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HomeMy WebLinkAboutStaff Report 3395 City of Palo Alto (ID # 3395) City Council Staff Report Report Type: Consent Calendar Meeting Date: 1/14/2013 City of Palo Alto Page 1 Summary Title: JMZ Friends Agreement Term 2 Title: Approval of Amendment No. 1 to Mutual Cooperation and Support Agreement Between the City of Palo Alto and Friends of the Palo Alto Junior Museum & Zoo to Extend Term for Another Three Years From: City Manager Lead Department: Community Services Recommendation Staff requests the Council’s approval of Amendment No. 1 to Mutual Cooperation and Support Agreement (Amendment, Attachment A), to extend the term of the Agreement with the Friends of the Palo Alto Junior Museum and Zoo for a period of three years. Background The Friends of the Palo Alto Junior Museum and Zoo (Friends) have played an integral role in the support and operation of the Palo Alto Junior Museum and Zoo (JMZ) since their inception in 1962. Parenthetically, from 1962 through 1990 the group was called the Junior Museum and Zoo Associates. In 2002, the Friends approached the City to create a public-private partnership with the intent to raise the capital funds required to renovate the JMZ facility. (CMR 442:02) In February 2007, a Council Colleagues memo from then Vice-Mayor Klein and Council Members Beecham and Mossar requested that staff work with the Friends to explore the possibility of a new public/nonprofit partnership that would strengthen the ties between the City and the Friends, and projected that the outcome of any partnership agreement would be contingent upon the completion of a revised public/private partnership policy. That policy was revised and approved by the Council in June 2007. 10 Packet Pg. 317 City of Palo Alto Page 2 In November 2007, the Council approved an Agreement for Mutual Cooperation and Support with the Friends of the Palo Alto Junior Museum & Zoo (Agreement, Attachment B). The first three-year term of the Agreement ended in February 2011. Approving a second three-year term by the Amendment would extend the term of the Agreement until February 2014. Discussion In order to enhance their efforts as a support organization, the Friends proposed a concept whereby the City/Friends partnership would be strengthened by written agreement that provides the Friends a greater opportunity to play a role in program planning. By being more engaged in the decision-making process, the Friends’ Board and staff believe the potential for outside funding is increased by enhancing the JMZ program’s organizational capabilities and by providing a higher degree of ‘program ownership’ by the Friends’ Board of Directors and its Members. This partnership concept is based on a model, the successful arrangement that is the Randall Museum. It is operated by the Parks and Recreation Department of the City of San Francisco, that is quite similar to the JMZ program and as with the Randall Museum Friends, has a 501(c)3 nonprofit corporation for a partner. That agreement unites the efforts of the Randall Friends’ group with the Randall Museum staff to improve the museum and its uses. The Randall Museum Friends support the mission of the museum by serving as its fundraising arm and by providing volunteer resources, while working closely and cooperatively with City-paid museum management and staff. The attached agreement provides a framework whereby the Friends’ Board Members and staff are closely integrated in the operation of the JMZ. The Agreement provides the opportunity for the Friends to participate in short- and long-term planning efforts, have use of the facility for administrative and fundraising efforts, and permits the Friends’ staff to attend the JMZ Executive Director’s staff meetings. The Friends’ responsibility is to be fully committed to raising the outside funds and providing volunteer resources required to meet a mutually developed annual work plan. To further unite the partnership, the City plays a more active role with the Friends. Examples of City participation include nominating the JMZ manager as an ex-officio member of the Friends’ Board, asking the Council to provide a liaison to the Friends’ Board, and enabling the City-paid staff to collaboratively work with the Friends’ staff to realize mutual goals. 10 Packet Pg. 318 City of Palo Alto Page 3 Final responsibility for the planning and operation of the JMZ continue to lie with the City, but the Friends participate at a higher level of engagement in planning and implementing JMZ activities than was practicable in the past. Resource Impact No additional City resources have been required and this partnership has lead to enhanced program and capital funding over the life of the Agreement. Annually, the Friends and the JMZ Executive Director develop a fundraising plan and a spending plan. Since February 2008, when the agreement was approved, the Friends have provided over $1 million in goods and services to the JMZ in the following categories: Indoor Children’s Interactive Exhibits $ 83,648 Out-door Exhibits and Animal Habitats $ 612,437 Planning, Architectural and Engineering Services $ 224,195 Teacher Support, East Palo Alto Science Programs, and Volunteer Programs $ 129,189 Total $1,049,469 The Friends also advocate for the JMZ in the community and provide leadership support through their Board of Directors. Policy Implications This partnership is categorized as a Joint Venture under the City’s Public/Private Partnership Policy. As the Parties have continued unabated their collaboration in accordance with the terms and conditions of the Agreement, they wish to amend the Agreement to extend the initial term for an additional term of three (3) years. Environmental Review This is not a project for purposes of the California Environmental Quality Act, CEQA Guidelines, therefore, no environmental assessment is required. Attachments: 10 Packet Pg. 319 City of Palo Alto Page 4  : Attachment A: Amendment No. 1 to Agreement Friends of Junior Museum and Zoo (PDF)  : Attachment B: Final Signed Agreement Between CPA and JM&Z (PDF) 10 Packet Pg. 320 *NOT YET APPROVED* 1 121126 dm 00710138 AMENDMENT NO. 1 TO MUTUAL COOPERATION AND SUPPORT AGREEMENT BETWEEN THE CITY OF PALO ALTO AND FRIENDS OF THE PALO ALTO JUNIOR MUSEUM AND ZOO THIS AMENDMENT NO. 1 TO MUTUAL COOPERATION AND SUPPORT AGREEMENT (this “Amendment No. 1”), dated, for convenience, December 3, 2012 (the “Effective Date”), is entered into by the CITY OF PALO ALTO, a California chartered municipal corporation (the "CITY"), and the FRIENDS OF THE PALO ALTO JUNIOR MUSEUM AND ZOO, a California public benefit corporation (the “Friends”) (individually, a “Party” and, collectively, the “Parties”), in reference to the following facts: RECITALS: A. In 2007, the Parties entered into a Mutual Cooperation and Support Agreement (the “Agreement”), by which the Parties would more closely collaborate and support each other to improve, enhance, and sustain the capacity of the Palo Alto Junior Museum and Zoo. The initial term of the Agreement was three years, and the Parties could extend the initial term for an additional three years. B. As the Parties have continued unabated their collaboration in accordance with the terms and conditions of the Agreement, they wish to amend the Agreement to extend the initial term for an additional three (3) years. AGREEMENT: SECTION 1. Section 1.2 of TERM; EXTENSION; TERMINATION is hereby amended to read: “1.2 The Term shall be extended by the Parties for a period of three (3) years, commencing with the first day of the expiration date of the initial term. No additional extension terms are provided for hereunder.” SECTION 2. Except as amended hereunder, the terms and conditions of the Agreement that are not amended or otherwise affected by this Amendment No. 1 shall remain in full force and effect. // // // 10.a Packet Pg. 321 At t a c h m e n t : A t t a c h m e n t A : A m e n d m e n t N o . 1 t o A g r e e m e n t F r i e n d s o f J u n i o r M u s e u m a n d Z o o ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) *NOT YET APPROVED* 2 121126 dm 00710138 IN WITNESS WHEREOF, the Parties have by their duly appointed representatives executed this Amendment No. 1 to Mutual Support Agreement as of the Effective Date. CITY OF PALO ALTO FRIENDS OF THE PALO ALTO JUNIOR MUSEUM AND ZOO ___________________________ ___________________________ City Manager Member APPROVED AS TO FORM ___________________________ Member ___________________________ Senior Asst. City Attorney APPROVED: ____________________________ Director of Administrative Services ____________________________ Director of Community Services 10.a Packet Pg. 322 At t a c h m e n t : A t t a c h m e n t A : A m e n d m e n t N o . 1 t o A g r e e m e n t F r i e n d s o f J u n i o r M u s e u m a n d Z o o ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) 10.b Packet Pg. 323 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) Contract No. C08125982 AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE FRIENDS OF THE PALO ALTO JUNIOR MUSEUM AND ZOO FOR MUTUAL COOPERATION AND SUPPORT Dated as of_~F..;....eb;;..;;;.r...;.;;.u~ary~6-,-, .;.;.;;.,20.;;...,;0...;;.,8 __ 071031 jb 0072940 10.b Packet Pg. 324 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) T ABLE OF CONTENTS Section Description Page 1 Term; Extension; Termination 3 2 Responsibilities of the Parties 4 "'I General License to the Friends 6 .) 4 Insurance 6 5 Indemnity 8 6 Waiver 9 7 No Property Rights 9 8 Assignment 9 9 Independent Contractor 9 10 N ondiscrilnination 9 11 Notices 10 12 Miscellaneous 10 Exhibit "A" Insurance Requirements Exhibit "B" Certification of Nondiscrimination 071031 jb 0072940 2 10.b Packet Pg. 325 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE FRIENDS OF THE PALO ALTO JUNIOR MUSEUM AND ZOO FOR MUTUAL COOPERATION AND SUPPORT This MUTUAL COOPERATION AND SUPPORT AGREEMENT (the "Agreelnent"), dated, for convenience, Decenlber 17,2007 (the "Effective Date"), is entered into by and between the CITY OF PALO ALTO, a California chartered nlunicipal corporation (the "City"), and the FRIENDS OF THE PALO ALTO JUNIOR MUSEUM AND ZOO, a California public benefit corporation organized under the California Nonprofit Public Benefit Corporation Law (the "Friends") (individually, a "Party" and, collectively, the "Parties"), in reference to the following facts and circunlstances: RECITALS: 1. The City owns and operates the Junior Museum (the "Museuln") and Zoo (collectively, the "JMZ"), located at 1451 Middlefield Road, Palo Alto, CA 94301. The JMZ is a program of the City's Community Services Department (the "Department") and exists within the Departlnent's Arts and Sciences division. 2. The Friends have assisted the City's JMZ staffin supporting and advocating on behalf of JMZ operations, programs and activities over the past thirty-eight years. The Friends intend to benefit the City and the Palo Alto community by providing certain services, which the Parties intend to be rendered in accordance with the general scope of the City's policy on Public/Private Partnerships. By this Agreement, the Friends will, at the direction of the City Manager, or designee, and through the use of both City and/or Department employees and JMZ staff-supervised and unpaid community volunteers, support the operations-and education-related programs, activities and opportunities offered by or within the JMZ. 3. The Parties wish to more closely collaborate and mutually cooperate and support each other in the future, to improve, enhance and sustain the capacity of the JMZ to develop and provide educational opportunities and related services to the Palo Alto comlnunity. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing recitals and the following covenants, terms, conditions and provisions of this Agreement, the Parties agree: SECTION 1. TERM~ EXTENSION; TERMINATION 1.1 This Agreement will commence on the Effective Date, and the initial term is three (3) years (the "Term"), unless it is earlier terminated by a Party as herein provided. 1.2 The Term may be extended by the Parties for one (1) additional term of three (3) years 071031 jb 0072940 10.b Packet Pg. 326 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) (the "Extension Term"); provided, however, the City may require the City Council's approval of the Extension Term. 1.3 A Party may temlinate for convenience this Agreement, in whole or in part, by giving the other Party no less than ninety (90) days' prior written notice. 1.4 This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code (the "PAMC"). This Agreement will terminate without penalty: (A) at the end of any fiscal year in the event that funds are not appropriated for the JMZ progranl 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. This Section 1.4 will take precedence in the event of a conflict with any other covenant, tenn, condition or provision of this Agreelnent and the Exhibits. Nothing in this Section 1.4 is intended to affect the Friends' rights and remedies as may be available under applicable laws. SECTION 2. RESPONSIBILITIES OF THE PARTIES 2.1 The responsibilities of the City will include the following: A. The management of the JMZ facilities, programs and the City's staff enlployees, including any and all City-hired contractors, subcontractors, consultants and volunteers. The City will hire, supervise, evaluate and otherwise exercise supervision and control of its employees. The City may permit the Friends' duly authorized representatives to participate in the interview process for the hiring of a manager of the JMZ (the "JMZ Manager"); B. The feeding, care and Inaintenance of the JMZ wildlife residents and basic Inaintenance and repair of the JMZ facilities as well as the furnishing of internal and external landscaping and utility services to the JMZ; C. The selection of one or more individuals to serve as the City's liaison(s) to the Friends' board of directors and/or any board comlnittees (the "Board"), including (1) a Council Member, if any, who will serve as the official liaison of the City to the Board, and (2) the JMZ Manager, whose duties may include providing assistance to the Friends, including the Board, in selected fundraising activities, as may be directed or approved by the City Manager, or designee; D. The review of all comlnunity-related activities that the Friends may propose for inclusion in the JMZ programs. All activities of the Friends will be pre-approved by the JMZ Manager, or designee; E. Develop and provide educational programs relating to JMZ and supervise community volunteers in connection therewith; F. Manage the JMZ collections and supervise the accessioning, deaccessioning, cataloging, and conservation of the JMZ permanent collection in accordance with City, Department, Museum, state, and federal laws and applicable professional standards; and 071031 jb 0072940 4 10.b Packet Pg. 327 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) G. Any other obligation(s) that the City, Depmiment or the Museum may undertake in accordance with this Agreelnent, upon reasonable notice to the Friends; provided, however, any such undertaking will be melnorialized, in writing, by an amendment to this Agreement, in order that such undertaking will be binding upon the City. 2.2 The responsibilities of the Friends will include the following: A. The supervision and managelnent of its directors, officers, employees, volunteers, contractors, subcontractors and consultants, while they, and each of them, are performing obligations on behalf of the Friends pursuant to this Agreement; B. The rendering of assistance to the JMZ Manager (through the Board and/or staff), at the JMZ Manager's request, including voluntary attendance and contribution at stafflneetings of the JMZ Manager; C. The provision and staffing of programs to educate the public about the JMZ and its programs and amenities, and the mobilization of volunteers for JMZ projects and programs; D. The development and implementation of a development plan for the JMZ (the "Friends Plan"), that is consistent with the JMZ strategic plan, referred to in Section 2.3(A), and the annual work planes), referred to in Section 2.3(B). The Development Plan will include donor acknowledgment and activities consistent with City policies and practices; and E. The rendering of other services beyond those spelled out in the annual JMZ Plan and related to the preservation, protection and enhancement of the JMZ, will be approved, in writing, by the JMZ Manager. 2.3 The responsibilities of the Parties will include the following: A. Under the direction of the JMZ Manager, develop a long-term strategic plan to enhance and improve the vision of the JMZ (the "Strategic Plan"); B. Under the direction of the JMZ Manager and consistent with the Strategic Plan, develop an annual work plan (the "JMZ Plan"), and, on an mmual basis, effective July 1 of each year, establish program, budget, fundraising and administrative and operational priorities and activities for each fiscal year of operations. The JMZ Plan will delineate the rights and obligations of the Parties and identify each Party's duly authorized representative. The JMZ Plan will include, without limitation, specific cash handling procedures to be followed by the Parties and the dispute resolution procedures for informally resolving differences of opinion of each Party regarding the substance and/or implementation of the JMZ Plan; and C. In regard to the JMZ Plan, the Parties will review, on a quarterly basis, in the status of reaching and/or exceeding the goals of the JMZ Plan, including budget goals. The Parties will evaluate, annually, the JMZ Plan. 071031 jb 0072940 5 10.b Packet Pg. 328 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) 2.4 The responsibility of either Party or the Parties in regard to any capital improvement project ("CIP") for the JMZ will not be established by this Agreement. The Parties agree to reserve for future consideration any existing or future CIP for the JMZ, including the scope of a capital fundraising program and the responsibilities of each Party in regard to thereto. The provision of any CIP may be addressed by amendment to this Agreement or by separate instrument, as determined by the Parties. 2.5 To the extent this Section 2 does not specifically identify the Party who will be primarily responsible for any action or decision in regard to the JMZ, the Parties agree that the City will be the party to assume all rights and obligations in connection with such decision. SECTION 3. GENERAL LICENSE TO THE FRIENDS 3.1 The City hereby grants the Friends, its directors, officers, employees, contractors, subcontractors and consultants a nonexclusive license to enter upon and use the JMZ facilities in connection with the Friends' execution of its individual and/or joint responsibilities established by the JMZ Plan, including, but not limited to, organizing small group meetings and large group/community meetings and events at the JMZ, such as fundraising events, programs, and tours of the JMZ facilities, and using the office space afforded to the Friends for their use at the JMZ facilities in connection with this Agreement. Any use of the JMZ facilities will be approved by the JMZ Manager in regards to program scheduling, space availability, and the functionality of shared JMZ spaces for staffuse. The City will provide to the employees of the Friends security card access to the JMZ; any additional cards will be approved by the JMZ Manager, upon request, in writing. SECTION 4. INSURANCE 4.1 As of the Effective Date, the Friends, at its sole cost and expense, will obtain and maintain the following insurance coverage, and as further described in Exhibit "A," acceptable to the City's insurance risk manager (the "Risk Manager") in full force and effect during the Tenn, insuring not only the Friends but, with the exception of worker's cOlnpensation and elnployer's liability insurance, naming the City as an additional insured, concerning the Friends' participation under this Agreement. POLICY A. B. 071031 jb 0072940 WORKER'S COMPENSA TION COMPREHENSIVE AUTOMOBILE LIABILITY MINIMUM LIMITS OF LIABILITY Statutory Bodily Injury $1,000,000 ea. person Property Damage $1,000,000 each person, including owned, hired, and non-owned automobiles 6 10.b Packet Pg. 329 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) C. COMPREHENSIVE GENERAL LIABILITY Bodily Injury $1,000,000 each person, $1,000,000 each occurrence, $1,000,000 aggregate including products, Property Damage $1,000,000 each occurrence & con1pleted operations, Personal Injury $1,000,000 each occurrence, broad form contractual, and personal injury. 4.2 Any deductibles or self-insured retentions must be declared to and approved by the Risk Manager. At the City's option, the insurer will reduce or eliminate such deductibles or self­ insured retentions as respects the City. The Friends' insurance will be carried in full force and effect on or before the Effective Date. Every insurance policy required by this Agreement will contain the following or substantially similar clauses: A. "This insurance shall not be canceled, limited in scope of coverage or nonrenewed until after thirty (30) days written notice has been given to: City of Palo Alto/Junior Museuln and Zoo Manager, P.O. Box 10250, Palo Alto, CA 94303". B. "All rights of subrogation are hereby waived against the City of Palo Alto and the Inembers of the City Council and elective or appointive officers or employees, when acting within the scope of their emploYlnent or appointment." C. "The City of Palo Alto is added as an additional insured as respects operations of the named insured at or from the JMZ." D. "It is agreed that any insurance maintained by the City of Palo Alto will apply in excess of, and not contribute to, insurance provided by this policy." 4.3 Evidence of Insurance Coverage and/or Changes will be, as follows: A. Certificate of Insurance. The Friends agree to deposit with the JMZ Manager before the effective date of this Agreement, certificates of insurance necessary to satisfy the City that the insurance provisions of this Agreement have been complied with, and to ensure that such insurance is kept in effect, with the certificates on deposit with the City, during the Term. Should the Friends fail to provide evidence of such required coverage at least three (3) days prior to the expiration of any existing insurance coverage, the City Inay purchase such insurance, on behalf of and at the sole expense of the Friends, to provide an additional six-month period of coverage. B. Review of Coverage. The City will retain the right, at any tin1e, to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of the Risk Manager, the insurance provisions in this Agreement do not provide adequate protection for the City and for members of the public using the JMZ, the City Manager, or designee, may require an amount to provide adequate protection as 071031 jb 0072940 7 10.b Packet Pg. 330 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) determined by the Risk Manager. The City's requirelnents shall be reasonable and shall be designed to assure protection from and against the kind and extent of risk which exists at the time a change in insurance is required. C. Changes in Coverage. The City Manager, or designee, will notify the Friends, in writing, of any change( s) in the insurance requirements; if the Friends does not deposit copies of acceptable insurance policies (or certificates) with the City, to the attention of the Risk Manager, incorporating such changes within sixty (60) days of receipt of such notice, or in the event the Friends fail to ensure that the required insurance coverage is maintained in effect, the City Inay terminate this Agreement in accordance with Section 1. D. No Limit of Liability. The procuring of such required policy or policies of insurance will not be construed to limit the Friends' liability hereunder or to fulfill the indenlnification provision and requirements of this Agreement. Notwithstanding the policy or policies of insurance, the Friends will be obligated for the full and total alnount of any danlage, injury, or loss caused by or connected with this Agreement, with the Friends' use of the JMZ. E. Acceptability of Insurers. Insurance shall be placed with insurers with a current A.M. Best's rating of no less than A:X. SECTION 5. INDEMNITY 5.1 Except as provided under Section 5.2, the Friends hereby waive all clainls, liability and recourse against the City, including the right of contribution for loss or damage of or to persons or property arising from, growing out of, or in any way connected with or related to this Agreelnent. The Friends will protect, indemnify, hold harmless and defend the City, its officials, officers, employees, representatives and agents, from and against any and all claims, losses, liability, demands, damages, costs, expenses or attorneys' fees, caused by or arising out of the Friends' negligent acts or omissions, or willful Inisconduct, in the performance or nonperformance of its obligations under the covenants, terms, conditions and provisions of this Agreelnent. The preceding sentence notwithstanding, no personal liability will attach to ally Board member under the provisions of this Section 5 for any negligent action or inaction. In the event the City is named as co-defendant, the Friends will notify, in writing, the City, to the attention of the City's City Attorney (the "City Attorney"), of such fact and it will represent the City in such legal action, unless the City undertakes to represent itself as co-defendant in such legal action, in which event the Friends will pay to the CITY its reasonable litigation costs and expenses, including reasonable attorneys' fees. 5.2 The City will protect, indemnify, hold harmless and defend the Friends, its directors. officers, employees and agents, against any and all claims, losses, liability, demands, damages, costs, expenses or attorneys' fees arising out of the City'S negligent performance or nonperformance of its obligations under the terms of this Agreement. 071031 jb 0072940 8 10.b Packet Pg. 331 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) SECTION 6. WAIVER 6.1 The waiver by either Party of any breach or violation of any covenant, term, or condition of this Agreement or of the provisions of the PAMC or other City law, rule or regulation, will not be deemed to be a waiver of any such covenant, term, condition, or provision or of any subsequent breach or violation of the same or any other covenant, term, condition, or provision. The subsequent acceptance by either Party of any consideration which may become due or payable hereunder will not be deemed to be a waiver of any preceding breach or violation by the other Party SECTION 7. NO PROPERTY RIGHTS 7.1 The Pmiies agree that this Agreement will not confer any property right upon the Friends, its directors, officers, employees, volunteers, contractors, subcontractors or consultants. Any work perfonned for the benefit of the JMZ and any improvements placed or constructed at the JMZ will conform to the City's standards and approved by the City Manager, or designee, and will, upon acceptance, become the property of the City. SECTION 8. ASSIGNMENT 8.1 Neither Party may assign, transfer, or convey this Agreement or any interest that it Inay have in this Agreen1ent without the other Party's express consent or approval. Any attempted assignment without the required consent or approval will be void and will confer no right, title, or interest in or to this Agreement, or part thereof. In the event of an unauthorized assignment, at the option of the Party not making the assigrunent, this Agreen1ent Inay be terminated upon reasonable notice to the Party Inaking the assignment. SECTION 9. INDEPENDENT CONTRACTOR 9.1 In the exercise of its rights and responsibilities under this Agreelnent, the Friends act at all times as an independent contractor and not as an employee of the City. Nothing in this Agreement will be construed to establish a partnership, joint venture, group, pool, syndicate or agency between the Parties. No provision contained herein will be construed as authorizing or empowering either Party to aSSUlne or create any obligation or responsibility whatsoever, express or implied, on behalf, or in the name of, the other Party in any mmmer, or to Inake any representation, warranty or commitment on behalf of the other Party. In no event will either Party be liable for (a) any loss incurred by the other Party in the course of its performance hereunder, or (b) any debts, obligations or liabilities of the other Party, whether due or to become due. SECTION 10. NONDISCRIMINATION 10.1 The PAMC prohibits discrilnination in the employment of any individual under this Agreement because of race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of that person. The Foundation acknowledges that it has read and understands the provisions of PAM C Chapter 2.30 relating to nondiscrimination in employment and the penalties for violations thereof, and it agrees to 071031 jb 0072940 9 10.b Packet Pg. 332 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) comply with all requirements of P AMC Chapter 2.30 pertaining to nondiscrimination in employment, including the cOlnpletion, execution and submission to the City of the Certification of NondiscriInination, as described in Exhibit "B." SECTION 11. NOTICES 11.1 Any notice, request, consent or approval by a Party that is required to be furnished by this Agreelnent, will be given, in writing, and delivered by personal service, the United States Postal Service, mailed, first class, postage prepaid, or by facsin1ile transmission, to the following: To CITY: City Clerk City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303 with a copy to: Manager, Junior Museum and Zoo City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303 SECTION 12. MISCELLANEOUS To FRlENDS: Executive Director Friends of the Palo Alto Junior MuseUln and Zoo 1451 Middlefield Road Palo Alto, CA 94303-4303 12.1 This Agreement will be governed by and construed in accordance with the laws of the State of Cali fomi a and the Charter of the City of Palo Alto and the Palo Alto Municipal Code. The Parties will comply with all applicable federal, state and local laws in the exercise of their rights and the performance of their obligations under this Agreement. 12.2 All covenants, terms, conditions, and provisions of this Agreement, whether covenants or conditions, will be deemed to be both covenants and conditions. 12.3 This Agreement represents the entire agreement between the Parties and supersedes all prior negotiations, representations and contracts, written or oral. This Agreement may be amended by an instrument, in writing, signed by the Parties. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. 12.4 All exhibits referred to in this Agreement are by such references incorporated in this Agreement and made a part hereof. The following exhibits are (or will be) made a part of this Agreement: 071031 jb 0072940 10 10.b Packet Pg. 333 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) Exhibit "A" -Insurance Requirements Exhibit "B" -Certification of Nondiscrimination. 12.5 At the request of the City, the Friends will furnish to the City Attorney for the City's review and approval copies of its articles of organization, operating agreelnent, and other information relating to its organization status. 12.6 The Parties agree that the normal rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be employed in the interpretation of this Agreelnent, the Exhibits, or any amendment thereto. 12.7 In the event that an action is brought, the Parties agree that trial of such action will be vested exclusively in the state courts of California or in the United States District Court for the Northern District of California in the County of Santa Clara, State of California. 12.8 The prevailing Party in any action brought to enforce the provisions of this Agreement Inay recover its reasonable costs and attorneys' fees expended in comlection with that action. 12.9 If a court of competent jurisdiction finds or rules that any provision of this Agreement, the Exhibits, or any amendment thereto, is void or unenforceable, the unaffected provisions of this Agreelnent, the Exhibits, or any amendment thereto, will relnain in full force and effect. 12.10 The tenn "day" means a calendar day, unless a "business day" is specified; for the purposes of this Agreement, "business day" excludes any "Regular Holiday" or "Other Special Day" referred to in PAMC Section 2.08.100 or any Friday that is considered a '9/80' day, when the City does not require elnployees, electing to work nine (9) business days in a ten-business days biweekly period, to work on such days. II II II II II II II II 071031 jb 0072940 11 10.b Packet Pg. 334 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) IN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement on the Effective Date. APPROVED AS TO FORM: Senior Asst. City Attorney APPROVED: Director 0 071031 jb 0072940 CITY OF PALO ALTO ~ .. ~ty Manager FRIENDS OF MUSEUM AND Member E::D klL~l 1""~R.../ 12 2 10.b Packet Pg. 335 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) CERTIFICATE OF ACKNOWLEDGEMENT (Civil Code § 1189) On t2~'/oJ', 2008, before medft/tA E;/ft4bfAJ, a Notary Public in and for said County and State, personally appeared (/ i (. tAJ Rib h + , who proved to Ine on the basis of satisfactory evidence to be the person '-whose nan1e~ is/ai=e­ subscribed to the within instrument and acknowledged to n1e that he/~y executed the same in his/~ authorized capacity~, and that by his/~ signature~ on the instrulnent the person(/,), or the entity upon behalf of which the personV1 acted, executed the instrulnent. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS Iny hand and official seal. Signature of Notary Public : @~.... DONNA BEAMAN • 4 Commission /I 1 70062 7 ~ .• ,.; .. .. Notarv Public -California j .. Santa Clara County ~ MyComm. Expias Oct 24. 2010 --~ - 071031 jb 0072940 13 10.b Packet Pg. 336 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) CERTIFICATE OF ACKNOWLEDGEMENT (Civil Code § 1189) STATE OF (!A-~tG4/If:J-) COUNTY OF S.d-A-e~ SS. On OS ~,f ,2008, before m€ VVM~~'T7"ln and for said County and State, personally appeared -L.A-~..!L/-=:::e;;=:...!..-::h-E....L~>t.~=~-I--=---L-_--=--:-' proved to me on the basis of satisfactory evidence to be the person~ hose name('> is/are. subscribed to the within instrument and acknowledged to me that-h8lshe/ffrsY executed the same in hisi41erfo.their authorized capacity~, and that by~/her/theiT signature(/) on the instrument the person(j1, or the entity upon behalf of which the person(/) acted, executed the instrulnent. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 071031 jb 0072940 WITNES S my hand and official seal. SIgnature of Notary Public 13 DONNA BEAMAN CommissIon # 1700627 Notary Pubflc -Canrornla santa Clara County .. MvComm. &preeOd24,2010 10.b Packet Pg. 337 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) CERTIFICATE OF ACKNOWLEDGEMENT (Civil Code § 1189) STATE OF &i{~(2A/l1I-) J ~ )ss. COUNTY OF ~4-IAM-) On t>?.:!:;)----!of ,2008, before m~A/~?'fAJ, a Notary Public in and for said County and State, personally appeared /!:: d /fJ1 oj /£.7/L-, who proved to Ine on the basis of satisfactory evidence to be the personCt) whose nan1e~ is/af@­ subscribed to the within instrument and acknowledged to me that he/~ executed the same in his/her/thet-Fo authorized capacity~, and that by his/ficr/thsif signature( 1) on the instrulnent the person~, or the entity upon behalf of which the person~ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNES S Iny hand and official seal. ~~,~ Signature of Notary Public ~.:... DONNA' . . Commission II 17*27 I . -e. . Notary Public • COlffolnia 1 .. ; Mf==~~~J10 · •••••••••• ee •• $e$.~ 071031 jb 0072940 13 10.b Packet Pg. 338 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) 071031 jb 0072940 EXHIBIT "A" INSURANCE REQUIREMENTS 14 10.b Packet Pg. 339 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) ACORlt CERTIFICATE PRODUCER InterWest Insurance Services Hollister Office 500 Park Center Drive, Suite 1 Hollister CA 95023 Phofie:831-636~4919 Fax:831-636-4948 INSURED Friends Of The Palo Alto Jr. Museum & Zoo 1451 Middlefield Road Palo Alto CA 94301 COVERft ~~c; LIABI INSURANCE O. P.ID D41 DATEtJVt FRIEN-B"I 06J THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR At TER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURER A. INSURER B: INSURER C: Nonpr..5'fi ts' Insuran.:=.,=-Alli:;,nce State Comp __ ~l1s Fund (CA) ------------------------------ INSURER 0: INSURER E: NAIC# 35076 THE POLICIES OF INSLH~ANCE LISTED BELOW rll\VE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING I,NY REQUII~EMENT, TEEM OR CONDITION OF ANY CONTRACT OR OTHE.R DOCUMENT WITH RESPECT ro WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRlBED HEREIN IS SU8JECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS Of SUCH POLICIES r'\GGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS INSR AOO'[ LTR INSRC TYPE OF INSURANCE A A B GENERAL LlABILITY X COMMERCIAL GENERAL UABILlW CU\IMS MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER I POLICY I I ~f8T I ! LOG i GARAGE UABIUiY I ANY AUTO EXCESSJUMBRELLA LIABILITY 1-OCCUii I ] CLAIMS MADE DEDUCTIBLE RETENTION S WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICERJt,J1EMBER EXCLUDED? If yes. describe under SPECIAL PROVISIONS below OTHER POLICY NUMBER 12184NPO WCN18843107 LIMITS i I EACH OCCURRENCE r DAMAGETORENTEIr 09/20/07 09/20/08 l PRE/.<1!~§J£aoccur!:,nce) $1,000,000 $100,000 11/28/07 09/20/08 11/27/07 11/27/08 MED EXP (Anyone person) $ 10 I 000 •.. -... --.. ~-... -,----- PERSONAL & ADV INJURY $ 1,000 r 00 a GENERAlAGGREGATE_, __ ~} 000 (OOO I PRODUCTS COMPIOP AGG $ 1 0 00 000 I COMBINED SINGLE LIMIT I {Ea aCCldent) ! II BODtL Y INJURY (Per person) [80DIL Y INJURY (Per aCCident) f-------.----.--- I r ~un::t~ .' r $ s AUTO ONLY -EA ACCIDEN1 S 1---- OTHER THAN AUTO ONLY- EA ACe s EACH OCCURRENCE AGGREGATE /\GG S 5> X _,!-vY, ~lS~~:~S relt __ f;.[ EACH ACCIDENT :; 1 f 000 I 000 E.L DISEASE EA Er'ilPLO~,=-~_.!. E.L DISf;ASE POLICY LIMIT $ DESCRIPTION OF OPERATIONS f LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS *10 day notice applies to non-payment of premium* City of Palo Alto is named as additional insured per attached form CG2011 City of Palo Alto its officials, officers, employees, representatives and agents. City of Palo Alto is Held Hold Harmless per signed contract by insured and waiver subrogation to follow. CERTIFICATE HOLDER City of Palo Alto, 250 Hamilton Ave Palo Alto CA CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRA T DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 307; DAYS WRITTE NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE lEFT, SUT FAILURE TO DO SO SHA IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. I J ACORD 25 (2001/08) © ACORD CORPORATION 1988 I I 10.b Packet Pg. 340 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuIng insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001108) 10.b Packet Pg. 341 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) COMMERCIAL LIABILITY CGL -ENDORSEMENTS INSURED POLICY NUMBER INSURANCE COMPANY Friends Of The Palo Alto Jr. 12184NPO COMMERCIAL GENERAL LIABILITY Non-Profit Insurance AlHance This Endorsement Changes The Policy. Please Read It Carefully. ADDITIONAL INSURED MANAGERS OR LESSORS OF PREMISES This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE 1) Designation Of Premises (Part leased To You) : 250 Hamilton Ave Palo Alto, Ca. 94301 2) Name Of Person Or Organization (Additional Insured} : City of Palo Alto 3) AddItional Premium: (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the schedulet but only with respect to liability arising out of the ownershipt maintenance or use of that part of the premises leased to you and shown in the schedule and subject to the following additional exclusions : This insurance does not apply to: a) Any "occurrence" which takes place after you cease to be a tenant in that premises. b) Structural alterationst hew construction or demolition operations performed by or on behalf of the person or organization shown in the schedule. CG 20 11 01 96 10.b Packet Pg. 342 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) 071031 jb 0072940 EXHIBIT "B" CERTIFICATION OF NONDISCRIMINATION 15 10.b Packet Pg. 343 At t a c h m e n t : A t t a c h m e n t B : F i n a l S i g n e d A g r e e m e n t B e t w e e n C P A a n d J M & Z ( 3 3 9 5 : J M Z F r i e n d s A g r e e m e n t T e r m 2 ) CERTIFICATION OF NONDISCRIMINATION FORM 410 Project: Certification of Nondiscrimination: As suppliers of goods and/or services to the City of Palo Alto in excess of $5,000, the firm, contractor or individual(s) listed below certify that: they do not and in the performance of this contract they will not discriminate in employment of any person because of race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person; and further certify that they are in compliance with all Federal, State and local directives and executive orders regarding nondiscrimination in employment. CITY OF PALO ALTO: CERTIFICATION OF NONDISCRIMINATION 16