HomeMy WebLinkAbout1996-12-02 City Council (9)of Palo Alto
City Manager’s Report
TO:HONORABLE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT: POLICE
AGENDA DATE: DECEMBER 2, 1996 CMR:486:96
SUBJECT:Resolution to Exercise Option for Second Year of Contract No. C6078086
with National Parking Corporation
REOUEST
This report requests that Council adopt a resolution to exercise the option for a second year of
the contract with National Parking Corporation for the operation of the attendant parking lot at
Lot S.
RECOMMENDATIONS
Staff recommends that Council adopt the attached resolution to the current contract with
National Parking Corporation which exercise the option for a second year.
POLICY IMPLICATIONS
The recommendation represents no change to current policy.
EXECUTIVE SUMMARY
In September 1995, Council approved an agreement with National Parking Corporation for the
operation of the attendant parking lot at Lot S. The agreement was implemented and the
parking lot began operation the first part of December 1995. The first term runs from December
1995 to December 1996. Provisions in the agreement allow for the City to extend the term for
successive periods in increments of one year, not to exceed three additional successive terms.
The agreement allows for termination of the agreement before the end of the term for cause or
if the City decides to end the attendant operation of the lot.
In September 1996, staff recommended that the agreement with National Parking Corporation
be terminated and the lot be changed back to its original use as a free, two-hour color zone lot
due to its underutilizafion, together with the costs associated with operating the lot. At that
CMR:486:96 Page 1 of 3
time, Council did not approve the recommendation and, instead, directed staff to obtain some
additional information and look at other altematives.
Since September, an increase in the number of users who are parking for longer periods of time
has been observed. As an example, from May to August 1996, only 4 percent of the users of
the lot were parking for four hours or more. Since September, the percent of users parking for
four hours or more has increased to 6 percent. Due to the recent increase in the long-term use
of the lot, staff concurs with the suggestion made during the last discussion with Council to
keep the lot operational through another holiday season. Staffwill return to Council in January
1997 with a complete updated evaluation on the use of the lot and the associated cost/revenue
information.
The experience of the initial year of operation of the lot, including the increase in the number
of attendant coverage, suggests that compensation for the first year term should be retroactively
renegotiated in an amendment to the agreement which covers these issues. Staff will have the
amendment completed for Council consideration at the same time the above mentioned
evaluation is presented for Council consideration. In the interim, compensation at the rate
prescribed for the first year’s term will be followed.
FISCAL IMPACT
Funds for the second year of the agreement are included in the Police Department’s current
budget.
ENVIRONMENTAL ASSESSMENT
This project is considered exempt from enviromnental review as it involves the use of existing
facilities and is certain to have no environmental consequences.
ATTACHMENTS
Attachment A: Agreement
Attachment B: Resolution
PREPARED BY: Lynne Johnson, Assistant Police Chief
CMR:486:96 Page 2 of 3
DEPARTMENT HEAD REVIEW:
CHRIS DURKIN, Poli.~e Chief
CITY MANAGER APPROVAL:
SUNE i E INbT-City Manag~ff"~
CMR:486:96 Page 3 of 3
RESOLUTION NO.
RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO
EXERCISING THE OPTION TO EXTEND FOR ONE YEAR THE
AGREEMENT WITH NATIONAL PARKING CORPORATION FOR
ATTENDANT PARKING SERVICES
The Council of the City of Palo Alto does RESOLVE as
follows:
SECTION i. Recitals.
(a) By agreement dated December !, 1995, the City and
National Parking Corporation provided for attendant parking
services at the Bryant/Florence off-street parking lot for a term
of one year, commencing December 4, 1995; and,
(b) The agreement does authorize the City to extend the
term of the agreement for successive years, not to exceed three
extensions, subject to termination at any time at City’s option;
and,
(c) Increased patronage of the parking lot now justifies
the extension of the term of the agreement for a second year.
SECTION 2. The City hereby exercises the option contained
in that agreement with National Parking Corporation dated
December i, 1995, to extend the term of the agreement for a second
year, commencing December 4, 1996, and concluding December 4, 1997.
SECTION 3. The City Council finds that this project is
categorically exempt from the ~rovisions of the California
Environmental Quality Act ("CEQA"), in accordance with Section 15301
of the CEQA Guidelines (pertaining to existing facilities).
Therefore, no environmental assessment is necessary.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Mayor
City Manager
Director of Planning and
Community Environment
Deputy City Manager,
Administrative Services Police Chief
Chief Transportation Official
961125 svn 0042770
AGREEMENT FOR PARKING LOT MANAGEM~D~ SERVICES
BETWEEN THE CITY OF PALO ALTO AND
NATIONAL PARKING CORPORATION
This Agreement for Parking Lot Management Services is
entered into , 1995 by and between the City of
Palo Alto and National Parking Corporation.
I. The City of Palo Alto owns several public off-street
parking facilities, one of which the City desires to operate as an
attendant-operated public parking facility for the accommodation
and convenience of the general public and patrons of the downtown
University Avenue business district.
2. National Parking Corporation is an operator of
public and private off-street parking facilities, and has engaged
in the management of such facilities for the past five (5) years,
including eight (8) years as an attendant-operator of at least one
parking facility containing not less than 85 parking stalls.
3. The City has solicited competitive proposals for the
operation
of a turnkey, attendant-operated parking facility at the
Bryant/Florence off-street parking lot facility, and Nationa!
Parking Corporation has submitted the proposal deemed by the City
to be the most qualified.
4. The City wishes to award a contract to National
Parking Corporation on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the following mutual
covenants, agreements, terms, and conditions ("provisions"), the
parties agree:
I.I "Agreement" means this "Agreement for Parking Lot
Management Services between the City of Palo Alto and Nationa!
Parking Corporation".
1.2 "Anniversary Year" means a period of twelve (12)
consecutive months, whether or not all twelve months fall within
the same calendar year. The Commencement Date will be first day of
the first Anniversary Year.
1.3 "Business Day" means any calendar day except a
Saturday, Sunday, and any Day observed as a legal holiday by the
City.
1.4 "City"means the City of Palo Alto, a chartered city
and municipal corporation of the State of California.
950907 syn 0070~34
1
1.5
is specified.
"Day"means any calendar day, unless a Business Day
1.6 UFacility" means the City-owned off-street parking
!ot uS" commonly known as the Bryant/Florence parking lot, which is
loca~ed in the 400 block of Bryant Street between University Avenue
and Lytton Avenue in the city of Palo Alto, and which will be
operated to hold up to 107 parked vehicles, as outlined in Exhibit
1.7 UImprovements" mean any addition, alteration,
betterment, repairs, construction or improvement to any part of the
surface or subterranean area of the Facility, including the
landscaping, lighting, paving, piping, and walls now or hereafter
!ocated in, on or about the Facility.
1.8 ULaw" means any constitution, charter, ordinance,
resolution, statute, policy, schedule, rule, regulation,
administrative order, judicial decision, or other requirement of
any municipa!, county, state, federal or other governmenta! agency
or authority having jurisdiction over the parties or the Facility,
or any part thereof, in effect either at the time of execution of
this Agreement or at any time during the term hereof, including,
without limitation, any regulation or order of any officia~ entity
or body.
1.9 uOff-Operating Hours" mean those hours of the Day and
week which are not identified as "Operating Hours".
!.i0 "Operating Fee" means and includes the Management
Fee, the Accounting Fee, the Supervisory Fee, and the operating
costs and expenses of the Operator as described in Section 6.
i.!i ’~Operating Hours" means the period of time from 8:00
a.m. to 6:00 p.m., Pacific Time, Monday through Friday of each
week, excepting Saturday, Sunday, and any Day observed as a legal
holiday by the City, and any other period or periods of time as
may be established by the City.
1.12 "Operator" means National Parking Corporation, a
California corporation, and its directors, officers, employees, and
agents.
1.13 "Parking Fee" means the fee, rate, or charge which
is due and payable to the City for the privilege of parking a
vehicle (as defined in California Vehicle Code section 670) at the
Facility for any length of time during Operating Hours, whether or
not the Parking Fees are collected by the Operator or remitted to
the City.
1.14 UPerson" means an individual, a corporation, a
limited liability company, a genera! partnership, a limited
partnership, a limited liability partnership, a joint venture, a
business trust, and any other form of business association.
950907 syn 0070834
1.15 "Police Chief" means the individual designated under
Section 2.08.210 of the Palo Alto Municipal Code to exercise
functions with respect to the rights and obligations of the Chief
of Police, or his designee.
i..16 "Property" means the emp!oyees’ uniforms and the
equipment owned or operated by the Operator or its directors,
officers, employees, agents, and representatives, in connection
with the performance of Services hereunder, including, without
limitation, audio transmission equipment, entrance and exit
barriers, arms, and gates, barricades, cashier terminals, lane
control units, fee displays and interfaces, booths, firmware,
message-switching electronics, processors, ticket issuing machines,
Portable data entry terminals, enhancements, upgrades, and
modifications to such equipment, written and printed materials and
documentation pertaining to the configuration, installation,
maintenance, repair and operation of the equipment, and computer
hardware and software which may be housed in any constituent part
of the equipment.
1.17 "Services" mean the parking lot management services
to be provided by the Operator at the Facility, as more fully set
forth in Section 3.
2.1 This Agreement will be binding on the parties on the
date of its approval by the City Counci! ("Effective Date"). The
term of this Agreement is for one(l) year commencing at 8:00 a.m.,
Pacific Time, on November I, 1995, or on any other date mutually
agreed to by the parties, in writing ("Commencement Date"), subject
to the earlier termination thereof, unless the Agreement is
extended in accordance with the provisions of Section 2.2. No
provision is made for the automatic extension or renewal of the
term.
2.2 The City reserves the right to extend the term of
this Agreement for successive periods of one (i) year each for not
more than three (3) successive terms, commencing at 8 a.m., Pacific
Time, on July i, 1996, subject to the earlier termination of this
Agreement. The City will provide the Operator with not less than
sixty (60) days’ prior written notice of its intention to exercise
its option to secure continuation of the Services in its present or
modified form.
2.3 The Operator acknowledges and understands that (a)
timely commencement of the Services is of the essence and is a
materia! consideration to the City under this Agreement and (b) if
the Operator fails to commence the Services on the Commencement
Date, the City will be deprived of these essential public services,
and such failure will constitute a default by Operator. In the
event that commencement of the Services is delayed, the City will
suffer significant economic loss as a result of such delay, and
actual damages, which will result, will be extremely difficult to
ascertain. Therefore, the City and the Operator agree that if
950907 sya 0070~34
3
there is a delay by the Operator, the Operator agrees to pay the
City as fixed, agreed, and liquidated damages and not as a penalty,
the sum of one hundred fifty dollars ($150) per Day for each Day
that the Operator fails to timely commence Services from and after
the ~ommencement Date. If the City, acting through the City
Manager in her discretion, elects to terminate this Agreement due
to the Operator’s substantial delay in commencing the Services, the
City will be entitled to enforce its rights and remedies at law or
in equity, including actual, compensatory, incidental, and
consequentia! damages.
2.4 Nothing in this Agreement will be deemed or
construed to prohibit the City from prematurely terminating this
Agreement for cause, or if the Facility ceases to exist, or if the
Facility ceases to be used as a parking lot or as an attendant-
operated parking lot by the City.
PARKING LOT MANAGEMENT SERVICES ADMINIS-
3.1 During the term of this Agreement, the Operator will
provide the highest level of professional, courteous, safe and
efficient Services in a quiet and orderly manner, and not annoy,
disturb, injure, harm, or offend the general public. ’ These
Services shall include, without limitation: issuing parking
tickets; parking of vehicles; collecting Parking Fees; providing
custodia! maintenance of all areas of the Facility, excepting those
areas to be maintained by the City; furnishing reasonable
assistance to Facility’s patrons, including, without limitation,
providing traffic directions; removing accumulated trash, garbage
and litter on a daily basis; participating in a community
outreach/education program devised by the Police Chief and made
known to the Operator; and rendering such other related services as
may be requested, in writing, by the Police Chief.
3.2 Any vehicle which enters the Facility shall be
issued a date- and time-stamped preprinted parking ticket. Any
vehicle which is left overnight or which is not claimed by the end
of the daily Operating Hours shall be issued a ticket or citation
which bears the amount of the Parking Fee due and an envelope for
the mailing of payment to the City. Validation of parking tickets
may be allowed only upon approval, in writing, by the Police Chief.
The Operator shall ensure that there is a sufficient stock of
sequentially-numbered parking tickets at all times, and that the
stocking of tickets is performed in accordance with established
written procedures approved by the Police Chief, in writing. The
Operator shall not allow any vehicle to bypass the entry or exit
gates to the Facility for the purpose of evading the payment of a
Parking Fee. In processing vehicle entries and exits, the Operator
shall use best efforts to ensure that no vehicle waits more than
five (5) minutes in line to enter the Facility, that the average
in-line waiting time during~ any hour does not exceed five (5)
minutes, and that ticket processing time, including payment, will
not exceed two (2) minutes. In the rendering of Services, the
Operator wil! use a ticket booth, which will comply with the
950907 sya 0070834
requirements of the Americans with Disabilities Act of 1990 ("ADA"),
to the extent the ADA is applicable to the use of such booth.
3.3 The Operator shall charge and collect the
appropriate Parking Fee from each person who uses the Facility,
provided, however, upon the implementation of written procedures
and a tracking system which is approved, in advance, by the Police
Chief, up to ten (i0) vehicles at any time may be permitted to
park at the Facility without payment of the appropriate Parking
Fee, provided the operators of such vehicles demonstrate to the
satisfaction of the Operator that such operators are 65 years of
age, or older. Such number will be increased to fifteen (15)
vehicles per Day effective on the Day after the Operator receives
written notice from the Police Chief that construction of the Palo
Alto Senior Citizens Center has commenced, until such time as the
City gives written notice to the Operator to increase or decrease
the number of such vehicles which may be allowed to park without
charge. Any waiver of such fees wil! be authorized as provided in
the City’s Municipal Fee Schedule.
3.3.1 In collecting Parking Fees for the City and
utilizing a computerized revenue control system approved by
the City, the Operator acts as the City’s agent. These
Parking Fees, upon their collection, become the sole property
of the City.
3.3.2 All Parking Fees which are paid in cash, or
by persona!_ check, travelers check, or other medium of
exchange acceptable to the City, shall be deposited by the
Operator with the City’s Division of Revenue Collections, City
Hall or with a financial institution approved by the City by
noon on the following Business Day, as determined by the City.
If the deposit is with a financial institution, the Parking
Fees shall be deposited in an account in the name of the City,
and the Operator shall have the right to only deposit such
funds in the City’s account. The obligation of the Operator
to deposit the Parking Fees into the appropriate depositary
financial institution shall survive the expiration or earlier
termination of this Agreement.
3.3.3 The Police Chief shall first approve of any
Parking Fee deposit arrangement, including, without
limitation, the use of armored transportation.
3.3.4 The Operator will perform regular checks of
the parking operations, ensuring that al! vehicles are
identified, al! Parking Fees are collected, and no tickets are
reissued
3.4 The Parking Fees shall be posted at the entrances to
the Facility on signs that will be provided by the Operator at its
expense.
3.5 The Operator shall accept only cash,
checks, and travelers checks in payment of Parking Fees.
personal
Only the
950907 sy~ 0070834
5
media of payment denominated in United States currency shall be
accepted. The Operator is expressly prohibited from returning cash
to any person in any personal check transaction. All cash handling
will be conducted in accordance with the Operator’s cash handling
poli~y, which is stummarily described in Exhibit "B".
3.6 Personal checks shall be accepted in accordance
with the provisions of California Government Code section 6157, as
amended. The maker shall provide satisfactory proof of California
residence and the drawer bank shall be located in California. No
persona! check issued by an out-of-state resident or drawn on an
out-of-state bank or other financial institution shall be accepted.
A personal check shall be accepted only if the name, address, and
telephone number of the maker is imprinted on the personal check.
A valid California driver’s license shall constitute satisfactory
proof of residence in California. The Operator shall secure the
vehicle license plate number and state of issuance or the vehicle
identification number of the vehicle operated by the maker, and
enter such information on the personal check, if the addresses of
the maker imprinted on the persona! check and the driver’.s license
are not identical. Personal checks shall be made payable to the
~City of Palo Alto" only for the ~mount of the appropriate Parking
Fee. The Operator shall verify al! personal check transactions
through a check verification service provided by the Operator
before permitting a motorist to exit.
3.7 The Operator shall accept travelers checks issued by
a financial institution organized under the laws of a state or a
territory of the United States or a foreign financia! institution
which is authorized under federa! law to maintain a federal agency
or a federal branch in the State of California or a licensee duly
licensed by the Superintendent of Banks of the State of California.
The term ~travelers check" shal! have the meaning set forth in
California Financial Code section 1852(j), as amended. The
Operator shall verify the similarity of the signature endorsements
on the travelers checks. Travelers checks shall be made payable to
the ~City of Palo Alto" and shall be deposited by the Operator in
the City’s account as described in Section 3.3.
3.8 The Operator shall keep and maintain at its
headquarters, located at the address set forth in Section 16.1,
the accounting books and records dedicated to its Services in
accordance with generally accepted accounting principles and the
City’s established accounting procedures and methods in order that
the City’s city auditor may audit, among other things, the amount
of Parking Fees collecsed by the Operator and the accounting
procedures and methods of collection. These books and records,
including, without limitation, ledgers, journals, and books of
accounts, shall reflect the entire Services operations of the
Operator at the Facility. The Operator shall make the items
available immediately for examination by the City’s audit
representatives during regular business hours. These items shall
be maintained for four (4) years after the expiration or earlier
termination of this Agreement, and this obligation shall survive
the termination of this Agreement.
6
950907 syn 0070234
3.9 The Operator shall submit to the Police Chief daily,
monthly, and annual reports of the Parking Fees collected by the
Operator on report forms which shal! be provided by the Operator
and approved, in advance, by the Police Chief. These forms shall
be modified at any time upon the request of the Police Chief. The
daily reports for the preceding¯ week shall be submitted by noon of
the first Business Day of the following week. Monthly reports
shall be submitted within ten (i0) Days after the end of the month,
or part thereof, for which a report is due. The annual reports
shall be submitted within thirty (30) Days after the end of the
Anniversary Year, or part thereof, for which a report is due. The
Operator shal! provide the City with any other reports as the
Police Chief may reasonably request during the term of this
Agreement.
3.10 The Operator shall be liable to the City for all
uncollected Parkin~ Fees which are not collected as a result of the
Operator’s failure to account for all vehicles that have utilized
the Facility during Operating Hours, unless the City is notified of
the presence of such vehicles in accordance with the established
written rules and procedures approved, in advance, by the Police
Chief. The Operator shall also be liable to the City for all
losses resulting from the Operator’s failure to collect the Parking
Fees as a result of undercharges. All undercharges and overcharges
shall be reconciled and determined according to established rules
and procedures a~proved by the City. All overcharges shall accrue
to the benefit ~-f~--the City and shall not be offset against any
undercharges. The Operator shall be liable to the City for any
loss of Parking Fees which otherwise arises from the Operator’s
acceptance of Parking Fees in a manner inconsistent with the
provisions of this Agreement, or for any other loss arising from
methods of collection which are inconsistent with applicable Laws
or procedures as may be established, in writing, by the City.
3.11 Unless otherwise instructed by the Police Chief, the
Operator shall handle claims and disputes concerning Parking Fees
as follows, and in accordance with the Operator’s complaint
handling procedures, which are summarily described in Exhibit
3.11.1 Whenever a patron refuses to pay the
appropriate Parking Fee, the Operator’s cashier shall refer
the matter to the Operator’s employee supervisor or manager,
and such disputes shall be handled in accordance with the
provisions of subsection 3.11.2. If a patron proceeds to exit
without paying the Parking Fee, the Operator’s cashier shall
use best efforts to record the license plate number of such
patron’s vehicle and immediately notify the Operator’s
employee supervisor or manager and the Palo Alto Police
Department. Within 24 hours of the incident, the Operator
shall prepare a report of each such incident and shall forward
the report to the Police Chief.
3.11.2 Any dispute involving a Parking Fee amount
which is less than the applicable maximum daily Parking Fee
rate shall be resolved by the Operator in accordance with the
950907 SyU 0070~34
written policies and procedures of the Police Chief. The
Operator shall provide to the Police Chief a written report of
all such disputes and their resolutions for the preceding
week by Wednesday of the following week. Disputes involving
amounts in excess of the applicable maximum daily Parking Fee
shall be referred to thegolice Chief for further action. Any
and al! refunds shall be subject to the approval of the Police
Chief.
3.12 Unless otherwise instructed by the Police Chief, the
Operator shall handle injury and non-injury vehicle incidents
occurring at the Facility by filing an incident report concerning
such incident to the employee manager or supervisor and the Palo
Alto Police Department, as follows:
3.12.1 Any claim by or against the Operator for
personal injury or property damage shall be communicated to
the Operator’s insurance carrier for adjustment within 24
hours of receipt of such claim. A copy of such claim shall be
forwarded to the Police Chief within 48 hours of receipt. A
representative of the Palo Alto Police Department shall be
summoned by the Operator, immediately, to prepare a report of
such incident.
3.12.2 Whenever an employee of the Operator
witnesses a traffic incident involving a patron’s vehicle
which appears to result in injury or damage to persons or
property, including any part of the Facility, the employee
shall immediately notify the Operator’s on-duty manager and
the Palo Alto Police Department of such incident.
3.13 Unless otherwise instructed, in writing, by the
Police Chief, the Operator shall handle correspondence from the
Facility’s patrons, as follows:
3.13.1 All responses by the Operator, when there
is a reasonable expectation of a request for a response, shall
be handled promptly. A copy of such correspondence shal! be
forwarded promptly to the Police Chief.
3.13.2 The Operator’s business name, address,
and telephone number shall be posted at the portable parking
attendant’s booth. The signs shall be approved, in advance,
by the Police Chief.
3.14 The Operator shall keep and maintain the Property
and the Facility, excepting the two bench and overhanging plants
areas of the Facility, in good, clean condition and perform all
custodial services in a manner which will not unreasonably
interfere with the intended use of the Facility. The custodia!
services shall be scheduled for performance at regular intervals by
the Operator and shall occur at least twice a Day at times
prescribed by the Police Chief. The Police Chief shall be the sole
judge of the quality of the custodial services required of the
Operator under this Agreement.
950907 Syn 0070~34
8
3.15 The Operator shall hire persons consistent with Laws
on nondiscrimination and affirmative action. To the extent
required by Law, the Operator shall verify the right of all persons
en~loyed pursuant to this Agreement to work in the United States in
compliance with the requirements of the Immigration Reform and
Control Act of 1986, as amended. The City reserves the right to
inspect the Employment Eligibility Verification forms (Form I-90MB
No. 1115-0136 or any revised version) completed by the Operator’s
emp!oyees who are employed at the Facility. Only qualified,
competent and experienced emp!oyees shall be hired. The Facility
shall be staffed by at least one employee during the Operating
Hours. A parking supervisor or parking manager shall be available,
in person, or by telephone, to confer with the City’s employee or
other representative on any matter arising in connection with the
Operator’s rights and obligations hereunder within thirty (30)
minutes after the City’s employee or other representative requests
a response of the supervisor or manager.
3.15.1 All employees, while on the Facility and
acting within the course and scope of employment by the
Operator, shall be clean, neat in appearance, and uniformly
attired (white shirt, black tie, black pants, black running
shoes, jacket, name tag identifying such employee, and the
Operator’s logo installed on each shirt and jacket), and shall
behave courteously.
3.15.2 All personnel employed by the Operator at
the Facility shall possess valid California drivers’ licenses,
and their safety records are subject to inspection, review and
approval bythe City.
3.15.3 No such personnel shall use improper
language or act in a loud and offensive manner.
3.15.4 The Operator shall provide ongoing training
of its employees with respect to the performance of the
Services.
3.15.5 All employees of the Operator shall be able
to effectively read, write, and speak English.
3.16 The Operator shall provide all reasonable and
necessary supplies and equipment in order to perform its duties and
obligations under this Agreement.
3.17 The Police Chief reserves the right to require the
Operator to remove from the Facility any employee of the Operator
who fails to satlsfactorily perform the Services, in accordance
with the standards established hereunder. The failure to remove
such emp!oyee or otherwise effectively remedy any written notice of
determination to the satisfaction of the Police Chief within ten
(I0) Days of receipt of such notice shall constitute a default by
the Operator.
9
950907 sya 0070~34
RESTRICTIONS ON O.~ERATOR
4.1 The Operator agrees to use the Facility in providing
the Services only for the purposes described be!ow:
4.1.1 The entry upon, use of, and exit from, the
’Facility, and the use, operation, repair and maintenance of
the Property.
4.1.2 The Operator shall not do or permit
anything to be done at, in, on, or about the Facility, nor
bring or keep or permit to be brought or kept, anything which
is prohibited by or will in’any way conflict with any Laws now
in force or which may hereafter be enacted or promulgated, or
which is prohibited by a standard form of fire insurance
policy or which will in any manner increase or affect the then
existing rate of any fire or other insurance required to be
carried upon the Facility, or which wil! cause a cancellation
of any insurance policy covering the Facility.
4.1.3 The Operitor shall not commit, cause,
maintain, or permit, or allow to be caused, maintained, or
permitted any lega! waste upon the Facility, nor any public or
private nuisance, nor any other act or thing which may,disturb
the quiet enjoyment of any business adjacent to the Facility.
4.1.4 Neither the Operator nor any director,
officer, employee, agent or representative of the Operator
shall engage in the business of selling any emergency
supplies, or products or services of any kind, at retail or
wholesale, at, in, on or about the Facility, directly or
indirectly, by vending machine or other device.
4.1.5 The Operator shall not
improvements.or alterations to the Facility.
make any
CONTINUOUS OPERATIONS
5.1 As a material inducement to the City to enter into
this Agreement, the Operator covenants to continuously provide
Services during the term of this Agreement, and the failure of the
Operator to do so shal! constitute a default by the Operator. The
Operator shall be temporarily excused from performing this covenant
as a result of force majeure, as describedin Section 18.3.
~. COMPENSATIQN
6.1 In consideration of the Services rendered by the
Operator during the original one-year term of this Agreement, the
City agrees to pay the Operator an Operating Fee of sixty-one
thousand nine hundred twenty dollars ($61,920), payable in twelve
equal monthly installments of five thousand one hundred sixty
dollars ($5,160). Commencing with the month of January 1996, the
monthly installment of the Operating Fee wil! be adjusted by the
Consumer Price Index [Urban Wage Earners and Clerical Workers]
i0950907myn0070834
(base years 1982-1984 = i00) for San Francisco-Oakland-San Jose
CSMA, published by the United States Department of Labor, Bureau of
Labor Statistics ("Index"),.as more fully set forth in Section 6.3.
Payment of the Operating Fee shall be deemed to be the full
reimbursement of the Management Fee, the Accounting Fee, the,Supervrsory Fee, and any and all direct operating costs and
expenses incurred in the performance of the Services, but such
costs and expenses shal! not be deemed to include any indirect
costs and expenses of operating any other business of Operator or
rendering any other serviqe provided by the Operator to a third
party. In addition to the payment of the forst monthly installment
of the Operating Fee, the City will pay the Operator the sum of
seven hundred fifty dollars ($750) for the cost of signs to be
posted at the Facility.
6.2 The Operating Fee shall be due and payable, in
arrears, in monthly installments. An invoice shall be submitted,
and the City shall pay the invoices within thirty (30) Days of
receipt of such invoices, provided, however, the Operator shall not
be entitled to suspend its performance of Services if the City
fails to pay any invoice within the time specified in this
subsection.
6.3 The "Index" which is published most immediately
preceding January 1 of each year ("Extension Index") shall be
compared with the Index published most immediately preceding the
Commencement Date ("Beginning Index"). If the Extension Index has
increased over the Beginning Index, the Operating Fee set forth in
Section 6.1 shall be established by multiplying the monthly sum by
a fraction, the numerator of which is the Extension Index and the
denominator of which is the Beginning Index.
6.4 The following fees and costs are included in the
Operating Fee: a Management Fee of five hundred dollars ($500) per
calendar month for the rendering of Services; an Accounting Fee of
three hundred dollars ($300) per calendar month; a Supervisory Fee
of four hundred dollars ($400) per calendar month; and the
operating costs and expenses of the Operator directly associated
with the performance of the Operator’s obligations under this
Agreement.
RIGHTS AND OBLIGATIONS OF THE CITY
7.1 At all times during the term of this Agreement and
without notice to the Operator, the City, its officers, employees,
contractors, and representatives shall have the right to perform
the following activities:
7.1.1 Install, construct, maintain, repair,
replace, and use, without limitation, any and all public
utility lines and pipes on, above, or below the surface of the
Facility.
7.1.2 Attend to emergencies which shall be
deemed to exist within the meaning of this Section when any"
950907 syn 0070~34
ii
damage or destruction to the Facility, or any part thereof, or
any property adjoining the Facility, or the Property is
threatened and the Operator’s employee supervisor or manager
is not readily available to confer with the City within the
,time constraints set forth in this Agreement.
7.1.3 Engage in any other action which the
Police Chief deems reasonably necessary to administer the
obligations of the City under this Agreement or by Law,
including the obligation to operate the Facility if the
Operator fails to do so.
7.2 The City shall provide for the utility connections’
to the Facility, as necessary, provided, however, the City shall
not be liable for any losses or damages (including any actual,
compensatory, incidental or consequential damages) resulting from
the City’s failure to furnish, or the City’s delay in furnishing,
any utility service. A temporary disruption of any utility service
shall not be deemed or construed as an interference with the
performance of the Operator’s obligations, and such failure shall
not relieve the Operator of its duty to perform under this
Agreement.
7.3 The City may perform or cause to be perfoz~ned the
following Improvements or maintenance at the frequencies and times
determined by the Police Chief:
surface.
7.3.1 Repair and maintain the Facility’s
7.3.2 Maintain the Facility, including the
benches and overhanging plants areas of the Facility, during
Off-Operating Hours.
7.3.3 Operate the Facility in the event that the
Operator is unable to provide the Services, voluntarily or by
operation of Law.
7.4 Except as otherwise .provided or permitted by Law,
the City shall not be liable for, and the Operator waives all
claims and causes of action for, any liability, loss, or damage
resulting, in whole or in part, directly or indirectly, from the
installation of any City Improvements or from the interruption of
use of the Property in connection with the City’s provision of any
services in lieu of the Services.
8.1 The Operator shall pay before delinquency and
without notice or demand any tax, fee, lien, or charge which may be
levied, imposed, or assessed against the Operator or its Property,
or for which .the Operator may be liable under this Agreement or by
Law. Any payment to a third party made under this Agreement shall
not reduce the amount of any sum or sums collected and required to
be paid by the Operator to the City under this Agreement. In the
950907 syn 0070~34
12
event of a general or special assessment levied against the
Property, the City will reimburse the Operator for such assessment.
8.2 In the event that the Operator desires in good faith
to con~est or review by appropriate legal or administrative
procgedings any tax, fee, lien or other charge, then the Operator
shall give the City prompt written notice of its intention to do so
prior to the delinquency of any such tax, fee, lien or charge.
8.3 The Operatom agrees to protect, defend, indemnify
and hold harmless the City from and against any charge, expense or
damage resulting, in whole or in part, directly or indirectly, from
such contest or proceeding, and from and against any liability,
loss, or damage resulting, in whole or in part, directly or
indirectly, from any other sums imposed thereon, and from any
proceedings to enforce the collection of any tax, lien, or charge
for which the Operator may be liable.
8.4 The City, at its option, may pay, discharge, or
adjust such tax, fee, lien, or charge for the Operator’s benefit,
and upon the demand of the City, the Operator shall reimburse the
City promptly for the payment of any such charge together with
interest thereon from its due date at the maximum interest rate
then allowed by Law, until paid.
INSURANCE
9.1 During the term of this Agreement, the Operator
shal! obtain and maintain the policies of insurance described below
on terms and conditions and in amounts required by the City’s risk
manager. The Operator shall provide the City with certificates of
insurance as may be required by the ~ity.
9.2 Coverage shall be at least as broad as follows: ISO
form number GL 002 covering Comprehensive General Liability and ISO
form number GL 0404 covering Broad Form Comprehensive General
Liability, or ISO Commercial General Liability coverage form CG
000!; ISO Form number CA 0001 covering Automobile Liability, code
! ’~any auto" and endorsement CA 0025; statutory coverage for
Workers’ Compensation insurance; Garage keeper’s Legal Liability;
and Blanket Crime Policy. The coverage shall be maintained at
limits of not less than that set forth in Exhibit "C".
9.3 Any deductibles or self-insured retentions must be
declared to and approved by the City’s risk manager. At the City’s
option, either (a) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects the City, its
officers, employees, contractors, and representatives, or (b) the
Operator shall procure a bond guaranteeing payment of losses and
related investigations, claims administration, and defense expenses
in an amount specified by the City.
9.4 The policies shall contain, or shall be endorsed to
contain, the following provisions:
950907 s~ 0070834
13
9.4.1 The City, its officers, employees,
contractors and representatives shall be covered as additional
insureds as respects liability arising out of activities
performed by or on the behalf of the Operator, products and
~completed operations of the Operator, premises owned, leased
orused by the Operator, or automobiles, owned, lease, hired,
or borrowed by the Operator. The coverage shall contain no
special limitations on the scope of protection afforded to
City, its officers, employees, contractors and
representatives. ,
9.4.2 The insurance coverage shall be primary as
respects the City, its officers, employees, contractors and.
representatives. Any insurance or self-insurance maintained
by the City shall be excess of the Operator’s insurance and
shall not contribute with it.
9.4.3 Coverage shall state that the Operator’s
insurance shall apply separately to each insured against whom
a claim is made or suit is brought, except with respect to the
limits of the insurer’s liability.
9.4.4 Each insurance policy required by this
Section shall be endorsed to state that coverage sha!~ not be
suspended, voided, canceled, or reduced in coverage or in
limits except after thirty (30) Days’ prior written notice to
the City.
9.5 Insurance shall be placed with insurers that are
acceptable to the City’s risk manager. Such insurers shal! be
admitted to the State of California in the offering of insurance
products.
9.6 The Operator shall furnish the City with
certificates of insurance and with original endorsements affecting
coverage required by this Section, which are signed by a person
authorized by that insurer to bind coverage on its behalf.
INDEMNIFICATION
I0.I The Operator, for itself and its directors,
officers, empl.oyees, agents, and representatives,agrees to
protect, defend, indemnify and hold harmless theCity, its
officers, employees, contractors, and representatives from and
against any and all claims, demands, liability, losses, costs,
expenses, penalties, suits, damages, and judgments, arising in
whole or in part, directly or indirectly, at any time from any
injury to persons or damage to property as a result of the willful
act or negligent act or omission of the Operator, its directors,
officers, employees, or agents, or which results from their
noncompliance with any Laws respecting the condition, use,
occupation, or safety of the Facility, or any part thereof, or
which arises from the Operator’s failure to do anything required
under the Agreement or for doing anything which the Operator is
required not to do under the Agreement, except as may arise from
950907 syn 0070234
14
the negligence or willful misconduct of the City, its officers,
employees, contractors or representatives.
Ii.i The waiver by. the City of any breach of any
provision of this Agreement shall not be deemed to be a waiver or
continuing waiver of any subsequent breach of the same or any other
provision, nor shall any custom or practice which may arise between
the parties in the administ/ation of any part of the Agreement be
construed to waive or lessen the right of the City to insist upon
the performance of the Operator in strict accordance with the
provisions of this Agreement.
12.1 On or before the Commencement Date (and upon the
commencement of every Anniversary Year thereafter, in the event
this Agreement is extended by the City), the Operator shall procure
and provide the City with a surety bond naming the City as obligee
in the amount of fifty thousand dollars ($50,000) to guarantee and
assure the prompt and faithful performance of the Operator’s
obligations under this Agreement. The bond shal! be furnished by
a surety company authorized to transact business in the State of
California and its legal form shal! be approved by the City’s city
attorney. The City shall have the right to draw against the
faithful performance bond in the event of a default by the
Operator. The Operator shall renew or replace such sums of money
as shal! bring the faithfu! performance bond current and failure to
do so shall constitute a default by the Operator.
12.2 The Operator shall maintain adequate fidelity bonds
covering all employees who handle money in such amounts as may be
established by the Police Chief. The amount of each bond shall not
be less than ten thousand dollars ($i0,000) with a deductible of
not more than one thousand dollars ($I,000) per loss. Such bonds
shall name the Operator and the City as co-principals. The
Operator shall furnish proof of such bonding on or before the
Commencement Date.
COMPLIANCE WITH LAWS
13.1 The Operator shall comply with all Laws now in force
or which may hereafter be in force pertaining to the Facility and
this Agreement, with the requirement of any bond or fire
underwriters or other similar body now or hereafter constituted,
with any discretionary or occupancy permit issued pursuant to any
Law of any public official as wel! as with any provision of all
recorded documents affecting the Facility on the Effective Date~
insofar as any are required by reason of the use of the Facility by
the Operator.
950907 syn 0070834
15
14.1 The Operator shall not assign, transfer, license,
convey, hypothecate, or encumber, or pledge to any person this
Agre,ement,the Facility, or any part thereof, or any rights of the
Operator hereunder, whether ~oluntarily or by operation of Law,
with’out the express written consent of the City. Any such
assignment shall be void, and shall be deemed a default hereunder
and, thereupon, the City shall be entitled to terminate this
Agreement. ,
14.2 If the Operator is a partnership, includin~ a
limited liability partnership, a withdrawal or change, whether
voluntary or by operation of Law, of the partner or partners owning
51 percent or more of the partnership, or the dissolution of the
partnership, shall be deemed a voluntary assignment. If the
Operator is a corporation, including a limited liability company,
any dissolution, merger, consolidation or other reorganization of
the Operator, or the sale or transfer of at least 51 percent of the
capital stock or capital contribution of the Operator, or the sale
of at least a 51 percent interest of the value of the assets of the
Operator, shall be deemed a voluntary assignment.
15.1 The occurrence of any of the
constitute a default by the Operator:
15.1.1 Fail~re to commence
Facility on the Commencement Date;
following shall
Services at the
15.1.2 Failure to deposit the Parking Fees, when
due, or failure to perform any obligation requiring the
payment of any tax or lien under the provisions of this
Agreement, and such default continues for a period of five (5)
Days or more or for such alternative period as may be allowed
by Law; or
15.1.3 Failure to perform any other provision of
this Agreement required to be performed by the Operator,
except those provisions which require the payment of money,
and the failure to cure the same within ten (I0) Days after
written notice from the City, or if such failure cannot be
reasonably cured with the ten-day period, then if the Operator
has failed to commence and thereafter be continuing to make
diligent and reasonable efforts to cure such failure as soon
as practicable; or
15.1.4 General assignment of the
assets for the benefit of its creditors; or
Operator’s
15.1.5 Assignment in violation of any express
provision of this Agreement prohibiting such assignment; or
16950907sy~0070834
or
15.1.6 Failure to continuously~provide Services;
15.1.7 Determination that the Operator is
bankrupt or insolvent, or that a receiver, trustee, or
,assignee of the Operator is appointed for the Operator or its
,property, or that a petition for the liquidation or
reorganization of the Operator is filed, and such
determination, appointment, petition, decree or order shall
continue for a period of 120 Days; or
15.1.8 The sequestration or attachment of or
execution or other levy on the Operator’s interest in this
Agreement or the Facility, and the Operator fails to obtain a
return or release of such interest or property within thirty
(30) Days thereafter, or prior to the sale pursuant to such
levy, whichever first occurs; or
15.1.9 Action by the Operator to divert patrons
from the Facility to another parking lot facility owned or
operated by the Operator; or
15.1.i0 Any action or inaction of the Operator
which is expressly made a default under this Agreement.
15.2 Upon the occurrence of a default by the Operator,
the City shall have the following rights and remedies, in addition
to al! other rights and remedies provided by Law, to which the City
may resort cumulatively, or in the alternative:
15.2.1 Terminate this Agreement upon not less
than thirty (30) Days’ prior written notice; or
15.2.2 Keep this Agreement in effect and enforce
all rights and remedies made available under this Agreement,
including the right to withhold payment of the Operating Fee.
16.1 All notices, consents, approvals, authorizations or
other communications given or made by any party shall be in writing
and shall be sufficiently given and served upon the other party if
personally served, sent by the United States mail, correctly
addressed and postage prepaid, sent by express delivery service, or
sent by facsimile transmission and followed within 48 hours by
delivery of a hard copy of the materia! sent by facsimile, to:
CITY Chief of Police
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
P. O. Box 10250
Palo Alto, CA 94303
950907 syn 0070834
17
With a copy to:
OPERATOR
City Clerk
City of Palo Alto
P. O. Box 10250
Palo Alto, CA 94303
.National Parking Corporation
99 Pacific Street, Suite 455B
Monterey, CA 93940
or to any other place as such party may designate, in writing.
~. APPROPRIATION OF CITY FUNDS
17.1 This Agreement is subject to the fiscal provisions
of the Charter of the City of Palo Alto and the Palo Alto Municipal
Code. Any charges for Services may accrue only after such
expenditures have been approved in advancein writing by the Police
Chief. This Agreement will terminate without a penalty (a) at the
end of any fisca! year in the event that funds are not appropriated
for the ~following fisca! year or (b) at any time within a fiscal
year in the event that funds are appropriated for a port~on of the
fiscal year and funds for this Agreement are no longer available.
The provisions of this Section 17 shall govern in the event of a
conflict with any other provision of this Agreement, the e~hibits,
or the proposal made by the Operator.
AMORTIZATION OF OPERATOR’S EOUIPMENT COSTS
18.1 In the event that the City terminates the Agreement
without cause at any time during the original one-year term, the
City will pay the Operator for the. unamortized costs of its
portable ticket booth. The parties acknowledge that the costs of
such booth will be amortized over the origina! one-year term at the
rate of not to exceed six hundred seventy-five dollars $675.00)
per month.
18.2 Except as provided in Section 18.1, the City will
not have any obligation to pay for the unamortized costs of any
other Property during the origina! one-year term or any extension
term. The City will not be liable for any Operating Fee, including
any Management Fee, Accounting Fee, or Supervisory Fee, for any
Services which are not performed after the effective termination
date.
MISCELLANEOUS PROVISIONS
19.1 This Agreement shall be governed and construed by
and in accordance with the laws of the State of California,
including its conflict of laws provisions.
19.2 This Agreement may be executed in any number of
counterparts, each of which shall be an origina!, but all of which
together shall constitute one and the same instrument.
950907 ~>U 0070834
18
19.3 A party shall not be deemed in default on account of
any delay or failure to perform its obligations under this
Agreement which directly results from an event which is beyond the
reasonable control of such party.
|
19.4 The Section headings are not a part of this
Agreement and shall have no effect upon the construction or
interpretation of any part ~of this Agreement.
19.5 All exhibite referred to in this Agreement and any
addenda, appendices, attachments, exhibits, and schedules which,
from time to time, may be referred to in any duly executed
amendment hereto are by such reference incorporated in this
Agreement and shall be deemed a part hereof.
19.6 This Agreement constitutes the entire agreement
between the parties concerning its subject matter, and there are no
other oral or written agreements between the parties not
incorporated in this Agreement.
19.7 This Agreement shall not be modified, unless such
modification is in writing and approved by the parties.
19.8 All provisions, whether covenants or conditions,
shall be deemed to be both covenants and conditions.
19.9 If a court of competent jurisdiction determines that
any provision of this Agreement is void or unenforceable, the
unaffected provisions of this Agreement shall remain in effect.
19.10 In the exercise of its rights and obligations
under this Agreement, the collection of Parking Fees excepted, the
Operator acts an independent contractor and not as the agent or
employee of the City.
19.11 This Agreement and its provisions, including
exhibits, shall inure to the benefit of and bind the successors and
assigns of the parties.
19.12 No right or interest in real property, including
any leasehold right, is intended to be conferred upon the Operator
by the City in its execution of this Agreement.
19.13 In the event that suit is brought hereunder, the
parties agree that tria! of such action shall be vested exclusively
in the state courts of California in the City of San Jose, County
of Santa Clara, or in the United States District Court for the
Northern District of California in the City of San Jose.
19.14 If the time in which an act is to be performed
falls on a Saturday, Sunday, or any Day observed as a legal holiday
by the City, the time for performance shall be extended to the
950907 syn 0070834
19
following Business
performed shall be
including the last.
Day. The time in which an act is to be
computed by excluding the first day and
IN WITNESS WHEREOF, the parties have executed this Agree-
ment. in Palo Alto, California-on the date first above written.
ATTEST:CITY OF PALO ALTO
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Mayor
NATIONAL PARKING CORPORATION-
Assistant City Manager
Chief of Police
Deputy City Manager
Administrative Services
Risk Manager
Exhibit
Exhibit
Exhibit
Maps of Parking Stalls of Lot
Operator’s Cash Handling Policy and
Complaint Handling Procedures
City’s Insurance Requirements
950907 syn 0070834
2O
CERTIFICATE ~ ACKIqOWLED GMENT
(Civil Code § 1189)
STATE~ OF
COUNTY OF
)
)
)
On ~ 7,, lqqS-, before me, the undersic_
notary p .ublic in and for s~aid County, personally
personally known toJ m~ (or proved to me on the ba~
satisfac~oz-_¢ ev~e~c~) to be the person~ whose namely0
subscribed to the within instrument, and acknowledged to
he/s~e/t~ey executed the same in his/~<r/th~r aut~
capacity(i~) , and that by his/h~/t~ir signature (~)
instrument the person(~, or the entity upon behalf of whi
person(~0 acted, executed the instrument.
WITNESS my hand and officia! seal.
950906syn0070834
21
CERTIFICATE OF ACKI~OWLEDGMEIqT
(Civil Code § 1189)
))
)
On .~ ~ [qq5"-, before me, the undersigned, a
notary p.ublic in and for said County, personally appeared
personally known to me (or proved to me on the basis of
satisfactory_ ~v~sDc~) to be the person~ Whose name(~ is/~e
subscribed to the within instrument, and acknowledged to me that.
he/s~/t~ey executed the same in his/~<r/tb~r authorized
capacity(i~), and that by his/h~/t~ir signature(d) on the
instrument the person(~ , or the entity upon behalf of which the
person(~0 acted, executed the instrument.
WITNESS my hand and official seal.
950906 syn 0070~34
21