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HomeMy WebLinkAboutResolution 2014-073 N.C.S. 5/19/2014Resolution No. 2014-073 N.C.S. of the City of Petaluma, California APPROVING AN AGREEMENT WITH MENTOR ME PETALUMA TO OCCUPY THE CAVANAGH RECREATION CENTER, TO PROVIDE SERVICES THAT SUPPORT RECREATIONAL USE OF THE BUILDING BY THE COMMUNITY, TO PLAN AND FUND APPROVED RENOVATIONS, AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT WHEREAS, The City currently operates the Cavanagh Recreation Center that consists of grounds and a building consisting of a gymnasium, restrooms, office and various meeting and recreation spaces; and, WHEREAS, the Cavanagh Recreation Center is an important community recreation asset and provides space for recreation programs and occasional meetings, gatherings and activities; and, WHEREAS, The Cavanagh Recreation Center is currently operated at a deficit and the City desires to transfer the financial responsibility while assuring continued availability and use of the facility for community recreation; and, WHEREAS, Mentor Me Petaluma is organized for the purpose of providing mentoring services to the youth of the community of Petaluma and is willing to undertake the responsibility of operating, maintaining and renovating the Cavanagh Recreation Center; and, WHEREAS, Subject to the terms and in consideration of the rights granted to Mentor Me Petaluma in accordance with the Agreements which are attached to and made part of this resolution as Exhibit A. Mentor Me Petaluma will provide all services necessary to assure continued availability of space for current and on-going programs, for general community use and for operations, maintenance and renovations of the Cavanagh Recreation Center. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma, as follows: Resolution No. 2014-073 N.C.S. Page I 1. The proposed agreements between the City and Mentor Me Petaluma governing use and operation of the Cavanagh Recreation Center which are attached to this resolution as Exhibit A are hereby approved, and the City Manager is authorized to sign on behalf of the City agreements substantially in accordance with those attached as Exhibit A. subject to the conclusion of final agreement discussions between representatives of Mentor Me Petaluma and the City. Under the power and authority conferred upon this Council by the Charter of said City REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Approved as to Council of the City of Petaluma at a Regular meeting on the 19a' day of May, 2014, form: by the following vote: City Attorney AYES: Albertson, Barrett, Mayor Glass, Barris, Healy, Vice Mayor Kearney, Miller NOES: None ABSENT: None ABSTAIN: None n %J " ATTEST: Y City Clerk Mayor Resolution No. 2014-073 N.C.S. Page 2 Exhibit A to Resolution PROFESSIONAL SERVICES AGREEMENT (Title of Project) FY Fund # Cost Center Object Code Project # Amount $_ For multi-year contracts or contracts with multiple accounts: FY Fund # Cost Center_ Object Code Project # Amount $_ FY Fund # Cost Center Object Code Project t.' _ Amount $ FY Fund # Cost Center Object Code Project tl. Amount $_ FY Fund # Cost Center Object Code Project # Amount $_ FY_ Fund # _ Cost Center _ Object Code Project # Amount $ THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into and effective as of , 20 ("Effective Date"), by and between the City of Petaluma, a California municipal corporation and a charter city ("City') and Mentor Me California, a California Nonprofit Corporation. Corporation no. C2935933 ("Mentor Me") (collectively, the "Parties"). Background A. Mentor Me is organized for the purpose of providing mentoring services to the youth of the Petaluma community. B. The City currently operates the Cavanaugh Recreation Center ("Center'), which Center consists of grounds, a building consisting of approximately square feet and a swimming pool, which is made available to the public for certain activities. C. The City desires Mentor Me to utilize and operate the Center facilities, with the exception of the swimming pool and related facilities required for operation of the swimming pool, pursuant to a non-exclusive license agreement ("License Agreement") with the City, and to contract with Mentor Me for services required to operate the Center. D. Those portions of the Center that are licensed to Mentor Me pursuant to the License Agreement are described in Exhibit A to the License Agreement ("The Licensed Premises"). E. The Center is currently operated at a fiscal deficit, and the City desires to transfer the financial responsibility for operating the Licensed Premises to Mentor Me, and Mentor Me is willing to undertake such responsibility pursuant to the terms of this Agreement. F. The Center requires renovation, and in consideration for the rights granted to Mentor Me pursuant to this Agreement and the License Agreement, and in accordance with their terms, Mentor Me will renovate the Center at Mentor Me's expense. G. The Center is an important community recreation asset and provides critical space for recreation programs, special events and various meetings, gatherings and activities. Resolution No. 2014-073 N.C.S. Page 3 This Agreement and the related License Agreement are intended to ensure continued availability of the Center for current and on-going recreation programs and for general community use in accordance with all applicable requirements for City public recreational facilities. In consideration of the mutual covenants contained in this Agreement, the Parties agree as follows: 1. Services. Mentor Me shall provide the services as described in and in accordance with Exhibit "A" attached hereto and incorporated herein ("Services"). 2. Term. The term of this Agreement commences on the Effective Date, and expires on ("Expiration Date"), unless sooner terminated in accordance with Section 3, or unless the term of this Agreement and/or the License Agreement are amended in accordance with their terms. In the City's sole and exclusive discretion, the City may extend the term of this Agreement and the License Agreement by up to an additional 5 years by amendment. Expiration or termination of this Agreement will result in expiration or termination of the License Agreement without further action of the parties. Upon termination, any and all of City's documents or materials provided to Mentor Me and any and all of the documents or materials prepared for City or relating to the performance of the Services, shall be delivered to the City as soon as possible, but not later than fourteen (14) days after termination of the Agreement. 3. Termination. a. Termination by Mutual Agreement. The parties may by mutual agreement terminate this Agreement by amendment in accordance with section 23 . b. Termination for Cause. Either party may give written notice in accordance with section 19 to the other party of termination for cause specifying the other party's failure(s) to comply with this Agreement giving rise to the notice of termination. The party giving notice of termination must allow the other party a reasonable period, specified in the notice, in which to cure that party's failure to comply with this Agreement. Cause for termination shall include, but not be limited to, any breach of this Agreement by Mentor Me or Mentor Me's bankruptcy or insolvency. 4. Mentor Me's Representation; Independent Contractor. Mentor Me represents that Mentor Me possesses distinct professional skills in performing the Services. City has relied upon said representation as a material inducement to enter into this Agreement. Mentor Me shall, therefore, provide properly skilled professional and technical personnel to perform all Services under this Agreement. It is expressly understood that Mentor Me 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 agreement for employment. Resolution Na 2014-073 N.C.S. Page 4 5. Licenses, Permits, Etc. Mentor Me shall, at Mentor Me's sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits or other such approvals which are legally required for performing the Services. 6. Time. Mentor Me shall devote such time to the performance of the Services as may be reasonably necessary for satisfactory performance of Mentor Me's obligations pursuant to this Agreement. 7. Inspection. Mentor Me shall provide the City every reasonable opportunity to ascertain that the Services are being performed 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 Mentor Me of any of its obligations pursuant to this Agreement. 8. Progress Reports. Upon the City's request, Mentor Me shall provide, in a form acceptable to City, written progress reports of all oral and written observations, opinions, recommendations, analyses, progress and conclusions related to Mentor Me's performance of the Services. 9. Confidentialitv. In the course of Mentor Me's employment, Mentor Me may have access to trade secrets and confidential information, disclosure of which is protected or limited by law. Mentor Me shall not directly or indirectly disclose or use any such confidential information, except as required for the performance of the Services. 10. Conflict of Interest. Mentor Me represents that it presently has no interest, and covenants that it shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services hereunder. Mentor Me further covenants that, in the performance of this Agreement, it shall not employ any subcontractor or person having such a conflict of interest. Mentor Me represents that no one who has or will have any financial interest under the Agreement is an officer or employee of City. If such conflict of interest arises during this Agreement or any extension, Mentor Me will immediately advise City and City may, at its sole discretion, terminate this Agreement for cause in accordance with section 3. Certain Mentor Me officers, officials, employees or volunteers may be subject to the requirements, including the disclosure and reporting requirements, of the City's Conflict of Interest Code adopted pursuant to the Political Reform Act. Such individuals that may be subject to the City's Conflict of Interest Code include those whose work may involve: making government decisions regarding approval or adoption of rates, rules, or regulations, action on permits or other applications, authorization to enter into or modify contracts, or approval of plans, designs, reports, or studies. Mentor Me agrees to comply fully with all such requirements to the extent they apply to Mentor Me's performance of the Services. 11. Mentor Me No Agent. Except as City may specify in writing, Mentor Me shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Mentor Me shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Resolution No. 2014-073 N.C.S. Page 12. Standard of Performance. Mentor Me shall perform all the Services consistent with the terms of this Agreement. 13. Assignment/Transfer. No assignment or transfer in whole or in part of this Agreement shall be made without the prior written consent of City. 14. Subcontractors. Mentor Me 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. 15. Compliance With All Laws. Mentor Me shall fully comply with all applicable local, state and federal rules, laws, regulations and ordinances pertaining to the performance of the Services required hereunder, including but not limited to, the California Building Standards Code as in effect in the City, the Americans with Disabilities Act, and any laws and regulations related to any copyright, patent, trademark or other intellectual property right involved in perfonnance of the Services. In the event of Mentor Me's failure to comply with any law(s) or regulation(s) applicable to the performance of the Services hereunder, the City may terminate this Agreement in accordance with section 3. To the extent that any other government agency or entity provides compensation for any of the Services, Mentor Me shall comply with all rules and regulations applicable to such fiscal assistance. 16. Prevailing Wages. This Agreement is subject to the requirements of the California Prevailing Wage Law, California Labor Code Section 1720 et seq., and any of the Services as described in Exhibit A that are subject to the Prevailing Wage law, such as renovation of the Center, will be performed in accordance with all applicable requirements of the California Prevailing Wage Law, including, but not limited to, all applicable requirements contained in Exhibit D, which is attached to and made a part of this Agreement. 17. Living Wage Ordinance. Without limiting the foregoing Section, Mentor Me shall comply fully with all applicable requirements of Petaluma Municipal Code, Chapter 8.36, Living Wage (the "Living Wage Ordinance"), as the same may be amended from time to time. Upon the City's request Mentor Me shall promptly provide to the City documents and information verifying Mentor Me's compliance with the requirements of the Living Wage Ordinance, and shall within fifteen (15) calendar days of the Effective Date of this Agreement, notify each of its affected employees as to the amount of wages and time off that are required to be provided to them pursuant to the Living Wage Ordinance. The Acknowledgement and Certification Pursuant to City of Petaluma Living Wage Ordinance, attached to this Agreement at Exhibit E, shall be a part of this Agreement for all purposes, and if Mentor Me is subject to Living Wage Ordinance requirements, as determined by the City, Mentor Me must provide a properly completed Exhibit E in accordance with the requirements of the Living Wage Ordinance. Mentor Me's Resolution No. 2014-073 N.C.S. Page 6 noncompliance with the applicable requirements of the Living Wage Ordinance shall constitute cause for City's termination of this Agreement pursuant to Section 3 hereof. 18. Discrimination. During the performance of this Agreement, Mentor Me 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. 19. 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 by the delivery service; or (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, 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: Assistant City Manager 11 English Street Petaluma. California 94952 Phone: (707) 778-4345 Fax: (707) 778-4419 Email: citymgrOci.petaluma.ca.us Mentor Me: Resolution No. 2014-073 N.C.S. Page 7 Phone: Fax: Email: 20. 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 Mentor Me 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. 21. Indemnification. To the maximum extent permitted by law, Mentor Me shall, at its own expense, indemnify, defend with counsel acceptable to the City, (which acceptance will not be unreasonably withheld), and hold harmless City and its officers, officials, employees, agents and volunteers ("Indemnitees") from and against any and all liability, loss, damage, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties and fines, expenses and costs (including, without limitation, claims expenses, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature, whether actual, alleged or threatened, arising out of or in connection with the Services or Mentor Me's failure to comply with any of the terms of this Agreement, regardless of any fault or alleged fault of the Indemnitees. The Mentor Me's obligation to indemnify, defend and hold harmless under this provision shall not be excused because of the Mentor Me's inability to evaluate Liability, or because the Mentor Me evaluates Liability and determines that the Mentor Me is not or may not be liable. The Mentor Me must respond within 30 calendar days to any tender for defense and indemnity by the City, unless the time for responding has been extended by an authorized representative of the City in writing. If the Mentor Me fails to accept tender of defense and indemnity within 30 calendar days, in addition to any other remedies authorized by law, so much of the money due or that may become due the Mentor Me under this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the matter subject to tender, or until the Mentor Me accepts the tender, whichever occurs first. In the event that the City must file responsive documents in a matter tendered to Mentor Me prior to Mentor Me's acceptance of tender, Mentor Me agrees to fully reimburse all costs, including but not limited to attorney's fees and costs and fees of litigation, incurred by the City in filing such responsive documents. The Mentor Me waives any and all rights to express or implied indemnity against the Indemnitees concerning any Liability of the Mentor Me arising out of or in connection with the Services or Mentor Me's failure to comply with any of the terms of this Agreement. 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, Mentor Me's duty to indemnify under this provision shall not apply when to do so would Resolution No. 2014-073 N.C.S. Page 8 be prohibited by California Civil Code Section 2782, as may be amended from time to time. Notwithstanding the foregoing, to the extent that the Services include design professional services subject to California Civil Code Section 2782.8, as may be amended from time to time, Mentor Me's duty to indemnify shall only be to the maximum extent permitted by California Civil Code Section 2782.8. 22. Insurance. Mentor Me shall comply with the "Insurance Requirements for Consultants" in Exhibit C -L attached hereto and incorporated herein by reference. 23. Amendment. This Agreement may be amended only by a written instrument executed by both Parties. 24. Litigation. If litigation ensues which pertains to the subject matter of Mentor Me's services hereunder, Mentor Me, upon request from City, agrees to testify therein at a reasonable and customary fee. 25. Construction. This Agreement 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. 26. 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. 27. Non -Waiver. The City's failure to enforce any provision of this Agreement or the waiver thereof in a 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. 28. 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 and effect. 29. No Third Party Beneficiaries. The Parties do not intend to create, and nothing in this Agreement shall be construed to create any benefit or right in any third party. 30. Mediation. The Parties agree to make a good faith attempt to resolve any dispute arising out of this Agreement through mediation prior to commencing litigation. The Parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. 31. Mentor Me's Books and Records. A. Mentor Me shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to the City for Resolution No. 2014-073 N.C.S. Page 9 a minimum period of three (3) years or for any longer period required by law, fi•om the date of final payment to Mentor Me pursuant to this Agreement. B. Mentor Me 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 law, from the date of termination or completion of this Agreement. C. Any records or documents 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 it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Mentor Me's address indicated for receipt of notices in this 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 Mentor Me's business, City may, by written request by any of the above-named officers, require that custody of the records be given to the City and that the records and documents be maintained in Petaluma City Hall. Access to such records and documents shall be granted to any party authorized by Mentor Me, Mentor Me's representatives, or Mentor Me's successor in interest. 32. 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. 33. Survival. All obligations arising prior to the termination or expiration of this Agreement and all provisions of this Agreement allocating liability between City and Mentor Me shall survive the termination or expiration of this Agreement. 34, Entire Agreement. This Agreement, including the exhibits attached hereto and incorporated herein, constitutes the entire agreement between the Parties with respect to the Services, and supersedes all prior agreements or understandings, oral or written, between the Parties in this regard. IN WITNESS WHEREOF, the parties hereto have executed this document the day, month and year first above written. CITY OF PETALUMA City Manager ATTEST: MENTOR ME LM Title Address Resolution No. 2014-073 N.C.S. Page 10 APPROVED AS TO FORM City Attorney APPROVED: Department Director APPROVED: Risk Manager APPROVED: Finance Director file name: Exhibits Exhibit A — Scope of Services Exhibit B — License Agreement Exhibit C — Insurance Requirements Exhibit D — Prevailing Wage Requirements Exhibit E — Living Wage Requirements City State Zip Taxpayer I.D. Number Resolution No. 2014-073 N.C.S. Page 11 EXHIBIT m� Scope of Services 1) In exchange for the use of the Cavanaugh Recreation Center for Me programs and services, Mentor Me will provide all services necessary to as, of the Center by current and future recreation users, and will maintain and renovate the Center using Mentor Me resources. Current uses of the Center that will be preserved during Mentor Me's occupancy include, but are not limited to, open gym play for basketball and volleyball, Senior Center ping pong and fitness, youth basketball and volleyball camps, and Boys and Girls Club and CYO youth basketball. Current uses of the Center that will be preserved during Mentor Me's occupancy also include year-round aquatics programming, however, Mentor Me will not be responsible for maintenance or operations required for the City pool or pool programs at the Center. 2) Mentor Me will use the Center for purposes directly related to activities necessary to provide mentoring services to the community and for community recreation and special event programs. Mentor me will maintain the Center in good and sanitary condition, schedule use of the Center, collect Center use fees, supervise use of the Center in accordance with all applicable regulations and policies governing use of City recreational facilities 3) Mentor Me will make portions of the Center available for community rentals to groups for recreational and other similar special events, short-term and short duration public purposes. Mentor Me cannot enter into any form of agreement permitting on-going and/or long term use of the Cavanaugh Recreation Center by third parties, but rather must operate the Cavanagh Recreation Center for community and recreation use. Mentor Me will seek City evaluation of facility rentals that are other than short term recreational or community use. All use must be appropriate to the building and its location in the community and neighborhood and be consistent with traditional recreation and community use of a public building. The City may review and approve and/or require modifications to activities of Mentor Me or other Center users that could negatively impact the neighborhood. 4) Mentor Me is required to make the facility available to the community for recreational and general community use under a fee structure that is intended to capture costs to provide service and that is subject to review and approval by the City. All rental fee revenue will be retained by Mentor Me and be used for Mentor Me program purposes, including operations, maintenance and repair of the Center. 5) Mentor Me will engage in renovation of the facility, and must present all renovations plans to the City for review and approval and seek all required reviews and approvals, in addition to the initial review of any proposed revision by City staff. In conducting evaluation of renovation proposals, City staff will consider the impact of the renovation on current and Resolution No. 2014-073 N.C.S. Page 12 future recreation use of the Center to ensure that potential future recreation use is not compromised by such renovation. 6) Mentor Me will be responsible for all utilities serving the Center and for all maintenance and operational costs except for costs related to the City pool at the Center. 7) Mentor Me will ensure that maintenance of all Center systems and fixtures, both inside and outside, is sufficient to allow for the safe operation of the Center, and commits to returning the Center to the City in a condition similar to that at the time of occupancy, subject to improvements approved by the City and normal wear and tear. Resolution No. 2014-073 N.C.S. Page 13 NON-EXCLUSIVE LICENSE AGREEMENT FOR USE OF THE CAVANAUGH RECREATION CENTER BY MENTOR ME PETALUMA This non-exclusive license agreement ("License Agreement") for use of the Cavanaugh Recreation Center ("Center') located at 426 8°i Street in Petaluma, California, is made this day of 2014, by and between the City of Petaluma, a California charter city ("City"), with its principal place of business located at I I English Street, Petaluma, California, 94952, and Mentor Me Petaluma, a California non-profit corporation, corporation number C2935933 ("Mentor Me"), with its principal place of business located at . Background A. Mentor Me is organized for the purpose of providing mentoring services to the youth of the Petaluma community. B. The City currently operates the Center, which center consists of grounds, a building consisting of approximately square feet and a swimming pool, which is made available to the public for certain activities. C. The City desires to grant a non-exclusive license to Mentor Me and Mentor Me desires to obtain a non-exclusive license from the City to utilize and operate the Center facilities, with the exception of the swimming pool and related facilities required for operation of the swimming pool. D. Those portions of the Center that are licensed to Mentor Me pursuant to this License Agreement are described in Exhibit A to this Agreement ("The Licensed Premises"). E. The City reserves all uses of the Center other than those uses licensed pursuant to this License Agreement. The uses reserved by the City include, but are not limited to, use of the swimming pool and related facilities. F. The Center is currently operated at a fiscal deficit, and the City desires to transfer the financial responsibility for operating the Licensed Premises to Mentor Me, and Mentor Me is willing to undertake such responsibility pursuant to the terms of this License Agreement. G. The Licensed Premises require renovation, and in consideration for the rights granted to Mentor Me pursuant to this Agreement and in accordance with its terms, Mentor Me will renovate the Licensed Premises at Mentor Me's expense. H. The Center is an important community recreation asset and provides critical space for recreation programs, special events and various meetings, gatherings and activities. This License Agreement and the related Services Agreement are intended to ensure continued availability of the Center for current and on-going recreation programs and for general Resolution No. 2014-073 N.C.S. Page 14 community use in accordance with all applicable requirements for City public recreational facilities. In consideration of the promises and mutual covenants contained in this License Agreement, the parties agree as follows: 1. Professional Services Agreement. Substantially concurrent with entering this Agreement, the parties are entering a professional services agreement ("Services Agreement') establishing the terms under which Mentor Me will perform services to operate and conduct programs at the Licensed Premises. The entire Services Agreement and any exhibits are made a part of this Agreement by reference. 2. License Grant. City grants to Mentor Me in accordance with the terms of this Agreement the non-exclusive right to use the Licensed Premises, as defined in provision 3 of this Agreement, solely for permitted uses as defined in provision 5 of this Agreement. 3. No Grant of Property Interest or Creation of Irrevocable License. The parties understand and agree that the rights of Mentor Me under this Agreement are license rights, and that this Agreement does not convey an interest or estate in the Licensed Premises, and that Mentor Me's rights under this Agreement are personal to Mentor Me, non -transferable and non -assignable (except as otherwise specified in provision 7. below), terminable by the parties, and revocable by the City in accordance with the terms of this Agreement. Nothing in this Agreement creates or may be construed to create rights of Mentor Me that are property interests or estates, such as lease or easement rights, nor may any conduct of a party or of the parties create or be construed to create such property interests or estates, or to create a license coupled with an interest or an irrevocable license. As a material element of the consideration for this Agreement, Mentor Me hereby waives, releases and disclaims on behalf of Mentor Me and any successors and assigns of Mentor Me any interest or estate in the Licensed Premises or license coupled with an interest or irrevocable license arising or alleged to arise in connection with this Agreement. 4. Licensed Premises. The rights granted Mentor Me under this Agreement apply solely to those portions of the Center licensed to Mentor Me pursuant to this Agreement. The Licensed Premises are further described in Exhibit A which is attached to and made part of this Agreement. 5. No Warranties. The City expressly disclaims any warranty of fitness of the Licensed Premises for the use intended by Mentor Me and expressly disclaims any warranty of merchantability. Mentor Me acknowledges that Mentor Me has had ample opportunity to view, inspect and use the Licensed Premises, and has performed such inspection as Mentor Me deems necessary, such that Mentor Me accepts the Licensed Premises in an as -is condition, with all faults, and without any warranty whatsoever, express or implied. Mentor Me relies entirely on its own judgment, inspection and evaluation, and not on any inspection, test or representation by the City whether oral, written, or implied, as to the condition of the Licensed Premises in any respect, including, but not limited to, their merchantability and/or their fitness for any use or sale. Resolution No. 2014-073 N.C.S. Page 15 6. Term. The term of this Agreement shall commence on 2014 ("Commencement Date") and expire on ("Expiration Date") unless the term of this License Agreement and the Services Agreement are amended in accordance with their terms. In the City's sole and exclusive discretion, the City may extend the term of this License Agreement and the Services Agreement by up to an additional 5 years by amendment. Expiration or termination of the Services Agreement will result in expiration or termination of this License Agreement without further action of the parties. License Payments. License payments of $1 per year must be paid before or by the Commencement Date and on each anniversary of the Commencement Date while this License Agreement remains in effect. Payments must be made payable to the City of Petaluma and be delivered to the City at the address specified in provision of this License Agreement. 8. Permitted Uses. Mentor Me's use of the Licensed Premises pursuant to this License Agreement is limited to activities in support of providing mentoring services for the Petaluma Community, operation, maintenance and rehabilitation of the Licensed Premises, including operation of community recreation and special event programs, subject to the terns of this License Agreement and the Services Agreement ("Permitted Uses"). The Permitted Uses are further described in Exhibit A of the Services Agreement. 9. Utilities. Mentor me will be responsible for the payment of all utilities serving the Licensed Premises during the terns of this License Agreement, except for utilities serving the pool on the Licensed premises. 10. Maintenance of Licensed Premises. Mentor Me agrees to keep the Licensed Premises in as good condition as existed on the Commencement Date of the License Term, normal wear and tear excepted, and to keep the Licensed Premises safe for use by Mentor Me and its officials, officers, employees, agents, invitees, customers and any member of the public using the Licensed Premises. Mentor Me will be responsible to repair any damage to the Licensed Premises resulting from Mentor Me's use of the Licensed Premises pursuant to this License Agreement. Subject to Mentor Me's rights under provision , upon expiration or termination of this License Agreement, Mentor Me will surrender the Licensed Premises in as good a condition as existed on the Commencement Date of the License Tenn, normal wear and tear excepted. 11. Termination. This License Agreement may be terminated as follows: a. Termination of the Services Agreement. This License Agreement will terminate upon termination of the Services Agreement without further action by the parties. b. Termination by Mutual Agreement. The parties may by mutual agreement terminate this License Agreement by amendment in accordance with provision. C. Termination for Cause. Either party may give written notice in accordance with provision to the other party of termination for cause specifying the other party's failure(s) to comply with this License Agreement giving rise to the notice of termination. The party Resolution No. 2014-073 N.C.S. Page 16 giving notice of termination must allow the other party a reasonable period, specified in the notice, in which to cure that party's failure to comply with this License Agreement. 12. No Unauthorized Assignment, Sublicensing or Delegation. Mentor Me may not assign or sublicense Mentor Me's rights under this License Agreement or delegate any of Mentor Me's obligations under this License Agreement without the prior written consent of City, and any purported assignment, sublicense, or delegation without prior written City consent will be void. 13. Renovation or Alteration of Licensed Premises. Mentor Me may seek and City may grant approval to alter or renovate the Licensed Premises. Any approved alteration or renovation of the Licensed Premises will be subject to all applicable laws and regulations, and will be made at Mentor Me's sole expense, unless the parties agree otherwise in writing. Mentor Me may not make any alterations, install any fixtures, or make any additions, renovations or improvements to the Licensed Premises without the prior written consent of the City. Mentor Me will be responsible for obtaining all required permits, including, but not limited, to building permits, prior to commencing work on any renovations or alterations authorized by the City pursuant to this provision. Any City -authorized alterations, fixtures, additions or improvements pursuant to this provision shall be the property of the City, and may not be altered or removed without the City's prior written consent. 14. Right of Entry. City will have the right to enter the Licensed Premises at all reasonable times, to inspect the Licensed Premises to ensure compliance with this License Agreement and provide for public safety. City shall endeavor to provide Mentor Me advance notice of inspections and to permit Mentor Me to be present during inspections. 15. Right of First Offer. If during the tern of this License Agreement the City elects to sell the Licensed Premises, City must first give Mentor Me written notice in accordance with provision. Mentor Me will have days from the date of the notice to give the City written notice in accordance with provision of intent to purchase the Licensed Premises and to conclude an agreement with the City to purchase of the Licensed Premises. If Mentor Me fails to give notice of intent to purchase or to conclude a purchase agreement within the time specified in this provision, the City will be free to sell the Licensed Premises to any party. 16. Government Regulations. Mentor Me must comply with all statutes, ordinances and regulations of applicable to the use of the Licensed Premises pursuant to this License Agreement. 17. Indemnification. To the maximum extent permitted by law, Mentor Me shall, at its own expense, indemnify, defend with counsel acceptable to the City, (which acceptance will not be unreasonably withheld), and hold harmless City and its officers, officials, employees, agents and volunteers ("Indemnitees') from and against any and all liability, loss, damage, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties and fines, expenses and costs (including, without limitation, claims expenses, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature, whether actual, alleged or threatened, arising out of or in connection with Resolution No. 2014-073 N.C.S. Page 17 Mentor Me's use of the Licensed Premises or Mentor Me's failure to comply with any of the terms of this License Agreement, regardless of any fault or alleged fault of the Indenuritees. Mentor Me's obligation to indemnify, defend and hold harmless under this provision shall not be excused because of Mentor Me's inability to evaluate Liability, or because Mentor Me evaluates Liability and determines that Mentor Me is not or may not be liable. Mentor Me must respond within 30 calendar days to any tender of defense and indemnity by the City, unless the time for responding has been extended by an authorized representative of the City in writing. In the event that the City must file responsive documents in a matter tendered to Mentor Me prior to Mentor Me's acceptance of tender, Mentor Me agrees to folly reimburse all costs, including but not limited to attorney's fees and costs and fees of litigation, incurred by the City in filing such responsive documents. Mentor Me waives any and all rights to express or implied indemnity against the Indemnitees concerning any Liability of Mentor Me arising out of or in connection with Mentor Me's use of the Licensed Premises or Mentor Me's failure to comply with any of the terms of this License Agreement. Notwithstanding the foregoing, to the extent this License Agreement is a "construction contract" as defined by California Civil Code Section 2783, as may be amended from time to time, Mentor Me's duty to indemnify under this provision shall not apply when to do so would be prohibited by California Civil Code Section 2782, as may be amended from time to time. Notwithstanding the foregoing, to the extent that Mentor Me's use of the Licensed Premises includes design professional services subject to California Civil Code Section 2782.8, as may be amended from time to time, Mentor Me's duty to indemnify shall only be to the maximum extent permitted by California Civil Code Section 2782.8. 18. Insurance. Mentor Me shall procure and maintain in effect for the duration of this License Agreement insurance in accordance with this provision, and Exhibit B which is attached to and made a part of this License Agreement. Exhibit B sets forth the minimum kinds and amounts of insurance that Mentor Me must maintain pursuant to this License Agreement, as well as required endorsements and other requirements. 19. Notices. Notice pursuant to this License Agreement will be given as follows: City: Assistant City Manager City of Petaluma 11 English Street Petaluma, CA 94952 Mentor Me: Resolution No. 2014-073 N.C.S. Page 18 20. Statutory Notice Regarding Possessory Interest Tax, Mentor Me is advised that under California Revenue and Taxation Code Section 107.6, execution of this License Agreement may create a possessory interest in Mentor Me subject to property taxation. Mentor Me hereby agrees that if such possessory interest is created and such interest is subject to property taxation, Mentor Me will be solely responsible for the payment of said property taxes levied on any such interest. 21. Attorneys Fees. If either party brings legal action arising out of this License Agreement, the prevailing party in that action will be entitled to recover in addition to that party's court costs reasonable attorneys fees to be fixed by the court. 22. Amendment. This License Agreement may be amended only by a written instrument executed by authorized representatives of each party. 23. Construction. This License Agreement 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 License Agreement shall not be construed against the drafter of the License Agreement. 24. Governing Law and Venue. This License 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 License Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California. 25. Non -Waiver. The failure to enforce any provision of this License Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision, and the provision shall remain in frill force and effect. 26. Severability. If any term or portion of this License Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this License Agreement shall continue in full force and effect. 27. No Third Party Beneficiaries. The parties do not intend to create, and nothing in this License Agreement shall be construed to create any benefit or right in any third party. 28. Headings. The headings used in this License Agreement are for convenience only and are not intended to affect the interpretation or construction of any provisions herein. 29. Survival. All obligations arising prior to the expiration or termination of this License Agreement and all provisions of this License Agreement allocating liability between City and Licensee shall survive the expiration or termination of this Agreement. 30. Entire Agreement. This License Agreement, including all exhibits, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings, oral or written, between the parties concerning the subject matter of this License Agreement. Resolution No. 2014-073 N.C.S. Page 19 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY John C. Brown, City Manager ATTEST: Claire Cooper, City Clerk APPROVED AS TO FORM: Eric Danly, City Attorney List of Exhibits Exhibit A — Licensed Premises Exhibit B — Insurance Requirements MENTOR ME PETALUMA Resolution No. 2014-073 N.C.S. Pape 20 EXHIBIT B NON-EXCLUSIVE LICENSE AGREEMENT FOR USE OF THE CAVANAUGH RECREATION CENTER BY MENTOR ME PETALUMA This non-exclusive license agreement ("License Agreement") for use of the Cavanaugh Recreation Center ("Center") located at 426 8th Street in Petaluma, California, is made this day of 2014, by and between the City of Petaluma, a California charter city ("City"), with its principal place of business located at 11 English Street, Petaluma, California, 94952, and Mentor Me Petaluma, a California non-profit corporation, corporation number C2935933 ("Mentor Me"), with its principal place of business located at . Background A. Mentor Me is organized for the purpose of providing mentoring services to the youth of the Petaluma community. B. The City currently operates the Center, which center consists of grounds, a building consisting of approximately square feet and a swimming pool, which is made available to the public for certain activities. C. The City desires to grant a non-exclusive license to Mentor Me and Mentor Me desires to obtain a non-exclusive license from the City to utilize and operate the Center facilities, with the exception of the swimming pool and related facilities required for operation of the swimming pool. D. Those portions of the Center that are licensed to Mentor Me pursuant to this License Agreement are described in Exhibit A to this Agreement ("The Licensed Premises") E. The City reserves all uses of the Center other than those uses licensed pursuant to this License Agreement. The uses reserved by the City include, but are not limited to, use of the swimming pool and related facilities. F. The Center is currently operated at a fiscal deficit, and the City desires to transfer the financial responsibility for operating the Licensed Premises to Mentor Me, and Mentor Me is willing to undertake such responsibility pursuant to the terms of this License Agreement. G. The Licensed Premises require renovation, and in consideration for the rights granted to Mentor Me pursuant to this Agreement and in accordance with its terms, Mentor Me will renovate the Licensed Premises at Mentor Me's expense. H. The Center is an important community recreation asset and provides critical space for recreation programs, special events and various meetings, gatherings and activities. This License Agreement and the related Services Agreement are intended to ensure continued availability of the Center for current and on-going recreation programs and for general Resolution No. 2014-073 N.C.S. Page 21 community use in accordance with all applicable requirements for City public recreational facilities. In consideration of the promises and mutual covenants contained in this License Agreement, the parties agree as follows: 1. Professional Services Agreement. Substantially concurrent with entering this Agreement, the parties are entering a professional services agreement ("Services Agreement") establishing the terms under which Mentor Me will perform services to operate and conduct programs at the Licensed Premises. The entire Services Agreement and any exhibits are made a part of this Agreement by reference. 2. License Grant. City grants to Mentor Me in accordance with the terms of this Agreement the non-exclusive right to use the Licensed Premises, as defined in provision 3 of this Agreement, solely for permitted uses as defined in provision 5 of this Agreement. 3. No Grant of Property Interest or Creation of Irrevocable License. The parties understand and agree that the rights of Mentor Me under this Agreement are license rights, and that this Agreement does not convey an interest or estate in the Licensed Premises, and that Mentor Me's rights under this Agreement are personal to Mentor Me, non -transferable and non -assignable (except as otherwise specified in provision 7. below), terminable by the parties, and revocable by the City in accordance with the terms of this Agreement. Nothing in this Agreement creates or may be construed to create rights of Mentor Me that are property interests or estates, such as lease or easement rights, nor may any conduct of a party or of the parties create or be construed to create such property interests or estates, or to create a license coupled with an interest or an irrevocable license. As a material element of the consideration for this Agreement, Mentor Me hereby waives, releases and disclaims on behalf of Mentor Me and any successors and assigns of Mentor Me any interest or estate in the Licensed Premises or license coupled with an interest or irrevocable license arising or alleged to arise in connection with this Agreement. 4. Licensed Premises. The rights granted Mentor Me under this Agreement apply solely to those portions of the Center licensed to Mentor Me pursuant to this Agreement. The Licensed Premises are further described in Exhibit A which is attached to and made part of this Agreement. 5. No Warranties. The City expressly disclaims any warranty of fitness of the Licensed Premises for the use intended by Mentor Me and expressly disclaims any warranty of merchantability. Mentor Me acknowledges that Mentor Me has had ample opportunity to view, inspect and use the Licensed Premises, and has performed such inspection as Mentor Me deems necessary, such that Mentor Me accepts the Licensed Premises in an as -is condition, with all faults, and without any warranty whatsoever, express or implied. Mentor Me relies entirely on its own judgment, inspection and evaluation, and not on any inspection, test or representation by the City whether oral, written, or implied, as to the condition of the Licensed Premises in any respect, including, but not limited to, their merchantability and/or their fitness for any use or sale. Resolution No. 2014-073 N.C.S. Page 22 6. Term. The term of this Agreement shall commence on 12014 ("Commencement Date") and expire on ("Expiration Date") unless the tern of this License Agreement and the Services Agreement are amended in accordance with their terms. In the City's sole and exclusive discretion, the City may extend the term of this License Agreement and the Services Agreement by up to an additional 5 years by amendment. Expiration or termination of the Services Agreement will result in expiration or termination of this License Agreement without further action of the parties. 7. License Payments. License payments of $1 per year must be paid before or by the Commencement Date and on each anniversary of the Commencement Date while this License Agreement remains in effect. Payments must be made payable to the City of Petaluma and be delivered to the City at the address specified in provision of this License Agreement. 8. Permitted Uses. Mentor Me's use of the Licensed Premises pursuant to this License Agreement is limited to activities in support of providing mentoring services for the Petaluma Community, operation, maintenance and rehabilitation of the Licensed Premises, including operation of community recreation and special event programs, subject to the terms of this License Agreement and the Services Agreement ("Permitted Uses"). The Permitted Uses are further described in Exhibit A of the Services Agreement. 9. Utilities. Mentor me will be responsible for the payment of all utilities serving the Licensed Premises during the term of this License Agreement, except for utilities serving the pool on the Licensed premises. 10. Maintenance of Licensed Premises. Mentor Me agrees to keep the Licensed Premises in as good condition as existed on the Commencement Date of the License Term, normal wear and tear excepted, and to keep the Licensed Premises safe for use by Mentor Me and its officials, officers, employees, agents, invitees, customers and any member of the public using the Licensed Premises. Mentor Me will be responsible to repair any damage to the Licensed Premises resulting from Mentor Me's use of the Licensed Premises pursuant to this License Agreement. Subject to Mentor Me's rights under provision , upon expiration or termination of this License Agreement, Mentor Me will surrender the Licensed Premises in as good a condition as existed on the Commencement Date of the License Term, normal wear and tear excepted. 11. Termination. This License Agreement may be terminated as follows: a. Termination of the Services Agreement. This License Agreement will terminate upon termination of the Services Agreement without further action by the parties. b. Termination by Mutual Agreement. The parties may by mutual agreement terminate this License Agreement by amendment in accordance with provision. C. Termination for Cause. Either party may give written notice in accordance with provision to the other party of termination for cause specifying the other party's failure(s) to comply with this License Agreement giving rise to the notice of termination. The party Resolution No. 2014-073 N.C.S. Page 23 giving notice of termination must allow the other parry a reasonable period, specified in the notice, in which to cure that party's failure to comply with this License Agreement. 12. No Unauthorized Assignment, Sublicensing or Delegation. Mentor Me may not assign or sublicense Mentor Me's rights under this License Agreement or delegate any of Mentor Me's obligations under this License Agreement without the prior written consent of City, and any purported assignment, sublicense, or delegation without prior written City consent will be void. 13. Renovation or Alteration of Licensed Premises. Mentor Me may seek and City may grant approval to alter or renovate the Licensed Premises. Any approved alteration or renovation of the Licensed Premises will be subject to all applicable laws and regulations, and will be made at Mentor Me's sole expense, unless the parties agree otherwise in writing. Mentor Me may not make any alterations, install any fixtures, or make any additions, renovations or improvements to the Licensed Premises without the prior written consent of the City. Mentor Me will be responsible for obtaining all required permits, including, but not limited, to building permits, prior to commencing work on any renovations or alterations authorized by the City pursuant to this provision. Any City -authorized alterations, fixtures, additions or improvements pursuant to this provision shall be the property of the City, and may not be altered or removed without the City's prior written consent. 14. Right of Entry. City will have the right to enter the Licensed Premises at all reasonable times, to inspect the Licensed Premises to ensure compliance with this License Agreement and provide for public safety. City shall endeavor to provide Mentor Me advance notice of inspections and to permit Mentor Me to be present during inspections. 15. Right of First Offer. If during the term of this License Agreement the City elects to sell the Licensed Premises, City must first give Mentor Me written notice in accordance with provision. Mentor Me will have days from the date of the notice to give the City written notice in accordance with provision of intent to purchase the Licensed Premises and to conclude an agreement with the City to purchase of the Licensed Premises. If Mentor Me fails to give notice of intent to purchase or to conclude a purchase agreement within the time specified in this provision, the City will be free to sell the Licensed Premises to any party. 16. Government Regulations. Mentor Me must comply with all statutes, ordinances and regulations of applicable to the use of the Licensed Premises pursuant to this License Agreement. 17. Indemnification. To the maximum extent permitted by law, Mentor Me shall, at its own expense, indemnify, defend with counsel acceptable to the City, (which acceptance will not be unreasonably withheld), and hold harmless City and its officers, officials, employees, agents and volunteers ("Indemnitees") from and against any and all liability, loss, damage, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties and fines, expenses and costs (including, without limitation, claims expenses, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature, whether actual, alleged or threatened, arising out of or in connection with Resolution No. 2014-073 N.C.S. Page 24 Mentor Me's use of the Licensed Premises or Mentor Me's failure to comply with any of the terms of this License Agreement, regardless of any fault or alleged fault of the Indemnitees. Mentor Me's obligation to indemnify, defend and hold harmless under this provision shall not be excused because of Mentor Me's inability to evaluate Liability, or because Mentor Me evaluates Liability and determines that Mentor Me is not or may not be liable. Mentor Me must respond within 30 calendar days to any tender of defense and indemnity by the City, unless the time for responding has been extended by an authorized representative of the City in writing. In the event that the City must file responsive documents in a matter tendered to Mentor Me prior to Mentor Me's acceptance of tender, Mentor Me agrees to fully reimburse all costs, including but not limited to attorney's fees and costs and fees of litigation, incurred by the City in filing such responsive documents. Mentor Me waives any and all rights to express or implied indemnity against the Indemnitees concerning any Liability of Mentor Me arising out of or in connection with Mentor Me's use of the Licensed Premises or Mentor Me's failure to comply with any of the terms of this License Agreement. Notwithstanding the foregoing, to the extent this License Agreement is a "construction contract" as defined by California Civil Code Section 2783, as may be amended from time to time, Mentor Me's duty to indemnify under this provision shall not apply when to do so would be prohibited by California Civil Code Section 2782, as may be amended from time to time. Notwithstanding the foregoing, to the extent that Mentor Me's use of the Licensed Premises includes design professional services subject to California Civil Code Section 2782.8, as may be amended from time to time, Mentor Me's duty to indemnify shall only be to the maximum extent permitted by California Civil Code Section 2782.8. 18. Insurance. Mentor Me shall procure and maintain in effect for the duration of this License Agreement insurance in accordance with this provision, and Exhibit B which is attached to and made a part of this License Agreement. Exhibit B sets forth the minimum kinds and amounts of insurance that Mentor Me must maintain pursuant to this License Agreement, as well as required endorsements and other requirements. 19. Notices. Notice pursuant to this License Agreement will be given as follows: City: Assistant City Manager City of Petaluma 11 English Street Petaluma, CA 94952 Mentor Me: Resolution No. 2014-073 N.C.S. Page 25 20. Statutory Notice Regarding Possessory Interest Tax. Mentor Me is advised that under California Revenue and Taxation Code Section 107.6, execution of this License Agreement may create a possessory interest in Mentor Me subject to property taxation. Mentor Me hereby agrees that if such possessory interest is created and such interest is subject to property taxation, Mentor Me will be solely responsible for the payment of said property taxes levied on any such interest. 21. Attorneys Fees. If either party brings legal action arising out of this License Agreement, the prevailing party in that action will be entitled to recover in addition to that party's court costs reasonable attorneys fees to be fixed by the court. 22. Amendment. This License Agreement may be amended only by a written instrument executed by authorized representatives of each party. 23. Construction. This License Agreement 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 License Agreement shall not be construed against the drafter of the License Agreement. 24. Governing Law and Venue. This License 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 License Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California. 25. Non -Waiver. The failure to enforce any provision of this License Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision, and the provision shall remain in full force and effect. 26. Severability. If any term or portion of this License Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this License Agreement shall continue in full force and effect. 27. No Third Party Beneficiaries. The parties do not intend to create, and nothing in this License Agreement shall be construed to create any benefit or right in any third party. 28. Headings. The headings used in this License Agreement are for convenience only and are not intended to affect the interpretation or construction of any provisions herein. 29. Survival. All obligations arising prior to the expiration or termination of this License Agreement and all provisions of this License Agreement allocating liability between City and Licensee shall survive the expiration or termination of this Agreement. 30. Entire Agreement. This License Agreement, including all exhibits, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings, oral or written, between the parties concerning the subject matter of this License Agreement. Resolution No. 2014-073 N.C.S. Page 26 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY Jelin C. Brown, City Manager ATTEST: Claire Cooper, City Cleric M UUCiS1V017_1.YI063 CGI i Eric Danly, City Attorney List of Exhibits Exhibit A — Licensed Premises Exhibit B — Insurance Requirements MENTOR ME PETALUMA Resolution No. 2014-073 N.C.S. Page 27 EXHIBIT C INSURANCE REQUIREMENTS Consultant's performance of the Services under this Agreement shall not commence until Consultant 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 either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Consultant 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 perfonnance of the Services by the Consultant, the Consultant's agents, representatives, employees and subcontractors. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage: a. Personal injury; b. Contractual liability. Z. 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. Such other insurance coverages and limits as may be required by the City. B. Minimum Limits of Insurance Consultant 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 the required occurrence limit. Z. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: Bodily Injury by Accident - $1,000,000 each accident. Bodily Injury by Disease - $1,000,000 policy limit. Bodily Injury by Disease - $1,000,000 each employee. 4. Such other insurance coverages and limits as may be required by the City. C. Deductibles and Self -Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Resolution No. 2014-073 N.C.S. Page 28 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 of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased, hired or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents or volunteers. 2. For any claims related to this project, the Consultant'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 Consultant's insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. 4. The Consultant'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 in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 6. Consultant 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 Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. F. Verification of Coverage Consultant shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before the Services commence. Resolution No. 2014-073 N.C.S. Page 29 PREVAILING WAGE EXHIBIT D HOURS OF WORK: A. In accordance with California Labor Code Section 1810, eight (8) hours of labor in performance of the Services shall constitute a legal day's work under this Agreement. B. In accordance with California Labor Code Section 1811, the time of service of any worker employed in performance of the Services is limited to eight hours during any one calendar day, and forty hours during any one calendar week, except in accordance with California Labor Code Section 1815; which provides that work in excess of eight hours during any one calendar day and forty hours during any one calendar week is permitted upon compensation for all hours worked in excess of eight hours during any one calendar day and forty hours during any one calendar week at not less than one -and -one-half times the basic rate of pay. C. The Consultant and its subconsultants shall forfeit as a penalty to the City $25 for each worker employed in the performance of the Services for each calendar day during which the worker is required or permitted to work more than eight (8) hours in any one calendar day, or more than forty (40) hours in any one calendar week, in violation of the provisions of California Labor Code Section 1810 and following. WAGES: A. In accordance with California Labor Code Section 1773.2, the City has determined the general prevailing wages in the locality in which the Services are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file with the City and shall be made available on request. The Consultant and subconsultants engaged in the performance of the Services shall pay no less than these rates to all persons engaged in performance of the Services. B. In accordance with Labor Code Section 1775, the Consultant and any subconsultants engaged in performance of the Services shall comply Labor Code Section 1775 which establishes a penalty of up to $50 per day for each worker engaged in the performance of the Services that the Consultant or any subconsultant pays less than the specified prevailing wage. The amount of such penalty shall be determined by the Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of the Consultant or subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or subconsultant in meeting applicable prevailing wage obligations, or the willful failure by the Consultant or subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of prevailing wages is not excusable if the Consultant or subconsultant had knowledge of their obligations under the California Labor Code. The Resolution No. 2014-073 N.C.S. Page 30 Consultant or subconsultant shall pay the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate. If a subconsultant worker engaged in performance of the Services is not paid the general prevailing per diem wages by the subconsultant, the Consultant is not liable for any penalties therefore unless the Consultant had knowledge of that failure or unless the Consultant fails to comply with all of the following requirements: The Agreement executed between the Consultant and the subconsultant for the performance of part of the Services shall include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815. 2. The Consultant shall monitor payment of the specified general prevailing rate of per diem wages by the subconsultant by periodic review of the subconsultant's certified payroll records. 3. Upon becoming aware of a subconsultant's failure to pay the specified prevailing rate of wages, the Consultant shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subconsultant for performance of the Services. 4. Prior to making final payment to the subconsultant, the Consultant shall obtain an affidavit signed under penalty of perjury from the subconsultant that the subconsultant has paid the specified general prevailing rate of per diem wages employees engaged in the performance of the Services and any amounts due pursuant to California Labor Code Section 1813. C. In accordance with California Labor Code Section 1776, the Consultant and each subconsultant engaged in performance of the Services, shall keep accurate payroll records showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the Services. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following: The information contained in the payroll record is true and correct. 2. The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any Services performed by the employer's employees on the public works project. The payroll records required pursuant to California Labor Code Section 1776 shall be certified and shall be available for inspection by the Owner and its authorized representatives, the Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the Department of Industrial Relations and shall otherwise be available for inspection in accordance with California Labor Code Section 1776. Resolution No. 2014-073 N.C.S. Page 31 D. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of the Consultant and any subconsultants engaged in performance of the Services, shall be responsible for ensuring compliance with California Labor Code Section 1777.5 governing employment and payment of apprentices on public works contracts. E. In case it becomes necessary for the Consultant or any subconsultant engaged in performance of the Services to employ on the Services any person in a trade or occupation (except executive, supervisory, administrative, clerical, or other non manual workers as such) for which no minimum wage rate has been determined by the Director of the Department of Industrial Relations, the Consultant shall pay the minimum rate of wages specified therein for the classification which most nearly corresponds to Services to be performed by that person. The minimum rate thus furnished shall be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment. file name: Resolution No. 2014-073 N.C.S. Page 32 ACKNOWLEDGEMENT AND CERTIFICATION PURSUANT TO CITY OF PETALUMA LIVING WAGE ORDINANCE PETALUMA MUNICIPAL CODE CHAPTER 8.36 The City of Petaluma Living Wage Ordinance ("Ordinance"), Petaluma Municipal Code Chapter 8.36, applies to certain service contracts, leases, franchises and other agreements or funding mechanisms providing financial assistance (referred to hereafter as an "Agreement') between the City of Petaluma ("City") and/or the Petaluma Community Development Commission ("PCDC") and contractors, lessees, franchisees, and/or recipients of City and/or PCDC funding or financial benefits ("covered entities"). Pursuant to Petaluma Municipal Code Section 8.36.120, as part of any bid, application or proposal for any Agreement subject to the Ordinance, the covered entity shall: ® Acknowledge that the covered entity is aware of the Ordinance and intends to comply with its provisions. Complete the Report of Charges, Complaints, Citations and/or Findings contained in this Acknowledgement and Certification by providing information, including the date, subject matter and manner of resolution, if any, of all wage, hour, collective bargaining, workplace safety, environmental or consumer protection charges, complaints, citations, and/or findings of violation of law or regulation by any regulatory agency or court including but not limited to the California Department of Fair Employment and Housing, Division of Occupational Safety and Health (OSHA), California Department of Industrial Relations (Labor Commissioner), Environmental Protection Agency and/or National Labor Relations Board, which have been filed or presented to the covered entity within the ten years immediately prior to the bid, proposal, submission or request. Pursuant to Petaluma Municipal Code Section 8.36.120, before the beginning of the term of any covered Agreement, or prior to the execution of said Agreement by the City or the PCDC, each covered entity shall certify that its employees are paid a living wage that is consistent with Petaluma Municipal Code Chapter 8.36. By executing this Acknowledgement and Certification, the covered entity (i) acknowledges that it is aware of the Ordinance and intends to comply with its provisions, (ii) attests to the accuracy and completeness of information provided in the Report of Charges, Complaints, Citations and/or Findings contained herein, (iii) certifies that it pays its covered employees a Living Wage as defined in Petaluma Municipal Code Chapter 8.36 and (iv) attests that the person executing this Acknowledgement and Certification is authorized to bind the covered entity as to the matters covered in this Acknowledgment and Certification. Resolution No. 2014-073 N.C.S. Page 33 SO ACI{NOWLEDGED and CERTIFIED: Project or Contract LD: Date: (Print Name of Covered Entity/Business Capacity) By (Print Name) /s/ (Signature) Its (Title /Capacity of Authorized Signer) Resolution No. 2014-073 N.C.S. Page 34 REPORT OF CHARGES, COMPLAINTS, CITATIONS AND/OR FINDINGS PURSUANT TO PETALUMA MUNICIPAL CODE SECTION 8.36.120 FOR EACH WAGE, HOUR, COLLECTIVE BARGAINING, WORKPLACE SAFETY, ENVIRONMENTAL OR CONSUMER PROTECTION CHARGE, COMPLAINT, CITATION, AND/OR FINDING OF VIOLATION OF LAW OR REGULATION BY ANY REGULATORY AGENCY OR COURT, INCLUDING BUT NOT LIMITED TO THE CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH (OSHA), CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS (LABOR COMMISSIONER), ENVIRONMENTAL PROTECTION AGENCY AND/OR NATIONAL LABOR RELATIONS BOARD, WHICH: ® AFFECTS YOU ASA PROSPECTIVE CONTRACTOR, SUBCONTRACTOR, LESSEE, FRANCHISEE AND/OR PARTY TO ANY CITY OF PETALUMA AND/OR PETALUMA COMMUNITY DEVELOPMENT COMMISSION -FUNDED AGREEMENT OR BENEFIT SUBJECT TO PETALUMA MUNICIPAL CODE CHAPTER 8.36 (LIVING WAGE ORDINANCE), AND ® HAS BEEN FILED OR PRESENTED TO YOU WITHIN THE TEN YEARS IMMEDIATELY PRIOR TO THE BID, PROPOSAL, SUBMISSION OR REQUEST FOR WHICH THIS ACKNOWLEDGEMENT AND CERTIFICATION IS MADE. PLEASE PROVIDE THE DATE, THE REGULATORY AGENCY OR COURT MAKING THE CHARGE COMPLAINT, CITATION OR FINDING, THE SUBJECT MATTER AND THE MANNER OF RESOLUTION, IF ANY. FOR EACH SUCH CHARGE COMPLAINT. CITATION OR FINDING. IF NONE, PLEASE STATE "NONE": ATTACH ADDITIONAL PAGES IF NEEDED. Date: Regulatory Agency or Court: Subject Matter: Resolution, if any: Expected resolution, if known: Resolution No. 2014-073 N.C.S. Page 35