HomeMy WebLinkAboutF-3c - Conference and Visitor's Bureau ContractBY THE CITY COUNC
CITY OF NEWPORT BE.
MAY 2 6 199?_
CITY COUNCIL
Agenda Item No. F3 (c)
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Kevin J. Murphy, City Manager f
SUBJECT: CONFERENCE AND VISITORS BUREAU CONTRACT C' - Z6�.39
PURPOSE:
To seek City Council approval of an agreement with the Newport Beach Conference and
Visitors Bureau (NBCVB).
FACTS:
1. The current agreement with the NBCVB expired on May 22, 1992 and in early
April the NBCVB requested renewal of the agreement. The renewal request
included some suggested changes to the current contractual language. The City
Attorney and I met with the NBCVB to discuss these changes and have drafted a
new agreement incorporating some of the changes.
2. Attached to this report is (1) the request of the NBCVB; (2) the original
agreement dated February 9, 1987; (3) the Modification Agreement dated May
1989; and (4) the new proposed agreement drafted by the City Attorney.
3. The major features of the new agreement are:
A. Term: The agreement provides for a continuing term with termination by
the City with 30 days notice to the NBCVB if they have acted improperly
or become financially insolvent. The agreement also provides either party
the right to terminate the agreement, without cause, with one year notice.
Finally, the agreement is considered automatically terminated if the City
or a court repeals the Visitors Service Fee.
B. City Payment: The agreement provides for the NBCVB to pay to the City
$50,000 annually in two equal installments for improvements or services
that directly benefit visitors that pay the fee. The agreement also provides
that the NBCVB pay any past outstanding amounts due to the City. It
appears that $25,000 is currently outstanding from 1990.
C. Reports: The NBCVB is required to annually report on their activities and
budget and submit an audit of their financial transactions.
RECOMMENDATION:
The City Council approve the revised agreement with the Conference and Visitors
Bureau.
April 13, 1992
(714) 253-2431
Honorable Mayor and
Members of the City Council
City of Newport Beach
Newport Beach City Hall
3300 Newport Boulevard
Newport Beach, CA 92663
/03
R'E CEIVE
APR 16 1992
CITY CLERX
CITY OF
NEWPORT BEACH
1250
RICHARD B. GARTRELL
President/CEO
NEWPORT BEACH CONFERENCE
& VISITORS BUREAU
366 San Miguel, Suite 200
Newport Beach, California 92660
(714) 644-1190 1 -800 -94 -COAST
FAX: (714)644-1180
Re: NEWPORT BEACH CONFERENCE AND VISITORS BUREAU
SERVICE FEE AGREEMENT
Dear Mayor Sansone and Members of the City Council:
The agreement between the Newport Beach Conference & Visitors Bureau
and the City, which among other things provides for the payment to the Bureau of a visitors
service fee to promote tourism in the City of Newport Beach, will expire on May 22, 1992.
On behalf of the Board of Directors of the Newport Beach Conference and Visitors Bureau,
I am hereby requesting the City Council to approve an extension of that agreement.
We are proposing that there be no fixed term subject to a twelve month prior
notice of cancellation unless it is earlier terminated for improper expenditure of funds,
failure to perform services or insolvency. Further, we are suggesting that the agreement be
modified to eliminate the requirement that prohibits the City Council from approving any
budget for the Bureau that proposes to spend 30% or more of the funds received from the
City for salaries or administrative expenses. Based on our past working experience, we do
not believe that this limitation is appropriate or necessary. Finally, we are asking that the
agreement be amended to allow the Bureau ninety days instead of sixty days to submit
annual audit report following the close of a fiscal year listing all expenses of the Bureau.
NEWPORT BEACH CONFERENCE & VISITORS BUREAU
366 San Miguel, Suite 200, Newport Beach, California 92660, (714) 644-1190 1 -800 -94 -COAST FAX: (714) 644-1180
Honorable Mayor and
Members of the City Council
April 13, 1992
Page 2
Attached to this letter is a proposed draft of an amended agreement which
incorporates these modifications. We are requesting your review and favorable approval of
this request at the next regularly scheduled meeting of the City Council. Representatives
from the Conference & Visitors Bureau will be present at that meeting to answer any
questions you might have regarding this amendment.
Vexy truly yours,
Tom Limberg, Ch�irman
Board of Directors
Newport Beach Conference
& Visitors Bureau
cc: Robert H. Burnham, Esq.
City Attorney
Date,_;_
C�g'IES SENT T0:
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AMENDMENT TO AGREEMENT
This Amendment to Agreement ("Agreement") is entered into between the City of
Newport Beach, a chartered municipal corporation ("City") and the Newport Beach Conference &
Visitors Bureau, a non-profit California corporation ("Bureau") to be effective on April 28, 1992 and
is made with reference to the following:
RECITALS
A. City and Bureau entered into an agreement dated February 9, 1987, in which
the City, among other things, selected Bureau to develop and carry out a program to promote tourism
in and serve the needs of visitors to, the City of Newport Beach (" 1987 Agreement"). A copy of the
1987 Agreement is attached as Exhibit A and incorporated by this reference.
B. On June 16, 1989, the City and Bureau modified the 1987 Agreement to amend
certain provisions of the 1987 Agreement. A copy of the 1989 Modification Agreement is attached as
Exhibit B and incorporated by this reference.
C. City and Bureau wish to further amend the 1987 Agreement and the 1989
Modification Agreement to reflect the current understanding between the parties.
NOW, THEREFORE, City and Bureau agree as follows:
1. Section 1 of the 1989 Modification Agreement entitled "Term" is hereby
amended to provide that this Agreement shall be extended from its current expiration date of May 22,
1992, and remain in effect thereafter subject to a twelve (12) month prior written notice of intent to
unless earlier terminated as provided in Section 10 of the 1989 Modification Agreement.
2. Section 6 of the 1987 Agreement entitled "Expenditure of Funds by Bureau" is
hereby amended to strike therefrom the following sentence, "The City Council will not approve any
budget that proposes to spend thirty percent (30%) or more of the funds received from the City for
salaries or administrative expenses."
3. Section 7 of the 1987 Agreement entitled "Records" is hereby amended to
change the period of time in which the Bureau must submit an audited report listing all expenses from
sixty (60) days to ninety (90) days following the close of a fiscal year.
04-07-92 12500-00042
G Adoe\ 152\920400002. AG R
4. Section 13 of the 1987 Agreement entitled "Notices" shall be amended to change
the address of the Bureau as follows: Newport Beach Conference & Visitors Bureau, 366 San Miguel,
Suite 200, Newport Beach, California 92660, Attention: President/CEO, telephone number
(714) 644-1190, facsimile number (714) 644-1180.
5. Except as amended by this Agreement and the 1989 Modification Agreement,
the terms and conditions of the 1987 Agreement shall remain in full force and effect and the 1987
Agreement, the 1989 Modification Agreement and this Agreement shall be read together as one
agreement binding on the parties with regards to the subject contained therein.
NOW THEREFORE, the parties have executed this Agreement to be effective
April 28, 1992.
APPROVED AS TO FORM
By:
Robert H. Burnham
City Attorney
NEWPORT BEACH CONFERENCE &
VISITORS BUREAU
IM
CITY OF NEWPORT BEACH, a municipal
corporation
By:
Phillip Sansone, Mayor
ATTEST:
By:
Wanda E. Raggio, City Clerk
04-07-92 12500-00042
G:\doc\152\920400002.AGR -2-
i
This Agreement, made and entered into this it day y of
February, 1987, by and between the CITY OF NEWPORT BEACH, a
municipal corporation and charter city ("City"), and NEWPORT
BEACH CONFERENCE do 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-
Exhibit A
and shall
Agreement.
1. Term:
This Agreement
continue until
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 5100,000.00, 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 Fundin?:
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 31.st and June
30th).
5. Bureau Reoorts:
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 terra
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.
S. 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, whether or not there is concurrent,
passive or active negligence on the part of the City or its
officers, agents, or employees; 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 the sole negligence or wilful misconduct of
the City, its employees, officers, agents or representatives.
10. Termination:
In addition to the provisions of Paragraph 3:
A. City shall have the right to terminate this
-5-
Agreement, effective on the date written notice is given to
Bureau, in the event of any of the following:
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'aot 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 no:tices required to be given by this Agreement
':fes
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: 1987 NEWPORT BEACH CONFERENCE'
AND VISITOR'S BUREAU
By:
DATE: 1987 And:
"Bureau"
DATE: 1987 CITY OF NEWPORT BEACH, a
municipal corporation
I O
10
By:
"City"
APPROVED, AS TO FO�
THIS; L ,DAY OF / �,��r�., 1987.
By:
if
y•C ty Attorney
-8-
1�
MODIFICATION AGREEMENT
P" - -
`.
The CITY OF NEWPORT BEACH, a municipal corporation and charter
city ("City") and the 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"), agree
as follows:
1. Original Contract. .
The Parties to this Agreement are also Parties to an
Agreement dated February 9, 1987 and pursuant to which the City
selected Bureau to develop and carry out a program to promote
tourism in, and serve the needs of visitors to, the City of
Newport Beach (1987 Agreement). A copy of the 1987 Agreement is
attached as Exhibit "A" and incorporated by reference.
2. Modification Permitted by Original Agreement.
Paragraph 14 of the 1987 Agreement provides for
modification if the amendments are in writing and signed by all
Parties.
3. Modification to 1987 Agreement.
The Parties agree that certain paragraphs of the 1987
Agreement shall be modified as follows:
follows:
A. Paragraph 1 shall be modified to read as
"1. Term:
This Agreement shall commence on April 1, 1987 and
shall expire May 22, 1992, unless earlier terminated as provided
Exhibit B
r
in Paragraph 10."
B. Paragraph 2, sub -paragraph D shall be amended to
read as follows:
"D. Bureau shall contribute sum of $50,000 per
year to City for the purpose of providing transportation
improvements that directly benefit visitors paying the service
fee. The annual $50,000 contribution shall be made in two equal
installments, with the first installment due September 30, 1989
and the second installment due March 30, 1990. Thereafter,
payments of $25,000 shall be made on September.30, 1990, May 3,
1991, September 30, 1991 and March 30, 1992. In addition to the
foregoing payments and within thirty (30) days after the date of
this Agreement, Bureau shall also pay City the sum of $100,000
which represents contributions required by the terms of the 1987
Agreement. In the event no visitor serving transportation program
is developed, City may use contributions received pursuant to this
Paragraph for any purpose consistent with the provisions of
Chapter 3.28 of the Newport Beach Municipal Code."
C. Paragraph 3 should be modified to read:
113. City Funding:
City shall pay the Bureau all funds received
pursuant to the Visitor's Service Fee Ordinance, less a sum equal
to 1% of those revenues which shall be retained by the City as
reimbursement for administrative time and expense. The City's
obligation to pay Bureau any funds shall cease if the Visitor's
Service Fee Ordinance is repealed or ruled invalid. City agrees
2
that no modification or repeal of the Visitor's Service Fee
Ordinance shall become effective during the term of this Agreement
unless required by Court order."
D. Paragraph 5 shall be modified to read as follows:
115. Bureau Reports:
Bureau shall provide City with a marketing plan and
an annual budget on or before April 1st of each year of this
Agreement. The Board of Directors of Bureau shall approve the
budget before it is submitted to City.. The marketing plan shall
specify -the goals and objectives of the Bureau during the upcoming
fiscal year and' the programs Bureau will implement to achieve
those goals and objectives. In addition, Bureau shall annually
submit a report to the City describing and/or evaluating the
following:
A. The services and programs offered by Bureau
during the preceding fiscal year;
B. The extent to which Bureau has achieved its
goals and objectives, with emphasis on increases or decreases in
occupancy rates during the preceding fiscal year as compared with
prior years and the extent to which any increase in room occupancy
rates can be attributed to programs or activities of Bureau; and
C. The amount and nature of expenditures during the
preceding fiscal year.
This report shall be submitted to the City on or
before August 31st."
E. Paragraph 10 shall be modified to read as follows:
3
1110. Termination:
In addition to the provisions of Paragraph 3, City
shall have the right to terminate this Agreement, effective on the
date written notice is given to Bureau, in the event any of the
following occurs:
A. Bureau has improperly expended funds provided by
the City pursuant to this Agreement;
B. Bureau has failed to perform the services
required pursuant to this Agreement;
C. Bureau has filed, or has taken or committed any
act preparatory to filing, a petition pursuant to the Bankruptcy
Act;
D. Bureau has become insolvent or committed any act
of insolvency."
4. Effect of Modification
Except as modified pursuant to this Agreement, the
terms and conditions of the 1987 Agreement remain in full force
and effect. In the event of any conflict or inconsistency between
the provisions of this Modification Agreement and the 1987
Agreement, the provisions of this Modification Agreement shall
control in all respects.
Date: L�141`j
Date:
1989 NEWPORT BEACH CONFERENCE
AND VISITOR'S BUREAU
"BUREAU"
By:
A'���nd:
4
Date:
APPROVED AS TO FORM
THIS DAY OF MAY, 1989.
CITY ATTORNEY
Robert H. Burnham
5/17/89
CITY OF NEWPORT BEACH, a
municipal corporation
"CITY"
By: kk Q �k�
Mayor
ATTEST:
Z�
City Clerk
E