HomeMy WebLinkAboutFresno Food Exposition - Memorandum of Understanding for the Fresno Food Expo/l- Bs 5
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MEMORANDUM OF UNDERSTANDING
Fresno Food Expo
THls MEMORANDUM oF UNDERSTANDING ("Agreement") is made and
entered into on this 24th day of September,2015, by and between the ôity of Fresno, a
municipal corporation, hereinafter referred to as the ("City"), and Fresno Food
Exposition, lnc., a California non-profit corporation, hereinafter referred to as
("Corporation"). The City and Corporation are sometimes collectively referred to herein
as the "Parties" and individually, as a "Party."
RECITALS
WHEREAS, the City owns the Fresno Convention & Entertainment Center
("Facility"); and
WHEREAS, the Facility is managed by SMG, a Pennsylvania general partnership
("SMG") pursuant to a Management Agreement between City and SMG dated
December 17, 2008, ("Management Agreement"); and,
WHEREAS, City is permitted to use the Facility in exchange for a credit as
Operating Revenue for the published rental rate pursuant to Section 11.2(a) of the
Management Agreement, but City is required to pay SMG directly for direct out-of-
pocket expenses incurred in connection with the City's use of the Facility; and
WHEREAS, the Fresno Food Expo event provides a benefit to the City and the
City desires to provide ongoing support for the event; and
WHEREAS, the City desires to assign certain of its rights under the Management
Agreement to Corporation.
AGREEMENT
NOW, THEREFORE, the Parties agree as follows:
1. ASSIGNMENT OF RENT CREDIT
City hereby assigns to Corporation its right to use the Facility in exchange for a
credit as Operating Revenue pursuant to Section 11.2(a) of the Management
Agreement for the limited purpose of hosting the Fresno Food Expo ("Rent Credit").
The amount of the Rent Credit shall not exceed $60,000. Use of the Rent Credit is
conditioned upon approval by SMG. ln no event shall City be responsible for any direct
cost, including, without limitation, the cost of the rent if the Rent Credit is not approved.
All direct out-of-pocket expenses shall be paid by Corporation.
2. TERM
This Agreement shall be in effect for a term of five years from the date hereof.
Notwithstanding the foregoing, the Corporation and City shall have the right to terminate
this Agreement upon twelve months' advance written notice.
3. INDEMNIFICATION
To the furthest extent allowed by law, Corporation 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 liabilíty, including but not limited to personal injury, death at any
time and property damage), and from any and all claims, demands and actions in law or
equity (including reasonable attorney's fees and litigation expenses) that arise out of,
pertain to, or relate to the negligence, recklessness or willful misconduct of Corporation,
its principals, officers, employees, agents or volunteers in the performance of this
Agreement.
lf Corporation should subcontract all or any portion of the services to be
peformed under this Agreement, Corporation 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.
4. INSURANCE
Throughout the life of this Agreement, Corporation 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) authorized by the City's Risk Manager. The following policies of
insurance are required:
A. COMMERCIAL GENERAL LIABILITY insurance which shall be at
least as broad as lnsurance Services Office ('lSO') form CG 00 01 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,OOO,0OO
per occurrence for personal and advertising injury, $2,000,000 aggregate for
products and completed operations, and 92,000,000 general aggregate.
B. COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be
at least as broad as the most current version of llSO form CA 00 01 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. Only required if automobiles are to
be operated on City property.
C. WORKERS' COMPENSATION insurance as required under the
California Labor Code.
D. EMPLOYERS' LIABILITY insurance with minimum limits of
$1,000,000 each accident, $1,000,000 disease each employee and $1,000,000
disease policy limit.
ln the event Corporation 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).
Corporation shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and Corporation 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) Corporation 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 deductibles or
self-insured retentions.
The above described policies of insurance shall be endorsed to provide an
unrestricted thirty 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 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 Agreement, a new certificate
evidencing renewal of such policy shall be provided not less than fifteen 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, Corporation shall file
with the City a ceftified copy of the new or renewal policy and certificates for such
policy.
The General Liability and Automobile Liability insurance policies shall be written
on an occurrence from and shall name the City, its officers, officials, agents, employees
and volunteers as an additional insured. Such policy(ies) of insurance shall be
endorsed so Corporation's insurance shall be primary and no contribution shall be
required of the City. The Crime insurance policy shall name the City as a joint losspayee. Any Workers' Compensation insurance policy shall contain a waiver of
subrogation as to the City and each of its officers, officials, employees, agents and
volunteers. Corporation shall furnish the City with the certificate(s) and applicable
endorsements for all required insurance prior to the City's execution of this Agreement.
lf at any time during the life of this Agreement or any extension, Corporation fails
to maintain any required insurance in full force and effect, all of Corporation's activities
under this Agreement shall be discontinued immediately, until notice is received by City
that the required insurance has been restored to full force and effect and 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 Agreement. No
action taken by City pursuant to this section shall in any way relieve Corporation of its
responsibilities under this Agreement.
Upon request of City, Corporation shall immediately furnish City with a complete
copy of any insurance policy required under Agreement, including all endorsements,
with said copy certified by the undenryriter to be a true and correct copy of the original
policy. This requirement shall survive expiration or termination of this Agreement.
The fact that insurance is obtained by Corporation shall not be deemed to
release or diminish the liability of Corporation, including, without limitation, liability under
the indemnification provisions of this Agreement. 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 Corporation.
Approval or purchase of any insurance contracts or policies shall in no way relieve from
liability nor limit the liability of Corporation or any of its officers, board members,
employees, agents, volunteers, invitees, caters, concessionaires, suppliers, vendors,
consulta nts, contractors or subcontractors.
lf Corporation should subcontract all or any portion of the services to be
performed under this Agreement, Corporation shall require each subcontractor toprovide 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, except that any required certificates and applicable endorsements shall be on
file with Corporation and City prior to the commencement of any services by the
subcontractor.
5. NOTICES
Any notice required or intended to be given to a party under the terms of this
Agreement 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 seryice, 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 or the Corporation, 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.
6. BINDING
Once this Agreement 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
Agreement and their respective successors and assigns. No other person or entity will
be deemed to be a third party beneficiary of this MOU.
7. ASSIGNMENT
There shall be no assignment by any party of its rights or obligations under this
Agreement 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,
8. GOVERNING LAW AND VENUE
This Agreement 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 actíon regarding the enforcement or interpretation of this Agreement and any rights
and duties hereunder shall be Fresno, California.
9. ENTIRE MOU
It is mutually understood and agreed that the foregoing constitutes the entire
Agreement between the parties. Any modifications or amendments to this Agreement
must be in writing signed by an authorized agent of each party.
SIGNATURES APPEAR ON NEXT PAGE
WHEREFORE, the Parties have entered into this agreement on the date andyear first above referenced in Fresno, California.
CIry OF FRESNO,
a municipal corporation
ATTEST:
WONNE SPENCE, CMC
City Clerk
Deputy
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
Supervising Deputy City Attorney
LAF:ns [68911ns/lafl
FRESNO FOOD EXPOSITION, INC.,
California non-profit corporation
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