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HomeMy WebLinkAboutGreater Ukiah Chamber of Commerce 2020-07-01 COU No. 2021-110 TOTMEASUREXPERFORMANCEAGREEMENT BETWEEN THE CITY OF UKIAH AND THE GREATER UKIAH CHAMBER OF COMMERCE This Agreement is made this 1st day of July, 2020, by and between the City of Ukiah, herein called "City," 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 City is desirous of creating a quality promotional program for the Greater Ukiah area, the City of Ukiah, and Ukiah's tourism industry. 2. In November 2006, the voters of the City of Ukiah passed Measure X, which raised the transient occupancy tax (TOT) in the City from 8% to 10%. City Council Resolution No. 2006-68 ("Resolution"), as amended August 28, 2006, specified that for the first two years after the increase goes into effect, 75% of the additional revenue produced by the tax increase would be spent on promotion of the City of Ukiah and its tourist industry, and 50% thereafter. 3. The Resolution provides that the revenues expended for promotion of the City of Ukiah and its tourist industry shall be administered by the Greater Ukiah Chamber of Commerce, subject to an annual performance agreement with the City of Ukiah. 4. The Chamber agrees to perform this function on behalf of the City. The parties have entered this performance agreement to comply with the Resolution. 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, 2020 and shall terminate on June 30, 2021. B. SCOPE OF SERVICES The Chamber shall carry on promotional activities as Visit Ukiah with and on behalf of the City. These activities shall be carried out in cooperation and coordination with the City. These services shall include, but are not limited to, the work plan attached as Exhibit A. C. REPRESENTATION Visit Ukiah shall be represented by an Advisory Board comprised of individuals representing the various segments of the hospitality industry including, but not limited to, lodging, arts and culture, wine, and restaurants. Three Advisory Board members shall serve on the Executive Board of the Chamber (dba Greater Ukiah Business and Tourism Alliance); additionally, one City of Ukiah Staff Liaison and one City Council Liaison may be appointed to the Executive Board. D. RECORDS. REPORTS AND ACCOUNTABILITY The Chamber shall, by June 30, 2021 furnish the City with a written annual report, covering the activities and services performed during the term of this Agreement. The report shall include the type and scope of promotional activities implemented under this agreement and measures documenting the success of the promotional activities. Such report shall identify and quantify all work program tasks and objectives completed during the term of this agreement and detail and quantify the impact of completed program objectives on promotion and tourism for the City of Ukiah. The report shall also itemize and quantify any uncompleted program work tasks or goals, provide justification for failure to complete any tasks or goals, and forward recommendations for how those tasks or goals might be successfully completed in the future. Chamber shall maintain a bookkeeping system and books of account in accordance with generally accepted accounting principles consistently applied, which are capable of audit and which account for the funds provided to the Chamber pursuant to this Agreement, identifying how the funds were used to provide the services described in the work plan. The City shall have access to said books of account during regular business hours for purposes of inspection and audit. Chamber shall fully cooperate with the City 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 report by June 30, 2021, covering the annual activities of the promotional program undertaken on behalf of the City. Furthermore, the Chamber shall provide verbal reports to the Ukiah City Council at regularly scheduled Council meetings by January 31, 2021 and again by June 30, 2021, detailing the activities undertaken pursuant to this agreement. The presentation shall include a summary of the items identified in the written report. Any and all future Agreements between the Chamber and the City be predicated on the Chamber's on-going ability to accomplish the prescribed services contained in the "Scope of Services" and completion/submission of the identified reports. E. FINANCIAL COMPENSATION BY CITY In consideration of Chamber's performance of the above services, and under the terms of this Agreement, the City shall disburse to Chamber quarterly payments based on the same period from the prior year; the final payment shall include a reconciliation based on actual receipts, due to the Chamber no later than August 15, 2021. This sum of money shall constitute the entirety of the City's financial contribution to Chamber for the term and scope of services detailed in this Agreement. Of the disbursements provided by City to Chamber, Chamber shall appropriate and expend no less than 65 percent toward direct marketing and promotional activities. Chamber shall account for these activities explicitly in its books of account, referenced in section D, and report them as such in budget-to-actual income statements. Chamber shall submit a written request for the release of funds from the City and within 15 business days thereafter the City shall pay the request funds to the Chamber. F. INSURANCE AND INDEMNIFICATION During the term of this Agreement, the Chamber agrees to indemnify and hold harmless the City, its officers, agents, and employees, from and against any and all claims, losses, defense costs, or liability of any kind or nature which the City, and 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 ttie Chamber's performance under the terms of this Agreement, excepting only liability arising out of the sole and active negligence of the City. 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 City and issued by admitted California insurers approved by the City covering its operations, which name the City as an additional insured: 1. Comprehensive General or Commercial 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 City. Should the Chamber fail to comply with this paragraph, the City shall have the right to immediately terminate this Agreement without further notice to Chamber. G. RELATIONSHIP BETWEEN CHAMBER AND CITY Nothing in this Agreement shall be construed as making the Chamber or any of its employees or representatives, the agent or employee of the City for any purpose, or any employee of the City an employee of the Chamber or creating between the City and the Chamber the relationship of legal partners orjoint 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 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 E shall be refunded to the City 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. I. 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, 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 afterthe occurrence of the event preventing performance under this Agreement no longer prevents such performance. 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. J. MISCELLANEOUS PROVISIONS 1. 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 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 personally delivered to or when deposited in the US Mail with proper first class postage affixed thereto and addressed to: City of Ukiah Great Ukiah Chamber of Commerce City Manager Executive Director 300 Seminary Avenue 200 South School Street Ukiah, CA 95482 Ukiah, CA 95482 4. DUPLICATE ORIGINALS This Agreement may be executed in duplicate originals, each bearing the original signature of the parties. Alternatively, this Agreement may be executed and delivered by facsimile or other electronic transmission, and in more than one counterpart, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. When executed using either alternative, the executed agreement shall be deemed an original admissible as evidence in any administrative or judicial proceeding to prove the terms and content 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. Any such dispute shall be submitted to arbitration upon the written request of either party served on the other party. Arbitration shall comply with and be governed by the provisions of the California Arbitration Act. The award rendered by the arbitrator shall be final, and judgment may be entered upon it inaccordance with the laws of the State of California in any court having jurisdiction thereof. Arbitration shall be conducted in Ukiah, California. (b) The arbitrator shall be a person mutually agreed upon by Chamber and City within 30 days'written notice of either party's request for arbitration. If the parties cannot agree upon an arbitrator, they may apply to the superior court for the appointment of an arbitrator. (c) Each party shall pay one-half of the charges, expenses and fees of the arbitrator and the arbitration, unless the arbitrator orders a different allocation of these costs. 7. ATTORNEY'S FEES AND COSTS By the parties' signatures below, each of them hereby acknowledges that they have read, understood and agree to be bound by the arbitration provisions stated herein above. If any action is commenced to compel arbitration orto confirm and enforce an arbitrator's award, 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. 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 and venue shall be in Mendocino County, California. 10. 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. 11. MERGER This Agreement constitutes the entire understanding between the parties as to the terms and conditions contained herein, all previous understandings being merged herein. 12. ADEQUATEASSURANCES Each parry 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. 13. CONSTRUCTION OFAGREEMENT This Agreement shall be interpreted in accordance with its plain meaning, neither for nor against any party. 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. 14. TIME Time is of the essence of this Agreement. ACKNOWLEDGEMENT: IN WITNESS WHEREOF, this Agreement is executed by the City of Ukiah and the Greater Ukiah Chamber of Commerce, by their duly authorized representatives, on the Effective Date. CITY OF UKIAH GREATER UKIAH CHAMBER OF COMMERCE Sage Sangiacomo, City Manager Katrina Kessen, EX(cutive Director APPROVED AS TO FORM: David Rapport, City Attorney ATTEST: Kristine Lawler(Dec 4,2020 08:33 PST) Kristine Lawler, City Clerk