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HomeMy WebLinkAboutSLODA• • Jl""r,. AGREEMENT THIS AGREEMENT is entered into as of the 1st day of July, 2008, between the SAN LIDS OBISPO DOWNTOWN ASSOCIATION, a 501(c)(6) non-profit corporation organized under the laws of the State of California, with a place of business at 1108 Garden Street, San Luis Obispo, California 93401 ("SLODA"),and the CITY OF SAN LUIS OBISPO, a municipal corporation ("City"). RECITALS: A. The City and SLODA have worked together for the benefit of business and tourism in the downtown area of San Luis Obispo since the inception of the Downtown Business Improvement Area in 1975; and B. The City and SLODA desire to continue their relationship for the betterment of tourism and business with amendments to the Downtown Business Improvement Area that will better reflect a new relationship between the two entities while retaining the Business Improvement Area as allowed under State law; and C. The State of California Parking and Business Improvement Area Law of 1965 (Streets and Highways Code Sections 36000, et seq. ("the 1965 Law") allows the establishment of Parking and Business Improvement Areas, and permits the City to levy assessments on bus'inesses within that area, the proceeds of which are to be used for any of the following activities in accordance with the Code: 1. The acquisition, construction, or maintenance of parking facilities for the benefit of the area, including but not limited to payment of any debt service cost incurred by the City in connection therewith. 2. Decoration of any public place in the area. 3. Promotion of public events which are to take place on or in public places in the area. 4. Furnishing of music in any public place in the area. 5. The general promotion of retail trade activities in the area, including but not limited to costs of studies made to improve trade therein and payments to associations or individuals engaged in such promotion. D. On October 6, 1975, the City Council adopted, and subsequently amended on various occasions, Ordinance 649 (1975 Series) (collectively, "the Ordinance") creating theDowntown Parking and Business Improvement Area ("DPBIA") in the downtown area of San Luis Obispo, and levying the authorized assessment on all businesses within the area. E. By Ordinance No. 649 and Ordinance No. 1334 (1998 Series), the City created the SLODA as an Advisory Body ••• to advise and recommend to the council the H methods and ways in which the revenues derived from the additional tax shall be • • ,f expended" and th~ SLODA has since existed as an advisory body of the City to provide a program to promote business and tourism in the downtown area of San Luis Obispo. F. In recent years, the SLODA has desired to expand services to its members in a manner that is constrained by its status as a City advisory body and SLODA's status as an advisory body has presented operational ambiguities that both the City and the SLODA have sought to address through the joint pursuit of a change in the SLODA's status. G. The SLODA and the City have determined that establishing the SLODA as an independent, non-profit entity, with which the City may contract to provide services to the members of the DPBIA and to administer the assessment collected for that purpose, presents the most desirable operational structure. H. The SLODA has established itself as a 501(c)(6) and wishes to enter into this contract with the City to provide agreed upon services to the DPBIA members recognizing that neither the City, nor any of its officers or employees will have any control over the conduct of SLODA or any of its employees, except as to oversight and administration of the Agreement herein, and that the SLODA will expressly identify itself, its officers, agents, servants or employees, as a separate and distinct independent contractor, no longer an ann of the City. 1. Having determined that promotional activities to benefit business and tourism activities in the downtown area of San Luis Obispo are an appropriate use of DPBIA assessment proceeds, since such activities are expected to maintain and increase revenues derived by the City from the downtown area, and to preserve and enhance the unique character of the downtown to for the special benefit of downtown area businesses, and further having determined that SLODA is able to conduct such promotional activities, the City Council desires to contract with SLODA to conduct promotional activities in the downtown area of San Luis Obispo. NOW THEREFORE, THE PARTIES AGREE as follows: 1. Before this agreement becomes effective, SLODA will be duly established as a 501(c)(6) non-profit corporation, with documented legal status and ability to enter into and perfonn this Agreement. 2. Effective June 30, 2008, aU employment relationships between the City and Downtown Association staff shall be tenninated and the City shall have no further obligations as employer ofsaid staff. Prior to June 30, 2008, the Downtown Association Administrator shall ensure that she and any staff members who are employees of the City have contacted the City's Human Resources Department and said staff shall coordinate . with the Human Resources Department to effectuate their voluntary tenninations from City employment in accordance with applicable law, City procedures, and the terms of their contracts, if any. • • , .. 3. Scope of Services. SLODA will conduct promotional activities to benefit business and tourism activities in the downtown area of San Luis Obispo more specifically set forth in the SLODA Scope of Services, attached hereto as Exhibit A and incorporated as is fully set forth herein, as limited by State law and the Ordinance, and subject to any modifications approved in writing by the City Administrative Officer ("CAO"). The Scope of Services shall be reviewed at least annually by Council, no later than May 15 of each year and may be amended by mutual consent of the parties after approval by the City Council. The CAO is hereby authorized to approve periodic amendments to the Scope of Services without further consent by Council to the extent that any such amendments do not result in the elimination of required Special Events, as set forth in Exhibit A. 4. Financial Reporting. SLODA will prepare and file with City, consistent with City policy, quarterly finanCial reports within 60 days after the end of the quarter showing qualifying expenditures made by SLODA and shall, upon request by City, produce supporting invoices, receipts, vouchers and statements showing how the DPBIA revenues have been expended consistent with this Agreement. Such financial reports shall include a line-item schedule which matches expenditures with specific, budgeted amounts and activities. To the extent that funds are expended or activities conducted pursuant to a subcontract as set forth in paragraph 13 of this agreement, SLODA shall include such information in its reports and certify its accuracy. The reports will be filed with the City Finance Director consistent with the City's financial reporting policies and practices, and as reasonably requested by the Finance Director. In addition to interim quarterly reports, the SLODA shall contract with an independent certified public accountant to prepare an annual audit of the SLODA financial operations related to qualifying revenues and expenses. The audit shall be conducted in accordance with auditing standards generally accepted in the United States. The goal of the audit shall be to provide an opinion that the SWDA financial statements present fairly, in all material respects, the financial position and changes in financial condition of the qualifying financial operations of the SLODA, in conformity with accounting principles generally accepted in the United States. The SLODA fiscal year shall be July 1 to June 30; and the audit shall be completed and submitted to the City's Finance Director within 180 days afterJiscal year end. 5. Quarterly Activity Reports. At the time the interim quarterly financial reports are filed, SLODA will also file with the CAO a report of the activities of SLODA and its subcontractors and the respective accomplishments of each during the period specified in the financial report. 6. Carryover Funds. SLODA may accrue a carry-over account of funds paid by the City to SLODA, but not expended by SLODA, provided that SLODA files with the City a declaration, which specifically sets forth the planned use of such funds. The amount of carryover funds will be added to the Agreement amount set forth in any • • ." responsibilities from the City to the SLODA, the parties hereby agree to the temporary allocation of those certain services and responsibilities as set forth in the Transition Plan, attached hereto as Exhibit B and incorporated by this reference as iffully set forth herein. 13. Monthly Remittance of DPBIA Funds to the SLODA. The City will cause to be paid to SLODA the total amount of DPBIA funds collected by the. City during each· month within thirty (30) days of the end of the month. 14. City Staff Rights to Attend SLODA Board Meetings. SLODA shall notify the CAO of the meeting dates of each meeting of the Board of Directors of SLODA, and the CAO or hislher appointed representative shall have the right to attend all meetings of the Board of Directors. 15. Independence of SLODA. Neither the City nor any of its officers or employees will have any control over the conduct of SLODA or any of its employees, except as provided above, and SLODA expressly warrants not in any manner or at any time to represent that its officers, agents, servants or employees are in any manner the officers, agents, servants or employees of the City, it being distinctly understood that SLODA is and at all times will remain as to the City, an independent contractor, and the obligations of SLODA to the City is solely as prescribed by this Agreement. 16. Assignment. This Agreement contemplates that SLODA will render special services which it is uniquely able to provide, and it is recognized by the parties that an inducement to City for entering into this Agreement was, and is, the ability of SLODA to render these special services. Neither this Agreement nor any interest in this Agreement may be assigned by SLODA, except that SLODA may, on written consent of the CAO or his designee, obtained in advance, assign any moneys due, or to become due, SLODA for purposes consistent with this Agreement. SLODA agrees not to subcontract any portion of the performance contemplated and provided for in this Agreement, except that SLODA may enter into subcontracts for the sole purpose of carrying out promotional activities within the scope of the Ordinance with the consent of City. Nothing contained in this Agreement is intended to or will be construed as preventing SLODA from employing or hiring as many employees as it may deem necessary for the proper and efficient execution of this Agreement. 17. Insurance. SLODA shall obtain and maintain insurance as set forth in Exhibit C hereto, the requirements of which are incorporated herein. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided or canceled by either party except after thirty (30) days' prior written notice to City, and shall be primary and not contributing to any other insurance or self-insurance maintained by City. SLODA shall deliver to City certificates of insurance and original endorsements for approval as to sufficiency and form prior to the start of performance hereunder. The certificate and endorsements for each insurance policy shall contain the original signature of a person authorized by that insurer to bind coverage on its behalf. "Claims made" policies of insurance are not acceptable unless the City Risk Manager determines that ·, -, "occurrence" policies are not available in the market for the risk being insured. If a "claims made" policy is accepted, it must provide for an extended reporting period of not less than one hundred eighty (180) days. Such insurance as required herein shall not be deemed to limit SLODA's liability relating to performance under this Agreement. City reserves the right to require complete certified copies of all said policies at any time. Any modification or waiver of the insurance requirements herein shall only be made with the approval of the City Risk Manager.The procuring of insurance shall not be construed as a limitation on liability or as full performance of the indemnification provisions of this Agreement. To the extent that SLODA subcontracts certain activities pursuant to paragraph 13 of this Agreement, SLODA may comply with the requirements of this paragraph 14 by providing certificates of insurance naming SLODA and the City of San Luis Obispo as separate additional insureds under the subcontractor's insurance, providing that the subcontractor's insurance meets or exceeds the insurance requirements of this paragraph 14, all subject to the approval of the Risk Manager. 18. Hold Harmless and Indemnification. SLODA shall protect, defend, indemnify and hold City; its officials, employees, and agents (collectively in this Section referred to as "City") harmless from and against any and all claims, demands, causes of action, losses, damages, and liabilities, whether or not reduced to judgment, which may be asserted against City arising from or attributable to or caused directly or indirectly by SLODA, SLODA's employees or agents in the performance of work under this Agreement, or any alleged negligent or intentional act, omission or misrepresentation by SLODA, SLODA's employees or agents, which act, omission or misrepresentation is connected in any way with performance of work under this Agreement. If it is necessary for purposes of resisting, adjusting, compromising, settling, or defending any claim, demand, cause of action, loss, damage, or liability, or of enforcing this provision, for City to incur or to pay any expense or cost, including attorney's fees or court costs, SLODA agrees to and shall reimburse City within a reasonable time. SLODA shall give City notice of any claim, demand, cause of action, loss, damage or liability within ten (10) calendar days. 19. Notice. Any notices to be given under this Agreement, or otherwise, may be given by enclosing the same in a sealed envelope, addressed to the party intended to receive the same, at its address and by depositing the same in the U. S. Postal Service as regular mail, postage prepaid. When so given, notice will be effective from the time of mailing of the notice. For these purposes, unless otherwise provided in writing, the address of the City and the proper person to receive any notices on its behalf is the CAO, 990 Palm Street, San Luis Obispo and the address of the SLODA is 1108 Garden Street, Suite 210, San Luis Obispo, California 93401. ., -, "occurrence" policies are not available in the market for the risk being insured. If a "claims made" policy is accepted, it must provide for an extended reporting period of not less than one hundred eighty (180) days. Such insurance as required herein shall not be deemed to limit SLODA's liability relating to performance under this Agreement. City reserves the right to require complete certified copies of all said policies at any time. Any modification or waiver of the insurance requirements herein shall only be made with the approval of the City Risk Manager. The procuring of insurance shall not be construed as a limitation on liability or as full performance of the indemnification provisions of this Agreement. To the extent that SLODA subcontracts certain activities pursuant to paragraph 13 of this Agreement, SLODA may comply with the requirements of this paragraph 14 by providing certificates of insurance naming SLODA and the City of San Luis Obispo as separate additional insureds under the subcontractor's insurance, providing that the subcontractor's insurance meets or exceeds the insurance requirements of this paragraph 14, all subject to the approval of the Risk Manager. 18. Hold Harmless and Indemnification. SLODA shall protect, defend, indemnify and hold City, its officials, employees, and agents (collectively in this Section referred to as "City") harmless from and against any and all claims, demands, causes of action, losses, damages, and liabilities, whether or not reduced to judgment, which may be asserted against City arising from or attributable to or caused directly or indirectly by SLODA, SLODA's employees or agents in the performance of work under this Agreement, or any alleged negligent or intentional act, omission or misrepresentation by SLODA, SLODA's employees or agents, which act, omission or misrepresentation is connected in any way with performance of work under this Agreement. If it is necessary for purposes of resisting, adjusting, compromising, settling, or defending any claim, demand, cause of action, loss, damage, or liability, or of enforcing this provision, for City . to incur or to pay any expense or cost, including attorney's fees or court costs, SLODA agrees to and shall reimburse City within a reasonable time. SLODA shall give City notice of any claim, demand, cause of action, loss, damage or liability within ten (10) calendar days. 19. Notice. Any notices to be given under this Agreement, or otherwise, may be given by enclosing the same in a sealed envelope, addressed to the party intended to receive the same, at its address and by depositing the same in the U. S. Postal Service as regular mail, postage prepaid. When so given, notice will be effective from the time of mailing of the notice. For these purposes, unless otherwise provided in writing, the address 'of the City and the proper person to receive any notices on its behalf is the CAO, 990 Palm Street, San Luis Obispo and the address of the SLODA is 1108 Garden Street, Suite 210, San Luis Obispo, California 93401. • • --'--_.. EXHIBIT A SCOPE OF SERVICES SPECIAL EVENTS: The events and/or activities set forth below are Special Events the continuation of which the City considers integral to the fulfillment of SLODA's obligations under the Agreement. As such, the City agrees to continue to provide, with no additional cost to be incurred by SLODA, the enumerated municipal services that have traditionally been provided to the SLODA in conjunction with the events/activities as set forth below and the SLODA shall continue to provide the following Special Events to the Downtown: A. Holiday Activities B. Concerts in the Plaza C. Thursday Night Promotions City services in support of the above events have traditionally included the following, which will continue uninterrupted, notwithstanding the change in SLODA status: 1. Public safety support at levels determined appropriate by the City, including holiday parade escort. 2. Placement and removal of street barricades and coordination of street closures for holiday activities and Thursday Night Promotions. 3. Placement and removal of City-owned portable restrooms for Thursday Night Promotions. 4. Banner placement and advertising at 50% of standard City fees. (Note: SLODA shall retain its priority position with regard to the placement of street banners that promote activities that benefit tourism and business in the district, in addition to the Special Events above, within the scope of the Agreement, but shall be charged fees consistent with City policy for the placement of such banners) 5. Special Events Permit processing at 50% of standard City fees 6. Street clean-up following Special Events 7. Provision of meter tags for placement by SLODA for Thursday Night Promotions 8. Holiday tree placement and removal 9. Free rental of Mission Plaza for placement of Santa's House and carousel and for Concerts in the Plaza. ONGOING SERVICES: In addition to the Special Events set forth above, SLODA shall provide, as needed, the, following Ongoing Services to the Downtown. The costs of any City services required or requested in support of these Ongoing Services shall be allocated to the SLODA . • • .. consistent with City policies applicable to other not for profit entities and pursuant to the terms of the Agreement. 1. ParkingITransportation a. Distribute employee and customer parking brochures to targeted groups. b. Work closely with City staff to analyze and make recommendations to the City Council on ways to address employee parking issues. c. Work closely with City staff on the development of downtown construction public information programs. 2. Programming in Plaza a. Continue Concerts in the Plaza music series during the summer months b. Explore other event ideas such as movies, art fairs, poetry, etc. 3. Downtown Maintenance a. Continue to cooperate with Public Works Department staff to determine sidewalk scrubbing schedule.· . b. Disseminate cleanliness and safety infonnation to members through publications and presentations. c. Work with City staff to get trash and recycling receptacles cleaned. d. Continue Downtown Forester program in assisting with tree maintenance. 4. Economic Development a. Work closely with City staff when developing marketing strategies for retail services and continue to implement Strategic Plan goals to maintain downtown retail health. b. Continue to facilitate business recruitment and retention in the Downtown. c. Continue to coordinate with City and Chamber of Commerce to get information to visitors on Downtown retail/shopping opportunities. d. Strengthen collaboration efforts with the Chamber of Commerce and other business and visitor groups to increase effecti veness of local and regional marketing. e. Get word out to downtown retailers and restaurants when conferences/events are in town and encourage them to do direct marketing/outreach. 5. Organizational Capacity Keep the City apprised of the status of SLODA's long term strategy for the fiscal sustainability of the SLODA, including strategies to: a. Maintain economic vitality and independence of the organization .. • • b. Identify options for development of other funding sources to be considered, pursued, and/or secured to supplement the organization's activities; c. Evaluate internal organization, and committee structure, and allocation of resources to identify changes needed to most effectively implement SLODA's mission and goals. • • EXlllBITB TRANSITION PLAN This Plan shall constitute the agreement of the City and SLODA with respect to allocation of costs and responsibilities associated with services that historically have been provided by the City to the SLODA, as an advisory body of the City, at no cost to the SLODA. Existing Assets in Possession of SLODA: SLODA maintains certain assets that have been acquired during the course of its existence as an advisory body of the City. The City hereby acknowledges that such assets are deemed to have been purchased utilizing non-public funds and the City claims no right or title to any assets currently in the possession of the SLODA, including but not limited to office equipment and furniture, vehicles, and interests in real property. SLODA acknowledges that the City currently does not have and will not assume any financial responsibility or liability for any present or subsequently acquired assets of the SLODA. Additionally, the City currently maintains financial accounts for the SLODA. Upon execution of this Agreement, any sums remaining to the credit of the SLODA will be transferred to SLODA to be used for purposes consistent with this Agreement and will be thereafter deposited in accounts to be separately established and maintained by the SLODA 501 (c )(6). Santa's House: The City agrees to continue to store Santa's House at the Corporation Yard until alternate storage arrangements can be obtained, but not later than December 31, 2008. City also agrees to provide a police escort for the transportation of Santa's house from the designated storage area to Mission Plaza. SLODA agrees to hold the city harmless from and against any liability resulting from loss or damage to Santa's House during such time as it remains in the City's custody. Stage and Chairs: City agrees to maintain the current storage of and accessibility to SLODA's stage through the completion of the final concert of the 2008 summer concert season at no additional charge to the SLODA. Thereafter, SLODA will make alternate storage arrangements and the City will have no further obligation with regard to the stage. The City Parks and Recreation Department (Parks & Rec) currently maintains possession of numerous chairs that were purchased for event use by both Parks & Rec and SLODA. The purchase was funded equally from Parks & Rec and SLODA budgets, and the SLODA additionally funded the purchase of chair dollies to transport the chairs. The • • .. City and the SLODA agree that possession and ownership of the chairs will remain with the City upon SLODA's non-profit transition. However, the City will make the chairs available for SLODA's use for events and activities within the scope of this Agreement. Should the chairs and/or dollies be lost, damaged or destroyed, neither party shall have any obligation to the other with regard to repair or replacement. Electrical Conduit: . Higuera Street The SLODA partially funded the installation of electrical conduit in Higuera Street to accommodate the potential for future electrical connections for use by Thursday Night Promotions vendors. A further capital project will be required to facilitate such connections. The City and SLODA have agreed to work toward accomplishing the connections over the initial term of the Agreement. However, SLODA recognizes that the completion of such a project will require additional funding and the parties agree that the cost allocation relating to the provision of such connections and post-installation maintenance issues, such as electrical service costs, are subject to further negotiation. • •.. \ £11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement this _7_ of fieRiL. ,2008. SAN LUIS OBISPO DOWNTOWN ASSOCIATION, a 501 (c)(6) Corporation By: CITY OF SAN LUIS OBISPO BY:~~· David F. Romero Mayor APPROVED AS TO FORM: By: ~t:3=._~ JllllP:LOWell City Attorney • • • INSURANCE REQUIREMENTS Operation & Maintenance Contracts The Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property that may arise from or in connection with the perfonnance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. . Minimum SCQpe of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability. coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. Minimum Limits of Insurance. Contractor shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial Geneml Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this projectJlocation or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: $1,000,000 per accident for bOdily injury or disease. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; Qr the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance ProviSions. The general liability and automobile liability policies &fe to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contmetor; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; or automobiles owned leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. 2. For any claims related to this project, the Contractor's insurance coverage shall be primary insurallce as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits ofthe insurer's liability. • • • EXHIBIT ue n 4. 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 the City. . Acceptability oflnsurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no . less than A:VII. Verification of Coverage. Contractor shall furnish the City with a certificate of insurance showing required coverage. Original endorsements effecting general liability and automobile liability coverage are also required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. Subcontractors. Contractor shall include all subcontra~ors as insured under its policies or shall furnish separate certificates and en,dorsements for each subcontractor. All coverages for subcontractors shall be subject to all ofthe requirements stated herein.