Loading...
HomeMy WebLinkAboutCOVA documentsDeschutes County Department of Administrative Services Tom Anderson, County Administrator MEMORANDUM DATE: May 5,2014 TO: Board of County Commissioners FROM Tom Anderson, County Administrator SUBJECT: Proposed COVA Grant Agreement Background: Following several Board discussions, staff has negotiated a new proposed Grant Agreement with COVA that reflects changes to the timing and method of COVA's communication and reporting to the Board of Commissioners, a modified Transient Room Tax (TRT) distribution structure, and revised notification obligations of the County with respect to COVA Discussion: Summary of major proposed Grant Agreement elements: • Begins 5-1-14. Subject to termination provisions, will automatically renew each year thereafter. • Includes notification requirements to COVA on proposed funding reductions, if any. • In addition to a proposed annual budget and marketing plan, includes the requirement for twice yearly presentations to the Board of Commissioners on COVA's performance under the approved marketing plan. • COVA would receive 20% of net TRT receipts in Fund 160 (the "first 6 %,,), as they generally have historically. This 20% portion will first be reduced by the amount of transfers to the Sunriver Chamber of Commerce (currently $23,476) and to the Fair & Expo Center (currently $25,744). • COVA would receive 100% of net (after deducting for collection and administrative expenses) TRT receipts in Fund 170 (the "the first 1 % after 6 %"), as they did prior to FY 013-14. In FY 15 only, the historical $82,800 transfer to the Fair &Expo Center will also be deducted. • COVA would not receive any TRT receipts from the new 1 % increase authorized by the voters last November. Those funds are dedicated to the Fair &Expo Center. • The total amount granted to COVA may be more or less than the County's budgeted appropriation, depending on actual receipts each year. • 12 months notice is required by either party for termination for convenience, although the County may terminate the agreement with 30 days notice for material breach. Requested Board Action: Discuss and provide direction on any additional modifications to the agreement. Authorize County Administrator signature of the final agreement. Page 1 of 7 – Central Oregon Visitors Association Agreement GRANT AGREEMENT This GRANT AGREEMENT (hereinafter “Agreement”) is entered into on this ______ day of _______, 2014 by Deschutes County (hereinafter “COUNTY”) and the Central Oregon Visitors Association (hereinafter “COVA”). RECITALS WHEREAS, COUNTY collects transient lodging taxes; and WHEREAS, COUNTY recognizes the general economic benefit of tourism; and WHEREAS, COUNTY has historically supported COVA in its mission of promoting tourism in the County; and WHEREAS, COVA has generated considerable success in growing the tourism industry in Central Oregon over the years and has been a valued partner of the COUNTY during that time; and WHEREAS, Oregon law recognizes that grant agreements are not subject to competitive solicitation requirements generally applicable to public contracts. NOW, THEREFORE, the parties agree as follows: 1. EFFECTIVE DATE. The effective date of this Agreement is May 1, 2014 or the date on which it is fully executed by the parties, whichever is later. 2. TERM. The term of this Agreement shall be for one year. The term of this Agreement shall automatically renew each year, unless terminated sooner as provided herein. No less than (30) days prior to the beginning of the fiscal year for which funding is or would be offered, COUNTY will provide written notice to COVA of its intent to reduce the funding amount from the immediately preceding fiscal year. County will provide (90) days notice if the County Administrator’s recommended budget includes a reduction to the funding amount. 3. DEFINITIONS. A. “Annual Budget” means COVA’s annual budget, for work required by this Agreement. B. “Annual Marketing Plan” means COVA’s annual marketing plan for tourism promotion services to Central Oregon generally and to Deschutes County in particular. C. “Bi-Annual Report On Performance” means a twice-annual report to the Deschutes County Budget Committee and the Board of County Commissioners, including statistics and summary reports on the success of the Annual Marketing Plan. D. “Contract Year” means the period from July 1 to the immediately following June 30. Page 2 of 7 – Central Oregon Visitors Association Agreement 4. ANNUAL MARKETING PLAN, ANNUAL BUDGET, AND BI-ANNUAL REPORT ON PERFORMANCE. COVA’s work under this Agreement shall be performed in accordance with the current Annual Marketing Plan and current Annual Budget, in accordance with the provisions of this Paragraph 4. A. Deadlines for Annual Marketing Plan and Annual Budget. As part of the annual budget hearings conducted in May of each year by the Deschutes County Budget Committee, COVA shall submit and present to COUNTY a proposed annual marketing plan and a proposed annual budget for marketing tourism in Central Oregon during the Contract Year. In addition, the May presentation shall include one of the two most recent bi-annual reports on COVA’S performance under the Annual Marketing Plan. At a date mutually agreed upon by the COUNTY and COVA, usually in December of each year, COVA shall submit to the Board of County Commissioners a current Bi-Annual Report on Performance under the Annual Marketing Plan. B. Required Content for Annual Marketing Plan. COVA’s proposed annual marketing plan shall describe COVA’s proposed work for the upcoming Contract Year. The marketing plan shall include elements, such as: a. Direct Marketing Activities and Web Site Development. b. Market Research. c. Advertising. d. Public Relations. Other Proposed Activities. . C. Required Content for Annual Budget. COVA’s proposed annual budget shall contain specific details of proposed expenditures for the upcoming Contract Year, including personnel costs, and any additional information COUNTY may require. D. Required Content for Bi-Annual Report on Performance. COVA’s Bi-Annual Report on Performance shall include statistics and summary reports sufficient to demonstrate the effectiveness of the elements of the Annual Marketing Plan described in paragraph 4-B above. Measures indicative of success could include room occupancy, tourism dollars spent in the region and in the county, flight bookings and anecdotal reports from operators of tourism facilities and services in the region and counts, among others. 5. BASIS AND METHOD OF PAYMENT A. While the parties recognize that future governing bodies of the COUNTY may decide otherwise, beginning in fiscal Year 2014-15, the COUNTY intends to provide funds in an amount consistent with the historic level of funding for tourism promotion or tourism-related facilities, which means 20% of net room tax revenues (after deducting for transfers to the Sunriver Chamber of Commerce and the Deschutes County Fair and Expo Center, which have historically been Page 3 of 7 – Central Oregon Visitors Association Agreement between $23,000 and $26,000 each) generated by the first 6% of the County's 8% transient lodging tax, and 100% of net revenues of the next 1%.(between 6% and 7%), after deducting for indirect and collection charges and administrative expenses. In fiscal year 2014-15 only, an additional $82,800 transfer will be made to the Deschutes County Fair and Expo Center out of the amount that will be provided to COVA. The remaining one percent (1% above 7%) of net revenue is intended for the Deschutes County Fair and Expo Center and the General Fund. B. Total Annual Cost of Services The total annual amount payable to COVA for services shall be subject to the amount appropriated by the Deschutes County Budget Committee and the Board of Commissioners in the County's annual adopted budget. If appropriations are based on a percentage of actual net room tax receipts, the total amount granted to COVA may be more or less than the County’s budgeted appropriation. C. Disbursement of Annual Payments. COUNTY shall pay COVA an amount commensurate to the percentages described in paragraph 5.A. in monthly disbursements. D. Funding Reductions. Funding reductions occurring at any time during a Contract Year may affect the amount of the Annual Payment and monthly disbursements. 6. AUDITS A. Audits. COUNTY may conduct a performance review of COVA’s performance and/or a review of COVA’s records, books and accounts related to matters covered by this Agreement, in accordance with the procedures described in this paragraph. In the event that COUNTY wishes to conduct such a review, COUNTY shall give COVA at least ten (10) days prior written notice, identifying the reasons COUNTY wishes to conduct the proposed review. No later than ten (10) days after the date of the notice, COVA shall permit COUNTY to inspect all records, books and accounts that are relevant to the reasons identified by COUNTY in the written notice, and shall provide COUNTY with a written response to the reasons identified in COUNTY’s notice. After the expiration of the ten (10) day period, if COUNTY determines in its reasonable discretion that the review should proceed, the review shall be conducted by COUNTY’s auditor or by a firm selected by COUNTY. The cost of such review will be deducted from the COVA’s annual payment. B. COVA’s Cooperation. COVA shall cooperate in good faith with COUNTY and with any outside firm retained by COUNTY in any matter related to an audit or review permitted by this Paragraph 8. COVA shall provide any books, records, or other information requested in writing within five (5) business days of any request. 7. TERMINATION Page 4 of 7 – Central Oregon Visitors Association Agreement A. Termination. This Agreement may be terminated by the mutual consent of the parties. In addition, COUNTY may terminate this Agreement as follows: 1. Material Breach. In the event that COVA shall default in the material obligations or conditions set forth in this Agreement, or shall commit any act the nature of which would tend to bring discredit or embarrassment to COUNTY or its operations, and such default continues unremedied or COVA has not taken reasonable steps to cure the default for ten (10) business days after written notice of said material default to COVA, thereupon, at COUNTY’s option, this Agreement may be terminated upon thirty (30) days’ written notice by COUNTY. 2. No Annual Approved Marketing Plan or Annual Approved Budget. Notwithstanding any provision in this Agreement to the contrary, In the event that COUNTY does not approve an Annual Marketing Plan or an Annual Budget at least ten (10) days before the first day of the next Contract Year, this Agreement shall terminate automatically on the last day of the current Contract Year. 3. Termination without cause. Either party may terminate this agreement for any or no reason by furnishing the other party with not less than (12) twelve months prior written notice. 4. Effect of Termination. COUNTY’s termination of this Agreement shall not have the effect of waiving any claims or remedies it may have against COVA. Termination shall not affect payment for expenses or legally binding commitments properly incurred in accordance with the Annual Approved Budget, prior to termination, but neither party shall be liable for indirect or consequential damages arising from termination under this section. 8. COUNTY’S DUTIES A. Cooperation 1. COUNTY shall cooperate in good faith with COVA and COVA’s staff. COUNTY shall attend meetings reasonably requested by COVA related to the services required by this Agreement, provided that COVA provides sufficient advance notice to COUNTY so that COUNTY has a reasonable opportunity to arrange attendance. 2. COUNTY shall act in good faith to assist COVA non-monetarily in showcasing Central Oregon, and responding to requests from potential tour organizers. B. COUNTY Reporting. COUNTY shall provide COVA with information related to the services required by this Agreement in a timely and complete manner, so as not to delay COVA’s performance of reporting requirements that may be dependent on such information. Page 5 of 7 – Central Oregon Visitors Association Agreement 9. COUNTY ADMINISTRATOR. The COUNTY Administrator, or his or her designee, shall have the authority to administer all aspects of this Agreement. 10. INSURANCE A. COVA shall purchase and maintain, at COVA’s expense, the following types of insurance, covering COVA, its employees and agents: 1. Commercial General Liability (CGL) insurance coverage for personal injury, bodily injury, advertising injury, property damage, premises, operations, products, completed operations and contractual damages. By separate endorsement, the policy shall name Deschutes County, its officers, agents, employees and volunteers as an additional insured. Commercial General Liability policies shall provide minimum limits of $1,000,000 per occurrence/ 2,000,000 aggregate; and 2. Automobile Liability Insurance for bodily injury and property damage complying with minimum State of Oregon financial responsibility requirements under ORS 806.070. B. COUNTY, its elected and appointed officials, departments, employees, and agents shall be named as ADDITIONAL INSUREDS by policy endorsement. Notice of any material change or policy cancellation shall be provided to COUNTY thirty (30) days prior to the change or cancellation. C. COVA, its subcontractors, if any, and all employers working under this Agreement that are subject employers under the Oregon Workers’ Compensation Law shall comply with ORS 656.017, which requires them to provide Workers’ Compensation coverage for all their subject workers. COVA shall provide COUNTY with certification of Workers’ Compensation insurance including employer’s liability. D. COVA shall provide COUNTY with a certificate of insurance complying with this article and an endorsement, naming COUNTY as additional insureds under its liability policies within fifteen (15) days of execution of this Agreement or twenty- four (24) hours before services under this Agreement commence, whichever date is earlier. 11. INDEMNIFICATION. To the fullest extent authorized by law COVA shall indemnify and hold COUNTY, its agents, employees, and appointed officials harmless from any and all claims, demands, damages, actions, losses and expenses, including attorney’s fees, arising out of or in any way connected with its performance of this Agreement, or with any patent infringement or copyright claims arising out of the use of COVA’s designs or other materials by COUNTY and for any claims or disputes involving subcontractors. 12. MAINTENANCE OF RECORDS. COVA shall maintain all of its records relating to this Agreement on a generally accepted accounting basis and allow COUNTY the opportunity to inspect and/or copy such records at a convenient place during normal business hours. All required records shall be maintained by COVA for three years after COUNTY makes final payment and all other pending matters are closed. Page 6 of 7 – Central Oregon Visitors Association Agreement 13. OWNERSHIP OF DOCUMENTS. COVA and its contractors shall provide COUNTY with a non-exclusive, royalty-free license to produce and reproduce all documents of any nature, including, but not limited to, reports, drawings, and works of art, but not photographs, produced by or on behalf of COVA. COVA hereby conveys, transfers, and grants to COUNTY all rights of reproduction and the copyright of all such documents for which COVA obtains ownership. 14. INDEPENDENT STATUS. COVA shall be an independent entity for all purposes and shall be entitled only to the compensation provided for in this Agreement. Under no circumstances shall COVA be considered an employee or agent of COUNTY. COVA shall provide all tools or equipment necessary to carryout this Agreement, and shall exercise complete control in achieving the results specified in this Agreement. COVA is solely responsible for its performance under this Agreement, the quality of its work, for obtaining and maintaining all licenses and certifications necessary to carry out this Agreement, for payment of all fees, taxes, royalties, or other expenses necessary to complete the work except as otherwise specified in this Agreement, and for meeting all other requirements of law in carrying out this Agreement. COVA shall identify and certify tax status and identification number through execution of IRS form W -9 prior to submitting to COUNTY any request for payment. 15. RIGHT TO WITHHOLD PAYMENTS. In the event that COVA fails to perform an obligation required by this Agreement, and such failure continues unremedied for ten (10) business days after written notice to COVA of such failure to perform, COUNTY shall have the right to withhold from payments due to COVA such sums as necessary, in COUNTY’s sole discretion, to protect COUNTY against any loss, damage, or claim which may result from COVA’s performance or failure to perform under this Agreement or the failure of COVA to make proper payment to any suppliers or subcontractors. 16. FORCE MAJEURE. If any casualty or unforeseen occurrence outside the control of COVA (including any act of terrorism in the United States that results in a disruption of travel to or from Central Oregon) renders the performance of the services required by the Annual Approved Marketing Plan impossible, then COUNTY and COVA shall confer in good faith to discuss revisions to the Annual Approved Marketing Plan (including the qualitative and quantitative goals) and the Annual Approved Budget. Notwithstanding the foregoing, COUNTY shall have the final right to determine whether to revise the Annual Approved Marketing Plan, the qualitative and quantitative goals, and/or the Annual Approved Budget. 17. STATE AND FEDERAL LAW CONSTRAINTS. Both parties shall comply with the public contracting provisions of ORS Chapters 279A and 279B, to the extent those provisions apply to this Agreement. All such provisions required to be included in this Agreement are incorporated herein by reference. COVA shall comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations including those of the Americans with Disabilities Act. Except as otherwise specifically provided, the provisions of Deschutes County Code, Section 2.37.150 are incorporated herein by reference. Such code section may be found at the following URL address: http://www.co.deschutes.or.us/dccode/Title2/html/Chapter2.37.htm. 18. SITUS. The situs of this Agreement is Bend, Oregon. Any litigation over this Agreement shall be governed by the laws of the State of Oregon and shall be conducted Page 7 of 7 – Central Oregon Visitors Association Agreement in the Circuit Court of the state of Oregon for Deschutes County, or, if jurisdiction is proper, in the U.S. District Court for the District of Oregon. 19. ASSIGNMENT. This Agreement is binding on each party, its successors, assigns, and legal representatives and may not, under any circumstance, be assigned or transferred by either party. 20. NO WAIVER OF CLAIMS. The failure to enforce any provision of this Agreement shall not constitute a waiver by either party of that or any other provision. 21. MODIFICATION. Notwithstanding and succeeding any and all prior agreement(s) or practice(s), this Agreement constitutes the entire Agreement between the parties, and may only be expressly modified in writing(s), signed by both parties. 22. COUNTY MEMBERSHIP. County shall be a member of COVA without obligation to pay or contribute membership dues. CENTRAL OREGON VISITORS ASSOCIATION DESCHUTES COUNTY _______________________________ _________________________________ Executive Director Date County Administrator Date