HomeMy WebLinkAbout1999-11-22 City Council (10)TO:
FROM:
City of Palo Alto
City Manager’s Report
HONORABLE CITY COUNCIL
CITY MANAGER DEPARTMENT: POLICE
DATE:
SUBJECT:
NOVEMBER 22, 1999 CMR: 417:99
APPROVAL OF AN AGREEMENT WITH NATIONAL PARKING
AND VALET, PACIFIC PARKING LLC IN THE AMOUNT OF
$ 71,700 FOR OPERATION OF THE OFF-STREET ATTENDANT
PARKING LOT.
RECOMMENDATION
Staff recommends that Council:
Approve and authorize the Mayor to execute the attached contract with National
Parking and Valet, Pacific Parking LLC, in the amount of $71,700 for the
Operation of the off-street the attendant parking lot at Lot S; and
Authorize the City Manager or her designee to exercise the option to renew the
contract for the (second and!or third year), provided the contractor is responsive to
the City’s needs, and the quality of the contractor’s work/product is acceptable
during the first year of the contract (and!or other conditions which will determine
the City’s willingness to renew the contract).
DISCUSSION
Project Description
The work to be performed under the contract is for operation of the off-street attendant
parking lot at Lot S. Lot S is a City-owned surface lot located in the 400 block of Bryant
Street. It has been operated as an attendant parking lot since December 1995. There are
currently 86 parking spaces available in the lot. The attendant lot increases the parking
capability to 125 spaces.
The hours of operation for attended parking are from 8:00 a.m. to 5:00 p.m., Monday
through Friday, excluding holidays. One attendant stays until 7:00 p.m. to collect money.
CMR:417:99 Page 1 of 3
As approved in the 1999-2000 Municipal Fee Schedule, the tee structure for use of the !ot
is as follows:
0-1 hours, Free
1-3 hours, $2
3-4 hours, $4
Over 4 hours, $8
Daily Maximum, $8
Bid Process
A notice inviting formal bids for operation of the attendant parking lot at Lot S was sent
on September 16, 1999 to nine contractors. The bidding period was 26 days. Bids were
received from two qualified contractors and one non-responsive bidder on October 12,
1999. Bids ranged from a high of $73,250 to a low bid of $71,700. Contractors who did
not respond indicated that they did not submit a bid because they did not have enough
time to respond, the person handling bid process was no longer employed by the
company, and they could not compete with low bidders.
Staff has reviewed all bids submitted and recommends that the bid of $71,700 submitted
by National Parking and Valet, Pacific Parking LLC be accepted and that National
Parking and Valet, Pacific Parking LLC be declared the lowest responsible bidder. The
bid is 17 percent below the staff estimate of $86,700. The Staff had projected the
additional costs based upon possible operation of the attendant parking lot during evening
hours. However, Staff determined that it would not be cost effective to extend the hours
of operation. The project manager’s review of the bids and subsequent discussion with
the low bidder revealed they will be using the same staff, supplies, and equipment they
currently use to operate the attendant lot. For the last three years, National Parking and
Valet, Pacific Parking LLC has operated the attendant parking lot and revenue increased
each of the three years. Staff believes the level of service been satisfactory. Staff has
notified National Parking and Valet, Pacific Parking LLC that Lot S is one of the lots
being considered for the construction of a parking structure and that the attached
agreement may be terminated 30 days prior to the initiation of construction at that
location.
RESOURCE IMPACT
Funds for this project are available in the 1999-2000 Police Department budget.
CMR:417:99 Page 2 of 3
POLICY IMPLICATIONS
This agreement does not represent any change to existing City policies.
E~RONMENTAL REVIEW"
This project involves the use of existing facilities and is therefore exempt from
environmental review under th~California Environmental Quality Act.
ATTACHMENTS
Attachment A: Agreement
PREPARED BY:
DEPARTMENT HEAD:
David Dudley, Supervisor, of Police Services
P CK~D~E~of Police
CITY MANAGER APPROVAL:
EMILS~r~RRISON, Assistant City Manager
CMR:417:99 Page 3 of 3
AGREEMENT FOR PARKING LOT MANAGEMENT SERVICES
BETWEEN THE. CITY OF PALO ALTO AND
NATIONAL PARKING AND VALET PACIFIC PARKING LLC
This Agreement for Parking Lot Management Services is
entered into , 1999 by and between the City of
Palo Alto and National Parking and Valet Pacific Parking LLC.
(hereinafter "National Parking").
RECITALS :
i. The City of Palo Alto owns several public off-street
parking facilitieS, one of which the City operates 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 National
Parking has subm±tte~d the proposal deemed by the City to be the
most qualified.
4. The City wishes to award a contract to National
Parking on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the fol!owing mutual
covenants, agreements, terms, and conditions ("provisions"), the
parties agree:
SECTION !. DEFINITIONS
I.i "Agreement" means this agreement for Parking Lot
Management Services between the City of Palo Alto and National
Parking.
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.
991112 syn 0043906
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.
1.5
is specified.
"Day" means any calendar day, unless a Business Day
1.6 "Facility" means the City-owned off-street parking
lot "~’~ commonly known as the sryant/£’lorence parking lot, which is
located 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 "Improvements" 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
located in, on or about the Facility.
1.8 "Law" means any constitution, charter, ordinance,
resolution, statute, policy, schedule, rule, regulation,
administrative order, judicial decision, or other requirement of
any municipal, county, state, federal or other governmental 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 official entity
or body.
1.9 "Off-Operating Hours" mean those hours of the Day
and week which are not identified as "Operating Hours"
i.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.ii "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.
991112 ~n 0043906
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"Person" means an individual, a corporation, a
limited liability company, a general partnership, a limited
partnership, a limited liability partnership, a joint venture, a
business trust, and any other form of business association.
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 obligation9 of the Chief
of Police, or his designee.
1.16 "Property" means the employees’ 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.
,S, ECTION 2.TERM.
2.1 This Agreement will be binding on the parties on the
date of its approval by the City Council (~Effective Date"). The
term of this Agreement is for one (I) year commencing at 8:00 a.m.,
Pacific Time, on December 4, 1999, 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 two (2) successive terms, commencing on the anniversary
of the Commencement Date o-f this Agreement. Any such extension
991112 syn 0043906
3
shall be subject to the provisions for earlier termination of this
Agreement contained elsewhere herein. City will provide Operator
with not less than sixty (60) days’ prior written notice of its
intention to. exercise, its option to secure continuation of t~e
Services for each successive annual term extension.
2.3 The Operator acknowledges and understands that (a)
timely commencement of the Services is of the essence and is a
material 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, wil! be extremely difficult to
ascertain. Therefore, the City and the Operator agree that if
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 ($150) per Day for each Day
that the Operator fails to timely commence Services from and after
the Commencement Date. If the City, acting through the City
Manager in her discretion, elects to terminate this Agreement due
to the Operator’s substantial delay in commencing the Services, the
City will be entitled to enforce its rights and remedies at law or
in equity, including actual, compensatory, incidental, and
consequential damages.
2.4 Nothing in this Agreement will be deemed or
construed to prohibit the City from prematurely terminating this
Agreement for cause, or if the Facility ceases to exist, orif the
Facility ceases to be use4 as a parking lot or as an attendant-
operated parking lot by the City.
TRATiON.
SECTION 3.PARKING LOT MANAGEMENT SERVICE$,,,ADMINI$-
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 genera! public. These
Services shall include, without limitation: issuing parking
tickets; parking of vehicles; collecting Parking Fees; providing
custodial 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
0utreach/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.
991112 ~n 0043906
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 parking ticket 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
three (3) minutes in line to enter the Facility, that the average
in-line waiting time during any hour does not exceed three (3)
minutes, and that ticket processing time, including payment, wil!
not exceed two (2) minutes. In the rendering of Services, the
Operator will use a ticket booth, which will comply with the
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 p~rson who uses the Facility.
3.3.1 In collecting Parking Fees for thA 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 personal 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.
991112 ~n 0043906
3.3.4 The Operator will perform regular checks of
the parking operations, ensuring that all vehicles are
identified, all Parking Fees are collected, and no tickets are
reissued
3.4 The Parking Fees shall be pos{ed 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, personal
checks, and travelers checks in payment of Parking Fees. Only the
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
policy, which is summarily 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
personal 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 shal! 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 personal check and the driver’s license
are not identical. Personal checks shal! be made payable to the
"City of Palo Alto" only for the amount of the appropriate Parking
Fee. The Operator shall verify all persona! 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 financial institution
which is authorized under federal 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" shall 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.
991112 syn 0.043906
3.8 The Operator shall keep and maintain at its
headquarters, located a[ 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 collected 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 shal! 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.
3.9 The Operator shall submit to thePolice Chief daily,
monthly, and annual reports of the lot utilization, overnight
parking collections, and Parking Fees collected by the Operator on
computer generated report forms which shall 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 shall 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 Parking 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 approved by the City. All overcharges shall accrue
to the benefit of 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 collectionwhich are inconsistent with applicable Laws
or procedures as may be established, in writing, by the City.
991112 syn 0043906
3.11 Unless otherwise instructed by the Police Chief, the
Operator shal! 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 "B":
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
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 the Police 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.
991112 syn 0043906
8
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 shall 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, cleancondition and perform all
custodial services in a manner which will not unreasonably
interfere with the intended use of the Facility. The custodial
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.
3.15 The Facility shall be staffed by at least two
employees during the Operating Hours, scheduled so that the tota!
staffing does not exceed sixteen (16) person-hours per day; the
Facility may be staffed by only one employee dmring rest breaks and
lunch breaks provided that the customer delay standards of section
3.2 are maintained.
A parking supervisor or parking manager shall be available during
Operating Hours, in person or by telephone, to confer with the
City’s representative on any matter arising in connection with the
Operator’s rights and obligations hereunder within thirty (30)
minutes after the City’s 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 emp!oyment 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 by the City.
991112 syn 0043906
9
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 satisfactorily perform the Services, in accordance
with the standards established hereunder. The failure to remove
such employee 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 Opera[or.
SECTION 4.RESTRICTIONS ON OPERATOR
4.1 The Operator agrees to Use the Facility in providing
the Services only for the purposes described below:
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 Opera~or -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 will cause a cancellation
of any insurance.policy covering the Facility.
4.1.3 The Operator shall not commit, cause,
maintain, or permit, or allow to be caused, maintained, or
permitted any .legal 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
991112 syn 0043906
10
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
SECTION 5.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 shall constitute a default by the Operator. The
Operator shall be temporarily excused from performing this covenant
as a result of force majeure, as described in Section 18.3.
SECTION 6. COMPENSATION
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 not to exceed
seventy one thousand seven hundred dollars ($71,700), payable
monthly in arrears upon billing by the Operator for the Management
Fee, the Accounting Fee, the Supervisory Fee, and all operating
costs and expenses of the Operator directly associated with the
performance of the Operator’s obligations under this Agreement
during the prior month.
For the second and third year extensions of the term of
this Agreement, if the options therefore are exercised by the City
as provided for in Section 2.2 of this Agreement, the City agrees
to pay the Operator an Operating Fee not to exceed sixty five
thousand one hundred f.ifty dollars ($75,150) for the second year
and seventy eight thousand six hundred dollars ($78,600) for the
third year.
Payment of the Operating Fee shall be deemed to be the
.full reimbursement of the Management Fee, the Accounting Fee, the
Supervisory Fee, and any and all direct operating costs and
expenses .incurred in the performance of the Services, but such
costs and expenses shall not be deemed to include any indirect
costs and expenses of operating any other business of Operator or
rendering any other service provided by the Operator to a third
party.
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 invoi.ces 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
991112 syn 0043906
ii
fails to pay any invoice within the time specified in this
subsection.
6.3 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.
SECTION 7. RI.~HTS 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, emp!oyees,
contractors, and representatives shal! 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
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 C~ty 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.
991112 syn 0043906
12
7.3 The City may perform or cause to be performed 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 al!
claims and causes of action for, any liability, loss, or damage
resuiting, in whole or inpart, 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.
SECTION 8. TAXE~
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 Propertyj
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
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 contest or review by appropriate legal or administrative
proceedings any tax, fee, lien or other charge, then the Operator
shall give the City prgmpt written notice of its intention to do so
prior to the delinquency of any such tax, fee, lien or charge.
8.3 The Operator 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,
!oss, 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.
991112 syn 0043906
13
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.
SECTION 9. INSURANCE
9.1 During the term of this Agreement, the Operator
shall obtain and maintain the policiesof 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 City.
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
000i; .ISO Form number CA 0001 covering Automobile Liability, code
1 "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:
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
or used 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
991112 syn 0043906
14
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 shal! be endorsed to state that coverage shall 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 shall be
admitted to the State of California in the offering of insurance
products and shall be rated at least A:X in B~$%’$ Key Ra%inq
Guide.
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.
SECTION I0.INDEMNIFICATION
i0.i The Operator, for itself and its directors,
officers, employees, agents, and representatives, agrees to
protect, defend, indemnify and hold harmless the- City, 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
the negligence or willful misconduct of the City, its officers,
employees, contractors or representatives:
SECTION II. WAIVER
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 shal! any custom or practice which may arise between.
991112 syn 0043906
15
the parties in the administration 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.
SECTION 12.BONDS
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 Cityas obligee
in the amount of fifty thousand dollars ($50,000) to guarantee and
assure the prompt add faithful performance of the Operator’s
obligations under this Agreement. The bond shall be furnished by
a surety company-authorized to transact business in the State of
California and its legal form shall be. approved by the City’s city
attorney. The City shall have the right to draw against the
faithful performance bond in the event of a default by the
Operator. The Operator shall renew or replace such sums of money
~as shall bring the faithful performance bond current and failure to
do so shall constitute a default by the Operator.
12.2 The Operator shall maintain adequate, fidelity bonds
covering all employees who handle money in such amounts as may be
established by the Police Chief. The amount of each bond shall not
be less than ten thousand dollars ($i0,000) with a deductible of
not more than one thousand dollars ($i, 0~0) per loss. Such bonds
shall name the Operator and the City as co-principals. The
Operator shall furnish proof of such bonding on or before the
Commencement Dat@.
SECTION I$.COMPLIANCEWITH 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 well 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.
SECTION 14.ASSIGNMENT
14.1 The Operator shall not assign, transfer, license,
convey, hypothecate, or encumber, or pledge to any person this
Agreement, the Facility, or any part thereof, or any rights of the
Operator hereunder, whether voluntarily or by operation~of Law,
without the express written consent of the City. Any such
assignment shall be void, and shall be deemed a default hereunder
991112 syn 0043906
16
and, thereupon, the City shall be entitled to terminate this
Agreement.
¯14.2 If the Operator is a partnership, including 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.
SECTION 1.5. DEFAULT
15.1 The occurrence of any of the following events shall
constitute a default by the Operator:
15.1.1 Failure to commence
Facility on the Commencement Date;
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
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
99! 112 syn 0043906
17
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
15.1.10 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.
SECTION 16.NOTICES
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 material 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
99l 112 syn 0043906
With a copy to:
OPERATOR
City Clerk
City of Palo Alto
P. O. Box 10250
Palo Alto, CA 94303
National Parking ani Valet
Pacific Parking LLC
303 Webster Street
Monterey, CA 93940
or to any other place as such party may designate, in writing.
SECTION 17. 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 advance in writing by the Police
Chief. This Agreement will terminate without a penalty (a) at the.
end of any fiscal year in the event that funds are not appropriated
for the following fiscal year or (b) at any time within a fiscal
year in the event that funds are appropriated for a portion 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 exhibits,
or the proposal made by the Operator.
SECTION 18.AMORTIZATION OF OPERATOR’S EQUIPMENT 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 original 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 original 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.
18.3 Upon termination of this Agreement for any reason,
any.provisi0n of this Agreement notwithstanding, Operator shall be
entitled to remove and retain the parking attendant booth
(including all computerized equipment associated therewith) and any
other facilities installed by Operator within a reasonable time
thereafter.
991112 syn 0043906
19
SECTION 19.MISCELLANEOUS PROVISIONS
19.1 This Agreement shall be governed and construed by
and in accordance with the laws of the State of California,
including.itsconflict of laws provisions.
19.2. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shal! constitute one and the same instrument.
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 exhibits 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 sJch
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.
99! ! 12 syn 0043906
2O
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, <he
parties agree that trial 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
following Business Day. The time in which an act is to be
performed shall ~be computed by excluding the first day and
including the last.
IN WITNESS WHEREOFr the parties have executed this
Agreement in Palo Alto, California on the date first above written.-
ATTEST:CITY OF PALO ALTO
City Clerk
APPROVED AS TO FORM:
Mayor
NATIONAL PARKING AND VALET
Senior Asst. City Attorney
APPROVED:
Assistant City Manager
Police Chief
Deputy City Manager
Administrative Services
By:
Its:
By:
Its :
(Compliance with Corp. Code .3 is required
if the entity on whose be~al this contract
is signed is a corporation. In the alternative,
a certified corporate resolution attesting to
the signatory authority of the individuals signing
in their respective capacities is acceptable)
Risk Manager
Exhibit "A"
Exhibit "B"
Exhibit "C"
-Maps of Parking Stalls Of Lot "S"
-Operator’s Cash Handling Policy and
Complaint Handling Procedures
City’s Insurance Requirements
991112 syn 0043906
21
STATE OF CALIFORNIA
COUNTY OF-MONTEREY
On November 16, 1999, before me, Barbara J. May, personally appeared Robert E.
Rosenthal and Douglas K. Dusenbury, personally known to me or proved to me on the
basis of satisfactory evidence to be the persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon
behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Barbara J. May ~,
Comm. #1148921 ~
ARY PUBLIC - CALIFORNIA~J
MONTEREY COUNTY (~].Comm, Exp. July 27, 2001 ""
May
STATE OF
COUNTY OF
CERTIFICATE OF ACKNOW-~DG~NT
(Civil Code § 1189)
)
)
)
On , before me, the undersigned, a
notary public in and for said County, personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
STATE OF
COUNTY OF
CERTIFICATE OF ACI~OW-LEDGMENT
(Civil Code § 1189)
)
)
)
On
notary public in and
, before me, the undersigned, a
for said County, personally appeared
,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
991112 syn 0043906
22