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HomeMy WebLinkAboutED Downtown Business Improvement District Management and EnhancementAGREEMENT FOR THE MANAGEMENT AND ENHANCEMENT OF THE DOWNTOWN SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT This Agreement ("Agreement") is entered into as of July 1, 2023 (the "Effective Date"), between the CITY OF SAN RAFAEL, a municipal corporation of the State of California ("City") and the SAN RAFAEL CHAMBER OF COMMERCE, a California nonprofit mutual benefit corporation ("Chamber"). RECITALS WHEREAS, the Parking and Business Improvement Area Law of 1989, Cal. Strs. & Hwys. Code § 36500 et seq. (" 1989 Act"), authorizes cities to establish parking and business improvement areas for the purpose of promoting economic revitalization and physical maintenance of business districts in order to create jobs, attract new businesses and prevent erosion of business districts; and WHEREAS, pursuant to the 1989 Act, in June 2013 the City Council of San Rafael adopted Ordinance No. 1912 ("Ordinance"), codified in the San Rafael Municipal Code ("SRMC") Chapter 10.09, establishing a reorganized Downtown San Rafael Business Improvement District ("District") to replace a former Parking and Business Improvements Area Business Improvement District established in 1979; and WHEREAS, the Ordinance extended the collection boundaries beyond ground floor retail and provides for the City's collection of assessments on approximately 700 businesses that operate within the District's boundaries including offices and financial institutions; and WHEREAS, the revenues derived from the assessments are used for the general promotion of business activities, public events, and other activities that provide a specific benefit to the assessed businesses; and the acquisition, construction, installation and maintenance of tangible property that provide a specific benefit to the assessed businesses; and WHEREAS, pursuant to section 36530 of the 1989 Act and SRMC Section 10.09.080, the Council appoints a District Advisory Board consisting of members who own or represent a business in the District or voluntary members ("District Advisory Board"); and WHEREAS, the District Advisory Board's primary function is to administer the affairs of the District and prepare an annual report each year describing which assessments are to be levied and files the report with the City Clerk; and WHEREAS, the District Advisory Board is subject to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part I of Division 2 of Title 5 of the Government Code) at all times when matters within the subject matter of the District are heard, and the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title I of the Government Code), for all records relating to activities of the District; and WHEREAS, a separate California nonprofit mutual benefit corporation - the San Page 1 of 20 Rafael Business Improvement District — was established by representatives of businesses in the District in 2012. This private corporation is referred to herein as the "BID Corporation" and its Board of Directors is the "BID Corporation Board"; and WHEREAS, the City Council from time to time has updated its appointments to the District Advisory Board to be the same as the members of the BID Corporation Board; and WHEREAS, each year, the City has distributed the District's assessment revenues to the BID Corporation, and the District Advisory Board administers those revenues to ensure that the BID Corporation uses them for authorized purposes that benefit the assessed businesses and to prepare and to submit the annual report to the City Clerk reporting activities and finances of the District; and WHEREAS, the Chamber is a California nonprofit mutual benefit corporation that is a member -based business advocacy organization supporting local businesses of San Rafael; and WHEREAS, the Chamber has been operating and serving the business community for over one hundred years; and WHEREAS, the Chamber staff has proven management skills, strong leadership and financial acumen and has worked closely with City staff and BID Corporation staff for over 30 years; and WHEREAS, the BID Corporation now operates in the Chamber's offices and has a close working relationship with the Chamber; and WHEREAS, the COVID-19 pandemic significantly reduced the businesses and collections of District assessments and the BID Corporation has operated with reserve funds; and WHEREAS, with the uncertainty of business recovery from the pandemic and improvement of economic conditions, the City believes that the District would benefit from assistance of the Chamber to create capacity building and pathways for long-term sustainability to support Downtown San Rafael; and WHEREAS, the Chamber can provide leadership, governance and administrative services in the execution of the District's activities; and WHEREAS, the City and the Chamber desire to enter into this Agreement for the Chamber to support City staff by providing fiscal oversight, operations, and annual reporting of the District, and build capacity and explore District enhancements; and WHEREAS, the Chamber is the best organization suited to provide this support during a time of transition and help create capacity building and pathways for long-term sustainability to support Downtown San Rafael; and Page 2 of 20 WHEREAS, coincident with this Agreement, the City and the BID Corporation are entering into a separate transition agreement under which the BID Corporation will transition its affairs related to administration of the District and transfer all remaining District Funds back to the City. NOW, THEREFORE, in consideration of the above recitals and for other good and sufficient consideration, the City and the Chamber agree as set forth herein. AGREEMENT 1. The Chamber's Duties. The Chamber will furnish all technical and professional services, including labor, material, office space, equipment, transportation, supervision, and expertise to perform the following duties: a. District Management Services. The Chamber will perform the following management services to the District (collectively, the "District Management Services"): i. Provide administrative oversight of the District and ensure that the affairs and duties of the District Advisory Board are conducted in conformance with the 1989 Act, Chapter 10.09 of the San Rafael Municipal Code (a copy of which is attached hereto as Exhibit A), and the District Administrative Guidelines (attached hereto as Exhibit B); ii. Receive, hold and distribute District Funds, pursuant to paragraph 4 of this Agreement; iii. Develop the Annual Report and Budget for review and approval by the District Advisory Board, and submit to the City Clerk; iv. Monitor the Budget and ensure monthly financial reports are prepared and presented to the District Advisory Board (including income statement, balance sheet and budget performance); V. Assist with annual planning calendar and preparation and implementation of the District's meetings, District Advisory Board member selection recommendations to the City Council, and annual reports; vi. Schedule, plan and host meetings of the District Advisory Board, including a meeting of the District Advisory Board within one (1) month of the Chamber's receipt of the first payment of District Funds; vii. Provide special event marketing support, as outlined in the annual scope of work; viii. Provide administrative services and support to the District to implement District program activities within the approved budget as needed; ix. Provide District member support related to District program activities as business issues may arise; X. Award and administer contracts on behalf of the District for District activities; xi. Market and promote the District's events and activities within budget; Page 3 of 20 xii. Maintain a webpage dedicated to, promoting, and marketing the District, and events and activities of the District; and xiii. Mail one delinquent notice annually to each business who has not paid the annual assessment, with instructions on how to pay the annual assessment. City will provide the Chamber with a list of delinquent businesses and their addresses for the notice. b. District Enhancement Services. The Chamber will provide the following enhancement services to the City related to the District (collectively, "District Enhancement Services"): i. Identify strategic partners, resources, and programs that could benefit San Rafael Downtown businesses and property owners for improved physical upgrades, safety, and marketing; ii. Provide leadership training and orientation for hired staff supporting District activities; iii. With City staff, liaison to the District to keep members informed of City issues and construction that may affect the District and its members; iV. Building upon the Economic Development Strategic Plan Draft and Downtown Precise Plan, conduct needs assessment outreach to businesses and property owners within the downtown on desired programming and needs to enhance economic vitality with specific focus on safety, cleanliness, marketing, and physical upgrades; and v. Develop a database of property, business owner, and representative contact information including mailing addresses, phone numbers, and emails; and vi. Conduct outreach and host informational sessions with property owners and businesses to assist the City feasibility analysis of a property -based improvement district or modifications to the District business assessment rate structure to enhance economic vitality. All obligations incurred by the Chamber performing its duties under this paragraph 1 or otherwise in accordance with this Agreement will be the sole obligation of the Chamber, and the Chamber shall have no authority to incur any obligations in the name of, or on behalf of, the City of San Rafael, or any department thereof. The City's obligations will be solely those described in this Agreement. 2. The City's Duties. a. Collection of assessments. The City will bill and collect assessments from businesses within the boundaries of the District annually in conjunction with the City's annual business license. The City may, but is not required to, follow up and collect delinquent assessments. b. Distribution of District Funds to the Chamber. The City will distribute to the Chamber the assessment funds actually collected by the City, with any interest that actually accrues upon such funds while in the City's possession and control, plus interest and penalties actually received by the City with respect to delinquent Page 4 of 20 District assessment payments (collectively, the `'District Funds"). The City will disburse the District Funds held by the City for the 2023 assessments in a lump sum payment by no later than July 30, 2023; except that up to $10,000 of the 2023 assessments will be disbursed to the BID Corporation to support their transition activities. Any District Funds collected by the City thereafter, including any remaining District Funds of the BID Corporation, will be disbursed to the Chamber when reasonably practical thereafter. Notwithstanding the forgoing, in the event of a legal challenge against any District assessments, or threat thereof, the City will have the right to delay disbursement or impound the District Funds, so that the assessments are available for refunds or satisfaction of judgments (a "Funding Delay"). The City's right to delay disbursement or impound District Funds through a Funding Delay, may, in the City's sole discretion, shall extend through the expiration of the legal challenge or threat thereof. c. Annual renewal for levy of assessments. The City Council will adopt a Resolution of Intention to Levy an Annual Assessment and hold a public hearing to confirm the District's annual report and renew the assessments for the next calendar year. The public hearing is expected to occur in December each year, following the District Advisory Board's submission of its annual report, as provided in the Administrative Guidelines (Exhibit B). 3) Co pen sat ion. For performance of District Management Services and District Enhancement Services by the Chamber described in paragraph la-b, the Chamber will be compensated by the City in the amount of $100,000, in two annual payments as follows: i. $50,000 for the period of the Effective Date of this Agreement through June 30, 2024, payable within 30 days of receipt of invoice from the Chamber; and ii. $50,000 for the period of July 1, 2024 through June 30, 2025, payable within 30 days of receipt of invoice to be submitted by the Chamber after March 31, 2024. The compensation described in this paragraph is not considered District Funds under this Agreement and upon payment by the City will be separate funds of the Chamber. 4) District Funds Budgetary, Auditing, and Financial Obligations. a. District Funds Held in Restricted Funds Account. All District Funds in the possession/control of the Chamber hereunder are the property of the District and shall be held in a separate bank account by the Chamber solely for the benefit of the District. Such District Funds shall only be expended as outlined in the annual report approved by the City Council at the direction of the District Advisory Board. b. Chamber's Use of District Funds. If the Chamber's actual costs exceed $50,000 for each annual period listed above in paragraph 3, the Chamber will then be entitled to deduct its actual costs, to include overhead and staffing expenses, from any Page 5 of 20 remaining District Funds, not to exceed 15% of the total amount of District Funds collected each year (based on 2023 assessments for the 2023-2024 period and 2024 assessments for the 2024-2025 period). The Chamber will provide an accounting of its costs to the District Advisory Board and the City to support such deductions. Budget Compliance. The Chamber will act as the fiscal agent of the District to administer District Funds in compliance with each annual report approved by the City Council and resolution adopted by the City Council levying the annual District assessment (collectively referred to as the "Budget"). All District Funds will be separately accounted for by the Chamber, and segmented from other revenue collected by the Chamber in its accounting and financial records. d. Records/Audit. During the term of this Agreement, and for four years after this Agreement's term expires or terminates, the Chamber will maintain detailed financial records pertaining to District administration sufficient to provide the basis for an unqualified opinion by an independent auditor, including but not limited to records concerning budgeting, expenditures, subcontracts, insurance, permits, administrative expenses, and overhead. The Chamber agrees to make all such records available to the City upon request at all reasonable times. e. Confidentiality. The Chamber will comply with all laws governing the confidentiality of District assessment records, reports, and related information that may be provided to the Chamber by the City. A record of the total assessment of an individual business, or the fact that said business has allowed the assessment payment to become delinquent, is not deemed to be confidential. f. Compensation for District Management and Enhancement Services. The $100,000 compensation paid by the City to the Chamber for District Management Services and District Enhancement Services described in paragraph 3 will not be considered District Funds and are not subject to the terms of this paragraph 4. 5) Term and Termination. a. Term. The tern of this Agreement (the "Term") will be from the Effective Date through June 30, 2025, unless mutually extended by the parties in writing. b. Termination for cause. If the City determines that the Chamber has misappropriated District Funds, committed malfeasance, or violated any law in providing the activities identified in the approved Budget or otherwise conducted by or on behalf of the District, or in otherwise administering the District, the City will have the right to immediately terminate this Agreement via written notice to the Chamber. c. Termination for convenience. Either party will have the right to terminate this Agreement for any reason with 90 days' written notice to the other party. d. Obligations on Termination. Immediately following the expiration or earlier termination of this Agreement, the Chamber will do all of the following: Page 6 of 20 i. Terminate all activities of the Chamber covered by this Agreement; ii. Pay all obligations it incurred on behalf of the District; iii. Return to the City all remaining District Funds and all assets acquired with District Funds, together with an accounting thereof; and iv. Reimburse the City the total amount of compensation paid to the Chamber for District Management Services and District Enhancement Services pro- rated for the period of time after the effective date of termination. Immediately following any early termination of this Agreement, the City will pay the Chamber any amount of compensation it may owe for District Management Services and District Enhancement Services pro -rated for the period of time up to the effective date of termination. This provision will survive termination of this Agreement. 6) Indemnification by Chamber. a. Indemnity. Except as expressly provided herein, the Chamber shall indemnify, hold harmless and defend the City and each of its officers, officials, employees, and agents and volunteers (each a "City Party" and collectively, the "City Parties") from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), including attorney's fees and litigation expenses, arising or alleged to have arisen or caused by: (i) any material breach or non -fulfillment of any of the terms of this Agreement or performance of this Agreement, except to the extent directly or indirectly caused by a Funding Delay described in Section 2b above; (ii) the Chamber's performance of its obligations or conduct of its operations under the terms of this Agreement; or (iii) the Chamber's use of the District Funds disbursed to it or debts which may be incurred arising out of or, in anywise connected, directly or indirectly, with the Chamber's performance under the terms of this Agreement, it being understood that the City is solely a disbursing agency of the District Funds, for the account of the District, and said District Funds will not become a part of any general fund or any other special fund of the Chamber or the City of San Rafael. Notwithstanding the foregoing, the Chamber's indemnification obligations provided herein shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the gross negligence or willful misconduct of the City or any City Party. b. Use of Agents. If the Chamber subcontracts all or any portion of the services to be provided by the Chamber under this Agreement, the Chamber shall require each subcontractor to indemnify, hold harmless and defend the City and the City Parties in accordance this Section 6. c. Survival. This Section 6 shall survive termination or expiration of this Agreement. Page 7 of 20 7) Indemnification by City. Indemnity. Except as expressly provided herein, the City shall indemnify, hold harmless and defend the Chamber and each of its officers, officials, employees, and agents and volunteers (each a "Chamber Party" and collectively, the "Chamber Parties") from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), including attorney's fees and litigation expenses, arising or alleged to have arisen or caused by: (i) any material breach or non -fulfillment of any of the terms of this Agreement or performance of this Agreement including, without limitation, those directly or indirectly caused by a Funding Delay described in Section 2b above; or (ii) the City's performance of its obligations or conduct of its operations under the terms of this Agreement. Notwithstanding the foregoing, the City's indemnification obligations provided herein shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the gross negligence or willful misconduct of the Chamber or any Chamber Party. b. Use of Agents. If the City subcontracts all or any portion of the services to be provided by the City under this Agreement, the City shall require each subcontractor to indemnify, hold harmless and defend the Chamber and the Chamber Parties in accordance with the terms of this Section 7. c. Survival. This Section 7 shall survive termination or expiration of this Agreement. d. Chamber Insurance Requirements. The Chamber will maintain insurance and comply with the insurance requirements provided in Exhibit C on forms approved by the City. e. General Provisions a. Notice. To be effective, any notice concerning this Agreement must be served by placing it in the U.S. Mail with postage prepaid to the following addressees. Either party may change the addressee by providing written notice to the other party. Notice will be considered delivered two business days after the date of deposit in the U.S. Mail. To Ci City of San Rafael Director of Economic Development 1400 Fifth Avenue San Rafael, CA 94901 micah.hinkle(cityofsanrafael.org To Chamher Chamber of Commerce President and CEO 817 Mission Avenue San Rafael, CA 94901 iwebster(aysrcharnber.com b. Independent Contractor Status. The Chamber will perform under this Agreement as an independent contractor and will be responsible for any federal, state, or local taxes or fees that apply to compensation the Chamber receives from the City under Page 8 of 20 this Agreement. The Chamber's employees and subcontractors will not be employees of the City and will not be eligible for any benefits provided through the City, including but not limited to social security, health, workers' compensation, unemployment compensation, or retirement benefits. Neither the District nor any of its officers, employees, agents, volunteers, or subcontractors are or will be considered to be agents of the City in connection with the Chamber's performance under this Agreement. General Fund Not Liable for District Funds. Neither the taxing authority, nor the bonding capacity, nor the general fund, nor any other fund or monies of the City other than actual District Funds received from businesses located within the District will be liable for payment of any obligations in connection with the District Funds arising from this Agreement. Obligations of the District Funds are not a debt of the City, nor are they a legal or equitable pledge, charge, lien, or encumbrance upon any of the City's property, income, receipts, or revenues. This Agreement embodies all of the Chamber's reimbursement rights with respect to the District Funds, and the City is not required to execute any additional note or document. d. Attorneys' Fees. The prevailing party in any litigation or arbitration brought to enforce this Agreement will be entitled to recover reasonable attorneys' fees and costs (including the reasonable costs of City Attorney staff) incurred in connection with the litigation or arbitration, through final resolution. e. Interpretation and Venue. This Agreement is to be interpreted in accordance with California law. Any litigation concerning this Agreement must be brought and prosecuted in the Marin County Superior Court. f. Waiver. A party's failure to insist on strict performance of this Agreement or to exercise any right or remedy upon the other party's breach of this Agreement will not constitute a waiver of the performance, right, or remedy. A party's waiver of the other party's breach of any term or provision in this Agreement will not constitute a continuing waiver or a waiver of any subsequent breach of the same or any other term or provision. A waiver is binding only if set forth in writing and signed by the waiving party. Entire Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement sets forth the parties' entire understanding regarding the subjects covered. It supersedes all prior or contemporaneous agreements, representations, and negotiations regarding those subjects (whether written, oral, express, or implied) and may be modified only by another written agreement signed by both parties. h. Counterparts. The parties may execute this Agreement in counterparts, each of which will be considered an original, but all of which will constitute the same agreement. i. Precedence of Documents. In the event of any conflict between the body of this Page 9 of 20 Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. j. Amendment. This Agreement may be modified only by written instrument duly authorized and executed by all the parties. k. Successors and Assigns. Subject to limitations on assignment provided herein, this Agreement shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives. The Chamber may not assign its rights or obligations under this Agreement without the prior written consent of City, which consent may be withheld at City's sole and absolute discretion. Any attempted assignment by the Chamber, its successors or assigns, shall be null and void unless approved in writing by the City. 1. Authority to Sign. Each individual executing this Agreement, or its counterpart, warrants that they are authorized to do so and that this Agreement constitutes the legally binding obligation of the entity which they represent. [Signatures are on the following page.] Page 10 of 20 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. CITY OF SAN RAFAEL: ()-istihe Aliloyich CRISTINE ALILOVICH, City Manager APPROVED AS TO FORM: Office of the City Attorney By: GENEVIEVE COYLE, Assistant City Attorney ATTEST: City Clerk SrNW4, Nurm44624) B,e—, tlu�m�,!o� J,1:8 JC: 0i. 50 POT LINDSAY LARA, City Clerk CHAMBER OF COMMERCE: QMW .L t4 JOA NF WEBSTER, President �/and CEO [Other Corporate Officer] Exhibits (incorporated by this reference): Exhibit A: Chapter 10.09 of the San Rafael Municipal Code Exhibit B: San Rafael Improvement District Administrative Guidelines Exhibit C: Insurance Requirements Page 11 of 20 Exhibit A San Rafael Municipal Code, Chapter 10.09 Title 10 - BUSINESSES, PROFESSIONS, OCCUPATIONS, INDUSTRIES AND TRADES Chapter 10.09 DOWNTOWN SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT (Current through March 10, 2023) Chapter 10.09 DOWNTOWN SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT 10.09.010 Purpose. The purpose of this chapter is to authorize the city to impose assessments on business within a parking and business improvement area which are in addition to any assessments, fees, charges, or taxes imposed in the city, and to use such proceeds for the benefit of businesses within such area. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) 10.09.020 Definitions. For the purposes of this chapter and for identifying businesses in the Downtown San Rafael Business Improvement District and for calculating and applying the assessments owed, the following definitions shall apply: A. "Financial institutions" —Banks (retail and full service), savings and loans, credit unions as allowed in the underlying zoning district. B. "Non -Profit organizations" —Organizations registered as a non-profit corporation with the State of California and fine artists. C. "Fine artists" —Artists that produce art that is intended primarily for beauty rather than utility or commercial purposes. D. "Offices" —Businesses providing administrative or business services such as company headquarters, employment agencies, management services as allowed in the underlying zoning district. E. "Personal services" —Businesses that sell services such as hair salons, nail salons and day spas as allowed in the underlying zoning district, and may combine some retail sales with product services, and may be associated with sole practitioners. F. "Personal services, not on ground floor" —Personal service businesses that are not located on the ground floor of a building and do not have a retail presence on the street. G. "Personal services sole practitioner" —Businesses that are sole practitioners in personal services businesses, including barbershop chairs, manicurists chairs, beauty shop chairs and miscellaneous personal care chairs. H. "Professionals" —Businesses that require advanced and/or specialized licenses and/or advanced academic degrees, such as architects, engineers, attorneys, accountants, therapists, counselors, realtors, mortgage brokers as allowed in the underlying zoning district. Professionals working as sole practitioners are in this category. I. "Restaurant" —Businesses that sell prepared foods and drinks as allowed in the underlying zoning district. J. "Retail' —Businesses that buy and sell goods, such as clothing stores, shoe stores, office supplies as allowed in the underlying zoning district. Page 12 of 20 (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) 10.09.030 District established. Pursuant to the provisions of Streets and Highways Code Section 36501 et seq., a parking and business improvement district is hereby established, named "Downtown San Rafael Business Improvement District" (the "BID"). (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) 10.09.040 Boundaries of district and benefit zones. The parking and business improvement area created herein includes businesses situated within the boundaries described as follows: Those businesses situated on parcels fronting on the north side of Fourth Street from Second Street to E Street, more particularly assessor's parcels as shown on the 2012 Assessor's Maps as follows: 010-291-57, 35, 34, 33, 49, 69; 011-192-18, 08, 07; 011-194-11, 13, 08, 07; 011-196-12, 11, 10, 09, 08, 07; 011-202-13, 12, 11, 14; those businesses situated on parcels bound by Fourth Street, Second Street and Ida Street, more particularly assessor's parcels as shown on the 2012 Assessor's Maps as follows: 011-231-24, 25, 03, 04, 05, 06, 21, 17, 16; those businesses situated on parcels fronting on the south side of Fourth Street from Ida Street to E Street, more particularly assessor's parcels as shown on the 2012 Assessor's Maps as follows: 011-232-01, 02, 03; 011-241-01, 30, 31, 32, 33; 011-242-01, 02, 03, 04, 05, 06, 07, 08, 09, 10, 11; 011-245-26; those businesses situated on parcels bound by E Street, Netherton Street, Fifth Avenue and Third Street, more particularly assessor's parcels as shown on the 2012 Assessor's Maps as follows: 011-204-01, 16, 15, 14, 13, 17, 09, 08, 20, 18, 19; 011-205-01, 15, 14, 13, 12, 11, 10, 09, 08, 16, 05, 04, 17; 011-212-15, 14, 16, 11, 06, 05, 04, 03; 011-214-10; 011-215-01, 02, 04, 05; 011- 216-01; 011-222-08, 05; 011-224-01, 18, 17, 20, 15, 14, 13, 12, 11, 10, 19, 08, 06, 05, 04, 03, 02, 21; 011-227-01, 08, 07, 06, 05, 04, 10, 09, 02; 011-251-01, 13, 12, 11, 10, 09, 08, 07, 06, 05, 04, 03, 02; 011-253-01, 09, 08, 07, 06, 11, 10, 04, 03, 02; 011-255-27, 15, 14, 13, 18, 10, 29, 33, 19, 20, 07, 31, 30, 32, 23, 28, 03; 011-261-01, 13, 12, 20, 26, 29, 30, 17, 31; 011-263-20, 21, 02, 19, 04, 16, 22, 13, 11, 10, 09, 08, 07, 06, 05, 02; 011-271-01, 16, 15, 14, 13, 12, 11, 17, 07, 06, 05, 04, 03, 02, 01; 011-273-01, 17, 18, 12, 11, 10, 09, 08, 24, 06, 05, 04, 23, 02; 011-275-01, 12, 11, 10, 09, 13, 05, 04, 03, 02; 011-277-01; 014-084-13, 14, 02; 014-121-14; those businesses situated on parcels fronting on B Street from Third Street to Second Street, more particularly assessor's parcels as shown on the 2012 Assessor's Maps as follows: 011-256-26, 07, 08, 09, 32, 12; 011-262-01, 21, 22, 16, 15, 14, 23. The standard benefit zone is that portion of the Downtown San Rafael Business Improvement District located to the west of E Street, that portion to the east of Lincoln Avenue, and that portion fronting on B Street from Third to Second Street. The premium benefit zone is the remainder of the Downtown San Rafael Business Improvement District; specifically that portion located the east of E Street and west of Lincoln Avenue, between Fifth Avenue and Third Street. Said area zones are reflected on a graphic, Exhibit A, attached to the ordinance codified in this chapter and incorporated in this chapter by reference. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) 10.09.050 Calculation of assessments. All businesses in the BID shall, commencing on January 1, 2015 pay an annual benefit assessment to the BID in the amounts shown in Table 10.09.050-1. (Supp. No. 35) Page 13 of 20 Created: 2023-03-14 09:10:26 [EST] Table 10.09.050-1 Annual Assessment Type of Business Standard Premium Retail on the ground floor, restaurant, personal services on ground floor $175 $225 Retail on the ground floor, restaurant, personal services on ground floor —Businesses with less than $100,000 in gross receipts $150 $175 Offices, professional, personal services, not on ground floor, retail, not on ground floor $75 $100 Personal services sole practitioner $25 $50 Non-profit organization and fine artists $50 $50 Financial institution $375 $425 Assessments based upon 'gross receipts' shall be based upon the previous year's annualized gross receipts An individual who has multiple business licenses in their name at a single address shall only pay one assessment fee. No person or business shall be required to pay an assessment for residential uses, residential businesses or home occupations. Any business outside the BID may voluntarily pay the standard zone assessment. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) 10.09.060 Use of revenue. The revenues derived from the assessments shall be used for the purposes as stated in Streets and Highways Code Section 36501 et seq. for the specific benefit of assessed businesses which may include: A. General promotion of businesses activities which provide a specific benefit to assessed businesses within the BID; B. Promotion of public events which provide a specific benefit to assessed businesses within the BID and which take place on or in public places within the BID; C. The acquisition, construction, installation and maintenance of any tangible property including but not limited to benches, trash receptacles, decorations and landscaping which provide a specific benefit to assessed businesses within the BID; D. Activities which provide a specific benefit to assessed businesses located and operating in the BID. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) 10.09.070 Collection of assessments. The benefit assessment shall be billed annually by the city in conjunction with the city's annual business license. Any business exempt from paying city business license fees shall be assessed in January of each year. All assessments collected shall be held in a separate account and expended in accordance with this chapter and any subsequent resolutions and funds management agreement. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) (Supp. No. 35) Page 14 of 20 Created: 2023-03-14 09:10:26 [EST] 10.09.080 Advisory board and annual report. The city council shall appoint an advisory board pursuant to Streets and Highways Code Section 36501 et seq to administer the affairs of the BID. Members of the advisory board must own or represent a business in the BID, or be a voluntary member. The advisory board shall prepare an annual report for each year for which assessments are to be levied. The report shall be filed with the city clerk and shall comply with all requirements as stated in Streets and Highways Code Section 36501 et seq. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) 10.09.090 District proceeds do not offset city services. Funds derived from the BID assessments shall not be used to offset or diminish current maintenance or capital improvement programs, including but not limited to public property and sidewalk cleaning and maintenance, street cleaning and maintenance, tree maintenance. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) 10.09.100 Boundary and assessment modifications. The city council may, at the advisory board's recommendation, modify the boundaries or assessments. Such modifications shall be made pursuant to the requirements of Streets and Highways Code Section 36501 et seq. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) (Supp. No. 35) Page 15 of 20 Created: 2023-03-14 09:10:26 [EST] Exhibit B Downtown San Rafael Business Improvement District Administrative Guidelines 1. District. The Downtown San Rafael Business Improvement District ("District") is a parking and business improvement district established pursuant to the provisions of Streets and Highways Code Section 36501 et seq., and codified in Chapter 10.09 of the San Rafael Municipal Code. 2. Appointment of District Advisory Board. The City Council, in its sole and absolute discretion, will appoint the District Advisory Board, pursuant to the Streets and Highways Code Section 36501 et seq. and San Rafael Municipal Code section 10.09.080, to administer the affairs of the District. The City Council will review and update the District Advisory Board appointments as it deems appropriate. The City Council may, but is not required to, appoint any members of the Board of Directors of the San Rafael Chamber of Commerce ("Chamber") to the District Advisory Board, provided that such members meet the eligibility requirements under San Rafael Municipal Code section 10.09.080. District Advisory Board Nominations. The District Advisory Board will conduct an annual meeting to select the nominations for District Advisory Board. The District Advisory Board nominations will be provided to the City Clerk at the time of the submittal of the District Annual Report. The Advisory Board nominations should reflect a balance of downtown business representation including retail businesses, non -retail businesses, and at least one district eligible Chamber business recommended by the Chamber. 3. Management and Enhancement Services of the Chamber of Commerce. The City has contracted with the Chamber to provide District management and enhancement services to the District, and act as the fiscal agent of District Funds. The Advisory Board will conduct all of its affairs consistent with the City's agreement with the Chamber. 4. Governance; meetings. The District Advisory Board is a separate, standalone advisory board appointed by the City Council to administer the affairs of the District. To the extent determined necessary by the District Advisory Board, it will develop its own bylaws or operating rules, separate from the Chamber Board of Director's bylaws. The District Advisory Board will conduct its meetings, and meet separately and at a different time than the Chamber Board of Directors. If these meeting are to occur on the same date, before or after each other, the meeting agendas will be clearly delineated to specify which organization is meeting at which time. In noticing and conducting its meetings as the District Advisory Board, the District Advisory Board will, in all respects, comply with the Brown Act, as specified below. 5. Compliance with Brown Act and Public Records Act. The District Advisory Board must comply with all federal, state, and local laws, including The Ralph M. Brown Act (Government Code § 54950 et seq.) ("Brown Act") whenever matters within the subject matter of the District are heard, discussed, or deliberated, and the California Public Records Act (Government Code § 6250 et seq.) for all documents relating to activities of the District. See Exhibit B-1 for more information on the Brown Act. 6. Conflicts of interest. Members of the District Advisory Board will serve without compensation and may not have any interest in any agreement for compensation entered into by or on behalf of the District. 7. District Funds. District Funds (revenues derived from the assessments and transferred from the City to the Chamber) shall be used solely for the purposes as stated in Streets and Highways Code section Page 19 36501 et seq. and San Rafael Municipal Code section 10.09.060. 8. Annual Reports. The District Advisory Board will submit annual reports to the City, no later than October 15 of each year. The annual report contents and filing will conform with the 1989 Act, Streets and Highways Code section 36533, as follows: § 36533. Annual report; contents; filing (a) The advisory board shall cause to be prepared a reportfor each fiscal year for which assessments are to be levied and collected to pay the costs of the improvements and activities described in the report. The report may propose changes, including, but not limited to, the boundaries of the parking and business improvement area or any benefit zones within the area, the basis and method of levying the assessments, and any changes in the classification of businesses, if a classification is used. (b) The report shall be filed with the clerk and shall refer to the parking and business improvement area by name, specify the fiscal year to which the report applies, and, with respect to that fiscal year, shall contain all of the following: (1) Any proposed changes in the boundaries of the parking and business improvement area or in any benefit zones within the area. (2) The improvements and activities to be provided for that fiscal year. (3) An estimate of the cost of providing the improvements and the activities for that fiscal year. (4) The method and basis of levying the assessment in sufficient detail to allow each business owner to estimate the amount of the assessment to be levied against his or her business for that fiscal year. (5) The amount of any surplus or deficit revenues to be carried over from a previous fiscal year (6) The amount of any contributions to be made from sources other than assessments levied pursuant to this part. (c) The city council may approve the report as filed by the advisory board or may modify any particular contained in the report and approve it as modified. The city council shall not approve a change in the basis and method of levying assessments that would impair an authorized or executed contract to be paid from the revenues derived from the levy of assessments. Page 20 Exhibit B-1 Summary of The Brown Act Provisions The Advisory Board of the Downtown San Rafael Business Improvement District ("District") is subject to the Ralph M. Brown Act when matters within the subject matter of the District are heard, discussed, or deliberated and shall comply with the California Public Records Act. The California Public Records Act requires that non-exempt records of the District be accessible by the public. The Brown Act is intended to ensure that "actions be taken openly and that deliberations be conducted openly" by boards who are created by formal action of city councils. Some of the more important requirements of the Brown Act are listed below. The Advisory Board and any standing committees and committees comprised of at least a majority of the Board members are subject to the following requirements: • Except for closed sessions which are expressly permitted under the Brown Act, all meetings must be open to the public and must allow public comment; • Some closed sessions are allowed based on limited exceptions (litigation, employment issues, etc.); • A meeting is defined as a congregation of a majority of Board members, or serial individual meetings involving a majority or more of the Board members wherein District business is discussed or conducted; • Agendas for upcoming, regular meetings must be posted at least 72 hours in advance; and • Action can only be taken on items listed on the posted agenda. The above list provides a simple overview. The Brown Act is updated routinely by the State of California and has more requirements. City staff should be contacted for current Brown Act resources, information and training. Page 19 Exhibit C Insurance Requirements During the term of this Agreement, and for any time period set forth below, the CHAMBER OF COMMERCE (as CONSULTANT) shall procure and maintain in full force and effect, at no cost to CITY insurance policies with respect to employees and vehicles assigned to the performance of Services under this Agreement with coverage amounts, required endorsements, certificates of insurance, and coverage verifications as defined in this Exhibit B. A. Scope of Coverage. During the term of this Agreement, CONSULTANT shall maintain, at no expense to CITY, the following insurance policies: 1. Commercial general liability. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars -($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. Automobile liability. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence. 3. Professional liability. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONSULTANT's performance of services under this Agreement. Where CONSULTANT is a professional not required to have a professional license, CITY reserves the right to require CONSULTANT to provide professional liability insurance pursuant to this section. 4. Workers' compensation. If it employs any person, CONSULTANT shall maintain workers' compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. CONSULTANT's workers' compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONSULTANT in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance or workers' compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies. 2. The additional insured coverage under CONSULTANT's insurance policies shall be "primary and noncontributory" with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONSULTANT'S policies shall be at least as broad as ISO form CG20 0104 13. 3. Except for professional liability insurance or workers' compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. By execution of this Agreement, CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of CONSULTANT may acquire against CITY by virtue of the payment of any loss under such insurance. CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the Effective Date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of the CONSULTANT under this Agreement. 9. CONSULTANT agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by CONSULTANT, provide the same minimum insurance coverage required of CONSULTANT, except as with respect to limits. CONSULTANT agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. CONSUTLANT agrees that upon request by CITY, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the performance of Services will be submitted to CITY for review. 10. CONSULTANT agrees to be responsible for ensuring that no contract used by any party involved in any way with the Services reserves the right to charge CITY or CONSULTANT for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to CITY. It is not the intent of CITY to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against CITY for payment of premiums or other amounts with respect thereto. C. Deductibles and SIR's. Any deductibles or self -insured retentions in CONSULTANT's insurance policies must be declared to and approved by the CITY and shall not reduce the limits of liability. Policies containing any self -insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self -insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONSULTANT shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONSULTANT shall provide to the PROJECT MANAGER all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONSULTANT. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by the CITY. RAP �1 S 2 � �O 'ryWITH t � CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Economic Development Project Manager: Micah Hinkle Extension: 3460 Contractor Name: San Rafael Chamber of Commerce Contractor's Contact: Joanne Webster — 415-454-4163 X101 Contact's Email: jwebster@srchamber.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor n/a ❑X 4/1/2023 b. Email contract (in Word) & attachments to City Atty c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement 4/15/2023 and return to Project Manager 4/15/2023 ❑X b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Project Manager Forward three (3) originals of final agreement to 7/14/2023 contractor for their signature 4 Project Manager When necessary, * contractor -signed agreement ❑ N/A agendized for Council approval *PSA > $20,000; or Purchase > $35,000; or Or Public Works Contract > $125,000 5/1/23 Date of Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City 7/14/23 MH Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed agreement 7 City Attorney Review and approve insurance in PINS , and bonds (for Public Works Contracts) 8 City Manager / Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager BID Agreement Final Audit Report with Chamber of Commerce Created: 2023-07-17 By: Laraine Gittens (laraine.gittens@cityofsanrafael.org) Status: Signed Transaction ID: CBJCHBCAABAALkG0oO4OgswbNNtkVTnvmwvQygemsePN "BID Agreement with Chamber of Commerce" History Document created by Laraine Gittens (laraine.gittens@cityofsanrafael.org) 2023-07-17 - 4:22:35 PM GMT- IP address: 199.88.113.8 E-4' Document emailed to Genevieve Coyle (genevieve.coyle@cityofsanrafael.org) for signature 2023-07-17 - 4:27:01 PM GMT Email viewed by Genevieve Coyle (genevieve.coyle@cityofsanrafael.org) 2023-07-17 - 10:42:19 PM GMT- IP address: 104.47.64.254 �© Document e-signed by Genevieve Coyle (genevieve.coyle@cityofsanrafael.org) Signature Date: 2023-07-17 - 10:43:14 PM GMT - Time Source: server- IP address: 199.88.113.8 E-1 Document emailed to cristine.alilovich@cityofsanrafael.org for signature 2023-07-17-10:43:18 PM GMT Email viewed by cristine.alilovich@cityofsanrafael.org 2023-07-18 - 5:51:06 AM GMT- IP address: 104.47.65.254 4 Signer cristine.alilovich@cityofsanrafael.org entered name at signing as Cristine Alilovich 2023-07-18 - 5:51:28 AM GMT- IP address: 199.88.113.8 6m Document e-signed by Cristine Alilovich (cristine.alilovich@cityofsanrafael.org) Signature Date: 2023-07-18 - 5:51:30 AM GMT - Time Source: server- IP address: 199.88.113.8 L--'y Document emailed to Brenna Nurmi (brenna.nurmi@cityofsanrafael.org) for signature 2023-07-18 - 5:51:33 AM GMT Email viewed by Brenna Nurmi (brenna.nurmi@cityofsanrafael.org) 2023-07-18 - 2:49:44 PM GMT- IP address: 104.47.64.254 &e Signer Brenna Nurmi (brenna.nurmi@cityofsanrafael.org) entered name at signing as Brenna Nurmi (for) 2023-07-18 - 2:50:03 PM GMT- IP address: 199.88.113.8 Q Adobe Acrobat Sign bm Document e-signed by Brenna Nurmi (for) (brenna.nurmi@cityofsanrafael.org) Signature Date: 2023-07-18 - 2:50:05 PM GMT - Time Source: server- IP address: 199.88.113.8 E -, Document emailed to brenna.nurmi@cityofsanrafael.org for approval 2023-07-18 - 2:50:09 PM GMT Email viewed by brenna.nurmi@cityofsanrafael.org 2023-07-18 - 3:16:34 PM GMT- IP address: 104.47.64.254 4 Signer brenna.nurmi@cityofsanrafael.org entered name at signing as Brenna Nurmi 2023-07-18 - 3:16:52 PM GMT- IP address: 199.88.113.8 60 Document approved by Brenna Nurmi (brenna.nurmi@cityofsanrafael.org) Approval Date: 2023-07-18 - 3:16:54 PM GMT - Time Source: server- IP address: 199.88.113.8 Agreement completed. 2023-07-18 - 3:16:54 PM GMT Q Adobe Acrobat Sign