HomeMy WebLinkAboutGilroy Visitors Bureau - Agreement for Services for GTBID AGREEMENT 1FOR SERVICES
This Agreement, dated January 1, 2018, is by and between the City of Gilroy, hereinafter referred to as
the "City," and the Gilroy Visitors Bureau, dba Gilroy Wellcome Center, hereinafter referred to as
"Contractor," collectively referred to as the "Parties."
RECITALS
A. On October 17, 2016, the City Council adopted Resolution number 2016-54, hereinafter the
"Resolution," renewing the Gilroy Tourism Business improvement District, (hereinafter "GTBID," in
accorda.nce 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 GTBID Management District Plan as the
Owners'Association in accordance with Streets a d Highways Code section 36614.5.
C. Streets and Hiighways Code section 36651 requires the City contract with the Owners'
Association for provision of GTBID services.
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. IEngagement.. City hereby retains Contractor to provide the services described in Exhibit A, and
Contractor accepts such engagement.
2. Term. The term: of this Agreement shall begin on January 1, 2018 and end on December 31,
2027, or, if the 'GiiBID is disestablished prior to December 31, 2027, the effective date of GTBID
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 iliabilities 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 insuirance benefits, civil service protection, or employee benefits of any lkind.
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B. Contractor shall be solely liable for and obligated to pay directly all applicable payroll
taxes (including federal and state lincome taxes) or contributions for unemployment insurance
or old age pensions or annuities which are imposed by a:ny 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 spay 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, ands/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 Iprocedures 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.
E. Notwithstanding the foregoing,.if the City determines that pursuant to state and federal
law Contractor is an employee for purposes of income tax withholding, City may upon two (2)
week's written notice to Contractor, withhold from payments to Contractor hereunder federal
and state income taxes and pay said sums to the federal and state governments.
4. Indemnification.
A. To the fullest extent permitted by law, Contractor shall hold harmless and indemnify the
City, its City Council, employees and agents from and against any and all claims, losses,
damages,liabilities and expenses, including but not limited to reasonable attorneys' fees, arising
out of or resulting from the performance of services under this Agreement, provided that any
such claim, loss, damage, liability or expense (1) is attributable to bodily injury, sickness, disease
or death, or to injury to or destruction of property, including the loss there from, or to any
violation of federal, state or municipal law or regulation, and (2) is caused by 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 Iparticipate
in the defense of any such claim without relieving Contractor of any obligation hereunder.
B. To the fullest extent permitted by law, the City shall 'ho'l'd harmless and indemnify
Contractor, its Board of Directors, 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,
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disease or death, or to injury to or destruction of property, including the loss there from, or to
any violation of federal, state or municipal law or regulation, and (2) is caused by any negligent
act, omission or willful misconduct of City, any subcontractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be !lia'bl'e, regardless of
whether or not it is caused in 'part by any 'party indemnified hereunder. The Contractor may
participate in the defense of any such claim without relieving City of any obligation hereunder.
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 talking such
other action as is available to it under any other provisions of this Agreement or otherwise in law.
A. Contractor affirms that it is aware of the provisions of Section 3700 of the 'California
Labor Code which requires every employer to be insured against 'liability for Workers'
Compensation or to undertake self-insurance in accordance with'the provisions of the Code and
Contractor further assures that it will comply with such 'provisions before commencing the
'performance of work under this Agreement. Contractor shall furnish to City certificate(s) of
insurance evidencing Worker's Compensation Insurance coverage to cover its employees, and
Contractor shall require all subcontractors similarly to provide Workers' Compensation
Insurance as required by the Labor Code of the State of California for all of Contractor's and
subcontractors' employees. Contractor shall! provide Workers' Compensation. insurance, as
applicable, at Contractor's own cost and expense. Neither Contractor nor its carrier shall be
entitled to recover from City any costs, settlements, or expenses of Workers' Compensation
claims arising out of this Agreement.
B. 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 -
$1,000,000 each occurrence.
(2) Vehicle / !Bodily Injury combined single limit vehicle bodily injury and property
damage liability-$500,000 each occurrence.
6. Conformity with Law.
A. In 'performing services sunder this Agreement, Contractor shalt 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 applica:ble 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.
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B. If a death, serious personal injury or substantial property damage occurs in connection
with Contractor's performance of this Agreement, Contractor shall immediately notify the City.
Contractor shall promptly submit to City a written report, in such form as may be required by
City of all accidents which loccur in connection with this Agreement. This report !must include
the following information:
(1) Name and address of the injured or deceased person(s);
(2) Name and address of Contractor's sub-contractor, if any;
(3) Name and address of Contractor's liability insurance carrier; and
(4) A detailed description of the accident and whether any of City's equipment,
tools, material, or staff were involved.
C. Contractor further agrees to take all reasonable steps to preserve all physical evidence
and information which may be relevant to the circumstances surrounding a potential claim,
while maintaining public safety, and to grant to the City the opportunity to review and inspect
such evidence, including the scene of the accident.
7. Payment. City shall forward to Contractor all GTBID assessment fund's collected within thirty
days of collection, less a two percent (2%) City administrative fee as authorized in the !GTBID
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 assigns 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.
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
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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, method's or systems selected by Contractor and incorporated'' into the
work as set forth in Exhibit "A", and shall defend,ind'emnify 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!Documeints and Materials.
E. Contractor shall maintain and make available 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:
7351 Rosanna Street 8155 Camino Arroyo#6
Gilroy, CA 95020 Gilroy, CA 95020
E. Any correctly addressed notice that is refused, unclaimed, or undeliverable because of
an act or omission of the party to be notified shall be deemed effective as of the first date that
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said notice was refused, unclaimed, or deemed undeliverable Iby the postal authorities,
messenger, or overnight delivery service.
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F. Any party may change its address by giving the other'party notice of the change in any
manner permitted by this Agreement.
12. "se of City Property. Contractor shall not use 'City property, including equipment, instruments
and supplies, or personnel for any purpose other than in the ,performance of its obligations under this
Agreement.
13. 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 Maws pertaining to equal employment opportunity and that it shall not
discriminate against any employee or applicant for employment oin 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 il'aw.
14. 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.
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
GTBID 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.
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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. If such books and records are not kept and maintained by Contractor within the
City, Contractor shall, upon request of the City, make such books and records available to the
City for inspection at a location within the City or Contractor Shall pay to the City the reasonable
and necessary costs incurred by the City in inspecting Contractor's books and records, 'including,
but not limited to, travel, lodging and subsistence costs. 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 'boo'ks, 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 payment or within four (4) years after any pending issues
'between the City and Contractor with respect to this Agreement are closed, whichever is later.
16. Documents and iMaterials. 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, iinvoices, plans, collateral, advertisements and other
paper or electronic writings and other materials used for the provision of services under this Agreement.
Cont'ractor'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 1Essence. 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/Disestablis'hment. The City has and reserves the right to suspend, terminate or
abandon the execution of any work lby Contractor upon ,adoption of a resolution disestablishing the
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GTBID 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 Inoticed(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 disestablis'hment is held.
In the event the City disestablishes the GTBID, Contractor shall be entitled to retain GTBID revenues only
for paying the Contractor's current liabilities of the GTBID. Pursuant to the 1994 Law, Contractor shall
refund to City any remaining GTBID revenues or any revenues derived from the sale of assets acquired
with GTBID 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 GTBID revenues and/or
suspend, terminate or abandon the execution of any work by the Contractor in accordance with this
agreement or misfeasance, nonfeasance,. or gross malfeasance, or criminal conduct as determined by a
court of competent jurisdiction. Any retention of GTBID revenues by Contractor shall comply with the
1994 Law.
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19. Choice of Law. This Agreement, and any dispute arising from the relationship between the
parties hereto, shall be governed Eby the laws of the State of California. Any litigation arising out of or in
connection to this Agreement shall be venued in the County of Santa Clara.
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 Gilroy, 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
Gilroy Tourism Business '(improvement District or City of Gilroy for regional identification for promotion
and marketing of the GTBID.
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 Imay 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 1994 Law, or to the GTBID 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 GTBID Management District Plan, shall be binding unless it is in writing and signed by
authorized representatives of both parties.
23. Assurance of Performance. If at any time the City has good objective cause to believe
Contractor may not be adequately Iperforming 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 iplan. Contractor acknowledges and agrees that any failure to
provide such written assurances and written ip'lan 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.
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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 a.nd activities that benefit lodging businesses within
the GTBID in accordance with the GTBID 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'Re,port required by the 1Law, which shall include:
1. Any recommended'changes to boundaries;
2. The improvements and activities to Ibe provided for that fiscal year;,
3. An estimate of cost for providing the improvements and activities;
4. The Imethod and lbasis 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. Delivering the Annual Report at least thirty (30) days preceding the fiscal year for which
assessments are to be levied and collected to pay the costs of the improvements.
4. 'Contractor shall develop and maintain financial records related to receipt and/or expenditure of
all funds received from City.
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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.
IN WITNESS THEREOF, the parties hereto have executed or approved this AGREEMENT on the dates
below their signatures.
City of Gilroy Gilroy V. itors urea db G' elcome Center
By By
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Title: '�� C_ ,< - — Title:
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Date: ; ;s/ /,S Date:
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Approved as to Form o
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4847-2467-3370v1
NON-BC104706038