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
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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
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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
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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
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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
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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
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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
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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
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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.