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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
AMENDED AND RESTATED
AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (the “Agreement”), dated for purposes of identification only on this ___day of September 2010April ______ 2025, is made and entered into by and between the:
CITY OF ANAHEIM, a municipal corporation
hereinafter referred to as "CITY,"
A
N
D
ANAHEIM/ORANGE COUNTY VISITOR & CONVENTION BUREAU,
a nonprofit California corporation,
dba and hereinafter referred to as "BUREAUVISIT ANAHEIM."
W I T N E S S E T H:
WHEREAS, the parties have previously entered into a written agreement , dated December 9, 1997, as amended by the First Amendment to Agreement, dated August 17, 1998; a Second Amendment to Agreement , dated June 20, 2000; a Third Amendment to Agreement , dated April 1, 2003; a Fourth Amendment to Agreement , dated July 13, 2004; a Fifth Amendment to Agreement , dated January 11, 2005; a Sixth Amendment to Agreement , dated March 31, 2009; and Seventh Amendment to Agreement dated , January 12, 2010, (hereinafter, collectively, the “Original Agreement”); and ; and
WHEREAS, the parties entered into an Amended and Restated Agreement dated September 14, 2010, identified as Agreement No. 2990A (hereinafter collectively with First through Seventh Amendment, the “Original Agreement”), and, WHEREAS, since the inception of the Original Agreement, ANAHEIMCITY has paid for services performed by the BUREAUVISIT ANAHEIM to promote the growth and enhancement of the community, promote and encourage visitors and tourists to come to Anaheim, and to promote the holding of conventions, conferences and trade shows in Anaheim ,
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
with general funds of the CITY; and
WHEREAS, with the formation of the Anaheim Tourism Improvement District of 2010 (“ATID”), CITY has and will continue to fund the marketing and promotion of tourism and conventions in the City of Anaheim from revenues collected by CITY from assessments imposed, pursuant to the ATID, rather than general funds of the CITY; and WHEREAS, CITY desires to enter into a contract with an organization to handle the day-to-day operations of the ATID and implement the management plan for the ATID; and WHEREAS, BUREAUVISIT ANAHEIM possesses the skill, experience, ability, background, and knowledge to provide the services as described in this Agreement; and WHEREAS, the parties wish to amend and restate the Original Agreement to read as set forth herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
1. TERM OF AGREEMENT
The term of this Agreement shall be for three years from the E ffective Date, as defined in S ection 27 of th is Agreement. Thereafter, upon each anniversary of the Effective Date, this Agreement shall be automatically extended for an additional year , unless the Agreement is terminated in accordance with Section 21 of this Agreement.
2. SCOPE OF SERVICES
BUREAUVISIT ANAHEIM shall be responsible for: (1) the day to day operations of the ATID; (2) implementing the marketing and promotion component of the management plan adopted for the ATID (“Management Plan”) , a copy of which is attached hereto as Attachment A and incorporated herein by this reference; and (3) performing all services and activities to be provided by the “Contracting Entity” , as set forth in Chapter 2.14 of the Anaheim Municipal Code, the Resolution of Intention to Establish the Anaheim Tourism Improvement District adopted July 27, 2010, Resolution No. 2010- 125 (“Resolution of Intention”), and the Resolution of Formation for the Anaheim Tourism Improvement District
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
adopted September 14, 2010, Resolution No. 2010- 151 (“Resolution of Formation”) . In addition, BUREAUVISIT ANAHEIM shall perform the following services to promote the growth and enhancement of the community, promote and encourage leisure domestic and international visitors to come to the C ity of Anaheim and promote the holding of conventions, conferences and trade shows in Anaheim: A. Records of Potential Users A. Records of Potential Users BUREAU
VISIT ANAHEIM shall maintain accurate and up -to-date records and files on associations, convention groups, trade show sponsors, and other such organizations which have met in Anaheim in the past and/or which represent possibilities for scheduling future events in Anaheim. In order to be used as the base for the continuing promotion and sales efforts, such records and files should be maintained in a manner so as to facilitate the process of contacting these organizations and entities.
B. Sales Staff and Support
BUREAUVISIT ANAHEIM shall maintain experienced and efficient sales staff and supporting staff for sales activity. Such staff shall:
(i) Contact convention and trade show executives, site committees, and other organization representatives to obtain conferences, conventions, and trade shows for CITY. This effort shall include, but not be limited to, participation in the Meeting Industry Advisory Council, industry events, personal meetings, telephone discussions, social media contacts, correspondence, e-mail communications and all other means which demonstrate a good sales effort and providing annual documentation to the City of such participation and good sales efforts.
(ii) Submit detailed proposals to convention and trade show executives, site committees, and other organization representatives on CITY’s convention, exhibition and housing facilities and capabilities.
(iii) Arrange and coordinate on- site inspection trips for convention executives, site committees or other organization representatives which will encompass all elements of the community and within the destination required by the specific group.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
C. Solicitation/Advertisement
As part of its solicitation effort, BUREAUVISIT ANAHEIM shall:
(i) Prepare and disseminate promotional materials and brochures geared to convention or other organization executives and site decision makers which deal with CITY’s convention center, trade show and housing facilities and/or destination services. ///
(ii) Create and place advertising and exhibition displays promoting CITY’s Convention Center, trade show and housing facilities and/or destination services. (iii) Maintain current active membership in state, national and international convention associations, as appropriate.
(iv) Maintain an active website, as well as a web presence by utilizing social media, such as Facebook, My Space and Twitter, so that convention and trade show executives, site committees, and other organization representatives , as well as members of the public, can obtain information regarding the City of Anaheim , CITY’s convention center, trade show and housing facilities and/or destination services.
D. Convention Services /Destination Services
BUREAUVISIT ANAHEIM shall provide customary convention services for those associations, groups or trade shows which meet in Anaheim. These services shall include, but not be limited to the following:
(i) Upon request by a convention trade association, group, or trade show executive, operate awork with third party housing bureaucompanies for the assignment of hotel and motel rooms when two or more housing properties are required, provided, however, that such convention executive shall have the responsibility of selecting the appropriate housing. (ii) OperateOversee the required housing system, direct needs including its usage and compile compiling all the necessary information and reports on the housing utilized.
(iii) Maintain a Contract with and manage the contract of any third party staffing agency to fulfill the staffing and labor pool of sufficient competent and qualified
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
registrars, cashiers and secretariesneeds for use by the convention and/or trade show, if requested.
(iv) Schedule labor pool personnel , as required ,Provide for a staffed concierge and maintain the full performance information desk(s) during Anaheim Convention Center city-wide events, as requested by and employment records. (v) Maintain availability ofagreed to with the City and as approved by City Manager or designee. Provide the necessary materials for the preparation of badges and the literature required by resources to the convention or trade show for sightseeingexecutives to contract directly with necessary vendors, businesses and recreational needs. (vi) Make available or arrange to have available the various registration equipment and other office equipment as requested by the convention or trade show executiveservice providers.
E. Communication with CITY’s Convention Center Staff
BUREAUVISIT ANAHEIM shall continually maintain open lines of communications with CITY's Convention Center management and staff. In fulfilling this obligation, BUREAUVISIT ANAHEIM shall perform the following:
(i) Maintain adequate communications with Convention Center management and staff to insure ensure that proper tentative reservations can be made with the Center's "Master" Schedule BookCITY approved space and budget tool for convention center for specific areas of the Convention Center facility so that duplicate bookings or unworkable overlaps will not occur when the tentative reservations become definite. This shall also apply for hotel and motel facilities to be used.
(ii) Bring together the convention and/or trade show executives or site committees with Convention Center management and with designated representatives of other meeting and housing facilities in Anaheim at an appropriate time during the ongoing sales effort, and exercise due diligence to insurei ensure that no misunderstandings occur on such items as fees, services and charges.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
(iii) Assist, as requested by Convention Center’s management, in the final negotiations of contracts for the Convention Center or other facilities in Anaheim.
F. Promotion of Tourism
(i) Conduct familiarization tours for appropriate tourist industry representatives in order for them to make enlightened recommendations for selecting Anaheim as a tourist/vacationer destination for leisure domestic and international visitors. (ii) Provide information to tour operators, online-travel agentsagencies (OTAs) and associated groups and individuals within the leisure market in the form of printed material, videos, e-mail communications, social media communications and other available media that will promote the advantages of Anaheim as a tourist/vacationer destination for leisure domestic and international visitors.
(iii) Engage in appropriate, effective advertising efforts to promote the advantages of Anaheim as a tourist/vacation destination.
G (iv) Develop and execute direct -to-consumer and media efforts to promote Anaheim as a leading vacation destination for leisure domestic and international visitors.
G. Create and submit to the City Manager or designee no later than two months prior to the beginning of the VISIT ANAHEIM Fiscal Year a report detailing proposed activities and budget including reserve accounts for services pursuant to this Agreement for the following VISIT ANAHEIM Fiscal Year. The City Manager or designee may provide comments on the proposed activities, budget and reserve account for consideration by VISIT ANAHEIM prior to adoption of the VISIT ANAHEIM budget.
H. Perform any additional services which will insureiensure the success of conventions, trade shows and tourism in Anaheim which are mutually agreeable and acceptable. ///
3. TIME OF PERFORMANCE
Time is of the essence in the performance of this Agreement and BUREAUVISIT ANAHEIM shall perform all services to completion in a diligent and timely manner.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
4. ANNUAL REPORT
In accordance with Section 2.14.150 of the Anaheim Municipal Code, the BUREAUVISIT ANAHEIM shall submit to the City C lerk an Annual Report for the prior City fiscal year that complies with the Management Plan , Section 5 of this Agreement, and Chapter
2.14 of the Anaheim Municipal Code. The first Annual Report shall be submitted to include the City Clerk within thirty (30) days after the first year of operationamount of theany unspent ATID. Thereafter, the funds and ATID fund reserve balances . The Annual Report shall be prepared and submitted to the City Clerk by July 31stno later than February 28th of each year this Agreement is in effect.
5. KEY PERFORMANCE STANDARDSINDICATORS
Performance standards Key performance indicators shall be updated annually, submitted to the City Manager, or designee , and VISIT ANAH EIM’s Board of Directors for approval, and shall correspond with the BUREAU’s VISIT ANAHEIM’s approved goals, as set by the BUREAU’s VISIT ANAHEIM ’s Board of Directors. These goalskey performance indicators shall include ; (i) room nights booked and delegate registration as accumulated from hotels/motels economic impact of conventions, conferences, and trade shows in Anaheim for the prior fiscal year and other available data; , (ii) the marketing impressions, (iii) partnership revenue, (iv) number of booked conventions, conferences and trade shows held in Anaheim and in the County of Orange for the (v) community engagement (measured in volunteer hours). In addition, VISIT ANAHEIM shall monitor and report to the Board of Directors and City annually on the following additional performance indicators for the prior calendar year : (i) Anaheim room nights booked, (ii) event attendance, (iii) hotel occupancy rates for hotels within the ATID boundaries, (iv) the number of presentations made to meeting planners/ clients for the City fiscal/annual and prior calendar year; ( iiiv) available Anaheim tourist data; and (iv) such other matters as CITY and BUREAUVISIT ANAHEIM deem appropriate. The Anaheim room nights and occupancy rates should be based on actual data and, if necessary, an extrapolation of the actual data only to the extent that actual data is not yet available.
6. COMPENSATION
Commented [SM1]: Added language consistent with Audit
Recommendation No. 3.
Commented [SM2]: Added language consistent with Audit
recommendation 1.
Commented [SM3]: Added language consistent with Audit
recommendation 1.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
A. From the Effective Date, CITY shall pay to BUREAU, as full and complete payment for all services performed , pursuant to this Agreement by BUREAU, an amount equal to twelve percent (12%) of twelve fifteenths (12/15) of the actual total daily net transient occupancy tax receipts of CITY. The parties agree that CITY shall no longer be obligated to make payments to BUREAU, pursuant to this Section 6 (A), once CITY has paid BUREAU a total of Two Million Two Hundred Fifty Thousand Dollars and No Cents ($2,250,000.00). The actual total daily annual net transient occupancy tax receipts referred to in this subsection shall be paid by CITY to BUREAU thirty (30) calendar days after the end of the month in which said transient occupancy tax receipts are collected by CITY.
B. CITY shall pay to BUREAU, as full and complete payment for all services performed, pursuant to this Agreement by BUREAU A. CITY shall pay to VISIT ANAHEIM , as full and complete payment for all services performed, pursuant to this Agreement by VISIT ANAHEIM , all Marketing Component Funds, defined below, from funds assessed and collected by the ATID . The Marketing Component Funds provided for in this subsection shall be paid by CITY to the BUREAUVISIT ANAHEIM thirty (30) calendar days after the end of the month in which said Marketing Component Funds are collected by CITY.
B C. The term "actual total daily net transient occupancy tax receipts," as used in this Agreement, means the actual transient occupancy tax collected on a daily basis and shall include only those amounts collected by CITY as transient occupancy tax and as timeshare payments in lieu of transient occupancy tax. The term "actual total daily net transient occupancy tax receipts," as used in this Agreement, shall not include amounts collected by CITY as interest or penalties upon such taxes, and shall not include amounts collected by CITY as transient occupancy tax if CITY should be obligated to return or rebate such taxes to specific hotel developers under separate development agreements entered into by CITY.
D. The term "Marketing Component Funds," as used in this Agreement, shall meanbe as set forth in Sections 15 and 16 of the Management Plan (currently equal to seventy- five percent (75%) of the net ATID assessments collected by CITY) as it currently exists and as it may be amended during the term of this Agreement . The term “net A TID assessments” shall
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
mean the gross assessments collected by the CITY less the CITY’s ongoing administrative costs associated with administering, collecting, sending penalty notices and auditing the Assessed Facilities (“Administrative Costs”), which Administrative Costs shall not exceed one percent (1%) of the gross amount collected annually by the CITY for the ATID. The Parties acknowledge that the term “Marketing Component Funds” as set forth herein may be modified during the term of this Agreement if: (1) the City proposes to, and assuming there is not a majority protest as set forth in Section 2.14.070 by the assessed businesses, adopts an amendment to Chapter 2.14 of the Anaheim Municipal Code, including but not limited to Sections 2.14.020.010, 2.14.020.080 and 2.14.080 to modify or add additional Activities or Improvements and amends the Management Plan or (2) the City Council proposes to modify the Annual Report in relation to the Marketing Component Costs in compliance with the modification procedures set forth in Section 2.14.150.040, and that such addition or modification may result in a reduction in the current allocation of seventy-five percent (75%) of the net ATID assessments payable to Visit Anaheim under this Agreement. The term “Marketing Component Funds” shall include amounts collected by CITY as interest and penalties, but shall not include collection costs or amounts collected by CITY that CITY is obligated to return to any person or entity.
C. E. BUREAUVISIT ANAHEIM shall be prohibited from using funds received pursuant to this Agreement including, but not limited to, Marketing Component Funds, for any use not authorized in the Resolution of Intention, (Resolution No. 2010-125), the Resolution of Formation, (Resolution No. 2010-151), the Management Plan, Chapter 2.14 of the Anaheim Municipal Code and this Agreement. In addition, BUREAUVISIT ANAHEIM shall be prohibited from using funds received pursuant to this Agreement for any of the following items:
(i) the purchase or the acquisition or receipt of any real property without the prior written approval of CITY;
(ii) any pledge of funds received under this Agreement for the issuance or guarantee of any debt such as, but not limited to the purchase, acquisition or construction of
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
capital assets with an estimated useful life of five (5) years or more , without the prior written approval of CITY;
(iii) payment of any taxes, including California Sales and Use taxes, resulting from VISIT ANAHEIM revenue generating activities and Federal and State Income taxes levied as a result of BUREAUVISIT ANAHEIM activities; (iv) charitable contributions and contributions to professional groups, except to the extent any such contributions are made for marketing purposes; (v) BUREAUVISIT ANAHEIM membership orientations, receptions and development;
(vi) costs related to the generation of advertising revenue in BUREAU Membership DirectoryVISIT ANAHEIM Travel Guide and related publications except to the extent such payments are made solely from funds not received pursuant to this Agreement; (vii) employee membership dues and subscriptions in organizations not associated with the convention and tourism industry;
(viii) employee membership dues in private clubs;
(ix) employee transportation and meals not involved with promotion and solicitation activities or staff training and development (expressly excluded are those travel and entertainment costs associated with promoting the image or reputation of BUREAUVISIT ANAHEIM); and
(x) transfer of funds to another entity without the City’s prior written approval; however, this restriction shall not apply to:
(a) payments to subcontractors made in full compliance with Section 10; and (b) payments that are necessary and constitute customary and allowable expenses.
In addition, VISIT ANAHEIM shall be prohibited from using funds for political donations, contributions or other activities . in support of, or in opposition to, a ballot measure or candidate in any federal, state, or local government election.
F. Notwithstanding anything to the contrary in this Agreement, BUREAU shall pay to CITY the annual sum of Two Hundred Thousand Dollars ($200,000.00) plus an Commented [SM4]: Addition consistent with Audit
recommendation 4.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
annual cost of living escalation adjustment thereto, to offset CITY's reduction of rental charged to the National Association of Music Merchants (NAMM) for NAMM's Winter Meeting to be held at the Anaheim Convention Center (ACC) beginning in January 2003 and continuing each year thereafter through January 2010. Commencing in January 2011 and continuing through 2015, BUREAU shall pay to CITY an additional base amount of $25,000.00, in addition to the annual cost of living escalation adjustment. Should NAMM cancel its Agreement for Lease with CITY, or not exercise an option to Lease, for any year, then BUREAU shall not be obligated to make the payment required by this subsection. Should an individual NAMM meeting be cancelled due to a force majeure or other reason, BUREAU shall be excused from payment for said cancelled meeting only.
(i) The required payment to CITY shall be due and payable by BUREAU no later than ninety (90) days following the final day of the NAMM convention during that calendar year. BUREAU may pay its obligation in two installments, by paying fifty percent (50%) of its total obligation for the calendar year on or before the ninetieth (90th) day following that year's NAMM Meeting, and the remaining fifty percent (50%) shall be due and payable no later than June 30th of that same calendar year. (ii) Should BUREAU fail to make any payment or installment required in this Section when due and payable, CITY reserves the right to withhold and apply to such arrearages any funds owing to BUREAU from CITY, including but not limited to transient occupancy taxes or Marketing Component Funds.
(iii) CITY and BUREAU further agree that in the event the total hotel revenues are insufficient to support BUREAU's annual offset payment for any given year , as required in Section 6 (F) of this Agreement, BUREAU shall remit the total NAMM Community Contribution collected to satisfy its obligation under Section 6 (F). The parties expressly further agree that CITY is relying upon BUREAU's good faith efforts to collect the hotel revenues and Community Contribution and that BUREAU shall be further obligated to use its good faith best efforts to negotiate a rate adjustment with the hotels to prevent any shortfalls in the subsequent years for the term of this Agreement.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
(iv) The Cost of Living escalator applied to the annual payments hereunder shall be based upon the Consumer Price Index - All Urban Consumers for the Los Angeles-Anaheim-Riverside Area (or any successor thereto) as published by the US Department of Labor. The total percentage increase in said Index for the previous calendar year shall be applied to the annual payment, as may have been previously escalated, to derive the compounded escalated payment. For purposes of illustration, the amount due in Ja nuary 2003, was $200,000.
The payment due CITY for the January 2004 NAMM meeting was $203,600. If the December 2004 Index increased by 3 percent over the December 2003 Index, the amount due in January 2005 shall be $203,600 plus the percentage increase in the cost of living index (assuming 3%) applied to $203,600 or $209,708. The amount due in January 2006, shall be $209,708 plus the applicable percentage change in the Index (assuming again 3%) applied to $209,708 or a payment of $215,999. Annual payments based upon the compounded percentage increase in the cost of living shall be due and payable through the NAMM event scheduled to take place in January 2015. Commencing in January 2011, the Annual payment amount shall consist of the amount due in January 2010 increased by the amount of the applicable percentage change in the Index plus an additional baseline increase of Twenty Five Thousand ($25,000.00) Dollars. The Annual payments thereafter, commencing on January 2012, shall escalate from the amount due in 2011, adjusted by the applicable percentage change in the Index. (v) This Section 6 (F) shall terminate upon payment by BUREAU to CITY of all outstanding charges as calculated hereunder following the NAMM meeting in January 2015.
G. DISESTABLISHMENT
D. Disestablishment
Upon disestablishment of the ATID, any remaining revenues and assets acquired with Marketing Component Funds , after all outstanding debts are paid, shall be refunded in accordance with this Agreement and Section 2.14.170 of the Anaheim Municipal Code.
7. RECORDS AND REPORTS MAINTENANCE AND INSPECTION/AUDIT A. Records and Reports Maintenance
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
BUREAUVISIT ANAHEIM shall establish and maintain financial and performance records with respect to all matters covered by this Agreement in sufficient detail and in a manner sufficient to conform to generally accepted accounting principles so as to allow audit of the expenditure of CITY funds received by BUREAU. BUREAU(“GAAP”) so as to allow audit of the expenditure of CITY funds received by VISIT ANAHEIM . VISIT ANAHEIM shall separately track all expenditures funded by assessments collected by the ATID from all other expenditures and shall not comingle ATID funds with other VISIT ANAHEIM revenue sources. While ATID funds may not be comingled with other revenue sources, they can be allocated jointly with other funds for shared expenditures, provided that ATID contributions are separately tracked and accounted for VISIT ANAHEIM shall retain such financial and performance records for a period of three (3) years.
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B. Documentation of Costs
All costs shall be supported by properly executed payrolls, time records for personnel, invoices, agreements or vouchers, or other official documentation evidencing in complete and proper detail the nature and propriety of the charges.
C. Certified Statement
By July 31stFebruary 28th of each year during the Term hereof, BUREAUVISIT ANAHEIM shall furnish to CITY a statement in writing, certified by BUREAUVISIT ANAHEIM and a Certified Public Accountant to be correct, showing in detail how the funds received pursuant to this Agreement for the prior VISIT ANAHEIM fiscal year including, but not limited to, Marketing Component Funds were expended and whether the funds were expended for a purpose authorized by this Agreement.
D. Inspection/Audit
CITY reserves the right to designate its own employee representative(s) or its contracted representatives with a Certified Public Accounting firm who shall have the right to Commented [SM5]: Addition consistent with Audit
recommendation 2.
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CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
audit BUREAU’sVISIT ANAHEIM ’s accounting procedures and internal controls of BUREAU'sVISIT ANAHEIM's financial systems and to examine any cost, revenue, payment, claim, other records or supporting documentation resulting from any items set forth in this Agreement. Any such audit(s) shall be undertaken by CITY or its representative(s) at mutually agreed upon reasonable times and in conformance with generally accepted auditing standards.
BUREAUVISIT ANAHEIM agrees to fully cooperate with any such audit(s).
This right to audit shall extend during the length of this Agreement and for a period of three (3) years, or longer , if required or allowed by law, following the date of any payment tendered under this Agreement. BUREAUVISIT ANAHEIM agrees to retain all necessary records/documentation for the entire length of this audit period.
BUREAUVISIT ANAHEIM will be notified in writing of any exception taken as a result of an audit. If BUREAUVISIT ANAHEIM disagrees with any of such exceptions, BUREAUVISIT ANAHEIM will notify CITY in writing within twenty (20) calendar days after the notification of exceptions to BUREAU. BUREAUVISIT ANAHEIM . VISIT ANAHEIM and the City Manager will then meet and attempt to resolve any differences. Any expenditure of funds for a purpose not authorized by this Agreement shall be paid to CITY by BUREAUVISIT ANAHEIM within thirty (30 ) calendar days from presentation of CITY’s findings to BUREAU.VISIT ANAHEIM . If BUREAUVISIT ANAHEIM fails to make such payment, BUREAUVISIT ANAHEIM agrees to pay interest, accruing monthly, at a rate of 10% per annum unless another section of this Agreement specifies a higher rate of interest, then the higher rate will prevail. Interest will be computed from the date of written notification of exception(s) to the date BUREAUVISIT ANAHEIM reimburses CITY for any exception(s).
8. COORDINATION AND LIAISON
BUREAUVISIT ANAHEIM and CITY agree that during the term of this Agreement they shall coordinate, as appropriate, all services hereunder with the City Manager or his designee.
BUREAUVISIT ANAHEIM shall appoint two CITY management employees , designated by the City Manager , as ex-officiovoting members of BUREAU’sVISIT
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
ANAHEIM’s Board of Directors. One of theBoth CITY appointees shall also be appointed as an ex-officio member voting members of the Executive Committee of the Board of Directors , or similar governing body. BUREAUVISIT ANAHEIM shall notify the CITY appointees of any and all meetings of such BoardBoards or CommitteeCommittees.
9. ASSIGNABILITY
BUREAUVISIT ANAHEIM shall not assign or otherwise transfer any of its rights or obligations whatsoever in this Agreement without the prior written consent of CITY acting by and through the City Manager. Any attempt by BUREAUVISIT ANAHEIM to assign or transfer any of its rights or obligations hereunder without such prior written consent of CITY shall be void.
10. SUBCONTRACTORS
BUREAU shall have the right, without the City Manager's prior consent, (i) to enter into subcontracts for the performance of routine services not involving its primary duties of convention and tourism marketing such as, but not limited to, printing and computer services, and (ii) to enter into subcontracts for the performance of any services to be rendered outside of the United States.
Except as provided herein, none of the services described in Section 2 (A) through (G) of this Agreement shall be subcontracted by BUREAU without the prior written consent of the City Manager, or designee. Requests for subcontractors VISIT ANAHEIM shall request and secure, the City Man ager’s or designee’s written consent to enter into any contract with any subcontractor for services from any subcontractor retained to provide any of Visit Anaheim’s obligations set forth in this Agreement if the subcontract amount exceeds $150,000 either in an individual contract amount or in an aggregate amount paid to a subcontra ctor as calculated on annual calendar year basis. For the purpose of this agreement a subcontract is a contract between VISIT ANAHEIM and any other person, business or entity pursuant to which the person, business or entity performs an obligation of VISIT ANAHEIM as set forth in this Agreement.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
Requests for subcontractors meeting the conditions shall be submitted in writing to the City Manager , or designee, describing the services to be subcontracted , the return on investment, the key deliverables and/or key performance indicators and the name and address of the proposed subcontractor.
All subcontractors shall be subject to all of the applicable terms and conditions of this Agreement. BUREAUVISIT ANAHEIM shall monitor and supervise any subcontractor s in accordance with the Contractor Policy pursuant to A ttachment B and shall be responsible to provide documentation of this monitoring to the CITY for the acts and omissions of such contractors and their officers, employees and agentson an annual basis.
11. COPYRIGHTS
If this Agreement results in any publication, in any form, which may be copyrighted, the author is free to copyright the work, but CITY reserves a royalty -free nonexclusive and irrevocable license to reproduce, publish or otherwise use and may authorize others, subject to the prior written approval of BUREAUVISIT ANAHEIM , to use such materials for use in connection with official CITY programs or activities.
12. USE AND DISPOSITION OF PERSONAL PROPERTY
A. Ownership
All personal property purchased in whole or in part with transient occupancy tax funds shall be the sole and exclusive property of CITY. All personal property purchased in whole or in part with Marketing Component F unds shall be the sole and exclusive property of the ATID. BUREAUVISIT ANAHEIM shall have the exclusive right to use all personal property prior to termination of this Agreement or disestablishment of the ATID . The term “personal property” shall include, but not be limited to, office equipment, supplies, materials and other personal property.
B. Disposition of Personal Property
All personal property purchased with funds provided hereunder in the possession of BUREAUVISIT ANAHEIM or BUREAU’sVISIT ANAHEIM ’s representative(s) shall be returned to CITY , and/or disposed of as set forth in the approved R esolution of I ntention to Commented [SM6]: Language consistent with Audit
recommendation 5.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
Disestablish the ATID , immediately upon termination of this Agreement or disestablishment of the ATID . VISIT ANAH EIM retains the right to dispose of any fully depreciated personal property.
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13. BUREAU VISIT ANAHEIM STRUCTURE
The BUREAUVISIT ANAHEIM agrees that it will maintain a not change its current corporate structure that is acceptable to status as a California nonprofit corporation without prior approval of the CITY and (which approval shall not be unreasonably withheld by CITY), which allows it to adequately representsrepresent the interests of business es subject to ATID assessments. Persons representing businesses s ubject to ATID assessments shall hold positions on the BUREAU’SVISIT ANAHEIM ’s Board of Directors and. Directors of VISIT ANAHEIM’s Board of Directors who are subject to ATID assessments may serve as BUREAUVISIT ANAHEIM’s Officers in proportion to the percentage of funds that the ATID is contributing to the BUREAUS annual gross revenues.. If the CITY, in its sole discretion, determines that BUREAU has fail edVISIT ANAHEI M fails to comply with this Section, the CITY shall be entitled to terminate this A greement, for cause, in accordance with Se ction 21 of this Agreement.
14. OFFICE SPACE
As part of this Agreement, CITY shall provide one (1) office space and (1) conference room to BUREAUVISIT ANAHEIM in CITY’s Convention Center and BUREAUVisit Anaheim shall pay rent to CITY for such space on a monthly basis in an amount set by CITY’s Convention Center Executive Director . City Manager or designee. Such rental amount shall be comparable to rent charged for like office space in the same area. Such rental payment shall be due and payable to CITY on the first day of each month. Any tenant improvements to the space shall be constructed and paid by VISIT ANAHEIM.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
15. INDEMNIFICATION
As respects acts, errors or omissions in the performance of professional services, BUREAUVISIT ANAHEIM agrees to indemnify and hold harmless CITY, its officers, agents, employees, representatives and volunteers from and against any and all claims, demands,losses, damages, defense costs, liability or consequential damages of any kind or nature arising directly out of BUREAU’sVISIT ANAHEIM’s negligent acts, errors or omissions in the performance of professional services under the terms of this Agreement , except those matters arising out of the sole negligence or willful misconduct of the City. VISIT ANAHEIM further agrees to require it subcontractors to indemnify and hold harmless CITY, its officers, agents, employees, representatives and volunteers from and against any and all claims, losses, damages, defense costs, liability or consequential damages of any kind or nature arising directly out of VISIT ANAHEIM’s subcontractor’s negligent acts, errors or omissions in the performance of services provided through a subcontractor under the terms of this Agreement.
As respects all acts or omissions which do not arise directly out of the performance of professional services, including but not limited to those acts or omissions normallytypically covered by ISO-based general and automobile liability insurance , BUREAU coverage, VISIT ANAHEIM agrees to indemnify, defend (at CITY’s option), and hold harmless CITY, its officers, agents, employees, representatives, and volunteers from and against any and all claims, demands,losses, damages, defense costs, or liability, or consequential damages of any kind or nature (collectively referred to hereunder as “Claims” arising out of or in connection with BUREAU’sVISIT ANAHEIM ’s (or BUREAU’sVISIT ANAHEIM ’s subcontractors, if any) performanceacts, errors, omissions, or failure to perform, under the terms of work, relative to this Agreement; excepting, except for those Claims which arise out of the sole negligence or willful misconduct of CITY.
The obligations set forth in this indemnification provision (i ) shall be in effect without regard to whether or not CITY, VISIT ANAHEIM, or any other person maintains, or fails to maintain, insurance coverage, or a self -insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
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CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
16. NO WAIVER OF RIGHTS
No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision, nor shall any waiver constitute a continuing waiver.
No waiver shall be binding unless executed in writing by the party making the waiver.
17. INSURANCE
17. INSURANCE
Without limiting CITY ’s right to indemnification, BUREAUVISIT ANAHEIM agrees to secure or in the instance of services provided by a subcontractor have the subcontractor secure prior to commencing any activities under this Agreement, and maintain during the term of this Agreement, insurance coverage as follows:
Workers’ Compensation Insurance , as required by California statutes; law and Employers Liability Insurance in an amount not less than $1,000,000 and must include a Waiver of Subrogation
Comprehensive
Commercial General Liability Insurance, or Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/ Completed Operations Liability, Broad -Form Property Damage (if applicable) and Independent Contractors’ Liability (if applicable), in an amount not less than OneTwo Million Dollars ($ 12,000,000.00) per occurrence, combined single limit, written on an occurrence form$4,000,000 annual aggregate. Any deductible or self -insured retention in excess of $10,000 must be disclosed to CITY, in writing, at the inception of this Agreement and is subject to the acceptance of the City’s Risk Manager.
All Risk (not including earthquake and flood) Property coverage on BUREAU’s betterment and improvements.
Each Automobile Liability Coverage, as required by California law, including-as applicable- owned, non- owned, and hired autos, in an amount not less than $2,000,000, combined single limit.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
Professional Liability, inclusive of Cyber Liability, in an amount not less than $2,000,000, and VISIT ANAHEIM shall maintain such coverage for at least one (1) year from termination of this Agreement. Any deductible or self -insured retention in excess of $10,000 must be disclosed to CITY, in writing, at the inception of this Agreement and is subject to the acceptance of the City’s Risk Manager.
Visit Anaheim agrees that each insurance policy required by this Agreement shall contain the following clauses:
“This insurance shall not be canceled, voluntarily cancelled or otherwise limited in scope or coverage, or non-renewed until after thirty (30) days’days prior written notice has been given to CITY by delivery of said written notice to the the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805.”
“It is agreed that any insurance or self -insurance maintained by the CITY , except in the event of cancellation for non-payment of premium which shall apply in excess of and not contribute with insurance provided by this policy.”provide for not less than ten (10) days’ notice.
EachVisit Anaheim agrees that each insurance policy required by this Agreement, excepting policies for workers’ compensationProfessional Liability and professional liability, if any Workers’ Compensation, shall contain the following clauseclauses or shall otherwise provide for the following conditions:
.01 “It is agreed that any insurance maintained by VISIT ANAHEIM or its Subcontractors, pursuant to this Agreement, shall be primary to, and not contribute with, any insurance or self-insurance maintained by the City of Anaheim.” .02 “The City of Anaheim, and its officers, agents, employees, representatives and CITY-designated volunteers are added as additional insureds as respects the named insuredacts, omissions, operations and activities of, or on behalf of , the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
Prior to commencing any work under contractthis Agreement, VISIT ANAHEIM shall deliver to CITY insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, VISIT ANAHEIM shall provide CITY: (i) endorsements to the insurance policies which add to these policies the applicable clauses referenced above; or (ii) in lieu of said endorsements, documentation acceptable to CITY evidencing that the coverage, terms, and conditions set forth in the above -referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with the City of Anaheim .” insurers: (i) admitted to write insurance in California; (ii) possessing an A. M. Best’s rating of A VII or higher; or (iii) otherwise acceptable to CITY, with prior written permission from CITY. In the event that a claim or other legal action is filed against CITY, and if CITY, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then CITY has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that VISIT ANAHEIM shall fully defend, hold harmless, and indemnify CITY against any such claim or other legal action.
In addition to any other remedies CITY may have if BUREAUVISIT ANAHEIM fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, CITY may, at its sole option, after giving BUREAU written notice at least twenty days (20) days prior thereto::
.01 Order VISIT ANAHEIM to stop work under this Agreement and/or withhold any payment(s) which become due to VISIT ANAHEIM hereunder until VISIT ANAHEIM demonstrates compliance with the requirements hereof; or A. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; B. Order BUREAU to stop work under this Agreement and/or withhold any payment(s) which become due to BUREAU hereunder until BUREAU demonstrates compliance with the requirements hereof;
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CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
C..02 Terminate this Agreement.
Exercise of any of the above remedies, however, is
an alternative to other remedies CITY may have and is not the exclusive remedy for BUREAU’sVISIT ANAHEIM’s failure to maintain insurance or secure appropriate endorsements.
Nothing herein contained shall be construed as limiting in any way the extent to which BUREAU VISIT ANAHEIM may be held responsible for payments of damages to persons or property resulting from BUREAU’s VISIT ANAHEIM ’s (or its subcontractor’sVISIT ANAHEIM’s contractors/subcontractor, if any) performance of the work covered under this Agreement , provided, however, that in no event shall VISIT ANAHEIM liability to CITY under this provision exceed the greater of (i) the total amount of the fees paid to VISIT ANAHEIM for such work or services, or (ii) the amount of valid and collectible insurance carried by, maintained by, or otherwise available to VISIT ANAHEIM (or VISIT ANAHEIM’s professional staff, contractors, or sub- contractors), which is applicable to any claim, loss, costs, defense, or liability arising out of this agreement.
In the event VISIT ANAHEIM hires other persons or firms to perform some of the work related to this Agreement, VISIT ANAHEIM s hall ensure, and certify to CITY in writing that: (i) the acts or omissions of such persons or firms are covered under the above - referenced liability insurance; or (ii) such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of VISIT ANAHEIM under this Agreement (except for firms which are not performing professional services -such firms shall not be required to carry the above -referenced professional liability insurance); and in either instance, VISIT ANAHEIM shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to CITY.
Insurance coverage specified herein constitutes the minimum requirements and those requirements do not lessen or limit the liability of BUREAUVISIT ANAHEIM under this Agreement. BUREAUVISIT ANAHEIM shall obtain, at its own expense, any additional kinds and amounts of insurance that it may deem necessary.
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CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
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The CITY’s Risk Manager is hereby authorized to reduce the requirements set forth in this Section in the event the Risk Manager determines that such a reduction is in the CITY’s best interest.
Prior to commencing any work under this Agreement, the BUREAU shall deliver to CITY insurance certificates confirming the existence of the insurance required by this Agreement, and including the applicable clauses referenced above. Also within thirty (30) days of the execution date of this Agreement, BUREAU shall provide to CITY endorsements to the above required policies, which add to these policies the applicable clauses referenced above.
Said endorsements shall be signed by an authorized representative of the insurance company and shall include the signator’s company affiliation and title. Should it be deemed necessary by CITY, it shall be BUREAU’s responsibility to see that CITY receives documentation acceptable to CITY which sustains that the individual signi ng said endorsements is indeed authorized to do so by the insurance company.
Also, CITY has the right to demand, and receive within a reasonable time period, copies of any insurance policies required under this Agreement.
18. NOTICES
Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other party or to any other person shall be in writing and either served personally or sent by pre -paid, first -class mail. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other party shall be addressed as follows:
IF TO BUREAU: VISIT ANAHEIM: Anaheim Visitors & Conv. Bureau 800 W. Katella Avenue 2099 S State College Blvd.
Suite 600
Anaheim, CA 9280292806
Attn: President of BureauVISIT ANAHEIM
IF TO CITY: City Clerk
City of Anaheim
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CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
200 S. Anaheim Boulevard
Anaheim, CA 92805
WITH COPY TO: Executive Director
Convention, Sports and Entertainment
City of Anaheim
800 W. Katella Avenue
Anaheim, Ca CA 92802
Either party may change its address by notifying the other party of the change of address. Notice shall be deemed given within three (3) calendar days after the date of mailing if mailed as provided in this Section.
19. RESERVE ACCOUNT
Under the terminated and superseded prior Agreement dated June 28, 1983, a s amended on March 20, 1984 and July 10, 1990, between BUREAU VISIT ANAHEIM and CITY, BUREAUVISIT ANAHEIM accumulated a sum of money for the stated purpose of providing a reserve to provide funding in the event CITY cannot or does not provide such funding in a timely manner (the “Reserve Account”). The parties agree that the Reserve Account shall be retained by BUREAUVISIT ANAHEIM and used by BUREAUVISIT ANAHEIM exclusively for the benefit of the Convention Center and tourism related activities and pursuant to the terms of this Agreement.
20. ANAHEIM CONVENTION CENTER DATE PRIORITIES
It is well known in the industry that conventions, conferences and trade shows make firm decisions on future meetingmeetings and show sites from three (3) to five (5) years in advance, and, in some cases, six (6) to eight (8) years in advance. Smaller conference groups, generally self contained in hotel facilities, make their decisions two (2) to three (3) years in advance.
On the other hand, local events, consumer shows, socials, athletic events, concerts and similar events generally form their plans on a year -to-year basis. There are a few exceptions to this, and those are major public events which repeat each year and develop a cycle or pattern for their date preference and proven stability for an annual return with high public acceptance.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
In recognition of the foregoing, it is agreed that conventions, conferences, and trade shows, solicited through BUREAUVISIT ANAHEIM , will generally have first priority on date availabilities until twelve (12) months from the current date for all exhibit halls, lobby space, and meeting room space. Those events will have first priority on date availability of the Arena and Arena Lobby until eighteen (18) months from the current date. This shall be referred to as the “12 Month/18 Month Lead Time.”
After the expiration of the “12 Month/18 Month Lead Time,” the management staff of the Anaheim Convention Center will have first priority on date availabilities so that local events, consumer show, socials, athletic events, concerts and similar events can be accommodated in remaining available dates.
Taking into consideration the need to make the Anaheim Convention Center available from time to time for local events, consumer shows, socials, athletic events, concerts and similar events, CITY and BUREAUVISIT ANAHEIM agree to identify mutually agreeable dates at the Anaheim Convention Center for hosting annual events in the Arena or Exhibits Halls. The number of events to receive preferential date accommodation shall not exceed five (5) and shall generally be accommodated during the less desirable dates for conventions, conferences, and trade shows. These five (5) events shall receive “tentative” dates on a five - year cycle, with “firm” dates for these events to be arranged on a two-year cycle.
The management staffs of the Anaheim Convention center and BUREAU VISIT ANAHEIM will continue to cooperate in any other cases involving date availabilities and the “12 Month/18 Month Lead Time” so that the total best interests of Anaheim are served.
21. TERMINATION
A. In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of thirty (30) calendar days, or if more than thirty (30) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within thirty (30) calendar days after receipt of wri tten notice of default, specifying the nature of such
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CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
default and the steps necessary to cure such default, the non- defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof.
B. Either party may terminate this Agreement without cause upon giving the other party at least one hundred and eighty (180) calendar days’ prior written notice.
C. If the ATID is disestablished, the CITY may terminate this Agreement immediately by providing the BUREAUVISIT ANAHEIM notice that the ATID has been disestablished.
22. INDEPENDENT CONTRACTOR
The performance of BUREAU’s VISIT ANAHEIM’s services hereunder shall be in the capacity of an independent contractor and not as an officer, agent, or employee of CITY.
In consideration for the compensation paid to BUREAUVISIT ANAHEIM by CITY, BUREAUVISIT ANAHEIM agrees that CITY shall not be liable or responsible for any benefits, including, but not limited to, worker’s compensation, disability, retirement, life, unemployment, health or any other benefits and BUREAUVISIT ANAHEIM agrees that he shall not sue or file a claim, petition or application therefor e against CITY or any of its officers, employees, agents, representatives or sureties.
23. NO THIRD -PARTY RIGHTS
The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation or undertaking established herein.
24. ENTIRE AGREEMENT
This writing constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all oral or written representations or written agreements which may have been entered into between the parties. No modification or revision shall be of any force or effect, unless the same is in writing and executed by the parties hereto.
If any provision of this Agreement shall be held invalid, such invalidity shall not affect the other provisions hereof, and to this extent, the provisions of this Agreement are intended to be and shall be deemed severable. The parties shall agree, if reasonably practicable,
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
upon provisions which are equivalent from an economic point of view to replace any provision which is determined to be invalid.
25. LAWS GOVERNING CONSTRUCTION OF TERMS
This agreement shall be governed by the laws of the State of California. If any portion of this Agreement is held invalid under any applicable statute or rule of law, then such portion only shall be deemed invalid.
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26. FORCE MAJEURE
No party shall be considered to be in default in the performance of any of its obligations under this Agreement (other than obligations to make payments for bills rendered pursuant to this Agreement) when a failure of performance shall be due to uncontrollable force.
The term “uncontrollable force” shall mean any cause beyond the control of the party unable to perform such obligations, including, but not limited to, a pandemic, failure of or threat of failure of facilities, flood, earthquake, storm, drought, fire, pestilence, lightning and other natural catastrophes, epidemic, war, riot, civil disturbance or disobedience, strike, labor dispute, labor or material shortage, sabotage, government priorities, restraint by court order or public authority and action or non- action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, which by the exercise of due diligence such party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome.
27. AUTHORITY AND EFFECTIVE DATE
BUREAUVISIT ANAHEIM and BUREAU’sVISIT ANAHEIM ’s signators represent that the signators hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of BUREAUVISIT ANAHEIM and to bind BUREAUVISIT ANAHEIM hereto.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
CITY and CITY’s signators represent that the signators hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of CITY and to bind CITY hereto.
The effective date of this Agreement shall be December 1, 2010upon asttestation of this Agreement by the City Clerk (“Effective Date”) . In the event BUREAUVISIT ANAHEIM fails to set forth a date of execution opposite the name(s) of BUREAU's VISIT ANAHEIM's signator(s), BUREAUVISIT ANAHEIM hereby authorizes CITY, by and through its representative, to insert the date of execution by BUREAU's VISIT ANAHEIM's signator(s) as the date this Agreement, as executed by BUREAUVISIT ANAHEIM, is received by CITY.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
CITY OF ANAHEIM,
a municipal corporation
By______________________________
Mayor
DATE OF EXECUTION: ATTEST:
_________________________ ________________________________ City Clerk
"CITY"
APPROVED AS TO FORM:
Robert Fabella, CITY ATTORNEY
By__________________________
City Attorney
Date________________________
ANAHEIM/ORANGE COUNTY VISITOR &
CONVENTION BUREAU (dba “VISIT
ANAHEIM”)
DATE OF EXECUTION: By______________________________
_________________________ Printed Name____________________
Title___________________________
"BUREAUVISIT ANAHEIM "
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
APPROVED AS TO FORM:
CRISTINA L. TALLEY, CITY ATTORNEY
By__________________________
Aaron C. Harp
Senior Assistant City Attorney
Date________________________
78808