HomeMy WebLinkAboutC-2638 - Agreement for Visitor's Service FeeNEW
m FIRST AMENDMENT TO AGREEMENT BETWEEN
C�
CITY OF NEWPORT BEACH AND THE
NEWPORT BEACH CONFERENCE & VISITORS BUREAU
This first amendment to agreement is entered into this 10`h 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 1s' 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:
ity Attorney
for the City of Newport Beach
ATTEST:
DU�Va,,�' P
Leilani Brown,
City Clerk /row
h
l
CITY O}'NEWPORT EACH,
A Murr%ival Comforatibn'
By: .: `
Mdy&r
for the City of Newport Beach
NEWPORT BEACH
CONFERENCE AND VISITOR
Title: Y Ee bI
Print Name: CSR�d
By: 2n .
(Financial Officer)
Title: Cor)&llcr
Print Name: fic"�ae% M. lied
AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
AND THE NEWPORT BEACH
CONFERENCE & VISITOR'S BUREAU
This AGREEMENT, made and entered into this 12t" 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, THEREFORE, the Parties agree as follows:
1. Term
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) Payment: City shall pay the Bureau 18% of the total Tax Collected to
operate the programs described in Paragraph 2(b) and increase the amount
of 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 20t" 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
obj ectives.
(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. Expenditure 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.
7. Recordkeeping
Bureau shall prepare and maintain, during the term 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. Independent 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 ng ment
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 prior
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
Attn.: City Manager's Office
3300 Newport Blvd.
P.O. Box 1736
Newport Beach, CA 92659-1768
To Bureau: Newport Beach Conference & Visitor's Bureau
Attn.: President/CEO
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:
F
Marta Hayden
President/CEO
as to form:
City Attorney
CITY OF NEWPORT BEACH:
By. 44tn
Tod W. Ridgeway
Mayor
Attest:
e2 d-R,7u fin/
City Clerk
NEWPORT BEACH CONFERENCE & VISITORS BUREAU
Mission Statement
To gain and retain clients, thereby contributing to the economic fabric of the community,
through solicitation of conferences, tour groups, and other related group business; and to engage
in visitor promotions which generate overnight stays and increase visitors' spend.
Key Obiectives
• To create a destination image for Newport Beach
• To market Newport Beach as a destination for meetings and leisure travel
• To represent the hospitality industry within the community to visitors
• To provide member referrals
Focus Areas
Conference Sales
This department actively "sells" our area to meeting planners through database marketing, direct
sales, and trade show participation. Once a client has booked a future meeting here, the Bureau
is able to provide that client with equipment and promotional materials through our Convention
Services Department.
Tourism Sales
Tourism sales promotes the Newport Beach area domestically and internationally to travel
planners and tour wholesalers, as well as consumers. We work closely with Bureau members on
tourism promotions, trade shows, and sales trips to ensure increased exposure and additional
visitors to our area. Advertising plays a key role in getting the word out.
Communications
This function promotes Newport Beach through the media through a public relations effort,
reaching meeting planners, association members, travel agents and consumers. A primary
objective of Communications is to gain exposure for Newport Beach through travel articles,
media visits, local national and international television coverage.
Membership
The Membership Department's main purpose is to solicit and retain membership support from
the private sector for the purpose of strategic partnering, thus leveraging marketing dollars and
providing an additional source of business for the membership via visitor referrals.
Newport Beach Conference & Visitors Bureau
Provides the Following Marketing Tools to Our Clients:
• Visitors Guide
Magazine style publication on the Newport Beach destination
• Destination Planner
Guide for meeting and tour planners
• Newport Beach, The Colorful Coast
Rack style brochure introducing the Newport Beach area
• Membership Services Directory
Categorical listing of Bureau member services distributed to meeting and tour planners
• Web Page
• Info Teller located at the Bureau
• Newport Beach Video
• City Map
• Villages Brochure
• Inns Brochure
• Golf Brochure
• Newport Beach Restaurant Association Dining Guide
• 800 Number
• Tradeshow Booth
C -N , 9 (o U
AGREEMENT
This AGREEMENT, made and entered into this �= day of (�
1998, 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 3.28 of Newport Beach Municipal Code which
authorizes the collection of a visitors service fee to offset the cost of providing
visitor services and promote tourism within 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, Newport Beach;
D. 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
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., THEREFORE, the Parties agree as follows:
1. Term
This Agreement shall commence on the 1st day of September 1, 1996, and
shall continue through August 31, 2003, unless terminated as provided in Section
10.
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. 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 to promotional activities;
(b) The preparation of brochures, publications, guides and information that
inform prospective tourists and visitors of the recreational activities,
cultural assets, 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;
(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:
(i) all funds received pursuant to the "Visitors Service Fee
Ordinance," (Chapter 3.28 of the Newport Beach Municipal
Code), less a sum equal to one (1 %) of those revenues to defray
the City's administration costs.
(ii) A sum equal to 50% of the transient occupancy tax collections in
excess of $6,213,781 in 1996-97, not to exceed $400,000
annually. The $6,213,781 threshold and the $400,000 cap shall
be adjusted each year based on the change in the Consumer
Price Index (Los Angeles - Anaheim - Riverside), during the
previous twelve months.
2
(b) City's obligation to pay bureau is limited by the following:
(i) The City's obligation to pay Bureau any funds pursuant to
subparagraph 3 (a) (i) shall cease if and when the Visitor's
Service Fee Ordinance is repealed or ruled invalid. Bureau
gives up any right to seek any form of judicial relief or order
based on repeal of the Visitor's Service Fee Ordinance or the
failure of City to defend the Ordinance against a legal challenge.
(ii) The City's obligation to pay Bureau any funds pursuant to
Paragraph 3(a)(ii) shall cease if and when the City in its sole
discretion decides to place any previously adopted revenue
enhancing ordinance on the ballot for approval of electorate and
the measure is defeated, or a Court of competent jurisdiction
enters and order invalidating any such revenue enhancing
ordinance. Bureau acknowledges and agrees that this
Agreement does not create any legal obligation on the part of
the City to defend any of its revenue enhancing ordinances and
that the City Council reserves the right, in its sole discretion, to
repeal any such ordinance in the event of a legal challenge.
(iii) If the City is required by any validly issued Court Order to refund
any portion of the amount ordered to be transient occupancy
taxes collected by City, Bureau agrees that City may deduct
from any payments made pursuant to Paragraph 3(a)(i) the
portion of the refund that was paid to Bureau.
4. Manner of Payment
(a) Funds due Bureau pursuant to the provisions of subparagraph 3 (a) (i)
shall be paid on a monthly basis, and on or before the 20th day of the
month subsequent to collection.
(b) Funds due Bureau pursuant to the provisions of subparagraph 3 (a) (ii)
shall be paid within sixty (60) days following the expiration of the
relevant 12 month period.
3
5. Bureau Reports
(a) Bureau shall provide City with a marketing plan and an annual budget
at the second Council Meeting in July 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 proceedings fiscal year.
6. Expenditure 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 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
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 ordinance with generally accepted accounting principles. The
City shall have the right, subject to reasonable written notice and one time
each calendar year 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
4
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,
whether or not there is concurrent, passive or active negligence on the party
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 (30) days' 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
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.
11. Independent Contractor
The parties agree that Bureau, and its officers, employees and
representatives, while engaged in 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, or the right to receive any monies
pursuant to this Agreement, or the Visitors Service Fee Ordinance, without
the prior 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 legally adequate justification for any City
refusal to consent to an assignment of the rights and/or duties of this
Agreement.
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:
6
TO CITY: City of Newport Beach
Attn.: City Manager's Office
3300 Newport Boulevard
P.O. Box 1736
Newport Beach, Ca 92659-1768
TO BUREAU: Newport Beach Conference & Visitor's Bureau
Attn: President/ CEO
3300 West Coast Highway
Newport Beach, Ca 92663
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.
In Witness whereof, the Parties are deemed to have executed this Agreement
effective on the day and year first written above.
Conference and Visitors Bureau:
By . ��I�
Title
C, y e B h'
i
By
Th(W C. tdEwardF
Title
Ap' roved as to form: May
f
City Attorney
AGREEMENT
This AGREEMENT, made and entered into this 8(k day of ,
1996, by and between the CITY OF NEWPORT BEACH, a municipal orpor tion
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
moneys accruing to the General Fund for the purpose of promoting
tourism and related activities;
B. The City has adopted Chapter 3.28 of Newport Beach Municipal Code which
authorizes the collection of a visitors service fee to offset the cost of providing
visitor services and promote tourism within 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, Newport Beach;
D. 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
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., THEREFORE, the Parties agree as follows:
1. Term
This Agreement shall commence on the 1st day of September 1, 1996, and
shall continue through August 31, 2001, unless terminated as provided in Section 10.
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. 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 to promotional activities;
(b) The preparation of brochures, publications, guides and information that
inform prospective tourists and visitors of the recreational activities,
cultural assets, 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;
(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:
(i) all funds received pursuant to the "Visitors Service Fee
Ordinance," (Chapter 3.28 of the Newport Beach Municipal
Code), less a sum equal to one (1 %) of those revenues to defray
the City's administration costs.
(ii) a sum equal to 50% of the transient occupancy tax collections in
excess of $6,213,781 in 1996-97, not to exceed $400,000
annually. The $6,213,781 threshold and the $400,000 cap shall
be adjusted each year based on the change in the Consumer
Price Index - Los Angeles - Anaheim - Riverside - during the
previous twelve months. City's obligation to make payments to
Bureau under this subsection (ii) shall terminate on August 31,
1998, unless extended in writing by mutual agreement of the
Parties.
(b) City's obligation to pay bureau is limited by the following:
0)
(i) The City's obligation to pay Bureau any funds pursuant to
subparagraph 3 (a) (i) shall cease if the Visitor's Service Fee
Ordinance is repealed or ruled invalid. Bureau gives up any
right to seek any form of judicial relief or order based on repeal
of the Visitor's Service Fee Ordinance or the failure of City to
defend the Ordinance against a legal challenge.
(ii) The City's obligation to pay Bureau any funds pursuant to
Paragraph 3(a)(ii) shall cease if and when the City and its sole
discretion decides to place any previously adopted revenue
enhancing ordinance on the ballot for approval of the electorate
and the measure is defeated, or a Court of competent
jurisdiction enters an order invalidating any such revenue
enhancing ordinance. Bureau acknowledges and agrees that
this Agreement does not create any legal obligation on the part
of the City to defend any of its revenue enhancing ordinances
and that the City Council reserves the right, in its sole discretion,
to repeal any such ordinance in the event of a legal challenge.
(iii) If the City is required, by any validly issued Court Order, to
refund any portion of the transient occupancy taxes collected by
City, Bureau agrees that City may deduct from any payments
made pursuant to Paragraph 3(a)(i) the portion of the amount
ordered to be refunded that was paid to Bureau.
4. Manner of Payment
(a) Funds due Bureau pursuant to the provisions of subparagraph 3 (a) (i)
shall be paid on a monthly basis, and on or before the 20th day of the
month subsequent to collection.
(b) Funds due Bureau pursuant to the provisions of subparagraph 3 (a) (ii)
shall be paid within sixty (60) days following the expiration of the
relevant 12 month period.
5. Bureau Reports
(a) Bureau shall provide City with a marketing plan and an annual budget
on or before June 5th of 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
3
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 first City Council meeting in October
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 proceedings fiscal year.
6. Expenditure 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 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
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 ordinance with generally accepted accounting principles. The
City shall have the right, subject to reasonable written notice, and one time
each calendar year 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 for
all such funds and the cost of the audit.
4
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,
whether or not there is concurrent, passive or active negligence on the party
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 (30) days' 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.
(b) City/Bureau Termination. Either party shall have the right to terminate
this Agreement, without cause, by giving the other party three hundred
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.
R
11. Independent Contractor
The parties agree that Bureau, and its officers, employees and
representatives, while engaged in 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, or the right to receive any moneys
pursuant to this Agreement, or the Visitors Service Fee Ordinance, without the
prior 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 legally adequate justification for any City
refusal to consent to an assignment of the rights and/or duties of this
Agreement.
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
Attn.: City Manager's Office
3300 Newport Boulevard
P.O. Box 1736
Newport Beach, Ca 92659-1768
TO BUREAU: Newport Beach Conference & Visitor's Bureau
Attn: President/ CEO
3300 West Coast Highway
Newport Beach, Ca 92663
0
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.
In Witness whereof, the Parties are deemed to have executed this Agreement
effective on the day and year first written above.
City Attorney
cat\pat\vi s itorys. d oc
7
Confere and Visitors Bureau:
l'
4
By
Title
City of Newport Beach
Title ,r`o W
63Y
AMENDED AND RESTATED AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT ("Agreement"), entered
into and effective on the 1st day of July, 1993, 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; and
B. The State Legislature has recognized the important
relationship between transient occupancy tax revenue and
the promotion of tourism as well as tourist attractions;
and
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, Newport
Beach; and
D. 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
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; and
F. The City and Bureau have entered into an agreement dated
June 3, 1992 (111992 Agreement") pursuant to which the
City is obligated to pay Bureau certain funds, and City
and Bureau desire to amend and restate the 1992 Agreement
to, among other things, revise the amount of City funding
and other material provisions of the Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Term.
This Agreement shall commence on the 1st day of July, 1993,
and shall continue until terminated as provided in Section 10.
City's obligation to make payments to Bureau pursuant to
1
subparagraphs 3(a)(ii) and (iii) shall terminate on September 1,
1996, unless further extended in writing by mutual agreement of the
parties.
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. 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 the
promotional activities;
(b) The preparation of brochures, publications, guides and
information that inform prospective tourists and visitors
of the recreational activities, cultural assets, 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, hand-
out or other means of distribution;
(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:
(i) all funds received pursuant to the "Visitor
Service Fee Ordinance," (Chapter 3.28 of the
Newport Beach Municipal Code), less a sum
equal to one (1%) of those revenues to defray
the City's administrative costs.
a sum not to exceed $625,000 per year in
fiscal years 1993-94, 1994-95, and 1995-96
which is to be determined by subtracting
$5,833,000 from a number equal to the total
amount of the transient occupancy tax revenue
collected by the City during that fiscal year.
Both amounts shall be increased, or decreased,
for fiscal years 1994-95 and 1995-96 based
upon changes in the Consumer Price Index
during the preceding 12 or 24 months,
respectively;
2
a sum not to exceed $500,000 per year in
fiscal years 1993-94, 1994-95 and 1995-96, and
which is to be determined by subtracting
$6,458,000 from the total amount of the
transient occupancy tax revenue collected by
the City during that fiscal year, and then
dividing the difference by two (2). Both
amounts shall be increased, or decreased, for
fiscal years 1994-95 and 1995-96 based upon
changes in the Consumer Price Index during the
preceding 12 or 24 months, respectively;
(b) City's obligation to pay Bureau is limited by the
following:
(i) The City's obligation to pay Bureau any funds
pursuant to subparagraph 3(a)(i) shall cease
if the Visitor's Service Fee Ordinance is
repealed or ruled invalid. Bureau
acknowledges the City Council has the full
discretion to repeal the Visitor Service Fee
Ordinance and is under no legal obligation to
defend the ordinance against a legal
challenge. Bureau gives up any right to seek
any form of judicial relief or order based on
repeal of the Visitor Service Fee Ordinance or
the failure of City to defend the ordinance
against a legal challenge.
The City's obligation to pay Bureau any funds
pursuant to subparagraph 3(a)(ii) or (iii)
shall cease if and when a court of competent
jurisdiction enters an order invalidating any
revenue enhancing ordinance adopted by the
Newport Beach City Council between May 1st and
July 1st, 1993. Bureau acknowledges and
agrees that this Agreement does not create any
legal obligation on the part of the City to
defend any such revenue -enhancing ordinance
and that the City Council reserves the right,
in its sole discretion, to repeal any such
ordinance in the event of a legal challenge.
Manner of Payment.
(a) Funds due Bureau pursuant to the provisions of
subparagraph 3(a)(i) shall be paid on a monthly basis,
and on or before the 20th day of the month subsequent to
collection.
3
(b) Funds due Bureau pursuant to the provisions of
subparagraph 3(a)(ii) and (iii) shall be paid within
sixty (60) days following the expiration of the relevant
12 month period.
5. Bureau Reports.
(a) Bureau shall provide City with a marketing plan and an
annual budget on or before April 5th of each year during
the term 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.
(b) Bureau shall, on or before the first City Council meeting
in October 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
An audit listing all revenues and expenses of the
Bureau during the preceding fiscal year.
6. Expenditure 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 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 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
one time each calendar year during the term of this Agreement, to
conduct an audit of the accounts, books and records of the Bureau.
0
Bureau shall fully cooperate with the 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 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, whether or not there is concurrent, passive or active
negligence on the party of the City of 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 (30) days' 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
Bureau has failed to perform the services
required of it pursuant to this Agreement; or
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.
5
(b) City/Bureau Termination. Either party shall have the
right to terminate this Agreement, without cause, by
giving the other party three hundred 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.
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, or the right to
receive any monies pursuant to this Agreement, or the Visitor
Service Fee Ordinance, without the prior written consent of the
City. Bureau acknowledges that the unique nature of the services
to be provided by the Bureau and the nature of the funds disbursed
to Bureau by City provide legally adequate justification for any
City refusal to consent to an assignment of the rights and/or
duties of this Agreement.
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
Attn: City Manager's Office
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92659-1768
TO BUREAU: Newport Beach Conference & Visitor's Bureau
Attn: President/CEO
366 San Miguel, Suite 200
Newport Beach, CA 92660
2
14. Complete Agreement.
This document represents the entire Agreement
and Bureau and supersedes all prior negotiations
or agreements, either oral or in writing. This
amended only by a written instrument signed by
Bureau.
Date: July 12, 1993
Date: % 1
kr\visitorb.agt-7/07/93
"CITY"
between the City
representations
Agreement may be
the City and the
City of Newport Beach, a municipal
corporation and Charter City
Mayor
"BUREAU"
Newport Beach Conference & Visitor's
Burea
r
B�.
%/
MODIFICATION AGREEMENT
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
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
Fd
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: (sl Ii(4g(j
Date:
1989 NEWPORT BEACH CONFERENCE
AND VISITOR'S BUREAU
"BUREAU"
By:
And: v'
4
Date:
APPROVED AS TO FORM
THIS DAY OF MAY, 1989.
CITY ATTORNEY
t
By:/- - -
Robe'rt H. Burnham
5/17/89
CITY OF NEWPORT BEACH, a
municipal corporation
"CITY"
my: w4wo
Mayor
ATTEST:
City
5
AGREEMENT
Y�-
This Agreement, made and entered into this 77-- 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 shall commence on April 1, 1987,
and shall continue until terminated as provided in this
Agreement.
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 0%) 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
Item
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: y—uL6 �{ 12:1�2 , 1987 NEWPORT BEACH CONFERENCE
T AN SITOR'S PUREAU
By:
DATE: 1987 An
Z--- "Bureau
DATE: fl�►�`� "�`1 , 1987 CITY OF NEWPORT BEACH, a
muni�iDal coftDoration A
City
ATTEST:
City Cierk
-7-
APPRO E AS TO FORM
THIS DAY OF , 1987.
By:
CiRA&
ttorney
M:1'