2015/01/13 City Council Resolution 2015-004RESOLUTION NO. 2015 -004
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING A FARMERS MARKET OPERATION
AGREEMENT WITH AGRICULTURAL COMMUNITY EVENTS FARMERS
MARKETS
WHEREAS, the City of Rohnert Park Municipal Code Title 3 Chapter 3.04 provides that
the City's purchasing functions shall be governed by the City's purchasing policy, and;
WHEREAS, the City has successfully operated a Farmers Market since 2010; and
WHEREAS, the current Farmers Market Manager resigned at the conclusion of the 2014
Farmers Market; and
WHEREAS, consistent with the Purchasing Policy, proposals were solicited and sent out
to eleven (11) Farmer's Market Operator's; and
WHEREAS, said proposal were due on October 10, 2014 and one (1) proposal was
received by the City Manager and reviewed with the City Council; and
WHEREAS, because the proposer can offer high quality services with cost - effective
pricing, Staff recommends authorizing and approving an agreement with Agricultural
Community Events Farmers Markets for managing a year round farmer's market; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve the agreement of the aforementioned farmer's
market operation to the most responsive bidder, compatibility and other factors considered, to
wit:
Bidder Name
Agricultural Community Events Farmers Markets
San Anselmo, California
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to take all actions necessary to effectuate this agreement, which is attached hereto and
incorporated by this reference as Exhibit A, including the execution of documents pertaining to
the same for and on behalf of the City of Rohnert Park.
DULY AND REGULARLY ADOPTED this 13th day of January, 2015.
ATTEST:
Anne M. Buergler, City Cler
Attachment: Exhibit A
CIT y- F R HN RT PARY
Amy O. Ahanotu, Mayor
CALLINAN: NN' MACKENZIE: t \yip STAFFORD: BELFORTE: P\q1 - AHANOTU: 1-21N
AYES: NOES: ( ) ABSENT: ( ) ABSTAIN: ( C )
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AGRICULTURAL COMMUNITY EVENTS FARMERS MARKETS
THIS AGREEMENT is entered into as of the 13th day of January, 2015 by and between
the CITY OF ROHNERT PARK ( "City "), a California municipal corporation, and Agricultural
Community Events Farmers Market ( "Consultant ")
PPCTTAT R
WHEREAS, City desires to obtain farmers market operation services to operate a year
round community farmers market on behalf of the City; and
WHEREAS, Consultant hereby warrants to the City that Consultant is skilled and able to
provide such services described in Section 3 of this Agreement; and
WHEREAS, City desires to retain Consultant pursuant to this Agreement to provide the
services described in Section 3 of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree
as follows:
1. Incorporation of Recitals. The recitals set forth above, and all defined terms set
forth in such recitals and in the introductory paragraph preceding the recitals, are hereby
incorporated into this Agreement as if set forth herein in full.
2. Proiect Coordination.
A. City. The City Manager or his /her designee, shall represent City for all
purposes under this Agreement. The Community Services Manager is hereby designated as the
Project Manager. The Project Manager shall supervise the progress and execution of this
Agreement.
B. Consultant. The Consultant shall assign Kelly Smith, Executive Director to
have overall responsibility for the operation and execution of this Agreement for Consultant.
3. Scope and Performance of Services
A. Scope of Services. Subject to such policy direction and approvals as the
City through its staff may determine from time to time, Consultant shall perform the services set
out in the "Scope of Work" attached hereto as Exhibit 1 and incorporated herein by reference.
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B. Time of Performance. The services of Consultant are to commence upon
receipt of a written notice to proceed from City, but in no event prior to receiving a fully executed
agreement from City and obtaining and delivering the required insurance coverage, and
satisfactory evidence thereof, to City.
C. Standard of (duality. City relies upon the professional ability of Consultant
as a material inducement to entering into this Agreement. All work performed by Consultant
under this Agreement shall be in accordance with all applicable legal requirements and shall meet
the standard of quality ordinarily to be expected of competent professionals in Consultant's field
of expertise.
4. Compensation and Method of Payment.
A. Compensation. Consultant shall pay the City 15% of the gross receipts
from the farmers' market, to be reported monthly.
B. Timing of Payment. Consultant shall submit itemized monthly reports and
shall make payment, in full, within thirty (30) days after approval of the reports by the Project
Manager.
C. Taxes. Consultant shall pay all taxes, assessments and premiums under the
federal Social Security Act, any applicable unemployment insurance contributions, Workers
Compensation insurance premiums, sales taxes, use taxes, personal property taxes, or other taxes
or assessments now or hereafter in effect and payable by reason of or in connection with the
services to be performed by Consultant.
D. No Overtime or Premium Pay. Consultant shall receive no premium or
enhanced pay for work normally understood as overtime, i.e., hours that exceed forty (40) hours
per work week, or work performed during non - standard business hours, such as in the evenings
or on weekends. Consultant shall not receive a premium or enhanced pay for work performed on
a recognized holiday. Consultant shall not receive paid time off for days not worked, whether it is
in the form of sick leave, administrative leave, or for any other form of absence.
E. Litigation Support. Consultant agrees to testify at City's request if
litigation is brought against City in connection with Consultant's work product. Unless the action
is brought by Consultant or is based upon Consultant's negligence, City will compensate
Consultant for the preparation and the testimony at Consultant's standard hourly rates, if
requested by City and not part of the litigation brought by City against Consultant.
5. Amendment to Scope of Work. City shall have the right to amend the Scope of
Work within the Agreement by written notification to the Consultant. In such event, the
compensation and time of performance shall be subject to renegotiation upon written demand of
either party to the Agreement. Consultant shall not commence any work exceeding the Scope of
Work without prior written authorization from the City. Failure of the Consultant to secure City's
written authorization for extra or changed work shall constitute a waiver of any and all right to
adjustment in the contract price or time due, whether by way of compensation, restitution,
quantum meruit, etc. for work done without the appropriate City authorization.
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6. Term. This Agreement shall commence upon its execution by both parties and
shall continue for three (3) years with the option to renew the agreement for two (2) additional
years upon mutual agreement of both parties. Contract shall remain in full force and effect until
completed, amended pursuant to Section 21, or otherwise terminated as provided herein.
7. Inspection. Consultant shall furnish City with every reasonable opportunity for
City to ascertain that the services of Consultant are being performed in accordance with the
requirements and intentions of this Agreement. All work done and all materials furnished, if any,
shall be subject to the Project Manager's inspection and approval. The inspection of such work
shall not relieve Consultant of any of its obligations to fulfill the Agreement as prescribed.
8. Ownership of Documents. Title to all work papers compiled by the Consultant under
the Agreement shall be vested in City, none of which shall be used in any manner whatsoever, by any
person, firm, corporation, or agency without the expressed written consent of the City. Data prepared
or obtained under the Agreement shall be made available, upon request, to City without restriction or
limitations on their use. (Except as stated in paragraph 19. D. regarding Consultant not being liable for
such use.). Consultant may retain copies of the above - described information but agrees not to disclose
or discuss any information gathered, discussed or generated in any way through this Agreement
without the written permission of City during the term of this Agreement, unless required by law.
9. Employment of Other Consultants, Specialists or Experts. Consultant will not
employ or otherwise incur an obligation to pay other consultants, specialists or experts for
services in connection with this Agreement without the prior written approval of the City.
10. Conflict of Interest.
A. Consultant covenants and represents that neither it, nor any officer or
principal of its firm, has, or shall acquire any investment, income, business entity, interest in real
property, or other interest, directly or indirectly, which would conflict in any manner with the
interests of City, hinder Consultant's performance of services under this Agreement, or be
affected in any manner or degree by performance of Consultant's services hereunder. Consultant
further covenants that in the performance of the Agreement, no person having any such interest
shall be employed by it as an officer, employee, agent, or subcontractor without the express
written consent of the City. Consultant agrees to at all times avoid conflicts of interest, or the
appearance of any conflicts of interest, with the interests of the City in the performance of the
Agreement.
B. Consultant is not a designated employee within the meaning of the Political
Reform Act because Consultant:
(1) will conduct research and arrive at conclusions with respect to its
rendition of information, advice, recommendation, or counsel independent of the control and
direction of the City or of any City official, other than normal contract monitoring; and
(2) possesses no authority with respect to any City decision beyond the
rendition of information, advice, recommendation, or counsel. (2 Cal. Code Regs. § 18700(a)(2).)
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11. Liability of Members and Employees of City. No member of the City and no other
officer, elected official, employee or agent of the City shall be personally liable to Consultant or
otherwise in the event of any default or breach of the City, or for any amount which may become
due to Consultant or any successor in interest, or for any obligations directly or indirectly incurred
under the terms of this Agreement.
12. Indemnity. To the fullest extent permitted by law, Consultant hereby agrees to
defend (by counsel reasonably satisfactory to the City), indemnify, and hold harmless the City, its
officers, elected officials, employees, agents, and volunteers from and against any and all claims,
demands, damages, costs, liabilities, or obligations brought on account of or arising out of any
acts, errors, or omissions of Consultant, its officers, employees, agents, and subcontractors
undertaken pursuant to this Agreement excepting liabilities due to the sole negligence or willful
misconduct of City. The City has no liability or responsibility for any accident, loss, or damage to
any work performed under this Agreement whether prior to its completion and acceptance or
otherwise. Consultant's duty to indemnify and hold harmless, as set forth herein, shall include the
duty to defend as set forth in California Civil Code § 2778. This indemnification obligation is not
limited in any way by any limitation on the amount or type of damages or compensation payable
by or for Consultant under Worker's Compensation, disability or other employee benefit acts or
the terms, applicability or limitations of any insurance held or provided by Consultant and shall
continue to bind the parties after termination/completion of this agreement. This indemnification
shall be regardless of and not in any way limited by the insurance requirements of this contract.
This indemnification is for the full period of time allowed by law and shall survive the termination
of this agreement.
13. Consultant Not an Agent of City. Consultant, its officers, employees and agents
shall not have any power to bind or commit the City to any decision.
14. Independent Contractor. It is expressly agreed that Consultant, in the performance
of the work and services agreed to be performed by Consultant, shall act as and be an independent
contractor and not an agent or employee of City; and as an independent contractor, Consultant
shall obtain no rights to retirement benefits or other benefits which accrue to City's employees,
and Consultant hereby expressly waives any claim it may have to any such rights.
15. Compliance with Laws.
A. General. Consultant shall use the standard of care in its profession to
comply with all applicable federal, state, and local laws, codes, ordinances, and regulations.
Consultant represents and warrants to City that it has and shall, at its sole cost and expense, keep
in effect or obtain at all times during the term of this Agreement any licenses, permits, insurance
and approvals which are legally required for Consultant to practice its profession. Consultant
shall maintain a City business license. The City is not responsible or liable for Consultant's failure
to comply with any or all of the requirements contained in this paragraph.
B. Workers' Compensation. Consultant certifies that it is aware of the
provisions of the California Labor Code which require every employee to be insured against
liability for workers' compensation or to undertake self-insurance in accordance with the
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provisions of that Code, and Consultant certifies that it will comply with such provisions before
commencing performance of the Agreement and at all times in the performance of the Agreement.
C. Prevailing Wage. Consultant and Consultant's sub - consultants (if any)
shall, to the extent required by the California Labor Code, pay not less than the latest prevailing
wage rates to workers and professionals as determined by the Director of Industrial Relations of
the State of California pursuant to California Labor Code, Part 7, Chapter 1, Article 2. Copies of
the applicable wage determination are on file at the City's office of the City Clerk.
D. Injury and Illness Prevention Program. Consultant certifies that it is aware
of and has complied with the provisions of California Labor Code § 6401.7, which requires every
employer to adopt a written injury and illness prevention program.
E. City Not Responsible. City is not responsible or liable for Consultant's
failure to comply with any and all of its requirements under this section and Agreement.
F. Waiver of Subro a tion. Consultant and Consultant's insurance company
agree to waive all rights of subrogation against City, its officers, elected officials, employees,
agents and volunteers for losses paid under Consultant's workers' compensation insurance policy
which arise from the work performed by Consultant for the City.
16. Confidential Information. All data, documents, discussions or other information
developed or received by or for Consultant in performance of this Agreement are confidential and
not to be disclosed to any person except as authorized by the City, or as required by law.
17. Assignment; Subcontractors; Employees
A. Assignment. Consultant shall not assign, delegate, transfer, or convey its
duties, responsibilities, or interests in this Agreement or any right, title, obligation, or interest in or
to the same or any part thereof without the City's prior written consent. Any assignment without
such approval shall be void and, at the City's option, shall immediately cause this Agreement to
terminate.
B. Subcontractors; Employees. Consultant shall be responsible for employing
or engaging all persons necessary to perform the services of Consultant hereunder. No
subcontractor of Consultant shall be recognized by the City as such; rather, all subcontractors are
deemed to be employees of the Consultant, and Consultant agrees to be responsible for their
performance. Consultant shall give its personal attention to the fulfillment of the provisions of
this Agreement by all of its employees and subcontractors, if any, and shall keep the work under
its control. If any employee or subcontractor of Consultant fails or refuses to carry out the
provisions of this Agreement or appears to be incompetent or to act in a disorderly or improper
manner, it shall be discharged immediately from the work under this Agreement on demand of the
Project Manager.
18. Insurance. Without limiting consultant's indemnification provided herein,
Consultant shall comply with the requirements set forth in Exhibit B to this Agreement.
19. Termination of Agreement; Default.
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A. This Agreement and all obligations hereunder may be terminated at any
time, with or without cause, by the City upon 5 -days' written notice to Consultant.
B. If Consultant fails to perform any of its obligations under this Agreement
within the time and in the manner herein provided or otherwise violate any of the terms of this
Agreement, in addition to all other remedies provided by law, City may terminate this Agreement
immediately upon written notice. In such event, Consultant shall be entitled to receive as full
payment for all services satisfactorily rendered and expenses incurred hereunder, an amount which
bears the same ratio to the total fees specified in the Agreement as the services satisfactorily
rendered hereunder by Consultant bear to the total services otherwise required to be performed
for such total fee; provided, however, that the City shall deduct from such amount the amount of
damages, if any, sustained by City by virtue of the breach of the Agreement by consultant.
C. In the event this Agreement is terminated by City without cause,
Consultant shall be entitled to any compensation owing to it hereunder up to the time of such
termination, it being understood that any payments are full compensation for services rendered
prior to the time of payment.
D. Upon termination of this Agreement with or without cause, Consultant
shall turn over to the City Manager immediately copies of studies, computations, and other data,
whether or not completed, prepared by Consultant or its subcontractors, if any, or given to
Consultant or its subcontractors, if any, in connection with this Agreement. Such materials shall
become the permanent property of the City. Consultant shall be entitled to retain copies of such
documents and shall not be required to erase all electronic backup copies or data. As stated
above in section 8, Consultant's working papers remain the property of Consultant. Consultant,
however, shall not be liable for the City's use of incomplete materials nor for the City's use of
complete documents if used for other than the project contemplated by this Agreement.
20. Suspension. The City shall have the authority to suspend this Agreement and the
services contemplated herein, wholly or in part, for such period as it deems necessary due to
unfavorable conditions or to the failure on the part of the Consultant to perform any provision of
this Agreement. Consultant will be paid for satisfactory Services performed through the date of
temporary suspension.
21. Merger, Amendment. This Agreement constitutes the complete and exclusive
statement of the agreement between the City and Consultant and shall supersede all prior
negotiations, representations, or agreements, either written or oral. This document may be
amended only by written instrument, signed by both the City and Consultant. All provisions of
this Agreement are expressly made conditions.
22. Interpretation. This Agreement shall be interpreted as though it was a product of a
joint drafting effort and no provisions shall be interpreted against a party on the ground that said party
was solely or primarily responsible for drafting the language to be interpreted.
23. Litigation Costs. If either party becomes involved in litigation arising out of this
Agreement or the performance thereof, the court in such litigation shall award reasonable costs
and expenses, including attorneys' fees, to the prevailing party. In awarding attorneys' fees, the
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court will not be bound by any court fee schedule, but shall, if it is in the interest of justice to do
so, award the full amount of costs, expenses, and attorneys' fees paid or incurred in good faith.
24. Time of the Essence. Time is of the essence of this Agreement.
25. Written Notification. Any notice, demand, request, consent, approval or
communication that either party desires or is required to give to the other party shall be in writing
and either served personally or sent by prepaid, first class mail. Any such notice, demand, etc.
shall be addressed to the other party at the address set forth below. Either party may change its
address by notifying the other party of the change of address. Notice shall be deemed
communicated within 72 hours from the time of mailing if mailed as provided in this section.
If to City: City Clerk
City of Rohnert Park - City Hall
130 Avram Avenue
Rohnert Park, CA 94928
If to Consultant: Kelly Smith
Agricultural Community Events Farmers Markets
PO Box 923
San Anselmo, CA 94979
26. Consultant's Books and Records.
A. Consultant shall maintain any and all ledgers, books of account, invoices,
vouchers, canceled checks, and other records or documents evidencing or relating to charges for
services, or expenditures and disbursements charged to the City and all documents and records
which demonstrate performance under this Agreement for a minimum period of three (3) years, or
for any longer period required by law, from the date of termination or completion of this
Agreement.
B. Any records or documents required to be maintained pursuant to this
Agreement shall be made available for inspection or audit, at any time during regular business
hours, upon written request by the City Attorney, City Auditor, City Manager, or a designated
representative of any of these officers. Copies of such documents shall be provided to the City for
inspection when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon,
the records shall be available at Consultant's address indicated for receipt of notices in this
Agreement.
27. Agreement Binding. The terms, covenants, and conditions of this Agreement shall
apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and
subcontractors of both parties.
28. Equal Employment Opportunity. Consultant is an equal opportunity employer and
agrees to comply with all applicable state and federal regulations governing equal employment
opportunity. Consultant will not discriminate against any employee or applicant for employment
because of race, age, sex, creed, color, sexual orientation, marital status or national origin.
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Consultant will take affirmative action to ensure that applicants are treated during such
employment without regard to race, age, sex, creed, color, sexual orientation, marital status, or
national origin. Such action shall include, but shall not be limited to, the following: employment,
upgrading, demotion, or transfer; recruitment or recruitment advertising; lay -offs or termination;
rates of pay or other forms of compensation; and selection for training, including apprenticeship.
Consultant further agrees to post in conspicuous places, available to employees and applicants for
employment, notices setting forth the provisions of this nondiscrimination clause.
29. City Not Obligated to Third Parties. The City shall not be obligated or liable for
payment hereunder to any party other than the Consultant.
30. Waiver. No failure on the part of either party to exercise any right or remedy
hereunder shall operate as a waiver of any other right or remedy that party may have hereunder.
31. Severability. If any one or more of the provisions contained herein shall for any
reason be held to be invalid, illegal or unenforceable in any respect, then such provision or
provisions shall be deemed severable from the remaining provisions hereof, and such invalidity,
illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall
be construed as if such invalid, illegal, or unenforceable provision had not been contained herein.
32. Exhibits. The following exhibits are attached to this Agreement and incorporated
herein by this reference:
A. Exhibit 1: ACEFM Proposal — Scope of Services / Revenue
B. Exhibit 2: Insurance Requirements
33. Execution. This Agreement may be executed in several counterparts, each of
which shall constitute one and the same instrument and shall become binding upon the parties
when at least one copy hereof shall have been signed by both parties hereto. In approving this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
34. News Releases /Interviews. All Consultant and sub - consultant news releases,
media interviews, testimony at hearings and public comment shall be prohibited unless expressly
authorized by the City.
35. Applicable Law; Venue. This Agreement shall be construed and interpreted
according to California law. In the event that suit shall be brought by either party hereunder, the
parties agree that trial of such action shall be held exclusively in a state court in the County of
Sonoma, California.
36. Authority. Each individual executing this Agreement on behalf of one of the
parties represents that he or she is duly authorized to sign and deliver the Agreement on behalf of
such party and that this Agreement is binding on such party in accordance with its terms.
37. STATEMENT OF ECONOMIC INTEREST. If City determines Consultant
comes within the definition of Consultant under the Political Reform Act (Government Code
§87100), Consultant shall complete and file and shall require any other person doing work under
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this Agreement to complete and file a "Statement of Economic Interest" with the Clerk of the City
of Rohnert Park disclosing Consultant and /or such other person's financial interests.
IN WITNESS WHEREOF, the City and Consultant have executed this Agreement as of the date
first above written.
CITY OF ROHNERT PARK CONSULTANT
By:
City Manager
Date:
Per Resolution No. 2014- adopted by
the Rohnert Park City Council at its meeting of
December 9, 2014
APPROVED AS TO FORM:
By:
City Attorney
By:
City Clerk
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Title:
Date:
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EXHIBIT 1
SCOPE OF WORK
Agriculture Community Events Farmers Markets (ACEFM) Obligations:
1. ACEFM shall for a period of three (3) years operate both a seasonal market and a year- around
market (collectively "Markets "):
a. Seasonal Market will run in concurrence with the Party on the Plaza, June through
August annually
b. Year -round Market will start the second Sunday in April 2015 and dates will include all
Sundays except when in conjunction with a major holiday
c. The hours of operation of the Markets shall be Friday 5:00 -8:00 PM and Sunday 10:00
AM to 2:00 PM.
d. The Markets will be located at the City Center Plaza. This location may be subject to
change at a later date subject to City providing advanced written notice of the change of
location.
2. ACEFM shall recruit, coordinate with and secure vendors for the Markets. To the extent
feasible, ACEFM shall honor the previous year's vendors and work to accommodate their past
selling spaces in the market. A maximum quantity of certified vendors will be set at 40% of
market vendors or an estimated 30 — 40 vendors. The remaining vendors shall be a combination
of farmers, food purveyors, fish mongers, hot food vendors, arts and crafts, and /or non -profit
organizations .
3. ACEFM shall be responsible for all marketing materials, and planning and execution of the
Markets with the goal of establishing a highly visible and viable alternative market that provides
quality products and services from and to the community.
4. ACEFM shall be responsible for establishing and collecting fees from vendors. ACEFM shall
return 15% of gross profit from the Markets to the City of Rohnert Park, with a minimum return
of $6,400 per year or 15% whichever is greater. Payment shall be made by ACEFM to the City
on a monthly basis, net 30 days.
5. ACEFM shall staff Markets with a qualified Market Manager that remains on site for the
duration of the event along with enough support staff to safely and effectively operate the
Markets.
6. ACEMF's operation of the Markets shall include, but not be limited to the following activities:
a. Notification of surrounding business of event schedule and parking coordination.
b. Designation and enforcement of market rules and standards for vendors and attendees.
ACEMF shall provide City with a copy of said rules and standards and any amendments
thereof ACEMF shall also work cooperatively with the City to modify the Markets as
requested to minimize concerns of affected neighbors and /or to improve the overall
operation of the Markets.
Report to the City at the earliest opportunity any problems or concerns regarding Market
operations and repair and replace at its sole expense any damaged landscaping, irrigation
systems, sidewalks, roadway, lighting or other improvements caused by ACEFM or
vendors.
d. Solicitation and confirmation of vendors for all events, as well as filling vacancies.
e. Set -up, take down and trash collection and disposal in City approved containers.
£ Provision of a portable toilet during events and coordination with library for restroom
access.
g. Coordination with the public library to accommodate any library special events that
require use of parking lot.
h. Provision of way finding and directional signage to and from the Markets.
i. Provision of all equipment and resources necessary for operation of the Markets,
including but not limited to signage, barricades and an information booth.
j. Provision of updated contact info for the Market Manager to the City in the event of
changes.
k. Participation in periodic meetings with City staff to provide requested information.
1. Documentation and evaluation of the success of the Markets as requested by the City
through various methods including, but not limited to customer surveys and customer
counts at the Markets, as well as financial records and comparisons.
7. ACEFM shall comply with all applicable laws and regulations, including requirements set forth
in the RFP and municipal code. ACEFM shall secure and maintain at all times all licenses and
permits required by local, state and federal law for the legal operation of the Markets.
City of Rohnert Park Obligations:
1. City shall, consistent with applicable rules and regulations, issue applicable permits and approve
ACEMF's use of the City Center Plaza for the Markets
2. Provide ACEMF with event support by providing access to electrical outlets, provision of trash
receptacles, and regularly maintaining parking lot used for the Markets.
3. Provide ACEMF with marketing support by providing access to the Activity Guide, use of City
Website advertising, and posting to Community Bulletin Boards.
EXHIBIT 2
INSURANCE REQUIREMENTS for Consultant Services Agreement
Prior to the beginning of and throughout the duration of the Work, Consultant will maintain insurance in conformance
with the requirements set forth below. Consultant will use existing coverage to comply with these requirements. If that
existing coverage does not meet the requirements set forth here, Consultant agrees to amend, supplement or endorse the
existing coverage to do so. Consultant acknowledges that the insurance coverage and policy limits set forth in this
section constitute the minimum amount of coverage required. Any insurance proceeds available to City in excess of the
limits and coverage required in this agreement and which is applicable to a given loss, will be available to City.
Consultant shall provide the following types and amounts of insurance:
General Liability Insurance using Insurance Services Office "Commercial General Liability" policy form CG 00 01 or the
exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or
suits by one insured against another. Limits are subject to review but in no event less than $2,000,000 (Two Million
Dollars) per occurrence.
Business Auto Coverage on ISO Business Auto Coverage form CA 0001 including symbol I (Any Auto) or the exact
equivalent. Limits are subject to review, but in no event to be less than $1,000,000 (One Million Dollars) per accident. If
Consultant owns no vehicles, this requirement may be satisfied by a non -owned auto endorsement to the general liability
policy described above. If Consultant or Consultant's employees will use personal autos in any way on this project,
Consultant shall provide evidence of personal auto liability coverage for each such person.
Workers Compensation on a state - approved policy form providing statutory benefits as required by law with employer's
liability limits no less than $1,000,000 (One Million Dollars) per accident or disease.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall provide coverage at least
as broad as specified for the underlying coverage's. Any such coverage provided under an umbrella liability policy shall
include a drop down provision providing primary coverage above a maximum $25,000 self - insured retention for liability
not covered by primary but covered by the umbrella. Coverage shall be provided on a "pay on behalf' basis, with defense
costs payable in addition to policy limits. Policy shall contain a provision obligating insurer at the time insured's liability
is determined, not requiring actual payment by the insured first. There shall be no cross liability exclusion precluding
coverage for claims or suits by one insured against another. Coverage shall be applicable to City for injury to employees of
Consultant, sub - consultants or others involved in the Work. The scope of coverage provided is subject to approval of City
following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than
$2,000,000 (Two Million Dollars) per occurrence.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage
specifically designed to protect against acts, errors or omissions of the consultant and "Covered Professional Services" as
designated in the policy must specifically include work performed under this agreement. The policy limit shall be no less
than $1,000,000 (One Million Dollars) per claim and in the aggregate. The policy must "pay on behalf of the insured and
must include a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or before the
effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the state of
California and with an A.M. Bests rating ofA- or better and a minimum financial size VIL
General conditions pertaining to provision of insurance coverage by Consultant. Consultant and City agree to the
following with respect to insurance provided by Consultant.
I . Consultant agrees to have its insurer endorse the third party general liability coverage required herein to include as
additional insured's the City, its officers, elected officials, employees, agents, and volunteers using standard ISO
endorsement No. CG 20 10 or an approved equivalent. If completed operations coverage is excluded, the policy
must be endorsed to include such coverage. Consultant also agrees to require all contractors, and subcontractors to
do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or Consultant's
employees, or agents, fi-om waiving the right of subrogation prior to a loss. Consultant agrees to waive subrogation
rights against City regardless of the applicability of any insurance proceeds, and to require all contractors and
subcontractors to do likewise.
3. The worker's compensation policy is to be endorsed with a waiver of subrogation. The insurance company, in its
endorsement, agrees to waive all rights of subrogation against the City, its officers, elected officials, employees,
agents, and volunteers for losses paid under the terms of this policy which arise from the work performed by the
named insured for the City.
4. All insurance coverage and limits provided by Contractor and available or applicable to this agreement are intended
to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to
the City or its operations limits the application of such insurance coverage.
5. None of the coverage's required herein will be in compliance with these requirements if they include any limiting
endorsement of any kind that has not been first submitted to City and approved of in writing.
6. No liability policy shall contain any provision or definition that would serve to eliminate so- called "third party
action over" claims, including any exclusion for bodily injury to an employee of the insured or of any contractor or
subcontractor.
7. All coverage types and limits required are subject to approval, modification and additional requirements by the City,
as the need arises. Consultant shall not make any reductions in scope of coverage (e.g. elimination of contractual
liability or reduction of discovery period) that may affect City's protection without City's prior written consent.
8. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the
coverage's required and an additional insured endorsement to Consultant's general liability policy, shall be
delivered to City at or prior to the execution of this Agreement. In the event such proof of any insurance is not
delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is
provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and
promptly paid by Consultant or deducted fi•om sums due Consultant, at City option.
9. Certificate(s) are to reflect that the insurer will provide 30 days' notice to City of any cancellation of coverage.
Consultant agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that
failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor"
(as opposed to being required) to comply with the requirements of the certificate.
10. It is acknowledged by the parties of this agreement that all insurance coverage required to be provided by
Consultant or any subcontractor, is intended to apply first and on a primary, noncontributing basis in relation to
any other insurance or self - insurance available to City.
11. Consultant agrees to ensure that subcontractors, and any other party involved with the project who is brought onto
or involved in the project by Consultant, provide the same minimum insurance coverage required of Consultant.
Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such
coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all
agreements with subcontractors and others engaged in the project will be submitted to City for review.
12. Consultant agrees not to self - insure or to use any self - insured retentions or deductibles on any portion of the
insurance required herein and further agrees that it will not allow any contractor, subcontractor, Architect,
Engineer or other entity or person in any way involved in the performance of work on the project contemplated by
this agreement to self - insure its obligations to City. If Consultant's existing coverage includes a deductible or self -
insured retention, the deductible or self - insured retention must be declared to the City. At that time the City shall
review options with the Consultant, which may include reduction or elimination of the deductible or self - insured
retention, substitution of other coverage, or other solutions.
13. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance
required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in
substantial additional cost to the Consultant, the City will negotiate additional compensation proportional to the
increased benefit to City.
14. For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed
immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards
performance of this Agreement.
15. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of
non - compliance with any insurance requirement in no way imposes any additional obligations on City nor does it
waive any rights hereunder in this or any other regard.
16. Consultant will renew the required coverage annually as long as City, or its employees or agents face an exposure
from operations of any type pursuant to this agreement. This obligation applies whether or not the agreement is
canceled or terminated for any reason. Termination of this obligation is not effective until City executes a written
statement to that effect.
17. Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement
have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage
has been ordered shall be submitted prior to expiration. A coverage binder or letter from Consultant's insurance
agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement as required in
these specifications applicable to the renewing or new coverage must be provided to City within five days of the
expiration of the coverage's.
18. The provisions of any workers' compensation or similar act will not limit the obligations of Consultant under this
agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to
City, its officers, elected officials, employees, agents, and volunteers.
19. Requirements of specific coverage features or limits contained in this section are not intended as limitations on
coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy.
Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and
is not intended by any party or insured to be limiting or all - inclusive.
20. These insurance requirements are intended to be separate and distinct from any other provision in this agreement
and are intended by the parties here to be interpreted as such.
21. The requirements in this Section supersede all other sections and provisions of this Agreement to the extent that any
other section or provision conflicts with or impairs the provisions of this Section.
22. Consultant agrees to be responsible for ensuring that no contract used by any party involved in any way with the
project reserves the right to charge City or Consultant for the cost of additional insurance coverage required by this
agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any
third party for the cost of complying with these requirements. There shall be no recourse against City for payment
of premiums or other amounts with respect thereto.
23. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the
work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but
not the duty) to monitor the handling of any such claim or claims if they are likely to involve City.
CERTIFICATE OF CONSULTANT
I, HEREBY CERTIFY that I am the Executive Director, and a duly authorized representative of Agricultural
Community Events Farmers Markets, whose address is PO Box 923, San Anselmo, California 94979 and that neither I nor the
above firm I here represent has:
A
Date
a) Employed or retained for a commission, percentage, brokerage, contingent fee, or other
consideration, any firm or person (other than a bona fide employee working solely for me or the
above consultant) to solicit to secure this Agreement.
b) Agreed, as an express or implied condition for obtaining this contract, to employ or retain the services
of any firm or person in connection with carrying out the Agreement; or
C) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working
solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind
for, or in connection with, procuring or carrying out the Agreement;
Except as here expressly stated (if any);
I acknowledge that this certificate is subject to applicable State and Federal laws, both criminal and civil.
Signature