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HomeMy WebLinkAbout2020 CON ICF Center for Cross Border Philanthropy, D.B.A. Olivewood Gardens and Learning Center - Community Garden• CALIFORt4I* NATIONAL CITV X' MAINTENANCE AND OPERATING AGREEMENT FOR A COMMUNITY GARDEN AT PARADISE CREEK EDUCATIQNAL PARK by and between CITY OF NATIONAL CITY • and ICF CENTER FOR CROSS BORDER PHILANTROPY, D.B.A. OLIVEWOOD GARDENS & LEARNING CENTER Dated as of August 4, 2020 SECTION HEADING Recitals ARTICLE 1 ARTICLE 2 ARTICLE 3 ARTICLE 4 ARTICLE 5 ARTICLE 6 ARTICLE 7 ARTICLE 8 ARTICLE 9 ARTICLE 10 ARTICLE 11 ARTICLE 12 ARTICLE 13 ARTICLE 14 ARTICLE 15 ARTICLE 16 ARTICLE 17 ARTICLE 18 ARTICLE 19 ARTICLE 20 ARTICLE 21 ARTICLE 22 TABLE OF CONTENTS Terms of Agreement The Premises Permitted Uses Utilities Repairs and Maintenance Improvements; Alterations Mechanics' Liens; Stop Notices Taxes Indemnifications and Insurance Termination Hazardous Materials Assignment Defaults by OPERATOR or by City; Remedies Abandonment Damage or Destruction Eminent Domain Sale or Mortgage by City City's Right of Access Notices Nondiscrimination Records, Accounts, and Audits Administrative Provisions PAGE 1 2 2 3 5 5 6 7 8 8 12 12 14 14 15 15 16 17 17 17 18 18 19 MAINTENANCE AND OPERATING AGREEMENT FOR A COMMUNITY GARDEN AT PARADISE CREEK EDUCATIONAL PARK BY AND BETWEEN THE CITY OF NATIONAL CITY AND ICF CENTER FOR CROSS BORDER PHILANTROPY, D.B.A. OLWEWOOD GARDENS & LEARNING CENTER This Maintenance and Operating Agreement for a Community Garden ("Community Garden") at Paradise Creek Educational Park (the "Agreement") is entered into as of August 4, 2020 by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and ICF Center for Cross -Border Philanthropy a California non-profit corporation, d.b.a. Olivewood Gardens & Learning Center ("OPERATOR"). RECITALS A. WHEREAS, the CITY owns the real property commonly known as Paradise Creek Educational Park located in National City, California. B. The CITY desires to increase the production and distribution of locally grown food within the community, as a means to improve access to healthy food and the quality of life for National City residents, consistent with the National City General Plan. C. OPERATOR seeks to develop a Community Garden in National City and increase the production and distribution of locally grown food to benefit the well-being of National City residents. D. The CITY has determined that OPERATOR is a qualified, non-profit experienced in empowering students and families from diverse backgrounds to be healthy and active citizens through organic gardening, environmental stewardship, and nutrition education. E. The CITY has identified a site for a Community Garden located within Paradise Creek Educational Park. The CITY desires to maximize public access and enhance recreational opportunities within Paradise Creek Educational Park; the development of a community garden provides an optimal use of the site and increases public access and recreational opportunities. F. The CITY finds that the development of a community garden at Paradise Creek Educational Park enhances the public's pleasure and enjoyment of the park and OPERATOR agrees not to exclude members of the public. G. The CITY wishes to have OPERATOR maintain and operate a Community Garden for the community's benefit, located on a portion of Paradise Creek Educational Park as the described in Exhibit A (collectively, the "Premises"). Maintenance & Operating Agreement Page 1 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center NOW, THEREFORE, in consideration of the foregoing facts, and in consideration of the promises and covenants hereinafter set forth, the parties agree as follows: 1.1 ARTICLE 1 TERM OF AGREEMENT Term. The Agreement shall be effective once the agreement has been executed with signatures and the Land Use Covenant has been recorded (the "Commencement Date"). The term of the agreement shall be for twelve (12) months from the Commencement Date. 1.2 Option to Extend Term. If OPERATOR is not in default of any provision of this Agreement upon the expiration of the term described in Article 1.1, the City Manager or designee and OPERATOR may extend the Term for up to two (2) additional twenty-four (24) month periods. The initial term, and any extension pursuant to this Article 1.2, shall collectively be referred to hereafter as "Term." ARTICLE 2 THE PREMISES 2.1 License for Use of Premises. For the purpose of operating the public center for the benefit of the residents and visitors of National City, the CITY grants OPERATOR a revocable license to enter and operate the Premises, subject to the covenants and conditions hereinafter set forth, as of the Commencement Date. 2.1.1 Parking. OPERATOR shall neither have reserved parking nor exclusive on -site parking. 2.2 Ownership of Personal Premises and Improvements. The rights and obligations of the parties regarding the ownership of personal property and improvements on the Premises shall be as follows: 2.2.1 Ownership of Personal Premises. All improvements existing on the Premises (Improvements), together with all fixtures permanently attached to the Premises (Fixtures), as of the Commencement Date shall remain the property of the CITY during the Term. OPERATOR shall not remove any Improvements or Fixtures from the Premises and shall also not waste, destroy, or modify any Improvements or Fixtures on the Premises, except as permitted by this Agreement. 2.2.2 Ownership of Improvements and Equipment. All improvements made to the property by OPERATOR shall become the property of the CITY. This includes, but is not limited to, any greenhouse, shed, entrance arbor, kiosk, windmill/water tower, outdoor kitchen, irrigation, raised beds, composting area, fruit trees, or established produce OPERATOR may install at the Premises. All equipment, Maintenance & Operating Agreement Page 2 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center tools, and gardening supplies brought to the Premises by the OPERATOR shall remain property of OPERATOR. ARTICLE 3 PERMITTED USE 3.1 Purpose. The purpose of this Agreement is to create a collaborative project where children, parents, and residents will share the maintenance and products of the garden located on the Premises, including healthy fresh fruits and vegetables. The purpose of this Agreement is also to benefit the National City community. "Benefit", as described in the Recitals, and in this Article 3, means providing programming and services that: (a) improve the health and quality of life of National City residents; (b) provide National City residents access to fresh or organic healthy foods; (c) foster community interaction through the cultivation of fresh food; and (d) offer educational opportunities through teaching the importance of environmental sustainability. 3.2 Programs. OPERATOR will operate the Premises by providing for and facilitating proposed programs covering a variety of topics, some of which may include basic gardening, composting, food production, food supply chain, vermiculture, permaculture, farm -to -table, and water conservation. 3.2.1 Gardening Principles and Practices. OPERATOR will follow earth - friendly principles and practices by selecting appropriate plants, nurturing the soil, practicing responsible pest management, protecting wildlife, conserving water, protecting water quality, conserving energy, protecting air quality, reducing waste and growing food. OPERATOR may use Organic Materials Review Institute listed herbicides and insecticides as part of an integrated pest management program developed by OPERATOR. 3.2.2 Good Faith Meet and Confer. By written notice referring to this Article, either party may inform the other of any dispute or action perceived to conflict with the terms of this Agreement ("Dispute"). Upon receipt of such a notice, the other party shall respond in writing within ten (10) business days. The parties shall cooperate by providing information and answering questions to facilitate an informed discussion to resolve the Dispute. Such cooperation may involve a site visit by representatives of both parties to inspect the Premises. If the parties are unable to agree between themselves on a resolution within (30) business days of the responding party's written response to any notice, resolution of such Dispute shall then proceed pursuant to Article 13. 3.3 Hours of Operation. OPERATOR will open the Premises to the public on Saturdays and Sundays from 8:00 am to sunset so the public may enjoy the Premises and assist with minor gardening or interact with onsite volunteers. The Premises shall be open to the public Monday through Friday by appointment or for scheduled programs. No member of the public shall be denied entry to the Premises for any discriminatory basis described in Article 20. Maintenance & Operating Agreement Page 3 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 3.4 Service Fees. OPERATOR shall not provide any programs and services for profit. However, OPERATOR may charge user fees for classes and programs offered to school groups and the community to offset costs incurred by OPERATOR in its maintenance and operation of the Premises. Any fees charged under this Article 3.4 must be approved by the City Manager or designee. The public shall pay no fee to gain access to the Premises Saturday through Sunday during hours of operation. 3.5 Reporting by OPERATOR. OPERATOR shall provide quarterly reports to the City Manager recording the total number of: (a) National City residents, participants, and volunteers that participate in OPERATOR events; (b) events and programs coordinated; and (c) capital projects completed. These quarterly reports shall also explain any of OPERATOR's operating and maintenance plans and any other pertinent statistics regarding OPERATOR's use of the Premises. Upon reasonable notice by the City Manager, or designee, OPERATOR may be required to present all information required by this Article 3.5 at a meeting of the City Council. 3.6 Annual Budget. OPERATOR shall provide the CITY with a proposed budget for OPERATOR's estimated maintenance and operating expenses for the Premises by July 1st of each year during the Term. OPERATOR shall provide to the CITY an accounting of actual expenses, revenues and grants received for operation of the Premises, forty-five (45) days following June 30 of each year during the Term. 3.7 Volunteer Management. OPERATOR may utilize volunteers to operate the Premises, and in providing the projects and services required by this Agreement. OPERATOR is responsible for recruiting, training, and managing all volunteers on the Premises. Volunteers are considered the responsibility of OPERATOR for the purpose of workers compensation and general liability. 3.8 Alcohol Use. OPERATOR, or third parties with permission from OPERATOR, may not hold events on the Premises where alcoholic beverages are served. Alcoholic beverages are not allowed on the Premises. 3.9 Compliance with Laws. OPERATOR, at its sole expense, shall procure, maintain, and hold available for the CITY'S inspection any governmental license or permit required for the proper and lawful conduct of OPERATOR's operation of the Premises. OPERATOR shall not use the Premises for any use or purpose in violation of the laws of the United States of America, or the laws, ordinances, regulations, orders, or requirements of the State of California, the County of San Diego, the CITY, or of other lawful regulatory authorities. OPERATOR shall, at its sole expense, comply with all applicable statutes, laws, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the Term (Laws or Orders), regulating the use by OPERATOR of the Premises. 3.9.1 Compliance with Regulatory Agency Directives. OPERATOR shall not disturb the soil cap located above remediated soil at the Premises. OPERATOR shall Maintenance & Operating Agreement Page 4 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center comply with any regulatory agency's directives or restrictions regarding the soil cap. OPERATOR shall also comply with any conditions imposed on the Premises through a recorded Land Use Covenant, which will be incorporated into this agreement once received. The City may terminate this Agreement if: (a) OPERATOR violates any provision referenced in Article 3.10.1; (b) the State of California or any other governmental agency does not allow the Premises to be used as a community garden. 3.9.2 There are various restrictions on the Premises that include, but are not limited to, conveyance of the property, soil management, prohibited activities, and land - use. The OPERATOR must comply with the restrictions and limitations in Exhibit B. 3.9.3 CEQA Compliance. The Department of Toxic Substances Control is in the process of completing a CEQA review for the new improvements made to the Paradise Creek Educational Park which include the development of the Community Garden. In the event that DTSC does not approve the use of the Community Garden, the City may terminate this Agreement. 3.9.4 Cannabis Cultivation Prohibited. Notwithstanding any other provision in this Agreement, or in this Article 3.10, OPERATOR shall neither: (a) cultivate; (b) allow the cultivation of; (3) sell; nor (4) allow the sale of cannabis at the Premises. ARTICLE 4 UTILITIES 4.1 Utility Services. The CITY shall pay for electricity, water, and trash services at the Premises. If the CITY determines, in its sole discretion, that OPERATOR is negligent in its use of the utilities, CITY may hold a good faith meet and confer meeting with OPERATOR to discuss its utilities usage. ARTICLE 5 REPAIRS; MAINTENANCE 5.1 OPERATOR's Repair and Maintenance Obligations. OPERATOR acknowledges that it has made a thorough inspection of the Premises and that it accepts the Premises "as -is" as of the construction completion date. At OPERATOR's own cost and expense, OPERATOR shall repair, replace, and maintain the Premises in good, tenable condition as necessary. OPERATOR shall maintain the Premises in an accessible manner for use by individuals with disabilities and comply with federal and state law regarding accessibility, including but not limited to the Americans with Disabilities Act and California's Disabled Persons Act. Other than repair work in emergency situations not exceeding Three Thousand and no/100 Dollars ($3,000), OPERATOR shall not perform any repair work without the CITY's prior written consent. As used in this Article 5.1, "emergency" means a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services. All emergency repairs performed by the City on the Premises are governed by Public Contract Code Section 22050. OPERATOR's obligations under Maintenance & Operating Agreement Page 5 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center this Article shall apply regardless of whether the repairs, restorations, and replacements are ordinary or extraordinary, foreseeable or unforeseeable, capital or noncapital, the fault or not the fault of OPERATOR, its agents, employees, volunteers, invitees, visitors, or contractors. All replacements made by the OPERATOR shall be of like size, kind, and quality to the items replaced. 5.2 CITY Repair and Maintenance Obligations. For any repair and maintenance work exceeding Three Thousand and no/100 Dollars ($3,000), the CITY will consider the nature and priority of the work and available funding to determine whether the CITY may pay for such repairs. However, the CITY is under no obligation to replace any equipment the CITY purchases or installs after such equipment exceeds its useful life. The CITY may also provide mulch from its surplus one (1) to two (2) times per year; however, the amount and type will be determined by the CITY based on availability. 5.3 CITY Right to Inspect; CITY Not Obligated to Repair or Maintain. OPERATOR shall permit the CITY to enter the Premises at all times during usual hours of operation, or other hours in case of an emergency, to inspect the Premises. Any entry pursuant to this Article 5.3 shall not unreasonably interfere with OPERATOR's operation of the Premises. However, nothing contained in this Article 5 shall create any duty on the part of the CITY to do any work which, under any provision of this Agreement, OPERATOR may be required to do. ARTICLE 6 IMPROVEMENTS; ALTERATIONS 6.1 Improvements by OPERATOR. OPERATOR shall be responsible for all aspects of planting and supplying materials for the Premises which may include, for example: premium soil, potted fruit trees, seeds, seedlings, fertilizers, tools, irrigation supplies, and greenhouse supplies. Any improvements made by OPERATOR shall be accessible for use by individuals with disabilities and comply with federal and state law regarding accessibility, including but not limited to the Americans with Disabilities Act and California's Disabled Persons Act. OPERATOR will secure funding through grants and other means to fund improvements to the Premises. 6.2 Improvements by CITY. The CITY may undertake certain improvements at the Premises, in this Article 6.2. The CITY's ability to undertake any improvements is dependent upon its annually -approved budget, as well as the annually -approved capital improvement program. The CITY, at its sole discretion, may undertake those improvements described in this Article 6.2 at the CITY's own cost and expense. No representations, warranties, or assurances are made that funding will exist for the following capital improvement projects: 6.3 Alterations. OPERATOR may alter, replace, add to, change, or construct additional improvements to the Premises (collectively, "Alterations") as OPERATOR may find necessary or convenient for its operation of the Premises. Any Alterations performed by OPERATOR under this Article 6.3 shall be performed: (a) at OPERATOR's sole cost Maintenance & Operating Agreement Page 6 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center and expense; (b) with the CITY's prior written consent; and (c) in accordance with construction plans submitted to and approved by the CITY. 6.4 Construction Permits and Licenses. At all times during the Term, OPERATOR shall procure, at its sole cost and expense, all permits and licenses that are necessary or required from any local governmental agency for the proposed construction of any Alterations. The CITY may, in its sole discretion, waive CITY permitting fees where applicable. 6.5 Proposed Plans. In its sole discretion, the CITY may require OPERATOR to do any of the following: 6.5.1 Submit a complete set of proposed plans of any Alterations to the CITY; 6.5.2 Apply for and receive a permit from the Building Department to complete any Alterations; 6.5.3 Within sixty (60) days of a written request, furnish the CITY with a complete set of "as -built" plans for any CITY -approved Alterations. 6.6 Prevailing Wages. OPERATOR shall comply with prevailing wage statutes for any work not performed by volunteers. ARTICLE 7 MECHANICS' LIENS; STOP NOTICES 7.1 Mechanics' Liens; Stop Notices. OPERATOR shall pay, or cause to be paid, the total cost and expense of all works of improvement, as that phrase is defined in the Mechanics Lien Law in effect at time and place of construction, done by it, or caused to be done by it, on the Premises, and for all materials furnished for or in connection with any such work. If any lien or stop notice is filed against the Premises, OPERATOR shall cause the lien or stop notice to be discharged of record within one hundred eighty (180) days after it is filed. OPERATOR shall indemnify, defend, and hold the CITY harmless from any and all liability, loss, damage, costs, attorneys' fees, and all other expenses on account of claims of lien of laborers, materialmen, or others for work performed, or materials or supplies furnished for OPERATOR or persons claiming under OPERATOR. 7.2 Notice of Lien or Stop Notice. Should any claim of lien or stop notice related to OPERATOR's work of improvement of the Premises be filed against the Premises, or any action be filed against the Premises, or any action affecting the title to the Premises be commenced, the party receiving notice of such lien or stop notice or action shall immediately give the other party written notice thereof. 7.3 Notice of Non -Responsibility. The CITY or its representatives shall have the right to post and keep posted on the Premises notices of Non -Responsibility or such other notices which the CITY may deem to be proper for the protection of the CITY's interest in the Maintenance & Operating Agreement Page 7 of 27 City of National City and August 4, 2020 ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center Premises. OPERATOR shall, before the commencement of any work which might result in any such lien or stop notice, give to the CITY written notice of its intention to do so with sufficient time to enable posting of such notices. ARTICLE 8 TAXES 8.1 Definition. "Taxes" shall mean all taxes, governmental bonds, special assessments, charges, or transfer taxes, license and transaction fees, including, but not limited to, (a) any state, local, federal income tax, or any real or personal property tax, (b) increases in taxes attributable to OPERATOR's operation of the Premises, or (c) any taxes which are essentially payments to a governmental agency, other than the CITY, for the right to make improvements to the Premises. 8.2 Possessory Interest. Notwithstanding Article 2.1, OPERATOR acknowledges that this Agreement may create a possessory interest subject to property taxation and that OPERATOR may be subject to the payment of taxes levied on such interest. OPERATOR shall pay, before delinquency, all taxes, assessments, and fees assessed or levied upon the Premises. 8.3 Responsibility for Payment of Taxes. The CITY shall not be obligated to pay any Taxes accruing against any interest in OPERATOR's use of the Premises at any time before and during the Term. OPERATOR shall pay any Taxes that accrue against any interest in their use of the Premises. Additionally, OPERATOR shall pay any Taxes levied upon any Improvements, Fixtures, or Personal Premises located on the Premises to the extent such Taxes result from OPERATOR's operations or other activities held upon, or in connection with, the Premises. ARTICLE 9 INDEMNIFICATION AND INSURANCE 9.1 OPERATOR Indemnity. The CITY shall not be liable for, and OPERATOR shall defend, indemnify, and hold harmless the CITY, its officers, officials, agents, employees, and volunteers from any and all claims, costs, liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims resulting from, related to, or arising out of OPERATOR's improvement, operation or use of the Premises, or arising either directly or indirectly from any act, error, omission, or negligence of OPERATOR or its contractors, licensees, invitees, members, agents, servants or employees; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, officials, employees, or volunteers. CITY will cooperate reasonably in the defense of any action, and OPERATOR shall employ competent counsel, reasonably acceptable to the City Attorney. Maintenance & Operating Agreement Page 8 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 9.1.1 Third Party Indemnity. OPERATOR shall not invite third party organizations onto the Premises until said third party organization furnishes CITY a written agreement in which it indemnifies and holds CITY harmless, upon terms satisfactory to CITY. 9.1.2 Waivers from Third Parties. OPERATOR agrees to obtain from all guests, invitees, or third party organizations whose participants visit the Premises, a waiver of liability and hold harmless agreement upon terms satisfactory to the CITY. 9.1.3 Immunity. Consistent with Civil Code section 846.2, no cause of action shall arise against the CITY for injuries to any person who has been expressly invited onto the Premises to glean agricultural or farm products for charitable purposes, unless that person's injuries were caused by the gross negligence or willful and wanton misconduct of OPERATOR, in which case OPERATOR expressly indemnifies the CITY pursuant to this Article 9. The immunity provided by this section does not apply if the owner, tenant, or lessee received any consideration for permitting the gleaning activity. 9.2 Employee Payments & Indemnification. 9.2.1 OPERATOR'S employees providing service under this Agreement shall not: (1) qualify for any compensation and benefit under the California Public Employees Retirement System ("PERS"); (2) be entitled to any benefits under PERS; (3) enroll in PERS as an employee of CITY; (4) receive any employer contributions paid by CITY for PERS benefits; or (5) be entitled to any other PERS-related benefit that would accrue to a CITY employee. OPERATOR's employees hereby waive any claims to benefits or compensation described in this Article 9.2. This Article 9.2 applies to OPERATOR notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary. 9.2.2 PERS Eligibility Indemnification. If OPERATOR's employee(s) providing services under this Agreement claims, or is determined by a court of competent jurisdiction or PERS to be eligible for enrollment in PERS of the CITY, OPERATOR shall indemnify, defend, and hold harmless CITY for the payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the CITY. 9.2.3 Limitation of CITY Liability. The payment made to OPERATOR under this Agreement shall be the full and complete compensation to which OPERATOR Maintenance & Operating Agreement Page 9 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center and OPERATOR's officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither OPERATOR nor OPERATOR's officers, employees, agents, and subcontractors are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to CITY employees. The CITY will not make any federal or state tax withholdings on behalf of OPERATOR. The CITY shall not be required to pay any workers' compensation insurance on behalf of OPERATOR. 9.2.4 Indemnification for Employee Payments. OPERATOR agrees to defend and indemnify the CITY for any obligation, claim, suit, or demand for tax, retirement contribution including any contribution to PERS, social security, salary or wages, overtime payment, or workers' compensation payment which the CITY may be required to make on behalf of (1) OPERATOR, (2) any employee of OPERATOR, or (3) any employee of OPERATOR construed to be an employee of the CITY, for work performed under this Agreement. This is a continuing obligation that survives the termination of this Agreement. 9.3 Insurance. OPERATOR, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractors, and third -party organizations OPERATOR invites onto the Premises, to purchase and maintain throughout the Term, the following insurance policies: 9.3.1 Commercial General Liability Insurance, with minimum limits of $2,000,000 per occurrence and $4,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location." The Commercial General Liability required by this Article, and any other excess policy OPERATOR procures in connection with this Article, must include Sexual Misconduct Liability coverage as well as pesticide or herbicide applicator limited pollution coverage . 9.3.2 Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. 9.3.3 Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of OPERATOR's employees, and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. Maintenance & Operating Agreement Page 10 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 9.3.4 If OPERATOR has no employees subject to the California Workers' Compensation and Labor laws, OPERATOR shall execute a Declaration to that effect. The form of said Declaration shall be provided to OPERATOR by the CITY. 9.3.5 The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY's Risk Manager, at the address listed in Article 9.2.7 below, of cancellation or material change. 9.3.6 If required insurance coverage is provided on a "claims made" rather than "occurrence" form, OPERATOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. 9.3.7 The Certificate Holder for all policies of insurance required by this Article 9.3 shall be: City of National City c/o Risk Manager 1243 National City Boulevard National City, CA 91950-4397 9.3.8 Insurance shall be written with only insurers authorized to conduct business in California that hold a current policy holder's alphabetic and financial size category rating of not less than A: VIII according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent List of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements. 9.3.9 This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If OPERATOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 9.3.10 All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. CITY reserves the right to modify the insurance requirements of this Article 9.2, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. CITY shall provide (60) days' notice for OPERATOR to meet any modified insurance requirements. Maintenance & Operating Agreement Page 11 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 9.3.11 If OPERATOR maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY shall be entitled to the broader coverage or higher limits (or both) maintained by OPERATOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. ARTICLE 10 TERMINATION 10.1 This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to OPERATOR. During this 60-day period, OPERATOR shall perform all services in accordance with this Agreement. This Agreement may also be terminated immediately by the CITY, for cause, if OPERATOR materially breaches this Agreement, misrepresents information regarding the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. Termination with or without cause shall be effected by delivery of written Notice of Termination to OPERATOR as provided for in this Agreement. The CITY further reserves the right to immediately terminate this Agreement upon: (a) the filing of a petition in bankruptcy affecting OPERATOR; (b) a reorganization of OPERATOR for the benefit of creditors; or (c) a business reorganization, change in business name or change in business status of OPERATOR. ARTICLE 11 HAZARDOUS MATERIALS Hazardous Materials Laws; Definition. As used in this Article, the term "Hazardous Materials' Laws" means any and all federal, state or local laws or ordinances, rules, decrees, orders, regulations or court decisions (including the so-called "common law") relating to hazardous substances, hazardous materials, hazardous waste, toxic substances, environmental conditions on, under, or about the Premises, soil and ground water conditions, or other similar substances or conditions. The following legal authority is a non -exhaustive list of the legal authority that applies to the definition of the term "Hazardous Materials Laws": • The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C., Section 9601 et seq.) • The Hazardous Materials Transportation Act, as amended (49 U.S.C., Section 1801 et seq.), and • The Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C., Section 6901 et seq.) 11.2 Hazardous Materials - Definition. As used in this Article the term "Hazardous Materials" means any chemical, compound, material, substance or other matter that: Maintenance & Operating Agreement Page 12 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 11.2.1 is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious material, whether injurious or potentially injurious by itself or in combination with other materials; 11.2.2 is controlled, referred to, designated in or governed by any Hazardous Materials Laws; 11.2.3 gives rise to any reporting, notice or publication requirements under any Hazardous Materials Laws, or; 11.2.4 is any other material or substance giving rise to any liability, responsibility or duty upon the CITY or the OPERATOR with respect to any third person under any Hazardous Materials Law. 11.3 OPERATOR Representations and Warranties. OPERATOR represents and warrants that, during the Term or any extension thereof, OPERATOR shall comply with the following provisions of this Article unless otherwise specifically approved in writing by the CITY, subject to the terms and conditions of the OPERATOR's maintenance obligations provided elsewhere in this Agreement: 11.3.1 OPERATOR shall not cause or permit any Hazardous Materials to be brought, kept or used in or about the Premises by OPERATOR, its agents, employees, assigns, contractors or invitees, except as required by OPERATOR's permitted use of the Premises in the normal course of operations; 11.3.2 Any handling, transportation, storage, treatment, or usage by OPERATOR of Hazardous Materials that is to occur on the Premises following the Commencement Date shall be in compliance with all applicable Hazardous Materials Laws; 11.3.3 Any leaks, spills, release, discharge, emission or disposal of Hazardous Materials which may occur on the Premises following the Commencement Date shall be promptly and thoroughly cleaned and removed from the Premises by OPERATOR at its sole expense, and any such discharge shall be promptly reported in writing to the CITY, and to any other appropriate governmental regulatory authorities; 11.3.4 No friable asbestos shall be constructed, placed on, deposited, stored, disposed of, or located by OPERATOR on the Premises; 11.3.5 No underground improvements, including but not limited to treatment or storage tanks, or water, gas or oil wells shall be located by OPERATOR on the Premises without the CITY's prior written consent; Maintenance & Operating Agreement Page 13 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 11.3.6 OPERATOR shall promptly supply the CITY with copies of all notices, reports, correspondence, and submissions made by OPERATOR to the United States Environmental Protection Agency, the United Occupational Safety and Health Administration, and any other local, state or federal authority which requires submission of any information concerning environmental matters or hazardous wastes or substances pursuant to applicable Hazardous Materials' Laws; and 11.3.7 OPERATOR shall promptly notify the CITY of any liens threatened or attached against the Premises pursuant to any Hazardous Materials' Law. If such a lien is filed against the Premises, then, within the earlier of (i) twenty (20) days following such filing, or (ii) before any governmental authority commences proceedings to sell the Premises pursuant to the lien, OPERATOR shall either: (a) pay the claim and remove the lien from the Premises, or (b) furnish either: (1) a bond or cash deposit reasonably satisfactory to the CITY in an amount not less than the claim from which the lien arises, or; (2) other security satisfactory to the CITY in an amount not less than that which is sufficient to discharge the claim from which the lien arises. 11.3.8 At the end of this Agreement, OPERATOR shall surrender the Premises to the CITY free of any and all Hazardous Materials and in compliance with all Hazardous Materials' Laws affecting the Premises. ARTICLE 12 ASSIGNMENT 12.1 Assignment; CITY's Consent Required. OPERATOR shall not voluntarily or involuntarily assign or otherwise transfer all or any portion of its rights and duties under this Agreement without the City Manager's's prior written consent. For example, the City Manager must consent to any third party or parties that OPERATOR wishes to engage in providing special services or programming at the Premises. Any attempted assignment or transfer without the City Manager's prior written consent shall be void. ARTICLE 13 DEFAULTS BY OPERATOR OR BY CITY; REMEDIES 13.1 Events of Default; Remedies. The following sub -articles shall apply if either OPERATOR or the CITY neglects, fails to perform, or fails to observe any of their respective obligations under the terms, covenants, or conditions contained in this Agreement ("Default"): Maintenance & Operating Agreement Page 14 of 27 City of National City and August 4, 2020 ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 13.1.1 Thirty -Day Correction of Default. If either OPERATOR or the CITY determines that the other party is in Default, then the non -defaulting party must provide the defaulting party written notice of the Default and thirty (30) days to correct the Default. 13.1.2 Extended Correction of Default. If the defaulting party determines that more than thirty (30) days is required to correct the Default, the defaulting party must provide the other party written notice of the reasons why additional time is required to correct such Default. The defaulting party must use diligent efforts to correct a Default under this Article 13.1.2 and, in any case, must correct such Default within ninety (90) days from the date of the written notice of default. 13.1.3 Remedies for Failure to Correct Default. If the defaulting party fails to comply with Article 13.1.1. or 13.1.2, then the non -defaulting party may immediately terminate this Agreement. The defaulting party shall be liable to the non -defaulting party for any and all damages sustained by the non -defaulting party as a result of the defaulting parties' breach. ARTICLE 14 ABANDONMENT 14.1 Abandonment. OPERATOR shall not vacate or abandon the Premises at any time during the Term nor permit the Premises to remain unoccupied for a period of longer than five (5) consecutive days during the term of this Agreement. These provisions shall not apply if the Premises is closed and operation is temporarily discontinued therein on account of strikes, lockouts, acts of nature, or similar causes beyond the reasonable control of OPERATOR. Any exceptions must be submitted in writing to the City Manager or designee for approval. ARTICLE 15 DAMAGE OR DESTRUCTION 15.1 OPERATOR's Duty to Repair Casualty. OPERATOR shall, as expeditiously as reasonably possible, repair any damages to the Premises caused by fire, earthquake, or any other identifiable event of a sudden, unexpected, or unusual nature ("Casualty"), and repair, restore, and replace any such damaged or destroyed Fixtures, Improvements or Personal Premises ("Casualty Repairs"). Any Casualty Repairs made under this Article 15 are: (a) To be performed at OPERATOR's sole cost and expense; (b) To be performed except as otherwise provided in this Article 15; and are (c) Subject to all other terms and conditions of this Agreement. 15.2 Construction Provisions. In the event of any reconstruction of the Premises, Fixtures or Improvements required of OPERATOR pursuant to this Article, OPERATOR shall repair Maintenance & Operating Agreement Page 15 of 27 City of National City and August 4, 2020 ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center the Premises, and repair or rebuild such Fixtures and Improvements, to substantially the same condition they were in immediately preceding such Casualty. 15.3 No Abatement. In the event of reconstruction, replacement, or repair by OPERATOR pursuant to this Article, OPERATOR shall continue its operations on the Premises during any such period to the extent reasonably practicable from the standpoint of prudent business management, and in continuing compliance with applicable laws and regulations. OPERATOR shall not be entitled to any compensation or damages from CITY for: (a) loss of use of the whole or any part of the Premises; (b) OPERATOR's Personal Property; or (c) any inconvenience or annoyance occasioned by such damage, reconstruction, or replacement. 15.4 Major Destruction. Notwithstanding any of the foregoing provisions of this Article to the contrary, if, at any time after the Commencement Date, (a) the Improvements are damaged or destroyed to the extent of more than twenty-five percent (25%) of their replacement cost, or (b) the damage is such that the Improvements cannot be repaired and restored within one hundred and eighty (180) days after the Casualty, then OPERATOR shall have the right to terminate this Agreement upon thirty (30) days' prior written notice to the CITY. ARTICLE 16 EMINENT DOMAIN 16.1 Condemnation. OPERATOR may terminate this Agreement within twenty (20) days after the date that a condemning authority (by a party other than the CITY) takes possession of the Premises by delivery of written notice of such condemnation if: (a) If all of the Premises is taken under eminent domain proceedings; or (b) less than all of the Premises is taken under such eminent domain proceeding and the part taken substantially impairs the ability of OPERATOR to use the remainder of the Premises for the purposes permitted by this Agreement. In the absence of such written notice from a condemning authority, OPERATOR may terminate this Agreement within twenty (20) days after the condemning authority shall have taken possession. 16.2 Continuation of Operating Agreement after Condemnation. If this Agreement is not terminated by OPERATOR, it shall remain in full force and effect as to any portion of the Premises remaining, and this Agreement will end as of the date possession of the part taken by the public entity as to the part of the Premises that is taken. 16.3 Award. All monies awarded in any condemnation shall belong to the CITY. The CITY shall have no liability to OPERATOR for any award not provided by the condemning authority. Maintenance & Operating Agreement Page 16 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center ARTICLE 17 .SALE OR MORTGAGE BY CITY 17.1 Sale or Mortgage. The CITY may, pursuant to existing and subsequently enacted CITY ordinances and State laws, at any time, and without the consent of OPERATOR, vacate, sell, purchase, exchange, transfer, assign, lease, encumber or convey the CITY's interest in whole or in part, in the Premises (collectively referred to in this Article as a "Sale"). The CITY shall provide to OPERATOR written notice of the CITY's intent to a Sale or discontinuance pursuant to this Article at least ninety (90) days prior to said proposed transfer. 17.2 Release on Sale. From and after a Sale or discontinuance of the CITY's entire interest in the Premises, the CITY shall be released from all liability to OPERATOR and OPERATOR successors and assigns arising from this Agreement because of any act, occurrence, or omission of the CITY occurring after such Sale. ARTICLE 18 CITY'S RIGHT OF ACCESS 18.1 Right of Entry. CITY, its agents, employees, and contractors may enter the Premises at any time with or without notice to OPERATOR to: (a) respond to health and safety concerns; (b) inspect the Premises and Improvements; (c) determine whether OPERATOR is complying with its obligations in this Agreement (including its obligations with respect to compliance with Hazardous Materials Laws) (d) post notices of non -responsibility or similar notices (e) inspect the progress of construction of any improvement; or (f) make repairs that this Agreement requires or allows CITY to make, or make repairs to any adjoining space or utility services, or make repairs, alterations, or improvements to any other portion of the Premises All work enumerated in Article 18 must be done as promptly as reasonably possible and so as to cause as little interference to OPERATOR as reasonably possible. Personal storage space for volunteers of OPERATOR, the personal effects of OPERATOR volunteers and staff, and the OPERATOR volunteers and staff themselves are not subject to search by the CITY, absent cause. ARTICLE 19 NOTICES 19.1 Notices. Whenever in this Agreement it shall be required or permitted that notice or demand be given or served by either party to this Agreement to or on the other, such notice or demand shall be in writing, mailed or personally delivered to the other party at the addresses specified below. Mailed notices shall be sent by United States Postal Maintenance & Operating Agreement Page 17 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center Service, postage prepaid and shall be deemed to have been given, delivered, and received three (3) business days after the date such notice or other communication is posted by the United States Postal Service. All other such notices or other communications shall be deemed given, delivered, and received upon actual receipt. Either party may, by written notice delivered pursuant to this provision, at any time designate a different address to which notices shall be sent. CITY: City of National City Attention: City Manager 1243 National City Boulevard National City, CA 91950-4397 With a copy to: OPERATOR: City of National City Attention: Director of Community Services 140 East 12th Street, Suite B National City, CA 91950 Olivewood Gardens & Learning Center Attention: Executive Director 2525 N Avenue National City, CA 91950 ARTICLE 20 NONDISCRIMINATION 20.1 Nondiscrimination. OPERATOR hereby covenants by and for itself, its successors, assigns and all persons claiming under or through it, that this Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against, or segregation of, any person or group of persons on account of race, age, color, creed, religion, sex, sexual orientation, marital status, national origin, physical handicap, medical condition, ancestry, or any other legally protected category, in the use, operation, or enjoyment of the Premises. ARTICLE 21 RECORDS, ACCOUNTS, AND AUDITS 21.1 OPERATOR's Duty to Keep Records. OPERATOR shall, at all times during the Term, and for a period of five (5) years following expiration or earlier termination of this Agreement, keep or cause to be kept, true and complete books, records and accounts of all (a) construction undertaken pursuant to the rights conferred on OPERATOR under Maintenance & Operating Agreement Page 18 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center this Agreement, and (b) financial transactions in the operation of all business activities, of whatever nature, conducted pursuant to the rights granted by this Agreement. Such records shall also include the source and disposition of all trash and other waste collected and disposed of by OPERATOR in the operation of its business. Said records must be supported by source documents such as receipts, invoices, sales slips, cash register tapes, purchase invoices or other pertinent documents. 21.2 CITY's Right to Audit. All OPERATOR books, accounts, and records shall be kept and made available at one location within the limits of the County of San Diego. The CITY shall have the right at any reasonable time to examine and perform audits of OPERATOR's records pertaining to (a) construction undertaken pursuant to the rights conferred on OPERATOR under this Agreement, and (b) its operations on the Premises, including, without limitation, any records pertaining to OPERATOR's use of utilities on the Premises. The cost of said audits shall be borne by the CITY, except that OPERATOR shall provide to the CITY, at OPERATOR's expense, necessary data to enable the CITY to fully comply with each and every requirement of the State of California or by the United States of America for information or reports relating to this Agreement and to OPERATOR's use of the Premises. ARTICLE 22 ADMINISTRATIVE PROVISIONS 22.1 Authority. OPERATOR represents and warrants that it has full power and authority to execute and fully perform its obligations under this Agreement pursuant to its governing instruments, without the need for any further action, and that the person executing this Agreement on behalf of OPERATOR is the duly designated agent of OPERATOR and is authorized to do so. 22.2 Captions. The captions and headings appearing in this Operating Agreement are inserted for convenience only and in no way define, limit, construe, or describe the scope or intent of the provisions of this Agreement. 22.3 CITY Approval. Except where stated in this Agreement to the contrary, the phrases "CITY approval", and "CITY's written approval" or such similar phrases shall mean approval of the City Manager or designee, which approval shall not be unreasonably withheld. 22.4 Cumulative Remedies. In the event of a default under this Agreement, each party's remedies shall be limited to those remedies set forth in this Agreement. Any such remedies are cumulative and not exclusive of any other remedies under this Agreement to which the non -defaulting party may be entitled. 22.5 Entire Agreement. This Agreement, together with all addenda and exhibits attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings and representations, oral or written, are superseded. Maintenance & Operating Agreement Page 19 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 22.6 Exhibits. All exhibits referred to herein are attached hereto and incorporated by reference: Exhibit "A": Proposed Area for Community Garden at Paradise Creek Park Exhibit "B": Garden Limitations 22.7 Force Majeure. If either party is prevented or delayed from performing any act or discharging any obligation hereunder, because of any and all causes beyond either party's reasonable control, including unusual delays in deliveries, abnormally adverse weather conditions, unavoidable casualties, strikes, labor disputes, inability to obtain labor, materials or equipment, acts of God, governmental restrictions, regulations or controls, any hostile government actions, acts of terrorism, civil commotion and fire or other casualty, legal actions attacking the validity of this Agreement or the CITY or OPERATOR's operations of the Premises, or any other casualties beyond the reasonable control of either party ("Force Majeure"), performance of such act shall be excused for the period of such delay, and the period for performance of such act shall be extended for a period equivalent to the period of such delay. Force Majeure shall not include any bankruptcy, insolvency, or other financial inability on the part of either party hereto. 22.8 Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. 22.9 Independent Contractor. OPERATOR acknowledges that it is an independent contractor; that it alone retains control of the manner of conducting its activities in furtherance of this Agreement; and that it, as well as any persons, contractors or agents it may employ, are not employees of CITY for any purpose. 22.10 Interpretation. The provisions of this Agreement shall be liberally construed to effectuate its purpose. The language of all parts of this Agreement shall be construed simply according to its plain meaning and shall not be construed for or against either party. 22.11 OPERATOR's Agreement Administration. OPERATOR confirms that OPERATOR's Agreement Administrator has been given full operational responsibility for compliance with the terms of this Agreement. OPERATOR shall provide the CITY with a written schedule of its normal hours of business operation on the Premises, and OPERATOR's Agreement Administrator, or a representative designated thereby, shall be available to the CITY during OPERATOR's normal business hours, to resolve problems or answer question pertaining to this Agreement and OPERATOR's operations on the Premises. 22.12 Modification. The provisions of this Agreement may not be modified, except by a written amendment signed by both parties. Maintenance & Operating Agreement Page 20 of 27 City of National City and August 4, 2020 ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 22.13 Partial Invalidity. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by law. 22.14 Successors & Assigns. This Agreement shall be binding on and inure to the benefit of the parties and their successors and assigns, except as may otherwise be provided herein. OPERATOR shall not assign this agreement to any other party unless approved in writing by the CITY. 22.15 Time of Essence. Time is of the essence of each and every provision of this Agreement. 22.16 Waiver. No provision of this Operating Agreement or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed. [END OF AGREEMENT — SIGNATURES APPEAR ON NEXT PAGE] Maintenance & Operating Agreement Page 21 of 27 City of National City and August 4, 2020 ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center IN WITNESS WHEREOF, the CITY and OPERATOR have duly executed this Agreement as of the day and year first above written. CITY OF NATIONAL CITY (CITY) By: Alejandra Sotelo-Solis, % ayor APPROVED AS TO FORM: B /If - _ • . orris- :NNW -, City Attorney Maintenance & Operating Agreement August 4, 2020 OLIYEWOOD GARDENS (OPERATOR) By: ¢/ ame) (Print) � mil` civil (Title) C. U) i-rrr re k41.1.," (Name) j (Print) (Title) Page 22 of 27 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center EXHIBIT A - Proposed Area for Community Garden at Paradise Creek Park The proposed are for the community garden at Paradise Creek Park will be approximately 9,160 square feet (.21 acres) of open area located on the northern half of Paradise Creek Park. The finished surface material will be decomposed granite, consistent with the Plaza area of the park. Proposed garden amenities include planter beds, a storage shed, other site furnishings and an 8 foot tall galvanized mesh fence along the perimeter. Maintenance & Operating Agreement Page 23 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center as a. 6 5 6 Is A yw II •T&T SUBSTRUCTURES. FRED KRU 5 5 a cr��LI� TOLL RREE L6601661610 LP EXHIBIT A COMMUNITY GARDEN ENLARGEMENT PLAN SCALE 1-= 1D KEY NOTES O POLE -MOUNTED SOLAR LIGHT PER ELECTRICAL PLANS O EXISTING IMPROVEMENTS- SEE HARDING AND 21ST STREET IMPROVEMENTS & PARADISE CREEK PARK ROUGH GRADING CIP 1507 © CONNECT CURBOURET CONSTRUCT 1212 CONCRETE CATCH BASIN WITH TRAFFIC GRATE S."' SHED SCALE: 1M-1•a ENLARGEMENT PLAN COMMUNITY GARDEN MATERIAL SCHEDULE CONCAVEPAWN NATEAN.PN,HgrtS iAu . .N 666, YAEENeDxN1.1.1xAX CONCRETE CLASS SIDAIT 56.4260 WAWA COLORWITH MOM MELEES 6' SECOMPSALD GRAMTE WAG OAR RTIAS WAIL H STEEL WADERICI60 SOL6MASST CFAs STOW N1 yvui COLORMEATGO.Al. EA nu B 16661 ,06 cant ul6 & AT AAA �. _yaESEG 2 pFT a OVER Ew.W. E. LOCAL EweMwFORM av FHFSMOSTA.MARE HPMW A W N GT M E.exxwoiaor�E .AXIS Y1.10 STAKEL. D L JL J SCSI WOOD GATE CONTRACTORFARYATED NAM MGATE POSTS. TIN: STEEL MFEDYCEDWGGDmwre AE SCUDGAE. n STORAGE 6,60 NOOFY TO 600.06E T AAA. TALL H W :tr MAMA.N CONCRETE PAD 2' ABOVE FINISH GRADE UFACTURED SHED -ASSE/a E ON -SITE L CLAD INTERIOR WALLS& CEILING WITH' WALL -MID. SECURES EQUIPMENT CABPET - SEE SECURITY PLANS A SPECS CONSTRUCT WOOD -FRAMED CENTER PUMPKIN 2M @ 160.C. WITH MDF CLAMING WALL NT. SECURE UTKRY ROOM DOOR TO CENTER PUTITON MIN HASP AND CITY-PRWSED LOCK LOCKABLE METAL DOUBLE -DOORS GENERAL NOTES 1. CONSTRUCT EKPANSKN JOINTS AT ALL LOCATIONS WHERE NEW PAVING MEETS A VERTICAL SURFACE, NO AT iB O.C. WHERE NOT SHOWN ON PANS. 2. FIELD VERIFY ALL EXISTING DIMENSIONS AND CONDITIONS PRIOR TO BIDDING WORK A INSTALL ALL IRRIGKOZIN SLEEVING PRIOR TO FORMING CONCRETE - SEE DIRICATION PLANS. A. COORDINATE ALL SITE URLITY LOCATIONS WITH PAVEMENT AND PLANTNG PLANS. VERIFY FINAL LOCATIONS PRIOR TO START OF WORK 0. INSTALL ALL LKIHTNG SIEVING PRIOR TO FORKING CONCRETE - SEE ELECTRICAL PANS. 0. STAKE ALLWROVEMENTS FOR LANDSCAPE ARCHITECTS REVIEW PRIOR TO NSTALUTIDN. DECLARATION OE RESPONSIBLE CHARGE N LA NAM AAAAA CAPE •A:1•11T661,17 AA MAU ONE MO DMA 6 06:116A1 WAWA PPUElt NE AS MOPS Or POW Or IX PESPONSIMPIES _.IEwrrFu-� .11116 P. IOC NILT�1 CtT'V PARADISE CREEK EOUCAT10NAL PARK CITY OF NATIONAL CITY 0011616.6 0106660) (II PROP 61662 DIOrte6N6 MO RAC 10:143 16-„ slat IS M 48 sitars 11513-19-D CIP 18-16 - PARADISE CREEK EDUCATIONAL PARK - BID SET - 3 JUNE 2019 �b STRnE 5R1*n.w Ts 9m9 OATsapn O\agw. (BMH.P(.RN.N.YM.\PM1 n.Mn.V&.RN. — 1w\m\I.wn L-aR 1Tt TEUR* ENGINEERING DEPARTMENT I1T1I ITT DEPARTMENTS TEI EPNONE CONSTRUCTION RECORDS SURVEYOR: SAMPO AS -BUILT BY APPROVED DATE ELECTRIC. MIKE BONG TRAFFIC SIGNALS & LIONDNG, LINDA BUSTARD COY CORIUNCATIONS. REHIRE SEVERS (B511) 636-5715 (656) 654-5364 (619) 255-5436 DATE STINTED: INSPECTOR. BENCHMARK: STANDARD 2.5- BRASS SSM STAMPED 220 1977 (123f . LOCATED IN STANDARD MONUMENT SELL IN THE INTER C1ION OE HOOVER AVENUE & 16TH STREET. DATUM: NELEV ATION: 19.34' DATE OFSURVE SURVEY: NOVEMBER 2014 REVISIONS AT&T SUBSTRUCTURES FRED ERASE (61S) 574-9510 SWEEP/STEP AUTHORITY, LUIS VALDE? (B19) 409-6751 9 w N v R R 8 0 0 DATE COMPLETED TAL CONTROL: TE BASS BEARMOS FOR SURVEY $ THE CALIFORNIARNIA COORDINATE SYSTI EM MAD eaNNEE B, 5, PONT NUMBERS DIE NUMBERS 1232 AND 3246 AS SNOW ON ROS 14499. CIP 18-16 - PARADISE CREEK EDUCATIONAL PARK - BID SET - 3 JUNE 2019 EXHIBIT B — Garden Limitations As part of the environmental regulatory closure for the Paradise Creek Park (Subject Property), the City has entered a Land Use Covenant (LUC) with the Department of Toxic Substances Control (DTSC). The intent of the LUC is to restrict future land use and or site development activities on the Subject Property that could impact the integrity of the cap or disturb the impacted soil below the cap. In the event that land use activities change or redevelopment activities occur on the Subject Property, the LUC also provides requirements for notifying DTSC in writing of any such changes that could result in any activity that would disturb the ground surface (e.g., trenching, excavating, grading, pot holing, etc.). As part of the new park development plans, the City is planning to construct a community garden that would be managed and operated by a third party approved by the City. The proposed community garden is planned to be constructed in the northwestern area of the Subject Property. The following paragraphs address requirements and limitations associated with building the community garden in compliance with the LUC. Background Historic environmental studies that have been conducted on the Subject Property and under the authority of the DTSC have determined that lead is the primary chemical of concern that could present an unacceptable risk to human health based on residential land use scenario. In consideration that the Subject Property is not being redeveloped for residential purposes, DTSC approved leaving higher concentrations of lead on site and required that the upper three (3) feet of soil be excavated and hauled off -site. DTSC further required that three (3) feet of clean soil be placed above the native soils to serve as a cap to eliminate direct exposure to the lead -impacted soils. Additionally, DTSC required the City to enter a LUC with DTSC that would restrict future reuse activities on the Subject Property. Conditions of the LUC The LUC provides for various restrictions on the property that include conveyance of the property, soil management, prohibited activities, and land -use just to name a few. As the LUC pertains to the construction, operation, maintenance and management of the community garden, the following restrictions or limitations should be considered. 1. No activities that will disturb soil deeper than three feet (e.g., excavating, grading, soil removal, trenching, filling, earth movement, or drilling) shall be allowed on the property unless pre -approved by DTSC in writing. 2. Extraction or removal of groundwater is prohibited. 3. Activity that may alter, interfere with, or otherwise affect the impacted soil located below three feet are prohibited unless pre -approved by DTSC in writing. 4. All planting/growing activities must be conducted in a raised planter bed. 5. No plants may be planted directly into the cap or ground surface. 6. No plant with a root system that would penetrate below the bottom of the raised bed may be planted. 7. Irrigation or watering activities shall be conducted such that these activities do not contribute to erosion to the three feet cap. Drip irrigation is recommended to control runoff and erosion. Maintenance & Operating Agreement Page 24 of 27 City of National City and August 4, 2020 ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 8. The community garden shall be inspected annually by the City verifying compliance with the LUC. The inspection report shall be submitted to DTSC for its approval by January 31 of each year. In the event that any activity that could have the potential of disturbing the impacted soil located below the three feet cap or that could compromise the integrity of the camp must be reported to DTSC for pre -approval in writing. Maintenance & Operating Agreement Page 25 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center OLIVGAR-01 VSZAFRANSKI A�ORO CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDDIYYYY) 7/7/2020 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). PRODUCER License # 0525512 Teague Insurance Agency, Inc. 4700 Spring St., #400 La Mesa, CA 91942-0275 CONTACT NAME: PHONE FAX (A/C, No, EXt): (619) 464-6851 (ruc, No):(619) 668-4715 E-MAIL ADDRESS: info teag ueins.com INSURER(S) AFFORDING COVERAGE NAIC # INSURER A: Nonprofits' Insurance Alliance of California INSURED Olivewood Gardens & Learning Center 2505 N. Avenue National City, CA 91950 INSURER B : Nova Casualty Company 42552 INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: 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 POLIC ES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSD SUBR WV!) POLICY POLICY NUMBER POLICY EFF POLICY EXP IMM/ODIYYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY X 201926382 9/20/2019 9/20/2020 EACH OCCURRENCE $ 1,000,000 CLAIMS -MADE X OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence) 500 000 $ X Pollution Included MED EXP (Any one person) $ 20,000 PERSONAL & ADV INJURY $ 1,000,000 GEN'L X AGGREGATE POLICY OTHER LIMIT APPLIES PER: LOC GENERAL AGGREGATE $ 3,000,000 PRODUCTS - COMP/OP AGG $ 3,000,000 LIQUOR LIABILIT $ 1,000,000 A AUTOMOBILE _ X LIABILITY ANY AUTO OWNED AUTOS ONLY HIRED X _ SCHEDULED AUTOS NON -OWNED AUTOS ONLY 201926382 9/20/2019 9/20/2020 COMBINED SINGLE LIMIT (Ea accident) 1,000,000 $ BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ A X U UMBRELLA LIAB EXCESS LIAB X O OCCUR CLAIMS -MADE 201926382UMB 9/20/2019 9/20/2020 EACH OCCURRENCE 5,000,000 $ AGGREGATE $ 5,000,000 $ DED RETENTION $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes describe under DESCRIPTION OF OPERATIONS below Y / N N /A x CFI-WK-10000235-02 9/20/2019 9/20/2020 X PER STATUTE OTH- ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT 1,000,000 $ A Sexual Misconduct 201926382 9/20/2019 9/20/2020 each claim/aggregate 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES )ACORD 101, Additional Remarks Schedule, may be attached if more space is requi ed) RE: Paradise Creek Community Garden The City of National City, its officials, agents, employees and volunteers are included as additional insured for ongoing operations with respects to General Liability, when required by written contract or agreement, and with waiver of subrogation with respects to the workers compensation, per attached forms. Pollution liability is included within the general liability policy, per form attached. CERTIFICATE HOLDER CANCELLATION City of National City c/o Risk Manager 1243 National City Boulevard National City, CA 91950 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 2019-26382 COMMERCIAL GENERAL LIABILITY Named Insured: ICF Center for Cross -Border Philanthropy* THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE CG20100413 Name Of Additional Insured Person(s) Or Organization(s) Location(s) Of Covered Operations The City of National City and its officers, agents, employees and volunteers Paradise Creek Community Garden All insured premises and operations. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or CG20100413 © Insurance Services Office, Inc., 2012 Page 1 of 2 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. C. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG20100413 © Insurance Services Office, Inc., 2012 Page 2 of 2 POLICY NUMBER: 2019-26382 COMMERCIAL GENERAL LIABILITY Named Insured: ICF Center for Cross -Border Philanthropy* CG 20 12 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - STATE OR GOVERNMENTAL AGENCY OR SUBDIVISION OR POLITICAL SUBDIVISION - PERMITS OR AUTHORIZATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE State Or Governmental Agency Or Subdivision Or Political Subdivision: Subdivision: Any state or political subdivision that issues a permit or authorization to the named insured. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured any state or governmental agency or subdivision or political subdivision shown in the Schedule, subject to the following provisions: 1. This insurance applies only with respect to operations performed by you or on your behalf for which the state or governmental agency or subdivision or political subdivision has issued a permit or authorization. However: a. The insurance afforded to such additional insured only applies to the extent permitted by law; and b. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. 2. This insurance does not apply to: a. "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the federal government, state or municipality; or b. "Bodily injury" or "property damage" included within the "products -completed operations hazard". B. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG20120413 © Insurance Services Office, Inc., 2012 Page 1 of 1 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 04-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 5 % of the California workers' compensation premium otherwise due on such remuneration. SCHEDULE PERSON OR ORGANIZATION JOB DESCRIPTION CITY OF NATIONAL CITY C/O RISK MANAGER 1243 NATIONAL CITY BLVD NATIONAL CITY, CA 91950 ON —SITE FOR SUPERVISION, TO HELP MAKE SURE THE GARDEN WAS UP AND RUNNING, RUNNING WORKSHOPS, ETC This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 03-03-20 Policy No. CF1—WK-10000235-02 Endorsement No. 001 Insured OLIVEWOOD GARDENS & LEARNING Premium r INCL. Insurance Company Nova Casualty Company Countersigned By sc., 1998 by the Workers' Compensation Insurance Rating Bureau of California. All rights reserved. From the WCIRB's California Workers' Compensation Insurance Forms Manual ® 1999. INSURED Policy Number: 2019-26382 COMMERCIAL GENERAL LIABILITY CG 22 64 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PESTICIDE OR HERBICIDE APPLICATOR - LIMITED POLLUTION COVERAGE This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Description Of Operations: Application of Soap/Water Information required to complee this Schedule, if not shown above, will be shown in the Declarations. With respet to the operations shown in the Schedule, Paragraph (1)(d) of Exclusion f. of Section I - Coverage A - Bodily Injury And Property Damage Liability does not apply if the operations met all standards of any statute, ordinance, regulation or license requirement of any federal, state or local government which apply to those operations. CG 22 64 04 13 © Insurance Services Office, Inc., 2012 Paae 1 of 1 ACOR0 VEHICLE OR EQUIPMENT CERTIFICATE OF INSURANCE `....,.----- DATE (MMIDD/YYYY) 03/03/2020 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. This form is used to report coverages provided to a single specific vehicle or equipment. Do not use this form to report liability coverage provided to multiple vehicles under a single policy. Use ACORD 25 for that purpose. PRODUCER StateFarm Lazaro Insurance Agency, Inc. 3924 El Cajon Blvd CONTACT NAME: Lazaro Neto PHOE (A//C,NNo, Ext): 619-229-6799 (ac, No): 619-229-6796 E-MAIL statefarm.co 36f lazaro.neto.mm ADDRESS: @ San Diego, CA 92105 NATIONAL CITY CA 91950-6019 PRODUCER CUSTOMER ID #: INSURER(S) AFFORDING COVERAGE NAIC # INSURED INTERNATIONAL COMMUNITY FOUNDATION 2525 N AVE NATIONAL CITY CA 91950-6019 INSURER A : State Farm Mutual Automobile Insurance Company 25178 INSURER B : INSURER C : INSURER D : INSURER E : DESCRIPTION OF VEHICLE OR EQUIPMENT YEAR 2006 MAKE / MANUFACTURER TOYOTA MODEL TUNDRA BODY TYPE PICKUP VEHICLE IDENTIFICATION NUMBER 5TBJU32156S470409 DESCRIPTION VEHICLE/EQUIPMENT VALUE $ SERIAL NUMBER COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICY(IES) OF INSURANCE LISTED BELOW HAS/HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD(S) 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 POLICY(IES) DESCRIBED HEREIN IS/ARE SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICY(IES). INSR LTR ADD•L INSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YYYY) POLICY EXPIRATION DATE (MM/DD/YYYY) LIMITS Y X VEHICLE LIABILITY 279 9438-B13-55B 02/13/2020 08/13/2020 COMBINED SINGLE LIMIT S BODILY INJURY (Per person) $ 1 ,000,000 BODILY INJURY (Per accident) $ 1,000,000 PROPERTY DAMAGE $ 1,000,000 GENERAL LIABILITY OCCURRENCE CLAIMS MADE EACH OCCURENCE S GENERAL AGGREGATE $ $ INSR LTR Loss PAYEE TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YYYY) POLICY EXPIRATION DATE (MM/DD/YYYY) LIMITS / DEDUCTIBLE X VEH COLLISION LOSS 279 9438-B13-55B 02/13/2020 08/13/2020 ❑• ACV ❑ AGREED AMT E ❑ STATED AMT $ $ 250 LIMIT DED X VEH COMP VEH OTC 279 9438-B13-55B 02/13/2020 08/13/2020 ❑" ACV ❑ AGREED AMT ❑ ❑ STATED AMT $ $ 250 LIMIT DED EQUIPMENT BASIC SPECIAL BROAD ❑ ACV ❑ AGREED AMT E RC E STATED AMT ❑ $ $ LIMIT DED - REMARKS INCLUDING SPECIAL CONDITIONS / OTHER COVERAGES) (Attach ACORD 101, Additional Remarks Schedule, if more space is required) ADDITIONAL INTEREST CANCELLATION Select one of the following: policy(ies) listed herein by policy number(s). below to the policy(ies) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. The additional interest described below has been added to the XA request has been submitted to add the additional interest described listed herein by policy number(s). VEHICLE / EQUIPMENT INTEREST: LEASED FINANCED DESCRIPTION OF THE ADDITIONAL ADDITIONAL INSURED LENDER'S LOSS PAYEE INTEREST LOSS PAYEE NAME AND ADDRESS OF ADDITIONAL INTEREST CITY OF NATIONAL CITY 1243 NATIONAL CITY BLVD. NATIONAL CITY, CA 91950 X LOAN / LEASE NUMBER AUTHORIZED REPRESENTATIVE .f Ae. 714 '/o/21 .� 17 / /iJ ACORD 23 (2016/03) © 1997-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD 1004361 142987.3 01-26-2016 RESOLUTION NO. 2020 - 143 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A MAINTENANCE AND OPERATING AGREEMENT FOR A COMMUNITY GARDEN AT PARADISE CREEK PARK BETWEEN THE CITY OF NATIONAL CITY AND ICF CENTER FOR CROSS BORDER PHILANTHROPY, D.B.A. OLIVEWOOD GARDENS AND LEARNING CENTER, TO OPERATE A COMMUNITY GARDEN TO BENEFIT THE WELL-BEING OF NATIONAL CITY RESIDENTS, LOCATED ON THE NORTHERN HALF OF PARADISE CREEK PARK, FOR A TERM OF ONE YEAR WITH THE OPTION TO EXTEND UP TO TWO (2) ADDITIONAL TWO YEAR TERMS WHEREAS, the City of National City and Community HousingWorks ("CHW") share an interest in promoting the initiation and sustainability of a community garden at Paradise Creek Park; and WHEREAS, CHW's role springs from its commitment to housing as a platform for the future success of CHW residents, who live in the Paradise Creek Apartments affordable housing community just across from the Paradise Creek Park site; and WHEREAS, the funding of $40,000, through CHW, will be available on an annual basis to support the operations of the community garden so that residents can learn to grow and use fresh produce; and WHEREAS, during the September 17, 2019, City Council Meeting CHW announced its intention to conduct an Request for Proposal ("RFP") process for the operation of a community garden located on the northern half of Paradise Creek Park; and WHEREAS, the RFP was issued on September 25, 2019, and responses were due October 31, 2019; and WHEREAS, CHW received two (2) proposals, one from Mongol Tribe and the other a joint proposal from Olivewood Gardens and Learning Center, Mundo Gardens, and Paradise Creek Educational Park; and WHEREAS, CHW verified the selection of the Olivewood Gardens and Learning Center, Mundo Gardens, and Paradise Creek Educational Park proposal; and WHEREAS, City Staff recommends executing a a Maintenance and Operating Agreement for a Community Garden at Paradise Creek Park between the City of National City and ICF Center for Cross Border Philanthropy, D.B.A. Olivewood Gardens and Learning Center. Resolution No. 2020 —143 Page Two NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a Maintenance and Operating Agreement for a Community Garden at Paradise Creek Park between the City of National City and ICF Center for Cross Border Philanthropy, D.B.A. Olivewood Gardens and Learning Center, to operate a community garden to benefit the well-being of National City residents, located on the northern half of Paradise Creek Park, for a term of one (1) year with the option to extend up to two (2) additional two year terms. PASSED and ADOPTED this 4th day of August, 2020. Alejandra Sotelo-Solis, Mayor ATTEST: APPROVED AS TO FORM: Passed and adopted by the Council of the City of National City, California, on August 4, 2020 by the following vote, to -wit: Ayes: Councilmembers Cano, Quintero, Rios, Sotelo-Solis. Nays: Councilmember Morrison. Absent: None. Abstain: None. AUTHENTICATED BY: ALEJANDRA SOTELO-SOLIS BY: Mayor of the City of National City, California MICHAEL R. DALLA City Clerk of the City of National City, California Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2020-143 of the City of National City, California, passed and adopted by the Council of said City on August 4, 2020. / A9Jt City Clerk of the City of tional City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: August 4, 2020 Czow-Lf9 AGENDA ITEM NO.: 27 EM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a Maintenance and Operating Agreement for a Community Garden at Paradise Creek Park between the City of National City and ICF Center for Cross Border Philanthropy, D.B.A. Olivewood Gardens and Learning Center, to operate a community garden to benefit the well-being of National City residents, located on the northern half of Paradise Creek Park, for a term of one year with the option to extend up to two additional two year terms. PREPARED BY: Audrey Denham PHONE: 619-336-4243 EXPLANATION: See attached. DEPARTMENT: APPROVED BY: FINANCIAL STATEMENT: ACCOUNT NO. No financial impact. APPROVED: APPROVED: ENVIRONMENTAL REVIEW: This is not a project and, therefore, not subject to environmental review. ORDINANCE: INTRODUCTION FINAL ADOPTION FINANCE MIS STAFF RECOMMENDATION: Adopt the resolution of the City Council of the City of National City authorizing the Mayor to execute a Maintenance and Operating Agreement for a Community Garden at Paradise Creek Park between the City of National City and ICF Center for Cross Border Philanthropy, D.B.A. Olivewood Gardens and Learning Center. BOARD / COMMISSION RECOMMENDATION: "TACHMENTS: Staff report . Paradise Creek Community Garden Maintenance and Operating Agreement Professional Services Agreement between CHW and Olivewood Gardens Pe -la z o� c»' /4 3 I \\11! ALIFORNIA< NATIONAL Cliv � acnV INCORPORATED City Council Staff Report August 4, 2020 ITEM Staff Report: Resolution of the City Council of the City of National City authorizing the Mayor to execute a Maintenance and Operating Agreement for a Community Garden at Paradise Creek Park between the City of National City and ICF Center for Cross Border Philanthropy, D.B.A. Olivewood Gardens and Learning Center, to operate a community garden to benefit the well- being of National City residents, located on the northern half of Paradise Creek Park, for a term of one year with the option to extend up to two additional two year terms. BACKGROUND The City and Community HousingWorks (CHW) share an interest in promoting the initiation and sustainability of a community garden at Paradise Creek Park. CHW's role springs from its commitment to housing as a platform for the future success of CHW residents, who live in the Paradise Creek Apartments affordable housing community just across from the Paradise Creek Park site. The funding of $40,000, through CHW, will be available on an annual basis to support the operations of the community garden. The purpose of the garden will be to offer a space where residents can learn to grow and use fresh produce. During the September 17, 2019, City Council meeting Community HousingWorks (CHW) announced its intention to conduct an RFP process for the operation of a community garden located on the northern half of Paradise Creek Park. The RFP was issued on September 25, 2019, and responses were due October 31, 2019. CHW received two proposals, one from Mongol Tribe and the other a joint proposal from Olivewood Gardens and Learning Center, Mundo Gardens, and Paradise Creek Educational Park. Both proposals were provided to five individuals who had been asked to serve as independent evaluators, because of their knowledge of National City and/or food systems, and who had no conflict of interest, such as a financial stake in the outcome. The independent evaluators were selected from CHW senior management, National School District, City of National City, County of San Diego Health and Human Services, and the local business community. Evaluations were completed by November 15, 2020. One of the independent evaluators declined to participate in the process due to workload not related to the RFP process. CHW verified the selection of the Olivewood Gardens and Learning Center, Mundo Gardens, and Paradise Creek Educational Park proposal. Each party was provided written notice of the decision at the end of November and City staff were informed that an operator had been selected. Here is a summary of the evaluations: Page 2 Staff Report — Paradise Creek Community Garden Maintenance and Operating Agreement August 4, 2020 County of SD Health and Human Services Rep 80 90 City of National City Rep 59 89 National School District Rep 85 95 CHW Senior Manager 44 79 Local Business Rep NA NA AVERAGE 67 S8 DISCUSSION In January 2020, as the fiscal sponsor, Olivewood Gardens and Learning Center (Olivewood), entered into a Professional Services Agreement with CHW for operation of the community garden and $40,000 in funding. However, Olivewood will receive no funding from CHW to operate the garden until the Maintenance and Operating Agreement with the City becomes effective. The Maintenance and Operating Agreement with the City is effective once the agreement has been fully executed and the Land Use Covenant has been recorded. At this time, we are waiting for the State to record the Land Use Covenant, but City staff are doing what they can to expedite the process. Paradise Creek Park, including the community garden, is scheduled to be completed by mid -September. Following is a summary of key terms: • Term: The term of the agreement shall be for twelve months, with the option to extend for two additional twenty-four month periods, if Olivewood is not in default. • Purpose: The purpose of this Agreement is to create a collaborative project where children, parents, and residents will share the maintenance and products of the community garden. In addition, the community garden will benefit the National City community by providing programming and services that improve the health and quality of life, provide residents access to fresh or organic healthy foods, foster community interaction through the cultivation of fresh food, and offer educational opportunities through teaching the importance of environmental sustainability. • Programs: Olivewood will provide for and facilitate programs covering a variety of topics, such as basic gardening, composting, food production, food supply chain, vermiculture, permaculture, farm -to -table, and water conservation. • Hours of Operation: The community garden will be open to the public on Saturdays and Sundays from 8:00 am to sunset, and Monday through Friday by appointment or for scheduled programs. • Service Fees: Olivewood will not provide any programs and services for profit. However, Olivewood may charge user fees for classes and programs offered to school groups and the community to offset operating and maintenance costs. Any fees charged must be approved by the City Manager. The public shall pay no fee to gain access to the community garden on Saturday and Sunday during hours of operation. • Reporting: Olivewood will provide quarterly reports including the total number of: National City residents, participants, and volunteers that participate in events; events and programs coordinated; and capital projects completed. Quarterly reports will also explain Olivewood's operating and maintenance plans and any other pertinent statistics. Page 3 Staff Report — Paradise Creek Community Garden Maintenance and Operating Agreement August 4, 2020 • Annual Budget: Olivewood will provide the City with a proposed budget for estimated maintenance and operating expenses for the Premises by July 1st of each year. Olivewood will also provide an accounting of actual expenses, revenues and grants received, 45 days following June 30 of each year. • Alcohol Use: Olivewood or third parties, may not hold events at the community garden where alcoholic beverages are served. Alcoholic beverages are not allowed at the community garden. • Utility Services: The City shall pay for electricity, water, and trash services for the community garden. RECOMMENDATION Adopt the resolution of the City Council of the City of National City authorizing the Mayor to execute a Maintenance and Operating Agreement for a Community Garden at Paradise Creek Park between the City of National City and ICF Center for Cross Border Philanthropy, D.B.A. Olivewood Gardens and Learning Center. --* CALIFORNIA r` NATIONAL, arr. INCORPORATED MAINTENANCE AND OPERATING AGREEMENT FOR A COMMUNITY GARDEN AT PARADISE CREEK EDUCATIONAL PARK by and between CITY OF NATIONAL CITY and ICF CENTER FOR CROSS BORDER PHILANTROPY, D.B.A. OLIVEWOOD GARDENS & LEARNING CENTER Dated as of August 4, 2020 SECTION HEADING Recitals ARTICLE 1 ARTICLE 2 ARTICLE 3 ARTICLE 4 ARTICLE 5 ARTICLE 6 ARTICLE 7 ARTICLE 8 ARTICLE 9 ARTICLE 10 ARTICLE 11 ARTICLE 12 ARTICLE 13 ARTICLE 14 ARTICLE 15 ARTICLE 16 ARTICLE 17 ARTICLE 18 ARTICLE 19 ARTICLE 20 ARTICLE 21 ARTICLE 22 TABLE OF CONTENTS Terms of Agreement The Premises Permitted Uses Utilities Repairs and Maintenance Improvements; Alterations Mechanics' Liens; Stop Notices Taxes Indemnifications and Insurance Termination Hazardous Materials Assignment Defaults by OPERATOR or by City; Remedies Abandonment Damage or Destruction Eminent Domain Sale or Mortgage by City City's Right of Access Notices Nondiscrimination Records, Accounts, and Audits Administrative Provisions PAGE 1 2 2 3 5 5 6 7 8 8 12 12 14 14 15 15 16 17 17 17 18 18 19 MAINTENANCE AND OPERATING AGREEMENT FOR A COMMUNITY GARDEN AT PARADISE CREEK EDUCATIONAL PARK BY AND BETWEEN THE CITY OF NATIONAL CITY AND ICF CENTER FOR CROSS BORDER PHILANTROPY, D.B.A. OLIVEWOOD GARDENS & LEARNING CENTER This Maintenance and Operating Agreement for a Community Garden ("Community Garden") at Paradise Creek Educational Park (the "Agreement") is entered into as of August 4, 2020 by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and ICF Center for Cross -Border Philanthropy a California non-profit corporation, d.b.a. Olivewood Gardens & Learning Center ("OPERATOR"). RECITALS A. WHEREAS, the CITY owns the real property commonly known as Paradise Creek Educational Park located in National City, California. B. The CITY desires to increase the production and distribution of locally grown food within the community, as a means to improve access to healthy food and the quality of life for National City residents, consistent with the National City General Plan. C. OPERATOR seeks to develop a Community Garden in National City and increase the production and distribution of locally grown food to benefit the well-being of National City residents. D. The CITY has determined that OPERATOR is a qualified, non-profit experienced in empowering students and families from diverse backgrounds to be healthy and active citizens through organic gardening, environmental stewardship, and nutrition education. E. The CITY has identified a site for a Community Garden located within Paradise Creek Educational Park. The CITY desires to maximize public access and enhance recreational opportunities within Paradise Creek Educational Park; the development of a community garden provides an optimal use of the site and increases public access and recreational opportunities. F. The CITY finds that the development of a community garden at Paradise Creek Educational Park enhances the public's pleasure and enjoyment of the park and OPERATOR agrees not to exclude members of the public. G. The CITY wishes to have OPERATOR maintain and operate a Community Garden for the community's benefit, located on a portion of Paradise Creek Educational Park as the described in Exhibit A (collectively, the "Premises"). Maintenance & Operating Agreement Page 1 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center NOW, THEREFORE, in consideration of the foregoing facts, and in consideration of the promises and covenants hereinafter set forth, the parties agree as follows: 1.1 ARTICLE 1 TERM OF AGREEMENT Term. The Agreement shall be effective once the agreement has been executed with signatures and the Land Use Covenant has been recorded (the "Commencement Date"). The term of the agreement shall be for twelve (12) months from the Commencement Date. 1.2 Option to Extend Term. If OPERATOR is not in default of any provision of this Agreement upon the expiration of the term described in Article 1.1, the City Manager or designee and OPERATOR may extend the Term for up to two (2) additional twenty-four (24) month periods. The initial term, and any extension pursuant to this Article 1.2, shall collectively be referred to hereafter as "Term." ARTICLE 2 THE PREMISES 2.1 License for Use of Premises. For the purpose of operating the public center for the benefit of the residents and visitors of National City, the CITY grants OPERATOR a revocable license to enter and operate the Premises, subject to the covenants and conditions hereinafter set forth, as of the Commencement Date. 2.1.1 Parking. OPERATOR shall neither have reserved parking nor exclusive on -site parking. 2.2 Ownership of Personal Premises and Improvements. The rights and obligations of the parties regarding the ownership of personal property and improvements on the Premises shall be as follows: 2.2.1 Ownership of Personal Premises. All improvements existing on the Premises (Improvements), together with all fixtures permanently attached to the Premises (Fixtures), as of the Commencement Date shall remain the property of the CITY during the Term. OPERATOR shall not remove any Improvements or Fixtures from the Premises and shall also not waste, destroy, or modify any Improvements or Fixtures on the Premises, except as permitted by this Agreement. 2.2.2 Ownership of Improvements and Equipment. All improvements made to the property by OPERATOR shall become the property of the CITY. This includes, but is not limited to, any greenhouse, shed, entrance arbor, kiosk, windmill/water tower, outdoor kitchen, irrigation, raised beds, composting area, fruit trees, or established produce OPERATOR may install at the Premises. All equipment, Maintenance & Operating Agreement Page 2 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center tools, and gardening supplies brought to the Premises by the OPERATOR shall remain property of OPERATOR. ARTICLE 3 PERMITTED USE 3.1 Purpose. The purpose of this Agreement is to create a collaborative project where children, parents, and residents will share the maintenance and products of the garden located on the Premises, including healthy fresh fruits and vegetables. The purpose of this Agreement is also to benefit the National City community. "Benefit", as described in the Recitals, and in this Article 3, means providing programming and services that: (a) improve the health and quality of life of National City residents; (b) provide National City residents access to fresh or organic healthy foods; (c) foster community interaction through the cultivation of fresh food; and (d) offer educational opportunities through teaching the importance of environmental sustainability. 3.2 Programs. OPERATOR will operate the Premises by providing for and facilitating proposed programs covering a variety of topics, some of which may include basic gardening, composting, food production, food supply chain, vermiculture, permaculture, farm -to -table, and water conservation. 3.2.1 Gardening Principles and Practices. OPERATOR will follow earth - friendly principles and practices by selecting appropriate plants, nurturing the soil, practicing responsible pest management, protecting wildlife, conserving water, protecting water quality, conserving energy, protecting air quality, reducing waste and growing food. OPERATOR may use Organic Materials Review Institute listed herbicides and insecticides as part of an integrated pest management program developed by OPERATOR. 3.2.2 Good Faith Meet and Confer. By written notice referring to this Article, either party may inform the other of any dispute or action perceived to conflict with the terms of this Agreement ("Dispute"). Upon receipt of such a notice, the other party shall respond in writing within ten (10) business days. The parties shall cooperate by providing information and answering questions to facilitate an informed discussion to resolve the Dispute. Such cooperation may involve a site visit by representatives of both parties to inspect the Premises. If the parties are unable to agree between themselves on a resolution within (30) business days of the responding party's written response to any notice, resolution of such Dispute shall then proceed pursuant to Article 13. 3.3 Hours of Operation. OPERATOR will open the Premises to the public on Saturdays and Sundays from 8:00 am to sunset so the public may enjoy the Premises and assist with minor gardening or interact with onsite volunteers. The Premises shall be open to the public Monday through Friday by appointment or for scheduled programs. No member of the public shall be denied entry to the Premises for any discriminatory basis described in Article 20. Maintenance & Operating Agreement Page 3 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 3.4 Service Fees. OPERATOR shall not provide any programs and services for profit. However, OPERATOR may charge user fees for classes and programs offered to school groups and the community to offset costs incurred by OPERATOR in its maintenance and operation of the Premises. Any fees charged under this Article 3.4 must be approved by the City Manager or designee. The public shall pay no fee to gain access to the Premises Saturday through Sunday during hours of operation. 3.5 Reporting by OPERATOR. OPERATOR shall provide quarterly reports to the City Manager recording the total number of: (a) National City residents, participants, and volunteers that participate in OPERATOR events; (b) events and programs coordinated; and (c) capital projects completed. These quarterly reports shall also explain any of OPERATOR's operating and maintenance plans and any other pertinent statistics regarding OPERATOR's use of the Premises. Upon reasonable notice by the City Manager, or designee, OPERATOR may be required to present all information required by this Article 3.5 at a meeting of the City Council. 3.6 Annual Budget. OPERATOR shall provide the CITY with a proposed budget for OPERATOR's estimated maintenance and operating expenses for the Premises by July 1st of each year during the Term. OPERATOR shall provide to the CITY an accounting of actual expenses, revenues and grants received for operation of the Premises, forty-five (45) days following June 30 of each year during the Term. 3.7 Volunteer Management. OPERATOR may utilize volunteers to operate the Premises, and in providing the projects and services required by this Agreement. OPERATOR is responsible for recruiting, training, and managing all volunteers on the Premises. Volunteers are considered the responsibility of OPERATOR for the purpose of workers compensation and general liability. .3.8 Alcohol Use. OPERATOR, or third parties with permission from OPERATOR, may not hold events on the Premises where alcoholic beverages are served. Alcoholic beverages are not allowed on the Premises. 3.9 Compliance with Laws. OPERATOR, at its sole expense, shall procure, maintain, and hold available for the CITY'S inspection any governmental license or permit required for the proper and lawful conduct of OPERATOR's operation of the Premises. OPERATOR shall not use the Premises for any use or purpose in violation of the laws of the United States of America, or the laws, ordinances, regulations, orders, or requirements of the State of California, the County of San Diego, the CITY, or of other lawful regulatory authorities. OPERATOR shall, at its sole expense, comply with all applicable statutes, laws, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the Term (Laws or Orders), regulating the use by OPERATOR of the Premises. 3.9.1 Compliance with Regulatory Agency Directives. OPERATOR shall not disturb the soil cap located above remediated soil at the Premises. OPERATOR shall Maintenance & Operating Agreement Page 4 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center comply with any regulatory agency's directives or restrictions regarding the soil cap. OPERATOR shall also comply with any conditions imposed on the Premises through a recorded Land Use Covenant, which will be incorporated into this agreement once received. The City may terminate this Agreement if: (a) OPERATOR violates any provision referenced in Article 3.10.1; (b) the State of California or any other governmental agency does not allow the Premises to be used as a community garden. 3.9.2 There are various restrictions on the Premises that include, but are not limited to, conveyance of the property, soil management, prohibited activities, and land - use. The OPERATOR must comply with the restrictions and limitations in Exhibit B. 3.9.3 CEQA Compliance. The Department of Toxic Substances Control is in the process of completing a CEQA review for the new improvements made to the Paradise Creek Educational Park which include the development of the Community Garden. In the event that DTSC does not approve the use of the Community Garden, the City may terminate this Agreement. 3.9.4 Cannabis Cultivation Prohibited. Notwithstanding any other provision in this Agreement, or in this Article 3.10, OPERATOR shall neither: (a) cultivate; (b) allow the cultivation of; (3) sell; nor (4) allow the sale of cannabis at the Premises. ARTICLE 4 UTILITIES 4.1 Utility Services. The CITY shall pay for electricity, water, and trash services at the Premises. If the CITY determines, in its sole discretion, that OPERATOR is negligent in its use of the utilities, CITY may hold a good faith meet and confer meeting with OPERATOR to discuss its utilities usage. ARTICLE 5 REPAIRS; MAINTENANCE 5.1 OPERATOR's Repair and Maintenance Obligations. OPERATOR acknowledges that it has made a thorough inspection of the Premises and that it accepts the Premises "as -is" as of the construction completion date. At OPERATOR's own cost and expense, OPERATOR shall repair, replace, and maintain the Premises in good, tenable condition as necessary. OPERATOR shall maintain the Premises in an accessible manner for use by individuals with disabilities and comply with federal and state law regarding accessibility, including but not limited to the Americans with Disabilities Act and California's Disabled Persons Act. Other than repair work in emergency situations not exceeding Three Thousand and no/100 Dollars ($3,000), OPERATOR shall not perform any repair work without the CITY's prior written consent. As used in this Article 5.1, "emergency" means a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services. All emergency repairs performed by the City on the Premises are governed by Public Contract Code Section 22050. OPERATOR's obligations under Maintenance & Operating Agreement Page 5 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center this Article shall apply regardless of whether the repairs, restorations, and replacements are ordinary or extraordinary, foreseeable or unforeseeable, capital or noncapital, the fault or not the fault of OPERATOR, its agents, employees, volunteers, invitees, visitors, or contractors. All replacements made by the OPERATOR shall be of like size, kind, and quality to the items replaced. 5.2 CITY Repair and Maintenance Obligations. For any repair and maintenance work exceeding Three Thousand and no/100 Dollars ($3,000), the CITY will consider the nature and priority of the work and available funding to determine whether the CITY may pay for such repairs. However, the CITY is under no obligation to replace any equipment the CITY purchases or installs after such equipment exceeds its useful life. The CITY may also provide mulch from its surplus one (1) to two (2) times per year; however, the amount and type will be determined by the CITY based on availability. 5.3 CITY Right to Inspect; CITY Not Obligated to Repair or Maintain. OPERATOR shall permit the CITY to enter the Premises at all times during usual hours of operation, or other hours in case of an emergency, to inspect the Premises. Any entry pursuant to this Article 5.3 shall not unreasonably interfere with OPERATOR's operation of the Premises. However, nothing contained in this Article 5 shall create any duty on the part of the CITY to do any work which, under any provision of this Agreement, OPERATOR may be required to do. ARTICLE 6 IMPROVEMENTS; ALTERATIONS 6.1 Improvements by OPERATOR. OPERATOR shall be responsible for all aspects of planting and supplying materials for the Premises which may include, for example: premium soil, potted fruit trees, seeds, seedlings, fertilizers, tools, irrigation supplies, and greenhouse supplies. Any improvements made by OPERATOR shall be accessible for use by individuals with disabilities and comply with federal and state law regarding accessibility, including but not limited to the Americans with Disabilities Act and California's Disabled Persons Act. OPERATOR will secure funding through grants and other means to fund improvements to the Premises. 6.2 Improvements by CITY. The CITY may undertake certain improvements at the Premises, in this Article 6.2. The CITY's ability to undertake any improvements is dependent upon its annually -approved budget, as well as the annually -approved capital improvement program. The CITY, at its sole discretion, may undertake those improvements described in this Article 6.2 at the CITY's own cost and expense. No representations, warranties, or assurances are made that funding will exist for the following capital improvement projects: 6.3 Alterations. OPERATOR may alter, replace, add to, change, or construct additional improvements to the Premises (collectively, "Alterations") as OPERATOR may find necessary or convenient for its operation of the Premises. Any Alterations performed by OPERATOR under this Article 6.3 shall be performed: (a) at OPERATOR's sole cost Maintenance & Operating Agreement Page 6 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center and expense; (b) with the CITY's prior written consent; and (c) in accordance with construction plans submitted to and approved by the CITY. 6.4 Construction Permits and Licenses. At all times during the Term, OPERATOR shall procure, at its sole cost and expense, all permits and licenses that are necessary or required from any local governmental agency for the proposed construction of any Alterations. The CITY may, in its sole discretion, waive CITY permitting fees where applicable. 6.5 Proposed Plans. In its sole discretion, the CITY may require OPERATOR to do any of the following: 6.5.1 Submit a complete set of proposed plans of any Alterations to the CITY; 6.5.2 Apply for and receive a permit from the Building Depaitinent to complete any Alterations; 6.5.3 Within sixty (60) days of a written request, furnish the CITY with a complete set of "as -built" plans for any CITY -approved Alterations. 6.6 Prevailing Wages. OPERATOR shall comply with prevailing wage statutes for any work not performed by volunteers. ARTICLE 7 MECHANICS' LIENS; STOP NOTICES 7.1 Mechanics' Liens; Stop Notices. OPERATOR shall pay, or cause to be paid, the total cost and expense of all works of improvement, as that phrase is defined in the Mechanics Lien Law in effect at time and place of construction, done by it, or caused to be done by it, on the Premises, and for all materials furnished for or in connection with any such work. If any lien or stop notice is filed against the Premises, OPERATOR shall cause the lien or stop notice to be discharged of record within one hundred eighty (180) days after it is filed. OPERATOR shall indemnify, defend, and hold the CITY harmless from any and all liability, loss, damage, costs, attorneys' fees, and all other expenses on account of claims of lien of laborers, materialmen, or others for work performed, or materials or supplies furnished for OPERATOR or persons claiming under OPERATOR. 7.2 Notice of Lien or Stop Notice. Should any claim of lien or stop notice related to OPERATOR's work of improvement of the Premises be filed against the Premises, or any action be filed against the Premises, or any action affecting the title to the Premises be commenced, the party receiving notice of such lien or stop notice or action shall immediately give the other party written notice thereof. 7.3 Notice of Non -Responsibility. The CITY or its representatives shall have the right to post and keep posted on the Premises notices of Non -Responsibility or such other notices which the CITY may deem to be proper for the protection of the CITY's interest in the Maintenance & Operating Agreement Page 7 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center Premises. OPERATOR shall, before the commencement of any work which might result in any such lien or stop notice, give to the CITY written notice of its intention to do so with sufficient time to enable posting of such notices. ARTICLE 8 TAXES 8.1 Definition. "Taxes" shall mean all taxes, governmental bonds, special assessments, charges, or transfer taxes, license and transaction fees, including, but not limited to, (a) any state, local, federal income tax, or any real or personal property tax, (b) increases in taxes attributable to OPERATOR's operation of the Premises, or (c) any taxes which are essentially payments to a governmental agency, other than the CITY, for the right to make improvements to the Premises. 8.2 Possessory Interest. Notwithstanding Article 2.1, OPERATOR acknowledges that this Agreement may create a possessory interest subject to property taxation and that OPERATOR may be subject to the payment of taxes levied on such interest. OPERATOR shall pay, before delinquency, all taxes, assessments, and fees assessed or levied upon the Premises. 8.3 Responsibility for Payment of Taxes. The CITY shall not be obligated to pay any Taxes accruing against any interest in OPERATOR's use of the Premises at any time before and during the Term. OPERATOR shall pay any Taxes that accrue against any interest in their use of the Premises. Additionally, OPERATOR shall pay any Taxes levied upon any Improvements, Fixtures, or Personal Premises located on the Premises to the extent such Taxes result from OPERATOR's operations or other activities held upon, or in connection with, the Premises. ARTICLE 9 INDEMNIFICATION AND INSURANCE 9.1 OPERATOR Indemnity. The CITY shall not be liable for, and OPERATOR shall defend, indemnify, and hold harmless the CITY, its officers, officials, agents, employees, and volunteers from any and all claims, costs, liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims resulting from, related to, or arising out of OPERATOR's improvement, operation or use of the Premises, or arising either directly or indirectly from any act, error, omission, or negligence of OPERATOR or its contractors, licensees, invitees, members, agents, servants or employees; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, officials, employees, or volunteers. CITY will cooperate reasonably in the defense of any action, and OPERATOR shall employ competent counsel, reasonably acceptable to the City Attorney. Maintenance & Operating Agreement Page 8 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 9.1.1 Third Party Indemnity. OPERATOR shall not invite third party organizations onto the Premises until said third party organization furnishes CITY a written agreement in which it indemnifies and holds CITY harmless, upon terms satisfactory to CITY. 9.1.2 Waivers from Third Parties. OPERATOR agrees to obtain from all guests, invitees, or third party organizations whose participants visit the Premises, a waiver of liability and hold harmless agreement upon terms satisfactory to the CITY. 9.1.3 Immunity. Consistent with Civil Code section 846.2, no cause of action shall arise against the CITY for injuries to any person who has been expressly invited onto the Premises to glean agricultural or farm products for charitable purposes, unless that person's injuries were caused by the gross negligence or willful and wanton misconduct of OPERATOR, in which case OPERATOR expressly indemnifies the CITY pursuant to this Article 9. The immunity provided by this section does not apply if the owner, tenant, or lessee received any consideration for permitting the gleaning activity. 9.2 Employee Payments & Indemnification. 9.2.1 OPERATOR'S employees providing service under this Agreement shall not: (1) qualify for any compensation and benefit under the California Public Employees Retirement System ("PERS"); (2) be entitled to any benefits under PERS; (3) enroll in PERS as an employee of CITY; (4) receive any employer contributions paid by CITY for PERS benefits; or (5) be entitled to any other PERS-related benefit that would accrue to a CITY employee. OPERATOR's employees hereby waive any claims to benefits or compensation described in this Article 9.2. This Article 9.2 applies to OPERATOR notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary. 9.2.2 PERS Eligibility Indemnification. If OPERATOR' s employee(s) providing services under this Agreement claims, or is determined by a court of competent jurisdiction or PERS to be eligible for enrollment in PERS of the CITY, OPERATOR shall indemnify, defend, and hold harmless CITY for the payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the CITY. 9.2.3 Limitation of CITY Liability. The payment made to OPERATOR under this Agreement shall be the full and complete compensation to which OPERATOR Maintenance & Operating Agreement Page 9 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center and OPERATOR's officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither OPERATOR nor OPERATOR's officers, employees, agents, and subcontractors are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to CITY employees. The CITY will not make any federal or state tax withholdings on behalf of OPERATOR. The CITY shall not be required to pay any workers' compensation insurance on behalf of OPERATOR. 9.2.4 Indemnification for Employee Payments. OPERATOR agrees to defend and indemnify the CITY for any obligation, claim, suit, or demand for tax, retirement contribution including any contribution to PERS, social security, salary or wages, overtime payment, or workers' compensation payment which the CITY may be required to make on behalf of (l) OPERATOR, (2) any employee of OPERATOR, or (3) any employee of OPERATOR construed to be an employee of the CITY, for work performed under this Agreement. This is a continuing obligation that survives the termination of this Agreement. 9.3 Insurance. OPERATOR, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractors, and third -party organizations OPERATOR invites onto the Premises, to purchase and maintain throughout the Term, the following insurance policies: 9.3.1 Commercial General Liability Insurance, with minimum limits of $2,000,000 per occurrence and $4,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location." The Commercial General Liability required by this Article, and any other excess policy OPERATOR procures in connection with this Article, must include Sexual Misconduct Liability coverage as well as pesticide or herbicide applicator limited pollution coverage . 9.3.2 Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. 9.3.3 Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of OPERATOR's employees, and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. Maintenance & Operating Agreement Page 10 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 9.3.4 If OPERATOR has no employees subject to the California Workers' Compensation and Labor laws, OPERATOR shall execute a Declaration to that effect. The form of said Declaration shall be provided to OPERATOR by the CITY. 9.3.5 The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY's Risk Manager, at the address listed in Article 9.2.7 below, of cancellation or material change. 9.3.6 If required insurance coverage is provided on a "claims made" rather than "occurrence" form, OPERATOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. 9.3.7 The Certificate Holder for all policies of insurance required by this Article 9.3 shall be: City of National City do Risk Manager 1243 National City Boulevard National City, CA 91950-4397 9.3.8 Insurance shall be written with only insurers authorized to conduct business in California that hold a current policy holder's alphabetic and financial size category rating of not less than A: VIII according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent List of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements. 9.3.9 This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If OPERATOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 9.3.10 All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. CITY reserves the right to modify the insurance requirements of this Article 9.2, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. CITY shall provide (60) days' notice for OPERATOR to meet any modified insurance requirements. Maintenance & Operating Agreement Page 11 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 9.3.11 If OPERATOR maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY shall be entitled to the broader coverage or higher limits (or both) maintained by OPERATOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. ARTICLE 10 TERMINATION 10.1 This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to OPERATOR. During this 60-day period, OPERATOR shall perform all services in accordance with this Agreement. This Agreement may also be terminated immediately by the CITY, for cause, if OPERATOR materially breaches this Agreement, misrepresents information regarding the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. Termination with or without cause shall be effected by delivery of written Notice of Termination to OPERATOR as provided for in this Agreement. The CITY further reserves the right to immediately terminate this Agreement upon: (a) the filing of a petition in bankruptcy affecting OPERATOR; (b) a reorganization of OPERATOR for the benefit of creditors; or (c) a business reorganization, change in business name or change in business status of OPERATOR. ARTICLE 11 HAZARDOUS MATERIALS Hazardous Materials Laws; Definition. As used in this Article, the term "Hazardous Materials' Laws" means any and all federal, state or local laws or ordinances, rules, decrees, orders, regulations or court decisions (including the so-called "common law") relating to hazardous substances, hazardous materials, hazardous waste, toxic substances, environmental conditions on, under, or about the Premises, soil and ground water conditions, or other similar substances or conditions. The following legal authority is a non -exhaustive list of the legal authority that applies to the definition of the term "Hazardous Materials Laws": • The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C., Section 9601 et seq.) • The Hazardous Materials Transportation Act, as amended (49 U.S.C., Section 1801 et seq.), and • The Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C., Section 6901 et seq.) 11.2 Hazardous Materials - Definition. As used in this Article the term "Hazardous Materials" means any chemical, compound, material, substance or other matter that: Maintenance & Operating Agreement Page 12 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 11.2.1 is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious material, whether injurious or potentially injurious by itself or in combination with other materials; 11.2.2 is controlled, referred to, designated in or governed by any Hazardous Materials Laws; 11.2.3 gives rise to any reporting, notice or publication requirements under any Hazardous Materials Laws, or; 11.2.4 is any other material or substance giving rise to any liability, responsibility or duty upon the CITY or the OPERATOR with respect to any third person under any Hazardous Materials Law. 11.3 OPERATOR Representations and Warranties. OPERATOR represents and warrants that, during the Term or any extension thereof, OPERATOR shall comply with the following provisions of this Article unless otherwise specifically approved in writing by the CITY, subject to the terms and conditions of the OPERATOR's maintenance obligations provided elsewhere in this Agreement: 11.3.1 OPERATOR shall not cause or permit any Hazardous Materials to be brought, kept or used in or about the Premises by OPERATOR, its agents, employees, assigns, contractors or invitees, except as required by OPERATOR's permitted use of the Premises in the normal course of operations; 11.3.2 Any handling, transportation, storage, treatment, or usage by OPERATOR of Hazardous Materials that is to occur on the Premises following the Commencement Date shall be in compliance with all applicable Hazardous Materials Laws; 11.3.3 Any leaks, spills, release, discharge, emission or disposal of Hazardous Materials which may occur on the Premises following the Commencement Date shall be promptly and thoroughly cleaned and removed from the Premises by OPERATOR at its sole expense, and any such discharge shall be promptly reported in writing to the CITY, and to any other appropriate governmental regulatory authorities; 11.3.4 No friable asbestos shall be constructed, placed on, deposited, stored, disposed of, or located by OPERATOR on the Premises; 11.3.5 No underground improvements, including but not limited to treatment or storage tanks, or water, gas or oil wells shall be located by OPERATOR on the Premises without the CITY's prior written consent; Maintenance & Operating Agreement Page 13 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 11.3.6 OPERATOR shall promptly supply the CITY with copies of all notices, reports, correspondence, and submissions made by OPERATOR to the United States Environmental Protection Agency, the United Occupational Safety and Health Administration, and any other local, state or federal authority which requires submission of any information concerning environmental matters or hazardous wastes or substances pursuant to applicable Hazardous Materials' Laws; and 11.3.7 OPERATOR shall promptly notify the CITY of any liens threatened or attached against the Premises pursuant to any Hazardous Materials' Law. If such a lien is filed against the Premises, then, within the earlier of (i) twenty (20) days following such filing, or (ii) before any governmental authority commences proceedings to sell the Premises pursuant to the lien, OPERATOR shall either: (a) pay the claim and remove the lien from the Premises, or (b) furnish either: (1) a bond or cash deposit reasonably satisfactory to the CITY in an amount not less than the claim from which the lien arises, or; (2) other security satisfactory to the CITY in an amount not less than that which is sufficient to discharge the claim from which the lien arises. 11.3.8 At the end of this Agreement, OPERATOR shall surrender the Premises to the CITY free of any and all Hazardous Materials and in compliance with all Hazardous Materials' Laws affecting the Premises. ARTICLE 12 ASSIGNMENT 12.1 Assignment; CITY's Consent Required. OPERATOR shall not voluntarily or involuntarily assign or otherwise transfer all or any portion of its rights and duties under this Agreement without the City Manager's's prior written consent. For example, the City Manager must consent to any third party or parties that OPERATOR wishes to engage in providing special services or programming at the Premises. Any attempted assignment or transfer without the City Manager's prior written consent shall be void. ARTICLE 13 DEFAULTS BY OPERATOR OR BY CITY; REMEDIES 13.1 Events of Default; Remedies. The following sub -articles shall apply if either OPERATOR or the CITY neglects, fails to perform, or fails to observe any of their respective obligations under the terms, covenants, or conditions contained in this Agreement ("Default"): Maintenance & Operating Agreement Page 14 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 13.1.1 Thirty -Day Correction of Default. If either OPERATOR or the CITY determines that the other party is in Default, then the non -defaulting party must provide the defaulting party written notice of the Default and thirty (30) days to correct the Default. 13.1.2 Extended Correction of Default. If the defaulting party determines that more than thirty (30) days is required to correct the Default, the defaulting party must provide the other party written notice of the reasons why additional time is required to correct such Default. The defaulting party must use diligent efforts to correct a Default under this Article 13.1.2 and, in any case, must correct such Default within ninety (90) days from the date of the written notice of default. 13.1.3 Remedies for Failure to Correct Default. If the defaulting party fails to comply with Article 13.1.1. or 13.1.2, then the non -defaulting party may immediately terminate this Agreement. The defaulting party shall be liable to the non -defaulting party for any and all damages sustained by the non -defaulting party as a result of the defaulting parties' breach. ARTICLE 14 ABANDONMENT 14.1 Abandonment. OPERATOR shall not vacate or abandon the Premises at any time during the Term nor permit the Premises to remain unoccupied for a period of longer than five (5) consecutive days during the term of this Agreement. These provisions shall not apply if the Premises is closed and operation is temporarily discontinued therein on account of strikes, lockouts, acts of nature, or similar causes beyond the reasonable control of OPERATOR. Any exceptions must be submitted in writing to the City Manager or designee for approval. ARTICLE 15 DAMAGE OR DESTRUCTION 15.1 OPERATOR's Duty to Repair Casualty. OPERATOR shall, as expeditiously as reasonably possible, repair any damages to the Premises caused by fire, earthquake, or any other identifiable event of a sudden, unexpected, or unusual nature ("Casualty"), and repair, restore, and replace any such damaged or destroyed Fixtures, Improvements or Personal Premises ("Casualty Repairs"). Any Casualty Repairs made under this Article 15 are: (a) To be performed at OPERATOR's sole cost and expense; (b) To be performed except as otherwise provided in this Article 15; and are (c) Subject to all other terms and conditions of this Agreement. 15.2 Construction Provisions. In the event of any reconstruction of the Premises, Fixtures or Improvements required of OPERATOR pursuant to this Article, OPERATOR shall repair Maintenance & Operating Agreement Page 15 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center the Premises, and repair or rebuild such Fixtures and Improvements, to substantially the same condition they were in immediately preceding such Casualty. 15.3 No Abatement. In the event of reconstruction, replacement, or repair by OPERATOR pursuant to this Article, OPERATOR shall continue its operations on the Premises during any such period to the extent reasonably practicable from the standpoint of prudent business management, and in continuing compliance with applicable laws and regulations. OPERATOR shall not be entitled to any compensation or damages from CITY for: (a) loss of use of the whole or any part of the Premises; (b) OPERATOR's Personal Property; or (c) any inconvenience or annoyance occasioned by such damage, reconstruction, or replacement. 15.4 Major Destruction. Notwithstanding any of the foregoing provisions of this Article to the contrary, if, at any time after the Commencement Date, (a) the Improvements are damaged or destroyed to the extent of more than twenty-five percent (25%) of their replacement cost, or (b) the damage is such that the Improvements cannot be repaired and restored within one hundred and eighty (180) days after the Casualty, then OPERATOR shall have the right to terminate this Agreement upon thirty (30) days' prior written notice to the CITY. ARTICLE 16 EMINENT DOMAIN 16.1 Condemnation. OPERATOR may terminate this Agreement within twenty (20) days after the date that a condemning authority (by a party other than the CITY) takes possession of the Premises by delivery of written notice of such condemnation if: (a) If all of the Premises is taken under eminent domain proceedings; or (b) less than all of the Premises is taken under such eminent domain proceeding and the part taken substantially impairs the ability of OPERATOR to use the remainder of the Premises for the purposes permitted by this Agreement. In the absence of such written notice from a condemning authority, OPERATOR may terminate this Agreement within twenty (20) days after the condemning authority shall have taken possession. 16.2 Continuation of Operating Agreement after Condemnation. If this Agreement is not terminated by OPERATOR, it shall remain in full force and effect as to any portion of the Premises remaining, and this Agreement will end as of the date possession of the part taken by the public entity as to the part of the Premises that is taken. 16.3 Award. All monies awarded in any condemnation shall belong to the CITY. The CITY shall have no liability to OPERATOR for any award not provided by the condemning authority. Maintenance & Operating Agreement Page 16 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center ARTICLE 17 SALE OR MORTGAGE BY CITY 17.1 Sale or Mortgage. The CITY may, pursuant to existing and subsequently enacted CITY ordinances and State laws, at any time, and without the consent of OPERATOR, vacate, sell, purchase, exchange, transfer, assign, lease, encumber or convey the CITY's interest in whole or in part, in the Premises (collectively referred to in this Article as a "Sale"). The CITY shall provide to OPERATOR written notice of the CITY's intent to a Sale or discontinuance pursuant to this Article at least ninety (90) days prior to said proposed transfer. 17.2 Release on Sale. From and after a Sale or discontinuance of the CITY's entire interest in the Premises, the CITY shall be released from all liability to OPERATOR and OPERATOR successors and assigns arising from this Agreement because of any act, occurrence, or omission of the CITY occurring after such Sale. ARTICLE 18 CITY'S RIGHT OF ACCESS 18.1 Right of Entry. CITY, its agents, employees, and contractors may enter the Premises at any time with or without notice to OPERATOR to: (a) (b) (c) (d) (e) (f) respond to health and safety concerns; inspect the Premises and Improvements; determine whether OPERATOR is complying with its obligations in this Agreement (including its obligations with respect to compliance with Hazardous Materials Laws) post notices of non -responsibility or similar notices inspect the progress of construction of any improvement; or make repairs that this Agreement requires or allows CITY to make, or make repairs to any adjoining space or utility services, or make repairs, alterations, or improvements to any other portion of the Premises All work enumerated in Article 18 must be done as promptly as reasonably possible and so as to cause as little interference to OPERATOR as reasonably possible. Personal storage space for volunteers of OPERATOR, the personal effects of OPERATOR volunteers and staff, and the OPERATOR volunteers and staff themselves are not subject to search by the CITY, absent cause. ARTICLE 19 NOTICES 19.1 Notices. Whenever in this Agreement it shall be required or permitted that notice or demand be given or served by either party to this Agreement to or on the other, such notice or demand shall be in writing, mailed or personally delivered to the other party at the addresses specified below. Mailed notices shall be sent by United States Postal Maintenance & Operating Agreement Page 17 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center Service, postage prepaid and shall be deemed to have been given, delivered, and received three (3) business days after the date such notice or other communication is posted by the United States Postal Service. All other such notices or other communications shall be deemed given, delivered, and received upon actual receipt. Either party may, by written notice delivered pursuant to this provision, at any time designate a different address to which notices shall be sent. CITY: City of National City Attention: City Manager 1243 National City Boulevard National City, CA 91950-4397 With a copy to: OPERATOR: City of National City Attention: Director of Community Services 140 East 12th Street, Suite B National City, CA 91950 Olivewood Gardens & Learning Center Attention: Executive Director 2525 N Avenue National City, CA 91950 ARTICLE 20 NONDISCRIMINATION 20.1 Nondiscrimination. OPERATOR hereby covenants by and for itself, its successors, assigns and all persons claiming under or through it, that this Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against, or segregation of, any person or group of persons on account of race, age, color, creed, religion, sex, sexual orientation, marital status, national origin, physical handicap, medical condition, ancestry, or any other legally protected category, in the use, operation, or enjoyment of the Premises. ARTICLE 21 RECORDS, ACCOUNTS, AND AUDITS 21.1 OPERATOR'S Duty to Keep Records. OPERATOR shall, at all times during the Term, and for a period of five (5) years following expiration or earlier termination of this Agreement, keep or cause to be kept, true and complete books, records and accounts of all (a) construction undertaken pursuant to the rights conferred on OPERATOR under Maintenance & Operating Agreement Page 18 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center this Agreement, and (b) financial transactions in the operation of all business activities, of whatever nature, conducted pursuant to the rights granted by this Agreement. Such records shall also include the source and disposition of all trash and other waste collected and disposed of by OPERATOR in the operation of its business. Said records must be supported by source documents such as receipts, invoices, sales slips, cash register tapes, purchase invoices or other pertinent documents. 21.2 CITY's Right to Audit. All OPERATOR books, accounts, and records shall be kept and made available at one location within the limits of the County of San Diego. The CITY shall have the right at any reasonable time to examine and perform audits of OPERATOR's records pertaining to (a) construction undertaken pursuant to the rights conferred on OPERATOR under this Agreement, and (b) its operations on the Premises, including, without limitation, any records pertaining to OPERATOR's use of utilities on the Premises. The cost of said audits shall be borne by the CITY, except that OPERATOR shall provide to the CITY, at OPERATOR's expense, necessary data to enable the CITY to fully comply with each and every requirement of the State of California or by the United States of America for information or reports relating to this Agreement and to OPERATOR's use of the Premises. ARTICLE 22 ADMINISTRATIVE PROVISIONS 22.1 Authority. OPERATOR represents and warrants that it has full power and authority to execute and fully perform its obligations under this Agreement pursuant to its governing instruments, without the need for any further action, and that the person executing this Agreement on behalf of OPERATOR is the duly designated agent of OPERATOR and is authorized to do so. 22.2 Captions. The captions and headings appearing in this Operating Agreement are inserted for convenience only and in no way define, limit, construe, or describe the scope or intent of the provisions of this Agreement. 22.3 CITY Approval. Except where stated in this Agreement to the contrary, the phrases "CITY approval", and "CITY's written approval" or such similar phrases shall mean approval of the City Manager or designee, which approval shall not be unreasonably withheld. 22.4 Cumulative Remedies. In the event of a default under this Agreement, each party's remedies shall be limited to those remedies set forth in this Agreement. Any such remedies are cumulative and not exclusive of any other remedies under this Agreement to which the non -defaulting party may be entitled. 22.5 Entire Agreement. This Agreement, together with all addenda and exhibits attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings and representations, oral or written, are superseded. Maintenance & Operating Agreement Page 19 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 22.6 Exhibits. All exhibits referred to herein are attached hereto and incorporated by reference: Exhibit "A": Proposed Area for Community Garden at Paradise Creek Park Exhibit "B": Garden Limitations 22.7 Force Majeure. If either party is prevented or delayed from performing any act or discharging any obligation hereunder, because of any and all causes beyond either party's reasonable control, including unusual delays in deliveries, abnormally adverse weather conditions, unavoidable casualties, strikes, labor disputes, inability to obtain labor, materials or equipment, acts of God, governmental restrictions, regulations or controls, any hostile government actions, acts of terrorism, civil commotion and fire or other casualty, legal actions attacking the validity of this Agreement or the CITY or OPERATOR's operations of the Premises, or any other casualties beyond the reasonable control of either party ("Force Majeure"), performance of such act shall be excused for the period of such delay, and the period for performance of such act shall be extended for a period equivalent to the period of such delay. Force Majeure shall not include any bankruptcy, insolvency, or other financial inability on the part of either party hereto. 22.8 Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. 22.9 Independent Contractor. OPERATOR acknowledges that it is an independent contractor; that it alone retains control of the manner of conducting its activities in furtherance of this Agreement; and that it, as well as any persons, contractors or agents it may employ, are not employees of CITY for any purpose. 22.10 Interpretation. The provisions of this Agreement shall be liberally construed to effectuate its purpose. The language of all parts of this Agreement shall be construed simply according to its plain meaning and shall not be construed for or against either party. 22.11 OPERATOR's Agreement Administration. OPERATOR confirms that OPERATOR's Agreement Administrator has been given full operational responsibility for compliance with the terms of this Agreement. OPERATOR shall provide the CITY with a written schedule of its normal hours of business operation on the Premises, and OPERATOR's Agreement Administrator, or a representative designated thereby, shall be available to the CITY during OPERATOR's normal business hours, to resolve problems or answer question pertaining to this Agreement and OPERATOR's operations on the Premises. 22.12 Modification. The provisions of this Agreement may not be modified, except by a written amendment signed by both parties. Maintenance & Operating Agreement . Page 20 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 22.13 Partial Invalidity. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by law. 22.14 Successors & Assigns. This Agreement shall be binding on and inure to the benefit of the parties and their successors and assigns, except as may otherwise be provided herein. OPERATOR shall not assign this agreement to any other party unless approved in writing by the CITY. 22.15 Time of Essence. Time is of the essence of each and every provision of this Agreement. 22.16 Waiver. No provision of this Operating Agreement or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed. [END OF AGREEMENT — SIGNATURES APPEAR ON NEXT PAGE] Maintenance & Operating Agreement Page 21 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center IN WITNESS WHEREOF, the CITY and OPERATOR have duly executed this Agreement as of the day and year first above written. CITY OF NATIONAL CITY OLIVEWOOD GARDENS (OPERATOR) (CITY) By: Alejandra Sotelo-Solis, Mayor APPROVED AS TO FORM: By: Angil P. Morris -Jones Deputy City Attorney By: r� ame) v Ph1 Jcr� wil—Tict1/4;LT (Print) a o-vc- CkLV (Title) By: \'�.� (Name) N E. J (Print) (Title) Maintenance & Operating Agreement Page 22 of 27 City of National City and August 4, 2020 ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center EXHIBIT A - Proposed Area for Community Garden at Paradise Creek Park The proposed are for the community garden at Paradise Creek Park will be approximately 9,160 square feet (.21 acres) of open area located on the northern half of Paradise Creek Park. The finished surface material will be decomposed granite, consistent with the Plaza area of the park. Proposed garden amenities include planter beds, a storage shed, other site furnishings and an 8 foot tall galvanized mesh fence along the perimeter. Maintenance & Operating Agreement Page 23 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center g�$ m.� SUBS1NUCTURCS. TRW KRUS_ z S ALA -LAY VLIAI EXHIBIT A nMMUNITY GARDEN ENLARGEMENT PLAN KEY NOTES • POLENOLINTED SOLAR UGH! PER ELECTRICAL RUNS Q EXISTING IMPROVEMENTS - SEE HARMONIC MO 215T STREETIMPROYEMENTS L PARADISE CREEK PARK ROUGH GRADING CP WIN © CONNECT CURB OUTLET ® CONSTRUCT 1BI2 CONCRETE CATCH BASIN WITH TRAFFIC GRATE SHED SCALE ENLARGEMENT PLAN COMMUNITY GARDEN MATERIAL SCHEDULE ., .IMUN,.IIPAWM .I.I 1 wNIIMYAN FPcn ALu iinfordlt Aw[NN.F..0.WtK nwlvl AiN �II.FIaF COIW ufsAlWp FN YIl r4NLEN I 1. 1•61.1 r[fN �Y� .016 T JLIJ 'T6r6- 211U n.MwuIEBAY NN'wilx,AllW Elul M.narR FFMH MWUlxucf. w1.n 1 P,ANLO ow. wNR 0BTR Caxlwclexrulaurtu rwuF.11.1.EVwuuul L iJLfau 11� xNA r... w,...+wwExl...l,.1 4,,w IIIN ux,xlw-i,.wlNo I,wln...lw.. Wnr . CONCRETE PAD C ABOVE FINISH GRADE ACTURED SHED -ASSEMNE ON -SITE A CLAD NIERION WALLS A CEILING WHM f MUF WALLL10. SECURITY EQUIPMENT CABINET - SEE SECURITY PLANS A SPECS WALLACE). SWITCH CONTROLS -SEE ELECTRICAL RUNS L SPECS /\ CONSTRUCT w006FI AHED CENTER PMTRLN 2.1 a 16 O.C. NTH f bOF CLALILWIG tit HAUNT. SECURE UTILITY ROOM OWN 10CEN TER PARIIICN W ITM RASP AND CIT./PROVIDED LUCK LOCKABLE METAL DOUBLE -DOORS GENERAL NOTES 1. CONSTRUCTEGPNISICN JOINTS AT ALL LOCATIONS WHERE NEW PAVING MEETS A VEHIIGLL SURFACE. AW AI IBO.C. WIENE NOT SHOWN ON PLANS. 2. HELD VERIFY ALL EXISTING DIMENSIONS AND CONDITIONS PRIOR TO MOOING Wu.. ] INSTALL ALL IRRIGATION SLEEVNG PRIOR 10 FORMING CONCRETE - SECNRIGAINNIPUNS. B. COORDINATE ALI SITE UTILITY LOCATIONS WITH PAVEMENT AND PLANING PLANS. SEMEY FINAL LOCATIONS PRIOR 10 SINN OR PUNK S. INSTALL ALL MINING SIEEVINO PRIOR TO FORIMNG CONCRETE. SEE ELECTRICAL FLANS. & STARE ALL IMPROVEMENTS FOR LAROSC PE ARCHITECTS REVEW 10 Ns INN/atilt L 1.01 IRCLANAIIOM OF NLSPONSNLE CHANGE N L.A roo.fone WAIL _J$.CFPA'-- NATEONAL CITY PARADISE CREEK EDUCATKINAL PACK CITY OF NATIONAL CITY of NOP . n. MI -la MAL. N or_q NMIf 11513-19-D OP 18-16 - PARADISE CREEK EDUCATIONAL PARK - BID SET- 3 JUNE 2019 8 EXHIBIT A • 0, .-i 0 z m LLl Ln 0 m , / d • Z O U D 0 OC OC U LL Ln cc Q Q CO ti 2 U 8 .•- PARADISCREEJ( . -- .• - Nnx�W:!C!'KSCr. PiWN'•I:.L• C!Ih L SITE PLAN SCALE. IIB KEY NOTES A MITMYNII- FUNEA1S1Wl;14.44N1AWM:.51NEET 44463T- -WAY& 31.0113.33144143331.3 YANKING LOT LAMBS i GUI IENS. NC FtKVIINA YAVNG XE CW ItlL] Y'MWENENI RNC AND WISH.: luN GRANGES Flit 1 VIII/IG AVE. NIU 11S 15I. OB FNST11Ki105KO TORFF.WIAND IO BF LIPRLWFf UNDER MIS LW 1I44:1. OE WING CHAIN I INK FENCE TO BFLIOOIFIEO TINDERTNIS CONINACT DIOANERT I LR� 1_T e LO.0 u14:I43AIY1N OF N4514015431. CIW(I,l N LA .04113 P. MIL ILA Ill, NATIONALCITY SIC NA lit[ WAu[N5 INO PARADISE CREEK EDUCATIONAL PARK CITY OF NATIONAL CITY 411 M-M 11513- 2 -D EXHIBIT B — Garden Limitations As part of the environmental regulatory closure for the Paradise Creek Park (Subject Property), the City has entered a Land Use Covenant (LUC) with the Department of Toxic Substances Control (DTSC). The intent of the LUC is to restrict future land use and or site development activities on the Subject Property that could impact the integrity of the cap or disturb the impacted soil below the cap. In the event that land use activities change or redevelopment activities occur on the Subject Property, the LUC also provides requirements for notifying DTSC in writing of any such changes that could result in any activity that would disturb the ground surface (e.g., trenching, excavating, grading, pot holing, etc.). As part of the new park development plans, the City is planning to construct a community garden that would be managed and operated by a third party approved by the City. The proposed community garden is planned to be constructed in the northwestern area of the Subject Property. The following paragraphs address requirements and limitations associated with building the community garden in compliance with the LUC. Background Historic environmental studies that have been conducted on the Subject Property and under the authority of the DTSC have determined that lead is the primary chemical of concern that could present an unacceptable risk to human health based on residential land use scenario. In consideration that the Subject Property is not being redeveloped for residential purposes, DTSC approved leaving higher concentrations of lead on site and required that the upper three (3) feet of soil be excavated and hauled off -site. DTSC further required that three (3) feet of clean soil be placed above the native soils to serve as a cap to eliminate direct exposure to the lead -impacted soils. Additionally, DTSC required the City to enter a LUC with DTSC that would restrict future reuse activities on the Subject Property. Conditions of the LUC The LUC provides for various restrictions on the property that include conveyance of the property, soil management, prohibited activities, and land -use just to name a few. As the LUC pertains to the construction, operation, maintenance and management of the community garden, the following restrictions or limitations should be considered. 1. No activities that will disturb soil deeper than three feet (e.g., excavating, grading, soil removal, trenching, filling, earth movement, or drilling) shall be allowed on the property unless pre -approved by DTSC in writing. 2. Extraction or removal of groundwater is prohibited. 3. Activity that may alter, interfere with, or otherwise affect the impacted soil located below three feet are prohibited unless pre -approved by DTSC in writing. 4. All planting/growing activities must be conducted in a raised planter bed. 5. No plants may be planted directly into the cap or ground surface. 6. No plant with a root system that would penetrate below the bottom of the raised bed may be planted. 7. Irrigation or watering activities shall be conducted such that these activities do not contribute to erosion to the three feet cap. Drip irrigation is recommended to control runoff and erosion. Maintenance & Operating Agreement Page 24 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center 8. The community garden shall be inspected annually by the City verifying compliance with the LUC. The inspection report shall be submitted to DTSC for its approval by January 31 of each year. In the event that any activity that could have the potential of disturbing the impacted soil located below the three feet cap or that could compromise the integrity of the camp must be reported to DTSC for pre -approval in writing. Maintenance & Operating Agreement Page 25 of 27 August 4, 2020 City of National City and ICF Center for Cross -Border Philanthropy d.b.a. Olivewood Gardens & Learning Center ACORO' OLIVGAR-01 CERTIFICATE OF LIABILITY INSURANCE VSZAFRANSKI DATE (MM/DD/YYYY) 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). PRODUCER License # 0525512 Teague Insurance Agency, Inc. 470o Spring St., #400 La Mesa, CA 91942-0275 CONTACT NAME: PHONE FAX (NC, No, Ext): (619) 464-6851 (Nc, No):(619) 668-4715 E-MAILInfo@teagueins.com INSURER(S) AFFORDING COVERAGE NAIC B INSURER A : Nonprofits' Insurance Alliance of California INSURED Olivewood Gardens & Learning Center 2505 N. Avenue National City, CA 91950 INSURER B : Nova Casualty Company 42552 INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: • 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 POLIC ES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INS() SUER WVD POLICY NUMBER POLICY EFF IMM/DDIYYYY) POLICY EXP (MM/DD/YYYYI LIMITS A X COMMERCIAL GENERAL LIABILITY X 201926382 9/20/2019 9/20/2020 EACH OCCURRENCE $ 1,000,000 CLAIMS -MADE X OCCUR PREMISES (Ea occur ence) $ 500,000 X Pollution Included MED EXP (Any one person) $ 20,000 PERSONAL 8 ADV INJURY $ 1,000,000 GEN'L )71 AGGREGATE POLICY OTHER: LIMIT APPLIES PRO- JECT PER: LOC GENERAL AGGREGATE $ 3,000,000 PRODUCTS - COMP/OPAGG S 3,000,000 LIQUOR LIABILIT $ 1,000,000 A AUTOMOBILE X LIABILITY — _ X _ SCHEDULED AUTOS NON-QVVNED AUTO ONLY 201926382 9/20/2019 9/20/2020 COMBINED SINGLE LIMIT fEa accident) $ 1,000,000 BODILY INJURY (Per person) S BODILY INJURY (Per accident) S PROPERTY DAMAGE (Per accident) S A X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE 201926382UMB 9/20/2019 9/20/2020 EACH OCCURRENCE S 5,000,000 AGGREGATE $ 5,000,000 DED RETENTION $ $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS below Y/ N N IA X CFI-WK-10000235-02 9/20/2019 9/20/2020 X PER OTH- STATUTE ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE S 1,000,000 E.L. DISEASE- POLICY LIMIT $ 1,000,000 A Sexual Misconduct 201926382 9/20/2019 9/20/2020 each claim/aggregate 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is requi ed) RE: Paradise Creek Community Garden The City of National City, its officials, agents, employees and volunteers are included as additional insured for ongoing operations with respects to General Liability, when required by written contract or agreement, and with waiver of subrogation with respects to the workers compensation, per attached forms. Pollution liability is included within the general liability policy, per form attached. CERTIFICATE HOLDER CANCELLATION City of National City c/o Risk Manager 1243 National City Boulevard National City, CA 91950 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 2019-26382 COMMERCIAL GENERAL LIABILITY Named Insured: ICF Center for Cross -Border Philanthropy* THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE CG20100413 Name Of Additional Insured Person(s) Or Organization(s) Location(s) Of Covered Operations The City of National City and its officers, agents, employees and volunteers Paradise Creek Community Garden All insured premises and operations. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or CG20100413 © Insurance Services Office, Inc., 2012 Page 1 of 2 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. C. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG 20 10 04 13 © Insurance Services Office, Inc., 2012 Page 2 of 2 POLICY NUMBER: 2019-26382 COMMERCIAL GENERAL LIABILITY Named Insured: ICF Center for Cross -Border Philanthropy* CG 20 12 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - STATE OR GOVERNMENTAL AGENCY OR SUBDIVISION OR POLITICAL SUBDIVISION - PERMITS OR AUTHORIZATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE State Or Governmental Agency Or Subdivision Or Political Subdivision: Subdivision: Any state or political subdivision that issues a permit or authorization to the named insured. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured any state or governmental agency or subdivision or political subdivision shown in the Schedule, subject to the following provisions: 1. This insurance applies only with respect to operations performed by you or on your behalf for which the state or governmental agency or subdivision or political subdivision has issued a permit or authorization. However: a. The insurance afforded to such additional insured only applies to the extent permitted by law; and b. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. 2. This insurance does not apply to: a. "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the federal government, state or municipality; or b. "Bodily injury" or "property damage" included within the "products -completed operations hazard". B. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1 Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG 20 12 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 1 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC040306 (Ed. 04$4) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 5 % of the California workers' compensation premium otherwise due on such remuneration. SCHEDULE PERSON OR ORGANIZATION JOB DESCRIPTION CITY OF NATIONAL CITY C/O RISK MANAGER 1243 NATIONAL CITY BLVD NATIONAL CITY, CA 91950 ON —SITE FOR SUPERVISION, TO HELP MAKE SURE THE GARDEN WAS UP AND RUNNING, RUNNING WORKSHOPS, ETC This endorsement changes the policy to which it is attached and is effective on the date issued un:ess otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 03-03-20 Policy No. CF1—WK-10000235-02 Endorsement No. 001 Insured OLIVEWOOD GARDENS & LEARNING Premium $ INCL Insurance Company Nova Casualty Company Countersigned By 1998 by the Workers' Compensation Insurance Rating Bureau of California. All rights reserved. From the WCIRB's California Workers' Compensation Insurance Forms Manual © 1999. Policy Number: 2019-26382 COMMERCIAL GENERAL LIABILITY CG 22 64 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PESTICIDE OR HERBICIDE APPLICATOR - LIMITED POLLUTION COVERAGE This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Description Of Operations: Application of Soap/Water Information required to complee this Schedule, if not shown above, will be shown in the Declarations. With respet to the operations shown in the Schedule, Paragraph (1)(d) of Exclusion f. of Section I - Coverage A - Bodily Injury And Property Damage Liability does not apply if the operations met all standards of anystatute, ordinance, regulation or license requirement of any federal, state or local government which apply to those operations. AC D VEHICLE OR EQUIPMENT CERTIFICATE OF INSURANCE DATE (MMIDD/YYYY) 03/03/2020 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. This form is used to report coverages provided to a single specific vehicle or equipment. Do not use this form to report liability coverage provided to multiple vehicles under a single policy. Use ACORD 25 for that purpose. PRODUCER Statefarm Lazaro Insurance Agency, Inc. 0 3924 El Cajon Blvd CONTACT NAME: Lazaro Neto IPHONE, , Ext): 619-229-6799 FAX NoJ: 619 229-6796 E-MAILDESS: lazaro.neto.m36f@statefarm.com O--O, San Diego, CA 92105 NATIONAL CITY CA 91950-6019 PRODUCER CUSTOMER ID #: INSURER(S) AFFORDING COVERAGE NAIC # INSURED INTERNATIONAL COMMUNITY FOUNDATION 2525 N AVE NATIONAL CITY CA 91950-6019 INSURER A : State Farm Mutual Automobile Insurance Company 25178 INSURER B: INSURER C : INSURER D : INSURER E : DESCRIPTION OF VEHICLE OR EQUIPMENT YEAR 2006 MAKE / MANUFACTURER TOYOTA MODEL TUNDRA BODY TYPE PICKUP VEHICLE IDENTIFICATION NUMBER 5TBJU32156S470409 DESCRIPTION VEHICLE/EQUIPMENT VALUE $ SERIAL NUMBER COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICY(IES) OF INSURANCE LISTED BELOW HAS/HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD(S) 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 POLICY(IES) DESCRIBED HEREIN IS/ARE SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICY(IES). INSR LTR ADM INSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YYYY) POLICY EXPIRATION DATE (MM/DDIYYYY) LIMITS Y X VEHICLE LIABILITY 279 9438-B13-558 02/13/2020 08/13/2020 COMBINED SINGLE LIMIT $ BODILY INJURY (Per person) $ 1,000,000 BODILY INJURY (Per accident) $ 1,000,000 PROPERTY DAMAGE $ 1,000,000 GENERAL LIABILITY OCCURRENCE CLAIMS MADE EACH OCCURENCE $ GENERAL AGGREGATE $ $ INSR LTR LOSS PAYEE TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YYYY) POLICY EXPIRATION DATE (MM/DD/YYYY) LIMITS / DEDUCTIBLE X VEH COLLISION LOSS 279 9438-1313-55B 02/13/2020 08/13/2020 ❑. ACV ❑ AGREED AMT ❑ ❑ STATED AMT $ $ 250 LIMIT DED X VEH COMP VEH OTC 279 9438-B13-55B 02/13/2020 08/13/2020 ❑' ACV 0 AGREED AMT ❑ ❑ STATED AMT $ $ 250 LIMIT DED EQUIPMENT BASIC SPECIAL BROAD ❑ ACV ❑ AGREED AMT ❑ RC ❑ STATED AMT 0 $ S LIMIT DED - - REMARKS (INCLUDING SPECIAL CONDITIONS / OTHER COVERAGES) (Attach ACORD 101, Additional Remarks Schedule, if more space is required) ADDITIONAL INTEREST CANCELLATION Select one of the following: The additional interest described below has been added to the policy(ies) listed herein by policy number(s). XA request has been submitted to add the additional interest described below to the policy(ies) listed herein by policy number(s). VEHICLE / EQUIPMENT INTEREST: LEASED FINANCED SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. DESCRIPTION OF THE ADDITIONAL INTEREST NAME AND ADDRESS OF ADDITIONAL INTEREST CITY OF NATIONAL CITY 1243 NATIONAL CITY BLVD. NATIONAL CITY, CA 91950 X ADDITIONAL INSURED LOSS PAYEE LENDER'S LOSS PAYEE LOAN I LEASE NUMBER AUTHORIZED REPRESENTATIVE I 7 i/`/oar %i0/2.4,3 © 1997-2015 ACORD CORPORATION. All rights reserved. ACORD 23 (2016/03) The ACORD name and logo are registered marks of ACORD 1nnd7A1 1d7QA7 7 n1_7R_7n1R tart CHW Community HousingWorks PROFESSIONAL. SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into this 27th day of January , 2020 ("Effective Date"), by and between CHW, a California non-profit organization and Olivewood Gardens, a California tax-exempt, charitable organization ("Contractor") that will serve as fiscal agent for Mundo Gardens, also a California tax-exempt, charitable organization. 1. Contractor agrees to ensure performance of the Scope of Services detailed in Exhibit A (the 'Work") for CHW, at Paradise Creek Community Garden in National City, CA. Contractor agrees to submit a narrative update and financial report at the six month and one-year marks indicating specifically what activities have been undertaken as part of the Scope of Services, and also how funds have been spent with an explanation for any variance from the proposed budget. Contractor will report garden viability to CHW staff, City staff and Council as requested, to inform the ongoing development of National City's urban agriculture -related efforts. 2. Term. This Agreement shall be effective on the date first written above and shall remain in effect for one year, unless otherwise terminated pursuant to the provisions herein. 3. Compensation/Payment. Contractor shall perform the Services under this Agreement for the total sum not to exceed $40,000 payable in accordance with the terms set forth in Exhibit "B." Said payment shall be made in accordance with CHW"s usual accounting procedures upon receipt and approval of an itemized invoice setting forth the services performed. The invoices shall be delivered to CHW at the address set forth in Section 4 hereof. 4. Notices. Any notices required to be given, hereunder shall be in writing and shall be personally served or given by mail. Any notice given by mail shall be deemed given when deposited in the United States Mail, certified and postage prepaid, addressed to the party to be served as follows: Susan Reynolds, Chief Executive Officer Community HousingWorks 3111 Camino del Rio North, Suite 800 San Diego, CA 92123 5. Contract Administration. A designee of CHW will be appointed in writing by CHW Manager or Department Director to administer this Agreement on behalf of CHW and shall be referred to herein as Contract Administrator. P. 619.282.664 7 I F. 619.640.71 19 3111 Camino del Rio North. Suite 800 i San Diego CA 92108 chworks,org Community HousingWorks CHW 6. Personnel. Contractor shall furnish all personnel necessary to perform the Services and shall be responsible for their performance and compensation. Contractor recognizes that the qualifications and experience of the personnel to be used are vital to professional and timely completion of the Services. 7. Assignment and Subcontracting. Neither party shall assign any right, interest, or obligation in or under this Agreement to any other entity without prior written consent of the other party. In any event, no assignment shall be made unless the assignee expressly assumes the obligations of assignor under this Agreement, in a writing satisfactory to the parties. Contractor shall not subcontract any portion of the work required by this Agreement without prior written approval by the responsible Contract Administrator. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement, including without limitation, the insurance obligations set forth in Section 10. The Contractor acknowledges and agrees that CHW is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between any subcontractor and CHW. 8. Independent Contractor. In the performance of this Agreement, Contractor, and Contractor's employees, subcontractors and agents, shall act in an independent capacity as independent contractors, and not as officers or employees of CHW. Contractor acknowledges and agrees that CHW has no obligation to pay or withhold state or federal taxes or to provide workers' compensation or unemployment insurance to Contractor, or to Contractor's employees, subcontractors and agents. Contractor, as an independent contractor, shall be responsible for any and all taxes that apply to Contractor as an employer. 9. Indemnification. Except for CHW sole negligence or willful misconduct, Contractor shall indemnify and hold CHW, its employees and Contractors harmless from all damages, costs and expenses, including attorneys' fees, in law or equity, including damage to property or personal injury, including death, that may arise or be incurred due to intentional or negligent acts, errors or omissions of Contractor or any of Contractor's employees, substitute Contractors or agents committed while rendering services pursuant to this Agreement. The parties expressly agree that any payment, attorney fee, cost or expense CHW incurs or makes to or on behalf of an injured CHW employee are included as a loss, expense or cost for the purposes of this paragraph. The provisions of this paragraph shall survive the expiration or early termination of this Agreement. P.619.282.660 I F.619.640.711') 31 1 1 C,arnino caul Rio Norlh, Sailer B00 I San Diego, CA 9210. chworks.org CHW Community HousingWorks 10. Insurance. See Exhibit C — CHW Insurance Requirements and Document Compliance memo. The Commercial General Liability, Automobile Liability, and policies shall be endorsed to include CHW, Property Manager, and each of their respective subsidiaries, affiliates, members, investors, lenders, trustees, officers, directors, employees and agents (collectively, the "Additional Insureds") as additional insureds under the commercial general liability, and commercial automobile liability policies required of Contractor, as described in the City of National City's Maintenance and Operating Agreement which must be agreed to prior to work commencing. The additional insured coverage shall not include any special limitations on the scope of protection afforded to Owner or any of the other Additional Insureds. With regard to the commercial general liability policy, the additional insured protection required above shall apply to ongoing and completed operations coverage, which shall be maintained continuously throughout the statutory period applying to claims arising out of the Work after substantial completion, protecting CHW and Additional Insureds for completed operations continuously throughout such period. 11. Right to Employ Other Contractors. CHW reserves the right to employ other Contractors in connection with the Project. If CHW is required to employ another Contractor to complete Contractor's work, due to the failure of the Contractor to perform, or due to the breach of any of the provisions of this Agreement, CHW reserves the right to seek reimbursement from Contractor. 12. Accounting Records. Contractor shall maintain complete and accurate records with respect to costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of CHW during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other materials either created by or provided to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor, except as otherwise directed by the Contract Administrator. Nothing furnished to Contractor which is otherwise known to the Contractor or is generally known, or has become known, to the related industry shall be deemed confidential. Contractor shall not use CHW's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production, website, or other similar medium without the prior written consent of CHW. P. 619 2.82.G6(17 i F. 619.640.7119 J 1 11 Camino del Pio North, Suite 8CO { Son Diego. CA 92108 chworks.org gat CHW Community Housing Works 14. Ownership of Documents. All reports, maps, drawings and other contract deliverables prepared under this Agreement by Contractor shall be and remain the property of CHW. Contractor shall not release to others information furnished by CHW without prior express written approval. Materials created prior to this agreement by Contractor, such as designs or drawings, will remain the property of the Contractor. 15. Copyrights. Contractor agrees that any work prepared for CHW which is eligible for copyright protection in the United States or elsewhere shall be a work made for hire. If any such work is deemed for any reason not to be a work made for hire, Contractor assigns all right, title and interest in the copyright in such work, and all extensions and renewals thereof, to CHW, and agrees to provide all assistance reasonably requested by CHW in the establishment, preservation and enforcement of its copyright in such work, such assistance to be provided at CHW's expense but without any additional compensation to Contractor. Contractor agrees to waive all moral rights relating to the work developed or produced, including without limitation any and all rights of identification of authorship and any and all rights of approval, restriction or limitation on use or subsequent modifications. 16. Conflict of Interest. Contractor represents and warrants that by the execution of this Agreement, they have no interest, present or contemplated, in the Project affected by the above -described Services. Contractor further warrants that neither Contractor, nor individuals employed by or otherwise associated with Contractor, have any real property, business interests or income interests that will be affected by this project or, alternatively, that Contractor will file with CHW an affidavit disclosing any such interest. 17. Solicitation. Contractor warrants that Contractor has not employed or retained any person or agency to solicit or secure this Agreement, nor has it entered into any agreement or understanding for a commission, percentage, brokerage, or contingent fee to be paid to secure this Agreement. For breach of this warranty, CHW shall have the right to terminate this Agreement without liability and pay Contractor only for the value of work Contractor has actually performed, or, in its sole discretion, to deduct from the Agreement price or otherwise recover from Contractor the full amount of such commission, percentage, brokerage or commission fee. The remedies specified in this section shall be in addition to and not in lieu of those remedies otherwise specified in this Agreement. 18. General Compliance With Laws. Contractor shall keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of services by Contractor pursuant to this Agreement. Contractor shall at all times observe and comply with all such laws, ordinances and regulations, and shall be solely responsible for any failure to P. 619.282.66,17 I F. 619.6410 7119 31 1 I Ccunino del Rio North, Suile 800 I San Diego. CA 921013 chworks.org CHW Community HousingWorks comply with all applicable laws, ordinances and regulations. Contractor represents and warrants that Contractor has obtained all necessary licenses to perform the Scope of Services and that such licenses are in good standing. Contractor further represents and warrants that the services provided herein shall conform to all ordinances, policies and practices of CHW. 19. Waiver. No action or failure to act by CHW shall constitute a waiver of any right or duty afforded CHW under this Agreement, nor shall any such action or failure to act constitute approval of or acquiescence in any breach thereunder, except as may be specifically, provided in this Agreement or as may be otherwise agreed in writing. 20. Amendments. This Agreement may be modified or amended only by a written agreement and/or change order executed by the Contractor and CHW. 21. Termination. CHW, by notifying Contractor in writing, shall have the right to terminate any or all of Contractor's services and work covered by this Agreement at any time. In the event of such termination, Contractor may submit Contractor's final written statement of the amount of Contractor's services as of the date of such termination based upon the ratio that the work completed bears to the total work required to make the report complete. In ascertaining the work actually rendered through the termination date, CHW shall consider completed work, work in progress and complete and incomplete reports and other documents only after delivered. 21.1 Other than as stated below, CHW shall give Contractor thirty (30) days prior written notice prior to termination. 21.2 CHW may terminate this Agreement upon fifteen (15) days written notice to Contractor, in the event: 21.2.1 Contractor substantially fails to perform or materially breaches the Agreement; or 21.2.2 CHW decides to abandon or postpone the Project. 21.3 If the Contractor wishes to terminate the Agreement, Contractor will notify CHW in writing, in detail, of the circumstances for exiting the agreement, and immediately return unused funds with a full and substantiated accounting of funds spent through the date of the notice of intent to terminate. Ongoing work with subcontractors or other parties associated with the agreement will also terminate, and a new operator selection process will be undertaken. 22. Offsets. Contractor acknowledges and agrees that with respect to any business tax or penalties thereon, utility charges, invoiced fee or other debt which Contractor owes or may owe to CHW, CHW reserves the right to withhold and offset said amounts from P. 619.282.6 47 ( F.619.640.7119 31 1 1 Camino del Rio North. Suite 800 I San Diego. CA 9210 chworks.org CI -OW Community Housing Works payments or refunds or reimbursements owed by CHW to Contractor. Notice of such withholding and offset, shall promptly be given to Contractor by CHW in writing. In the event of a dispute as to the amount owed or whether such amount is owed to CHW, CHW will hold such disputed amount until either the appropriate appeal process has been completed or until the dispute has been resolved. 23. Successors and Assigns. This Agreement shall be binding upon CHW and its successors and assigns, and upon Contractor and its permitted successors and assigns, and shall not be assigned by Contractor, either in whole or in part, except as otherwise provided in paragraph 7 of this Agreement. 24. Venue and Attorneys' Fees. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. In the event either party hereto shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition of this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs thereof, including reasonable attorneys' fees. However, the recovery of attorneys' fees by the prevailing party is limited to individual actions or proceedings in which CHW elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys' fee. In no action shall an award of attorneys' fees to the prevailing party exceed the amount of reasonable attorneys' fees incurred by CHW in the action or proceeding. 25. Nondiscrimination. During Contractor's performance of this Agreement, Contractor shall not discriminate on the grounds of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition, including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex, genetic information, gender, gender identity, gender expression, or sexual orientation, in the selection and retention of employees and subcontractors and the procurement of materials and equipment, except as provided in Section 12940 of the California Government Code. Further, Contractor agrees to conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement. 26. Severability. Each provision, term, condition, covenant and/or restriction, in whole and in part, of this Agreement shall be considered severable. In the event any provision, term, condition, covenant and/or restriction, in whole and/or in part, of this Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof P.619.282.6647 I F.619.640.7119 3111 C<unnm ciel R;o Norlh, Suile 800 i Son Diego. CA 9210" chworks,org Community Housing Works shall be severed from this Agreement and shall not affect any other provision, term, condition, covenant and/or restriction of this Agreement, and the remainder of the Agreement shall continue in full force and effect. 27. Authority. The individuals executing this Agreement and the instruments referenced herein on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions hereof and thereof. 28. Entire Agreement. This Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings or agreements of the parties. Neither party has been induced to enter into this Agreement by and neither party is relying on, any representation or warranty outside those expressly set forth in this Agreement. 29. Interpretation. CHW and Contractor acknowledge and agree that this Agreement is the product of mutual arms -length negotiations and accordingly, the rule of construction, which provides that the ambiguities in a document shall be construed against the drafter of that document, shall have no application to the interpretation and enforcement of this Agreement. 29.1 Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of the Agreement or any of its terms. Reference to section numbers, are to sections in the Agreement unless expressly stated otherwise. 29.2 This Agreement shall be governed by and construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. 29.3 In the event of a conflict between the body of this Agreement and Exhibit "A" - Scope of Services hereto, the terms contained in Exhibit "A" shall be controlling. 30. Exhibits. The following exhibits attached hereto are incorporated herein to this Agreement by this reference: Exhibit "A" - Scope of Services Exhibit "B" — Compensation Exhibit "C" — CHW Insurance Requirements and Document Compliance Memo P. 619.282 6647 I F. 619.64O.71 19 :31 1 1 Camino del Rio North. Suite BOO I Son D ego. CA 92108 chworks.org Community Housing Works CHW IN WITNESS WHEREOF, CHW and Contractor have caused this Agreement to be duly executed the day and year first above written. Signed: Jorge Riquei'me, Senior VP JeNation, Executive Director CHW Olivewood Gardens (Fiscal Agent) P. 619.282600 I F.619.6 0.7119 31 1 1 (7(imino ic;l i?;t, rdorih, Stub 800 San Diego. CA 92108 chworks.org CHW Community Housing Works EXHIBIT "A" RFP SCOPE OF SERVICES Public engagement is crucial to this project and the Contractor is expected to involve members of the public throughout the duration of the project, including existing community garden committee members and local residents. Contractor is expected to complete outreach work according to the goals, plans, and needs stated by CHW. The overall goal is to have a well -maintained, productive garden that is accessible to all community members. Activities: • Developing and following a planting and maintenance calendar Ensuring the ability of the garden to thrive Securing seeds, fertilizer and other materials Hosting community groups and engaging with visitors to the garden • Identifying and delivering opportunities for educational programming to a range of age groups, including partnering with other non -profits and educational providers • Delivery of technique demonstration and ongoing technical support for those growing home gardens • Engaging in resourceful and sustainable water and energy management • Ensuring funds are spent only on community garden related activities and efforts and are stewarded in an effective manner • Acquiring additional funds from other sources to build on a successful garden program • Working with CHW and City Staff to ensure development of a sustainable and community -accessible resource Deliverables: Contractor will submit six month and annual progress reports to CHW detailing outcomes and accomplishments in both urban farming and community outreach and engagement at Paradise Creek Community Garden. Contractor must also agree to submit a financial report at the six month and one-year marks indicating specifically how funds have been spent and explaining any variance from the proposed budget. Contractor will report garden viability to City staff and Council as requested, to inform the ongoing development of National City's urban agriculture -related efforts. P. 619.282.6647 I F. 619.640. 71 19 3111 Camino del Rio North. Suite 800 I Son Diego, CA 92108 chworks,org Community t " 1 HousingWorks CHW Following is the Scope of Services proposed by Olivewood and Mundo Gardens: Form and manage a Steering Committee made up of residents from Paradise Creek apartments and the Old Town community who will assist with site planning and development. Work collaboratively and in partnership the steering committee, other residents, Community Housing Works, Paradise Creek Educational Park Inc., Olivewood Gardens and Learning Center, and the City of National City. Assign two paid staff as garden coordinators to be responsible for daily operation of the garden, including establishing and communicating farming models, guidelines, and best practices; record keeping; distributing required documents and waivers for all gardeners and volunteers; recording hours and assigning tasks to volunteer gardeners and interns; maintaining a clean and attractive garden year-round, including creating a system for periodic clean-ups, crop rotation, winterization, and work requirements; keeping a written waiting list of potential gardeners so that vacant garden beds can be easily filled; recruiting and involving neighbors to help in a garden or park; maintaining a list of the gardeners' names, mail and email addresses, phone numbers, and emergency contacts; creating a sign contact information and hours; securing the garden; and, administrative duties such as, but not limited to accounting, grant writing, filing, etc. Create formal rules and regulations to serve as an agreement with community members who are interested in leasing a garden bed at the community garden, as well as for visitors and volunteers. The document will include pest control guidelines; water & utilities guidelines; standard fee/duration/location for garden bed lease; maintenance and clean-up requirements. Resolve any garden bed or site -related problems and/or concerns that cannot be resolved privately, in consultation with CHW and City staff. Engage in clear, respectful, culturally responsive, and regular two-way communication with the community including through bulletin board posts; website information; social media; on -site signage; Steering Committee meetings; and via email. Staff the garden for operating hours on Saturday - Sunday from 8am to sundown, and Monday - Friday for scheduled educational programs or by appointment; any changes will be posted at the earliest possible notice at the garden and on social media. P. c. i.%..'i12.6647 I F. 619.640.7119 :11 1 1 Cornino dot Rio Noith, Suite OCO I Son Diego. CA 92100 chworks.org CHW Community Housing Works Work with City planners to determine the number of garden beds that can be installed, and with CHW to determine the number that will be made available for lease and the number that will be used as teaching beds. Manage the lease application process and assign to qualified gardeners on a first come/first serve basis. Garden beds will be leased for one year or until such a time that the operators determine the lessee is not fulfilling the lease agreement, or determines that the lessee is fulfilling the terms and renews their lease on the garden bed. Manage the waiting list and engage those on it in preparatory events at the garden. Allocation of beds will be based on participation, knowledge and commitment to garden policies and determined by management of the operating organizations. Conduct a minimum of one, 1-hour training session to review guidelines on composting, cover crops, planting and best practices including energy and water conservation procedures and the use of the planned catchment system. Post an emergency evacuation plan, First Aid Kit and emergency phone number at the garden site. Plan and execute formal and informal learning opportunities, including gardening classes, arts and culture events, leadership training/workshops, healthy food demos, and community celebrations. Provide a monthly activities calendar to residents, CHW staff and the City a minimum of 6 weeks prior to the start of each month. Identify and build programs and partnerships to increase access to healthy foods, including those related to production, yield and distribution of produce; count, weigh, and measure said produce for reporting purposes and resource development. Attend Community Housing Works meetings, community events, health fairs, school presentations at the PTAs and PTOs; outreach to Kimball Elementary to help children learn how to prepare healthy snacks, as well as to middle and high school students throughout the district. Track and report the following outreach indicators: volunteer sign ins, Facebook page likes, Twitter followers, Instagram followers, Instagram Likes, Yelp reviews, Networking events, Published articles, Newsletters mailed, and Email marketing subscribers. Track and report program attendance and budget indicators, as well as anecdotal feedback on program content and garden structure and usage. P. 619.282.6647 I F. 619 640.71 19 31 1 1 Camino del Rio Noroh. Suile 800 i Son Diego. CA 9210B chworks.org Community HousingWorks CHW EXHIBIT "B" RFP COMPENSATION Cost of Services and Budget: The budget should reflect a total not to exceed $40,000 for the Contractor portion of Community Garden Operation for one year (note the total amount of funding available for each year of the five years of potential operations is anticipated to be between $30,000 and $40,000). The Contractor should provide a basic budget justification which demonstrates proposed use of the project fee. Costs over and above that amount should be allocated to an identified revenue source. The garden space will be built out with raised beds, irrigation, bench seating, decomposed granite ground cover, a storage shed and secure enclosure. Funding will be provided for initial purchase of gardening supplies but there is no additional funding for large equipment or operations. Olivewood/Mundo Gardens Paradise Creek Community Garden 2020-2021 Twelve Month Budget Item Amount REVENUE CHW Operator Funding $ 39,420 TOTAL REVENUE $ 39,420 EXPENSE Personnel $ 26,000 Taxes $ 2,600 Payroll $ 720 Fiscal Agent/Consulting $ 4,000 Subcontractor Partner $ 1,000 Infrastructure/repairs $ 1,000 Supplies/equipment $ 2,000 Insurance $ 1,600 Printing/marketing $ 500 TOTAL EXPENSE $ 39,420 P. 61 V:262.66d7 I F. (:) I9.6,IU.71 14 ;i 11 r.:orninn clel Rio North, Suilu 800 i Son Diego. CA 92108 chworks.org fait Community HousingWorks CHW TO: Prospective Providers, Vendors, Consultants and Contractors RE: Exhibit "C" - CHW Insurance Requirements & Document Compliance Before an engagement with Community HousingWorks ("CHW") to provide services or perform work at any of our properties, we must first obtain the following documents and forms which MUST be completed and submitted to CHW prior to any work being started: • Certificate of Insurance, currently dated, with applicable endorsements • Compliance with our Insurance Requirements Exhibit • Copy of contractor's license (if applicable) • Completed IRS form W-9 (Payer's Request for Tax Identification Number & Certification) Your Certificate of Insurance must include the following when evidenced: 1. Commercial General Liability insurance 2. Commercial Automobile Liability insurance 3. Worker's Compensation & Employers Liability Insurance; however, if you are a sole owner/proprietor/partnership with no employees and exempt yourself from Workers Comp in compliance with the California statute, please confirm so in writing to us. 4. Additional Insured Endorsements for #1 and #2 above, protecting CHW Entities in #6 5. Waiver of Subrogation Endorsements for #1, #2 & #3 above, protecting CHW Entities in #6 6. CHW Entities Protected — Additional Insured & Waiver of Subrogation Endorsements must identify and protect the following CHW Entities, including each of their respective members, partners, investors, lenders, directors, officers, employees and agents: • Community HousingWorks • Property Manager • Paradise Creek Housing Partners, L.P. • Paradise Creek II Housing Partners, L.P. 7, Contractor's License must be provided (if applicable) P. 619.282.6ot:7 1 F. 619.640.71 19 11 1 I Camino del Rio No'lh, Suite 800 i San Diego. CA 9210'. chworks.org RESOLUTION NO. 2020 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A MAINTENANCE AND OPERATING AGREEMENT FOR A COMMUNITY GARDEN AT PARADISE CREEK PARK BETWEEN THE CITY OF NATIONAL CITY AND ICF CENTER FOR CROSS BORDER PHILANTHROPY, D.B.A. OLIVEWOOD GARDENS AND LEARNING CENTER, TO OPERATE A COMMUNITY GARDEN TO BENEFIT THE WELL-BEING OF NATIONAL CITY RESIDENTS, LOCATED ON THE NORTHERN HALF OF PARADISE CREEK PARK, FOR A TERM OF ONE YEAR WITH THE OPTION TO EXTEND UP TO TWO (2) ADDITIONAL TWO YEAR TERMS WHEREAS, the City and Community HousingWorks ("CHW") share an interest in promoting the initiation and sustainability of a community garden at Paradise Creek Park; and WHEREAS, CHW's role springs from its commitment to housing as a platform for the future success of CHW residents, who live in the Paradise Creek Apartments affordable housing community just across from the Paradise Creek Park site; and WHEREAS, the funding of $40,000, through CHW, will be available on an annual basis to support the operations of the community garden so that residents can learn to grow and use fresh produce; and WHEREAS, during the September 17, 2019, City Council Meeting CHW announced its intention to conduct an Request for Proposal ("RFP") process for the operation of a community garden located on the northern half of Paradise Creek Park; and WHEREAS, the RFP was issued on September 25, 2019, and responses were due October 31, 2019; and WHEREAS, CHW received two (2) proposals, one from Mongol Tribe and the other a joint proposal from Olivewood Gardens and Learning Center, Mundo Gardens, and Paradise Creek Educational Park; and WHEREAS, CHW verified the selection of the Olivewood Gardens and Learning Center, Mundo Gardens, and Paradise Creek Educational Park proposal; and WHEREAS, City Staff recommends executing a a Maintenance and Operating Agreement for a Community Garden at Paradise Creek Park between the City of National City and ICF Center for Cross Border Philanthropy, D.B.A. Olivewood Gardens and Learning Center. Resolution No. 2020 — Page Two NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a Maintenance and Operating Agreement for a Community Garden at Paradise Creek Park between the City of National City and ICF Center for Cross Border Philanthropy, D.B.A. Olivewood Gardens and Learning Center, to operate a community garden to benefit the well-being of National City residents, located on the northern half of Paradise Creek Park, for a term of one (1) year with the option to extend up to two (2) additional two year terms. PASSED and ADOPTED this 4th day of August, 2020. Alejandra Sotelo-Solis, Mayor ATTEST: Michael Dalla, City Clerk APPROVED AS TO FORM: Angil P. Morris -Jones, City Attorney