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HomeMy WebLinkAboutCS Downtown San Rafael Market Operation 2019AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF SAN RAFAEL AND AGRICULTURAL INSTITUTE OF MARIN TO PROVIDE OPERATION AND MANAGEMENT SERVICES FOR THE NEW DOWNTOWN SAN RAFAEL MARKET This Agreement is made and entered into this sZ day of n9— , 2019, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and AGRICULTURAL INSTITUTE OF MARIN, a California corporation (hereinafter "CONTRACTOR"). RF.C'ITALS WHEREAS, the CITY has determined that it is in its best interest to obtain management services for the organization and operation of the Downtown San Rafael Market (hereinafter "MARKET"); and WHEREAS, the CONTRACTOR has experience in providing such management services and holds special technical skills to ensure a successful MARKET; and WHEREAS, the CITY desires to employ the CONTRACTOR to provide such services and CONTRACTOR is willing and able to provide said services AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY'S Project Manager. The Community Services Director is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR'S Project Director. CONTRACTOR shall have overall responsibility for the progress and execution of this Agreement. Andrew Naja-Riese, CEO, is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties and/or provide services as follows: organization and operation of the MARKET from June 2019 through September 2019. The MARKET will be held on Thursday nights from 6:00 pm to 9:00 pm and will be located on 41' Street between, but not to exceed, Lootens Place and B Street, including the San Rafael City Plaza. Duties include but are not limited to the following: � -3 - 83q a i GINAL • Hiring, training all personnel, entertainment, and labor • Coordinating street closures with the CITY's Event Coordinator and Police Department • Coordinating weekly event cleanup with contracted labor paid for by the MARKET • Recruiting and scheduling market participants and entertainment • Tracking financial data including revenue and expenditures for the event and providing that information to the City of San Rafael at the end of the season or as requested by the City of San Rafael • Meeting State certification requirements and reporting • Paying all expenses related to MARKET with the exception of Police overtime costs • Advertising/marketing the MARKET • Meeting with the Farmers Market Advisory Board on a regular basis. 3. COMPENSATION. All compensation to CONTRACTOR shall be paid from MARKET gross receipts, collected by CONTRACTOR, and shall not be an obligation of the CITY. Net receipts will be retained by the CONTRACTOR. 4. TERM OF AGREEMENT. The term of this Agreement shall commence on June 1, 2019 and end on November 30, 2019, with possibility of renewal in subsequent years. 5. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon forty- five (45) days written notice mailed or personally delivered to the other party. The Agreement shall terminate on the date specified in the notice, which date shall be at least forty-five (45) days after the notice is given. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period; provided, however, if the nature of the failure is such that it cannot with the exercise of reasonable diligence be cured within such 15 day period, then the Agreement may not be terminated pursuant to this Section if the non-performing Party promptly commences such cure (in any event within such 15 day period) and thereafter pursues the same to completion with diligence and continuity; provided, further, however, if such failure is of a nature which adversely affects the health and safety of Downtown San Rafael, obstructs or impedes the flow of pedestrian and vehicular traffic in San Rafael, or adversely affects the appearance or marketability of Downtown San Rafael, and can with the exercise of reasonable diligence be cured within a shorter period of time, then the applicable cure period following notice shall be such shorter period of time. Either party may terminate this Agreement. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 6. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. 7. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 8. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. Where CONTRACTOR is a professional not required to have a professional license, CITY reserves the right to require CONTRACTOR to provide professional liability insurance pursuant to this section. .` 4. If it employs any person, CONTRACTOR shall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. 3 B. Other Insurance Requirements. The insurance coverage required of the CONTRACTOR in subparagraph A of this section above shall also meet the following requirements: 1. Except for worker's compensation and employer's liability insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies. 2. The additional insured coverage under CONTRACTOR'S insurance policies shall be "primary and noncontributory" with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONTRACTOR'S policies shall be at least as broad as ISO form CG20 0104 13. 3. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. By execution of this Agreement, CONTRACTOR hereby grants to CITY a waiver of any right to subrogation which any insurer of CONTRACTOR may acquire against CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attorney, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONTRACTOR shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONTRACTOR. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. 9. INDEMNIFICATION. A. CONTRACTOR shall, to the fullest extent permitted by law, indemnify, release, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONTRACTOR'S performance of its obligations or conduct of its operations under this Agreement. The CONTRACTOR's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the CONTRACTOR's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONTRACTOR's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONTRACTOR's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONTRACTOR'S performance of or operations under this Agreement, CONTRACTOR shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. The defense and indemnification obligations of this Agreement are undertaken in addition to and shall not in any way be limited by; the insurance obligations contained in this Agreement and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 10. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, 5 sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 11. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 12. NO T[ IIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 13. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: TO CONTRACTOR's Project Director: 14. INDEPENDENT CONTRACTOR. Susan Andrade -Wax City of San Rafael 618 B Street San Rafael, CA 94901 Andrew Naja-Riese Agricultural Institute of Marin 400 Smith Ranch Rd Ste D San Rafael, CA 94903 For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 15. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 16. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 17. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 18. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 19. CITY BUSINESS LICENSE / OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 20. SURVIVAL OF TERMS. Any terms of this Agreement that by their nature extend beyond the term (or termination) of this Agreement shall remain in effect until fulfilled and shall apply to both Parties' respective successors and assigns. 21. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. 22. COUNTERPARTS AND ELECTRONIC SIGNATURE. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL L-� -V - JI SC T ity ager ATTEST: CONTRACTOR By: Name:�(� d� �i d ��— el ys Title: r E [if Contractor is a corporation, add signature of second corporate officer] LINDSAY LARA, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIA City orney By: -1 Name:::[a Title: C;Fp .r RAFq�` 1, 2 yo �'T Y VWV I T H CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Community Services Project Manager: Catherine Quffa Extension: 3078 Contractor Name: Agricultural Institute of Marin Contractor's Contact: Andy Naja-Riese Contact's Email: andy@agriculturalinstitute.org ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor .;c to ❑ b. Email contract (in Word) and attachments to City 5/7/2019 Attorney c/o Laraine.Gittens@cityofsanrafael.org NCGQ 2 City Attorney a. Review, revise, and comment on draft agreement 5/7/2019 N LG and return to Project Manager 5/7/2019 N LG b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Department Director Approval of final agreement form to send to Click ❑ contractor to enter a data 4 Project Manager Forward three (3) originals of final agreement to 5/7/2019 NCGQ contractor for their signature 5 Project Manager When necessary, contractor -signed agreement ❑ N/A agendized for City Council approval * *City Council approval required for Professional Services NCGQ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 5/20/2019 Date of City Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City / I n � l• Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed agreement 8 City Attorney Review and approve insurance in PINS, and bo' d ur -� I /� (for Public Works Contracts)VOL 9 City Manager/ Mayor Agreement executed by City Council authorized official 10 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager I1' 3 20lq VP-