Loading...
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'