Licensee shall immediately surrender possession of the•Licensed Premises to Agency.
Termination.of this revocation of•the.License shall not:release either
Party from any obligation'arising from actions that under'the express terms of
this Agreement,must be performed.
(b) Pursue an°action:for°equitable-relief`seeking the specific performance
of the terms and conditions.of this Agreement, and/or enjoining, abating, or preventing
any violation of such:terms:and,conditions, and/or seeking relief; and/or
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(c) :Pursue now or hereafter any other remedy allowed atlaw:orin equity.
Each of the remedies provided,herein is cumulative and not exclusive of, and shall not
prejudice, any other remedy provided herein or under appiicablelaw. Failure or delay
in providing a notice of default shall not constitute a•waiver oflanydefault.
13. Waiver'of Nuisance Claims. Licensee acknowledges that railroad tracks
are, or may in the future, be located adjacent to:the Licensed Premises and that the
operation of trains does and shall produce noise at levels that may be considered
objectionable by Licensee:and'.its,employees, agents, and invitees. Licensee agrees
that no legal action or complaint of any kind`shall be instituted against Agency, the City
or SMART as a result of such noise levels including any claims of nuisance or trespass.
Licensee shall indemnify, defend and hold harmless Indemnitees from and against any
Claim arising as a result of or in;connection with any action being taken by
Licensee or its employees,.agents, permittees or invitees. Licensee's indemnity
obligation underthis Section+13 shall survive the expiration or earlier termination of this
Agreement.
14. Conditions of Access. In addition to,being limited to:Permitted Use of the
Licensed Premises, Licensee shall adhere to the following specific requirements:
(a) Licensee shall be liable for any damage to the Licensed Premises or the
Property that occurs as a result of this License and-the Licensed Use Any damage to
the Licensed Premises and/or the•Property in violation of this Agreement shall be
immediately repaired to the satisfaction of Agency at Licensee's sole cost and expense.
(b) Licensee'expresslyacknowledges and agrees that Licensee accepts use of
the Licensed Premises in its AS-IS condition with all faults: Licensee has had an
opportunity to inspect and examine the Licensed Premises prior to entering into this
Agreement.
(c) Licensee acknowledges:-that Agency:makes no representation or warranty of
any kind, express or implied, in connection with-soils, improvements, or physical
condition of the Licensed Premises or the Depot Property, or as to whether••,any
Hazardous Materialsare present upon, in, under, about, or released from-the Licensed
Premisesor the Depot Property.
(d).Licensee:shall, at Licensee's sole cost and expense, maintain the Licensed
Premises in the condition existing as of the Effective Date, reasonable wear and tear
excepted,.and,'without limiting the foregoing'general obligation, shall keep the•Licensed
' Premises in safe condition and good order, condition,and repair at all;times during the
Term; shall repair any area damaged by Licensee or its agents,employees or visitors;
and shall perform routine maintenance. Licensee acknowledges that•Agency is under
no duty to make improvements to the Licensed Premises; provided, however, that
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Agency shall be:responsible for maintenance ofthe mechanical;.electrical, plumbing
and building fixtures andisystems, exterior common areas d ncluding landscaping,
sidewalksand parking areas on the Depot Property and"for structural repairs to the
Passenger Depot.
(e) Licensee shall keep the Licensed, Premises closed and locked at all times
when not:in:use, and Agency shall at'ail times hold;a key or keys as required for access
to the Licensed Premises.
(f).Licensee shall notallow any person, except Licensee's agents and
employees, to use the Licensed Premises or any part thereof without first obtaining
Agency's written consent.
(g) Agency shall have the right at all times during the.Term to inspect the
Licensed Premises upon reasonable notice, except in the case of an emergency in
Which event prior noticeshall not be required.
Licensee acknowledges that the violation of any provision of,this Section 14
shall, without limiting the terms of'Section 9, be.cause.for revocation of this Agreement
and the License granted hereby.
15. Alterations; Liens. Licensee shall not make;any alterations, renovations,
installation of any fixtures additions, or improvements (collectively, "Alterations") to the
Licensed Premises without the prior written consent of Agency, which Agency may
withhold or condition in itssole discretion. Licensee acknowledges that pursuant to the
Master Lease the prior written consent of SMART may also be required for any
Alterations. Licensee shall remove all Alterations at Licensee's expense upon
termination of this Agreement and.shall restore the Licensed Premises to the same
con_dition as at the beginning of the Term, reasonable wear and tear excepted.
Licensee shall not permit any mechanics''or materialrhen's liens, stop orders or
other charges or liens of any kind (collectively, "Liens")`to'be filed againstthe Licensed
Premises, the Passenger Depot or the Depot Property by-reason of labor or materials
furnished;.at Licensee's instance or request or for any other reason attributable to an
action or cause by,or'on behalf of Licensee. If any such Liens are filed Licensee shall
causethe.samelto be,discharged, either by payment of the claim or by posting and
recording the bond contemplated,by California Civil Code Section 3143, Within twenty
(20) daysafter demand by Agency. Licensee shall indemnify, hold harmless and
defend Agency frormand against,any such.Liens, and such indemnity,shall survive the
expiration or termination of this Agreement.
16. Parking: ,Licensee;and its employees, invitees.and.guests will be
permitted to use;parking'spaces in the parking lot adjacent to the Passenger Depot.
Agency shall have the right at any time during the Term-to designate a specific+number
and location of.parking:spaces in such lot forlLicensee's use.
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17. Utilities: Licensee shall pay, prior to anydelinquency; any andeall charges
for utilities and other`services supplied or charged to the Licensed Premises,:together
with anytaxesithereon. Such utilities and services shall include, without limitation, all
electricity,water, natural gas or other heating fuel, communications,use of storm and
sanitary sewers, and refuse collection (collectively, "Utilities"):. Agency shall have no
'obligation or responsibility to provide Utilities to the Licensed Premises, and
responsibility for failure or`interruption of service.
18. Taxes and Assessments. Licensee shall pay; before they become
'delinquent, all taxes (if applicable), charges'and assessments that are levied upon or
assessed against any improvemenforpersonal property placed on the Licensed
Premises by Licensee. Licensee shall pay, before they become delinquent, any and all
property taxes and/or possessory interest taxes,assessments and/or supplemental
taxes that are levied or assessed by any governmental authority on the Licensed
Premises or Licensee's possession and/or use thereof. By signing this.License
Agreement the Licensee understands and agrees in accordance with California
Revenue and Taxation Code Section 107.6 that the interest'of the Licensee in the
Licensed Premises pursuant to this Agreement may be;subject to property taxation, and
that the Licensee may be subject to the paymentofiproperty taxeslevied•on the interest
of the Licensee in the premises. Payment of any property tax that applies to the interest
of the Licensee in the Premises will'be the sole responsibility^of the Licensee. In the
event that any tax, assessment or charge that Licensee is obligated to pay pursuant to
this Section is not separately levied on the Passenger Depot or the Licensed Premises,
then Licensee's payment obligation under this Section shall be a pro rata share based
Upon the ratio that the square footage%of the Licensed Premises bears to the land and
improvements comprising the Depot Property (or portion thereof that is subject to tax,
assessment or chargé).
I
19. Indemnification. To themaximum extent permitted by law, at Licensee's
Sole expense and with counsel reasonably acceptable to Agency, Licensee shall
indemnify, defend and hold:harmless the City,,the Agency; Northwestern; SMART; the
Golden Gate Bridge, Highway?and Transportation District; the County of Mann; the
North Coast Railroad Authority; the,Union Pacific Railroad Company; the successors
and assigns of each of the foregoing; and the:respected elected and appointed,officers,
officials„directors, boards, commissions, employees, agents, contractors and
representatives;of each of the foregoing (including without limitation any person
operating Northwestern's or SMART's railroad tracks and services) (all of the foregoing
entities and'individuals, collectively ''Indemnitees"), from,any and"all claims, actions,
proceedings, demands, damages, fines, orders, 'judgments, losses, expenses
(including reasonable attomeys' fees and costs of litigation), liability and costs
(collectively"Claims") for, relating to, resulting from, arising from, or based directly or
indirectly in.whole;or in part,,or'in'any way attributable to (i) the use, occupancy or
maintenance of manner of'use, occupancy or maintenance of ; or'ingress.to and
egress from;'the Licensed Premises or the Depot Property by Licensee or Licensee's
permittees, guests, invitees, visitors, contractors, agents, officials, Volunteers or
8
employees lap) any act, error, omission or negligence of Licenbee':'.or Licensee's
permittees,,guests, invitees,visitors, contractors, agents, officials, volunteers or
employees, in on or about the Licensed Premises'orthe Depot Property; or(iii) any
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breach or default in the performance of anyobligation on Licensee's part pursuant to
this Agreement; provided however, that Licensee Shall have'no indemnification
obligation with respecttollhe:gross negligence or willful misconduct of the Indemnitees.
The provisions•of this Section 19'shall survive the expiration or,earlier termination of this
Agreement.
20. Insurance. Licensee shall, at Licensee's expense, procure and maintain in
force throughout the.Term, a policy of comprehensive general liability insurance insuring
Licensee and naming the Indemnitees as additional insureds, written often occurrence
basis in an amount not less than Two Million Dollars ($2,000,000) combined single limit
for bodily injury and property damage per occurrence, including coverage for personal
injury, contractual insurance and fire legal liability insurance: The policy shall contain a
waiver of subrogation in favor of the Indemnitees. In addition, Licensee shall, at
Licensee's-expense, procure and maintain in force throughout the Term, Workers'
Compensation insurance.in;compliance with applicable law, and shall provide Agency
with evidence of personal property insurance coverage.
Prior to occupying the Licensed Premises, Licensee shall provide Agency
with Certificate(s) of Insurance evidencing the coverage and endorsements required
hereunder ("Certificates"), and upon request shall`provide'-Agency with a certified
duplicate original of the required policies. All insurance policies required hereunder
shall be;issued by companies licensed to dojbusiness in the.State of California and
acceptable to.Agency. TheCertificates shall provide that(i) the insurance companies
issuing such policies shall give Agency written notice of any material alteration,
cancellation, nonrenewal or reduction in coverage, and=shall provide at least thirty (30)
days' notice of cancellation; and (ii) the policy(ies) are primary and noncontributing with
any insurance carried by the Indemnitees. No later than thirty (30) days prior to the
expiration'or termination of any-insurance policy required hereunder, Licensee shall
furnish Agency with evidence of renewal or replacement.
21. Nondiscrimination. Licensee covenants by and"for itself and all persons
claiming under or through this License, and this License is granted and accepted upon
and subject-to the condition, that there shall be no discrimination against Or segregation
of any person or group of persons on account of race, color; creed,religion 'sec,,sexual
preference, maritalstatus,'disability, national origin or ancestry in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of the Licensed
Premises,:.nor shall Licensee or any-person,claiming=under or through Licensee,
establish or permit any suchi practice or practices-of discrimination or segregation with
reference to the selection, location, number, use or occupancy of thetLicensed
Premises..
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22. Entire Agreement. This Agreement, together with Exhibits A, B and C,
constitutes the entire agreement of the Parties with respect,to the iubject matter hereof
and supersedes all prior negotiations and agreements;with°respect thereto.
23; Notices. Except as-otherwise specified in this Agreement, all'notices,to
be sent pursuant to this Agreement shall be made in writing, and sentto the Parties at
their respectiveaddressesrspecified:below or to such;other address as a Party may
designate by written notice delivered to the other parties in accordance with this
;Section. Alisuch notices shall:be sent by:
(i) personal delivery, in which;case notice is effective upon delivery;
(ii) certified or registered.mail, return receipt requested, in which case
notice shall be deemed delivered on receipt if delivery is,confirmed by a return
receipt;.
(iii) nationally recognized overnight courier, with charges prepaid or
charged to the sender's account, in which case notice is effective-on delivery if
delivery is confirmed by delivery service;
(iv),;facsimile+transmission; in which case,notice shall be deemed delivered
upon transmittal, provided that (a) a duplicate'copy of the notice is promptly
delivered by first-class or certified mail or by,overnight:delivery, and.(b) a
transmission report is generated reflecting the,accurate transmission thereof..
Any notice:given by facsimile shall be considered to have been n received on the
next business day if°it is;received after 5:00 p.m. recipient's time or on a
nonbusiness day.
To Agency: Petaluma Community Development Commission
11 English'Street.
Petaluma,CA 94;952
To Licensee: Petaluma Downtown;Association
6 Petaluma Blvd. N, Suite;A-11
Petaluma CA 94952
24. Attorneys' Fees. If either Party commences any ylegal action arising out of
this License;or the performance thereof, the prevailing party in such proceeding or
action shall be entitled to recover, in addition to its court costs,,;reasonabletattorneys'
fees to be fixed bythe'court.
25. Governing Law. This Agreement shall be governed"by and construed in
i accordance with the laws of the State of California Without regard to; principles of
conflicts of laws.
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26. ,Interpretation;-Captions. TheNsection.headings used herein are solely for
convenience and shall not be used to' interpret'thisAgreement. The Parties
acknowledge that''this Agreement is the product ofinegotiation and compromise on the
part•of both Parties, and the Parties agree, that since both Parties have participated in
the negotiation;and'drafting of this Agreement, this Agreement shall not be construed as
if prepared'by one,of the Parties, but rather.according to'fits'fairmeaning as a whole, as
if both Parties had prepared it.
- — 27 Time Time.is—of"the essence of'this Agreement and of each provision
hereof. Alf references to "days" shall mean calendar days except as otherwise
expressly provided herein.
28. No Joint Venture. The relationship of the Parties'is solely that of licensor
and licensee, and no jointventure or other partnership exists.or is created between the
Parties. NeitherParty assumes any fiduciary relatiorship hereunder to the other.
29. No Third Party Beneficiaries. Except as expressly:stated herein, nothing
contained in this Agreement'is intended by the Parties, nor shall any provision of this
Agreement be deemed or construed by the Partiesor by any third person, to be for the
benefit of any third party, nor shall anythirdn'party have any right to enforce any
provision of this Agreement.or be;entitled toddamages-for'any`breach of any of the
provisions°of this Agreement: 'Notwithstanding the foregoing, the Indemnitees specified
in Section 19 who are not expressly parties this Agreement shall be deemed third
party beneficiaries for purposes.of enforcing any rights to indemnification and insurance
granted hereunder; and shall be entitled to seek attorneys' feesand costs as provided
hereunder in any dispute arising from the enforcement of such rights.
30. Amendments: This Agreement may be modified or amended only by an
instrument in writing executed'by the Parties.
31. Assignment:Prohibited. This Agreement and the rights conferred
hereunder are personal to;t1e Licensee and may not be transferred_or assigned, by
operation of law or otherwise,:absent the express written consent of the Agency.
32. Counterparts. This Agreement may executed'in multiple counterparts,
each of which shall be an original, and all of which taken together shall constitute one
agreement.
33. Further Assurances. The Parties each agree to undertake such other
actions as may reasonably be necessary to carry out.the intent of this Agreement,
including without limitation, the execution of any additional documentswhich may be
required to effectuate the,transactions contemplated hereby:
34. Severability: If any term, provision, orcondition of this Agreement is held
by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this
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Agreement shall continue in full force and effect unless the rights and obligations of the
Parties have been materially altered or.abridged`thereby.•
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35. Non-Liability of Officials, Employees and.Agents. No member, official,
employee or agent of the City or the Agency shall be personally liable in the event of
any default:or breach'hereunder by either Party.
36. Waivers A•waiver•by either Party of the performance of any covenant or
icondition herein shali;nofinvalidate,this Agreement, nor shai the delay or forbearance
iby either Party in exercising any remedy or right hereunder be,considered-a waiver of,
or arnestoppel against, the later exercise of such remedy or right. Any waiver by
Agency of any provision of this Agreement must be in writing.
SIGNATURES ON FOLLOWING PAGE.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
LICENSEE:
PETALUMA DOWNTOWN ASSOCIATION
la California:nonprofit/coreoration
BY: � I
Print Name: \ - ri \' c Cv \CC- -
'Its: ?Cec� c\VQ \Ce_Ck-c.f
AGENCY:
PETALUMA COMMUNITY DEVELOPMENT COMMISSION
a public bod corpor- -nd politic
ra-
fts: Exre7cuutiive Director
(Attest:`—'fin-LAI}
i' I Claire Cooper, City Clerk
Ap veLt form:
'Eric W. Danly, City Attorney
Approved.;
Depa ht Director
CRiSK anager�
.1 . (A c 9-/6 -/°
Finance Director
13 0
Exhibit A
LICENSED PREMISES
A portion;:,consisting;of the building commonly known as the Passenger Depot,
consisting of approximately 2450 square feet, located on Lakeville,Street in the City of
Petaluma, County-of Sonoma, State of California, of the following.
IAII that portion as described in the Deed to Peter Donahue by Deed recorded March 13,
'1871 in Book 33 of Deeds at Page 82, Sonoma County Records.
,EXCEPTING THEREFROM all that portion described'in the deed to the City of
Petaluma, dated.May 3, 1972,recorded October 17, 1792'in Book 2703 of Official
'Records at page 12, Sonoma,County Records.
ALSO,EXCEPTING THEREFROM:the Southwesterly 315 feet of,land described in deed
recorded June 15, 1908, ,Deed Book 249, Page 145, Records of said County.
'APN 007-131-004 •
14 qI_
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EXHIBIT B-2
INSURANCE REQUIREMENTS,
Contractor's,performance of the Services under this Agreement shall not commence until
Contractor shall have obtained;all insurance required under this paragraph and such insurance
shall have been approved by the City Attorney as to form and the Risk Manager as to carrier:and
sufficiency. All requirements herein provided;shall appear r either in thebodyof the insurance
policies or as endorsementsand"shall specifically bind the insurance carrier.
Contractor shall procure and maintain for the duration;of the contract:all.necessary insurance
against claims now and in the-future for`injuries to persons or,damages to property which may
arise from or in connection with the performance of the Services'bythe Contractor, the
Contractor's agents, representatives, employees and subcontractors. Required professional
liability insurance shall be.maintainedatthe level specified hereindnr the duration of this
Agreement and any extension thereof and for twelve additional menths following the Agreement
termination or expiration.
A. Minimum Scope of Insurance;
Coverage shall beat least-as broad as:
1. Insurance Services Office Commercial General Liability coverage:
a. Personal injury;
b. Contract-dal liability.
'2. Insurance'Services Office form'covering Automobile Liability,code 1 (any auto).
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
4. Professional Liability insurance:
5. Such other insurance coveragesand limits as may be required by the City.
B. Minimum`Limits ofInsarance
Contractor shall,maintain limits no less than:
1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury
and property damage If Commercial General Liability Insurance or other form
with a general aggregate liability is used, either the.general aggregate limit shall
apply separately to this Agreement or the general aggregate limit.shall be twice
ihc[reqMirc&qccurrence limit.,
2. AutomobileLiability: $1,000,000 per accident for injury and property
damage.
3. Employer's•Liability: Bodily Injury byAccident- $1,000,000 each accident.
Bodily Injury byDisease - $1,000,000 policy limit.
Bodily Injury by Disease - $1,000,000'each employee.
4. Professional Liability insurance: $1;000,000.
5. Such!other insurance coveragesland limits as may be required by the City.
Exhibit B-2
INSURANCE REQUIREMENTS(City) (1
°Manage#609325)March 2013
C. Deductibles and Self-Insured Retentions
Any deductibla or self-insured retentions must declared,to and approved by the City.
At the Option of the City;,either; the insurerishall reduce or eliminate such deductibles or
self-insured retentions'as respects the City, its officers, officials, employees, and
volunteers; or the,Contractor shall procure a bond guaranteeing payment of losses and
related investigations, claim administration and defense expenses.
(
D. Other Insurance Provisions
The required general liability and automobile policies are to contain, or be endorsed to
contain the following provisions:
1. The City; its officers, officials, employees, agents and volunteers are to be
covered as Additional-Insureds as respects:. liability-arising out ofactivities
performed by or on behalf of the Contractor; products;and completed operations
of the Contractor;.premises owned, occupied,or used by the Contractor; or
automobiles owned, leased, hired or borrowed by the Contractor. The coverage
shall contain no special limitations,on the scope of protection afforded to the City,
its officers, offcials,employees, agents;or volunteers.
2. For any claims related,to this project, the Contractor's insurance coverage shall be
primary insurance as respects the City, its officers, officials, employees, agents
and volunteers. Any insurance or self-insurance maintained by the City, its
officers; officials;.employees, agents or volunteers_shall be excess of the
Contractor's insurance andshall not contribute with it:
3. Any failure to comply with reporting,or other provisions of the policies including
breathes of warranties shall notaffect coverage provided to the City, its officers,
officials, employees,,agents or volunteers.
4. The Contractor's insurance shall apply separately to each insured against whom
claim is made or suit is brought except, with respect to the limits of the insurer's
liability.
5. Each insurance policy required by this clause shall be endorsed to state that
coverage shall-not be suspended, voided,.canceled by either party, reduced in
coverage or inlimits except after thirty (30) days' prior writtennotice by certified
mail, return receipt requested, has been given toithe City.
6. Contractor agrees to waive subrogation rights,against?City.regardless of the
applicability of any insurance proceeds, and to require all contractors,
subcontractors or.others-involved in any way'with the.Services(to_do likewise.
E. Acceptability,of Insurers
Insuranceis to be placed with insurers with.a current A.M. Best's rating of no less than
ANTI.
F. Verification of Coverage
Contractor shall furnish the City with original endorsements effecting coverage required
by this clause. The endorsements are to be signed bya person authorized by that insurer
to bindcoverageon its behalf. All endorsements are to be received and approved by the
City before the Services commence.
ExliibitB-2
INS MANE E REQUIREMENTS(City)
(iManage 0609325)March 2013