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HomeMy WebLinkAboutF-9d - Conference and Visitor's Bureau AgreementCITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY MEMORANDUM May 17, 1989 Item No. F -9(d) OY 7-7 ;ITY COUNCIL CITY 41f NEWPORT SEAM., M AY 2 2 1989 TO: Mayor and Members of the City Council FROM: Robert H. Burnham SUBJ: Conference and Visitor's Bureau Agreement On April 24, 1989, the City Council directed staff to prepare amendments to the 1987 Conference and Visitor's Bureau Agreement. The modifications include an extension of the term of the Agreement, a requirement for a $50,000 annual contribution for transportation purposes, and a change in the date on which the Bureau is required to submit an evaluation report. An amended agreement reflecting these modifications is attached to this memo. The Amended Agreement also requires the Bureau to pay approximately $100,000 in funds that have accrued under the 1987 Agreement. RECOMMENDATION: � It is recommended that the City Council authorize the Mayor and City Clerk to execute the Modification Agreement attached to this memo. Robert H. Burnham City Attorney RHB:jg Attachment (3v EXHIBIT "A" Al1R1171WMV `P )4 - This Agreement, made and entered into this Z—I' day of February, 1987, 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 of Newport Beach, 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 Council has determined that the Bureau has special knowledge and experience necessary to promote tourism in, and serve the needs of visitors to, Newport Beach; C. The City Council has determined that the Bureau's promotional activities are likely to substantially increase transient occupancy tax revenue and sales tax revenue; and D. The City Council has determined that funding of Bureau activities will be a significant benefit to the City of Newport Beach. NOW, THEREFORE, the parties agree as follows: -1- I . Term: This Agreement and shall continue until Agreement. shall commence on April 1, 1987, terminated as provided in this 2. Bureau Services: Bureau shall develop, plan, carry out and supervise a program to promote tourism in, and serve the needs of visitors to, the City of Newport Beach. Bureau, in implementing this plan, shall, at a minimum, do the following: A. Maintain suitable quarters and employ competent personnel to properly carry out the promotional activities; B. Prepare and distribute, by way of the media, direct mail or hand out, brochures, publications and guides that inform prospective tourists and visitors of the recreational assets of Newport Beach; C. Develop marketing programs with an emphasis on increasing business and visitor trade during the off-peak season (October through May). D. On or before May 1, 1987, Bureau will prepare a study designed to analyze the need for a trolly system to serve the City of Newport Beach. Although City desires to give Bureau considerable flexibility in preparing said study, it is the intent of City to require that the study is to address need, a pilot program if such a program is warranted, trolley size, routes, start up dates, schedules, advertising programs, management and budgets. It is further intended that the Bureau -2- will be responsible for providing a minimum of $100,000.00, per annum, from direct contributions and advertising revenues and that City financial participation will be commensurate with services provided as determined by City. 3. City Funding: City shall pay the Bureau all funds received pursuant to the "Service Provision Fee Ordinance," less a sum equal to one (1%) percent of those revenues to defray the City's administrative costs. The City's. obligation to pay Bureau any funds shall cease if the Service Provision Fee Ordinance is repealed or ruled to be invalid. Bureau acknowledges the City Council has the full discretion to repeal the Service Provision Fee Ordinance and, by this Agreement, gives up any right to contend that repeal of the Ordinance is prohibited for any reason, including, but not limited to, impairment of this Contract. 4. Manner of Payment: Funds due Bureau pursuant to this Agreement shall be paid on or before the thirty-fifth (35th) day following the close of each quarter during the fiscal year (quarter closure dates are September 30th, December 31st, March 31st and June 30th). 5. Bureau Reports: In addition to the duties specified in Section 2 of this Agreement, Bureau shall provide the City with a marketing plan and annual budget on or before April 1st of each year. The budget shall first have been approved by the Board of Directors of Bureau. The marketing plan shall specify the goals and objectives of Bureau during the fiscal year, and the methods -3- Bureau will use to achieve those goals and objectives. In addition, during January and July of each year commencing with 1988, the Bureau shall submit a report to the City evaluating the success of the Bureau in increasing tourism and related activities during the preceding six months. Said report shall include, but not be limited to, a complete breakdown on the expenditure of funds, a comparison of room occupancy rates for the prior six months as compared to other comparable periods, increased tax revenues which can be traced directly or indirectly to the promotion program and an analysis of costs or problems resulting from increased visitation as they relate to police, fire and other services provided by the City. 6. Expenditure of Funds by Bureau: Bureau shall expend funds provided by City in accordance with a budget submitted to, and approved by, the City Council. The City Council will not approve any budget that proposes to spend 30% or more of the funds received from the City for salaries or administrative expenses. With the prior approval of the City Manager, Bureau may transfer funds, or make expenditures, allocated for one element of the budget to another element so long as the basic goals and objectives of the tourist development program are not impaired. 7. Records: Bureau shall prepare and maintain, during the term of this Agreement, and for 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 submit an audited report sixty (60) days following the close of a fiscal year, listing all expenses of said Bureau. City shall, during Bureau's regular business hours, -4- have the right to audit and review all records maintained by the Bureau. 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 for 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, render the services required by this Agreement and maintain its 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 agents, employees, subcontractors, or representatives, pursuant to this Agreement, provided, however, Bureau's duties under this paragraph shall not extend to any claims, losses, damage, liability, lawsuits, judgments, costs, fees and expenses arising from any activity with respect to which there is no negligence or wilful misconduct on part of Bureau. 10. Termination: In addition to the provisions of Paragraph 3: A. City shall have the right to terminate this Agreement, effective on the date written notice is given to Bureau, in the event of any of the following: -5- 1. Bureau has improperly expended funds provided by the City pursuant to this Agreement; 2. Bureau has failed to perform the services required of it pursuant to this Agreement; 3. 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. 4. Bureau has become insolvent or committed any act of insolvency. B. City shall have the right to terminate this Agreement by giving ninety (90) days' written notice. 11. Independent Contractor: The parties agree that Bureau, and its officers, employees and representatives, while engaged in the performance of duties required by this Agreement, is an independent contractor, and not an officer, agent or employee of the City. 12. Assignment: Bureau shall not assign this Agreement, nor the right to receive any monies pursuant to this Agreement, without the prior written consent of the City. 13. 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 been given when deposited in the United States mail, certified and postage prepaid, and addressed to the party to be served as follows: TO CITY: CITY OF NEWPORT BEACH Attention: City Manager's Office 3300 Newport Boulevard Newport Beach, CA 92663 TO BUREAU: NEWPORT BEACH CONFERENCE & VISITOR'S BUREAU Attention: Executive Director 4340 Campus Drive Newport Beach, CA 92660 14. Complete Agreement: This document represents the entire Agreement between the City and Bureau and supersedes all prior negotiations, representations or agreements, either oral or in writing. This Agreement may be amended only by a written instrument signed by the City and the Bureau. DATE: fb&-V��( 21 , 1987 NEWPORT BEACH CONFERENCE AN S I TOR' SUR EAU By: ��Vvl�rN G DATE: Tjjle44rz_Y 274 , 1987 An "Bureau DATE: t�f l `� Z�7 , 1987 CITY OF NEWPORT B EACH , a muniriDal CONDoration A M. City ATTEST: City Clerk -7- APPRO E AS TO FORM THIS DAY OF 1987. By: Cifty Attorney r'