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HomeMy WebLinkAboutGreater Ukiah Chamber of Commerce 2008-07-01COU No. 1617186 PERFORMANCE AGREEMENT between the UKIAH REDEVELOPMENT AGENCY and GREATER UKIAH CHAMBER OF COMMERCE This Agreement is made this 1st day of July, 2008, by and between the Ukiah Redevelopment Agency, a redevelopment agency for the City of Ukiah, herein called "Agency," and the Greater Ukiah Chamber of Commerce, a California not for profit corporation formed pursuant to the laws of the State of California, herein called "Chamber." RECITALS 1. The Agency is desirous of creating a vital economic development climate through the promotion of the City of Ukiah's advantages as a business, industrial and residential center, disseminating information relative thereto and properly following up and giving consideration to inquiries made from time to time relative to the various activities of the Agency. 2. The Chamber is organized for and equipped to carry on promotional activities in relationship to tourism, relocation and economic development on behalf of the Agency. NOW, THEREFORE, in consideration of the above -recited facts and agreement contained herein, it is agreed as follows: A. TERM This Agreement shall be effective from July 1, 2008, and shall terminate on June 30 2009. B. SCOPE OF SERVICES 1. Public Relations and Marketing Chamber shall carry on promotional activities with and on behalf of the Agency. These activities shall be carried on in cooperation and coordination with the Agency and when appropriate, with the Main Street Program. These services shall include, but are not limited to: a. Promotion of business retention and expansion through coordination, organization and execution of associated inquiries and requests and coordination of specific business inquiries and referrals with Agency staff. b. Promotion of visitor development and tourism through management, organization and execution of associated inquiries and requests. c. Promotion of Ukiah with advertising and marketing efforts including a linked web site. d. Production and dissemination of packages of information about Ukiah that are current and available at public counters and upon request and share in the distribution of promotional materials, maps and brochures produced by Agency staff. e. Participation and coordination with Agency staff in trade shows and like promotional opportunities. f. The Chamber will continue its affiliation with the Mendocino County Alliance ("MCA"), providing a representative on the MCA board, providing displays, promotional materials and a pictorial display of the community and surrounding area at many of the MCA events and programs. 2. Ukiah Valley Conference Center Reception Services It is agreed upon by both parties that the majority of inquiries at the receptionist area in the Ukiah Valley Conference Center are Chamber related. As part of this agreement the Chamber shall provide reception staff support for the Ukiah Valley Conference Center and the tenants therein during normal hours of operation, Monday - Friday from 9:00 a.m. to 5:00 p.m. The Chamber will be closed on the following holidays: New Year's Day, Martin Luther King Jr.'s birthday, Presidents' Day, Memorial Day, the 4th of July, Labor Day, Thanksgiving Day and the Friday after Thanksgiving, and Christmas Day and the day after Christmas. Occasionally the reception office will be closed during normal hours of operation. It is anticipated that this will occur infrequently. The Chamber shall notify Conference Center Staff as the Redevelopment Director's designee, in advance of any time the receptionist office is closed during normal business hours as practical. 3. Economic Development Task Force In conjunction with the City staff and the Main Street Project, the Chief Executive Officer of the Chamber of Commerce shall participate on the Economic Development Task Force and provide two representatives from the Chamber to do the same. The intent of the Economic Development Task Force is to assist in the development and execution of strategies for Economic Development for the Down Town Corridor, the City of Ukiah and the larger Ukiah Area including, but not limited to a "Buy Local" campaign. The Task Force shall also assist and guide new and prospective business owners inquiring about business support services and/or and the building and development process. C. OTHER ACTIVITIES Chamber shall carry on such other activities on behalf of the Agency as may be mutually agreed upon from time to time during the period of this agreement. Special Events The Agency and the Chamber produce and participate as partners in community -oriented events; including, but not limited to, the 4th of July Picnic at Todd Grove Park, Small Town Christmas activities and events, and the Holiday Trolley. The Chamber's role in the production of these events augments the Agency's goal of creating a vital economic climate. A joint evaluation shall be performed annually for all events in which the Chamber and the Agency work in partnership. 2. Representation Chamber shall provide Agency the option of two (2) ex officio representatives on the Chamber's Board of Directors. D. RECORDS. REPORTS AND ACCOUNTABILITY In addition to the monthly agenda packets of the regular scheduled meetings of the Chamber's Board of Directors supplied to the Agency's ex officio representatives, the Chamber shall furnish an annual report by May 31, 2009 covering the prior year's public relations, marketing and economic development activities for the period from July 1, 2008 through May 31, 2009. The report shall include the number of inquiries serviced; type and scope of promotional activities; and such other information that may be relevant to provide sufficient data to satisfy the terms and scope of this agreement. Chamber shall maintain a bookkeeping system and books of account in accordance with generally accepted accounting principles consistently applied, which outline the accounting and utilization of Agency funds paid to the Chamber for services defined in this agreement. Agency shall have access to said books of account during regular business hours for purposes of inspection and audit. Chamber shall fully cooperate with the Agency and its agents and accountants during any such inspection and audit, including, but not limited to, making its employees, accountants, bookkeepers, or officials available to provide any requested information or documents. Chamber shall furnish a detailed financial report by May 31, 2009 covering the annual public relations, marketing, and economic development activities on behalf of the Ukiah Redevelopment Agency. Any and all future Agreements between the Chamber and the Agency shall not only be predicated on the Chamber's on-going ability to accomplish the prescribed services contained in the "Scope of Services" section above, but also shall be dependent on the Agency's ability to garner available funds from its budget to support the Chamber. E. FINANCIAL COMPENSATION BY AGENCY In consideration of the Chamber's performance of the above services, and under the terms of this Agreement, the Agency shall pay the Chamber the sum of Thirty Thousand Dollars and No Cents ($30,000) in order for the Chamber to accomplish the specific scope of work identified in Section B, subsections 1 and 2. This sum of money shall constitute the entirety of Agency's financial contribution to the Chamber during the effective dates of this Agreement. Chamber shall invoice the Agency and within 15 business days thereafter the Agency shall pay the Chamber contract price of $30,000. F. INSURANCE AND INDEMNIFICATION During the term of this Agreement, the Chamber agrees to indemnify and hold harmless the Agency, its officers, agents, and employees from and against any and all claims, losses, defense costs, or liability of any kind or nature which the Agency, its officers, agents, and employees may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property as a result of, arising out of, or in any manner connected with the Chamber's performance under the terms of this Agreement, excepting only liability arising out of the sole and active negligence of the Agency. Without limiting the Chamber's indemnification, it is agreed that the Chamber shall maintain in force at all times during the performance of this Agreement, the following policy or policies of insurance approved by the Agency and issued by admitted California insurers approved by the Agency covering its operations: 1. Comprehensive General Liability, including contractual liability, products, and completed operations and business automotive liability, all of which shall include coverage for both bodily injury and property damage with a combined single limit of One Million Dollars ($1,000,000). 2. Worker's Compensation coverage at statutory limits. 3. The certificates of insurance and endorsements shall be completed to the satisfaction of the Agency. Should the Chamber fail to comply with this paragraph then, the Agency shall have the right to immediately terminate this Agreement without further notice to Chamber. G. RELATIONSHIP BETWEEN CHAMBER AND AGENCY Nothing in this Agreement shall be construed as making the Chamber or any of its employees or representatives, the agent or employee of the Agency for any purpose, or any employee of the Agency an employee of the Chamber or creating between the Agency and the Chamber the relationship of legal partners or joint ventures. It is understood that the contractual relationship of the Chamber to the City is that of an independent contractor. H. TERMINATION FOR NON-PERFORMANCE Except as provided in paragraph D, if any party to this Agreement breaches any provision thereof, then the other party may give the defaulting party a notice to remedy such violation within thirty (30) days. The other party may terminate the Agreement: (a) if such violation is not remedied within said 30 days; (b) if the breach cannot be remedied within such time period; or (c) the defaulting party has not commenced efforts to cure the breach or fails to diligently complete steps necessary to cure the breach. Should this contract be terminated for breach on the part of the Chamber, compensation as provided in paragraph D, shall be refunded to the Agency on a prorata basis. A waiver by either party of performance of any provision of this Agreement shall not amount to a future waiver of the strict performance of such provisions or of any other provision of this Agreement. NON-PERFORMANCE DUE TO CONDITION BEYOND CONTROL OF PARTIES If either party is unable to perform its obligations under this Agreement due to conditions beyond its reasonable control, such as, but not limited to, changes in local, state, or federal laws or regulations arising form legislative changes, judicial interpretations of existing law, vote by the citizens of Ukiah, or administrative action, and not due to the fault or neglect of any party, such failure to perform shall not be deemed a violation of this Agreement provided the party whose performance is so prevented performs its obligation as soon as practicable after the occurrence of the event preventing performance under this Agreement. Such party shall use reasonable diligence to put itself again in a position to carry out its obligations hereunder, and in the event such party does not or cannot within a reasonable time put itself again in a position to do so, the other party may, at its option, terminate this Agreement. MISCELLANEOUS PROVISIONS WAIVER OR MODIFICATION INEFFECTIVE UNLESS IN WRITING No waiver or modification of the Agreement or of any covenant, condition, or limitations herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. Furthermore, no evidence of any waiver or modification shall be offered or received in evidence in a proceeding, arbitration, or litigation between the parties arising out of or affecting this Agreement, or the rights or obligations of any party hereunder, unless such waiver or modification is in writing and duly executed. The provisions of this paragraph may not be waived, except as herein set forth. 2. SEVERABILITY In the event any section, subsection, provision, or clause of this Agreement or any combination thereof is found to be unenforceable at law, inequity, or under any presently existing or hereafter enacted legislation, regulation, or order of the United States, any state or subdivision thereof or any municipality, those findings shall not in anyway affect the other sections, subsections, provisions, or clauses of this Agreement, which shall continue in full force and effect, and the unenforceable provisions shall be interpreted in a manner that imposes the maximum restriction or obligation permitted by applicable law. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the Agreement. 3. NOTICE Whenever notice is permitted or required by this Agreement, it shall be deemed given when deposited in the U.S. Mail with proper first class postage affixed thereto and addressed or personally delivered to: Ukiah Redevelopment Agency Attention: Executive Director 300 Seminary Ave. Ukiah, CA 95482 4. DUPLICATE ORIGINALS Greater Ukiah Chamber of Commerce Attn: CEO 200 South School Street Ukiah, CA 95482 This Agreement may be executed in one or more duplicate originals each bearing the original signatures of the parties. When so executed, each such duplicate original shall be admissible to establish the existence and terms of this Agreement. 5. AUTHORITY The parties hereto acknowledge that they have the authority to execute this Agreement on behalf of the entity that they represent as herein set forth below. 6. ARBITRATION (a) All claims or controversies, disputes and other matters in question arising out of or relating to this Agreement or the breach hereof, shall be decided by binding arbitration. On the written request of either party served on the other party shall be submitted to arbitration. Arbitration shall comply with and be governed by the provisions of the California Arbitration Act. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with the laws of the State of California in any court having jurisdiction thereof. Arbitration shall be conducted at a situs in the County of Mendocino, State of California. (b) The arbitrator shall be a person mutually agreed upon by Chamber and Agency within 30 days notice of either party's request for arbitration. If the parties cannot agree upon an arbitrator, they shall each appoint one arbitrator. The two persons so appointed shall select a third impartial arbitrator whose decision shall be final and conclusive upon both parties. (c) The charges, expenses and fees of the arbitrator(s) shall be borne and paid fifty (50%) percent by the disputing party instituting the arbitration and the balance by the other party. The cost of arbitration shall be borne by the losing party or in such proportions as the arbitrator decide. At such time as the arbitrator determines who is the prevailing party, the prevailing party shall be entitled to an award, which represents the charges, expenses and fees of arbitration, and an award for attorney fees and costs. (d) Notice of demand for arbitration shall be filed in writing with the other party. The demand for arbitration shall be made before the date when the institution of legal or equitable proceeding based upon such claim, dispute or other matter would be barred by the applicable statute of limitations. By the parties initials below each of them hereby acknowledges that they have read, understood and agree to be bound by the arbitration provisions stated herein above. GREATER UKIAH CHAMBER OF COMMERCE UKIAH REDEVELOPMENT AGENCY Burt Mosier, CEO Kathy Lehner, Chairperson of the Board 7. ATTORNEY'S FEES AND COSTS Jan Chambers, Executive Director If any action is commenced, whether suit is filed or not, to enforce or interpret the terms of this Agreement, or to determine if the contract has been breached, the prevailing party shall be entitled to reasonable attorney's fees and costs, and necessary disbursements in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire contract. 8. ENTIRE AGREEMENT This Agreement supersedes any and all other agreements, either, oral or in writing, between the parties hereto with respect to the terms and conditions contained herein, and contains all of the covenants and agreements between the parties with respect to this Agreement in any manner whatsoever. Each party to this agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreements, statement, or promise not contained in this agreement shall be valid or binding. 9. GOVERNING LAW AND JURISDICTION This agreement shall be governed by and construed in accordance with the laws of the State of California as they apply to a contract entered into and performed in that State. Jurisdiction shall be in Mendocino County, California. 10. PLAIN MEANING This Agreement shall be interpreted in accordance with its plain meaning, neither for nor against any party. 11. HEADINGS AND CONTEXT The headings of this Agreement are inserted for convenience only and do not define, limit or extend the scope or intent of this agreement or any provision thereof. When the context permits, a word or phrase used in the singular means the plural and when used in any gender, its meaning also includes all genders. 12. MERGER This Agreement constitutes the entire understanding between the parties as to the terms and conditions contained herein, all previous understandings being merged herein. 13. ADEQUATE ASSURANCES Each party shall execute, acknowledge and deliver such additional documents, writings or assurances as the other may periodically require so as to give full force and effect to the terms and provisions of this Agreement. 14. CONSTRUCTION OF AGREEMENT This Agreement has been reviewed by separate counsel for both parties. Any ambiguity existing in this Agreement shall not be construed against either party as the drafter of this Agreement. 15. TIME Time is of the essence of this Agreement. Acknowledgement: IN WITNESS WHEREOF, this Agreement is executed by the Ukiah Redevelopment Agency and the Greater Ukiah Chamber of Commerce, by their duly authorized representatives, on the day and year first above written. BY SIGNATURE HEREUNDER, THE PARTIES ACKNOWLEDGE THAT THEY HAVE THE AUTHORITY TO BIND THE ORGANIZATION ON WHOSE BEHALF THEY EXECUTE THIS DOCUMENT; READ THIS ENTIRE AGREEMENT; HAVE A CLEAR UNDERSTANDING OF THE OBLIGATIONS, RIGHTS, DUTIES, AND LIABILITIES WHICH ARISE AS A RESULT OF THEIR EXECUTION BELOW; AND ARE IN RECEIPT OF A COPY HEREOF. GREATER UKIA CHAMBER OF COMMERCE Bert Mo 'er, CEO Bert / Kathy Lehner, Chairperson of the Board AT T: Linda brown, R dev ent A ncy Secretary UKIAH REDEVELOPMENT AGENCY J pe Chambers, Executive Director