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HomeMy WebLinkAbout15 - Newport Beach Conference & Visitor BureauCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 15 March 10, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Homer Bludau, City Manager (949) 644 -3000 or hbludauc&- citv.newport- beach.ca.us Glen Everroad, Revenue Manager (949) 644 -3144 or everroad(&citv.newport- beach.ca.us SUBJECT: NEWPORT BEACH CONFERENCE & VISITOR'S BUREAU AGREEMENT ISSUE: Should the City renew the agreement with the Newport Beach Conference and Visitor's Bureau (NBCVB) as per the attached proposed amendment to the agreement? RECOMMENDATION: Staff recommends the City Council approve the attached proposed amendment to the agreement with the NBCVB, extending the terms of the existing agreement through June 30, 2014, and clarifying the revenues from which NBCVB will receive compensation. DISCUSSION: The City has contracted with the NBCVB to promote tourism for the City since 1987. The current five -year agreement expires on June 30, 2009 and provides the NBCVB with eighteen percent (18 %) of the total Visitor Service Fees (VSF) and Uniform Transient Occupancy Tax (TOT). The proposed amendment with the NBCVB would extend the terms of the existing agreement until June 30, 2014. The proposed amendment would also clarify that NBCVB's compensation will be calculated exclusively from Transient Occupancy Tax and Visitor Service Fee revenues, and not on any other tax, fee or assessment. The NBCVB is requesting a five -year agreement in order to coincide with the five -year term being proposed for the BID. Those hotels who are willing to become members of the BID desire for both terms to be the same. NBCVB Agreement March 10, 2009 Page 2 The City's Transient Occupant Tax revenues are very important to the City. Thus far, these revenues have held up well against budget assumptions, but during these difficult economic times, the competition among hotels in other cities attempting to gain a portion of Newport Beach's visitors will be unrelenting. It is important for our hotel industry to hold its own with the competition and continue to market this community in order to ensure local businesses which depend on tourist dollars do well. Environmental Review: Not applicable. Public Notice: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Funding Availability: The 2009/10 City budget will provide the funding of the agreement with the NBCVB. Alternatives: (1) Allow the existing agreement to expire. (2) Execute a new five -year agreement. Prepared by: Submitted by: &12�% 1 a4r��. GI erroad mer L. Bludau Revenue Manager City Manager Attachments: Proposed Amendment to NBCVB Agreement Current NBCVB Agreement FIRST AMENDMENT TO AGREEMENT BETWEEN CITY OF NEWPORT BEACH AND THE NEWPORT BEACH CONFERENCE & VISITORS BUREAU This first amendment to agreement is entered into this 10"" day of March 2009, by and between the City of Newport Beach, a municipal corporation and charter city ( "City "), and the Newport Beach Conference & Visitors Bureau, a non - profit corporation organized and existing under and by virtue of the laws of the State of California ( "Bureau "), with reference to the following facts: RECITALS A. On May 12, 2004, City entered into an agreement (the "Agreement") with the Bureau in which the Bureau would promote tourism in the City and the City would pay Bureau 18% of the Transient Occupancy Tax and Visitor's Service Fee . collected. B. The Agreement currently expires on June 30, 2009, with two (2) additional one (1) year renewal options. C. City and Bureau desire to amend the Agreement to extend the terms of the Agreement to June 30, 2014. Now therefore, City and Bureau hereby agree as follows: Term. Section 1 of the Agreement is hereby deleted in its entirety and replaced with the following: This Agreement shall commence on the 1" day of March, 2004 and shall continue through June 30, 2014, unless terminated earlier as provided herein." 2. Recital B of the Agreement is hereby deleted in its entirety and replaced with the following: The City has adopted Chapter 3.16 of the Newport Beach Municipal Code ( "Code ") that authorizes the imposition and collection of "Transient Occupancy Tax" as well as Chapter 3.28 of the Code that authorizes the collection of a "Visitor's Service Fee." For purposes of this AGREEMENT, the term "Tax Collected" shall only include the amount of Transient Occupancy Tax and Visitor's Service Fee actually collected by the City pursuant to Chapters 3.16 and 3.28 of the Code and shall not include any other tax, fee or assessment including, but not limited to, any fee paid to the City for the right to develop timeshares as required by Chapters 15.45 and 20.84. 3. Except as expressly modified herein, all other provisions, terms, covenants and conditions of the Agreement shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 on the date first written above. APPROVED AS TO FORM: A ..may C City A ttorney for the City of Newport Beach ATTEST: CITY OF NEWPORT BEACH, A Municipal Corporation M Mayor for the City of Newport Beach NEWPORT BEACH CONFERENCE AND VISITOR BUREAU: By: By: City Clerk (Corporate Officer) Print Name: (Financial Officer) Title: Print Name: AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THE NEWPORT BEACH CONFERENCE & VISITOR'S BUREAU 'Phis AGREEMENT, made and entered into this 12'n day of May, 2004, by and between the CITY OF NEWPORT BEACH, a municipal corporation and charter city ("City "), and NEWPORT BEACH CONFERENCE & VISITOR'S BUREAU, a non -profit corporation organized and existing under and by virtue of the laws of the State of California ( "Bureau "), is made with reference to the following facts: A. The City, pursuant to the provisions of its City Charter and Section 37110 of the Government Code of the State of California, has the power to expend monies accruing to the General Fund for the purpose of promoting tourism and related activities; . B. The City has adopted Chapter 3.16 of the Newport Beach Municipal Code (Code) that authorizes the imposition and collection of a "Transient Occupancy Tax "as well as Chapter 3.28 of Newport Beach Municipal Code that authorizes the collection of a Visitor's Service Fee. For purposes of this AGREEMENT, the term "Tax Collected" shall refer to the amount of 'Transient Occupancy Tax and Visitor's Service Fee actually collected by the City.; C. The City Council has determined that the Bureau has special knowledge and experience necessary to promote tourism in, and serve the needs of visitors to, the City of Newport Beach; D. 'The City Council has determined that the Bureau's promotional activities are likely to substantially increase the amount of the 'Tax Collected by the City. ; and E. The City Council has determined that funding of Bureau activities will be a significant benefit to the residents of, and visitors to, the City. NOW, TIIEREFORE,, the Parties agree as follows: I. Tenn This Agreement shall commence on the 1' day of March, 2004 and shall continue through June 30, 2009, unless terminated earlier as provided in Section 10. The City reserves the right, upon sixty (60) days written notice, to renew this Agreement for two additional one (1) -year terms provided that Bureau's performance is deemed acceptable to City, and that the renewal is agreeable to the Bureau. 2. Bureau Duties Bureau shall develop, plan, carry out and supervise a program to promote tourism in, and serve the needs of, visitors to the City as well as increase the amount of Tax Collected through their promotional activities. This promotional program shall, at a minimum, include the following: (a) The maintenance of suitable quarters and the employment of competent personnel to properly carry out its promotional activities; (b) The preparation of brochures, publications, guides and information that inform prospective tourists and visitors of the recreational activities, cultural assets, shopping and dining opportunities, and natural beauty of the City of Newport Beach; (c) The dissemination of the information described in subparagraph 2 (b) by way of the media, direct mail, handout or other means of distribution; and (d) The development and implementation of specific marketing programs designed to increase business and visitor trade in the City of Newport Beach. 3. City Funding (a) City shall pay the Bureau: (1) Pa ent: City shall pay the Bureau 19% of the total Tax Collected to operate the programs described in Paragraph 2(b) and increase the amount cif Tax Collected (Payment). The Payment shall be made in monthly installments. (2) Annual Adjustment: The City shall have the right, in its sole discretion, to adjust the Payment (increase or decrease the percentage of Tax Collected that is paid to the Bureau) at the end of each fiscal year for any reason including, without limitation, (i) the City's revenue assumptions prove to significantly higher or lower than forecast; (ii) the Bureau is unable to establish that its promotional activities have increased the amount of Tax Collected; or (iii) the adjustment is necessary or appropriate given the City's then current fiscal situation. 4. Manner of Payment Funds due Bureau pursuant to the provisions of 3 (a)(1) shall be paid on a monthly basis, and on or before the 200i day of the month. 5. Bureau Reports (a) Bureau shall provide City with a marketing plan and an annual budget at the second Council Meeting in July each year during the term of this Agreement. The Board of Directors of Bureau shall approve the budget before it is submitted to the City. The marketing plan shall specify the goals and objectives of Bureau during the upcoming fiscal year, as well as the programs Bureau will implement to achieve those goals and objectives. (b) Bureau shall, on or before the second City Council meeting in July each year during the term of this Agreement, submit to the City the following: (i) A report describing the services and programs offered by Bureau during the preceding fiscal year and an evaluation of the extent to which these services and programs have achieved the Bureau's goals and objectives; and (ii) an audit listing all revenues and expenses of the Bureau during the preceding fiscal year. 6. BxPenditure of Funds by Bureau Bureau shall expend funds provided by City in accordance with the budget submitted to, and approved by, the City Council. Bureau may transfer funds, or make expenditures, allocated for one element of the budget to another element so long as the basic goals of the Bureau's tourist development program are not impaired. Recordkeening Bureau shall prepare and maintain, during the tern of this Agreement, and for twelve (12) months after its termination, complete and accurate books, records and accounts showing the expenditures of all funds disbursed to it by City pursuant to this Agreement. Bureau shall maintain all accounts, books and records in accordance with generally accepted accounting principles. The City shall have the right, subject to reasonable written notice and no more than one time each calendar year during the term of this Agreement, to conduct an audit of the accounts, books and records of the Bureau. Bureau shall fully cooperate with City in the conduct of the audit. If, upon audit of the records, it is determined that funds provided by the City have been utilized other than as provided in the budget and as specified in this Agreement, Bureau shall reimburse City all such funds and the cost of the audit. 8. Licenses and Permits Bureau shall obtain and maintain any and all licenses and permits necessary to conduct its activities, to render the services required by this Agreement, and to maintain its office facilities. 9. Indemnification Bureau shall defend, indemnify, and hold harmless City, and its officers, employees, agents and representatives from and against any and all claims, losses, damage, liability, lawsuits, judgments, costs, fees, and expenses that may be claimed by any person or entity, or incurred by the City, and which arise out of, or are in any way related to, the activities of Bureau, its officers, employees, agents, subcontractors, volunteers, or representatives, pursuant to this Agreement, whether or not there is concurrent, passive or active negligence on the part of the City or its officers, agents or employees. However, Bureau's duties under this Section shall not extend to any claims, losses, damage, liability, lawsuits, judgments, costs, fees, and expenses arising from the sole negligence, fraud or willful misconduct of the City, its employees, officers, agents or representatives. 10. Termination (a) City Termination. City shall have the right to terminate this Agreement upon thirty days (30) written notice to Bureau in the event the City Council determines, based upon substantial evidence, that: (i) Bureau has improperly expended funds provided by the City pursuant to this Agreement; or (ii) Bureau has failed to perform the services required of it pursuant to this Agreement; or (iii) Bureau has filed, or has taken or committed any act preparatory to filing, a petition in bankruptcy or for receivership or reorganization under the Bankruptcy Act; or (iv) Bureau has become insolvent or committed any act of insolvency (b) City/Bureau Termination. Either party shall have the right to terminate this Agreement without cause, by giving the other party three hundred and sixty -five (365) days written notice of its intention to terminate. (c) Automatic Termination. This Agreement shall terminate, without notice to either party, within ninety (90) days after the repeal of, or a final court order invalidating, the Visitor Service Fee Ordinance. 12. Ind endent Contractor The parties agree that Bureau, and its officers, employees, agents, representatives and Volunteers, while engaged in performance of duties required by this Agreement, is an independent contractor, and not an officer, agent or employee of the City. 13. Assi ent Bureau shall not assign this Agreement, or the right to receive any monies pursuant to this Agreement, or the Visitor Services Fee Ordinance, without the prioi written consent of the City. Bureau acknowledges that the unique nature of the services to be provided by the Bureau and nature of the funds disbursed to Bureau by City provide adequate justification for any City refusal to consent to an assignment of the rights and/or duties of this Agreement. 14. Notices All notices required to be given by this Agreement shall be in writing and personally served or given by mail. Notice by mail shall be deemed to have given when deposited in the United States mail, certified postage prepaid, and addressed to the party to be served as follows: To City: City of Newport Beach Ann.: City Manager's Office 3300 Newport Blvd. P.O. Box 1736 Newport Beach, CA 92659 -1768 To Bureau: Newport !leach Conference & Visitor's Bureau Attn.: PresidentlCEO 110 Newport Center Drive, Suite 120 Newport Beach, CA 92660 15. Complete Agreement This document represents the entire Agreement between the City and Bureau and supercedes all prior negotiations, representations or agreements, either oral or in writing. This Agreement may be amended only by a written instrument signed by City and Bureau and approved as to form by the City Attorney. In Witness whereof, the Parties are deemed to have executed this Agreement effective on the day and year first written above. CONFERENCE & VISITORS BUREAU: By`,�y �ifarta Hayden President/CEO App Led as to form: d City Attorney CITY OF NEWPORT BEACH: Tod W. Ridgeway V Mayor Attest: d lr� City Clerk TOT Fiscal YTD Comparisons July 04 - Dec 08 $.., July -04 Aug -04 1,161,412.17 $ 209,054.19 August -04 Sep -04 1,054,865.56 - 10.62% $ 189,875.80 September -04 Oct -04 842,755.94 3.66% $ 151,696.07 October -04 Nov -04 1,374,376.22 6.35% $ 247,387.72 November -04 Dec -04 953,617.89 17.13% $ 171,651.22 December -04 Jan -05 785,339.00 - 20.15% $ 141,361.02 January-05 Feb -05 705,922.78 33.88% $ 127,066.10 February-05 Mar -05 709,972.39 1 9.84% $ 127,795.03 March -05 Apr-051 851,957.67 1 153,352.38 April -05 May -05 826,065.94 18.72% 5 148,691.87 May -05 Jun -05 800,967.78 - 18.58% $ 144,174.20 June -05 lul-05 826,476.89 10.75% $ 200,131.43 a li-'iu ��M��3'i34s��z..�x.,. *` CV8 represents 18% of UTOT paid since Mar 2004 July -07 Aug -07 1,258,857.44 - 10.62% $ 226,594.34 August -07 Sep-07 1,477,484.72 3.66% 5 265,947.25 September -07 Oct -07 2,123,626.22 6.35% $ 382,252.72 October -07 Nov -07 1,487,065.50 17.13% $ 267,671.79 November -07 Dec -07 598,140.83 - 20.15% $ 107,665.35 December -07 Jan -08 1,295,310.17 33.88% 5 233,155.83 January-08 Feb -08 993,464.94 1 9.84% $ 178,823.69 February-08 Mar -08 1,078,231.06 5.98% $ 194,081.59 March -08 Apr -08 1,108,006.50 18.72% $ 199,441.17 April -08 May -08 1,095,355.67 - 18.58% $ 197,164.02 May -08 Jun-081 1,111,841.28 10.75% $ 200,131.43 ��M��3'i34s��z..�x.,. *` CV8 represents 18% of UTOT paid since Mar 2004