HomeMy WebLinkAboutAgr 2008-01-01 (Marin Convention & Visitors Bureau)
02-05-/08 11:49 FROM-Marin Co,Visitors Bu 415-925-2063
T-686 P001/011 F-477{'
CC, I/vl _f~~0
~ /}2-!4/ 14:
J/-et e{,' /; ( 5/"~
, ,/ ,/} I' /J"
Tr 6 j'7 (ty j7/Lt
FAX FAX FAX A-J'f,hh
MARIN CONVENTION AND VISITORS
BUREAU
1 MITCHELL BLVD, SUITE B
SAN RAFAEL, CA 94901
(415) 925..2060..0FFICE
(415) 925-2063-FAX
info@visitmarin.org ..F
mark@visitmarin.org
TOTAL PAGES SENT- 11
TO: Ann Danforth
FROM: Mark Essman
DA TE: 2-5-08
RE: Contract
FAX #: (415) 435-2438
Hi Ann:
Contract enclosed. Any questions let me know.
Thank you)
Mark Essman
Marin Convention and Visitors Bureau
02-05-/08 11:49 FROM-Marin CO.Visitors Bu 415~925-2063
T-686 P002/011 F-477
AGREEMENT BETWEEN
THE MARIN CONVENTION AND VISITORS BUREAU
AND THE TOWN OF TIBURON TO
ADMINISTER THE TIBURON TOURISM BUSINESS
IMPROVEMENT DISTRICT
THIS AGREEMENT, made and entered into this 1 day January, 2008, between the
TOWN OF TIBURON, a municipal corporation ("Town')), and the MARIN CONVENTION
VISITORS BUREAU (MCVB), a non-profit corporation ("Corporationt~);
RECITALS
WHEREAS, TOWN and CORPORATION recognize that it is in the best interests of
TOWN Wld CORPORATION to promote tourism development;
WHEREAS, Section 36500 et seq. of the Streets and Highways Code of the State of
California (hereinafter "Code") authorizes Town to establish a Tourism Business Improvement
District ("District") to promote tourism;
WHEREAS, on June 6, 2007, at the request of lodging business owners within the Town
of Tiburon, he Town Council adopted Resolution No. 26-2007 ("Resolution"), declaring its
intention to fonn the Tiburon Tourism Business Improvement District and levy an assessment on
certain lodging businesses within the District (District)~
WHEREAS, the the Town Council held public hearings on an ordinance to fonn the
District ("Ordinance") on August 15,2007 and September 5,2007, and receiving no objections,
adopted the Ordinance at the latter meeting;
WHEREAS, the Ordinance provides that the Town may contract with the Corporation to
provide District Services;
WHEREAS, the Corporation represents a large number of lodging business owners
within the County and possesses the capacity to provide tourism promotion, and the Town will
receive one Board of Directors seat within the Corporation during the time of participation with
the Corporation;
WHEREAS, the Town and the Corporation desire to enter into this Agreement to set
forth the roles and responsibilities of the parties with respect to providing District Services.
NOW, THEREFORE) THE PARTIES AGREE AS FOLLOWS:
L CORPORATION OBLIGATIONS. The Corporation's obligations under this Agreement
shall be as follows:
Page 1 of 10
02-05-/08 11:49 FROM-Marin CO. Visitors Bu 415-925-2~63
T-686 P003/~11 F-477
A. Provide District Services. The Corporation shall provide, manage and administer all
District Services and provide an arumal District Budget Report, during the following time
periods (calendar years). The District Services are more fully described in Exhibit A,
which is attached hereto and incorporated herein by reference.
B. The Corporation shall be fully responsible for developing, implementing, directing and
operating the District programs as described in this Agreement) the Resolution and the
Ordinance.
C. Budgets. The Corporation shall submit to the Town its annual report budget information
for which the yearly assessments are levied and collected. The Corporation shall prepare
the budget in accordance with this Agreement, the Resolution and Ordinance and all
applicable requirements of the County of Marin and shall submit it to the Town within
the first quarter of each calendar year.
D. Annual 'Reports. The Corporation shall prepare and submit to the Town an annual report
for each calendar year for which assessments have been levied and collected. The
Corporation shall prepare the report in accordance with this Agreement, the Resolution
and Ordinance and all applicable requirements of the County of Marin. Said report must
be submitted to the County of Marin on or before September 30 of each calendar year as
per agreement with of the County Board of Supervisors and shall be submitted to the
Town of TibW'on within 60 days thereafter.
E. Independent Audit I Financial review. Corporation shall employ, at its sole expense, the
services of a qualified independent Certified Public Accountant who shan annually
examine the books, records, inventories and reports of Corporation and its officers and
employees who receive, handle or disburse funds obtained by Corporation from Town
pursuant to this Agreement. The Corporation shall have this review (rather than a full
audit) armuaIly. The Corporation will perform a full audit whenever requested by the
Town Manager.
F. Subcontracts. The Corporation shall administer all subcontracts necessary for providing
the District Services. The Corporation assumes responsibility for the contracting of, and
payment for, all support services as may be required. The Corporation shan comply with
all applicable State and Town laws and regulations.
G. Other Programs. The Corporation will continue to look for ways to improve the District
and enhance business opportunities for all District lodging businesses and the community
and business resources within the Town.
H. Assessment Records. The Corporation shall maintain a conlplete database, current to the
most recent tax year available, of all lodging businesses within the District. Said
database shall contain the following information for each lodging business: the address of
the lodging business and the name and address of the owner of the lodging business.
Said database shall be updated at least once each year during District operations to reflect
changed conditions and to accurately reflect the status of the lodging businesses. The
Page 2 of 10
02-05-/08 11:49 FROM-Marin Co. Visitors Bu 415-925-2063
T-686 P004/011 F-477
Town shall provide assistance in compiling information relative to lodging businesses in
the District.
I. Insurance Requirements. During the teon of this Agreement, the Corporation shall
maintain the following minimum insurance requirements:
(1) A comprehensive general liability insurance with minimum limits of $1,000,000
combined single limit (CSL), or $1,000,000 bodily injury per occurrence and
$300,000 property damage per occurrence covering all bodily injury and property
damage arising out of its operations, activities and' or special events, under this
Agreement.
(2) For vehicles owned by the corporation, automobile insurance covering all bodily
injury and property liability incurred during the performance of this Agreement with
minimwn coverage of $250,000 for property damage per accident, $500,000 for
bodily injury for each person, and not less than $2,000,000 for bodily injury per
accident; or $1,000,000 per accident combined single limit (CSt).
(3) Workers' compensation insurance covering all the Corporation's employees.
Said policies shall name Town as an additional insured and shall constitute primary, non-
contributory insurance as to Town, and their officers, agents and employees, so that any
other policies held by Town shall not contribute to any loss under said insurance under
the stated limits. Said policies shall provide for thirty (30) days prior written notice to
Town of cancellation or material change.
The Corporation will submit certificates and endorsements, or other sufficient proof of
compliance with these insurance provisions to the Town Attorney within 10 days of the
date of this Agreement.
J. Corporation Status. The Corporation shall perform its obligations under this Agreement
and shall be responsible for any federal, state, and local taxes and fees applicable to
payments made to the Corporation hereunder. The Corporation shall take all actions
necessary to maintain itself as a corporation in good standing with the State of California.
Acting in the capacity Town ofan independent contractor, the Corporation's employees
and subcontractors are not Town employees and are not entitled to or eligible for any
benefits provided by the Town.
K. Assignment. The Corporation covenants and agrees that it will not assign or transfer its
rights or obligations Wlder this Agreement, either in whole or part, without first obtaining
the written consent of the Town; such consent must be granted or denied at the sole
discretion of the Town. Any attempt by the Corporation to assign or transfer its rights or
obligations without such written consent shall be null and void.
L. Assets of the District. Pursuant to State law, in the event that the District is
disestablished or otherwise discontinued, then the existing assets shall only be used: (1)
Page 3 of 10
02-05-/08 11:50 FROM-Marin Co. Visitors Bu 415-925-2063
T-686 P005/011 F-477
to pay the Town any outstanding sums due to it from the District; and, (2) said assets
shall be dispersed only to the owners of assessed lodging businesses in the District, in
amounts proportionate to the amoWlts of assessments paid.
M. Independent Contractor. Corporation (including the Corporations' employees) and the
Corporation President are independent contractors and no relationship of employer-
employee exists between the parties hereto; and specifically between the Town and the
Corporation President.
The Corporation President and/or the Corporation's assigned personnel shall not be
entitled to any benefits payable to employees of the Town. The Town is not required
to make any deductions or withholdings from the compensation payable to the
Corporation under the provisions of the Agreement and neither is required to issue
W-2 Forms for income and employment tax purposes for any of the Corporations'
assigned personnel.
The Corporation hereby indemnifies and holds the Town hannless from any and aU
claims that may be made against the Town based on any contention by a third party
that an employer-employee relationship exists by reason of this agreement.
N. Corporation Not Agent of the Town. Neither the Corporation nor any of the
Corporation's employees, agents, representatives or subcontractors are or shall be
considered to be agents of the Town in connection with the petfonnance of the
Corporation's obligations under this Agreement, or for any other purpose.
o. Conflicts of Interest. The Corporation and the Co'cporation President certify as of the
date of execution of this Agreement they do not have any actual, apparent, or potential
conflicts of interest relative to the service to be provided pursuant to this Agreement. The
Corporation and the Corporation President shall advise the Town of any actual apparent~
or potential conflicts of interest that may develop subsequent to the date of execution of
this Agreement.
2. TOWN OBLIGATIONS. The Town's obligations Wlder this agreement shall be as follows:
A. The Town shall effect the timely collection of the annual assessments from lodging
businesses within the Town; provide general assistance, clarification, or information to
the Corporation, the assessed lodging businesses and the public at large; maintain an
ongoing liaison with the Corporation, including the coordination of services from various
Town departments; authorize supplemental assessments, adjusted assessments,
exemptions, reductions or refunds to be issued by the Town; and, direct the disbursement
of assessment funds to be made to the Corporation to fund District Services.
Notwithstanding anything in this Agreement, the Town shall have the right to retain a
portion of the assessment funds to recover its administrative costs, as provided in the
Ordinance.
Page 4 of 10
02-05-/08 11:50 FROM-Marin CO.Visitors Bu 415-925-2063
T-686 P006/011 F-477
B. Billings and Collections. The Town will coordinate the levy, the placement, and the
collection of all assessments for the District.
C. Disbursements to the Corporation. The Town shall disburse assessments collected from
lodging businesses within the District to the Corporation on a quarterly basis, no later
than March 30lh, June 30th, September 30th and December 30th of each year.
D. Collection / Enforcement. The Town shall be responsible for the collection of
assessments. The Corporation shall cooperate with the Town in the collection of any past
due charges and will assist the Town by attending all court appearances that may be
required.
3. GENERAL PROVISIONS
A. General Fund Not Liable. Neither the General Fund of the Town nor any other fund or
monies of the Town, except for the actual District assessments received, shall be liable
for payment of any obligations arising from the Agreement. Said obligations are not
debts of the Town, nor a legal or equitable pledge, charge, lien or encumbrance upon any
of their property or upon the income, receipt or revenues. This Agreement embodies all
of the Corporation's reimbursement rights and no fUrther note or other document shall be
required to be executed by the Town.
B. Indemnification and Hold Hannless. To the fullest extent permitted by law, the
Corporation shall defend, indenmify, and hold harmless the Town, and their officers,
employees, and agents from and against all losses and expenses (including reasonable
attorneys' fees) incurred by reason of liability imposed by law upon the Town for
property damage, personal injury, or bodily injury, including death, at any time resulting
therefrom, sustained by any person or persons on account of damage to person or
property, including loss of use thereof, arising out of or in the consequence of the
Corporation's perfonnance pursuant to this Agreement, provided such injuries to persons
or damage to property are due to the Corporation's willful or negligent acts or omissions
of the Corporation.
To the fullest extent pennitted by law, the Town shall defend, indemnify, and hold
hannless the Corporation, its officers, employees, and agents from and against all losses
and expenses (including reasonable attorneys' fees) incurred by reason of liability
imposed by law upon the Corporation for property damage, personal injury ~ or bodily
injury, including death, at any time resulting therefrom, sustained by any person or
persons on account of damage to person or property, including loss of use thereof, arising
out of or in consequence of the performance of this Agreement, provided such injuries to
persons or damage to property are due to the negligent acts or omissions of the Town.
For purposes of this Paragraph I.H, references to the Corporation and to the Town shall
include their respective officers, employees, agents, volunteers, or any other persons
under the their respective direct supervision and control, or of its subcontractors, or any
one directly or indirectly employed by either of them.
Page 5 of 10
02-05-/08 11:50 FROM-Marin Co. Visitors Bu 415-925-2~63
T-686 P007/011 F-477
C. Notices. Any notice, tender, deliverYt or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given when delivered
or mailed in the manner provided in this paragraph to the following persons:
Town:
Town of Tiburon
1505 Tiburon Blvd
Tiburon, CA 94920
Corporation:
Marin Convention and Visitors Bureau
] Mitchell Blvd~ Suite B
San Rafael, CA 94903
Attn: President
Any party may change that party's address for these purposes by giving written notice of
the change to the other party in the marmer provided in this section. If sent by mail, any
notice or other commWlication shall be effective 48 hours after it has been deposited in
the United States mail, with postage prepaid, and addtessed as set forth above.
D. Term, Termination and Amendments. The term of this Agreement shall be from the date
of execution first noted until otherwise revised, unless the District is terminated earlier in
which case this Agreement shall otherwise terminate. The Corporation may request an
extension of the ending date in order to allow the Corporation to expend remaining
District funds for District Services in the event that all District funds are not received and
spent by December 31, 2010 or other earlier tennination date. Said extension of the
ending date of this Agreement shall not be effective except by mutual agreement of the
parties and set forth in writing, signed by both parties. A failure to object to a breach of
this Agreement shall not constitute an amendment thereof, nor shall it waive any future
breach of this Agreement. If the Town finds there has been misappropriation of funds,
malfeasance, or a violation of law in connection with the management of the District
pursuant to Streets and Highways code section 36670, the Town may also tenninate this
Agreement by mailing a notice in writing to the Corporation, giving the Corporation sixty
(60) days' notice of the Town's intent to so terminate. The termination shall be effective
on the 61 st day after providing such notice. This Agreement shall then be deemed
terminated, and no further tUnding shall be allocated by the Town to the Corporation.
D. Attorneys Fees. If the services of any attorney are required by any party to secure the
performance of this Agreement, or otherwise upon the breach or default of either party, or
if any judicial remedy or arbitration is necessary to enforce or interpret any provision of
this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs
and other expenses, in addition to any other relief to which such party may be entitled. It
is Wlderstood that for ,purposes of calculating reasonable attorney fees for the Town, that
the Town Attorney's billing rates shall be calculated at the prevailing rate.
Page 6 of 10
02-05-/08 11:50 FROM-Marin Co,Visitors Bu 415-925-2063
T-686 P008/011 F-477
E. Governing Law. The laws of the State of California shall govern this Agreement and the
legal relations between the parties. In the event that any dispute arising concerning this
Agreement, the County of Marin shall be the venue for resolving such dispute.
F. Waiver. The waiver by any party to this Agreement of breach of any provision of this
Agreement shall not be deemed a continuing waiver or a waiver of any subsequent breach
of that or any other provision of this Agreement.
G. Entire Agreement. This document, including the Resolution and the Ordinance, contains
the entire Agreement between the parties and supercedes whatever oral or written
understanding they may have had prior to the execution of this Agreement.
H. Severability. If any portion of this Agreement or the application thereof to any person or
circumstance shall be invalid or Wlenforceable to any extent, the remainder of this
Agreement shall not be affected thereby and shall be enforced to the greatest extent
pennitted by law.
I. Counterpart. This agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and will become effective and binding upon the
parties at such time as all of the signatories hereto have signed a counterpart of this
Agreement. All counterparts so e)tecuted shall constitute one Agreement binding on all
of the parties hereto, notwithstanding that all of the parties are not signatory to the same
counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be ex.ecuted on the
day and year first above written.
MARIN CONVENTION AND VISITORS BUREAU
By: #!?~~
President
TOWN OF TIBURON
By: ~'~
Margaret rran, Town Manager
ATTEST: /- //-'
n26~7?1/~
Diane Crane-Iacopi, Town Clerk
Page 7 of JO
02-05-/08 11:50 FROM-Marin Co. Visitors Bu 415-925-2063
T-686 P009/011 F-477
APPROVED AS TO FORl\.1:
'~'& //
Am1-D~rth,('~~omeY
Page 8 of 10
02-05-/08 11:50 FROM-Marin CO.Visitors Bu 415-925-2063
T-686 P010/011 F-477
Exhibit A
SCOPE OF SERVICES
1. The Corporation will fund projects, and activities that benefit the lodging establishments
within the Tiburon Tourism Business Improvement District ("ITBID")and within the
Town ofTiburon. This includes promotion of the TTBID region as on overnight tourism
destination (particularly mid-week and during the off-season), plus the development of a
tourism management program and the provision direct visitor services. These services
shall be rendered under the direction of the Advisory Board of the Marin County Tourism
Business Improvement District ("MCITBID"), which shall include at least one
representative from the TTBID.
2. The Corporation will develop and maintain financial records related to receipt and/or
expenditures of all funds received from the Town and/or the TIBJD. The Town has the
right to audit said funds at any time.
3. By October, 2008, the Corporation shall submit to the Town Manager or herlhis designee,
for Town Council approval, a summary report on actual expenditures and program
accomplislunents during the term of the contract.
4. By October 30, 2008, the Corporation shall submit summary reports conceming actual
expenses and program accomplishments during the term of this contract to each
participating city.
5. By October 30, 2008, the MCTIBID Advisory Board shall also submit to the Town
Clerk, and to the Town Manager, that infonnation as required by the State Street and
Highways Code, Section 36533 - 36542 (see attached) pertaining to the continuance of
the lTBID and the levy of assessments for the 2008 calendar year. The Corporation shall
have full responsibility fOf preparation of information and its costs required for
continuation of TIBID and the levying and collection of assessment, including non-
Town legal assi stance.
6. By October 30, 2008, preparation of a proposed Scope of Services for a 2009 the
Corporation ITown Agreement after consultation with the Town.
7. Without limiting the foregoing~ the Town will realize the following benefits:
a) The Corporation will dedicate 100% funding of the funds that the Town pays
pursuant to this agreement to promoting tourism in Tiburon.
b) The Town's representation on the MCTBID will be equal to that of MCTBID
members.
c) The Corporation will establish a website presence, with links to information
regarding the Town's tourism-related businesses.
Pa~e 9 ofl 0
02-05-/08 11:50 FROM-Marin Co. Visitors Bu 415-925-2063
T-686 P011/011 F-477
d) The Corporation will provide direct referrals to Town's tourism-related
businesses.
e) The Corporation will provide trade show opportunities/ex.posure
f) The Corporation will create and circulate support materials included in fulfillment
packages
g) The Corporation win create co-op promotional opportunities.
h) The Corporation will create networking/marketing opportunities with other
members.
i) The Corporation will create information regarding the Tovvn's tourism-related
businesses at industry/state/regional events.
j) The Corporation will create and maintain resources contact/information database.
k) The Corporation will create and maintain marketing/advertjsing opportunities on
a local, regional and national level.
1) The Corporation will create and maintain marketing exposure for both vacationers
and business travelers.
m) The Corporation will represent the Town with other associations to promote
tourism within the To'Wll.
n) The Corporation will keep a list of available rooms in the Town at the visitor's
center.
0) The Corporation will represent the Town at public meetings, events and other
functions that could stimulate tourism within the Town.
Page 10 of 10