Loading...
Attachment 1AGREEMENT BETWEEN THE COUNTY OF SANTA CLARA AND TOWN OF LOS GATOS FOR A TOBACCO RETAIL PERMIT PROGRAM This Agreement is entered into by and between the County of Santa Clara (“County”) and Town of Los Gatos (“Town”) relating to administration and enforcement of a tobacco retail permit program in the Town of Los Gatos. County and Town may be referred to in this Agreement individually as a “Party” and collectively as “Parties.” Background / Purpose In 2010, the County added Chapter XXIII to Division A18 of its Ordinance Code, thereby establishing a permit requirement for retailers of tobacco products in the unincorporated areas of the County of Santa Clara. The County has since expanded the scope of Chapter XXIII and modified provisions therein. The Town has adopted Town Code Section 18.60.020 to mirror the provisions of County Code Chapter XXIII in their entirety effective January 1, 2018. The Town and County intend for the County to administer and enforce the Town’s tobacco retail permit program within the Town, except as otherwise provided in this Agreement. The County intends to cite violators of the Town’s Ordinance Code pursuant to this Agreement. Agreement The Parties agree as follows: 1. Scope of Work Each Party shall perform the work as described in Exhibit A, attached hereto and incorporated herein by this reference; provided, however, that the County shall have no responsibility for administering or enforcing any provisions of the Town’s tobacco retailer permit ordinance that are in addition to or otherwise different from the County’s provisions. 2. Relationship of Parties / Independent Contractors Each Party shall perform all work described herein as an independent contractor and not as an officer, agent, servant or employee of the other Party. None of the provisions of this Agreement are intended to create, nor shall be deemed or construed to create, any relationship between the Parties other than that of independent parties contracting with each other for purpose of effecting the provisions of this Agreement. The Parties are not, and will not be construed to be in a relationship of joint venture, partnership or employer- employee. Neither Party has the authority to make any statements, representations or commitments of any kind on behalf of the other Party, or to use the name of the other Party in any publications or advertisements, except with the written consent of the other Party or as is explicitly provided herein. Each Party will be solely responsible for the ATTACHMENT 1 Page 2 of 9 Agreement for Los Gatos Tobacco Retail Permit Program acts and omissions of its officers, agents, employees, contractors, and subcontractors, if any. 3. Term of Agreement This Agreement is effective from the date that this Agreement is executed, until terminated in accordance with this Agreement. 4. Payment The Town shall adopt, by reference, the County’s fee schedule for annual tobacco retail permits and tobacco retail permit applications. All annual permit fees and application fees for the tobacco retail permit program shall be collected and retained by the County. The County shall advise Town of the initial permit fee and application fee necessary to cover County’s anticipated costs under this Agreement. Thereafter, the County shall provide notice to the Town and tobacco retail permit holders in the Town of any increases or decreases in the cost of the County’s work under this Agreement and any need to revise permit fees and/or application fees accordingly. 5. Termination Either Party may terminate this Agreement for any reason upon ninety (90) days’ written notice. Upon service of a termination notice, the Parties shall use their best efforts to develop a mutually-agreeable plan for transition of the County’s responsibilities to the Town. Upon termination of this Agreement, the Town will be responsible for replacing the County-issued permits. 6. Indemnification and Insurance Town shall indemnify and hold harmless the County, its officers, agents and employees from any claim, liability, loss, injury or damage arising out of, or in connection with, performance of this Agreement by County and/or its officers, agents, employees or subcontractors, excepting only loss, injury or damage caused by the sole negligence or willful misconduct of personnel employed by County. It is the intent of the parties to this Agreement to provide the broadest possible coverage for the County. The Town shall reimburse the County for all costs, attorneys’ fees, expenses and liabilities incurred with respect to any litigation in which the Town contests its obligation to indemnify, defend and/or hold harmless the County under this Agreement and does not prevail in that contest. Town shall immediately notify County upon learning of any potential or asserted claim, liability, loss, injury or damage for which the Town may be obligated to indemnify or hold the County harmless pursuant to any provision of this Agreement. Without limiting the indemnification, Town shall maintain or cause to be maintained the Page 3 of 9 Agreement for Los Gatos Tobacco Retail Permit Program following insurance coverage: (1) a policy of commercial general liability with limits of liability not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate; (ii) a policy of workers’ compensation providing statutory coverage; (iii) a policy of professional errors and omissions liability with limits of liability not less than one million dollars ($1,000,000) per occurrence/aggregate; and (iv) such other insurance or self-insurance as shall be necessary to insure it against any claim or claims for damages arising under the Agreement. Insurance afforded by the commercial general liability policy shall be endorsed to provide coverage to the County as an additional insured. A Certificate of Insurance certifying that coverage as required herein has been obtained shall be provided to the County. The requirements of this section may be satisfied by the provision of similar coverage through a self-insurance program. 7. Compliance with All Laws, Rules, Regulations, Policies and Procedures The Parties shall comply with all applicable federal, state and local laws, rules, regulations, policies and procedures. 8. Monitoring / Records 8.1 Monitoring Each Party shall permit the other Party to monitor its performance of this Agreement. To the extent permitted by law, such monitoring may include, but not be limited to, audits and review of records related to this Agreement. Upon request, a Party shall provide the other Party with access to facilities, financial and employee records that are related to the purpose of the Agreement, except where prohibited by federal, state or local laws, regulations or rules. Monitoring shall be permitted at any time during normal business hours upon no less than 10 business days advance notice and may occur up to one year following termination of the Agreement. Each Party shall designate a project director/coordinator responsible for overseeing that Party’s performance of this Agreement. Each Party shall notify the other Party in writing of the designation of the project director/coordinator and of any change thereto. 8.2 California Public Records Act The Parties are public agencies subject to the disclosure requirements of the California Public Records Act (“CPRA”). In the event of a CPRA request for information related to this Agreement, each Party will use its best efforts to notify the other Party before such disclosure. 9. Representations and Warranties 9.1 Conflict of Interest Each Party shall comply, and require its subcontractors to comply, with all Page 4 of 9 Agreement for Los Gatos Tobacco Retail Permit Program applicable (i) requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code section 1090 et. seq., the California Political Reform Act (California Government Code section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations section 18700 et. seq.). Failure to do so constitutes a material breach of this Agreement and is grounds for immediate termination of this Agreement by either Party. 9.2 Authority Each individual executing this Agreement on behalf of a Party represents that he or she is duly authorized to execute and deliver this Agreement on that Party’s behalf. 10. Assignment, Delegation, Subcontracting Neither Party may assign any of its rights, delegate any of its duties or subcontract any portion of its work or business under this Agreement without the prior written consent of the other Party, which such other Party may withhold in its sole and absolute discretion. No assignment, delegation or subcontracting will release a Party from any of its obligations or alter any of its obligations to be performed under the Agreement. 11. Governing Law, Jurisdiction and Venue This Agreement shall be construed and its performance enforced under California law. In the event that suit shall be brought by either Party to this Agreement, the Parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara or, if federal jurisdiction is appropriate, exclusively in the United States District Court for the Northern District of California, in San Jose, California. 12. Waiver No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted by a Party must be in writing, and shall apply to the specific instance expressly stated. 13. Notice Any notice required to be given by either Party, or which either Party may wish to give, shall be in writing and served either by personal delivery or sent by certified or registered mail, postage prepaid, addressed as follows: If to COUNTY: If to TOWN: County of Santa Clara Public Health Department Town of Los Gatos Town Manager Page 5 of 9 Agreement for Los Gatos Tobacco Retail Permit Program Sara H. Cody, MD Health Officer and Public Health Director 110 E. Main Street Los Gatos CA 95030 976 Lenzen Avenue San Jose, CA 95126 Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit in the mail. Either Party may designate a different person and/or address for the receipt of notices by sending written notice to the other Party. 14. Third Party Beneficiaries This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. 15. Entire Agreement This document represents the entire Agreement between the Parties with respect to the subject matter hereof. All prior negotiations and written and/or oral Agreements between the Parties with respect to the subject matter of this Agreement are merged into this Agreement. 16. Amendments This Agreement may only be amended by a written instrument signed by the Parties. 17. Survival The rights and duties under the following provisions shall survive the termination or expiration of this Agreement: Section 6 – Indemnification and Insurance; Section 8 – Monitoring/ Records; Section 9 – Representation and Warranties; and Section 11 – Governing Law/Venue, and in any instrument, certificate, exhibit, or other writing attached hereto and incorporated herein. 18. Severability If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions and provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 19. Contract Execution Unless otherwise prohibited by law or County policy, the Parties agree that an electronic Page 6 of 9 Agreement for Los Gatos Tobacco Retail Permit Program copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the County. 20. Counterparts This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written below. Signed: County of Santa Clara: Town of Los Gatos Dave Cortese, President Date Laurel Prevetti Date Board of Supervisors Town Manager Approved as to Form and Legality: Jenny S. Lam Date Deputy County Counsel Attest: Megan Doyle Date Clerk of the Board of Supervisors Approved: Sara H. Cody, MD Date Health Officer and Public Health Director Page 7 of 9 Agreement for Los Gatos Tobacco Retail Permit Program Approved as to Form and Legality: _________________________ Robert Schultz Town Attorney Los Gatos Approved: Date John Cookinham Date SCVHHS Chief Financial Officer Exhibits to this Agreement: Exhibit A: Scope of Work Page 8 of 9 Agreement for Los Gatos Tobacco Retail Permit Program Exhibit A County of Santa Clara – Town of Los Gatos Tobacco Retail Permit Partnership Description of Roles by Agency County of Santa Clara Department of Environmental Health 1. Send out permit applications to all existing retailers selling tobacco products and/or electronic smoking devices in the Town of Los Gatos and issue permits as necessary 2. Maintain database tracking system for all permitted tobacco retailers 3. Provide list of permitted tobacco retailers to Public Health Department and Town of Los Gatos on an annual basis or more frequently as requested 4. Collect required permit fees 5. Conduct at least one annual inspection of tobacco retailers to ensure compliance with local, state, and federal laws (except sales to minors) 6. Conduct follow up inspections if necessary 7. Keep records of inspection outcomes for each tobacco retailer and provide annual inspection report summaries to a single point of contact at the Public Health Department and the Town of Los Gatos 8. Take appropriate enforcement action if a violation is not corrected 9. Coordinate with Town of Los Gatos Police Department and Town Attorney when violations of sales to minors occur in order to take the appropriate enforcement action (may include fines and suspension of permit) 10. Conduct administrative hearings if retailer appeals violation; Director of Environmental Health or his/her designee serves as the Administrative Hearing Officer Public Health Department 1. Provide initial list of tobacco retail facilities to DEH 2. Obtain monthly list from Board of Equalization and Los Gatos Finance Department to establish current list of tobacco retailers and map for any new retailers 3. Map any new retailers to ensure meet requirements related to distance from schools, distance from existing tobacco retailers – provide timely comments to Town of Los Gatos Planning Department for new tobacco retailers whose plans have been routed. 4. Public Health will notify the Los Gatos Finance Department if a business has been denied a Tobacco Retail permit due to the ordinance requirements. 5. Proactively engage the business community so that they are aware of the TRL ordinance (e.g., effective date, requirements, fines/penalties) 6. Respond to requests for information from Los Gatos tobacco retailers and the public regarding requirements under the Tobacco Retail Permit ordinance 7. Meet with all related personnel to: (1) coordinate enforcement strategy; and (2) develop/ maintain policy and procedure for enforcement 8. Meet with all related personnel as necessary to: (1) coordinate post-compliance check strategy; and (2) next steps for violators Page 9 of 9 Agreement for Los Gatos Tobacco Retail Permit Program 9. Conduct outreach to impacted Los Gatos stakeholders (retailers, the public) if the County proposes any amendments to their current ordinance and engage with Los Gatos Town Attorney and Town Manager prior to outreach to notify them of any proposed changes; Town of Los Gatos Police Department 1. Conduct undercover decoy operations in coordination with the County with tobacco retailers once a year 2. Issue citations for violations of PC 308(a) 3. Immediately notify the County (Department of Environmental Health and Public Health) on outcomes of enforcement operations, particularly when violations of PC 308(a) occur 4. Provide any requested documentation or evidence as part of the Administrative Hearing should a retailer appeal a violation 5. Provide enforcement report summaries to a single point of contact at the Public Health Department and Department of Environmental Health Finance Department 1. Route business licensing applications for any new tobacco or e-cigarette retailers to a designated contact at the County Public Health Department to obtain input. Any business that sells a tobacco or e-cigarette product is subject to the requirements under the Tobacco Retail Permit ordinance. 2. Route new and renewal applications to County Public Health and Environmental Health to ensure there has not been a change in ownership at the business. 3. Provide information on Town of Los Gatos website in the section for business information, for where tobacco retailers can get more information on the requirements for selling tobacco in Los Gatos. 4. Act as a resource to other cities that may be interested in a similar partnership with the County. 5. Update ordinance as needed in collaboration with Town Attorney’s office.