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24-017 MOU between Cupertino and Rotary Club re Procurement and Installation of Custom Bicycle RacksMEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CUPERTINO AND THE ROTARY CLUB OF CUPERTINO REGARDING THE PROCUREMENT AND INSTALLATION OF CUSTOM BICYCLE RACKS This Memorandum of Understanding (“MOU”) is between the City of Cupertino (“City”) and the Rotary Club of Cupertino (“Organization”) (together, the “Parties”) for the purpose of procuring and installing Custom Bicycle Racks (“Program”). WHEREAS, the City adopted the Bicycle Facilities City Work Program item for Fiscal Year 2022- 2023 to increase the inventory of bicycle facilities and amenities, such as bicycle racks, within the City; and WHEREAS, the Organization is a 501(c)(3) non-profit organization interested in promoting efforts related to bicycle usage; and WHEREAS, the City and the Organization desire to enter this MOU to clarify the roles and responsibilities of the Parties in relation to the activities necessary to implement the Program; and WHEREAS, the Organization desires to fund the procurement and installation of the bicycle racks, with partial reimbursement from the City as set forth in this MOU; and NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, it is mutually understood and agreed by and between the Parties hereto as follows: 1. Term a. This MOU shall become effective upon the date of the last signature by the authorized officials and will remain in effect through June 30, 2024. The City may terminate the contract for cause or without cause at any time and will notify Organization as soon as possible. Organization may terminate with or without cause upon providing 30 days’ notice to the City. 2. Coordination a. Representatives from the Organization and the City will discuss and agree on the location(s) where the bicycle rack(s) will be installed. 3. City Responsibilities a. Agree (approve) or disagree (reject) to locations proposed for bicycle racks. b. Reimburse the Organization in an amount up to $250 for every bicycle space installed according to the advertised capacity by the bicycle rack manufacturer(s). Reimbursement for the Program will be up to a total amount not to exceed $50,000, the exact amount will be at the sole discretion of the City based on the bicycle racks approved by the City and installed by the Organization. c. Provide reasonable staff services and support, if needed, including scheduling of any commission meetings necessary to facilitate the Program. d. Bicycle racks shall be installed on City property only with approval by and at the sole discretion of the Public Works Director. Any bicycle rack installed on City property shall become the property of the City upon completion and acceptance of the installation work by the Public Works Director. The City shall be responsible for maintenance of the bicycle rack following acceptance of the installation work and shall have the sole discretion to remove or relocate any bicycle rack installed on City property. 4. Organization Responsibilities a. Coordinate with the City on the location(s) for the Program. b. Purchase, transport, and install the custom bicycle racks at the pre-determined location(s). All installation work, including the materials and costs associated with the installation, will be the sole responsibility of the Organization. c. Ensure the bicycle racks are safe and secure and in good physical condition. d. Conduct all negotiations and enter into any necessary agreements with property owners, including but not limited to access and maintenance agreements. 5. Reimbursement a. The City will reimburse the Organization as set forth in Section 3.b. above. Reimbursement will be provided within 30 days of the City receiving an invoice for an approved bicycle rack that has been installed by the Organization. 6. General Provisions a. Indemnification. To the fullest extent allowed by law and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Organization agrees to indemnify, defend, and hold harmless the City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and contractors (collectively, “Indemnitees”), through legal counsel acceptable to City, from and against any liability for damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation, arbitrations, administrative, and regulatory proceedings), of every nature, arising out of or in any way related to Organization’s or Organization’s agents performance of this MOU. This includes but is not limited to Liability resulting in personal injury, death, property damage, or economic losses. Organization must pay any costs City may incur in enforcing this provision and must accept a tender of defense upon receiving notice from City. This provision shall survive termination of the MOU. b. Insurance. Organization shall comply with the insurance requirements in Exhibit A. City will not execute the MOU until it has received and approved satisfactory certificates of insurance and endorsements evidencing the type, amount, and dates of coverage. c. Entire Agreement. This MOU represents the full and complete understanding of every kind and nature between the Parties and supersedes any other agreement(s) and understanding(s), either oral or written, between the Parties. d. Amendment. Any amendment to or modification of this MOU will be effective only if in writing and signed by each Party’s authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this MOU. e. Governing Law and Venue. This MOU is governed by the laws of the State of California. Any lawsuits related to this MOU must be filed with the Superior Court for the County of Santa Clara, State of California. f. Third Party Beneficiaries. There are no intended third-party beneficiaries of this MOU. g. Headings. The headings in this MOU are for convenience only, are not a part of the MOU, and in no way affect, limit, or amplify the terms or provisions of this MOU. h. Severability / Partial Invalidity. If any term or provision of this MOU, or its application to a particular situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this MOU or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this MOU to carry out its intent. i. Survival. All provisions which by their nature must continue after the MOU expires or is terminated shall survive the MOU and remain in full force and effect. j. Notices. All notices, requests, and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery; or the date confirmed by the reputable overnight delivery service; or on the fifth calendar day after deposit in the United States Mail, postage prepaid; or the next business day following submission by electronic mail: To City of Cupertino: 10300 Torre Ave Cupertino, CA 95014 Attention: Chad Mosley Contact Info: (408) 777-3354 ChadM@cupertino.org To the Rotary Club of Cupertino: PO Box 637 Cupertino, CA 95015 Attention: Alysa Sakkas Contact Info: (408) 772-5550 asakkas2011@gmail.com IN WITNESS WHEREOF the Parties have executed this Memorandum of Understanding which shall become effective upon the date of the execution of the MOU by all Parties. CITY OF CUPERTINO A Municipal Corporation By Name Title Date The Rotary Club of Cupertino By Name Title Date APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date Club President 2023-24 February 3, 2024 Alysa Sakkas Christopher D. Jensen Assistant Director of Public Works Jimmy Tan Feb 13, 2024 Feb 13, 2024 Exhibit A Insurance Requirements As required by the MOU, Organization shall procure prior to commencement of Programs and maintain the following insurance for the duration of the MOU against claims arising from or in connection with Organization, its agents, representatives, employees or subcontractors Programs under this MOU. Minimum Scope and Limit 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 property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, it must apply separately to this project/location (CG 25 03 or 25 04) or be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Organization's policy shall be "primary and non- contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 01 (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 0001 covering Code 1 (any auto), or if Organization has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory and Employer’s Liability Insurance limits of no less than $1,000,000 per accident for bodily injury or disease. 4. Professional Liability: Insurance which includes coverage for professional acts, errors and omissions, with limits no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate (if applicable). Insurance coverage required may be satisfied by a combination of Primary and Excess/Umbrella insurance. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Organization’s CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Organization’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self- insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Organization’s insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of Subrogation Organization waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Organization, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City’s option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Organization must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better. Verification of Coverage Organization must furnish acceptable insurance certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term. Subconsultants Organization shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies. Higher Insurance Limits If Organization maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Organization. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY Hylant Group Inc 811 Madison Ave Toledo OH 43604 419-259-2710 419-255-7557 Westchester Surplus Lines Insurance Company 10172 A X 2,000,000 X 500,000 X Liquor Liability Included 2,000,000 4,000,000 X Y G73578917002 7/1/2023 7/1/2024 4,000,000 A 2,000,000YG735789170027/1/2023 7/1/2024 XX DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)The Certificate Holder is included as an additional insured where required by written contract or permit subject to the terms and conditions of the general liability policy, but only to the extent bodily injury or property damage is cause in whole or in part by the acts or omissions of the insured. InsuredAll Active US Rotary Clubs & Districts Attn: Risk Management Dept. 1560 Sherman Avenue Evanston, IL 60201-3698 Crystal Gleason Not applicable Not applicable 01/16/2024 CG 24 53 12 19 © Insurance Services Office, Inc., 2018 Page 1 of 1 COMMERCIAL GENERAL LIABILITY CG 24 53 12 19 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US (WAIVER OF SUBROGATION) – AUTOMATIC This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART ELECTRONIC DATA LIABILITY COVERAGE PART LIQUOR LIABILITY COVERAGE PART POLLUTION LIABILITY COVERAGE PART DESIGNATED SITES POLLUTION LIABILITY LIMITED COVERAGE PART DESIGNATED SITES PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART RAILROAD PROTECTIVE LIABILITY COVERAGE PART UNDERGROUND STORAGE TANK POLICY DESIGNATED TANKS The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us of Section IV – Conditions: We waive any right of recovery against any person or organization, because of any payment we make under this Coverage Part, to whom the insured has waived its right of recovery in a written contract or agreement. Such waiver by us applies only to the extent that the insured has waived its right of recovery against such person or organization prior to loss. GLE0095 (07/10)©Chubb.2016.All rights reserved.Page 1 of 1 NON-CONTRIBUTORY OTHER INSURANCE ENDORSEMENT Named Insured US Rotary Clubs & Districts Endorsement Number Policy Symbol GLW Policy Number G73578917 002 Policy Period 07/01/2023 TO 07/01/2024 Effective Date of Endorsement 07/01/2023 Issued By (Name of Insurance Company) Westchester Surplus Lines Insurance Company THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: COMMERCIAL GENERAL LIABILITY COVERAGE FORM Paragraph 4. c. of SECTION IV – COMMERCIAL GENERAL LIABILITY CONDITIONS is deleted in its entirety and replaced by the following: c.Method of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method unless you are required by written contract to provide insurance that is primary and non-contributory, and the contract has been signed by you prior to any loss. Where required by such a written contract, this insurance will be primary and non-contributory only when and to the extent required by that written contract. However, under the contributory approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer’s share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. All other terms and conditions remain unchanged. MOU between Cupertino and Rotary Club re Procurement and Installation of Custom Bicycle Racks Final Audit Report 2024-02-13 Created:2024-02-13 By:Araceli Alejandre (aracelia@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAuG6sjx4hCF1pdxNNNW0BEu-d8Idn4mO5 "MOU between Cupertino and Rotary Club re Procurement and I nstallation of Custom Bicycle Racks" History Document created by Araceli Alejandre (aracelia@cupertino.org) 2024-02-13 - 6:57:16 PM GMT- IP address: 64.165.34.3 Document emailed to christopherj@cupertino.org for signature 2024-02-13 - 7:06:08 PM GMT Email viewed by christopherj@cupertino.org 2024-02-13 - 7:08:33 PM GMT- IP address: 104.47.73.126 Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen 2024-02-13 - 7:08:51 PM GMT- IP address: 136.24.22.194 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2024-02-13 - 7:08:53 PM GMT - Time Source: server- IP address: 136.24.22.194 Document emailed to Jimmy Tan (jimmyt@cupertino.org) for signature 2024-02-13 - 7:08:54 PM GMT Email viewed by Jimmy Tan (jimmyt@cupertino.org) 2024-02-13 - 7:09:51 PM GMT- IP address: 104.47.73.126 Document e-signed by Jimmy Tan (jimmyt@cupertino.org) Signature Date: 2024-02-13 - 7:10:15 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2024-02-13 - 7:10:17 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2024-02-13 - 7:43:43 PM GMT- IP address: 104.47.74.126 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2024-02-13 - 7:43:53 PM GMT - Time Source: server- IP address: 64.165.34.3 Agreement completed. 2024-02-13 - 7:43:53 PM GMT