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23-049 CREF and City MOU - Cupertino RabbitsMEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CUPERTINO AND CUPERTINO ROTARY ENDOWMENT FOUNDATION REGARDING CUPERTINO RABBITS ON CITY PROPERTY This Memorandum of Understanding (“MOU”) is between the City of Cupertino (“City”) and Cupertino Rotary Endowment Foundation (“Organization”) (together, the “Parties”) for the purpose of displaying Cupertino Rabbits (“Program”) on City property. WHEREAS, the Organization is a 501(c)(3) non-profit organization running the Program, a community-wide public art exhibition to showcase public spaces and celebrate the spirit of the year of the rabbit; and WHEREAS, the City and the Organization desire to enter this MOU to host the Program, to share artwork with members of the public; and WHEREAS, the City and the Organization have determined that it is to their mutual advantage to enter into this MOU, which grants the Organization the ability to setup art installations at mutually agreed upon City properties, to continue the exhibition and also provide a cross generational engagement opportunity for seniors and youth; and WHEREAS, a MOU between the Parties is necessary to outline the terms, understanding and purpose of this collaboration; 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 last signature by the authorized officials and will remain in effect through September 9, 2023. City may terminate the contract for cause or without cause at any time and will notify Organization as soon as possible. 2. Coordination a. Representatives from the Organization and the City will discuss and agree to the location(s) where the artwork(s) will be setup and displayed on City property. Also, if the opportunity arises, the parties could coordinate an intergenerational event for students to unveil one of the art displays and present about it to the Seniors. 3. City Obligations a. Authorize Organization to install and setup the artwork exhibits for the duration of the MOU. b. Survey and establish the original condition and state for each of the location(s) prior to the installation of the artworks. c. Provide staff services and support, if needed, including room setup, audio, visual, and technical setup for the possible intergenerational event. 4. Organization Obligations a. Coordinate with City staff on the location(s) for the Program. b. If the opportunity arises, coordinate with City staff and the affiliated school to host an intergenerational event for the elementary school students to unveil and present their artwork to the Seniors at the Senior Center. c. Transport, set up, and install the artworks at the pre-determined location(s). All installation work, including the materials required and costs associated with the installation, will be paid for by the Organization. d. Ensure the displayed artwork is safe and secure and in good physical condition. e. Provide labels for each displayed piece of art. f. Take down artwork on the pre-determined day and time. The complete removal of the artwork and total restoration of the display site(s) to its original condition or state prior to installation will be covered by the Organization and evaluated by the City. If the restoration is determined insufficient, Organization agrees to cover any additional costs incurred. 5. Compensation a. The services described above are provided by the Parties as a service to the community. Unless otherwise mutually agreed upon in writing by the Parties, the Parties will not compensate (i.e. provide remuneration to) each other for the services described above. 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 files 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: Rachelle Sander Contact Info: (408) 777-3131 RachelleS@cupertino.org To Cupertino Rotary Endowment Foundation: PO Box 1101 Cupertino, CA 95015 Attention: Kathleen Yates Contact Info: (408) 833-0456 kbyates@sbcglobal.net 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 Cupertino Rotary Endowment Foundation By Name Title Date APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date Kathleen B. Yates Kathleen B. Yates Fund Devlopment Officer Jun 7, 2023 Christopher D. Jensen Rachelle Sander Director of Parks and Recreation Jun 7, 2023 Jun 7, 2023 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 $1,000,000 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. The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $ UMBRELLA LIAB EXCESS LIAB INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS PERSTATUTE OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO OWNED SCHEDULED HIRED NON-OWNEDAUTOS ONLY AUTOS AUTOS ONLY AUTOS ONLY COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ 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. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: 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. 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). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: INSURED PHONE(A/C, No, Ext): PRODUCER ADDRESS:E-MAIL FAX(A/C, No): 630-285-4062 CONTACTNAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Arthur J. Gallagher Risk Management Services, Inc. 2850 Golf Road Rolling Meadows IL 60008 All Active US Rotary Clubs & Districts ATTN: Risk Management Dept. 1560 Sherman Ave. Evanston, IL 60201-3698 Westchester Surplus Lines Insurance &RPpan\10172 Ali Sulita 1-833-3ROTARY rotary@ajg.com 899307648 A G73578917 001 7/1/2022 7/1/2023 2,000,000 500,000 2,000,000 4,000,000 4,000,000 X X X X Liquor Liability Included A X X G73578917 001 7/1/2022 7/1/2023 2,000,000 USA THIS CERTI 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 caused in whole or in part by the acts or omissions of the insured. < 127 $33LI&$%L( 127 $33LI&$%L( 06/01/2023 CREF and City MOU - Cupertino Rabbits Final Audit Report 2023-06-08 Created:2023-06-06 By:Kevin Khuu (KevinK@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAH3w9jKdjDkHHvYoJElNnlnzg_EFgt2no "CREF and City MOU - Cupertino Rabbits" History Document created by Kevin Khuu (KevinK@cupertino.org) 2023-06-06 - 11:48:21 PM GMT- IP address: 64.165.34.3 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2023-06-06 - 11:53:40 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2023-06-07 - 10:57:50 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to kbyates@sbcglobal.net for signature 2023-06-07 - 10:57:52 PM GMT Email viewed by kbyates@sbcglobal.net 2023-06-07 - 11:50:42 PM GMT- IP address: 104.28.111.137 Signer kbyates@sbcglobal.net entered name at signing as Kathleen B. Yates 2023-06-07 - 11:52:35 PM GMT- IP address: 67.161.71.6 Document e-signed by Kathleen B. Yates (kbyates@sbcglobal.net) Signature Date: 2023-06-07 - 11:52:37 PM GMT - Time Source: server- IP address: 67.161.71.6 Document emailed to christopherj@cupertino.org for signature 2023-06-07 - 11:52:38 PM GMT Email viewed by christopherj@cupertino.org 2023-06-07 - 11:54:29 PM GMT- IP address: 104.47.74.126 Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen 2023-06-07 - 11:54:45 PM GMT- IP address: 64.165.34.3 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2023-06-07 - 11:54:47 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Rachelle Sander (rachelles@cupertino.org) for signature 2023-06-07 - 11:54:48 PM GMT Email viewed by Rachelle Sander (rachelles@cupertino.org) 2023-06-07 - 11:55:11 PM GMT- IP address: 104.47.73.254 Document e-signed by Rachelle Sander (rachelles@cupertino.org) Signature Date: 2023-06-07 - 11:55:30 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2023-06-07 - 11:55:31 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2023-06-08 - 0:30:20 AM GMT- IP address: 104.47.73.126 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2023-06-08 - 0:30:28 AM GMT - Time Source: server- IP address: 67.188.176.248 Agreement completed. 2023-06-08 - 0:30:28 AM GMT