AGREEMENT FOR SERVICES
This Agreement, dated April 1, 2017, hereinafter referred to as the "Effective Date," is by and between the City of Pleasant Hill, a California municipal corporation, hereinafter referred to as the "City," and the Pleasant Hill Chamber of Commerce, 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, hereinafter the "Resolution," creating the Pleasant Hill Tourism 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. Contractor was designated in the Resolution and PHTID Management District Plan as the Owners' Association in accordance with Streets and Highways Code section 36614.5.
C. Streets and Highways Code section 36651 requires the City contract with the Owners' Association for provision of PHTID services if the management district plan designates an owners association.
D. 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.
Term. Unless otherwise terminated per the terms of this Agreement, the term of this Agreement shall begin on April 1, 2017, and end on March 31, 2022 or, if the PHTID is disestablished prior to March 31, 2022, the effective date of PHTID disestablishment..
3. 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. 1 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.
4. 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 therefrom, or to any violation of federal, state or municipal law or regulation, and (2) is caused by any 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.
5. 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 2 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. Contractor shall 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.
6. 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.
7. Payment. City shall forward to Contractor all PHTID assessment funds collected within thirty days of collection, less any City administrative fees as authorized in the PHTID Management District Plan.
8. Taxes. Payment of all applicable federal, state and local taxes shall be Contractor's sole responsibility.
9. Ownership of Documents.
A. Contractor hereby agrees to provide to a private, not-for-profit, successor and if there is none, then automatically assigns to the City and its assignees 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, whether prepared by the City, the Contractor, the Contractor's subcontractors or third parties at the request of the Contractor (collectively, "Documents and Materials"). This explicitly includes electronic copies of all above stated documentation.
3 B. Contractor shall be permitted to retain copies, including reproducible copies and computerized copies, of Documents and Materials. Contractor agrees to take such further steps as may be reasonably requested by City to implement the aforesaid assignment. If for any reason said assignment is not effective, Contractor hereby grants the City and any assignee of the City an express royalty - free license to retain and use said Documents and Materials. The City's rights under this paragraph shall apply regardless of the degree of completion of the Documents and Materials and whether or not Contractor's services set forth in Exhibit "A" of this Agreement have been fully performed or paid for.
C. Contractor shall pay all royalties and license fees which may be due for any patented or copyrighted materials, methods or systems selected by Contractor and incorporated into the work as set forth in Exhibit "A", and shall defend, indemnify and hold the City harmless from any claims for infringement of patent or copyright arising out of such selection.
D. The City's rights under this Section shall not extend to any computer software used to create such Documents and Materials.
E. Contractor shall maintain all documents and records in accordance with the California Public Records Act, Government Code section 6250, et seq.
10. 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.
11. 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 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: To Contractor:
City Manager President and Chief Executive Officer
100 Gregory Lane Pleasant Hill Chamber of Commerce
Pleasant Hill, CA 94523 91 Gregory Lane, Suite 11
Pleasant Hill, CA 94523
4 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.
12. 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 | 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.
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.
13. Compliance with Licensing Requirements. Contractor shall comply with all necessary licensing requirements and shall obtain appropriate licenses and display the same in a location that is reasonably conspicuous, and file copies of same with the City.
14. Annual Report. On an annual basis, Contractor shall submit to the City Council the report required by Streets and Highways Code §36650 and the Management District Plan, hereinafter "the 5 Annual Report." The Annual Report shall be due each fiscal year, except the first year for which assessments are due to be levied and collected. The first annual report is due after the first year of operation on or before July 31, 2018. Each Annual Report shall include an audited financial statement.
15. Audits and Records Access.
A. Contractor shall make available to the City, its authorized agents, officers, or employees, for examination any and all ledgers, books of accounts, invoices, vouchers, cancelled checks, and other records or documents evidencing or relating to the expenditures and disbursement of PHTID assessment funds, and shall furnish to the City, within sixty (60) days after examination, its authorized agents, officers or employees such other evidence or information as the City may require with regard to any such expenditure or disbursement charged by Contractor..
B. Contractor shall maintain full and adequate records in accordance with City requirements to show the actual costs incurred by the Contractor in the performance of this Agreement. Such records shall be maintained within the City of Pleasant Hill. Contractor shall provide such assistance as may be reasonably required in the course of such inspection. The City further reserves the right to examine and re-examine said books, records and data during the four (4) year period following termination of this Agreement or completion of all work hereunder, as evidenced in writing by the City, and Contractor shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts, and data in any manner whatsoever for four (4) years after the City makes the final or last distribution of assessments collected by the City for the PHTID or within four (4) years after any pending issues between the City and Contractor with respect to this Agreement are closed, whichever is later.
C. Between submission of Annual Reports, the City may request that an audit be performed to confirm that expenditures have been consistent with the PHTID Management District Plan, the 1994 Law, or any other applicable laws, and Contractor shall cause to be performed such audit of expenditures for the period in question.
16. Documents and Materials. Contractor shall maintain and make available to City for its inspection and use during the term of this Agreement, all Documents and Materials, defined as any and all documents, contracts, subcontracts, receipts, invoices, plans, collateral, advertisements and other paper or electronic writings and other materials used for the provision of services under this Agreement.
Contractor's obligations shall continue for four (4) years following termination or expiration of this Agreement, and Contractor shall in no event dispose of, destroy, alter or mutilate said Documents and Materials, for four (4) years following the City's last payment to Contractor under this Agreement.
17. 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.
18. Termination/Disestablishment. The City has and reserves the right to suspend, terminate or abandon the execution of any work by Contractor upon adoption of a resolution disestablishing the 6 PHTID pursuant to the 1994 Law. Per the 1994 Law, such a resolution 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 the 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.
19. 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.
20. 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.
21. 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.
22. Modification of Agreement. This Agreement may be supplemented, amended or modified only by mutual agreement of the parties; however, this Agreement shall be subject to any amendments to the PHTID Management District Plan adopted by the City Council pursuant to the 1994 Law. No supplement, amendment or modification of this Agreement, except for a duly adopted amendment to the PHTID Management District Plan, shall be binding unless it is in writing and signed by authorized representatives of both parties.
7 23. Assurance of Performance. If at any time the City has good objective cause to believe Contractor may not be adequately performing its obligations under this Agreement or that Contractor may fail to complete services as required by this Agreement, City may request from Contractor prompt written assurances of performance and a written plan acceptable to City, to correct the observed deficiencies in Contractor's performance. Contractor shall provide such written assurances and written plan within thirty (30) calendar days of its receipt of City's request and shall thereafter diligently commence and fully perform such written plan. Contractor acknowledges and agrees that any failure to provide such written assurances and written plan within the required time is a material breach under this Agreement.
24. 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.
25. Survival. The obligations of this Agreement, which by their nature would continue beyond the termination or expiration of the Agreement, including without limitation obligations regarding indemnification, ownership of documents, and conflict of interest, shall survive termination or expiration for two (2) years.
26. 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 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. [Signatures on Next Page]
8 IN WITNESS THEREOF, the parties hereto have executed or approved this AGREEMENT on the dates below their signatures.
City of Pleasant Hill
Natue to sorer
(print name)
Title: Lity MAnAgER Title:
Date: JunE 29, 2017 Date: are 30,2017
EXHIBIT A
Scope of Services
Contractor shall provide the following services:
1. Contractor shall cooperate with City and City staff in the performance of all work hereunder.
2. 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.
3. 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:
1. Any recommended changes to boundaries;
2. The improvements and activities to be provided for that fiscal year;
3. An estimate of cost for providing the improvements and activities;
4. 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/her business for that fiscal year;
5. The amount of any surplus or deficit revenues to be carried over from a previous fiscal year; and
6. The amount of any contributions to be made from sources other than assessments.
b. Annual Report shall be due each fiscal year, except the first year for which assessments are due to be levied and collected. The first annual report is due after the first year of operation on or before July 31, 2018, and then the following July 31 through the term of the district.
4. Contractor shall develop and maintain financial records related to receipt and/or expenditure of all funds received from City.
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