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HomeMy WebLinkAbout05/17/2011, C7 - DOWNTOWN ASSOCIATION AGREEMENT RENEWAL CO Un C l t 5-17-2011 j ACEn6A REPORt ]�"�` al- CITY OF SAN LUIS OBISPO FROM: Michael Codron, Assistant City Manager Prepared By; Claire Clark, Economic Development Manager SUBJECT: DOWNTOWN ASSOCIATION AGREEMENT RENEWAL RECOMMENDATION Approve an Agreement with the San Luis Obispo Downtown Association (SLODA) for provision of services to the City and authorize the Mayor to execute the two-year Agreement. DISCUSSION Background In 1975, the City joined with the Downtown merchants and property owners to create an assessment district to provide funding for special benefits to the Downtown.. This district was created pursuant to the Parking and Business Improvement Area Law of 1965 (California Streets and Highway Code (§36000-36081) by adoption of Ordinance Number 649 (1975 Series.) The law provided the City Council with the sole discretion as to how the revenue derived from the assessment is to be used within the scope of the purposes spelled out in the 1965 State law. The boundaries of the Downtown Parking and Business Improvement Area (Area) were defined by the Ordinance encompassing the heart of the Downtown business district bounded generally by Santa Rosa and Beach Streets, and by Palm and Marsh Streets as more specifically shown on the boundary map (Attachment 1). The Downtown Association (DA), originally created as an advisory body to the City Council, now operates as an independent 501(c)(6) not-for-profit corporation (SLODA) and has an annual budget of approximately $600,000, about a third of which is derived from the Area assessment on the approximately 600 SLODA members. Prior Agreements On July 1, 2008, the City Council entered into a one-year agreement with the newly formed not- for-profit SLODA for the provision of services in return for distribution of all Area assessment revenues. To facilitate a smooth transition from advisory body status to contractor status, the City and the DA formed a transition team that examined the services provided by the City to the DA, and services provided by the DA for the benefit of the. City. This analysis informed preparation of the initial contract that enumerated provision of specific services primarily including three events: Holiday Activities, Concerts in the Plaza and Thursday Night.Promotions (also commonly referred to as Farmers' Market.) The Agreement also listed on-going services that the DA had traditionally provided, including but not limited to working closely with City C7-1 Report Title Page 2 staff to address issues of parking, construction, downtown maintenance, economic vitality and long term strategies for the viability and health of the SLODA. In the subsequent year, the contract was renewed for a two-year term in recognition of the outstanding work of the SLODA and in conformance with the City's Financial Plan period (2009-11). The terms of the 2009-11 agreement were substantially the same as the initial contract and continued the long and successful relationship between the City and the SLODA. The Scope of Services section of the Agreement was retained with the services to be provided by both sides continuing. The primary change was elimination of the transitional elements of the original contract. Proposed 2011-13 Agreement In preparation for negotiations regarding renewal of the contract with the SLODA and at the request of City Council, last year staff undertook an analysis of the services provided by the City to the SLODA, and the services provided by the SLODA to the benefit of the City and Downtown businesses (including an analysis of costs). This analysis highlighted the substantial benefit that results from the cooperative activity between the organizations. Negotiations ensued and culminated in agreement between the SLODA and City staff as to terms and conditions for the proposed contract between the City and the SLODA for 2011-13, consistent with the strategic budget direction provided by the City Council to staff on April 19, 2011. The proposed agreement, shown in Attachment 2, extends the term of the contract through the end of the 2011-13 Financial Plan period, a two-year time frame. It continues to enumerate services to be provided by the SLODA in the Scope of Services, with some changes in wording to further clarify the contract terms. Unchanged are the events that the SLODA is contracted to provide to the City in return for distribution of all Area assessment revenues. These events include Holiday Activities, Concerts in the Plaza and Thursday Night Promotions. During consideration of the proposed contract, the City and SLODA agreed to some minor changes to the wording of the contract, including: • Clauses that reflect the great value of the Downtown Association promotional activities in benefit to the Downtown. • An amendment to allow the DA to submit audited financial statements every other year, instead of every year. • A dispute resolution clause in subcontractor contracts. • A definition of each of the contracted events. These changes can be readily identified in the Legislative Draft version of the Agreement (Attachment 3.) Although the Scope of Services remains largely unchanged, one important addition is a definition of each of the three events required under the contract. The purpose of these definitions is to bring more clarity and certainty to the contract without tying the hands of the SLODA as to management of the events it provides under the contract. The resulting contract improves the C7-2 Report Title Page 3 role definitions in the agreement for the City and the SLODA, reinforces the SLODA's responsibility for good management of its events and subcontractors, and further illuminates the importance of the SLODA activities to the City. FISCAL IMPACT The City will continue to collect the approximately $200,000 in Area assessment revenues and will pass these funds to the SLODA for services provided in accordance with this Agreement. In addition, the City will continue to provide support for the special events that the SLODA provides in under the Agreement. The City incurs costs of approximately $91,000 per year to provide such services with cost recovery of approximately$ 6,600 per year from the SLODA. CONCLUSION The City and the SLODA seek a continued relationship to preserve the vitality and effectiveness of the Downtown to support businesses and attract visitors to the City of San Luis Obispo. The SLODA will continue to provide a high level of service to the City in accordance with the Agreement to the benefit of the Area businesses and, with the continuing support of the City, for the betterment of the City as a whole. ALTERNATIVES 1. Do not renew the Agreement with the SLODA. The Council could direct staff to explore alternatives to contracting with the SLODA for the services provided by this organization. Due to the ongoing nature of the activities (particularly Thursday Night Promotions) that have become hallmarks of our community, this is not recommended.. 2. Require greater cost recovery. The Council may direct staff to negotiate with the SLODA for greater cost recovery due to the current budgetary constraints. While this may be a longer term goal, the benefit to be gained by the City's continued participation in these costs far outweighs the cost of such participation. However, if this is an action the Council chooses, direction as to the Council's goal in cost recovery is requested. ATTACHMENTS 1. Downtown Business Improvement Area Map 2. Proposed 2011-13 Agreement between City and SLODA 3. Legislative Draft of.2011-2013 Agreement File: file:///T:\Downtown%20Association\2011-2013\CAR5-17-2011.doc C7-3 ATTACHMENT . I- I ®r®r I 71t pkat — \ r ip n 4 � (omlll®I®I _ 1101- 1d MNIV5 r'�-4 ATTACHMENT 2 AGREEMENT THIS AGREEMENT is entered into as of this_day of 2011, between the SAN LUIS 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. On October 6, 1975, the City Council adopted, and subsequently amended on various occasions, Ordinance 649 (1975 Series) (collectively, "the Ordinance") creating the Downtown 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, and B. The City and SLODA have.benefited from a close working relationship 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 desire to continue their relationship for the betterment of tourism and business; and C. SLODA is uniquely qualified to provide the services contemplated under this contract due to its intimate knowledge of Downtown, unique connection to businesses in the Downtown, and its long experience producing and providing promotional services for the benefit of Association members; and D.. The SLODA has historically added substantial value to the events produced under contract with the City by utilizing the financial resources of its membership and dedication of its staff that in total far exceed the DPBIA assessment revenues; and E. The SLODA brings experienced and competent management of the subcontractors that it hires for the contracted events; and F. Both parties acknowledge that the Thursday Night Promotions, Concerts in the Plaza and Holiday Activities are unique events that bring vibrancy to the Downtown city streets and public areas; G. 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 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; and 1 C7-5 ATTACHMENT 2 H. The City is authorized to enter into a contract to provide services to the members of the DPBIA and to administer the assessment collected for that purpose; the SLODA, a 501(c)(6) organization, wishes to enter into this contract with the City to provide agreed upon services to the DPBIA members. NOW THEREFORE,THE PARTIES AGREE as follows: 1. Scope of Services. SLODA will conduct promotional activities to benefit business and tourism activities in the Downtown area.of the City, more specifically set forth in this Agreement as the Scope of Services, attached hereto as Exhibit A and incorporated as if fully set forth herein, as limited by State law and the Ordinance, and subject to any modifications approved in writing by the City Manager. During the term of the contract, the Scope of Services may be amended by mutual consent of the parties. The City Manager 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. 2. 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 that matches expenditures with specific,budgeted amounts and activities. 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 audit of the SLODA financial operations related to qualifying revenues and expenses. Said audit shall be completed every two years, at the end of the contract period. 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 SLODA 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 of June 30, 2013. 3. Quarterly Activity Reports. At the time the interim quarterly financial reports are filed, SLODA will also file with the City Manager a report of the activities of SLODA and its subcontractors and the respective accomplishments of each during the period specified in the financial report. 2 C7=6 ATTACHMENT 2 4: Carryover DPBIA Funds. SLODA may accrue a carry-over account of DPBIA 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 DPBIA funds. The amount of carryover DPBIA funds will be added to the DPBIA funds allocated to the SLODA in accordance with this Agreement for succeeding fiscal years, provided that these funds must be specifically allocated to program activities of any budget proposal submitted for such funding agreement. 5. Term. The term of this Agreement will commence July 1,2011 ending on June 30, 2013 to match the two year budget cycle of the City. The contract may be renewed upon approval of the Agreement, including the Scope of Services, by the City Council. The City or the SLODA may terminate this Agreement and any rights, duties and liabilities accruing in this Agreement at any time by giving written notice of election to terminate to the other party at least thirty (30) days prior to the end of the fiscal year. 6. DPBIA Funding Restrictions. The parties acknowledge that DPBIA funds shall be used exclusively for activities within the Scope of Services and that all DPBIA funds allocated by the City shall be subject to the restrictions imposed_ on DPBIA monies by the Ordinance and State law. 7. Limited Use of DPBIA Funds. SLODA will use none of the funds it receives from this Agreement for any purpose not enumerated in the Ordinance, including but not limited to, any expense (including administration and overhead) in support of a SLODA Political Action Committee or any other political entity or activity. The City recognizes that the SLODA may engage in such activities on behalf of its members, independent of its contract with the City and does not attempt through this Agreement to limit those activities, so long as such activities do not utilize DPBIA funds. 8. Accounting for DPBIA Assessments. DPBIA funds may be used to finance fund-raising activities intended to generate additional revenue for use by the SLODA. However, the sum of all DPBIA funds used for this purpose shall be accounted for and proceeds from the fund-raiser equal to that sum shall be used for purposes stated in the Ordinance and conforming to the purposes of the assessment as defined by State law. Further, such use of DPBIA funds shall be specifically described in the periodic reports described in paragraph 2 of this Agreement. 9. City Support for SLODA Activities. The City will continue to provide staff support and services in accordance with the SLODA Scope of Services attached hereto as Exhibit A. The SLODA shall continue to pay to the City the sum of One Hundred Thirty Dollars($130.00) per market for set up and removal of barricades. Said sum shall be adjusted annually, in-July, by the Consumer Price Index-All Urban Areas (CPI-U). It is also agreed that SLODA will reimburse City for all costs incurred by City in providing services during the term of this Agreement relating to other SLODA events or promotional services not addressed in this contract. These costs will be determined and 3 C7-7 ATTACHMENT 2 certified in accordance with City policies applicable to other non-profit organizations and City will provide SLODA with invoices for such services, which will be due and payable by SLODA consistent with standard City policies and practices. 10. 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. 11. City Staff Rights to Attend SLODA Board Meetings. SLODA shall continue to notify the City via the City Manager or his/her appointed representative of all regular meetings of the Board of Directors and shall have the right to attend all such regular meetings. 12. 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. 13. Dispute Resolution between SLODA and its Subcontractors. SLODA shall include a dispute resolution clause in all contracts with subcontractors furnishing services related to contracted events. The dispute resolution clause shall provide a clear and concise process for resolution of disputes that arise between the SLODA and its subcontractors. 14. Assignment. This Agreement contemplates that SLODA will render special servicesthat 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 City Manager or designee obtained in advance, assign any moneys due, or to become due, to 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. 15. Insurance. SLODA shall obtain and maintain insurance as set forth in Exhibit B 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.. 4 C7-8 ATTACHMENT 2 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 14 of this Agreement, SLODA may comply with the requirements of this paragraph 15 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 15, all subject to the approval of the City Risk Manager. 16. 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. ff 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. 17. Notice. Any notices to be given under this Agreement, or otherwise, maybe 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 City Manager, 990 5 C7-9 ATTACHMENT 2 Palm Street, San Luis Obispo and the address of the SLODA is 1108 Garden Street, Suite 210, San Luis Obispo, California 93401. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this day of 12011. SAN LUIS OBISPO DOWNTOWN ASSOCIATION, A 501(c)(6) Corporation. By Deborah Cash, Executive Director, SLO Downtown Association CITY OF SAN LUIS OBISPO By: Jan Howell Marx, Mayor APPROVED AS TOO-0 : B ol� 1,152 C Stine Dietrick, ity Attorney 6 C7-10 ATTACHMENT 2 � EXHIBIT A SCOPE OF SERVICES SPECIAL EVENTS: The events and/or activities set forth and defined 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, at the mutually agreed cost to the SLODA, the enumerated municipal servicesthat 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 and related services to the Downtown: A. Holiday Activities: Holiday Activities include some of the County's most popular holiday events including: a. The Annual Holiday Parade, a free event that features nearly 100 entries and winds its way through the Downtown streets early in the holiday season; b. Santa's House in Mission Plaza, a free service opening the day after Thanksgiving and operating daily through Christmas Eve. Thousands of children visit the House from all over the county and beyond; C. Classic Carousel in Mission Plaza, a contracted activity by the Downtown Association. Each year, an independent operator brings in a full sized carousel that is set up adjacent to Santa's House and operates the same hours as the House. B. Concerts in the Plaza: Concerts in the Plaza runs, typically, from the first Friday in June through the end of August, every Friday evening and is held in Mission Plaza. Features of the event include showcasing local (tri county area) bands, providing the highest level of quality in all aspects of the production such as stage and sound, promotional marketing materials, a high level of staffing and security, dozens of volunteers and quality food and beverage vendors. . C. Thursday Night Promotions: (TNP), an event that showcases Downtown and Downtown businesses to visitors, both locals and tourists, and offers opportunities for Downtown businesses, other eligible non-Downtown businesses, produce vendors, non-profit organizations and other community groups to sell their products and services, fundraise, or provide information. TNP is also often generically referred to as "Farmers Market," "the market," "Thursday night," or other various combinations of those names. City services in support of the above events have traditionally included the following, which will continue uninterrupted: 1. Public safety support at levels determined appropriate by the City, including holiday parade escort.. 7 C7-11 ATTACHMENT 2 2. Placement and removal of street barricades and coordination of street closures for holiday activities and TNP 3. Placement and removal of City-owned portable restrooms for TNP. 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. Holiday tree placement and removal 8. Free rental of Mission Plaza for placement of Santa's House and carousel and for Concerts in the Plaza. SLODA services in support of the above events have traditionally included the following, which will continue to enhance the success of the events: 1. Booth space at TNP for City departments at no cost subject to space availability 2. Noticing via meter flyers for TNP 3. Marketing and coordination of City-related events at TNP at no cost including: a. Fire Prevention Night b. Law Enforcement Night c. Public Works Night 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. Parking/Transportation 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. d. Work closely with City staff on parking management plan and any parking and access programs that benefit the community. 2. Downtown Maintenance s a. Continue to cooperate with Public Works_ Department staff to determine sidewalk scrubbing schedule. 8 C7-12 ATTACHMENT 2 b. Disseminate cleanliness and safety information 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. 3. 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 coordinate with City and Chamber of Commerce to get information to visitors on Downtown retaillshopping opportunities. c. Strengthen collaboration efforts with the Chamber of Commerce and other business 4 and visitor groups to increase effectiveness of local and regional marketing. d. Get word out to Downtown retailers and restaurants when conferences/events are in town and encourage them to do direct marketing/outreach. 4. 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. ADDITIONAL PROVISIONS 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 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. 9 C7-13 ATTACHMENT 2 Exhibit B INSURANCE REOUIREMENTS: Consultant Services 1. Insurance. 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 performance of the work hereunder by Contractor, its agents,representatives,employees or sub-contractors.. a. Minimum scope of insurance. Coverage shall be at least as broad as: • Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).. • Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). • Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. • Errors and Omissions Liability insurance as appropriate to Contractor's profession. b. Minimum limits of insurance. Contractor shall maintain limits no less than: • General Liability: $1,000,000 per occurrence for bodily injury, personal injury 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: $1,000,000 per accident for bodily injury and property damage. • Employer's Liability: $1,000,000 per accident for bodily injury or disease. • Errors and Omissions Liability: $1,000,000 per occurrence. C. 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; or Contractor shall procure a bond guaranteeing payment of losses and related investigations,claim administration and defense expenses. d. Other insurance provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: • 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 Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the 10.. C7-14 ATTACHMENT 2 scope of protection afforded to the City, its officers, official, employees, agents or volunteers. • For any claims related to this project, Contractor's insurance coverage shall be primary insurance 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 Contractor's insurance and shall not contribute with it. • Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, itsofficers,officials,employees, agents or volunteers. • Contractor'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. • 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. e.. Acceptability of insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than ANIL Verification of coverage. Contractor shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. 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. II. C7-15 - ATTACHMENT 3 AGREEMENT THIS AGREEMENT is entered into as of the 1st day of July,2911,between the _..- oeleteq:2W SAN LUIS 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. On October 6, 1975,the.City Council adopted.and subsequently amended on various occasions,Ordinance 649(1975 Series)(collectively, "the Ordinance") creatin_the Downtown 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. B. The City and SLODA have-benefited from a close working relationship for the ------ Deleted:worked together 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 desire to continue their relationship for the betterment of tourism and business;and '---------------------------------------'------------ Deleted:dbOn October 6,1975,the ._ C. SLODA is uniquely qualified to provide the services contemplated under this city dedCouon adopted and subsequently Ordinance amended on various occasions,Ordinance contract due to its intimate knowledge of Downtown,and its long experience 649(1975 Series)(collectively,"the Producing and providing' promotional services for the benefit of Association Ordinance")Busicreang the Downtown Parking and Business Improvement Area members;and ("DPBIA")in the downtown area of San Luis Obispo,and levying the authorized assessment on all businesses within the D. The SLODA has historically added substantial value.to the events produced.under area.y contract with the City by utilizing the financial resources of its membership and dedication of its staff that in total far exceed the DPB IA assessment revenues;and E. The SLODA brings experienced and competent management of the subcontractors that it hires for the contracted events;and F. Both parties acknowledge that the Thursday Night Promotions,Concerts in the Plaza and Holiday Activities are unique events that bring vibrancy to the Downtown city streets and public areas; and - G. Having determined that promotional activities to benefit business and tourism activities in the J)owntown area of San Luis Obispo are an appropriate use of DPBIA.- Deleted:downtown 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__=- Deleted:downtown the unique character of the Aowntown for the_special benefit of owntown area _ - Deleted:downtown businesses,and further,having determined that SLODA is able to conduct such Deleted:downtown promotional activities,the City Council desires to contract with SLODA to conduct promotional activities in the owntown area of San Luis Obispo;and--------------- Deleted:downtown C7-I6 ATTACHMENT 3 H. The City is authorized to enter into a contract to provideservices to the members of the DPB1A and to administer the assessment collected for that purpose;the SLODA, a 501(c)(6)organization,wishes to enter into this contract with the City to provide agreed upon services to the DPB1A members. NOW THEREFORE,THE PARTIES AGREE as follows: 1. Scope of Services..SLODA will conduct promotional activities to benefit business and tourism activities in the owntown area of the City,more specifically set Deleted:downtown S forth in this Agreement as the cope of Services,attached hereto as Exhibit A and incorporated as if fully set forth herein,as limited by State law and the Ordinance,and subject to any modifications approved in writing by the City Manager. During the term of the contract,the Scope of Services may amended by mutual Deleted:T consent of the parties, The City Manager is hereby authorized to approve periodic ... Deleted: after bs-� approval or amendments to the Scope of Services without further consent by Council to the extent this Agreetnent by the ci[y couac7[ that any such amendments do not result in the elimination of required Special Events,as set forth in Exhibit A. 2. 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 DPB1A revenues have been expended consistent with this Agreement.Such financial reports shall include a line-item schedule&aLnRtqbes expenditures_with specific,budgeted amounts __--- Deleted:which and activities.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 audit.ofthe SLODA financial ,- Deleted:annaxl operations related to qualifying revenues and expenses. Said audit shall be comnleted every two years-at the end of the contract period. 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 SLODA 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 Qf June 30,2013-------------------------------------- Deleted:Au find year end 3. Quarterly Activity Reports. At the time the interim quarterly financial reports are filed,SLODA will also file with the City Manager a report of the activities of SLODA and its subcontractors and the respective accomplishments of each during the period specified in the financial report. C7-17 ATTACHMENT 3 4. 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 DPBTA funds. The amount of carryover DPBIA funds will be added to the DPBIA funds allocated to the SLODA in accordance with this Agreement for succeeding fiscal years,provided that these funds must be specifically allocated to program activities of any budget proposal submitted for such funding agreement. 5. Term. The term of this Agreement will commence July 1,,',)0 1 I. ending on June -- Deleted:2009 30„Z013 to match the two yew budget cycle of the City_The,�ontract may be renewed _- ueieted::ou upon approval of the Agreement,including jhe Scope of Services,by the City Council_ _P- _ _ Deleted:term=y be extended The City and SLODA may terminate this Agreement and any rights,duties and liabilities Deleted:review or accruing in this Agreement at any time by giving written notice of election to terminate to the other party at least thirty(30)days prior to the end of the fiscal year.. 6. DPBIA Funding Restrictions. The parties acknowledge that DPBIA funds shall be used exclusively for activities within the Scope of Services Lind that all DPBIA fundi _- Deleted:shall be f.n&d by allocated by the City shall be subject to the restrictions imposed on DPBIA.monies by the Deleted: and that all monies Ordinance and State law. 7. Limited Use of DPBIA Funds. SLODA will use none of the funds it receives from this Agreement for any purpose not enumerated in the Ordinance,including but not limited to,any expense(including administration and overhead)in support of a SLODA Political Action Committee or any other political entity or activity. The City recognizes that the SLODA may engage in such activities on behalf of its members,independent of its contract with the City and does not attempt through this Agreement to limit those activities,so long as such activities do not utilize DPBIA funds. 8. Accounting for DPBIA Assessments. DPBTA 'ands may be used-to finance ___ Deleted:assessment money fund-raising activities intended to generate additional revenue for use by the SLODA. However,thesum of all pPB lA funds used for this purpose shall be accounted for and --- DeieiJed:.osmenrnent mDney proceeds from the fund-raiser equal to that sum shall be used for purposes stated in the Ordinance and conforming to the purposes of the assessment as defined by State law. Further,such use of DPBIA funds shall be specifically described in the periodic reports described in paragraph 2 of this Agreement. 9. City Support for SLODA Activities. The City will continue to provide staff support and services in accordance with the SLODA Scope of Services attached hereto as Exhibit A,_The SLODA shall continue to pay to the.City the sum of One Hundred Thirty Deleted:-at the mutually agecdcast to Dollars($130.00)per market for set up and removal of barricades. Said sum shall be ft SLODA adiusted annually,in July,by the Consumer Price Index—All Urban Areas(CPI-IJ) It is also agreed that SLODA will reimburse City for all costs incurred by City in----------- Deleted:However,i providing services during the term of this Agreement relating to other SLODA events or promotional services not addressed in this contract.Th6se costs will be determined and C7-18 ATTACHMENT 3 certified in accordance with City policies applicable to other non-profit organizations and City will provide SLODA with invoices for such services,which will be due and payable by SLODA consistent with standard City policies and practices. 10. Monthly Remittance of DPBIA Funds to the SLODA. The City will cause to be paid to SLODA the total amount of DPBTA funds collected by the City during each month within thirty(30)days of the end of the month. 11. City Staff Rights to Attend SLODA Board Meetings. SLODA shall continue to notify the City via the City Manager or his/her appointed representative ot all regular ,- Deleted: the meeting,of the Board of Directory and shat]have the right to attend all such regular _- Deleted:dates of each meeting meetings, ` .___________________________________ --__-- I�E--=gcr tedeofSLODA, or his/her 12. Independence of SLODA. Neither the City nor any of its officers or employees appointed representative will have any control over the conduct of SLODA or any of its employees,except as Deleted: of the Board of Directors 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. 13. Dispute Resolution between SLODA and its Subcontractors. SLODA shall include a dispute resolution clause in all contracts with subcontractors furnishing services related to contracted events. The dispute.resolution clause shall provide a clear and concise process for resolution of disputes that arise between the SLODA and its subcontractors. 14. Assignment. This Agreement contemplates that SLODA will render special •- - Formatted:Bullets and Numbering 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 City Manager or designee obtained in advance,assign any moneys due;or to become due,to 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. 15. Insurance. SLODA shall obtain and maintain insurance as set forth in Exhibit B Formatted:Bullets and Numbering 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. C7-19 f ATTACHMENT 3 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,4 -..- Deleted: 19 of this Agreement,SLODA may comply with the requirements of this paragraph J.5 by __- ndeted:is _ 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 J5,all subject to the_approval of the_City Risk Manager--------------- -- --- -- -- ------ Deleted:u 16. Hold Harmless and Indemnification. SLODA shall protect,defend,indemnify ' '- Formatted:Bukts and Numbering 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. 17. Notice. Any notices to be given finder this Agreement,or otherwise; maybe given-- Formatted:Bullets and Numbering- 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 City Manager,990 C7-20 ATTACHMENT 3 Palm Street, San Luis Obispo and the address of the SLODA is 1108 Garden Street, Suite 210,San Luis Obispo,California 93401. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this day of 011. F Deleted:2009 SAN LUIS OBISPO DOWNTOWN ASSOCIATION, A 501(c)(6) Corporation. By: Deborah Cash,Executive.Director,SLO Downtown Association CITY OF SAN LUIS OBISPO By: Jan Howell Marx,Mayor Deleted:David F.Romero APPROVED AS TO FORM: By: J. Christine Dietrick,City Attorney Deleted:Jonathan-P.Lowell- C7-21 owellC /-21 ATTACHMENT 3 EXHIBIT A SCOPE OF SERVICES SPECIAL EVENTS: The events and/or activities set forth and defined 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,at the mutually agreed cost to the 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 and related services to the Downtown: A. Holiday Activities: Holiday Activities include some of the County's most •--- Formatted:Bullets and Numbering popular holidav events including: a. The Annual Holidav Parade.-a free event that features nearly 100 entries and winds its way through the Downtown streets early in the holiday season; b. Santa's House in Mission Plaza,a free service opening the day after Thanksgiving and operating daily through Christmas Eve. Thousands of children visit the House from all over the county and beyond; C. Classic Carousel in Mission Plaza,a contracted activity by the Downtown Association. Each year,an independent operator brings in a full sized carousel that is set up adjacent to Santa's House and operates the same hours as the House. B. Concerts in the Plaza: Concerts in the Plaza runs,tvpically,from the first Friday •-' Formatted:Bullets and Numbering in June through the end of August,every Friday evening and is held in Mission Plaza. Features of the event include showcasing local (tri county area)bands, providing the highest level of quality in all aspects of the production such as stage and sound,promotional marketing materials,a high level of staffing and security. dozens of volunteers and quality food and beverage vendors. C. Thursday Night Promotions: (TNP),an event that showcases Downtown and •-- Formatted:Bullets and Numbering- Downtown businesses to visitors,both locals and tourists,and offers opportunities for Downtown businesses,other eligible non-Downtown businesses,produce vendors.non-profit organizations and other community groups to sell their products and services,fundraise,or provide information. TNP is also often. generically referred to as"Farmers Market,""the market.""Thursday night;'or other various combinations of those names. City services in support of the above events have traditionally included the following, which will continue uninterrupted: 1. Public safety support at levels determined appropriate by the City,including holiday parade escort. C7-22 ATTACHMENT 3 2, Placement and removal of street barricades and coordination of street closure,for holiday activities and TNP. Dekted:Thursday Night Promotions 3. Placement and removal of City-owned portable restrooms for TNP. Deleted:Thursday Night Promotions 4. Banner placement and advertising at 50310 of standard city fees.. (Note_-.SLODA shall retain its priority posit-ion with regard to the pl-acement 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. Holiday tree placement and removal 8. Free rental of Mission Plaza for placement of Santa's House and carousel and for Concerts in the Plaza. Forma_tied:Indent:Hanging: 0.5", SLODA services in support of the above events have traditionally included the following. Tabs: 0.5",List tab which will continue to enhance the success of the events: I. Booth space at TNP for City departments at no cost subject to space availability Formatted:Bullets and Numbering 2. Noticing via meter fivers for TNP 3. Marketing and coordination of City-related events,at TNP.at no costincludinLY: a.. Fire Prevention Night b. Law Enforcement Nigh c. Public Works Nigh Formatted:indent:L_ei:�6- 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. ParkWAITransportation 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. d. Work closely with City staff on parking management plan and any parking and access programs that benefit the community. Deleted:<#>Progxarnrnirur in Muni 2. Downtown Maintenance <#>Explore other event ideas such as movies,an fuh,poetry,em.1 a. Continue to cooperate with Public Works Department staff to determine sidewalk Formatted:Bullets and Numbenng+. scrubbing schedule. C7-23 ATTACHMENT 3 b. Disseminate cleanliness and safety information 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. 3. Economic Development ---- Formatted:Bullets and Numbering 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. JContinue to coordinate with City and Chamber of Commerce to get information to �„.- Deleted:dhContinue to facilitate business recruitment and retention in the. visitors on Downtown retail/shopping opportunities. oowntowaI c. Strengthen collaboration efforts with the Chamber of Commerce and other business Formatted:Bullets and.Numbering and visitor groups to increase effectiveness of local and regional marketing. d. Get word out to downtown retailers and restaurants when conferences/events are in town and encourage them to do direct marketing/outreach. 4. Organizational Capacity •--- Formatted:Bullets and Numbering Keep the City apprised of the status ofSLODA'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. ADDITIONAL PROVISIONS: P*guera Street _- Formatted:Font:Bold Jhe SLODA partially funded the installation of electrical conduit in Higuera Street to __- Deleted:q 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 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. I C7-24