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HomeMy WebLinkAboutDOWNTOWN INC. (6)-2018INSURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES/ 1 CLERKOFC0UN L DATE: JAN 19 2010 DOWNTOWN MERCHANTS FUND OPERATING AGREEMENT A-2017-326 This OPERATING AGREEMENT made and entered into this 10 day of ems"'% . 2018, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"), and Downtown incorporated, Inc., a California non-profit corporation ("DTI"}. RECITALS A. On August 4, 2015, the City Council adopted the Downtown Enhancements and Parking Modernization Plan to address the need to modernize parking structures, enhance public amenities, and address deferred maintenance in the downtown (Santa Ana Ordinance No. NS -2880). B. Downtown business associations and stakeholders agreed to an increase in parking rates and the implementation of new smart meters in the downtown area with the understanding that increased revenue from these new rates and smart meters would be reinvested back into the downtown. C. As part of the Plan, it was proposed that a Downtown Merchants Fund ("DMF") be created for continued promotion of the downtown. This funding will continue to support strong marketing efforts and will allow for successful year-round administration of events for the downtown. D. Both DTI and the Santa Ana Business Council have provided budgets for the administration of the DMF. This additional $100,000 per organization will complement the existing funds each association receives from the City's Business Improvement District ("BID"). E. The City and DTI under this Operating Agreement propose to: (1) confirm that DTI will receive $100,000 from the DMF each calendar year that such fianding is approved by City Council; (2) to provide that DTI's use of said DMF fiords will be consistent with its approved DMF Annual Budget; and, (3) to provide for auditing of DTI's DMF funds. WHEREFORE, and in consideration of the mutual and respective covenants and promises hereinafter set forth, and subject to the terms and conditions of this Operating Agreement, the parties hereto do hereby agree as follows: ARTICLE 1 PRELIMINARY MATTERS § 1.01 Defuutions As used in this Operating Agreement, the following terns shall have the following meanings: (a) "City" means the City of Santa Ana, California. (b) "City Council" means the City Council of the City. (c) "City Manager" means the City Manager of the City or his/her designated representative(s). (d) "DMF" means Downtown Merchants Fund, a fund created from downtown parking revenues to support marketing of the downtown. (e) "DTP' means Downtown Incorporated, Inc., a California nonprofit corporation. (f) "Board" means the Board of DTI. § 1.02 Term This Agreement shall commence on the date first written above and terminate on , 20__, unless terminated earlier in accordance with sections 4.02 or 4.05, below. The Term of this Agreement shall be automatically renewed in one (1) year Renewal Terms, unless terminated earlier in accordance with sections 4.02 or 4.05, below. § 1.03 Status of DTI (a) By its execution of this Agreement, DTI warrants that it is duly incorporated under the laws of the State of California and that true and correct copies of its Articles of incorporation and Bylaws and a true and correct listing of DTI's officers and their terms of office, certified as such by DTI's Secretary, have been filed with the Clerk of the Council. (b) By its execution of this Agreement, City accepts and agrees to the organization of DTI as set forth in the above said Articles of Incorporation and Bylaws. § 1,04 Compensation of DTI Board Members and Meetings (a) Meetings shall be held on a quarterly basis with more meetings called at the discretion of the DTI Board. When conducting meetings related to the DMF, members of the Board shall serve without compensation other than reimbursement for expenses incurred by them in the course of the performance of services for DTI when authorized by the DTI Board. § 1.05 Changes in Officers, Articles and Bylaws DTI shall notify the Clerk of the Council of any change in the membership of the Board and any change in the officers of DTI. Any amendment of DTI's Articles or Bylaws shall be filed with the Clerk of the Council. 19 §1.06 City Representation at Meetines of DTI The City Manager shall be entitled to attend all meetings of ATI related to the DMF and to participate in the discussions of the Board to the same extent as the members of the Board, and DTI shall assure that the City Manager is provided with reasonable advance notice of all meetings of DTI. Nothing herein shall be construed to provide the City Manager with any authority to make, second, or vote on motions, or to cause him/her to be counted for purposes of determining whether a quorum exists at meetings of DTI. §1.07 City Residents, Downtown Property Owners and Business Operators on the Board A majority of the Board shall be City residents, downtown property owners, or business operators. If the number of members who are City residents, downtown property owners, or business operators becomes less than a majority due to the death, resignation, or change of residence or business location, DTI shall not be in default under this section, provided, however, that the next member appointed to the Board shall be a City resident, downtown property owner, or business operator. ARTICLE 2 REPORTS AND RECORDS AND DMF FUND TRANSFERS t'Or (a) No later than November 1 of each year, DTI shall provide the City Manager with a copy of a detailed calendar year operating budget showing expected sources of revenue and the nature of all expected or proposed expenditures for the forthcoming calendar year and a report on the proposed programs to be undertaken by DTI in said calendar year. A true and correct copy of DTI's 2018 DMF Annual Budget is attached hereto as Exhibit A and incorporated herein by reference. (b) If the proposed budget is accepted by the City Manager, it shall be submitted to the City Council for approval, in whole or in part. If the proposed budget is rejected by the City Manager, the City Manager and DTI shall meet in good faith in an attempt to reach agreement on a budget. If they are unable to do so, the City Manager shall submit DTI's proposed budget to the City Council for approval, in whole or in part. (c) DTI acknowledges that its proposed budget in any given calendar year will consist of $100,000, or any such amount as previously approved by the City Council. (d) DT1 further acknowledges that expenditures of DMF funds will be for the purposes identified in the Downtown Enhancements and Parking Modernization Plan. (e) The City shall provide DTI with $25,000 of DMF funds each quarter (January 1, April 1, July 1, and October 1) for a total of $100,000 of DMF per year. If the first day of the quarter falls on a weekend, holiday, or other day in which City Hall is closed, then said deposit shall be made the next day City Hall is open. (f) The City upon depositing DMF monics shall notify DTI by electronic mail of the net amount of funds deposited to DTI. Failure by DTI to receive or acknowledge electronic mail notification shall not constitute a breach of this Agreement. (g) All DMF expenditures must be for the purposes identified in the Downtown Enhancements and Parking Modernization Plan, and must be sufficiently documented by accompanying receipts, purchase invoices, or other permanent evidences of expenditure as may be prudently required by the City in accordance with Generally Accepted Accounting Principles and established City accounting procedures. If DTI expends any DMF money for unauthorized purposes, the City may, at its sole option, deduct the disputed amount from any future DMF payments to DTI, or may terminate the Agreement pursuant to the terms of section 4.05. (h) In the event questions arise relating to the payment of funds to DTI, DTI may within 15 days of notification request an accounting by the City of the amount of net funds disbursed to DTI. Thereupon the City shall re-evaluate the amount of such disbursement and give written notification of its decision to DTI which shall be final and conclusive. § 2.02 Bi -Annual Financial Statement and Audit Every six (6) months (June 30 and December 31), DTI shall submit to the City Manager a complete statement of DTPs revenues and expenditures and a financial audit for the preceding half- year prepared by an independent certified public accountant. § 2.03 Financial Records DTI shall keep, or cause to be kept, true, accurate and complete records, including double - entry books, a profit and loss statement, and a balance sheet, such that if possible at all times to determine the amount and nature of all revenues and expenditures. All expenditures and Uansactions shall be supported by documents of original entry such as sales slips, cash register tapes, and purchase invoice and receipts. All such account books, statements, balance sheets and supporting documents shall be retained by DTI for a period of three (3) years after the end of the accounting year to which they pertain. § 2.04 Accounting Procedures DTT shall maintain a system of accounting according to Generally Accepted Accounting Practices. S § 2.05 fiction and Audit City shall be entitled, during the term of this Agreement and for a period of one year following the termination, to: (a) inspect and examine all of DTI's books, statements, records, and supporting documents to ascertain the correctness of DTI's financial statements. Any such inspection and/or examination shall be conducted during normal business hours with prior 15 days written notice to DTI; and (b) inspect and examine each expense made by DTI to ascertain that all expenses are for the purposes identified in the Downtown Enhancements and Parking Modernization Plan, and that all expenses are sufficiently documented by receipts, purchase invoices, or other permanent evidences of expenditure in accordance with Generally Accepted Accounting Principles and established City accounting procedures. Any such inspection and/or examination shall be conducted during normal business hours with prior 15 days written notice to DTI. ARTICLE 3 INDEMNITY AND INSURANCE § 3.01 Indemnification DTI shall indemnify and save harmless City and its officers, agents and employees from and against any and all claims, demands, loss or liability of any kind or nature which City or its officers, agents, or employees may sustain or incur, or which may be imposed upon them, or any of them, as a result of, arising out of, or in any manner connected with DTI's management and/or administration of the DMF funds. § 3.02 Insurance Requirement Gencrall Prior to the Commencement Date (except as hereinafter otherwise provided), DTI shall obtain at its sole cost and file with the Clerk of the Council, and maintain throughout the Term, policies of insurance as required by this section and sections 3.03 through 3.05, or a certificate of such insurance, satisfactory in form to the City Attorney. Each such policy (except policies of Workers' Compensation Insurance) shall name City as an insured or additional insured and each liability insurance policy shall also name the officers, agents and employees of City as insureds or additional insureds. Each such policy shall also contain a provision that no termination, cancellation or change of coverage or (where applicable) of insured or additional insured shall be effective until after thirty (30) day notice thereof has been given in writing to City. § 3.03 Liability Insurance DTI shall provide a policy or policies of insurance which provides coverage not less than that provided in the foam of a comprehensive general liability insurance policy against liability for 0 any and all claims and suits for damages or injuries to persons or property resulting from or arising out of the operations of DTI, its officers, employees, agents or assigns. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than One Million Dollars ($1,000,000.00) combined single limit, or its equivalent. § 3.04 Fidelity Bonding DTI shall provide a policy or policies of insurance insuring DTI against loss due to dishonesty of DTI's officers, agents and employees. Said policy or policies shall provide coverage in not less than $500,000. § 3.05 Workers' Com ep nsation Insurance DTI shall provide a policy or policies of workers' compensation insurance as required by law. § 3.06 Modification of Insurance Requirements The City Manager may modify or suspend the requirements imposed on DTI by this Article if in his/her reasonable determination strict compliance is impossible or excessively costly due to insurance market conditions. ARTICLE 4 DEFAULTS, REMEDIES AND TERMINATION § 4.01 Defaults (a) Failure or delay by either party to perform any term or provision of this Agreement shall constitute a default under this Agreement. The injured party shall not initiate the remedies hereinafter provided until the defaulting party has been given written notice of the default, specifying the nature thereof, and a period of sixty (60) days to cure or correct such default (b) Any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. § 4.02 Remedies of City In the event of any default and failure to cure, correct or remedy the same by DTI, City may, at City's sole discretion, in addition to or in lieu of any other remedies, exercise either of the following remedies: (a) Delay of any or all transfers of DMF funds to DTI pursuant to §2.01 of this P Agreement until such default is cured, corrected or remedied; provided such delay is approved by the City Council. (b) Terminate this Agreement, provided such termination is approved by the City Council. § 4.03 Legal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal action must be instituted in the Superior Court of the County of Orange, State of California, or in any other appropriate court in that county. § 4.04 Cumulative Rights and Remedies The rights and remedies of the parties arc cumulative and the exercise by either party of one or more such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. § 4.05 Termination This Agreement may be terminated by the City for any reason upon thirty (30) days written notice of termination. Upon any termination, or expiration of the Term, the City shall have no further obligation to provide funding or other assistance to DTI pursuant to this Agreement for any period following such expiration or early termination. ARTICLE 5 GENERAL PROVISIONS § 5.01 Representatives (a) All actions authorized to be taken by City pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of City by the City Manager, unless otherwise stated. The City Manager may designate any officer of the City as his/her representative with respect to any specified authority given to the City Manager by this Agreement, and in such event the actions of such officer within the scope of such authority shall have the same effect as if taken by the City Manager. (b) All actions authorized to be taken by DTI pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of DTI by DTI's governing board or by such officer of DTI as may be designated by resolution of said governing board. § 5.02 No� tice 0 Notices and written communications sent by one party to the other shall be either personally delivered or sent by U.S. Mail, postage prepaid, to the following addresses: (a) If sent by DTI to City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza P.Q. Box 1988 Santa Ana, CA 92702 With Copies to: City Manager City of Santa Ana 20 Civic Center Plaza P.Q. Box 1988 Santa Ana, CA 92702 W1 City Attorney City of Santa Ana 20 Civic Center Plaza P.Q. Box 1988 Santa Ana, CA 92702 (b) If sent by City to DTI: Downtown Inc. 200 North Main St. 2id Floor Santa Ana, CA 92701 Attention: Chairman of the Board § 5.03 N2n:99gnability The rights and obligations of DTI under this Agreement may not be assigned or delegated without the prior approval of the City Council. § 5.04 Partial Invalidity If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect, and shall in no way be affected, impaired or invalidated thereby. §5.05 Exol ivit 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 agreement or amendment hereto shall be effective unless executed in writing and signed by both City and DTI. §5.06 Conflict of Interest Cla DTI covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance under this Agreement. §5.07 OC Streetcar Project DTI, and its members, officers, employees, and representatives, agree not to commence, participate in, or assist with any action, legal proceeding, cause of action or suits in law or equity, of whatever kind or nature, in any way, directly or indirectly, against the City, or any party, on any issue related to the OC Streetcar Project, and knowingly, voluntarily, unconditionally, irrevocably, and expressly forever discharge and release any damages and/or claims, now known or arising in the future, against the City, or any party, on any issue related to the OC Streetcar Project. Any violation of this provision shall be considered a breach of the Agreement subject to immediate termination and cancellation of all funding at the sole and absolute discretion of the City. (signature page follows) IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written, ATTEST: CITY OF SANTA ANA MARIA -1-15 LO&D-14NEZI Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attomyy - ERT ZUR C (NAME) 1Zj OA ckvz�-c E ecutive Director - CDA (Title) Tax. EXHIBIT A DOWNTOWN MERCHANTS FUND ANNUAL BUDGET 25D-13 Exhibit 4 Santa Ana Business Council Proposed "Merchant Fund" Revenue FY 2017-2018 Budget PARKING Revenue Merchant Fund (Parking Revenue TOTAL $100,000 PARKING Expenses Administrative/ Personnel Costs $18,000 Consulting Services, Contractors/Professional Services $23,300 GrantWriter, Specialized Nonprofit Accountant Meetings/StakeholderGroups/Training $20,000 Entrepreneurship and Small Business Education Development MarketinglPromotions $9,700 Building Downtown Business &Community Engagement Team, Internship Program Events/Entertamment/Sponsorships $14,000 Downtown Activalion,Circulation, Flows, Urban Tacticaiism, Pilot Projects Communications $15,000 News, Print Media, Photography, Videography, Social Media Support Services TOTAL $100,000 Downtown Inc. Proposed "Merchant Fund" Revenue FY 2017-2018 Budget PARKING Revenue Merchant Fund (Parking Revenue TOTAL $100,000 PARKING Expenses Personnel Costs $42,500 Director, Administrative Support Contractors/Professional Services $15,000 Event Producers, Program Coordinators, Production Staff Meetings/StakeholderGroups/Training $12,500 Restaurant Assoc., Arts Meetings, Staff& Stakeholder Development Marketing/Promotions/Events $12,500 Maps, Guides, Savor Santa Ana, Artwalk Communication $10,000 Newsletter, Social Media, Translation, Design, Videos, Photos Office/Operations/Technology $7,500 Office Supplies, Web hosting, Subscription Technology Software TOTAL $100,000 25D-14 ACC Rbr CERTIFICATE OF LIABILITY INSURANCEDATE 12107/2017YY) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certtficato does not confer tights to the PRODUCER Michael Rodgick(971832A) 196 Technology Dr Ste B INSURED SANTA, ANA BUSINESS COUNCIL, 400 E. ATH STREET Mike Truck Insurance 21687 Travelers Insurance 1 31194 SANTA ANA CA 92701 INSURER P: COT/rRAGPS r:PRTiPII^.ATP NI IMRPR, RPVLCInN NIIRAPPR• THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IN$i£T ._.,RANO-PO V ODGY R LTR TYPE OF INSURANCE I AOUCYNUMBER ! MMlDwyYYY DDA'YYY I LIMITS GENERAL LIABILITY AUTHORIZED REPRESENTATIVE SANTA ANA CA 92701 CC EACH OCCURRENCE 5 11000 600 (X COMMERCIAL GENERAL LIABILITY ' 1 I _ !–DAMAG TO RENTED i PREMISES rEn 4cc,.,y�reAc9)_.,_f g t_��_,rr I j CLAIMS MAGE L/_j OCCUR I } j .1000000 _ MED EXP fAn�ane Porson) S 10,000 B _ _ Y N 605503396 12/07/2017 ( 1 210 712 01 8 I PERSONAL&ADV INJURY_ S 1,000,000 _ GENERAL AGGREGATE $ 2_000 000_ OENL AGGREGATE LIMIT APPLIES PER: t PRODUCTS-COMPIOPAGG S %000000 POLICY PRO• LRC S AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT I E9._ _ n 1,000,000 ANY AUTO BODILY INJURY ]Por pwmN is _ ¢--I ALL OWNEDSCHEDULED AUTOS I AUTOS 605503300 12/07/2017 12/07/2016 BODILY INJURY IPccld ernonl) S NON OWNED AUTOS j HIREDAUTOB ].._� ! -fT20PERTY DAMAGE _PS Per acatlgntl� .._J.__.. UMBRELLA LWB _ I ;OCCUR i EACH OCCURRENCE IS I EXCESS LIAD p I CLAIMS -MADE] ! _.._...._ ..._. .. .—I _._, ... I AGGREGATE § _j_ - _j T._ .,._ fCEO ! 1 RETENTIONS WORKERS COMPENSATION AND EMPLOYERS'DAeiLITY ' i ! x- WC $1 ATU OTH-I i JoRy LIMl79! 1S8y. YIN] ANY PROPRIETORIRARTNERIEXE44TOVE (NfA ] 9061364 D I!OFFICERIMEMBER EXOlUDED9 �j ,1$f10/2017312/'i 0/20'1$ _ EL EACH ACCIDENT is 1,000,000 - - 11MandatorylnNH' DISEASE -CA EMPLOYEE;$ 1,000.000 if yyee, dosWbenndar _ ]DESCRIPTIONOP OPERATIONS bnlew j hEI ---------� ,.. .__ _.. EL DISEASE -POLICY LIMITS 1,000,000 Fidelity Bond( (12110!2018 5,000 51R $900,000 E D&O 106032611 12/10/2017 1,000 SIR $1,000,000 . EPL I I 1,000 SIR $1,000,000 DESCRIPTION OF OPERATIONS ILOCATIONSl VEHICLES (Attach ACORD IE1, AddlBonal Ramarke Schedulo, It mom spaco is mgalmd) 400 E. 4TH STREET, SANTA ANA, CA 92701 CITY OF SANTA ANA, ITS OFFICERS, AGENTS, EMPLOYEES AND VOLUNTEERS ARE NAMED AS ADDITIONAL INSUREDS FOR GENERAL LIABILITY PURPOSES. COVERAGE IS PRIMARY AND NON-CONTRIBUTORY, WITH THIRTY (30) DAYS NOTICE OF CANCELLATION, EXCEPT 10 DAYS FOR NONPAYMENT OF PREMIUMS r.FRTIPIr ATP Ani rYPR r`.Ame"PI I ATInRI ACORD 25 (2010105) ©1988.2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE CITY OF SANTA ANA THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 20 CIVIC CENTER PLZ ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE SANTA ANA CA 92701 ACORD 25 (2010105) ©1988.2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 605503396 BUSINESSOWNERS THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - STATE OR POLITICAL SUBDIVISIONS - PERMITS RELATING TO PREMISES This endorsement modifies insurance provided under the following: POLICY SCHEDULE" State or Political Subdivision: CITY OF SANTA ANA, ITS OFFICERS, AGENTS, EMPLOYEES AND VOLUNTEERS The following is added to Paragraph C. WHO IS AN a. The existence, maintenance, repair, oonstruc- INSURED in the Businessowners Liability Coverage tion, erection, or removal of advertising signs, Form: awnings, canopies, cellar entrances, coal 4. Any state or political subdivision shown in the holes, driveways, manholes, marquees, hois- Schedule is also an insured, subject to the follow- taway openings, sidewalk vaults, street ban- ing additional provision: ners, or decoration and similar exposures; This insurance applies only with respect to the following hazards for which the state or political subdivision has issued a permit in connection with premises you own, rent, or control and to which this insurance applies: b. The construction, erection, or removal of ele- vators; or c. The ownership, maintenance, or use of any elevators covered by this insurance. Information required to complete this Schedule, if not shown on this endorsement, will be shown in the Decla- rations. BP 04 07 0187 Copyright, Insurance Services Office, Inc., 1985 Page 1 of 1 13