HomeMy WebLinkAboutMemo from City Manager to Grand Jury
~ ~_-...."
OFFICE OFTHE CITY MANAGER
June 4, 2012
The Honorable Robert J. Trentacosta
Presiding Judge
Superior Court of California, County of San Diego
Main Courthouse
THIRD FLOOR
220 W. Broadway
San Diego, CA 9210 I
Dear Judge Trentacosta:
RE: Grand Jury Report: "City ofChula Vista Tourism Marketing District"
Dated May 23, 2012
Pursuant to the Grand Jury Report Requirements and Instructions:
Section (b): As to each grand iury recommendation. the responding person or entity shall report
one of the following actions: (2) The recommendation has not yet been implemented. but will be
implemented in the future. with a time frame for implementation.
Recommendation 12-36: Closely monitor implementation of the March 2012 contract between
the City and Chamber for TMD operations and the independent audit it requires to ensure the
finances and activities are targeted to the purposes required by the Management District Plan.
The contract between the City of Chula Vista and the Chula Vista Chamber of Commerce for the
TMD also addresses/clarifies the following issues:
. Annual Report
. Make-up of Governing Body
. Audit Requirements
. Disestablishment
. Payment of Operating Costs
. Indemnification
. Insurance
. Reservation of Rights
Through the contract, we will continue to closely monitor the contract and ensure the objectives
ofthe conditions therein are met.
276 FOURTH AVENUE. CHULA VISTA. CALIFORNIA 91910. (619) 691-5031. FAX (619) 409.5664
p;., Pn<'-r.~~~I"T"" Recvd.d P~oe'
The Honorable Robert J. Trentacosta
Presiding Judge
June 4, 2012
Page 2
In that spirit, the City recently reminded the Chamber of Commerce of the requirement to submit
an Annual Report at least thirty days before the beginning of the fiscal year.
The Contract requires an audit for the current fiscal year be performed and submitted to the City
within 90 days of the end of the fiscal year. Ninety days from the end ofthe fiscal year for
which the assessment is levied will be October 15, 2012, so the City will be monitoring that
Contract requirement, and the intent is that the recommendation will be met on or before that
date.
The Contract further requires that the Annual Report include standard report formats for a
financial report, budget and written goals, objectives and status for proposed activities and
improvements that would implement the District Plan. That report is due within the next few
weeks, so the City is monitoring that condition within the Contract, and the intent is that this
portion of the recommendation will be completed this June.
Prior to these deadlines, and for almost a year, I have had one or more senior staff members
attend the Chamber of Commerce Board, TMD Board and Hotel/Motel Sub-Committee meetings
on a regular basis. City staff has also been available to individual hotel/motel owner operators
upon request and worked with the City Council and City Attorney's Office to include the
individual hotel/motel owners in the distribution of any information pertaining to the TMD.
We are appreciative of the Grand Jury's interest and attention to this matter. The City ofChula
Vista shared some of your concerns that lead us to work with the Chamber of Commerce on a
contract over the last year.
It is in this spirit of cooperation and full disclosure that I respectfully submit these requested
comments.
Sincerely,
es D. Sandoval
ity Manager
Attachment
cc: Foreman James R. Lewis and Members of the Grand Jury
San Diego County Board of Supervisors
Honorable Mayor and Council of the City of Chula Vista
Glen Googins, Chula Vista City Attorney
Lisa Johnson, Chula Vista Chamber of Commerce Chair
Nicole Hoenstein, Chair of the Chula Vista Hotel/Motel Subcommittee
J:\AdminSup\Sandoval\Grand Jury\Comments Re Grand Jury Report on Chula Vista Tourism Marketing District.ooc
CITY OF CHULA VISTA
AGREEMENT FOR TOURISM MARKETING DISTRICT MANAGEMENT SERVICES
This Agr m ht for Tourism Marketing District Management services (the "Agreement"), dated
3 y-- is by and between the City of Chula Vista, hereinafter referred to as
the "City," and the Chula Vista Chamber of Commerce, hereinafter referred to as "Contractor,"
collectively referred to as the "parties:'
RECITALS
A. The City is a California municipal corporation and charter city; Contractor is a private, non-
profit entity.
B. In April 2009, the Chula Vista Chamber of Commerce ("CVCC") and the Chula Vista Convention
and Visitors Bureau ("CVCVB") submitted to the City a petition and Management District Plan
("MDP") for establishment of the Chula Vista Tourism Marketing District ("CVTMD"), proposing
assessments on all lodging businesses in the City, in accordance with the Property and Business
Improvement District Law of 1994, California Streets and Highways Code section 36600, et seq.
(the "1994 Law').
C. On May 12, 2009, the City Council adopted Resolution No. 2009-115, accepting the petition
and declaring its intent to initiate proceedings to establish the CVTMD, in accordance with the
1994 Law.
D. On July 14, 2009, the City adopted Resolution number 2009-177, hereinafter the
"Resolution," establishing the CVTMD, and providing that assessments be levied as described in
the MDP.
E. Contractor was designated in the MDP as the Owners' Association in accordance with Streets
and Highways Code section 36614.5. As a result, Streets and Highways Code section 36551
authorizes the City to contract with the Owners' Association for provision of CVTMD services.
F. Under the 1994 Law, funds raised by the CVTMD must be spent for the purposes specified in
the Resolution: sales promotions and marketing programs to market Chula Vista as a tourist,
meeting and event destination, and other improvements as set forth in Streets and Highways
Code §36610; funds cannot be diverted to government programs.
G. Contractor is willing to provide services to the City on the terms and conditions set forth in
this Agreement.
AGREEMENT
Now, therefore, the parties agree as follows:
1. Engagement. City hereby retains Contractor to provide the services described in Exhibit
A, and Contractor accepts such engagement.
,.._ .. .~..r
2. Term. The term of this Agreement shall begin on September 1, 2011 and end on July 31,
2014. If the CVTMD is disestablished prior to July 31, 2014, this Agreement shall terminate on
the effective date of CVTMD disestablishment, except as provided in sections 23 and 25.
3. Independent Contractor. No relationship of employer and employee is created by this
Agreement; it being understood and agreed that Contractor is an Independent Contractor.
Contractor is not the agent or employee of the City in any capacity whatsoever, and City shall
not be liable for any acts or omissions by Contractor nor for any obligations or liabilities incurred
by Contractor.
A. Contractor shall have no claim under this Agreement or otherwise, for seniority,
vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical
care, hospital care, retirement benefits, social security, disability, Workers' Compensation,
unemployment insurance benefits, civil service protection, or employee benefits of any kind.
B. Contractor shall be solely liable for and obligated to pay directly all applicable payroll
taxes (including federal and state income taxes) or contributions for unemployment insurance
or old age pensions or annuities which are imposed by any governmental entity in connection
with labor used or which are measured by wages, salaries or other remuneration paid to its
officers, agents or employees and agrees to indemnify and hold City harmless from any and all
liability which City may incur because of Contractor's failure to pay such amounts.
C. In carrying out the work contemplated herein, Contractor shall comply with all
applicable federal and state workers' compensation and liability laws and regulations with
respect to the officers, agents and/or employees conducting and participating in the work; and
agrees that such officers, agents, and/or employees will be considered Independent Contractors
and shall not be treated or considered in any way as officers, agents and/or employees of City.
D. Contractor agrees to perform its work and functions at all times in strict accordance
with all applicable federal, state, county and city laws, resolutions, regulations, titles,
departmental procedures and currently approved methods and practices in the field; and that
the sole interest of City is to ensure that said service shall be performed and rendered in a
competent, efficient, timely and satisfactory manner and in accordance with standards required
by the City.
E. Notwithstanding the foregoing, if the City determines that pursuant to state and
federal law Contractor is an employee for purposes of income tax withholding, City may upon
two (2) weeks' written notice to Contractor, withhold from payments to Contractor hereunder
federal and state income taxes and pay said sums to the federal and state governments.
4. Indemnification.
To the maximum extent allowed by law, Contractor shall defend, indemnify, protect,
defend and hold harmless the City, its elected and appointed officers, agents and employees,
from and against any and all claims, demands, causes of action, costs, expenses, liability, loss,
damage or injury, in law or equity, to property or persons, including wrongful death, in any
manner arising out of or incident to any alleged acts, omissions, negligence, or willful
misconduct of Contractor, its officials, officers, employees, agents, and contractors, arising out
of or in connection with the performance of its obligations under this Agreement. This
indemnity provision does not include any claims, damages, liability, costs and expenses
(including without limitations, attorneys' fees} arising from the sole active negligence or sole
willful misconduct of the City, its officers, agents or employees. Also covered is liability arising
from, connected with, caused by or claimed to be caused by the active or passive negligent acts
or omissions of the City, its agents, officers, or employees which may be in combination with the
active or passive negligent acts or omissions of the Consultant, its employees, agents or officers,
or any third party. This indemnity shall survive the termination of this Agreement.
5. Insurance. Contractor must procure insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work
under this Agreement and the results of that work by Contractor, its agents, representatives,
employees or subcontractors and provide documentation of same prior to commencement of
work. The insurance must be maintained for the duration of the Agreement.
Minimum Scope of Insurance
Coverage must be at least as broad as;
1. Insurance Services Office Commercial General Liability coverage (occurrence Form
CG0001)
2. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
3. Professional Liability or Errors & Omissions Liability insurance appropriate to
Contractor's profession. Architects' and Engineers' coverage is to be endorsed to
include contractual liability.
Minimum Limits of Insurance
Contractor must maintain limits no less than:
1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and
(Including operations, property damage. if Commercial General Liability insurance
products and completed with a general aggregate limit is used, either the general
operations, as applicable.) aggregate limit must apply separately to this project/location or
the general aggregate limit must be twice the required
occurrence limit.
2. Workers' Compensation Statutory
Employer's Liability: $1,000,000 each accident
$1,000,000 disease-policy limit
$1,000,000 disease-each employee
3. Directors and Officers $500,000.00 each occurrence
Liability:
Deductibles and Self-Insured Retentions
Any deductibles orself-insured retentions must be declared to and approved by the City. At the
option of the City, either the insurer will reduce or eliminate such deductibles or self-insured
retentions as they pertain to the City, its officers, officials, employees and volunteers; or
Contractor will provide a financial guarantee satisfactory to the City guaranteeing payment of
losses and related investigations, claim administration, and defense expenses.
Other Insurance Provisions
The general liability, and where appropriate, the worker's compensation policies are to contain,
or be endorsed to contain, the following provisions;
1. The City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be
named as additional insureds with respect to liability arising out of work or operations
performed by or on behalf of Contractor including providing materials, parts or
equipment furnished in connection with such work or operations. The general liability
additional insured coverage must be "primary' and must not exclude products /
completed operations.
2. The contractor's General Liability insurance coverage must be primary insurance as it
pertains to the City, its officers, officials, employees, agents, and volunteers. Any
insurance or self-insurance maintained by the City, its officers, officials, employees, or
volunteers is wholly separate from the insurance of Contractor and in no way relieves
Contractor from its responsibility to provide insurance.
3. Each insurance policy required by this clause must be endorsed to state that coverage
will not be canceled by either party, except after thirty (30) days' prior written notice to
City by certified mail, return receipt requested.
4. Coverage shall not extend to any indemnity coverage for the active negligence of the
additional insured in any case where an agreement to indemnify the additional insured
would be invalid under Subdivision (b} of Section 2782 of the Civil Code.
5. Contractor's insurer will provide a Waiver of Subrogation in favor of the City for each
required policy providing coverage during the life of this contract.
If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions
coverage are written on a claims-made form:
1. The "Retro Date" must be shown, and must be before the date of the
Agreement or the beginning of work pursuant to the Agreement.
2. Insurance must be maintained and evidence of insurance must be provided
for at least five (5}years after Completion of work under the Agreement.
3. If coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a "Retro Date" prior to the Agreement
effective date, Contractor must purchase "extended reporting" coverage for
a minimum of five (S) years after completion of work under the Agreement.
4. A copy of the claims reporting requirements must be submitted to City for
review.
Acceptability of Insurers
Insurance is to be placed with licensed insurers admitted to transact business in the State of
California with a current A.M. Best's rating of no less than AV. If insurance is placed with a
surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines
Insurers (LESLI) with a current A.M. Best's rating of no less than A X. Exception may be made for
the State Compensation Fund when not specifically rated.
Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements
effecting coverage required by this clause. The endorsements should be on insurance industry
forms, provided those endorsements or policies conform to the contract requirements. All
certificates and endorsements are to be received and approved by City before work
commences. The City reserves the right to require, at any time, complete, certified copies of all
required insurance policies, including endorsements evidencing the coverage required by these
specifications.
Subcontractors
For each subcontractor that Contractor may utilize to perform work required by this Agreement,
Contractor must include the subcontractor as an insured under its policies, or furnish separate
certificates and endorsements for each such subcontractor. All coverage for subcontractors is
subject to all of the requirements included in these specifications.
6. [Not Used.]
7. Conformity with Law.
A. In performing services under this Agreement, Contractor shall observe and comply
with all applicable laws, resolutions, codes and regulations of governmental agencies, including
federal, state, municipal, and local governing bodies, having jurisdiction over the scope of
services, including all applicable provisions of the California Occupational Safety and Health Act.
Contractor shall indemnify and hold City harmless from any and all liability, fines, penalties and
consequences from any of Contractor's failures to comply with such laws, Resolutions, codes
and regulations.
B. If a death, serious personal injury or substantial property damage occurs in
connection with Contractor's performance of this Agreement, Contractor shall immediately
notify the City. Contractor shall promptly submit to City a written report, in such form as maybe
required by City of all accidents which occur in connection with this Agreement. This report
must include the following information:
(1) Name and address of the injured or deceased person(s);
(2) Name and address of Contractor's sub-contractor, if any;
(B) Name and address of Contractor's liability insurance carrier; and
(4) A detailed description of the accident and whether any of City's equipment, tools, material,
or staff were involved.
C. Contractor further agrees to take all reasonable steps to preserve all physical
evidence and information which may be relevant to the circumstances surrounding a potential
claim, while maintaining public safety, and to grant to the City the opportunity to review and
inspect such evidence, including the scene of the accident.
8. Assessments, Costs and Payment. The City shall collect the assessments in accordance
with the 1994 Law, the Resolution and the MDP. City shall forward to Contractor all CVrMD
assessment funds collected, within thirty-days of collection. The City shall not be responsible or
liable for determining the accuracy or adequacy of the amount of funds remitted to the City by
the assessees. The City's only responsibility shall be to forward the funds remitted to the
Contractor. Contractor shall account for all CVTMD funds separately from all other funds, in
order to provide a transparent audit trail.
Beginning January 2012, Contractor will pay the City far all actual operational costs
associated with services provided by the City to the CVTMD. Those services include: collecting
assessments, remitting funds to Contractor and staff time and other resources spent assisting
Contractor in preparing and submitting the Annual Report to the City Council {"Standard
Services"). The amount billed to Contractor far such services shall be capped at 3 percent of
annual TMD revenues received by Contractor for on-going services on a fiscal year basis; it is
currently estimated to total $6,300 for January through June 2012. Should the Parties agree that
the City will perform additional services for the CVTMD beyond the scope of the Standard
Services described in this Agreement, the Contractor will pay the City for the cost of those
additional services and the three percent annual cap shall not apply to those services. The City
will invoice Contractor quarterly for all City services performed relating to the CVTMD.
Contractor shall pay the City in-full, within 30 days of the date of the invoice. If the City does not
receive payment within 30 days, the City shall deduct the amount owed from the assessments
collected in the following month. The City will then remit the monthly assessments, less any
amounts past due, to the Chamber.
In the event that bonds are issued pursuant to the MDP, the City and Contractor shall
meet and confer to determine how the City's costs shall be allocated.
9. Taxes. Payment of all applicable federal, state and local taxes shall be Contractor's sole
responsibility.
10. Conflicts of Interest. Contractor covenants that neither it nor any of its principals or
members of its Board of Directors presently has an interest, and shall not have any interest,
direct or indirect, which would conflict in any manner with performance of services required
under this Agreement. The Parties understand that members of Contractor's Board of Directors
are business owners who will benefit from the services provided by the CVTMD. Such benefit
shall not be considered a direct or indirect interest for purposes of this Agreement. Contractor
shall comply with all applicable conflicts of interest laws in performing its obligations under this
Agreement.
11. Notices. All notices, requests, demands, or other communications under this Agreement
shall be in writing.. Notices shall be given far all purposes as follows:
A. Personal delivery: When personally delivered to the recipient, notices are effective on
delivery.
B. First Class Mail: Notice may be mailed first class to the recipient's address, set forth in
section 11. E., below, in which case notice is effective three (3) mail delivery days after deposit in
a United States Postal Service office or mailbox. Certified Mail: When mailed certified mail,
return receipt requested, notice is effective on receipt, if delivery is confirmed by a return
receipt; if it is not confirmed by a return receipt, notice will be effective on the third day after
deposit in a United States Postal Service office or mailbox.
C. Overnight Delivery: When delivered by overnight delivery with charges prepaid or
charged to the sender's account, notice is effective on delivery, if delivery is confirmed by the
delivery service; if delivery is not confirmed by the delivery service, notice will be effective two
days after mailing.
D. Facsimile transmission: When sent by facsimile to the facsimile number of the
recipient, as provided in section 11.E., below, notice is effective on receipt. However, notice by
facsimile can only be effected if: (a) a duplicate copy of the notice is promptly given by first-class
or certified mail or by overnight delivery, or (b) the receiving party delivers a written
confirmation of receipt. Any notice given by facsimile shall be deemed received on the next
business day if it is received after 5:00 p.m. (recipient's time) or onanon-business day.
E. Addresses and facsimile numbers for purpose of giving notice are as follows:
To City: To Contractor:
City of Chula Vista Chula Vista Chamber of Commerce
Z76 Fourth Avenue Z33 Fourth Avenue
Chula Vista, CA 91910 Chula Vista, CA 91910
Attn: City Manager 619-420-1269
Facsimile:619-409-5884
12. Equal Employment Opportunity Practices Provisions. Contractor certifies that it is in
compliance with the Equal Employment Opportunity Requirement of Executive Order 11246, as
amended by Executive Order 11375 and supplemented 145CFR, Part 60, Title VII of the Civil
Rights Act and any other federal or state laws pertaining to equal employment opportunity and
that it shall not discriminate against any employee or applicant for employment on the basis of
race, color, religion, age, sex, national origin, ancestry, marital status, political affiliation or
physical or mental condition, in matters pertaining to recruitment, hiring, training, upgrading,
transfer, compensation or termination.
A. Contractor shall, in all solicitations or advertisements for applicants for employment placed as
a result of this Agreement, state that it is an "Equal Opportunity Employer" or that all qualified
applicants will receive consideration for employment without regard to their race,creed, color,
disability, sex, sexual orientation, national origin, age, religion, Vietnam era Veteran's status,
political affiliation, or any other non-merit factor.
B. Contractor shall, if requested to so do by the City, certify that it has not, in the
performance of this Agreement, discriminated against applicants or employees because of their
race, creed, color, disability, sex, sexual orientation, national origin, age, religion, Vietnam era
Veteran's status, political affiliation, or any other non-merit factor.
C. If requested by the City, Contractor shall provide the City with access to copies of all
of its records pertaining or relating to its employment practices, except to the extent such
records or portions of such records are confidential or privileged under state or federal law.
D. Nothing contained in this Agreement shall be construed in any manner so as to
require or permit any act which is prohibited by law.
E. Contractor shall include the provisions set forth in this Section in each of its
subcontracts.
13. Compliance with Licensing Requirements. Contractor shall comply with all necessary
licensing requirements and shall obtain appropriate licenses and display the same in a location
that is reasonably conspicuous, and file copies of same with the City.
14. Audits and Records Access.
A. Contractor shall make available to the City, its authorized agents, officers, or
employees, for examination anyand all ledgers, books of accounts, invoices, vouchers, cancelled
checks, and other records or documents evidencing or relating.to the expenditures and
disbursement of CVTMD assessment funds, and shall furnish to the City, within sixty (60] days
after examination, its authorized agents, officers or employees such other evidence or
information as the City may require with regard to any such expenditure or disbursement
charged by Contractor..
B. Contractor shall maintain full and adequate records in accordance with City
requirements to show the actual costs incurred by the Contractor in the performance of this
Agreement. If such books and records are not kept and maintained by Contractor within the
City, Contractor shall, upon request of the City, make such books and records available to the
City for inspection at a location within City. Contractor shall provide such assistance as may 6e
reasonably required in the course of such inspection. The City further reserves the right to
examine and re-examine said books, records and data during the four (4] year period following
termination of this Agreement or completion of all work hereunder, as evidenced in writing by
the City, and Contractor shall in no event dispose of, destroy, alter, or mutilate said books,
records, accounts, and data in any manner whatsoever for four (4) years after the City makes
the final or last payment or within four (4) years after any pending issues between the City and
Contractor with respect to this Agreement are closed, whichever is later.
[Remainder of Page Intentionally Left Blank.]
C. Annually, at the conclusion of the fiscal year (the "audit year"), Contractor shall enlist
the services of an independent, licensed, certified public accountant to conduct a fiscal year
financial audit of the CVTMD finances for the audit year. The audit report shall include aline-
item schedule detailing all expenditures, including a comparison of all expenditures with the
specific amounts and activities, as proposed in the Annual Report. In addition, the audit shall
verify that the activities on which the CVTMD funds were expended during the audit year
comply with Street and Highways Code section 36613 and with the MDP. Contractor shall
provide a copy of the audit to the City Council each year within 90 days following the end of the
audit year. Thus, Contractor shall submit an audit report for fiscal year ZOll-2012 by September
30, 2012; an audit report for fiscal year 2012-2013 by September 30, 2013; and an audit report
for fiscal year 2013-2014 by September 3D, 2014.
15. Documents and Materials. Contractor shall maintain and make available to City for its
inspection and use during the term of this Agreement, all documents, materials relating to the
CVTMD, including related electronic transmissions and data, that are in its possession or control
("Documents and Materials"). Contractor's obligations shall continue for four (4) years following
termination or expiration of this Agreement, and Contractor shall in no event dispose of,
destroy, alter or mutilate said Documents and Materials, for four (4) years following the City's
last payment to Contractor under this Agreement.
16. Time of Essence. Time is of the essence in respect to all provisions of this Agreement
that specify a time for performance; provided, however, that the foregoing shall not be
construed to limit or deprive a party of the benefits of any grace or use period allowed in this
Agreement.
17. City's Reserved Rights.
(a} Termination/Disestablishment. City has and reserves the right to suspend, terminate or
abandon the execution of any work by Contractor upon adoption of a resolution disestablishing
the CVTMD pursuant to Section 36670 of the 1994 Law. Per the 1994 Law a resolution to
disestablish the CVTMD may only be adopted if (1) the City Council finds there has been
misappropriation of funds, malfeasance, or a violation of law in connection with the
management of the district and a noticed hearing on disestablishment is held, or (Z) in the
thirty-day period following the anniversary of the district's formation, businesses paying fifty
percent or more of the assessment file a written protest with the city and a hearing on
disestablishment is held. The failure of Contractor to comply with any material term of this
Agreement shall constitute "malfeasance;' as that term is used in the 1994 Law and, as such,
shall be grounds for the City to initiate disestablishment proceedings. Notwithstanding the
foregoing City must first provide the Contractor with an opportunity to cure such failure and to
comply with this Agreement, pursuant to section ZS hereof. If Contractor takes timely action to
cure its default, City shall not proceed with disestablishment. In the event that Contractor
commits in excess of two material breaches of the Agreement within any contract year,
Contractor shall lase its Section 25 cure rights. In the event the City disestablishes the CVTMD,
Contractor shall be entitled to retain CVTMD revenues only for paying the Contractor's then
existing liabilities incurred consistent with the CVTMD Plan and a properly authorized budget of
the CVTMD. Pursuant to the 1994 Law, Contractor shall refund to City any remaining CVTMD
revenues or any revenues derived from the sale of assets acquired with CVTMD revenues to
enable distribution of the revenues to the businesses which paid the assessment. Contractor
shall not continue to incur liabilities after the date of disestablishment. CVTMD revenues may
only be used to pay for liabilities incurred or services performed up to the date of
disestablishment and shall not be used to pay far liabilities incurred or services performed
subsequent to that date.
(b) Modification of Annual Report and/or Improvements and Activities. City has and
reserves the right to (1) modify Contractor's annual report in accordance with Section 36650(c)
of the 1994 Law; and/or (2} modify the improvements and activities to be funded in any given
year, in each case after holding a public hearing in accordance with the procedures set forth in
Section 36636 of the 1994 Law. If the City makes modifications that are contrary to the terms of
the Management District Plan, the City shall comply with the Plan modifications provisions in
Section 36636 of the 1994 Law. Any such modification that includes a levy of a new or increased
assessment must also comply with the procedures set forth in Section 36623 of the 1994 Law.
18. Choice of Law. This Agreement, and any dispute arising from the relationship between
the parties hereto, shall be governed by the laws of the State of California.
19. Advertising or Publicity. Contractor shall not use, reproduce or copy the seal of the City
and shall not represent the City in an official capacity as spokesperson or officer or agent or use
the name City of Chula Vista, or the names of the City's officers, directors, employees or agents,
in advertising or publicity releases or otherwise without securing the prior written consent of
the City in each instance unless set forth in this Agreement. Nothing in this section prohibits
Contractor from using the name Chula Vista Tourism Marketing District or City of Chula Vista for
regional identification for promotion and marketing of the CVTMD.
20. Entire Agreement. This Agreement, including all attachments, exhibits, and any other
documents specifically incorporated into this Agreement, shall constitute the entire agreement
between City and Contractor relating to the subject matter of this Agreement. As used herein,
Agreement refers to and includes any documents incorporated herein by reference and any
exhibits or attachments. This Agreement supersedes and merges all previous understandings,
and all other agreements, written or oral, between the parties and sets forth the entire
understanding of the parties regarding the subject matter thereof. This Agreement may not be
modified except by a written document signed by both parties.
21. Modification of Agreement. This Agreement may be supplemented, amended or
modified only by mutual agreement of the parties; however, this Agreement shall be subject to
any amendments to the CVTMD Management District Plan adopted by the City Council. No
supplement, amendment or modification of this Agreement, except for a duly adapted
amendment to the CVTMD Management District Plan, shall be binding unless it is in writing and
signed by authorized representatives of both parties.
22. Subcontracting/Assignment. Contractor shall not subcontract, assign or delegate any
portion of this Agreement or any duties or obligations hereunder without the City's prior written
approval, and subject to City's sole discretion.
A. Neither party shall, on the basis of this Agreement, contract on behalf of or in the
name of the other party. Any agreement that violates this Section shall confer no rights on any
party and shall be null and void.
B. Contractor shall remain fully responsible for compliance by its subcontractors with all
the terms of this Agreement, regardless of the terms of any agreement between Contractor and
its subcontractors.
23. Survival. The obligations of this Agreement, which by their nature would continue
beyond the termination or expiration of the Agreement, including without limitation obligations
regarding indemnification, ownership of documents, and conflict of interest, shall survive
termination or expiration for two {2) years. 24. Severability. If a court of competent jurisdiction
holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part
for any reason, the validity and enforceability of the remaining provisions, or portions of them,
will not be affected, unless an essential purpose of this Agreement would be defeated by the
loss of the illegal, unenforceable, or invalid provision.
24. Severability. If a court of competent jurisdiction holds any provision of this Agreement
to be illegal, unenforceable, or invalid in whole or in part far any reason, the validity and
enforceability of the remaining provisions, or portions of them, will not be affected, unless an
essential purpose of this Agreement would be defeated by the loss of the illegal, unenforceable,
or invalid provision.
25. Termination for Cause. If, through any cause, Contractor shall fail to fulfill in a timely
and proper manner Contractor's obligations under this Agreement, or if Contractor shall violate
any of the covenants, agreements or stipulations of this Agreement, City shall have the right to
terminate this Agreement by giving written notice to Contractor of such termination and
specifying the effective date thereof at least fifteen days before the effective date of such
termination. Contractor shall have ten days from the notice date to cure the violation(s). Upon a
showing of a good faith effort toward curing the violation(s), the City Manager may, in his or her
sole discretion, extend the deadline by which the Contractor must cure. Any such extension shall
be valid only if in writing and signed by the City Manager, or designee. If Contractor does not
cure the violation(s) to the City's satisfaction, not to be unreasonably withheld, City shall be
entitled to terminate the Agreement without further notice. In addition, such violation and
failure to cure shall constitute "malfeasance," pursuant to Section 17., above.
26. Attorneys' Fees. Should a dispute arising out of this Agreement result in litigation, it is
agreed that the prevailing party shall be entitled to a judgment against the other for an amount
equal to reasonable attorneys' fees and court costs incurred. The "prevailing party" shall be
deemed to be the party who is awarded substantially the relief sought.
27. Capacity of Parties. Each signatory and party to this Agreement warrants and
represents to the other party that it has legal authority and capacity and direction from its
principal to enter into this Agreement, and that all necessary resolutions or other actions have
been taken so as to enable it to enter into this Agreement.
[Remainder of Page Intentionally Left Blank.]
City of Chula Vista
gy SEE ATTAC@fEN'J°
James Sandoval
Title: City Manager
Date:
Chul Vi Chamber of Commerce
gy~.-~l~cL.-
L'~sw Co1r\e.-~
(Print Namei
Title: C.~O
Date:, ~ 701 a-
ATTACHMENT
Signature Page To
Agreement for Tourism Marketing District Management Services
Between
City of Chula Vista and
Chula Vista Chamber of Commerce
City of Chula Vista
i
By
Cheryl Cox, M or
Attest:
1~ ~ ~ ~`
Donna Norris, ity Clerk
Approved as to form:
~~
Glen Googin , Cifp Att~orne~
EXHIBIT A
Scope of Services
Contractor shall provide the fallowing services:
1. Contractor shall cooperate with City and City staff in the performance of all work hereunder.
2. Contractor will provide projects, programs and activities that benefit lodging establishments
within the CVTMD in accordance with the CVTMD Management District Plan attached hereto
and any subsequent amendments thereto.
3. Contractor will provide and fund such additional projects, programs and activities to promote
tourism in Chula Vista as may be made possible through other non-assessment funding sources.
These other funds must be accounted for separately from assessment funds.
4. Contractor shall perform responsibilities under the Property and Business Improvement
District Law of 1994 (the "Law")including but not limited to:
a. Preparation of the Annual Report required by section 36650 of the Law. The Annual Report
shall include any recommended changes to boundaries, the improvements and activities to be
provided for that fiscal year, an estimate of cost for providing the improvements and activities,
the method and basis of levying the assessment in sufficient detail to allow each business owner
to estimate the amount of the assessment to be levied against his/her business for that fiscal
year, the amount of any surplus or deficit revenues to be carried over from a previous fiscal
year, and the amount of any contributions to be made from sources other than assessments.
The Annual Report shall also include the proposed budget for the upcoming fiscal year,
describing the specific activities to be funded by TMD assessments. The proposed budget shall
be reported in two formats: (i) by major financial category; and (ii) by activity. The proposed
budget shall be in the format set forth in Exhibit B, with additional line items added, if
appropriate. The Annual Report shall be filed with the City Clerk and presented to the City
Council for approval.
b. Seeking and retaining subcontractor(s) to prepare the Annual Report.
c. Delivering the Annual Report at least thirty (30) days preceding the fiscal year for which
assessments are to be levied and collected to pay the costs of the improvements.
5. Contractor shall develop and maintain financial records related to receipt and/or expenditure
of all funds received from City.
6. Subject to the City's approval, Contractor may retain subcontractors to deliver the services
herein; however, Contractor shall remain fully responsible for compliance by its contractors with
all the terms of this Agreement, regardless of the terms of any agreement between the
Contractor and its subcontractor.
7. Annually, Contractor shall enlist the services of an independent, licensed, certified public
accountant to conduct a fiscal year financial audit of the CVTMD finances. The audit report shall
include a line-item schedule detailing all expenditures, including a comparison of all
expenditures with the specific amounts and activities designated in the MDP. In addition, the
auditor shall verify that the CVTMD funds were used in accordance with the CVTMD Plan and
the Annual Report to the City Council for the fiscal year which is the subject of the audit.
Contractor shall provide a copy of the audit to the City Council each year within 90 days
following the end of the fiscal year which is the subject of the audit.
8. TMD Committee.
a. In General. Contractor shall form and maintain in effect throughout the
existence of the CVTMD a committee (the "TMD Committee"). The TMD Committee shall
include representatives from assessed hotels and motels ("Hotel/Motel Representatives"), in
sufficient number to comprise a majority of the voting members of the committee at all times.
The TMD Committee shall be formed and the Hotel/Motel Representatives shall be in place by
June 15, 2012.
b. Quorum Requirements. Attendance by a majority of the Hotel/Motel
representatives shall be required for a quorum of the TMD Committee. Notwithstanding the
foregoing, provided that Contractor's bylaws include provisions for adequate advance notice of
committee meetings, in the event of repeat absences by one or more Hotel/Motel
Representatives, such bylaws may also include reasonable provisions to allow for TMD
Committee action notwithstanding the fact that a majority of Hotel/Motel representatives are
not in attendance. For purposes of this Section, "adequate advance notice' shall mean email or
other electronic means at least three (3) days prior to the meeting and posting notice of the
meeting in accordance with the provisions of the Ralph M. Brown Act. ff no electronic means of
providing notice to a committee member are available, personal delivery or overnight delivery
service may be used; in such cases the notice shall be delivered at least three (3) days prior to the
meeting.
c. Election of Hotel/Motel Representatives. Hotel/Motel Representatives shall be
elected by vote of the assessed hotels/motels in accordance with a qualifications system and
process that assures representation on the TMD Committee of across-section of Chula Vista
hotel/motel industry types determined by using accepted industry standards (e.g., number of
rooms, revenue per available room, average daily rate, and/or other industry relevant
hotel/motel type indicators}. One of the Hotel/Motel Representatives may be appointed by
Contractor provided that such party is an authorized representative of at least one Chula Vista
hotel/motel and the Chula Vista hotel(s)/motel(s) that such party represents is/are not also
represented by a directly elected Hotel/Motel Representative.
d. Required Approval of Maior Decisions. TMD Committee approval shall be
required, at a minimum, for the following: {1) prior to submittal to the City Council for
consideration, each year's Annual Report, including, without limitation, the budget and
description of that year's proposed improvements and/or activities, goals and objectives, and a
mechanism for evaluating the benefits of such improvements and/or activities to the assessed
hotels/motels.; and (2j TMD Committee policies, which shall include, at a minimum, provisions
for the notice and conduct of meetings, and the Hotel/Motel Representatives election process,
consistent with the terms of this Agreement.
Exhibit B
Chula Vista Tourism Marketing District
Proposed Budget FY 2011-12
Revenues:
Projected Assessments $ -
AssessmentsCarriedfromPriorYears $ -
TotalFundsAVailableFY2011-12 $ -
Expenditures:
Personnel Cost:
Salaries $ -
eenefits $ -
Payroll Taxes $
Total Personnel Cost $ -
Office/Adml nistrative
Office Supplies $ -
FormationExpense 5 -
Consultants -
IndependentAUdit $ -
AttomeyServices $ -
City of CV Administrative Support $ -
TotalOffice/Administrative S -
Advertising/Ma rketi ng
Reserves/Contingencies
TMD Activities Prop. BUdRet FY 2011-12
List of Activities (ex. Parade of Bands,
Star N ews Advertising -Shop/Dine}
Staffing Funded by TMD
(Example -Graphic Designer)
S
Direct Indirect Total
$ $ $ -
$ $ 5
$ $ $ -
S $ S -
S 5 $ -
$ S $ -
q Funded from
9o Funded TMD other Chamber Funds
45% D%
Notes:
TMD Activities should correlate to Goals & Objectives included in Exhibit B.
Direct Costs include expenses incurred for paying vendors, advertising, registration fees etc.
supporting TMD activities orimprovements.
Indirect Cost include personnel, consultant and administrative expenses allocated proportionally
based on direct cost or%of time spent on activity,..
SAMPLE DRAFT 2011-2012 CVTMD Activities Goals & Objectives EXHIBIT B (Cont.)
MILESTONES/
# GOAL OBJECTIVES STATUS
TARGET
Develop Contract for Site and Launch Jan March Done
Develop Draft Agreement for Business February April Done
participation
Coordinate w/City Service Based Effort March to April Done
Obtain Board approval and Sign Contract March April Done
Train Staff and Launch with contractor April -June In progress, staff trained contact with
businesses begun
1 Social Media Program 100 businesses 33%of goal achieved
Initiate Business contacts and provide 30 postings per 50%of goal achieved
sample tweet and Facebook postings businesses per
month
TMD/Chamber postings-event, hotel, 40%ofgoal achieved, Ongoing,
restaurant and business support 120 per. month
Record and Monitor Posting Response
Volume and quality