By and Between
THE CITY OF ANAHEIM,
a municipal corporation and charter city,
ANAHEIM CHAMBER OF COMMERCE,
a California corporation.
TABLE OF CONTENTS
Section 1. Status of Parties. 1
1.1 City. 1
1.2 Chamber 1
Section 2. Services of Chamber 1
2.1 Services. 1
2.2 Agreement Nonexclusive. 2
2.3 Time for Performance 2
2.4 Compliance with Law 2
2.5 Licenses, Permits, Fees and Assessments. 2
2.6 Nondiscrimination 2
2.7 Familiarity with Work 2
2.8 Additional Services. 2
2.9 Substitute Service 3
Section 3. Term 3
3.1 Term of Agreement. 3
3.2 Option to Renew Agreement 3
Section 4. Compensation 3
4.1 Compensation for Tasks. 3
4.2 Advance Deposit for Event Sponsorships. 3
4.3 Funds Withheld Due to Default. 4
4.4 Maximum Compensation 4
4.5 Limitation on Use of Compensation Received From City 4
Section 5. Coordination of Services. 4
5.1 Representative of City 4
5.2 Representative of Chamber 4
5.3 Prohibition Against Subcontracting and Assignments. 5
5.4 Independent Contractor 5
Section 6. Insurance and Indemnification 5
6.1 Insurance 5
6.1.1 Required Insurance Coverage 5
6.1.2 Required Clauses in Policies. 6
6.1.3 Required Certificates and Endorsements. 6
6.1.4 Remedies for Defaults Re: Insurance 6
6.2 Indemnification 7
Section 7. Enforcement of Agreement; Termination of Agreement. 7
7.1 Events of Default. 7
7.2. Institution of Legal Actions 8
7.3 Acceptance of Service of Process. 8
7.4 Rights and Remedies Are Cumulative 8
7.5 Inaction Not a Waiver of Default. 8
7.6 Applicable Law 8
7.7 Attorneys’ Fees. 8
7.8 Immediate Termination for Chamber’s Default. 9
7.9 Termination Without Cause 9
Section 8. Documents and Data. 9
8.1 Data to be Furnished by City. 9
8.2 Ownership of Documents. 9
Section 9. Audit of Records. 9
Section 10. Miscellaneous Provisions. 9
10.1 Waiver 9
10.2 Notices. 10
10.3 Relationship of Parties. 10
10.4 Time of the Essence. 10
10.5 Remedies Cumulative 10
10.6 Effect of Invalidity. 10
10.7 Successors and Assigns. 11
10.8 Entire Agreement. 11
10.9 Authority. 11
10.10 Conflicts of Interest. 11
10.11 Non-Liability of Members, Officials and Employees of City 11
10.12 Controlling Law 12
10.13 Effective Date 12
LIST OF EXHIBITS
EXHIBIT A: PARTNERSHIP AGREEMENT
This (this “Agreement”), dated for purposes of identification only this 1st day of February, 2015 (the “Date of Agreement”), is made and entered into by and between the
THE CITY OF ANAHEIM, a municipal corporation and charter city (the “City”), A
ANAHEIM CHAMBER OF COMMERCE, a California corporation (“Chamber”).
A. Chamber provides various services to the community in general and to Anaheim’s businesses and visitors in particular. The provision of these services is essential to the maintenance of a healthy local economy.
B. The City has found and determined that it is in the best interest of the City that the Chamber provide certain services to the community in return for the payment of certain consideration by the City.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, THE CITY AND CHAMBER (JOINTLY, THE “PARTIES”) AGREE AS FOLLOWS:
Section 1. Status of Parties.
1.1 City. The Parties acknowledge and agree that the City is a municipal corporation organized and existing under the laws of the State of California.
1.2 Chamber. Chamber represents and warrants that Chamber is a corporation formed, existing and in good standing under the laws of the State of California.
Section 2. Services of Chamber.
2.1 Services. In compliance with all of the terms and conditions of this Agreement, Chamber shall provide those services described in Exhibit A (“Chamber of Commerce Partnership Agreement/City of Anaheim"), which is expressly incorporated herein by this reference and made a part of this Agreement. Chamber represents and warrants that all services to be provided hereunder shall be performed (i) in a competent, professional and
satisfactory manner in accordance with the standards prevalent in the industry for such services, and (ii) at a level of quality consistent with that provided during prior years.
2.2 Agreement Nonexclusive. Chamber acknowledges and agrees that this Agreement and the provision of services hereunder is nonexclusive and that City may enter into similar agreements with other entities.
2.3 Time for Performance. Time is of the essence in the performance of this Agreement. Chamber shall perform and complete all services described in Exhibit A in a timely and expeditious manner. Chamber shall not be responsible for delays caused by circumstances beyond its reasonable control, provided that Chamber has delivered to the City written notice of the cause of any such delay within ten (10) days of the occurrence of such cause.
2.4 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City and any Federal, State or local governmental agency of competent jurisdiction.
2.5 Licenses, Permits, Fees and Assessments. Chamber shall obtain, at Chamber’s sole cost and expense, such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Chamber shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and which arise from or are necessary for the performance of the services required by this Agreement.
2.6 Nondiscrimination. Chamber agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry or national origin in its provision of services. To the extent this Agreement provides that Chamber offer accommodations or services to the public, such accommodations or services shall be offered by Chamber to the public on fair and reasonable terms.
2.7 Familiarity with Work. By executing this Agreement, Chamber represents and warrants that Chamber (i) has thoroughly investigated and considered the work to be performed, (ii) has carefully considered how the work should be performed, the staff required and Chamber’s capabilities and (iii) fully understands the facilities, difficulties and restrictions attending the performance of the work under this Agreement. Should Chamber discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the City, Chamber shall immediately inform the City of such fact and shall not proceed except at Chamber’s risk until written instructions are received from the City.
2.8 Additional Services. Chamber shall perform services in addition to those specified in Exhibit A upon the mutual written agreement of the Parties, provided that
Chamber shall not be required to perform any such additional services without compensation.
2.9 Substitute Services. In the event the Parties determine that any service identified in Exhibit A is no longer desirable or cannot, through no fault of either party, be completed, the Parties shall mutually agree on an appropriate service to substitute in place and stead of such service so identified. The Anaheim Community Development Director shall have authority on behalf of the City to approve any such substitute service, including the appropriate compensation to be paid therefor, provided, however, that such compensation shall not exceed the compensation for the service to be replaced by more than ten percent (10%).
Section 3. Term.
3.1 Term of Agreement. This Agreement shall be for a one-year term (the “Term”) commencing on the Effective Date and ending on January 31, 2016, or upon final rendering by the City of payments due hereunder, whichever is later, subject to earlier termination as provided in Section 7 hereof.
3.2 Option to Renew Agreement. This Agreement may be renewed by the Parties (subject to the provisions of Section 7 hereof) for two (2) one-year terms, provided that
(i) the City sends written notice to Chamber of its election to renew the Agreement no later than the last calendar day of May of each year of this Agreement, (ii) Chamber provides the City with written acceptance of the renewal within thirty (30) days of the City’s notice to Chamber of its election to renew, (iii) the Parties agree to and accept a Scope of Services for the new fiscal year as reflected in a revised Exhibit A, and (iv) the City Council of the City of Anaheim approves an appropriation of funds for this Agreement.
Section 4. Compensation.
4.1 Compensation for Tasks. The City shall pay Chamber for services rendered the sums set forth for each task identified in Exhibit A to this Agreement. The balance due for each task shall be paid within thirty (30) days after Chamber submits an invoice describing the task(s) for which compensation is sought and provides evidence that such task(s) has/have been completed as more particularly set forth in Exhibit A. Invoices requesting such payments shall be submitted by Chamber to the City no later than 30 days following an event. The City shall expeditiously process the payment of such invoices following their receipt and receipt of evidence of completion of the task(s) for which compensation is sought.
4.2. Advance Deposit for Event Sponsorships. The City agrees to pay Chamber an advance payment no later than the last business day of February following the execution of this Agreement by the City. Such advance payment shall be equal to fifty percent
5.3 Prohibition Against Subcontracting and Assignments. Neither the whole nor any interest in, nor any of the rights or privileges granted under this Agreement shall be assignable or transferable or encumbered in any way without the prior written consent of the City. Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to the City. This is a personal services contract and Chamber was chosen on the basis of characteristics unique to Chamber. The City shall have the right to unreasonably or arbitrarily withhold its consent to any such assignment, transfer, encumbrance, pledge, subuse, or permission.
5.4 Independent Contractor. Chamber and any agent or employee of Chamber shall act in an independent capacity and not as officers or employees of the City. The City assumes no liability for Chamber's actions and performance, nor assumes responsibility for taxes, bonds, payments, or other commitments, implied, or explicit, by or for Chamber. Chamber shall not have authority to act as an agent on behalf of the City unless specifically authorized to do so in writing. Chamber acknowledges that it is aware that because it is an independent contractor, the City is making no deduction from any amount paid to Chamber and is not contributing to any fund on its behalf. Chamber disclaims the right to any fee or benefits except as expressly provided for in this Agreement.
Section 6. Insurance and Indemnification.
6.1 Insurance. Without limiting the City's right to indemnification, it is agreed that Chamber shall secure prior to commencing any activities under this Agreement, and maintain during the Term of this Agreement, insurance coverage as set forth in this Section 6.1.
6.1.1 Required Insurance Coverage. Chamber shall secure and maintain the following insurance coverage:
(a) Workers' Compensation Insurance as required by California statutes;
(b) Comprehensive General Liability Insurance, or Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, Broad-Form Property Damage, Independent Contractor's Liability and Fire Damage Legal Liability, in an amount of not less than One Million Dollars ($1,000,000.00) per occurrence, combined single limit, written on an occurrence form; and
(c) Comprehensive Automobile Liability coverage, including - as applicable - owned, non-owned and hired autos, in an amount of not less than One Million Dollars ($1,000,000.00) per occurrence, combined single limit, written on an occurrence form.
The Director, with the consent of the the City’s Risk Manager, is hereby authorized to reduce the requirements set forth above in the event she determines that such reduction is in the City’s best interest.
6.1.2 Required Clauses in Policies. Each insurance policy required by this Agreement shall contain the following clauses:
“This insurance shall not be canceled, limited in scope or coverage, or nonrenewed until after thirty (30) days' prior written notice has been given to the Anaheim City Clerk, 000 X. Xxxxxxx Xxxxxxxxx, Xxxxxxx, XX 00000.”
"It is agreed that any insurance maintained by the City of Anaheim shall apply in excess of and not contribute with insurance provided by this policy."
Each insurance policy required by this Agreement, excepting policies for workers' compensation and professional liability, shall contain the following clause:
“The City of Anaheim, its officials, agents, employees, representative, and volunteers are added as additional insureds as respects operations and activities of, or on behalf of the named insured, performed under contract with the City of Anaheim."
6.1.3 Required Certificates and Endorsements. Prior to commencement of any work under this Agreement, Chamber shall deliver to the City (I) insurance certificates confirming the existence of the insurance required by this Agreement, and including the applicable clauses referenced above and (ii) endorsements to the above-required policies, which add to these policies the applicable clauses referenced above. Such endorsements shall be signed by an authorized representative of the insurance company and shall include the signator’s company affiliation and title. Should it be deemed necessary by the City, it shall be Chamber's responsibility to see that the City receives documentation, acceptable to the City, which sustains that the individual signing such endorsements is indeed authorized to do so by the insurance company. Also, the City has the right to demand, and to receive within a reasonable time period, copies of any insurance policies required under this Agreement.
6.1.4 Remedies for Defaults Re: Insurance. In addition to any other remedies the City may have if Chamber fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, the City may, at its sole option:
(a) Order Chamber to stop work under this Agreement and/or withhold any payment(s) which become due to Chamber hereunder until Chamber demonstrates compliance with the requirements hereof;
(b) Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies The City may have and is not the exclusive remedy for Chamber's failure to maintain insurance or secure appropriate endorsements.
Nothing herein contained shall be construed as limiting in any way the extent to which Chamber may be held responsible for payment of damages to persons or property resulting from Chamber's or its subcontractor's performance of the work covered under this Agreement.
6.2 Indemnification. As respects acts, errors or omissions in the performance of services under this Agreement, Chamber agrees to indemnify and hold harmless the City, its officers, agents, employees, representatives and volunteers from and against any and all claims, demands, defense costs, liability or consequential damages of any kind or nature arising directly out of Chamber's negligent acts, errors or omissions in the performance of its services under the terms of this Agreement.
As respects all acts or omissions which do not arise directly out of the performance of services, including but not limited to those acts or omissions normally covered by general and automobile liability insurance, Chamber agrees to indemnify, defend (at the City's option), and hold harmless the City, its officers, agents, employees, representatives, and volunteers from and against any and all claims, demands, defense costs, liability, or consequential damages of any kind or nature arising out of or in connection with Chamber's performance or failure to perform, under this Agreement; excepting those which arise out of the sole negligence of the City.
Section 7. Enforcement of Agreement; Termination of Agreement.
7.1 Events of Default. For purposes of this Section 7, the word “Default” shall mean the failure of Chamber to perform any of Chamber’s duties or obligations or the breach by Chamber of any of the terms and conditions set forth in this Agreement. In addition, Chamber shall be deemed to be in Default upon Chamber’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets, (ii) making a general assignment for the benefit of creditors, (iii) being adjudged bankrupt, (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing) or (v) suffering or permitting to continue unstayed and in effect for fifteen (15)
consecutive days any attachment, levy, execution or seizure of all or a substantial portion of Chamber’s assets or of Chamber’s interests hereunder.
The City shall not be deemed to be in Default in the performance of any obligation required to be performed by the City hereunder unless and until the City has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from Chamber specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of the City’s obligation is such that more than thirty
(30) days are required for its performance, then the City shall not be deemed to be in Default if the City shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
7.2 Institution of Legal Actions. In addition to any other rights and remedies, and subject to the restrictions otherwise set forth in this Agreement, either Party may institute an action at law or in equity to seek the specific performance of the terms of this Agreement, to cure, correct or remedy and default, to recover damages for any Default or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the State of California.
7.3 Acceptance of Service of Process. In the event that any legal action is commenced by Chamber against the City, service of process on the City shall be made by personal service upon the Director or in such other manner as may be provided by law. In the event that any legal action is commenced by the City against Chamber, service of process on Chamber shall be made in any manner as may be provided by law.
7.4 Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of 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.
7.5 Inaction Not a Waiver of Default. Any failures or delays by either Party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either 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.
7.6 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement.
7.7 Attorneys’ Fees. The City and Chamber agree that in the event of litigation to enforce this Agreement or terms, provisions and conditions contained herein, to terminate this Agreement, or to collect damages for a Default hereunder, the prevailing party shall be entitled to all costs and expenses, including reasonable attorneys’ fees, incurred in connection with such litigation.
7.8 Immediate Termination for Chamber’s Default. In the event of any Default by Chamber, the City may immediately terminate this Agreement. Such termination shall be effective immediately upon receipt by Chamber of written notice from the City. In such event, Chamber shall have no further rights hereunder; the City shall have all other rights and remedies as provided by law.
7.9 Termination Without Cause. The City may terminate this Agreement at any time without the necessity of cause or Default by Chamber by giving ninety (90) days notice in writing to Chamber. In such event, Chamber shall have no further rights hereunder, except that Chamber shall be paid for all services rendered prior to receipt of notice of such termination.
Section 8. Documents and Data.
8.1 Data to be Furnished by the City. The City shall furnish to Chamber such documents and materials pertinent to the provision of services hereunder as the City may possess or acquire.
8.2 Ownership of Documents. All documents and materials furnished by the City to Chamber pursuant to Section 8.1 hereof shall remain the property of the City and shall be returned to the City upon termination of this Agreement. All documents and materials prepared by Chamber hereunder shall become the property of the City at the time of payment to Chamber of all fees, if any, for their preparation, and shall be delivered to the City by Chamber at the request of the City. The documents and materials prepared by Chamber hereunder shall not be used by the City or others, except for the purpose for which they were intended. The City agrees not to associate Chamber’s name with any documents or materials not prepared by Chamber.
Section 9. Audit of Records.
Chamber shall keep such books and records as shall be necessary to perform the services required by this Agreement and to enable the City to evaluate the cost and the performance of such services. Books and records shall be kept and prepared in accordance with generally accepted accounting principles. Chamber expressly warrants and agrees that all funds received from the City pursuant to this Agreement shall be segregated from any funds that Chamber receives from other sources and that no funds received from the City shall be used for political purpose(s).
Section 10. Miscellaneous Provisions.
10.1 Waiver. Inaction by the City or Chamber with respect to a Default hereunder shall not be deemed to be a waiver of such Default. The waiver by either the City or Chamber of any Default hereunder shall not be deemed to be a waiver of any subsequent Default.
10.2 Notices. All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either the City or Chamber to the other shall be deemed to have been given when in writing and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified, postage prepaid, and addressed to the respective Parties at the following addresses:
If to the City: City Clerk, City of Anaheim
000 X. Xxxxxxx Xxxxxxxxx, 0xx Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
With copies to: City of Anaheim, Community Development Department Xxxx Xxxxxxxx, Community Development Director 000 X. Xxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
FAX No. (000) 000-0000
City of Anaheim, City Attorney's Xxxxxx 000 X. Xxxxxxx Xxxxxxxxx, 0xx Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
To Chamber: Anaheim Chamber of Commerce
0000 X Xxxxxxx Xxx., #000
Xxxxxxx, XX 00000 Attention: Xxxx Xxxxx, CEO FAX No. (000) 000-0000
10.3 Relationship of Parties. Nothing contained herein shall be deemed or construed by the Parties, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the Parties, it being understood and agreed that Chamber is and will be at all times an independent contractor pursuant to this Agreement and shall not, in any way, be considered to be an officer, agent or employee of the City.
10.4 Time of the Essence. Time is hereby expressly declared to be the essence of this Agreement and of each and every term, covenant and condition hereof which relates to a date or a period of time.
10.5 Remedies Cumulative. The remedies given to the City and Chamber herein shall be cumulative and are given without impairing any other rights given the City or Chamber by statute or law now existing or hereafter enacted and the exercise on any one
(1) remedy by the City or Chamber shall not exclude the exercise of any other remedy.
10.6 Effect of Invalidity. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid
or enforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
10.7 Successors and Assigns. This Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the successors and assigns of the City and to the permitted successors and assigns of Chamber.
10.8 Entire Agreement. Except as otherwise provided herein, this Agreement and Exhibit A hereto contain the entire agreement of the City and Chamber with respect to the matters covered hereby, and no agreement, statement or promise made by any of the Parties which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose.
10.9 Authority. Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms. Chamber shall, at the City’s request, deliver a certified copy of its governing board’s resolution or certificate authorizing or evidencing such execution.
10.10 Conflicts of Interest. No member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affect his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested.
10.11 Non-Liability of Members, Officials and Employees of the City. No member, official or employee of the City shall be personally liable to Chamber, or any successor in interest, in the event of any Default or breach by the City or for any amount which may become due to Chamber or Chamber’s successors, or on any obligation under the terms of this Agreement. Chamber hereby waives and releases any claim Chamber may have against the members, officials or employees of the City with respect to any Default or breach by the City or for any amount which may become due to Chamber or Chamber’s successors, or any obligations under the terms of this Agreement. Chamber makes such release with the full knowledge of Civil Code Section 1542 and hereby waives any and all rights thereunder to the extent of this release, if such Section 1542 is applicable. Section 1542 of the Civil Code provides as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
10.12 Controlling Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
10.13 Effective Date. This Agreement shall be effective on the date on which this Agreement is executed by the City, and such date shall be the “Effective Date”.
[ALL SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE RESPECTIVE DATES SET FORTH BELOW.
DATE OF EXECUTION:
THE CITY OF ANAHEIM,
a municipal corporation
Mayor of the City of Anaheim
By: _ City Clerk of Anaheim
DATE OF EXECUTION:
ANAHEIM CHAMBER OF COMMERCE,
a California corporation
Title: Printed Name:
APPROVED AS TO FORM:
XXXXXXX X.X. XXXXXXX, CITY ATTORNEY
By: Xxxxxxx Xxxxxxxxx
Xx. Asst. City Attorney
Attachments: Exhibit A—Partnership Agreement