HomeMy WebLinkAboutFresno Building Healthy Communities and Street League Skate Boarding Foundation - MOU Regarding Romain Skate Parktrile ro +/ 15-7b3
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MEMORANDUM OF UNDERSTANDING
WITH
FRESNO BUILDING HEALTHY COMMUNITIES AND
STREET LEAGUE SKATE BOARDING FOUNDATION
REGARDING ROMAIN SKATE PARK
This Memorandum of Understanding ('MOU') is entered into this 1Oth day of
September , 2015, by and between the CITY OF FRESNO, a municipal corporation,
("City"), FRESNO BUILDING HEALTHY COMMUNITIES, a California nonprof¡t
unincorporated association ("Fresno BHC"), and STREET LEAGUE SKATEBOARDING
FOUNDATION, a California nonprofit, public benefit corporation ("SLSF") (collectively,
"the parties").
WITNESS
WHEREAS, City owns Frank Romain Playground Park ("Park"), located at 745 N.
1st. St., Fresno, California, 93702;
WHEREAS, Fresno BHC was established to foster and encourage thriving
communities where all children and families can live healthy, safe, and productive lives;
WHEREAS, Fresno BHC desires to renovate and improve the Park and has
secured private funding to construct a permanent skate park in the same location
("Skate Park"); and has retained the expertise of SLSF to design and construct the
Skate Park on their behalf;
WHEREAS, SLSF was established to increase global participation in
skateboarding; and to create healthy, sustainable communities by promoting the
in herent benefits of skateboard ing ;
WHEREAS, SLSF assists municipalities, non-profit organizations, and private
donors with the design, development, and construction of legal and safe skate plazas,
as well as assisting with educational programs that both increase understanding and
encourage skateboarding ;
WHEREAS, Fresno BHC led a series of public workshops to develop a
community-supported conceptual plan for the Skate Park, and during a community
workshop held on May 27,2015, SLSF presented a draft conceptual plan for the Skate
Park ("Draft Conceptual Plan"), attached as Exhibit A; and
WHEREAS, the City, Fresno BHC, and SLSF now wish to enter into this MOU to
allow SLSF to construct the Skate Park at the Park.
NOW, THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual covenants herein contained, and such other and
further consideration as is hereby acknowledged, the pafties agree as follows:
2.
A.
1. PARTICIPATING AGENCIES AND DESIGNATED CONTACT PERSONS
City Representative:Manuel A. Mollinedo, Director
Parks, After School, Recreation and Community
Services
1515 E. Divisadero St.
Fresno, C493721
Tel: (559) 621-2900
Sandra F. Celedon-Castro
Fresno Building Healthy Communities
4949 E. Kings Canyon Road
Fresno, CA93727
PaulVizcaino
Street League Skate Boarding Foundation
777 S. Mission Road
Los Angeles, CA 90023
Fresno BHC Representative :
Street League Representative:
ROLES, CONTRIBUTIONS AND RESPONSIBILITIES
The City shall:
(i) Designate a representative to work with Fresno BHC and SLSF to ensure
each stage of the project and the scope of work have been completed.
(ii) Review each project phase of the design and construction of the Skate
Park, however, nothing in this MOU shall bind future City action which
may be necessary to fund and approve future development of the Park.
(iii) Dedicate and name the Skate Park Fresno Building Healthy Communities
Skafe Park lor a period of not less than fifteen years, and agrees that,
subject to providing a rendering of the proposed signage and gaining prior
approval of said signage by City, Fresno BHC shall erect informational
plaques or signs on the Park property, detailing proper use of the Skate
Park and acknowledging the contributions of Fresno BHC, the grantors
under any grant agreements, City, and SLSF. Approved signage shall be
installed by SLSF during construction of the Skate Park.
(iv) Seek prior approval of Fresno BHC regarding the nature, text, and timing
of public announcements which directly or indirectly concern the existence
of or terms of this MOU. City will seek the approval of Fresno BHC
regarding the nature, text and timing of press releases, announcements,
and events related to construction or completion of the Skate Park.
Moreover, City shall acknowledge the contributions of Fresno BHC, the
grantors under any grant agreements, and SLSF during any public or
media event publishing the Skate Park. Similarly, any document, written
report, or brochure prepared in whole or in part pursuant to installation of
(v)
the Skate Park shall acknowledge the contributions of Fresno BHC, the
grantors under any grant agreements, and SLSF.
Respond to requests from Fresno BHC or SLSF for review of any
documents regarding this MOU or the Park within three business days so
as to accomplish the above-mentioned approval process in a timely
manner.
Fresno BHC shall:
(i) Encourage and incorporate community outreach efforts during the
planning and construction phase of the Skate Park.
(¡i) Provide City with proposed notices and plans, and obtain written approval
by City of such notices and plans, prior to advertising or holding any
program, special event, press event, community event, or any other event
related to the Skate Park at the Park.
(i¡i) Designate a representative to work with City and SLSF to ensure each
stage of the project and the scope of work have been completed.
(¡v) Review each project phase of the design and construction of the Skate
Park.
(v¡) Seek prior approval of City regarding the nature, text, and timing of public
announcements which directly or indirectly concern the existence of or
terms of this MOU. Fresno BHC will seek the approval of City regarding
the nature, text and timing of press releases, announcements, and events
related to construction or completion of the Skate Park. Moreover, Fresno
BHC shall acknowledge the contributions of City, all grantors under any
grant agreements, and SLSF during any public or media event publishing
the Skate Park. Similarly, any document, written report, or brochure
prepared in whole or in part pursuant to installation of the Skate Park shall
acknowledge the contributions of City, all grantors under any grant
agreements, and SLSF.
(vii) Respond to requests from City or SLSF for review of any documents
regarding this MOU or the Park within three business days so as to
accomplish the above-mentioned approval process in a timely manner.
SLSF shall:
(¡) Assume financial responsibility for all costs associated with the design and
construction of the Skate Park. When construction of Skate Park is
complete and approved by City, financial responsibility for maintenance of
the Skate Park shall transfer to City.
B.
C.
Assume responsibility of working with subcontractor California
Skateparks as the design/ build firm.
Appoint a Project Director to oversee the project and work with
Fresno BHC and City.
Require any subcontractors to insure and indemnify Fresno BHC
and City as described in this MOU.
3. EFFECTIVENESS, DURATION AND TERMINATION
This MOU shall be effective September 10,2015, through the completion of the Skate
Park project, or until April 30,2016, whichever comes sooner. Upon completion and the
City's approval and acceptance of the Skate Park project, City will become responsible
for the long-term maintenance of the Skate Park. The City shall maintain the Skate Park
in good shape and provide timely repairs, as needed, for at least five calendar years
after completion.
Any party may at any time terminate this MOU with cause upon written notice to the
other parties following another party's failure to reasonably cure an event of non-
performance hereunder following thirty (30) days' written notice thereof. Termination
shall be effective (the "Effective Date of Termination") as of the date specified in said
notice of termination. Upon such termination, all rights and obligations of each party
under this MOU shall cease as of the Effective Date of Termination, except for those
specific obligations that shall survive termination as set forth herein. The parties
recognize that termination of this MOU prior to project completion may result in
incomplete and unusable facilities at the Park resulting in significant liability to City. The
parties therefore agree to terminate this MOU only for cause, as outlined above in this
section.
4. COMPLIANCE WITH GOVERNING LAW
Each party shall comply with all federal, state, and local laws, rules and regulations in its
pursuit hereof. No party in its performance of this MOU shall employ discriminatory
practices on the basis of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, gender identification, or status as a disabled veteran or veteran of
the Vietnam era.
5. CAPACITY OF CITY, FRESNO BHC, AND STREET LEAGUE
Each pafi is acting in an independent contractor capacity. Nothing in this MOU and
nothing in the course of dealings between the parties hereunder shall be deemed to
create any fiduciary relationship, trust, partnership, joint venture, agency, or
employment relationship, jointly and severally.
ln addition and without limitation, each party shall be solely responsible for all matters
relating to payment of its employees, including, but not limited to, compliance with
applicable social security withholding, workers' compensation insurance, benefits, and
all other regulations governing such matters. Personnel supplied by City will not for any
purpose be considered employees or agents of Fresno BHC and/or SLSF. The City
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(¡i)
(iii)
(iv)
assumes full responsibility for the actions of such personnel while they are performing
services pursuant to this MOU, and shall be solely responsible for their supervision,
daily direction and control, payment of salary (including withholding of income taxes and
social security), disability benefits and the like, as applicable. Conversely, personnel
supplied by Fresno BHC and/or SLSF or its subcontractors will not for any purpose be
considered employees or agents of the City. Fresno BHC and/or SLSF (or any
subcontractor) assumes full responsibility for the actions of such personnel while they
are performing services pursuant to this MOU, and shall be solely responsible for their
supervision, daily direction and control, payment of salary (including withholding of
income taxes and social securig), disability benefits and the like, as applicable.
The City and Fresno BHC agree and acknowledge that their relationship is strictly and
solely that of an independent contractor to each other. Fresno BHC agrees and
acknowledges that its employees and/or agents are not entitled to any employee
benefits or insurance, including without limitation any health care, worker's
compensation, unemployment, or disability benefits, to be provided by the City.
The City and SLSF agree and acknowledge that their relationship is strictly and solely
that of an independent contractor to each other. SLSF agrees and acknowledges that
its employees and/or agents are not entitled to any employee benefits or insurance,
including without limitation any health care, worker's compensation, unemployment, or
disability benefits, to be provided by the City.
The parties further agree and acknowledge that each party is solely responsible for
determining the method and means by which it will fulfill its obligations hereunder. Each
shall be solely responsible for payment of all sales, use, or other taxes assessed
against or associated with the performance of each party's respective obligations, or on
the exercise of their rights under this MOU, including without limitation income, payroll
or employment-related taxes and payments. The parties agree that funding for
construction of the Skate Park shall come from private sources and no public funds will
be used.
No party shall engage any person or entity to serve in any capacity, or incur any
expense or obligation on behalf of the other without the prior written consent of both
parties.
6. INDEMNIFICATION
To the furthest extent allowed by law, Fresno BHC and SLSF shall indemnify, hold
harmless, and defend City and each of its officers, officials, employees, agents, and
volunteers from any and all loss, liability, fines, penalties, forfeitures, costs, and
damages (whether in contract, tort, or strict liability, including but not limited to personal
injury, death at any time, and property damage) incurred by City, Fresno BHC and/or
SLSF, or any other person, and from any and all claims, demands and actions in law or
equity (including attorney's fees and litigation expenses), arising or alleged to have
arisen directly or indirectly out of performance of this Agreement. Fresno BHC's and
SLSF's obligations under the preceding sentence shall apply regardless of whether
CITY or any of its officers, officials, employees, agents, or volunteers are negligent, but
shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages
caused solely by the gross negligence, or caused by the willful misconduct, of CITY or
any of its officers, officials, employees, agents, or volunteers.
lf Fresno BHC or SLSF should subcontract all or any portion of the work to be
performed under this Agreement, Fresno BHC or SLSF shall require each subcontractor
to indemnify, hold harmless and defend CITY and each of its officers, officials,
employees, agents and volunteers in accordance with the terms of the preceding
paragraph.
This section shall survive termination or expiration of this Agreement.
7. INSURANCE
Throughout the life of this MOU, Fresno BHC and SLSF or its subcontractors shall pay
for and maintain in full force and effect all policy(ies) of insurance required hereunder
with (an) insurance company(ies) either (1) admitted by the California lnsurance
Commissioner to do business in the State of California and rated not less than "A-Vll" in
Best's lnsurance Rating Guide, or (2) as may be authorized in writing by the City's Risk
Manager or his/her designee at any time in his/her sole discretion. The required
policies of insurance shall maintain limits of liability of not less than those amounts
stated therein. However, the insurance limits available to City, its officers, officials,
employees, agents and volunteers as additional insured, shall be the greater of the
minimum limits specified therein or the full limit of any insurance proceeds to be the
named insured.
Coverage shall be at least as broad as:
A. COMMERCIAL GENERAL LIABILITY (CGL): lnsurance Services Office
(lSO) form CG 00 01 covering CGL on an "occurrence" basis and shall
include insurance for "bodily injury", "property damage" and "personal and
advertising injury", including premises and operation, products and
completed operations and contractual liability with limits of liability of not
less than $1,000,000 per occurrence for bodily injury and property
damage, $1,000,000 per occurrence for personal and advertising injury,
$2,000,000 aggregate for products and completed operations, and
$2,000,000 general aggregate.
B. COMMERCIAL AUTOMOBILE LIABILITY: lnsurance Services Office
(lSO) form CA 00 01 covering Code 1, and shall include coverage for "any
auto" with limits of liability of not less than $1,000,000 per accident for
bodily and property damage. C. WORKERS'COMPENSATION
insurance as required by the State of California Labor, with statutory
limits, and EMPLOYERS' LIABILITY insurance with minimum limits of no
less than $1,000,000 per accident for bodily injury or disease.
C. COMMERCIAL CRIME insurance which shall be at least as broad as the
most current version of lnsurance Service Office (lSO) Crime and Fidelity
Form CR 00 20 with limits of insurance of not less than $200,000.
Umbrella or Excess lnsurance: ln the event Fresno BHC and/or SLSF or its
subcontractor purchases an Umbrella or Excess insurance policy(ies) to meet the
minimum limits of insurance set forth above, this insurance policy(ies) shall "follow form"
and afford no less coverage than the primary insurance policy(ies). ln addition, such
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umbrella or excess insurance policy(ies) shall also apply on a primary and
noncontributory basis for the benefit of City, its officers, officials, employees, agents and
volunteers.
Deductibles & Self-lnsured Retentions: Fresno BHC and/or SLSF or its subcontractors
shall be responsible for payment of any deductibles contained in any insurance policies
required hereunder and Foundation shall also be responsible for payment of any self-
insured retentions. Any deductibles or self-insured retentions must be declared to, and
approved by, the City's Risk Manager or his/her designee. At the option of the City's
Risk Manager or his/her designee, either (i) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City, its officers, officials, employees,
agents and volunteers; or (ii) Fresno BHC and/or SLSF or its subcontractors shall
provide a financial guarantee, satisfactory to City's Risk Manager or his/her designee,
guaranteeing payment of losses and related investigations, claim administration and
defense expenses. At no time shall City be responsible for the payment of any
ded uctibles or self-insu red retentions.
Endorsements: The above described policies of insurance shall be endorsed to provide
an unrestricted thirty (30) day written notice in favor of the City, of policy cancellation,
change or reduction of coverage, except for the Workers' Compensation policy which
shall provide a ten (10) day written notice of such cancellation, change or reduction of
coverage. ln the event any policies are due to expire during the term of this MOU, a new
certificate evidencing renewal of such policy shall be provided not less than fifteen (15)
days prior to the expiration date of the expiring policy(ies). Upon issuance by the
insurer, broker, or agent of a notice of cancellation, change or reduction in coverage,
Fresno BHC and SLSF shall file with the City a certified copy of the new or renewal
policy and certificates for such policy.
are to contain, or be
endorsed to contain, the following provisions:
1. City, its officers, officials, agents, employees, and volunteers are to be covered
as an additional insured. Fresno BHC and/or SLSF or its subcontractors shall
establish additional insured status for the City and for all ongoing and completed
operations by use of ISO Form CG 20 10 1 1 85, or both CG 20 10 10 01 and CG
20 37 10 01, or by an executed manuscript insurance company endorsement
providing additional insured status as broad as that contained in ISO Form CG
2010 11 85.
2. The coverage shall contain no special limitations on the scope of protection
afforded to City, its officers, officials, employees, agents, and volunteers. Any
available insurance proceeds in excess of the specified minimum limits and
coverage shall be available to the Additional lnsured.
3. For any claims related to this MOU, Fresno BHC's and/or SLSF's or its
subcontractor's insurance coverage shall be primary insurance with respect to
the City, its officers, officials, employees, agents, and volunteers. Any insurance
or self-insurance maintained by the City, its officers, officials, employees, agents,
and volunteers shall be excess of Fresno BHC's and/or SLSF's or its
subcontractor's insurance and shall not contribute with it. Fresno BHC and/or
SLSF or its subcontractors shall establish primary and noncontributory status by
using ISO Form CG 20 01 04 13 or by an executed manuscript insurance
company endorsement that provides primary and noncontributory status as
board as that contained in ISO Form CG 20 01 014 13.
The Crime insurance policv shall name the City as a joint loss payee.
The Workers' Compensation insurance policv is to contain or be endorsed to contain,
the following provision: Fresno BHC and/or SLSF and its insurer shall waive any right of
subrogation against City and each of its officers, officials, employees, agents, and
volunteers.
Fresno BHC and/or SLSF or its subcontractors shall furnish the City with the
certificate(s) and applicable endorsements for ALL required insurance prior to the City's
execution of this MOU.
Maintenance of lnsurance: lf at any time during the life of this MOU or any extension,
Fresno BHC and/or SLSF (or its subcontractors) fails to maintain any required
insurance in full force and effect, all of SLSF's activities under this MOU shall be
discontinued immediately, until notice is received by City that the required insurance
has been restored to full force and effect and that the premiums therefore have been
paid for a period satisfactory to City. Any failure to maintain the required insurance shall
be sufficient cause for City to terminate this MOU. No action taken by City pursuant to
this section shall in any way relieve Fresno BHC and/or SLSF or its subcontractors of
their responsibilities under this MOU.
Verification of Coverage: Upon request of City, Fresno BHC and/or SLSF or its
subcontractors shall immediately furnish City with a complete copy of any insurance
policy required under this MOU, including all endorsements, with said copy certified by
the underwriter to be a true and correct copy of the original policy. This requirement
shall survive expiration or termination of this MOU.
Duty to lndemnify: The fact that insurance is obtained by Fresno BHC and/or SLSF or
its subcontractors shall not be deemed to release or diminish the liability of Fresno
BHC and/or SLSF or its subcontractors, including, without limitation, liability underthe indemnification provisions of this MOU. The duty to indemnify City and its
officials, officers, employees, agents, and volunteers shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Fresno BHC and/or
SLSF or its subcontractors. Approval or purchase of any insurance contracts or
policies shall in no way relieve from liability nor limit the liability of Fresno BHC and/or
SLSF or its subcontractors, or any of their officers, board members, employees, agents,
volunteers, invitees, caterers, concessionaires, suppliers, vendors, consultants, or other
contractors.
Subcontractors: lf Fresno BHC and/or SLSF should subcontract all or any portion of the
services to be performed under this MOU, Fresno BHC and/or SLSF shall require each
subcontractor to provide insurance protection in favor of City and each of its officers,
officials, employees, agents, and authorized volunteers in accordance with the terms of
this section. All required certificates and applicable endorsements shall be on file with
Fresno BHC and/or SLSF and City prior to the commencement of any services by the
subcontractor.
8. ATTORNEY'S FEES
lf a party is required to commence any proceeding or legal action to enforce or interpret
any term, covenant or condition of this MOU, the prevailing party in such proceeding or
action shall be entitled to recover from the other party its/their reasonable attorney's
fees and legal expenses.
9. NOTICES
Any notice required or intended to be given to a party under the terms of this MOU shall
be in writing and shall be deemed to be duly delivered the earlier of (a) actual receipt by
personal delivery to the representative (as defined herein), as the case may be, or in
lieu of such personal se¡vice, by way of Federal Express, DHL, or other similar courier
addressed to such party at the appropriate address set forth herein, (b) the date of
receipt by facsimile to the City Representative or the Fresno BHC and/or SLSF
Representative, or (c) three (3) business days after the date of mailing (postage pre-
paid return receipt requested). Either party may change its address for the purpose of
this paragraph by giving written notice of such change to the other.
10. BIND¡NG
Once this MOU is signed by all the parties, it shall be binding upon, and shall inure to
the benefit of, the parties, and each party's respective heirs, successors, assigns,
transferees, agents, servants, employees, and representatives. The terms and
conditions of this MOU, express or implied, exist only for the benefit of the parties to this
MOU and their respective successors and assigns. No other person or entity will be
deemed to be a third party beneficiary of this MOU.
11. ASSIGNMENT
There shall be no assignment by any party of its rights or obligations under this MOU
without the prior written approval of the other party. Any attempted assignment by a
party, its successors or assigns, shall be null and void unless approved in writing by the
other party.
12. WAIVER
The waiver by any party of a breach by the other of any provision of this MOU shall not
constitute a continuing waiver or a waiver of any subsequent breach of either the same
or a different provision of this MOU. No provisions of this MOU may be waived unless
in writing and approved by and signed by all parties to this MOU. Waiver of any one
provision herein shall not be deemed to be a waiver of any other provision herein.
No action or omission by either party shall constitute a breach of this MOU unless the
injured party first notifies the other party of the purported breach in writing setting forth
the alleged breach or default and said pafi does not cure the same within a reasonable
period of time. The payment of any fee or compensation or performance of any
obligation hereunder by either party shall not constitute a waiver of any breach by the
other party or of any of the rights and remedies which either party may have as a result
of such breach. No waiver by either party of breach of the MOU shall be implied from
I
any failure by the other party to take action on account of such breach if such breach
persists or is repeated. Waivers by either party of any covenant, term or condition
contained herein shall not be construed as a waiver of any subsequent breach of the
same covenant, term or condition.
13. GOVERNING LAW AND VENUE
This MOU shall be governed by, and construed and enforced in accordance with, the
laws of the State of California. Venue for purposes of the filing of any action regarding
the enforcement or interpretation of this MOU and any rights and duties hereunder shall
be Fresno, California.
14. HEADINGS
The section headings in this MOU are for convenience and reference only and shall not
be construed or held in any way to explain, modify, or add to the interpretation or
meaning of the provisions of this MOU.
15. SEVERABILITY
The provisions of this MOU are severable. The invalidity or unenforceability of any one
provision in this MOU shall not affect the other provisions.
16. INTERPRETATION
The parties acknowledge that this MOU in its final form is the result of the combined
efforts of the parties and that, should any provision of this MOU be found to be
ambiguous in any way, such ambiguity shall not be resolved by construing this MOU in
favor or against any party, but rather by construing the terms in accordance with their
generally accepted meaning.
17. REPRESENTATIONSANDWARRANTIES
SLSF represents and warrants that it is a duly authorized and existing California
nonprofit corporation in good standing, and shall remain in good standing during the
term of this MOU. Fresno BHC represents and warrants that it is a duly authorized and
existing nonprofit unincorporated association in good standing, and shall remain in good
standing during the term of this MOU. Each party hereby represents and warrants to the
other party, and agrees that it has the full power and authority to enter into this MOU
and perform each of its obligations hereunder, and it is legally authorized and has
obtained all necessary regulatory approvals for the execution, delivery, and
performance of this MOU.
18. ENTIRE MOU
It is mutually understood and agreed that the foregoing constitutes the entire MOU
between the parties. Any modifications or amendments to this MOU must be in writing
signed by an authorized agent of each party.
lt
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lN WITNESS THEREOF, the parties have caused their authorized agents
execute this MOU as of the date first set forth above:
CITY OF FRESNO, a municipal Fresno Building Healthy Communities, acorporation california nonprofit unincorporated
Name: SIO
Title:
(Direct
Street League Skateboarding Foundation,
a California nonprofit public ben
corporation
By;
Name: B, ,r- DfUi
Title:'4./+
)Pres. or Vice Pres.)
By:
Name:
Title:
î"ltcnaa, l4alt-
Fresno Building Healthy Communities, a
Californ ia nonprofit un incorporated
Manuel A. Mollinedo, Director
PARCS Department
ATTEST
WONNE SPENCE, CMC
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
uþ
(CFO, Treasurer, Secretary or
Assistant Secretary)
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