AGREEMENT TO ADMINISTER THE DOWNTOWN MERCED PROPERTY-BASED
IMPROVEMENT DISTRICT
This Agreement ("Agreement") is entered into by and between the City of Merced, a California nunicipal corporation ("City"), and the Downtown Merced Property Owner's Association, C'alifornia nonprofit mutual benefit corporation ("Corporation), for the administration of the Downtown Merced Property-Based Improvement District ("PBID"), with reference to the following facts:
RECITALS:
A. On October 6, 2023, the City Council of the City of Merced ("City Council"), acting pursuant to the Property and Business Improvement District Law of 1994 (California Streets and Highways Code Section 36600 et seq.) ("Act"), adopted City Resolution No. 2023-65 ("Resolution"), forming the PBID and approving the Downtown Merced Property-Based Business Improvement District Management District Plan, dated June 2023, attached hereto as Attachment 1 and incorporated herein ("Management District Plan"), and the Downtown Merced Business Improvement District Engineer's Report, dated June 2023, attached hereto as Attachment 2 and incorporated herein ("Engineer's Report").
The City's October 2023 action culminated approximately four years of previous City effort and work commencing with a steering committee and the hiring of various consultants to facilitate establishment of the aforementioned district. The adoption of the Resolution and recordation of the notice and assessment diagram pursuant to Section 36627 of the Act constitutes the levy of an assessment ("Assessment"') on the assessable parcels of real property within the PBID in each of the five fiscal years referenced in the Management District Plan, commencing with fiscal year 2023-24. The City elected to have the PBID's fiscal year be for the time period starting on January 1 and ending on the immediately following December 31 ("Fiscal Year").
C. Pursuant to Section 36651 of the Act, the Management District Plan provides that an owners' association, as defined in Section 36612 of the Act, will provide the activities and improvements described in the Management District Plan ("Activities and Improvements"), and in its work in establishing the PBID the City did represent to the property owners that an owners' association would implement the Activities and Improvements contemplated. Based on the City's acts and representation, the Corporation was formed and is willing and able to serve as the owners' association for the PBID ("Owners' Association").
D. City desires, and Corporation agrees, to have Corporation provide the Activities and Improvements on the terms and conditions set forth in this Agreement.
E. City currently intends that the level of services presently being provided by City in the area within the PBID ("Baseline Services Level") will not be affected by the execution of this Agreement and the levying and collecting of the Assessment in accordance with the Management 1| Page
x: \Agreements\PBID\City of Merced Agreement with PBID.docx District Plan. The City's Baseline Services Level is set forth in Attachment 3, attached hereto and incorporated herein.
F. City desires, and Corporation agrees, to have Corporation coordinate with the future Tourism Business Improvement District ("TBID"') on the delivery of services that further support tourism and downtown business activities and agrees to provide collaborative services between the PBID and TBID as described by adopted Management District Plans, including but not limited to a shared Executive Director and cross over services.
NOW, THEREFORE, City and Corporation, in consideration of the mutual promises and covenants set forth herein, hereby agree as follows:
SECTION 1. INCORPORATION OF RECITALS
The recitals set forth above are incorporated in full and made a part of this Agreement by reference.
SECTION 2. EFFECTIVE DATE OF AGREEMENT
This Agreement shall take effect ("Effective Date") when all the following events have occurred:
A. This Agreement has been signed on behalf of Corporation by the person or persons authorized to bind the Corporation hereto;
This Agreement has been approved by the City Council and has been signed on behalf of the City by the person designated to so sign by the City Council; and C. The Office of the City Attorney has indicated in writing its approval of this Agreement as to form.
SECTION 3. TERM OF AGREEMENT
The term of this Agreement ("Term") shall commence on the Effective Date and shall expire on December 31, 2028, unless terminated earlier in accordance with the terms of this Agreement.
On expirations other pan is adier ter Agreomen shal emate, thiepremen and the rights obligations expressly surviving expiration of the Term or earlier termination of this Agreement SECTION 4. CORPORATION'S AND CITY'S REPRESENTATIVES
4.1. City's Representative.
A. At all times during the term of this Agreement, a representative appointed by the City Council ("City's Representative") shall be appointed to and serve as a member of the Board of Directors of the Corporation.
2| Page
x: \Agreements\PBID|City o f Merced Agreement with PBID.docx B. The City Manager of the City, or his or her duly appointed designee, shall have authority to represent and act on behalf of the City for all purposes under this Agreement.
Corporation's Representative. The Executive Director of Corporation, or his or her duly appointed designee, shall act as the Corporation's representative for the performance of this Agreement ("Corporation's Representative"). Corporation warrants that Corporation's Representative shall have full authority to represent and act on behalf of Corporation for all purposes under this Agreement at the direction of Corporation's Board of Directors.
SECTION 5. CORPORATION'S WARRANTIES, REPRESENTATIONS AND
RESPONSIBILITIES
Without limiting any other provision of this Agreement, Corporation warrants, represents and agrees as follows:
5.1. Non-profit Status. Corporation agrees to maintain its status as a nonprofit mutual benefit corporation for the Term of this Agreement.
Power and Authority. Corporation warrants that it has all requisite power, authority, skills and expertise to conduct its business and to execute, deliver and perform this Agreement.
Permits. While the Corporation has no intent of securing any, if the Corporation or any of its officers, agents or employees need to obtain any licenses, permits, certifications, or other locuments in order to perform their obligations under this Agreement, Corporation will notif he City and will keep any such license, permit, certificate or other such documentation curren and valid and further, Corporation agrees to immediately notify City of any suspension, termination, lapse, non-renewal, or restriction of any such license, permit, certificate, or other document necessary for Corporation's performance hereunder.
Signature Authority. Corporation warrants and represents that that the person or persons executing this Agreement on behalf of Corporation have the authority to execute this Agreement on behalf of Corporation.
SECTION 6. CITY'S WARRANTIES, REPRESENTATIONS AND RESPONSIBILITIES
6.1 Formation. The City warrants and represents that it acted pursuant to the Act in the formation of the PBID and adoption of the Management District Plan and Engineer's Report.
6.2 Power and Authority. The City warrants that it has all requisite power, authority, skills and expertise to conduct and perform its obligations to be performed pursuant to this Agreement, including but not limited to, the annual preparation and submittal to the County Auditor- Controller of the Assessment Roll, and correction of the Assessment Roll, if applicable.
6.3 City Representative. The City agrees that it will make best efforts to ensure that the City's Representative will be reasonably available to attend and participate in meetings of the Board of Directors of the Corporation in person or by proxy when matters within the subject 3| Page
x: \Agreements\PBID\City Merced Agreement with PBID. docx matter of the PBID are to be discussed so as to facilitate the Board of Director's compliance with its obligations herein.
SECTION 7. SCOPE OF SERVICES PROVIDED BY CORPORATION
7.1. Owners' Association. Corporation shall serve as the Owners' Association and shall perform all activities necessary for the proper management of the PBID in a professional and prudent manner.
7.2. Activities and Improvements. Corporation shall be fully responsible for implementing, directing, and undertaking the Activities and Improvements in accordance with the Management District Plan, the Engineer's Report, the Act, as it may be amended from time to time, and the Resolution. Corporation understands and expressly agrees that it will comply with all applicable Federal, State of California ("State"), County of Merced ("County") and City laws and regulations (collectively, "Applicable Law") in the performance of this Agreement. Corporation assumes responsibility for procuring all goods and services, as required, and paying for all such direct and indirect expenses as may be necessary for the timely completion of work.
7.3. Subcontracting. In administering subcontracts as necessary for providing the Activities and Improvements, Corporation shall comply with all Applicable Law. To the extent that Corporation subcontracts any portion of the work required by this Agreement, each subcontract shall contain a provision making it subject to all relevant provisions stipulated in this Agreement.
Without limiting the foregoing, each subcontractor shall obtain all insurance coverage required of Corporation under this Agreement and shall maintain, in full effect, all such insurance coverage while any work is performed by subcontractor in connection with this Agreement. All required insurance must be submitted to City upon written request by the City prior to the inception of any work by a subcontractor.
7.4. Liaison With Community. Corporation will maintain an ongoing relationship with the community. To this end the Corporation agrees to the following:
A. Public Meetings. Corporation will organize and conduct, at a minimum, one annual public meeting to be noticed in writing by Corporation to all owners of assessed property in the PBID. This meeting will be conducted at a location within the PBID. At these meetings, PBID members will have the opportunity to express to the Board their desires and concerns with respect to the PBID. Corporation will provide notice of the annual meeting pursuant to the Ralph M. Brown Act (Government Code Section 54950, et seq.).
B. Newsletters. Corporation will prepare and distribute to all owners of assessed property in the PBID a quarterly newsletter. Corporation may, at Corporation's option, provide the newsletter by standard mail or electronic transmission. The newsletter shall be designed to facilitate and maximize the exchange of information between Corporation, City, and the members of the PBID.
7.5. Cooperation with City in connection with preparation of Annual Assessment Roll.
Corporation will provide the City with information requested to aid the City with its annual 4| Page
x: \Agreements\PBID\City of Merced Agreement with PBID.docx preparation and submittal to the County Auditor-Controller of the Assessment Roll, and correction of the Assessment Roll, if applicable.
7.6. Private Watchman. Should Corporation elect to engage in any Patrol Watchman activities or otherwise act as a Private Watchman as defined in the City's Municipal Code Section
5.40.010, the Corporation shall do so in compliance with Chapter 5.40 of Title 5 of the City's Municipal Code.
SECTION 8. USE OF FUNDS AND ANNUAL REPORTS AND AUDITS
8.1. Use of Funds. Corporation may expend any funds received pursuant to this Agreement only in accordance with the Annual Report, the Management District Plan, the Engineer's Report, the Act, as it may be amended from time to time, the Resolution, and Applicable Law. In accordance with the Management District Plan, Corporation shall expend funds received, subject to the right of the Board of Directors of Corporation to reallocate up to ten percent (10%) by line item of the budget allocation annually within the budgeted categories. City reserves the right to perform a contract compliance audit at least once annually at the City's expense. Corporation shall cooperate with City in the conduct of the compliance audit.
8.2. Annual Report. Corporation shall prepare and submit to the City Clerk an Annual Report during the Term for each Fiscal Year for which the Assessment is to be levied and collected except for the first Fiscal Year (each, an "Annual Report"). The Annual Report shall be prepared in accordance with Section 36650 of the Act and shall contain all sections required by Section 36650 of the Act, which, as of the Effective Date of this Agreement, include, any proposed changes in the boundaries of the PBID or in any benefit zones or classification of property or businesses within the district, the improvements, maintenance, and activities to be provided for that fiscal year, an estimate of the cost of providing the improvements, maintenance, and activities for that fiscal year, the method and basis of levying the assessment in sufficient detail to allow each real property or business owner, as appropriate, to estimate the amount of the assessment to be levied against his or her property or business for that fiscal year, the estimated amount of any surplus or deficit revenues to be carried over from a previous fiscal year, and the estimated amount of any contributions to be made from sources other than assessments levied pursuant to this part. The Annual Report shall be submitted by January 31 of each Fiscal Year, beginning January 31, 2025.
8.3. Audited Financial Statements. Should the City so desire, the City may request and pay all costs associated with obtaining a_financial statement prepared in accordance with Generally Accepted Accounting Principles and audited and certified by an independent Certified Public Accountant in accordance with Generally Accepted Auditing Standards who then issues an audit opinion on the financial statements. If any audit reveals any pattern of suspicious or questionable financial activity by Corporation, City may suspend future Assessment disbursements until such time as City investigates such matter. Corporation shall cooperate with City's investigation.
8.4. Modification of Due Dates. The City and Corporation may mutually agree to modify the due dates for any of the reports required by this Section 8 without amending this Agreement. 5 | Page
x: \Agreements\PBID\City of Merced Agreement with PBID. doex SECTION 9. CITY RESPONSIBILITIES
9.1. City Base Level Services. City will retain the following services within the PBID to the level of services as outlined below:
A. Refuse. City agrees to provide for emptying street cans and picking up litter three times per week through the use of City employees and equipment or pursuant to an agreement with a service provider.
B. Tree Trimming. City agrees to provide tree trimming as recommended by the City Arborist for all City-owned trees.
C. Street Sweeping. City agrees to provide for sweeping all City rights-of-way daily through the use of City employees and equipment, or pursuant to an agreement with a service provider.
D. Streetlights. City agrees to maintain and replace streetlights as needed Infrastructure Maintenance. City agrees to maintain all infrastructure installed within its existing rights-of-way and Bob Hart Square, including but not limited to, streets, drainage, sidewalks, water and sewer lines on the City's side of the meter or backflow pump (anything beyond the meter is Corporation's responsibility), and storm drainage facilities.
F. Utilities. City agrees to provide electrical power and water for all amenities located in the City rights-of-way and Bob Hart Square.
G. Additional City Base Level Services. City agrees to mow, trim and maintain Bob Hart Square as a park and to maintain the Susi Rossi Fountain.
Notwithstanding the foregoing, the parties agree and acknowledge that the Base Level Services are subject to confirmation by the City Council each year through the City's annual budget process, and the level and frequency of services may be reduced on a proportionate basis if similar services provided by City in other parts of the City are reduced due to budgetary constraints. The parties agree that if the Base Level Services are reduced by the City Council the Corporation may in its discretion elect to terminate this Agreement.
9.2. Annual Assessment Preparation. City shall cause to be prepared and timely transmitted to the Auditor the Assessment roll for each Fiscal Year for which the Assessment is to be collected.
SECTION 10. DISBURSEMENTS
10.1. Disbursements. City shall disburse to Corporation the Assessment Revenues collected by City through direct billing or inclusion on the County property tax roll, net of any County administration charges, and net of up to two thousand doilars ($2,000.00) per Fiscal Year retained by City to compensate City for its administrative costs and expenses ("Net Assessment Revenues") in connection with the PBID The City shall disburse Net Assessment Revenues to Corporation within fifteen (15) days of City's receipt of the revenues. 6| Page
x: \Agreements\PBID|City of Merced Agreement with PBID.docx SECTION 11. RETENTION OF RECORDS, AUDIT AND REPORTS
In accordance with generally accepted accounting principles, Corporation shall maintain full and omplete records of all Activities and Improvements performed under this Agreement, in thei riginal form, including but not limited to, all administrative or financial records relating to th PBID, the Assessment, and the Activities and Improvements performed by Corporation, including but not limited to, invoices, receipts and supporting documentation. Such records shall be open to inspection and copying by the City during normal business hours. Corporation agrees to keep all such records on file in a secure location for a minimum of two (2) years subsequent to the expiration of the Term or earlier termination of this Agreement. Within forty-five (45) days of expiration or termination of this Agreement, all of the Corporation records will be turned over to the City. [90 days was changed to 45 days to match Section 16.3.] SECTION 12. INSURANCE
During the Term, without limiting Corporation's indemnification of the City, Corporation shall provide and maintain the policies set forth in Attachment 3, incorporated herein. Required insurance coverages shall not prohibit Corporation from waiving the right of subrogation prior to a loss, and Corporation shall waive all subrogation rights against Indemnified Parties (defined below). Corporation agrees to provide the City with copies of said policies, certificates and/or endorsements before work commences under this Agreement.
SECTION 13. NOTICES
All ois and oh and oman be pations ly sited remaited to be ge repaid en disturere requested, addressed to the respective parties as follows:
City: City of Merced
Office of the City Manager
678 W 18th Street
Merced, Ca 95340
Corporation: Downtown Merced Property Owner's Association or to such other address or addressee as may be designated by notice in accordance with this Section. Notice shall be deemed effective on the date personally delivered or, if mailed, upon receipt.
A copy of any notice of a legal nature, including, but not limited to, any claims against City, is resens or employees, shall also be served in the manner specific above to the following 7|Page
x: \Agreements\PBID|City of Merced Agreement with PBID.docx City of Merced
Office of the City Attorney
679 W 18th Street
Merced, Ca 95340
SECTION 14. GENERAL FUND NOT LIABLE
Except with respect to the City's contribution for the general benefits conferred by the Activities and Improvements, neither the General Fund of City, nor any other fund, revenue source or monies whatsoever of City, except for the actual collected Assessment Net Revenues, shall be liable for payment of any obligations arising from this Agreement. Said obligations are not a debt of City, nor a legal or equitable pledge, charge, lien, or encumbrance upon any of its property or upon its income, receipts or revenues.
SECTION 15. TERMINATION
15.1. Termination of Agreement. Notwithstanding any other provision of this Agreement, either party, in its sole and absolute discretion, may immediately terminate this Agreement if:
A. The other side breaches the Agreement;
B. Corporation ceases to be a non-profit mutual benefit corporation; C. A federal or state proceeding for relief of debtors is undertaken by or against the other party, or if the other party makes an assignment for the benefit of creditors; D. The other party makes a material misrepresentation relating to this Agreement or any money received pursuant to this Agreement; or
E. Corporation misappropriates any funds provided by City to Corporation.
F. The Net Assessment Revenues are not sufficient for the Corporation to provide the Activities and Improvements set forth in the Management District Plan.
In addition, if either party fails to adequately perform any material obligation required by this Agreement, the other party may give the nonperforming party written notice pursuant to Section 13 of such default, describing the default in reasonable detail. The party receiving said notice shall thereafter have thirty (30) days to cure such default. The noticing party retains the right to grant an extension of time should it determine, in its sole discretion, an extension is reasonably necessary to allow an acceptable cure. If the noticed party fails to cure the default during the time frame, but not less than thirty (30) days, the noticing party may terminate this Agreement.
In addition, if City elects to disestablish the PBID pursuant to Section 36670 et seq. of the Act, this Agreement shall terminate upon the disestablishment of the PBID.
In addition, the City may terminate this Agreement at any time provided:
8 | Page
x:\AgreementsiPBID\City of Merced Agreement with PBID.docx (a) The City Council holds a public hearing on the City's intention to terminate this Agreement;
City provides Corporation sixty (60) days' written notice of the public hearing pursuant to Section 13;
City provides mailed notice of the public hearing to each property owner within the PBID at least fifteen (15) days prior to the public hearing, at the City's expense; and (d) The City Council determines at the conclusion of the public hearing that it is in the best interests of the PBID to terminate this Agreement.
In the event City terminates this Agreement due to breach or malfeasance of Corporation, City may procure upon such terms and in such manner as City may deem appropriate, services similar in scope and level of effort to those terminated.
15.2. Rights and Remedies Not Exclusive. The rights and remedies under this Agreement are not exclusive and are in addition to any other rights or remedies available at law or equity. The rights and remedies of City under this Agreement are cumulative and exercise of any one or more of such rights or remedies shall not limit, waive, or prevent City's exercise of any other rights or remedies under this Agreement or at law or equity that may be available to City.
SECTION 16. EFFECT OF EXPIRATION OR TERMINATION OF THIS AGREEMENT
16.1. City's Rights and Responsibilities. Expiration of the Term or earlier termination of this Agreement shall not impair City's right to audit the books and records of Corporation with respect to all monies dısbursed or expended hereunder, or prejudice or otherwise diminish the rights of City to claim and recover monies expended for other than allowable costs. Within sixty (60) days of the termination of this Agreement, City shall reimburse Corporation for work which has been performed as of the termination date or which is in progress and cannot reasonably be terminated early by virtue of contractual commitments.
16.2. Corporation's Responsibilities. Upon the expiration of the Term or the earlier termination of this Agreement, Corporation shall complete any work necessary for the orderly filing of documents and closing of Corporation's performance of its obligations under this Agreement. In addition, Corporation shall, within forty-five (45) days, return to City unexpended and unencumbered funds provided to the Corporation by the City pursuant to this Agreement and all tangible assets purchased wholly with such funds. Corporation shall not purchase assets using a combination of funds derived from funds received from City pursuant to this Agreement and other resources available to the Corporation without the prior written consent of the City Manager or his or her designee, which will not be unreasonably withheld.
16.3. Ownership of Documents. All documents and materials produced or procured by Corporation pursuant to its performance under this Agreement or the Act shall become City property upon the expiration of the Term or the earlier termination of this Agreement and be 9 | Page
x: \Agreements\PBID\City of Merced Agreement with PBID.docx provided to the City within forty-five (45) days.
SECTION 17. RALPH M. BROWN ACT AND PUBLIC RECORDS ACT
17.1. Ralph M. Brown Act. Corporation is a private entity and may not be considered a public entity for any purpose, nor may its directors, members, or staff be considered to be public officials for any purpose. Notwithstanding the foregoing, all meetings of the Board of Directors of Corporation, or any group of representatives of Corporation that would constitute a "legislative body" as defined in California Government Code Section 54952, when matters within the subject matter of the PBID, including proposed or approved PBID Activities and Improvements or expenditures (collectively, "PBID Matters") will be discussed shall be open to the public as required by the provisions of the Ralph M. Brown Act (Government Code Section 54950, et seq.) ("Brown Act"). Prior notice of such meetings, including an agenda prepared and posted in accordance with the Brown Act, of the PBID Matters to discussed and the time and location of the meeting, shall be given in accordance with the Brown Act. Notwithstanding the toregoing, the Board of Directors of Corporation shall be permitted to meet in sessions closed to the public, so long as any such closed session conforms to the requirements of the Brown Act.
17.2. Public Records Act. Corporation shall comply with the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) for all records relating to activities of the PBID.
SECTION 18. NONDISCRIMINATION
Corporation shall not discriminate, in any way, against any person on the basis of age, sex, race, color, creed, sexual orientation, marital status, disability or national origin in connection with or related to the performance of this Agreement.
SECTION 19. ASSIGNMENT
The parties agree that the identity, expertise and experience of Corporation are material considerations for this Agreement. Corporation covenants and agrees that it will not assign or ranster its rights, including the right to payment, under this Agreement, either in whole or in art, without first obtaining the written consent of the City Manager or the City Manager's designee, which consent may be granted or denied at the sole and absolute discretion of the City Manager. Any attempt by Corporation to assign or transfer its rights or obligations without such prior written consent shall be null and void and City may, at the option of City, automatically terminate this Agreement.
SECTION 20. DATA SHARING
Each party, upon the request of the other, shall make available to the other any additional information in its possession as may be reasonably necessary to operate and administer the Activities and Improvements.
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x:\Agreements\PBID\City of Merced Agreement with PBID.docx SECTION 21. SEVERABILITY
If any part, term or provision of this Agreement shall be held void, illegal, unenforceable, or in conflict with any law of a federal, state or local government having jurisdiction over this Agreement by a court of competent jurisdiction, the validity of the remaining parts, terms or provisions of the Agreement shall not be affected thereby.
SECTION 22. COMPLIANCE WITH APPLICABLE LAW
Each party's performance hereunder shall comply with all Applicable Law.
SECTION 23. INTEGRATED CONTRACT
This Agreement, including all attachments, sets forth all the rights and duties of the parties with respect to the subject matter hereof, and replaces any and all previous agreements or understandings, whether written or oral, relating thereto. This Agreement may be amended only as provided for in Section 24 hereof.
SECTION 24. AMENDMENT
This Agreement may be amended only by a written amendment duly executed by City and Corporation.
SECTION 25. NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement is intended to give or allow any claim or right of action by any third party.
SECTION 26. EXCUSABLE DELAYS
In the event that performance on the part of any party hereto shall be delayed or suspended as a result of circumstances beyond the reasonable control and without the fault and negligence of said party, none of the parties shall incur any liability to the other party as a result of such delay or suspension. Circumstances deemed to be beyond the control of the parties hereunder shall include, but not be limited to, acts of God or of the public enemy; insurrection; acts of the Federal Government or any unit of State or Local Government in either sovereign or contractual capacity; fires, floods; epidemics; quarantine restrictions; strikes, freight embargoes or delays in transportation, to the extent that they are not caused by the party's willful or negligent acts or omissions, and to the extent that they are beyond the party's reasonable control.
SECTION 27. WAIVER
A waiver of a default of any part, term or provision of this Agreement shall not be construed as a waiver of any succeeding default or as a waiver of the part, term or provision itself. A party's performance after the other party's default shall not be construed as a waiver of that default.
SECTION 28. INDEPENDENT ORGANIZATION
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x: \Agreements\PBID|City of Merced Agreement with PBID.docx Corporation, in the performance of the rights and obligations existing under this Agreement, shall act independently and not act as an agent or employee of City. City shall not exercise control over the Corporation's method of performance of its obligations or duties, except as set forth herein, and desires to obtain only an end result. City shall have no liability or responsibility for payments of any wages or benefits to the Corporation's employees for whom the Corporation shall bear sole responsibility and liability.
SECTION 29. INDEMNIFICATION
The parties shall hold each other harmless, defend and indemnify the other and its elective and appointive boards, commissions, otticials, officers, agents, employees, and volunteers ("Indemnified Parties") from and against any and all liability, loss, damage, expense, costs (including, without limitation, attorney's fees and costs of litigation) of any nature arising out of or in connection with: (a) the negligence or willful misconduct of it or its officials, officers, agents, employees and volunteers; (b) its performance of its obligations and conduct of its agents under this Agreement; or (c) its failure to comply with any provision of this Agreement; except such loss or damage which was caused by the gross negligence or willful misconduct of the other or its officials, officers, agents, employees, and volunteers. The provisions of this paragraph shall survive expiration of the Term or earlier termination of this Agreement.
SECTION 30. ATTORNEYS' FEES
If a legal action or proceeding is brought by any party because of default under this Agreement, or to enforce a provision hereof, the prevailing party therein shall be entitled, in addition to any other relief, to recover reasonable attorney's fees and court costs from the losing party as determined by the court in which said action or proceeding is pending.
SECTION 31. CONSTRUCTION AND INTERPRETATION
City and Corporation agree and acknowledge that the provisions of this Agreement have been arrived at through negotiation and that each party has had a full and fair opportunity to review the provisions of this Agreement and have such provisions reviewed by legal counsel. Therefore, any ambiguities in construing or interpreting this Agreement shall not be resolved against the drafting party.
All titles or subtitles appearing herein have been inserted for convenience and shall not be deemed to affect the meaning or construction of any of the terms or provisions hereof.
SECTION 32. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
SECTION 33. TIME OF THE ESSENCE
Time is of the essence for each provision of this Agreement. 12| Page
x: \Agreements\PBID\City of Merced Agreement with PBID. docx SECTION 34. COUNTERPARTS
This Agreement may be signed in counterparts, each of which shall constitute an original.
IN WITNESS WHEREOF, this Agreement is duly executed by the CITY OF MERCED and the MERCED DOWNTOWN PROPERTY OWNERS' ASSOCIATION for administration of the Merced Downtown Property Based Business Improvement District on behalf of the parties to this Agreement.
CITY OF MERCED, a California Charter
Municipal Corporation
BY:
D. Scott McBride,
City Manager
ATTEST:
D. SCOTT MCBRIDE, CITY CLERK
BY:
Assistant/Deputy City Clerk
APPROVED AS TO FORM:
CRAIG J. CORNWELL, CITY ATTORNEY
I Graig Cornwell 10/05/2024
ACCOUNT DATA:
M. VENUS RODRIGUEZ
BY:
Verified by Finance Officer
[Signatures Continue on next page]
13| Page
x: \Agreements\PBID\City of Merced Agreement with PBID.docx DOWNTOWN MERCED PROPERTY OWNERS' ASSOCIATION, a California nonprofit mutual benefit corporation
By:
Print Name
Print Title
Date:
By:_
Print Name
Print Title
Date:
14| Page
x: \Agreements\PBID\City of Merced Agreement with PBID.docx ATTACHMENT 1
MANAGEMENT DISTRICT PLAN
ATTACHMENT 2
ENGINEER'S REPORT
ATTACHMENT 3
INSURANCE REQUIREMENTS
Corporation shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work here the Agreement by Corporation, its agents, representatives, or employees.
MINIMUM SCOPE AND LIMITS OF INSURANCE
Commercial General Liability coverage (occurrence Form CG 00 01) with minimum limits of $1,000,000 per occurrence for bodily injury, personal injury, products and completed operations, and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
Automobile Liability Coverage. The Corporation does not own or have any plans to own an automobile and therefore cannot acquire Automobile Liability coverage. If the Corporation does in the future acquire an automobile the Corporation does agree to acquire the following Automobile Liability coverage; (Form CA 00 01 with Code 1 — any auto) with minimum limits of $1,000,000 per accident for bodily injury and property damage.
Workers' Compensation insurance as required by the State of California and Employers' Liability insurance, each in the amount of $1,000,000 per accident for bodily injury or disease.
2) INDUSTRY SPECIFIC COVERAGES
If checked below, the following insurance is also required Professional Liability Insurance I Errors and Omissions Liability in the minimum amount of $1,000,000 per occurrence.
Pollution Liability Insurance in the minimum amount of $1,000,000 per occurrence.
Garage Keepers Insurance in the minimum amount of $1,000,000 per occurrence.
Fidelity / Crime / Dishonesty Bond in the minimum amount of $250,000.
MCS-90 Endorsement to Business Automobile insurance for transportation of hazardous materials and pollutants
Builder's Risk / Course of Construction Insurance in the minimum amount of
INSURANCE PROVISIONS
a) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, officials, employees and volunteers; or Corporation shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
The general and automobile liability policies (and if applicable, pollution liability, garage keepers liability and builder's risk policies) are to contain, or be endorsed to contain, the following provisions:
i) City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of work or operations performed by or on behalf of Corporation; products and completed operations of the Corporation; premises owned, occupied or used by Corporation; or automobiles owned, leased, hired or borrowed by Corporation. Th overage shall contain no special limitations on the scope of protectio afforded to City its officers, officials, employees or volunteers. ii) For any claims related to this project, Corporation's insurance coverage shall be primary insurance as respects the City its officers, officials, employees and volunteers. Any insurance or self-insured maintained by the City its officers, officials, employees or volunteers shall be excess of the Corporation's insurance and shall not contribute with it. iii) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to City, its officers, officials, employees or volunteers. iv) Corporation's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
v) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. vi) The policy limits of coverage shall be made available to the full limits of the policy. The minimum limits stated above shall not serve to reduce the Corporation's policy limits of coverage.
Acceptability of Insurer. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A: VII, unless otherwise acceptable to the City. d) m Verification of Coverage. Corporation shall furnish the City with original endorsements effecting coverage required by this Attachment 4. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by the City or on forms equivalent to CG 20 10 11 85 subject to City approval. All insurance certificates and endorsements are to be received and approved by City before work commences. At the request of City Corporation shall provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications.
Sub-contractors. Corporation shall require all subcontractors to procure and maintain insurance policies subject to the requirements of Exhibit 4. Failure of Corporation to verify existence of sub-contractor's insurance shall not relieve Corporation from any claim arising from sub-contractors work on behalf of Corporation.