Sample_Management_Agmt.pdf

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MANAGEMENT AGREEMENT NO. ___ (CCS)

This Management Agreement (“Agreement”), entered into this _____ day of_______________(“Execution Date”), by and between the CITY OF SANTA MONICA, a municipal corporation (“City”), and ____________ (“Operator”), and is made with reference to the following:

R E C I T A L S:

A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.

B. The Operator is qualified to do business, and is doing business, in the State of California. Operator represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Agreement.

C. The City owns the Carousel located at 200 Santa Monica Pier, Santa Monica, California.

D. On or about __________, the City issued a Request for Proposal. The Operator submitted its Proposal to the City. Both the Request for Proposal and Proposal are incorporated herein by reference to this Agreement.

E. The City and Operator desire to enter into this Agreement for the Operator to provide management services related to the operation and maintenance of the Carousel on the Santa Monica Pier upon the terms and conditions set forth herein.

NOW THEREFORE, it is mutually agreed by and between the undersigned parties as follows:

1. TERM.

Unless terminated earlier as set forth in this Agreement or extended pursuant to Section 1.2, the term of this Agreement shall be for a period of three years (Initial Term) commencing on the Execution Date and terminating thirty six months thereafter.

1.2 Option to Extend. Provided the Operator is in full compliance with the terms and condition of this Agreement, the Operator is granted two (2) one-year options to extend the Term (the “Extension Option”) after the Termination Date on the same terms and conditions set forth in this Agreement.

2. SERVICES TO BE PERFORMED BY OPERATOR.

A. Management Services. Operator shall perform all of the services related to the

- 2 -management, operation and maintenance of the Carousel located at 200 Santa Monica Pier, Santa Monica, California, including all of the services set forth in the Scope of Services attached hereto as Exhibit A, and the Budget attached hereto as Exhibit B, which set forth the Services Included in Management Fee. Operator shall provide the services in full compliance with the Term Sheet, Conditions of Carousel Operator, and Services Included in Management Fee. Operator shall provide experienced trained personnel to staff the Carousel in compliance with the Term Sheet.

Operator’s personnel shall provide services in a professional and courteous manner to the public.

B. Additional Services. From time to time, the City may request additional services other than those set forth in this Agreement. Such additional fees shall be subject to compensation only as agreed upon by the parties in advance and in writing.

C. Carousel Fee. The fees to the public for the use of the Carousel shall be established by the City.

D. Carousel Fee Collection. Operator shall collect fees/fares from the public for the use of the Carousel. Operator shall use computerized point-of-sale register, capable of accepting cash, credit and debit cards and generate a receipt.

E. Hours of Operation. Operator shall be required to keep the Carousel open to the public during the Hours of Operation as set forth in Exhibit C attached hereto. In addition, the Operator shall make available the Carousel for special events in accordance with the City’s Special Events Guidelines until midnight. Any modification to the Hours of Operation shall require the prior written permission of the City, in its sole and complete discretion.

F. Deposit of Carousel Revenue. All fees generated from the Carousel shall be property of the City and the Operator shall be required to deposit such fees with the City Treasury on a weekly basis. Operator shall provide monthly statements to the City, and shall include all of the fees generated from the Carousel operations in such statement.

G. Cooperation for Special Events, Filming and Private Parties. The Operator shall cooperate with the City, its employees, operators and agents, and the patrons for special events, filming and private parties which may be held at the Carousel at the City’s discretion.

3. OPERATING EXPENSES AND MANAGEMENT FEE.

3.1. Operating Expenses. During the First Year of the Initial Term the City shall reimburse Operator for the approved annual operating expenses of the Carousel as set forth in the Budget attached hereto as Exhibit B in an amount not to exceed ______Dollars ($________).

The reimbursable expenses shall include, but not be limited to wages and salaries, fringe benefits, taxes, and general operating expenses. The Operator shall not incur any costs or expenses unless such expenditures are necessary and reasonable for the performance of Contractor of its duties and obligations and except as otherwise approved by the City. Itemized expenses and reimbursables shall be submitted to the City on the 1st and 16th of each month.

3.1.2. Operating Expense Adjustments. Operating Expenses shall be permitted

- 3 -to be increased as of every July 1 (“Adjustment Date”) for the Second Year of the Initial Term and for each of the three one-year Options to Extend, if any, by the annual Living Wage adjustments. The Living Wage Ordinance sets the Minimum Wage per hour and provides for an annual adjustment each July 1st, by an amount corresponding to the previous calendar year's change (January to January) in the Consumer Price Index for Urban Wage Earners and Clerical Workers in Los Angeles, Riverside and Orange Counties.

3.2. Management Fee. During the Initial Term the City shall pay Operator a fixed annual management fee for management services performed pursuant to this Agreement in an amount not to exceed _____ Dollars ($___) during the First Year of the Initial Term as set forth in the Budget (referred to as the “Management Fee”) attached hereto as Exhibit B. The Management Fee shall be payable on a monthly basis and shall include all of the fees identified in the Included in Management Fee. Operator shall submit an invoice on a monthly basis for services provided.

3.2.1. Annual Adjustments. Management Fee shall be subject to an annual

Consumer Price Index (CPI) increase as of every July 1 (“Management Fee Adjustment Date”) for the second and third year of the Initial Term and for each of the two one-year Options to Extend, if any. In no event shall the increase in CPI Adjustment to the Management Fee be (a) less than one percent (1%) nor (b) greater than three percent (3%) of the previous year.

4. NOTICES.

All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the fifth business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:

A. All notices, demands, requests or approvals from Operator to City shall be addressed to City at:

City of Santa Monica Office of Pier Management 200 Santa Monica Pier, Ste. J Santa Monica, California 90401 Attn: Pier Administrator

B. All notices, demands, requests or approvals from City to Operator shall be addressed to Operator at:

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5. INDEPENDENT PARTIES.

Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another. Neither the City nor its officers or employees shall have any control over the conduct of Operator or any of Operator’s agents, employees, or subconsultants, except as otherwise provided herein.

6. INTEGRATED CONTRACT.

This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modifications of this Agreement will be effective only by written execution signed by both City and Operator.

7. INSURANCE.

Prior to commencing work, Operator shall procure, maintain and pay for insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work or services hereunder by Operator, Operator’s agents, representatives, employees or subconsultants for the duration of the Agreement. The requirements of insurance are set forth in Exhibit D, Insurance Requirements and Verifications, which is attached hereto and incorporated herein.

8. COST OF LITIGATION.

If any legal action is necessary to enforce any provision of this Agreement or for damages by reason of any alleged breach of any provision of this Agreement, the prevailing party shall be entitled to receive from the losing party all costs, disbursements, and expenses and such amount as the court may adjudge to be reasonable attorney's fees.

9. DEFENSE, INDEMNIFICATION AND HOLD HARMLESS.

The Operator shall indemnify and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively hereafter the “City”) against any or all loss, damages, liability, claims, suits, costs, expenses, and judgments, whatsoever, arising from or related to any of the following: (1) performance or nonperformance of this Agreement by the Operator or its subconsultants of any tier; (2) the activities of Operator or its subconsultants of any tier; (3) the payment or nonpayment by Operator of any of its subconsultants or any tier; and

(4) any personal injury, property damage or economic loss to third persons associated with the performance or nonperformance by Operators or its subconsultants or any tier; provided, however, that nothing contained herein shall be construed as obligating Operator to indemnify the City for losses resulting from the City’s sole or active negligence or willful misconduct.

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10. PROHIBITION AGAINST TRANSFERS.

Operator shall not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City.

Any attempt to do so without the City’s consent shall be null and void, and any assignee, sublessee, hypothecatee or transferee shall acquire no right or interest by reason of such attempted assignment, sublease, hypothecation or transfer.

The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Operator or of any general partner or joint venturer or syndicate member of Operator, if a partnership or joint venture or syndicate exists, which shall result in changing the control of Operator, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation.

11. PERMITS AND LICENSES.

Operator, at its sole expense, shall obtain and maintain during the term of this Agreement, all required business and professional permits, licenses and certificates.

12. WAIVER.

A waiver by either party to this Agreement of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein.

13. TERMINATION.

In the event Operator fails or refuses to perform any of the provisions of this Agreement, and if the default is not cured within a period of five (5) days after receipt by Operator of City's written notice of default specifying the nature of the default and the steps necessary to cure the default, City may immediately terminate this Agreement by written notice to Operator.

City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving ten (10) days written notice to Operator. Upon termination of this Agreement, City shall pay to Operator compensation earned and unpaid up to the effective date of termination.

14. COMPLIANCE WITH LAW.

Operator shall comply with all laws of the State of California and the United States, and all ordinances, rules and regulations enacted or issued by City. If such ordinances, rules or regulations enacted or issued by the City after the effective date of this Agreement significantly impact Operator's performance of its obligations under this Agreement, equitable adjustment may be made to the time of performance, the compensation, or both, as appropriate.

15. LIVING WAGE.

This Agreement is subject to the City of Santa Monica's Living Wage Ordinance, Santa

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Monica Municipal Code Chapter 4.65 (“Living Wage Ordinance”) which requires the payment of Minimum Wage for work done on any contract to any worker who does not actually work as a manager, supervisor or confidential employee, and who is not required to possess an occupational license. The Living Wage Ordinance sets the Minimum Wage for Fiscal Year ___ (July 1, 20__ through June 30, 20__) at $___ per hour and provides for an annual adjustment each July 1st, by an amount corresponding to the previous calendar year's change in the Consumer Price Index for Urban Wage Earners and Clerical Workers in Los Angeles, Riverside and Orange Counties. If this Agreement is subject to such Living Wage Ordinance, then the Consultant shall comply with all of its provisions. Failure to comply with the provisions of the Living Wage Ordinance shall be grounds for termination of this Agreement. Questions concerning the Living Wage Ordinance may be directed to the City Finance Department at (310) 458-8281.

16. DISCRIMINATION.

Operator shall not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability and shall comply with the requirements of City, State and Federal law.

17. NUISANCE.

Operator shall not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.

18. RECORDS

Throughout the term of this Agreement and for a period of three (3) years after termination or expiration of this Agreement, Operator shall maintain complete and accurate records with respect to the operation, maintenance, repairs of the Carousel pursuant to this Agreement, including, but not limited to reimbursable expenses, non-reimbursable expenses, Carousel fees, maintenance records, repair costs. Operator shall maintain records of service provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Representatives of City or its designees shall be allowed free access to Operator’s books and records, and have the right to examine, audit and make transcripts therefrom as necessary, and to inspect all books and records, work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records.

If City’s audit discloses an error of five percent (5%) or more in information reported by the Operator and City’s audit is correct, Operator shall pay the cost of City’s audit computed on the basis of four (4) times the direct payroll of the audit staff completing the audit and the audit report.

19. REPORTS.

A. Tabulation of Patrons. Along with the deposit of Carousel fees, the Operator shall provide the City with a weekly report setting forth a daily tabulation of adult/child ridership at

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B. Accident Reporting. In the event of any accident or incident that requires the response of any emergency medical units or law enforcement, the Operator shall notify the City’s Risk Manager and the City’s Pier Leasing Manager immediately. For other patron accidents or complaints, or for property damage, or other circumstances that might result in the filing of claims against the City or Operator, the Operator shall report such accident or complaint no later than 12 hours after such accident or receipt of complaint. To ensure proper follow-up of any accident or incidents, where appropriate, to ensure that any unresolved safety hazards or liability issues are resolved. Operator shall cooperate with the City investigation pertaining to any such accident or claim.

C. Reports Owned by City. Each and every final report, work product, map, record and other document reproduced, prepared or caused to be prepared by Operator pursuant to or in connection with this Agreement and delivered to the City shall be the exclusive property of City, including the originals of all notes, memoranda, sketches, letters and documents developed and received by Operator.

D. Obligation to Provide Other Reports. In addition to the requirements of Section 18(A) and 18(B), the Operator shall furnish reports concerning the status of services required under this Agreement at City’s request. No report, work product, map, record or other document given to or prepared or assembled by Operator pursuant to this Agreement shall be made available to any individual or organization by Operator without prior written approval by City.

Provisions of this Section shall apply to all materials developed by subconsultants pursuant to this Agreement unless otherwise authorized in writing by City prior to execution of any Agreement with said subconsultants.

20. STANDARD OF CARE.

Operator agrees that all services performed hereunder, including services performed by any subconsultants, shall be provided in a manner consistent with the highest level of care and skill and shall be performed by experienced personnel.

21. COUNTERPARTS.

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.

The execution of this Agreement shall be deemed to have occurred, and this Agreement shall be enforceable and effective only upon the complete execution of this Agreement by City and Operator.

22. SUBCONSULTANTS.

Requests for subconsultants shall be submitted in writing, describing the scope of work to be contracted, the name of the proposed subconsultants, and the total price or hourly rates used in preparing an estimated cost for the subconsultants’s services. The City may issue approval of the subconsultants in the form of a Work Order.

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Operator shall be responsible for the quality of all subconsultants work performed pursuant to this Agreement. Operator may terminate and replace the services of any subconsultants, subject to the prior written approval by the City which shall not be unreasonably withheld or delayed. Every subcontract or agreement of any kind entered into between Operator and subconsultants (or between any subconsultants and others) shall contain the following provision:

This agreement is consistent with the specified terms and conditions of the Agreement entered into between the City of Santa Monica and Operator (hereinafter referred to as the “Agreement”) including, but not limited to:

Section 2, Services to be Performed by Operator; Section 4, Compensation, and Section 8, Insurance.

23. GOVERNING LAW.

This Agreement shall be construed in accordance with and governed by the laws of the State of California.

24. VENUE AND JURISDICTION.

The services provided pursuant to this Agreement shall be take place in Santa Monica, California. Accordingly, any litigation arising from this Agreement shall be brought in either the United States District Court for the Central District of California or the Los Angeles Superior Court, West District. The parties agree that venue exists in either court. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.

25. EXHIBITS.

All of the following exhibits are incorporated by reference into this Agreement.

Exhibit A Scope of Services Exhibit B Budget Exhibit C Hours of Operation Exhibit D Insurance

In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.

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ATTEST:

City Clerk

APPROVED AS TO FORM:

City Attorney

CITY OF SANTA MONICA,

a municipal corporation

By: ______________________________ City Manager

By:

Name: _____________________________ Title: ______________________________

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EXHIBIT A

SCOPE OF SERVICES

EXHIBIT B

BUDGET

EXHIBIT C

Santa Monica Pier Carousel Hours of Operation*

JULY Monday–Thursday 11AM – 7PM Friday – Saturday 11AM – 8PM

Sunday 11AM – 7PM 4th of July 11AM – 9PM

Closed Tuesday (alternative: open 3PM to 7PM) AUGUST Monday–Thursday 11AM – 7PM

Friday – Saturday 11AM – 8PM Sunday 11AM to 7PM

Closed Tuesday (alternative: open 3PM to 7PM) SEPTEMBER Monday–Thursday 11AM – 5PM

Friday – Sunday 11AM – 7PM Closed Tuesday and Wednesday

OCTOBER Monday–Thursday 11AM – 5PM Friday – Sunday and Labor Day 11AM – 7PM

Closed Tuesday and Wednesday NOVEMBER Monday–Thursday 11AM – 5PM

Friday – Sunday 11AM – 7PM Thanksgiving Day 11AM – 7PM

Closed Tuesday and Wednesday (Carousel open Wednesday before Thanksgiving)

DECEMBER Monday–Thursday 11AM – 5PM Friday – Sunday 11AM – 7PM Christmas Day 11AM – 7PM

Closed Tuesday and Wednesday (Carousel open on Wednesday following Christmas)

JANUARY

Monday–Thursday 11AM – 5PM Friday – Sunday 11AM – 7PM New Years Day 11AM – 8PM

Closed Tuesday and Wednesday FEBRUARY Monday –Thursday 11AM – 5PM

Friday – Sunday 11AM – 7PM Closed Tuesday and Wednesday

MARCH

Monday–Thursday 11AM – 5PM

Closed Tuesday and Wednesday first and second week Closed Tuesday third and fourth week

APRIL Monday–Thursday 11AM – 7PM Friday – Sunday 11AM – 7PM

Closed Tuesday MAY Monday–Thursday 11AM – 5PM

Friday – Sunday 11AM – 7PM Memorial Day 11AM – 7 PM

Closed Tuesday (Carousel open on Tuesday following Memorial Day)

JUNE First and Second week: Monday–Thursday 11AM – 5PM

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Third and Fourth week: Monday- Thursday 11AM – 7PM Friday – Sunday 11AM – 7PM

Closed Tuesday (alternative: open 3PM to 7PM) *Hours subject to change by City

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EXHIBIT D

Insurance Requirements

Contractor shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors.

Minimum Scope and Limits of Insurance

Coverage shall be at least as broad as:

1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $3,000,000 per occurrence.

2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and Code 9 (non-owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation: Workers’ Compensation insurance as required by the State of California, with Statutory Limits and Employers’ Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).

If the Contractor maintains broader coverage or higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to any broader coverage and higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.

Other Insurance Provisions

1. The insurance policies are to contain, or be endorsed to contain, the following provisions:

a. Additional Insured Status: The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Contractor including materials, parts, or equipment furnished in connection with such work or operations. CGL coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as Insurance Services Office Form CG 20 10 11 85, or if not available, through the addition of a combination of (1) CG 20 10, CG 20 26, CG 20 33, or CG 20 38 and (2) CG 20 37).

b. Primary Coverage: For any claims related to this Agreement, the Contractor’s insurance shall be primary coverage at least as broad as Insurance Services Offices Form CG 20 01 04 13 as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Contractor’s insurance and shall not contribute with it.

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c. Notice of Cancellation: Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica.

d. Waiver of Subrogation: Contractor hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Contractor may acquire against the City of Santa Monica by virtue of payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.

The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Santa Monica for all work performed by the Contractor, its employees, agents and subcontractors.

Self-Insured Retentions

Self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Contractor to purchase coverage with a lower retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Santa Monica.

Acceptability of Insurers

Insurance is to be placed with insurers authorized to conduct business in California with a current A.M.

Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.

Verification of Coverage

Contractor shall furnish the City of Santa Monica with original certificates and amendatory endorsements (or copies of the applicable policy language effecting coverage provided by this clause). All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.

Failure to Maintain Insurance Coverage

If Contractor, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Contractor resulting from said breach.

Subcontractors

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Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.

Footnotes

# 1: Workers’ Compensation insurance coverage is not required if the Contractor does not have employees. The Contractor must, however, execute the City’s Workers’ Compensation Coverage Exemption Declaration Form.