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HomeMy WebLinkAboutC-7104-1 - MOU for Use of City Facilities4ti MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF NEWPORT BEACH AND COASTLINE REGIONAL OCCUPATIONAL PROGRAM FOR USE OF CITY FACILITIES THIS MEMORANDUM OF UNDERSTANDING ("MOU") is made and entered into as of this 20th day of June, 2017 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City'), and COASTLINE REGIONAL OCCUPATIONAL PROGRAM, a State Funded Public Education Program ("Organization"), whose address is 1001 Presidio Square, Costa Mesa, CA 92626 and is made with reference to the following: RECITALS A. 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 City. B. Organization desires to utilize City facilities for career preparation instruction and internship. C. City and Organization desire to enter this MOU to set forth the responsibilities of each party regarding such use. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this MOU shall commence on the Effective Date and shall terminate on May 31, 2022, unless terminated earlier as set forth herein. 2. DUTIES OF CITY The City intends to undertake the following activities pursuant to this MOU: 2.1 City shall permit the use of the City's facilities, consistent with the terms and conditions of this MOU. 2.2 City shall not be required to compensate Organization. 3. DUTIES OF ORGANIZATION The Organization intends to undertake the following activities pursuant to this MOU: 3.1 Organization shall abide by, and acknowledges receipt of, the current version of the Use Procedure and Classroom Guidelines attached hereto as Exhibit A and incorporated herein by reference ("Use Procedure"). COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page 1 3.2 Cooperate with City requests regarding the use of its facilities. 3.3 Organization shall not be required to compensate City. 4. ADMINISTRATION This MOU will be administered by the Human Resources Department. City's Human Resources Director or designee shall be the Project Administrator and shall have the authority to act for City under this MOU. The Project Administrator shall represent City in all matters pertaining to this MOU. 5. INSURANCE Without limiting Consultant's indemnification of City, and prior to use of City's facilities, Organization shall obtain, provide and maintain at its own expense during the term of this MOU or for other periods as specified in this MOU, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit B, and incorporated herein by reference. 6. HOLD HARMLESS 6.1 To the fullest extent permitted by law, Organization shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the facilities, and other property not owned by City upon which Organization uses and other property as contemplated herein (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this MOU, Organization's presence or activities conducted in the facilities (including, but not limited to, the negligent and/or willful acts, errors and/or omissions of Organization, its principals, officers, agents, players, employees, vendors volunteers, suppliers, consultants, contractors, anyone employed directly or indirectly by or associated in any way with any of them or for whose acts they may be liable or any or all of them). 6.2 Notwithstanding the foregoing, nothing herein shall be construed to require Organization to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this MOU. This indemnity 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 the Organization. COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page 2 6.3 To the fullest extent permitted by law, City shall indemnify, defend and hold harmless Organization, its boards and commissions, officers, agents, volunteers, employees, and students (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this MOU, City's presence or activities conducted in the facilities (including, but not limited to, the negligent and/or willful acts, errors and/or omissions of City, its principals, officers, agents, players, employees, vendors volunteers, suppliers, consultants, contractors, anyone employed directly or indirectly by or associated in any way with any of them or for whose acts they may be liable or any or all of them). 6.4 Notwithstanding the foregoing, nothing herein shall be construed to require City to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this MOU. This indemnity 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 the City. 7. HOURS Organization shall ensure that each student shall not work more than 960 hours during each City fiscal year. Organization shall be responsible for monitoring the hours of students to ensure full compliance. 8. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK All students must submit to and pass a criminal background investigation by providing a complete set of fingerprints to City at least seven (7) calendar days prior to participating in the Community Classroom. Fingerprints may be required to be updated every five (5) years. 9. TRANSPORTING OF STUDENTS City acknowledges and agrees that City employees transporting students as part of this Agreement will have a clear criminal background check prior to transporting any students and will not transport any student without at least three (3) people total in the vehicle, at least one of which is a City employee and all of which are affiliated with City or Organization. 10. NOTICES 10.1 All notices, demands, requests or approvals to be given under the terms of this MOU shall be given in writing, and conclusively shall be deemed served when COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page 3 delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Organization to City shall be addressed to City at: Attn: Human Resources Director Human Resources Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 Phone: 949-644-3154 10.2 All notices, demands, requests or approvals from City to Organization shall be addressed to Organization at: Attention: Lisa Snowden Coastline Regional Occupational Program 1001 Presidio Square Costa Mesa, CA 92626 Phone: 714-979-1955 x2241 Email: Isnowden(a)coastlinerop.net 11. STANDARD PROVISIONS 11.1 Recitals. City and Organization acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this MOU. 11.2 Compliance with all Laws. Organization shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 11.3 Waiver. A waiver by either party 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, whether of the same or a different character. 11.4 Integrated Contract. This MOU 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 herein. 11.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this MOU and any attachments attached hereto, the terms of this MOU shall govern. COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page 4 11.6 Interpretation. The terms of this MOU shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the MOU or any other rule of construction which might otherwise apply. 11.7 Amendments. This MOU may be modified or amended only by a written document executed by both Organization and City and approved as to form by the City Attorney. 11.8 Severability. If any term or portion of this MOU is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this MOU shall continue in full force and effect. 11.9 Controlling Law and Venue. The laws of the State of California shall govern this MOU and all matters relating to it and any action brought relating to this MOU shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 11.10 Equal Opportunity Employment. The parties represent that they are equal opportunity employers and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 11.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this MOU, the prevailing party shall not be entitled to attorneys' fees. 11.12 Counterparts. This MOU may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page 5 IN WITNESS WHEREOF, the parties have caused this Memorandum of Understanding to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp e"np City Attorney ATTEST: Da By V ijy t itl rK CITY OF NEWPORT BEACH, A California Municipal Corporation Date: (' 4 ,17 By: k""W Barbara J. Salvini Human Resources Director ORGANIZATION: Coastline Regional Occupational Program, a State Funded Public EducationPr gram Date: (0y�7 Carol Hume Superintendent [END OF SIGNATURES] Attachments: Exhibit A — Use Procedure and Classroom Guidelines Exhibit B — Insurance Requirements COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page 5 EXHIBIT A USE PROCEDURE All career preparation instruction and internship held at City facilities shall be known as a "Community Classroom" and shall be conducted pursuant to Education Code sections 51769, 46300, 52372, 52372.1, and Sections 10090-10092 of Title 5 of the California Code of Regulations, and shall be in accordance with the Individualized Training Plan for each enrolled student, which includes specific performance objectives and a statement of expected time required for attainment of each objective. All students of the Organization enrolled in engineering conducted in the Community Classroom shall be under the immediate supervision and control of an instructor of the Organization who holds a valid California Teaching Credential authorizing the subject to be taught. (See definition of immediate supervision below.) No student enrolled in career preparation instruction and internship shall replace an employee of the Community Classroom management or cause the employee hours to be reduced, nor shall the student's training activities preclude the hiring of additional employees. Trainees involved in a community classroom activity shall not receive monetary compensation by either company or Organization during the student's participation. Organization Community Classroom students are covered by the Organization's workers' compensation insurance. CLASSROOM GUIDELINES Definition and Purpose A Community Classroom is a site or a series of physical locations, public or private, in which career preparation training programs are conducted. A Community Classroom extends students' learning opportunities by utilizing sites and facilities other than those of the public schools. Immediate Supervision/Certificated Instruction For purposes of Community Classroom training described in Education Code Section 52372.1, "immediate supervision" means pupil participation in an unpaid internship experience. The supervisor of the training site and certificated Organization personnel share the responsibility for the supervision of the internship experience which is outlined in a Training Agreement and Individualized Training Plan, for each enrolled student. Roles for Others There may be persons designated within the Community Classroom location who will help provide the students with tools, instructional materials, procedures, safety equipment, and training experiences. These persons cannot assume the certificated instructor's responsibilities for directing and monitoring the learning process of each student. COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page A-1 Individual Training Plan Each student must have a written Individualized Training Plan describing specific skills the student will be expected to learn. Student/Student/Instructor Interaction The instructor shall visit students at Community Classroom sites at least once every ten (10) hours to observe training activities. Dates, times, and observations are to be recorded by the instructor on Individualized Training Plans. The student shall be rotated to learn other competencies as proficiency is attained. Employment vs. Training A student who is hired by a company designated as a Community Classroom shall not continue to train at that site in the same training area where he/she is employed. Regular Employees vs. Students No student may displace or reduce the number of work hours of a paid employee, nor shall the student's training activities preclude the hiring of new paid employees. However, it is appropriate for students to train under close observation of a qualified paid employee. Workers' Compensation For purposes of this Agreement, students enrolled in career preparation classes held in the community are considered to be employees of the school system. Organization's workers' compensation and liability insurance coverage is provided during scheduled training hours when students are authorized by both parties to use City facilities, pursuant to the terms and conditions of this Agreement. No Employment Guarantee The student cannot be guaranteed a job at the conclusion of the training period. COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page A-2 EXHIBIT B INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Organization's indemnification of City, and prior to use of City's sports fields or athletic facilities, Organization shall obtain, provide and maintain at its own expense during the term of this MOU, policies of insurance of the type and amounts described below and in a form satisfactory to City. Organization agrees to provide insurance in accordance with requirements set forth here. If Organization uses existing coverage to comply and that coverage does not meet these requirements, Organization agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements A. Workers' Compensation Insurance. Organization shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Organization shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Organization shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, one million dollars ($1,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, include participants and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Organization shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Organization arising out of or in connection with Work to be performed COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page B-1 under this MOU, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subroqation. All insurance coverage maintained or procured pursuant to this MOU shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the sports fields, athletic facilities, and other property not owned by City upon which Organization uses such sports fields, athletic facilities, and other property as contemplated by MOU or shall specifically allow Organization or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Organization hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the sports fields, athletic facilities, and other property not owned by City upon which Organization uses such sports fields, athletic facilities, and other property as contemplated by MOU shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with five (5) months' notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties The parties hereby agree to the following: A. Evidence of Insurance. Organization shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page B-2 certification of insurance shall be kept on file with City at all times during the term of this MOU. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the MOU to change the amounts and types of insurance required by giving Organization sixty (60) calendar days advance written notice of such change. C. Enforcement of MOU Provisions. Organization acknowledges and agrees that any actual or alleged failure on the part of City to inform Organization of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Organization or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this MOU, or to suspend Organization's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Organization or reimbursed by Organization upon demand. G. Timely Notice of Claims. Organization shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Organization's performance under this MOU, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Organization's Insurance. Organization shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection. COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page B-3 City's Insurance. The parties acknowledge that the City's automobiles are covered under City's Property Insurance. The City self -insures for Liability, with excess coverage above City's self-insured retention. COASTLINE REGIONAL OCCUPATIONAL PROGRAM Page B-4 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 6/21/17 Dept./Contact Received From: Rebecca Date Completed: 6/27/17 Sent to: Rebecca By: Alicia Company/Person required to have certificate: Coastline Regional Occupational Program Type of contract: All Other I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 711/16-7/1/17 A. INSURANCE COMPANY: Southern California ReUEF B. AM BEST RATING (A-: VII or greater): Pool Not Rated C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ❑ Yes ® No D. LIMITS (Must be $1M or greater): What is limit provided? 1M/ E. ADDITIONAL INSURED ENDORSEMENT— please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must (What is limits provided?) include): Is it included? (completed Operations status does F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste not apply to Waste Haulers or Recreation) ❑ Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND G. HIRED AND NON -OWNED AUTO ONLY: COMPLETED OPERATIONS ENDORSEMENT (completed H. NOTICE OF CANCELLATION: Operations status does not apply to Waste Haulers) ❑ Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No H. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 7/1/16-7/1/17 A. INSURANCE COMPANY: Southern CalifomiaReLiEF B. AM BEST RATING (A-: VII or greater) Pool Not Rated C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ❑ Yes ® No D. LIMITS- If Employees (Must be $11M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? 1M E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes ® No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 7/1/16-7/1/17 A. INSURANCE COMPANY: Southern California ReLiEF B. AM BEST RATING (A-: VII or greater): Pool Not Rated C. ADMITTED Company (Must be California Admitted): ❑ Yes ® No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) 1M F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED fV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK Approved: Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 6/27117 Date ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _; Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Risk Management approval needed due to Southern California ReLiEF (JPA): GL Auto & WC carrier not being rated Sheri approved 6/26/17 Approved: Risk Management * Subject to the terms of the contract.