1 AGREEMENT FOR SERVICES
This Agreement, dated _______________, is by and between the City of Pleasant Hill, a California municipal corporation, hereinafter referred to as the “City,” and Stay Pleasant Hill, a California non-profit corporation, hereinafter referred to as “Contractor,” collectively referred to as the “Parties.”
RECITALS
A. On March 20, 2017, the City Council adopted Resolution number 29-17, creating the Pleasant Hill Tourism Business Improvement District, hereinafter “PHTID,” in accordance with the provisions of the Property and Business Improvement District Law of 1994, Streets and Highways Code section 36600 et seq., hereinafter the “1994 Law.”
B. On ________________, January 24, 2022 the City Council adopted Resolution number ___, 7- 22, hereinafter the “Resolution,” renewing the PHTID in accordance with the provisions of the 1994 Law.
C. Pursuant to the 1994 Law and the Resolution, the City is authorized to levy and collect an annual assessment from lodging businesses in the PHTID for the purpose of sales promotion and marketing projects, programs, and activities that benefit lodging businesses located and operating within the boundaries of the PHTID.
D. The City Council approved a management district plan, hereinafter the "PHTID Management District Plan,” designating Contractor to serve as the Owners’ Association for the PHTID in accordance with Streets and Highways Code section 36612 and as the entity responsible for managing the operations of the PHTID.
E. Streets and Highways Code section 36651 requires a contract between the City and the Owners’ Association for provision of PHTID services if the management district plan designates an owners’ association. The PHTID Management District Plan designates Contractor as the Owners’ Association to administer and implement the PHTID’s activities and improvements.
F. Contractor has represented to the City that it possesses the labor, professional skills, and expertise to administer and implement the activities and improvements of the PHTID described in the PHTID Management District Plan.
G. Contractor is willing to provide services to the City on the terms and conditions set forth in this Agreement.
AGREEMENT
Now, therefore, the Parties agree as follows:
1. Engagement. City hereby retains Contractor to provide the services described in Exhibit A, attached hereto and incorporated herein, and Contractor accepts such engagement. 2 2. Term. Upon the execution of this Agreement by the Parties, this Agreement shall be effective as of April 1, 2022 (“Effective Date”) and continue for five years until March 31, 2027 (“Term”), unless terminated earlier in accordance with the terms of this Agreement.
3. Use of Funds. Funds received by Contractor pursuant to this Agreement shall only be expended for the purposes stated in the Resolution as authorized by the 1994 Law, and shall only be expended in accordance with this Agreement, the PHTID Management District Plan, and each annual report prepared by Contractor pursuant to Streets and Highways Code section 36650, as approved by the City Council.
4. Annual Report. By October 30th of each yearOn an annual basis, Contractor shall submit to the City Council the report required by Streets and Highways Code section 36650 and the PHTID Management District Plan, hereinafter "the Annual Report." The Annual Report based on the prior calendar year shall be prepared and submitted to the City Council by October 30th of each year this Agreement is in effect.
Each Annual Report shall include an audited financial statement.
5. Disbursement of Funds. So long as Contractor is not in default of this Agreement, City shall disburse all collected PHTID assessments to Contractor for funding the projects, programs, and activities pursuant to this Agreement; provided, however, that City may retain an amount equal to two percent (2%) of the collected assessments each month to cover its costs of collection and administration of the PHTID. Disbursements shall be made in such manner as the Parties shall mutually agree upon in writing.
6. Taxes. Payment of all applicable federal, state and local taxes shall be Contractor’s sole responsibility.
7. Disestablishment. Per the 1994 Law, a resolution disestablishing the PHTID may only be adopted if (1) the City Council finds there has been misappropriation of funds, malfeasance, or a violation of law in connection with the management of the district and a noticed hearing on disestablishment is held, or (2) in the thirty-day period following any anniversary of the district’s formation, owners paying fifty percent or more of the assessment file a written protest with the City and a hearing on disestablishment is held.
In the event the City disestablishes the PHTID, Contractor shall be entitled to retain PHTID revenues only for paying the Contractor’s current liabilities of the PHTID. Pursuant to the 1994 Law, Contractor shall refund to City any remaining PHTID revenues or any revenues derived from the sale of assets acquired with PHTID revenues to enable distribution of the revenues to the owners which paid the assessment.
Contractor agrees that City has and reserves the right to deny the transfer of PHTID revenues and/or suspend, terminate or abandon the execution of any work by the Contractor in accordance with this Agreement for misfeasance, nonfeasance, or gross malfeasance, or criminal conduct as determined by a court of competent jurisdiction. Any retention of PHTID revenues by Contractor shall comply with the 1994 Law.
8. Termination. In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of thirty (30) calendar days, or if more than thirty (30) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within thirty (30) calendar days after receipt of 3 written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non-defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. If the PHTID is disestablished, the City may terminate this Agreement immediately by providing the Contractor notice that the PHTID has been disestablished.
9. Indemnification. To the fullest extent permitted by law, Contractor shall hold harmless, defend and indemnify the City, its City Council, employees and agents from and against any and all claims, losses, damages, liabilities and expenses, including but not limited to reasonable attorneys’ fees, arising out of or resulting from the performance of services under this Agreement, provided that any such claim, loss, damage, liability or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of property, including the loss there from, or to any violation of federal, state or municipal law or regulation, and (2) is caused by an adjudicated negligent act, omission or willful misconduct of Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by any party indemnified hereunder. The City may participate in the defense of any such claim without relieving Contractor of any obligation hereunder. In no event shall Contractor be required to indemnify the City for any claim, loss, damage, liability, or expense that arises due to the City's sole or active negligence or willful misconduct.
10. Insurance. Insurance coverage in a minimum amount set forth herein shall not be construed to relieve Contractor for liability in excess of such coverage, nor shall it preclude City from taking such other action as is available to it under any other provisions of this Agreement or otherwise in law.
A. Contractor affirms that it is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of the Code and Contractor further assures that it will comply with such provisions before commencing the performance of work under this Agreement. Contractor shall furnish to City certificate(s) of insurance evidencing Worker’s Compensation Insurance coverage to cover its employees, and Contractor shall require all subcontractors similarly to provide Workers’ Compensation Insurance as required by the Labor Code of the State of California for all of Contractor’s and subcontractors’ employees. Contractor shall provide Workers' Compensation insurance, as applicable, at Contractor's own cost and expense. Neither Contractor nor its carrier shall be entitled to recover from City any costs, settlements, or expenses of Workers' Compensation claims arising out of this Agreement.
B. Contractorshall furnish to City certificates of insurance with Automobile Liability/General Liability Endorsements evidencing at a minimum the following:
(1) Combined single limit bodily injury liability and property damage liability - $2,000,000 each occurrence.
(2) Vehicle / Bodily Injury combined single limit vehicle bodily injury and property damage liability - $1,000,000 each occurrence.
4 11. Independent Contractor. No relationship of employer and employee is created by this Agreement; it being understood and agreed that Contractor is an Independent Contractor. Contractor is not the agent or employee of the City in any capacity whatsoever, and the City shall not be liable for any acts or omissions by Contractor nor for any obligations or liabilities incurred by Contractor.
A. Contractor shall have no claim under this Agreement or otherwise, for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, retirement benefits, social security, disability, Workers’ Compensation, unemployment insurance benefits, civil service protection, or employee benefits of any kind.
B. Contractor shall be solely liable for and obligated to pay directly all applicable payroll taxes (including federal and state income taxes) or contributions for unemployment insurance or old age pensions or annuities which are imposed by any governmental entity in connection with labor used or which are measured by wages, salaries or other remuneration paid to its officers, agents or employees and agrees to indemnify and hold City harmless from any and all liability which City may incur because of Contractor’s failure to pay such amounts.
C. In carrying out the work contemplated herein, Contractor shall comply with all applicable federal and state Workers’ Compensation and liability laws and regulations with respect to the officers, agents and/or employees conducting and participating in the work; and agrees that such officers, agents, and/or employees will be considered Independent Contractors and shall not be treated or considered in any way as officers, agents and/or employees of City.
D. Contractor agrees to perform its work and functions at all times in strict accordance with all applicable federal, state, county and city laws, resolutions, regulations, titles, departmental procedures and currently approved methods and practices in the field; and that the sole interest of City is to ensure that said service shall be performed and rendered in a competent, efficient, timely and satisfactory manner and in accordance with standards required by the City.
12. Conformity with Law. In performing services under this Agreement, Contractor shall observe and comply with all applicable laws, resolutions, codes and regulations of governmental agencies, including federal, state, municipal, and local governing bodies, having jurisdiction over the scope of services, including all applicable provisions of the California Occupational Safety and Health Act. Contractor shall indemnify and hold City harmless from any and all liability, fines, penalties and consequences from any of Contractor’s failures to comply with such laws, resolutions, codes and regulations.
13. Licenses. At all times during the Term of this Agreement, Contractor shall have in full force and effect all licenses required of it by law for the performance of the services described in this Agreement.
14. Copyrights. All copyright and other use rights in any and all proposals, plans, specifications, designs, drawings, sketches, renderings, models, reports and related documents (including computerized or electronic copies), respecting in any way the subject matter of this Agreement, shall remain the property of the Contractor as instruments of service. However, Contractor understands and agrees City shall have free access to all such copyright and other use rights materials with the right to make and retain 5 copies of all proposals, plans, specifications, designs, drawings, sketches, renderings, models, reports and related documents (including computerized or electronic copies).
15. Maintenance of Records; Access to Recordsudits and Records Access.
A. Record Maintenance: Contractor shall establish and maintain financial and performance records with respect to all matters covered by this Agreement in sufficient detail and in a manner sufficient to conform to generally accepted accounting principles so as to allow audit of the expenditure of City funds received by Contractor. Contractor shall retain such financial and performance records for a period of three (3) years. Contractor shall maintain all documents and records in accordance with the California Public Records Act, Government Code section 6250 et seq.
B. Documentation of Costs: All costs shall be supported by properly executed payrolls, time records for personnel, invoices, agreements or vouchers, or other official documentation evidencing in complete and proper detail the nature and propriety of the charges.
C. Certified Statement: By October 30th of each year during the Term hereof, Contractor shall furnish to City a statement in writing, certified by Contractor and a Certified Public Accountant to be correct, showing in detail how the funds received pursuant to this Agreement were expended and whether the funds were expended for a purpose authorized by this Agreement for the prior calendar year.
DC. The City may, in its sole discretion, inspect any and all documents related to Contractor expenditures and revenues require an audit to confirm that Contractor expenditures have if the City determines in its sole discretion that Contractor expenditures have not been consistent with the PHTID Management District Plan, the 1994 Law, or any other applicable laws. Any such reviewaudit(s) shall be undertaken by City or its representative(s) at mutually agreed upon reasonable times and in conformance with generally accepted auditing standards. Contractor agrees to fully cooperate with any such reviewaudit(s). Any such audits shall be paid for with PHTID funds.
16. Conflicts of Interest. Contractor covenants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with performance of services required under this Agreement.
17. Notices. All notices, requests, demands, or other communications under this Agreement shall be in writing. Notices shall be given for all purposes as follows:
A. Personal delivery: When personally delivered to the recipient, notices are effective on delivery.
B. First Class Mail: When mailed first class to the last address of the recipient known to the party giving notice, notice is effective three (3) mail delivery days after deposit in a United States 6 Postal Service office or mailbox. Certified Mail: When mailed certified mail, return receipt requested, notice is effective on receipt, if delivery is confirmed by a return receipt.
C. Overnight Delivery: When delivered by overnight delivery with charges prepaid or charged to the sender’s account, notice is effective on delivery, if delivery is confirmed by the delivery service.
D. Addresses for purpose of giving notice are as follows:
To City:
City Manager
100 Gregory Lane
Pleasant Hill, CA 94523
To Contractor:
President and Chief Executive Officer
91 Gregory Lane, Suite 11
Pleasant Hill, CA 94523
E. Any correctly addressed notice that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified shall be deemed effective as of the first date that said notice was refused, unclaimed, or deemed undeliverable by the postal authorities, messenger, or overnight delivery service.
F. Any party may change its address by giving the other party notice of the change in any manner permitted by this Agreement.
18. Equal Employment Opportunity Practices Provisions. Contractor certifies that it is in compliance with the Equal Employment Opportunity Requirement of Executive Order 11246, as amended by Executive Order 11375 and supplemented I 45CFR, Part 60, Title VII of the Civil Rights Act and any other federal or state laws pertaining to equal employment opportunity and that it shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, age, sex, national origin, ancestry, marital status, political affiliation or physical or mental condition, in matters pertaining to recruitment, hiring, training, upgrading, transfer, compensation or termination.
A. Contractor shall, in all solicitations or advertisements for applicants for employment placed as a result of this Agreement, state that it is an “Equal Opportunity Employer” or that all qualified applicants will receive consideration for employment without regard to their race, creed, color, disability, sex, sexual orientation, national origin, age, religion, Vietnam era Veteran’s status, political affiliation, or any other non-merit factor.
B. Contractor shall, if requested to so do by the City, certify that it has not, in the performance of this Agreement, discriminated against applicants or employees because of their race, creed, color, disability, sex, sexual orientation, national origin, age, religion, Vietnam era Veteran’s status, political affiliation, or any other non-merit factor.
C. If requested by the City, Contractor shall provide the City with access to copies of all of its records pertaining or relating to its employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law. 7 D. Nothing contained in this Agreement shall be construed in any manner so as to require or permit any act which is prohibited by law.
E. Contractor shall include the provisions set forth in this Section in each of its subcontracts.
19. Time of Essence. Time is of the essence in respect to all provisions of this Agreement that specify a time for performance; provided, however, that the foregoing shall not be construed to limit or deprive a party of the benefits of any grace or use period allowed in this Agreement.
20. Choice of Law. This Agreement, and any dispute arising from the relationship between the Parties hereto, shall be governed by the laws of the State of California. The venue for any litigation arising out of or in connection to this Agreement shall be the County of Contra Costa.
21. Advertising or Publicity. Contractor shall not use, reproduce or copy the seal of the City and shall not represent the City in an official capacity as spokesperson or officer or agent or use the name City of Pleasant Hill, or the names of the City’s officers, directors, employees or agents, in advertising or publicity releases or otherwise without securing the prior written consent of the City in each instance unless set forth in this Agreement. Nothing in this Section prohibits Contractor from using the name Pleasant Hill Tourism Improvement District or City of Pleasant Hill for regional identification for promotion and marketing of the PHTID.
22. Entire Agreement. This Agreement, including all attachments, exhibits, and any other documents specifically incorporated into this Agreement, shall constitute the entire agreement between City and Contractor relating to the subject matter of this Agreement. As used herein, Agreement refers to and includes any documents incorporated herein by reference and any exhibits or attachments. This Agreement supersedes and merges all previous understandings, and all other agreements, written or oral, between the Parties and sets forth the entire understanding of the Parties regarding the subject matter thereof. This Agreement may not be modified except by a written document signed by both Parties.
23. Subcontracting/Assignment. Contractor shall not subcontract, assign or delegate any portion of this Agreement or any duties or obligations hereunder without the City’s prior written approval.
A. Neither party shall, on the basis of this Agreement, contract on behalf of or in the name of the other party. Any agreement that violates this Section shall confer no rights on any party and shall be null and void.
B. Contractor may use subcontractors to provide any portions of the service identified in Exhibit A without prior written consent of the City.
C. Contractor shall remain fully responsible for compliance by its subcontractors with all the terms of this Agreement, regardless of the terms of any agreement between Contractor and its subcontractors.
24. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the 8 remaining provisions, or portions of them, will not be affected, unless an essential purpose of this Agreement would be defeated by the loss of the illegal, unenforceable, or invalid provision.
25. Waiver. City and Contractor agree that waiver by City or Contractor of any default or violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent default or violation of the same or any other term or condition.
26. Force Majeure. No party shall be considered to be in default in the performance of any of its obligations under this Agreement (other than obligations to make payments for bills rendered pursuant to this Agreement) when a failure of performance shall be due to uncontrollable force. The term “uncontrollable force” shall mean any cause beyond the control of the party unable to perform such obligations, including, but not limited to, failure of or threat of failure of facilities, flood, earthquake, storm, drought, fire, pestilence, lightning and other natural catastrophes, epidemic, war, riot, civil disturbance or disobedience, strike, labor dispute, labor or material shortage, sabotage, government priorities, restraint by court order or public authority and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, which by the exercise of due diligence such party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome.
27. Authority and Effective Date. Contractor and Contractor’s signators represent that the signators hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of Contractor and to bind Contractor hereto. City and City's signators represent that the signators hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of City and to bind City hereto.
The effective date of this Agreement shall be April 1, 2022 (“Effective Date”). In the event Contractor fails to set forth a date of execution opposite the name(s) of Contractor’s signator(s), Contractor hereby authorizes City, by and through its representative, to insert the date of execution by Contractor’s signator(s) as the date this Agreement, as executed by Contractor, is received by City.
IN WITNESS THEREOF, the Parties hereto have executed or approved this AGREEMENT on the dates below their signatures.
City of Pleasant Hill
By____________________________________
____________________________________
(print name)
Title:__________________________________
Date:_________________________________
Stay Pleasant Hill
By_______________________________________
____________________________________
(print name)
Title:__________________________________
Date:_________________________________
9 EXHIBIT A
Scope of Services
Contractor shall provide the following services:
1. Contractor will conduct the day to day operations of the PHTID.
2. Contractor shall cooperate with City and City staff in the performance of all work hereunder.
3. Contractor will provide projects, programs and activities that benefit businesses within the PHTID in accordance with the PHTID Management District Plan attached hereto and any subsequent amendments thereto.
4. Contractor shall perform responsibilities under the Property and Business Improvement District Law of 1994 (the “Law”) including but not limited to:
a. Preparation of the Annual Report required by the Law, which shall include:
Any proposed changes in the boundaries of the improvement district or in any benefit zones or classification of businesses within the district. The improvements and activities to be provided for that fiscal year. An estimate of the cost of providing the improvements and the activities for that fiscal year.
The method and basis of levying the assessment in sufficient detail to allow each business owner to estimate the amount of the assessment to be levied against his or her business for that fiscal year.
The estimated amount of any surplus or deficit revenues to be carried over from a previous fiscal year.
The estimated amount of any contributions to be made from sources other than assessments levied pursuant to this part.
In addition, the Annual Report shall include:
Details of the accomplishments of the district during the previous fiscal year. An overview of the budgeted versus actual expenditures and revenue for the previous fiscal year.
b. The Annual Report for the prior calendar year shall be prepared and submitted to the City Council by October 30th of each year this Agreement is in effect. 10 5. Contractor shall develop and maintain financial records related to receipt and/or expenditure of all funds received from City.