Loading...
HomeMy WebLinkAboutAgr 2013-03-20 (Marin Convention & Visitors Bureau)AGREEMENT BETWEEN THE MARIN CONVENTION AND VISITORS BUREAU AND THE TOWN OF TIBURON TO TERMINATE TOURISM BUSINESS IMPROVEMENT DISTRICT ADMINISTRATON AGREEMENT THIS AGREEMENT ("Agreement"), made and entered into thiso) day of March, 2013, between the TOWN OF TIBURON, a municipal corporation ("Town"), and the MARIN CONVENTION VISITORS BUREAU, a non-profit corporation ("Corporation"); RECITALS 1. On June 6, 2007, the Town Council adopted a resolution of intention to form the Tiburon Tourism Business Improvement District ("District"), to promote mid-week and off- season overnight lodging business, to promote the District as an overnight tourism destination, and to fund projects, programs, and activities that benefit lodging establishments within the District ("Resolution of Intention"). The operators of the two lodging establishments in the District, the Lodge at Tiburon and the Water's Edge ("District Hotels") actively supported the District's formation. 2. On September 5, 2007, after holding the hearings and meeting required by Section 36500 et seq. of the Streets and Highways Code of the State of California ("Code"), the Town Council adopted Chapter 7A of the Tiburon Municipal Code ("Ordinance"), establishing the District and levying an assessment on lodging businesses within the District to promote tourism and undertake the tourism-promoting activities described in the Resolution of Intention, all as authorized by the Code; 3. On January 1, 2008, the Town and the Corporation entered into an agreement whereby the Town would transfer ninety-nine percent (99%) of the assessment funds raised under the Ordinance ("District Funds") and the Corporation would expend the District Funds for the programs promoting tourism in the District, as set forth in the Resolution of Intention ("Original Agreement"). Pursuant to the Original Agreement and Section 7A-7 of the Ordinance, the Town would retain up to one percent of the assessment funds to defray its administrative expenses. 4. On April 6, 2011, at the request of the District Hotels and after compliance with the procedures mandated by the Code, the Town amended the Ordinance to increase the District assessment from one percent (1%) to two percent (2%) of gross room rental revenue. 5. The District Hotels have suggested, and the Town concurs, that the purposes of the District would be better and more directly served if the District Funds were devoted to a more locally-based effort to promote the Town's specific attractions as a desirable tourist destination. 6. Section 3.1) of the Original Agreement provides that the parties can mutually agree to terminate said agreement and the Town and the Corporation have agreed to end their current Pagel of 3 contractual amicably, with the expectation of future opportunities to work together to promote tourism in Marin County. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. TERMINATION OF ORIGINAL AGREEMENT. Effective February 1, 2013 ("Termination Date"), the Original Agreement shall be terminated and be of no further force and effect except as otherwise provided herein. 2. REMAINING DISTRICT FUNDS. Any unexpended District Funds remaining in the. Corporation's possession as of the Termination Date shall be transferred to the Town. 3. FUTURE DISTRICT FUNDS. The Town will retain all District Funds assessed and levied on or after the Termination Date and shall be fully responsible for the proper use of said funds. 4. CONTINUING OBLIGATIONS. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 3.B ("Indemnity and Hold Harmless") shall remain in full force and effect after the Termination Date with respect to any claims arising before the Termination Date. 5. GENERAL PROVISIONS A. 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 understood 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. B. 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. C. 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. D. 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. E. Severability. If any portion of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Page 2 of 3 Agreement shall not be affected thereby and shall be enforced to the greatest extent permitted by law. F. 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 executed 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 executed on the day and year first above written. MARIN CONVENTION AND VISITORS BUREAU By: President TOWN OF TIBURON By: Margaret q rran, Town Manager ATTEST: Diane Crane Iacopi, own Clerk APPROVED AS TO FORM: C Ann Danforth, Town Attorney Page 3 of 3 To: From: TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Mayor and Members of the Town Council Town Attorney Town Council Meeting March 20, 2013 Agenda Item: Subject: Recommendation to Approve Agreement Terminating Contract with the Marin County Visitors Bureau and Appoint Advisory Board for Tiburon Tourism Business Improvement District Reviewed By: BACKGROUND AND ANALYSIS In 2007, the Town formed the Tiburon Tourism Business Improvement District (TTBID) in response to a request from the Town's two hotels, the Lodge at Tiburon and the Water's Edge Hotel. The TTBID initially imposed assessments on lodging establishments equal to one percent of their gross revenues. In April of 2011, at the hotels' request, the Council raised the assessment to two percent. The TTBID's essential purpose is to finance tourism promotion activities that will increase occupancy at the Town's hotels. Originally, both the hotels and Town intended to use the funds to participate in the County-wide tourism promotion effort operated by the Marin County Visitors Bureau ("Visitors Bureau"). This intention is reflected in the ordinance that created the TTBID, codified as Chapter 7A of the Municipal Code and in the Agreement between the Town and the Visitor's Bureau dated January 1, 2008. However, the hotels have subsequently been in discussion with Town staff to explore whether the assessments would be more fruitfully spent on a locally-based program, an opinion that is held by the Downtown Vibrancy Committee. This would require an agreement between the Town and the Visitors Bureau to terminate the 2008 contract. The Visitors' Bureau has verbally agreed that it will enter into such an agreement. If the Council decides to divert the TTBID funds to locally based tourism promotion activities, the Town will assume full responsibility for the proper handling of the TTBID financing. This will involve establishing an Advisory Board, which would prepare annual reports in connection with the levy of assessments (the Council appointed two members to the County program's advisory board, but the Town would now need a stand alone board). The Board would prepare a report with recommendations for future tourism promoting programs, which report would come back to Council and become the basis for the formal modification of the activities that the Town may fund with TTBID assessments. If the Council decides to pursue the more local direction, Staff recommends that the Council form the Advisory Board at this time to be composed as follows: one representative to be appointed by each assessed business establishments (i.e., the Lodge at Tiburon and the Water's Edge Hotel), the Town Manager and one member of the Town Council. Staff would return at a later meeting with a draft ordinance approving the financing of a local program. RECOMMENDATION Staff recommends that the Town Council: 1. Move to approve and authorize the Town Manager to execute the Agreement Terminating the Contract with the Marin County Visitors Bureau. 2. Form an Advisory Board, to consist of the following: one representative to be appointed by each assessed business establishment (i.e., the Lodge at Tiburon and the Water's Edge Hotel), the Town Manager and one member of the Town Council. 3. Appoint a Council member to sit on the Advisory Board. Exhibit: 1. Draft Agreement 2. January 1, 2008 Agreement between the Town and Visitors Bureau Prepared By: Ann R. Danforth, Town Attorney DRAFT AGREEMENT BETWEEN THE MARIN CONVENTION AND VISITORS BUREAU AND THE TOWN OF TIBURON TO TERMINATE TOURISM BUSINESS IMPROVEMENT DISTRICT ADMINISTRATON AGREEMENT THIS AGREEMENT ("Agreement"), made and entered into this _ day of March, 2013, between the TOWN OF TIBURON, a municipal corporation ("Town"), and the MARIN CONVENTION VISITORS BUREAU, a non-profit corporation ("Corporation"); RECITALS 1. On June 6, 2007, the Town Council adopted a resolution of intention to form the Tiburon Tourism Business Improvement District ("District"), to promote mid-week and off- season overnight lodging business, to promote the District as an overnight tourism destination, and to fund projects, programs, and activities that benefit lodging establishments within the District ("Resolution of Intention"). The operators of the two lodging establishments in the District, the Lodge at Tiburon and the Water's Edge ("District Hotels") actively supported the District's formation. 2. On September 5, 2007, after holding the hearings and meeting required by Section 36500 et seq. of the Streets and Highways Code of the State of California ("Code"), the Town Council adopted Chapter 7A of the Tiburon Municipal Code (``Ordinance"), establishing the District and levying an assessment on lodging businesses within the District to promote tourism and undertake the tourism-promoting activities described in the Resolution of Intention, all as authorized by the Code; 3. On January 1, 2008, the Town and the Corporation entered into an agreement whereby the Town would transfer ninety-nine percent (99%) of the assessment funds raised under the Ordinance ("District Funds'') and the Corporation would expend the District Funds for the programs promoting tourism in the District, as set forth in the Resolution of Intention ("Original Agreement"). Pursuant to the Original Agreement and Section 7A-7 of the Ordinance, the Town would retain up to one percent of the assessment funds to defray its administrative expenses. 4. On April 6, 2011, at the request of the District Hotels and after compliance with the procedures mandated by the Code, the Town amended the Ordinance to increase the District assessment from one percent (1%) to two percent (2%) of gross room rental revenue. 5. The District Hotels have suggested, and the Town concurs, that the purposes of the District would be better and more directly served if the District Funds were devoted to a more locally-based effort to promote the Town's specific attractions as a desirable tourist destination. Pagel of 3 DRAFT 6. Section 3.1) of the Original Agreement provides that the parties can mutually agree to terminate said agreement and the Town and the Corporation have agreed to end their current contractual amicably, with the expectation of future opportunities to work together to promote tourism in Marin County. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. TERMINATION OF ORIGINAL AGREEMENT. Effective ("Termination Date"), the Original Agreement shall be terminated and be of no further force and effect except as otherwise provided herein. 2. REMAINING DISTRICT FUNDS. Any unexpended District Funds remaining in the Corporation's possession as of the Termination Date shall be transferred to the Town. 3. FUTURE DISTRICT FUNDS. The Town will retain all District Funds assessed and levied on or after the Termination Date and shall be fully responsible for the proper use of said funds. 4. CONTINUING OBLIGATIONS. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 3.13 ("Indemnity and Hold Harmless") shall remain in full force and effect after the Termination Date with respect to any claims arising before the Termination Date. 5. GENERAL PROVISIONS A. 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 understood 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. B. 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. C. 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. D. 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. Page 2 of 3 DRAFT E. Severability. If any portion of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement shall not be affected thereby and shall be enforced to the greatest extent permitted by law. F. 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 executed 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 executed on the day and year first above written. MARIN CONVENTION AND VISITORS BUREAU By: President TOWN OF TIBURON By: Margaret Curran, Town Manager ATTEST: Diane Crane Iacopi, Town Clerk APPROVED AS TO FORM: Ann Danforth, Town Attorney Page 3 of 3 32-05-'08 11:49 FROM-Marin Co Nisitors Bu 415*-925-2063 7-686 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 x day January, 2008, between the TOWN OF TIBURON, a municipal corporation ("Town"), and the MARIN CONVENTION VISITORS BUREAU (MCVB), a non-profit corporation ("Corporation"); RECITALS WHEREAS, TOWN and CORPORATION recognize that it is in the best interests of TOWN and CORPORA'T'ION to promote tourism development; WHEREAS, Section 36500 et sect, 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 form 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 form 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: 1. CORPORATION OBLIGATIONS. The Corporafion's obligations under this Agreement - shall be-as follows: Page 1 of 10 ?Yktlz~ z 02-05-'08 11:49 FROM-Marin Co,Visitors Bu 415-925-2063 T-686 P003/011 F-477 A. Provide District: Services. The Corporation shall provide, manage and administer all District Services and provide an annual 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 Tiburon 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 shall 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) annually. 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 shall comply with all applicable State and Town laws and regulations. Cr. 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 complete 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-Mar-in Cc.Vis.itors 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 term of this Agreement, the Corporation shall maintain the following minimum insurance requirements: (1) A comprehensive general liability insurance with minimum limits of $17000,000 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 a4or 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 minimum 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 (CSL). (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 of an 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 under 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 Taw; 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 Nisit ors Bu 415-925-2063 T-686 P005/021 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 amounts 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 harmless from any and all 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 performance of the Corporation's obligations under this Agreement, or for any other purpose. 0. Conflicts of Ynterest. The Corporation and the Corporation 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 under 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 CoNisitors Bu 415-925-2063 T-686 P006/021 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 30``', June 300i, September 300' and December 30`r' 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 Harmless. To the fullest extent permitted by law, the Corporation shall defend, indemnify, 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 performance 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 permitted by law, the Town shall defend, indemnify, and hold harmless 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 Nisitors Bu 415-525-2063 T-686 P007/011 F-477 C. Notices. Any notice, tender, delivery, 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 I 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 manner provided in this section. If sent by mail, any notice or other communication shall be effective 48 hours after it has been deposited in the United States mail, with postage prepaid, and addressed 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 3.1, 2010 or other earlier termination 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 terminate 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 funding 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 intcrpret 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 understood 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 bctween the parties and supersedes 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 unenforceable to any extent, the remainder of this Agreement shall not be affected thereby and shall be enforced to the greatest extent permitted by law. 1. 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 executed shall constitute one Agreement binding on all of the parties hereto, notwithstanding that all of the parties are not signatory to the sarne counterpart. IN WITNESS V4MREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. MARIN CONVENTION AND VISITORS BUREAU By. President TOWN OF TIBURON By: Margaret rran, Town Manager ATTEST: Diane Crane-Iacopi, Town Clerk Page 7 of 10 02-05-'08 11:50 FROM-Mar-in Co Nisitors Bu 415-525-2063 APPROVED AS TO FORM: Ann Danforth, T ` Attorney T-686 P009/011 F-477 Page 8 of 10 02-05-'08 11:50 FROM-Marie Co Nisitors 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 ("TTBID")and within the Town of Tiburon. This includes promotion of the TTB-ID 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 shallbe rendered under the direction of the Advisory Board of the Marin County Tourism Business Improvement District ("MCTTBID"), 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 TTBID. 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 her/his designee, for Town Council approval, a summary report on actual expenditures and program accomplishments during the term of the contract. 4. By October 30, 2008, the Corporation shall submit summary reports concerning actual expenses and program accomplishments during the term of this contract to each participating city. 5. By October 30, 2008, the MCTTBID Advisory Board shall also submit to the Town Clerk, and to the Town Manager, that information as required by the State Street and Highways Code, Section 36533 - 36542 (see attached) pertaining to the continuance of the TTBID and the levy of assessments for the 2008 calendar year. The Corporation shall have full responsibility for preparation of information and its costs required for continuation of TTBID and the levying and collection of assessment, including non- Town legal assistance. 6. By October 30, 2008, preparation of a proposed Scope of Services for a 2009 the Corporation /Town 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 MCTBib 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. Page 9 of 10 r 02-05-'08 11:50 FROM-Marin CoNisitors 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/exposure f) The Corporation will create and circulate support materials included in fiflfiilment packages g) The Corporation will create co-op promotional opport=ties. h) The Corporationwill create networking/marketing opportunities with other members. i) The Corporation will create information regarding the Town'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 marl-eting/advertising 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 Town. n) The Corporation will keep a list of available rooms in the Town at the visitor's center. o) The Corporation will represent the Town at public meetings, events and other functions that could stimulate tourism within the Town, Page 10 of 10 M% From: TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Mayor and Members of the Town Council Town Attorney Town Council Meeting March 20, 2013 Agenda IteMAT / Subject: Recommendation to Approve Agreement Terminating Contract with the Maria County Visitors Bureau and Appoint Advisory Board for Tiburon Tourism Business Improvement District Reviewed By: Oz BACKGROUND AND ANALYSIS In 2007, the Town formed the Tiburon Tourism Business Improvement District (TTBID) in response to a request from the Town's two hotels, the Lodge at Tiburon and the Water's Edge Hotel. The TTBID initially imposed assessments on lodging establishments equal to one percent of their gross revenues. In April of 2011, at the hotels' request, the Council raised the assessment to two percent. The TTBID's essential purpose is to finance tourism promotion activities that will increase occupancy at the Town's hotels. Originally, both the hotels and Town intended to use the funds to participate in the County-wide tourism promotion effort operated by the Marin County Visitors Bureau ("Visitors Bureau'. This intention is reflected in the ordinance that created the TTBID, codified as Chapter 7A of the Municipal Code and in the Agreement between the Town and the Visitor's Bureau dated January 1, 2008. However, the hotels have subsequently been in discussion with Town staff to explore whether the assessments would be more fruitfully spent on a locally -based program, an opinion that is held by the Downtown Vibrancy Committee. This would require an agreement between the Town and the Visitors Bureau to terminate the 2008 contract. The Visitors' Bureau has verbally agreed that it will enter into such an agreement. If the Council decides to divert the TTBID funds to locally based tourism promotion activities, the Town will assume full responsibility for the proper handling of the TTBID financing. This will involve establishing an Advisory Board, which would prepare annual reports in connection with the levy of assessments (the Council appointed two members to the County program's advisory board, but the Town would now need a stand alone board). The Board would prepare a report with recommendations for future tourism promoting programs, which report would come back to Council and become the basis for the formal modification of the activities that the Town may fund with TTBID assessments. If the Council decides to pursue the more local direction, Staff recommends that the Council form the Advisory Board at this time to be composed as follows: one representative to be appointed by Town Council A•iceting Mardi 20. 201.3 each assessed business establishments (i.e., the Lodge at Tiburon and the Water's Edge Hotel), the Town Manager and one member of the Town Council. Staff would return at a later meeting with a draft ordinance approving the financing of a local program. RECOMMENDATION Staff recommends that the Town Council: 1. Move to approve and authorize the Town Manager to execute the Agreement Terminating the Contract with the Marin County Visitors Bureau. 2. Form an Advisory Board, to consist of the following: one representative to be appointed by each assessed business establishment (i.e., the Lodge at Tiburon and the Water's Edge Hotel), the Town Manager and one member of the Town Council. 3. Appoint a Council member to sit on the Advisory Board. Exhibit: 1. Draft Agreement 2. January 1, 2008 Agreement between the Town and Visitors Bureau Prepared By: Ann R. Danforth, Town Attorney T w? \ of Tin['RO\ Page 11 o1 2 AGREEMENT BETWEEN THE MARIN CONVENTION AND VISITORS BUREAU AND THE TOWN OF TIBURON TO TERMINATE TOURISM BUSINESS IMPROVEMENT DISTRICT ADMINISTRATON AGREEMENT THIS AGREEMENT ( "Agreement "), made and entered into this _ day of March, 2013, between the TOWN OF TIBURON, a municipal corporation ( "Town "), and the MARIN CONVENTION VISITORS BUREAU, a non -profit corporation ("Corporation "); RECITALS 1. On June 6, 2007, the Town Council adopted a resolution of intention to form the Tiburon Tourism Business Improvement District ("District "), to promote mid -week and off- season overnight lodging business, to promote the District as an overnight tourism destination, and to fund projects, programs, and activities that benefit lodging establishments within the District ("Resolution of Intention "). The operators of the two lodging establishments in the District, the Lodge at Tiburon and the Water's Edge ( "District Hotels ") actively supported the District's formation. 2. On September 5, 2007, after holding the hearings and meeting required by Section 36500 et seq. of the Streets and Highways Code of the State of California ( "Code "), the Town Council adopted Chapter 7A of the Tiburon Municipal Code ( "Ordinance "), establishing the District and levying an assessment on lodging businesses within the District to promote tourism and undertake the tourism - promoting activities described in the Resolution of Intention, all as authorized by the Code; 3. On January 1, 2008, the Town and the Corporation entered into an agreement whereby the Town would transfer ninety-nine percent (99 %) of the assessment funds raised under the Ordinance ("District Funds ") and the Corporation would expend the District Funds for the programs promoting tourism in the District, as set forth in the Resolution of Intention ( "Original Agreement "). Pursuant to the Original Agreement and Section 7A -7 of the Ordinance, the Town would retain up to one percent of the assessment funds to defray its administrative expenses. 4. On April 6, 2011, at the request of the District Hotels and after compliance with the procedures mandated by the Code, the Town amended the Ordinance to increase the District assessment from one percent (1 %) to two percent (2 %) of gross room rental revenue. 5. The District Hotels have suggested, and the Town concurs, that the purposes of the District would be better and more directly served if the District Funds were devoted to a more locally -based effort to promote the Town's specific attractions as a desirable tourist destination. Page 1of3 &ki"' j ' F:: 6. Section 3.D of the Original Agreement provides that the parties can mutually agree to terminate said agreement and the Town and the Corporation have agreed to end their current contractual amicably, with the expectation of future opportunities to work together to promote tourism in Mann County. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. TERMINATION OF ORIGINAL AGREEMENT. Effective ( "Termination Date "), the Original Agreement shall be terminated and be of no further force and effect except as otherwise provided herein. 2. REMAINING DISTRICT FUNDS. Any unexpended District Funds remaining in the Corporation's possession as of the Termination Date shall be transferred to the Town. 3. FUTURE DISTRICT FUNDS. The Town will retain all District Funds assessed and levied on or after the Termination Date and shall be fully responsible for the proper use of said funds. 4. CONTINUING OBLIGATIONS. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 3.13 ( "Indemnity and Hold Harmless ") shall remain in full force and effect after the Termination Date with respect to any claims arising before the Termination Date. 5. GENERAL PROVISIONS A. 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 understood 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. B. 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. C. 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. D. 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. Page 2 of 3 E. Severability. If any portion of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement shall not be affected thereby and shall be enforced to the greatest extent permitted by law. F. 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 executed 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 executed on the day and year first above written. MARIN CONVENTION AND VISITORS BUREAU 0 President TOWN OF TIBURON 10 ATTEST: Diane Crane Iacopi, Town Clerk 09aLTOGIVA 117:VID1lal�Ca) 3VA Ann Danforth, Town Attorney Margaret Curran, Town Manager Page 3 of 3 3 ;2- 05 -'08 11:49 FROM -Marin Co.Visitors Su 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), anon -profit corporation ( "Corporation "); RECITALS WHEREAS, TOWN and CORPORATION recognize that it is in the best interests of TOWN and 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! D 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 form 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 form 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: 1. CORPORATION OBLIGATIONS. The Corporation's obligations under this Agreement shall be.as follows: Page 1 of 10 � 02- 05 -'08 11:99 FROM -Marin CoNisitors Bu 915 - 925 -2063 T -686 P003/011 F -977 A. Provide District Services. The Corporation shall provide, manage and administer all District Services and provide an annual 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 Tiburon within 60 days thereafter. E. Independent Audit / Financial review. Corporation shall employ, at its sole expense, the services of a qualified independent Certified Public Accountant who shall 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) annually. 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 shall 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 complete 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 CoNisitors 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 term 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 Iimit (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 minimum 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 (CSL). (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 3. 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 of an 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 under 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 -Marie CoNisitors 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 amounts 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 harmless from any and all claims that may be made against the Town based on any contention by a third party that an employer- cmployce 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 performance of the Corporation's obligations under this Agreement, or for any other purpose. O. Conflicts of Interest. The Corporation and the Corporation 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 under 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 P006/021 P-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 30's, June 30a', September 30fh and December 30`s 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 Harmless, To the fullest extent permitted by law, the Corporation shall defend, indemnify, 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 performance 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 permitted by law, the Town shall defend, indemnify, and hold harmless 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 anytime 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 CoNisitors Bu 415 - 925 -2063 T -686 P007/011 F -477 C. Notices. Any notice, tender, delivery, 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 1 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 manner provided in this section. If sent by mail, any notice or other communication shall be effective 48 hours after it has been deposited in the United States mail, with postage prepaid, and addressed 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 termination date. Said extension of the ending date of this Agreement shall not be effective except by mutual agreement of the parties and sat 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 terminate 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 funding 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 understood 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 92- 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 supersedes Whatever oral or written understanding they may have bad 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 unenforceable to any extent, the remainder of this Agreement shall not be affected thereby and shall be enforced to the greatest extent permitted 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 executed 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 W14EREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. MARTIN' CONVENTION AND VISITORS BUREAU By: �-- President TOWN OF TIBURON By: VIA - lia—rgar—etourran, Town Manager ATTEST: Diane Crane- Iacopi, Town Clerk Page 7 of 10 02- 05-'08 11:50 FROM -Marin Co. Visitors Bu 415 - 925 -2063 APPROVED AS TO FORM: Ann Danforth, 'Attorney Page 8 of 10 T -686 P009/011 F-477 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 ( "TTBID ")and within the Town of Tiburon. 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 ( "MCTTBID "), which shall include at least one representative from the I TBID. 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 TTBID. 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 her/his designee, for Town Council approval, a summary report on actual expenditures and program accomplishments during the term of the contract. 4. By October 30, 2008, the Corporation shall submit summary reports concerning actual expenses and program accomplishments during the tern of this contract to each participating city. 5. By October 30, 2008, the MCTTBID Advisory Board shall also submit to the Town Clerk, and to the Town Manager, that information as required by the State Street and Highways Code, Section 36533 — 36542 (see attached) pertaining to the continuance of the TTBID and the levy of assessments for the 2008 calendar year. The Corporation shall have full responsibility for preparation of information and its costs required for continuation of TTBID and the levying and collection of assessment, including non - Town legal assistance. 6. By October 30, 2008, preparation of a proposed Scope of Services for a 2009 the Corporation /Town 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 awebsite presence, with links to information regarding the Town's tourism- related businesses. Page 9 of 10 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 /exposure f) The Corporation will create and circulate support materials included in ittifiilment packages g) The Corporation will create co -op promotional opportunities. h) The Corporation will create networking/marketing opportunities with other members. i) The Corporation will create information regarding the Town'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/advertising 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 Town. n) The Corporation will keep a list of available rooms in the Town at the visitor's center. o) The Corporation will represent the Town at public meetings, events and other functions that could stimulate tourism within the Town. Page 10 of 10