HomeMy WebLinkAboutresolution.council.103-09RESOLUTION #103
(Series of 2009)
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF
ASPEN, COLORADO, AND THE ASPEN CHAMBER RESORT
ASSOCIATION SETTING FORTH THE TERMS AND CONDITIONS
REGARDING MARKETING AND TOURISM PROMOTION SERVICES AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council an agreement
between the City of Aspen, Colorado, and the Aspen c\Chamber Resort
Association, a copy of which agreement is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that agreement
between the City of Aspen, Colorado, and the Aspen Chamber Resort Association
regarding marketing and tourism promotion services for the city of Aspen, a copy
of which is annexed hereto and incorporated herein, and does hereby authorize the
City Manager of the City of Aspen to execute said contract on behalf of the City of
Aspen.
Dated:
Michael C. eland, Mayor
I, Kathryn S. Koch, duly appointed and acting Ciry Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held December 7, 2009.
K S. Koch, City Clerk
Third Amended and Restated
CITY OF ASPEN AND ACRA
TOURISM PROMOTION FUND AGREEMENT
THIS AGREEMENT is effective this 7`" day of December, 2009, by and between the CITY
OF ASPEN (the "City") and the ASPEN CHAMBER RESORT ASSOCIATION ("ACRA"),
RECITALS
1. The City and ACRA entered into that certain Agreement dated February 27, 2001,
and the parties hereto desire to renew said agreement.
2. The City Council has adopted Ordinance No. 45, Series of 2000, which imposes a
1.0% visitor benefits tax on condition that the voters of the City of Aspen approve the
aforementioned ballot question at the November 7, 2000 municipal election, which the voters did
approve.
3. Ordinance No. 45, Series of 2000, requires the City Council to appropriate 50% of
all revenues generated by the tax for marketing and promotional efforts for the City's tourism
industry.
4. The City desires to contract with an organization capable of performing the
marketing and promotional efforts contemplated by said ordinance.
5. The Aspen Chamber Resort Association desires to contract with the City to receive
funds appropriated by the City Council for tourism promotion activities and to thereafter perform
such tourism promotion activities on behalf of the City of Aspen.
AGREEMENT
In consideration of the mutual covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties
agree as follows:
1. Intent of the parties. The parties to this Agreement agree that the following sets
forth their intent in entering into this agreement and the principles set forth below shall help guide
al] future interpretations of this Agreement and the parties continuing relationship with respect to
the expenditure of tourism promotion funds of the City of Aspen.
a. The parties acknowledge that the City shall use funds generated by the
visitor benefits tax imposed by Ordinance No. 45, Series of 2000, to meet its
financial obligations pursuant to this Agreement. Accordingly, the parties
acknowledge that the purpose, limitations, and administrative requirements of such
funds as set forth in said ordinance shall apply to this Agreement.
b. The parties intend to enter into a continuing relationship for multi-year
planning and implementation of tourism promotion activities as set forth herein.
c. The parties acknowledge that the purpose of 50% of the 1% visitor benefits
tax is to, inter alia, to generate sufficient funds primarily for new (i.e. developed
since February 27, 2001, strategies and activities) for planning and delivering
tourism promotion activities on behalf of the City of Aspen. Accordingly, the
marketing plan and budget contemplated by this Agreement shall be primarily for
new strategies and activities not currently fended by the City, ACRA or other third
parties that support the goal of bringing new visitors to Aspen.
2. Scope of Services and Marketing Proms.
a. During the City's annual budget review and adoption procedures, ACRA
shall recommend a marketing plan and budget for the City's forthcoming calendar
year.
b. The marketing plan and budget shall include the following:
1. planning and implementing the advertisement, promotion, and
development of tourism in the City of Aspen;
2. tourism advertising, written and graphic materials, and cooperative
and matching promotional materials;
3. gathering and disseminating information on the tourist industries and
attractions of the City of Aspen;
4. purchasing such equipment, materials, and supplies as shall be
necessary, to be used solely for tourist promotion;
5. contracting for those services and materials as may be incidental,
necessary, and appropriate to the accomplishment of the purposes of
the fund, including but not limited to, administrative, secretarial,
clerical, or professional services deemed necessary;
6. promoting conferences, conventions, and meetings of a commercial,
cultural, educational, or social nature to the City of Aspen;
promoting sporting events and social and cultural events sponsored
by non-profit organizations;
8. defraying administrative and clerical costs of collecting and
administering the tax, provided such expenses do not exceed the
actual costs of such administrative and clerical costs.
c. The marketing services shall be generally primarily for new (i.e. developed
since February 27, 2001 strategies and activities), and ACRA shall not defray costs
of existing programs, special events and marketing efforts including airport host
program, visitor center support among others with funds from the marketing fund.
2
Mazketing funds may be used to enhance or promote existing tourism promotion
programs and special events.
d. The general nature and content of advertising paid for by the marketing fund
shall follow these guidelines: the purpose of advertising and promotion shall be to
enhance the year-round economy and public welfaze of the City as a whole;
advertising and promotional efforts shall avoid undue emphasis upon any particular
commercial activity or enterprise that might be construed to create a competitive
disadvantage to other similar commercial enterprises; and there shall be no
advertising or promotion that is misleading or deceptive and therefore opposed to
the public interest or prejudicial to the interests of the City.
e. ACRA shall be solely responsible for planning and implementation of
specific details of the marketing program and may include the lodging community in
such planning. ACRA shall monitor the program and ensure conformance to its
budget. At least 70 per cent of the funds are to be expended on program costs, rather
than on support or staff. ACRA shall not use fund proceeds for its existing
operational costs, for expenses not directly attributable to the purposes of this
Agreement, or expenses not identified in its annual marketing plan and budget as
approved by the City Council.
£ The ACRA and the Aspen Lodging Association shall meet at least annually
before October 15`h of each calendar year to review a tourism promotion plan and
budget for the City's following fiscal year prior to presentation to the City Council.
3. Term. The term of this Agreement shall be from January 1, 2010, through December
31, 2012. This Agreement maybe terminated by either party as set forth at Section 7, below.
4. Reporting and Budgeting. ACRA shall submit a detailed mazketing program and
expense budget for inclusion in City's budget packets, along with a review of the previous year's
program. The City Manager shall provide budget recommendations, including an estimate of
prospective tax proceeds, general fund contributions, prior year carry-forwazd balance, and interest
income. The marketing fund shall be eliminated from the City's Grant Panel Review process in
that it is its own separate fund. The ACRA is allowed and encouraged to attend and advise the City
Council at all such meetings where the marketing program and budget is discussed. ACRA shall
provide annual reports to the City on the fund and expenditures from it.
5. Accountine. The City shall pay over to ACRA the marketing funds raised by the tax
on a monthly basis. ACRA shall be responsible for paying its vendors, suppliers, subcontractors,
staff, and the like. ACRA shall maintain the tax fund receipts in a separate and interest-bearing
bank account from its general funds. The City may inspect ACRA's records upon reasonable notice.
All marketing funds accrued during the life of this Agreement shall be paid over to ACRA,
although ACRA shall account for and refund any funds not expended for the purposes set forth in
this Agreement.
6. Supplemental Funding. The City agrees for the calendaz yeaz 2010, to supplement
from the City's General Fund the funds raised from the tourism promotion tax by the amount of
$500,000. In November of 2010, the City may pursue additional funding for tourism promotion in
3
the form of an additional 1 % lodging tax. If the additional funding for tourism promotion is
approved by voters, the tourism promotion fund will repay the City's General Fund $400,000. The
repayment shall be $100,000 per year for four years beginning in 2011, unless otherwise,
determined by mutual consent. In the event the proposed lodging tax is not approved by voters, the
$400,000 shall be repaid to the City General Fund from the existing lodging tax in the amount of
$50,000 per year over eight years, beginning in 2011, unless sooner required in order for the City to
be in compliance with its adopted Financial Policies as maybe amended by the City Council
7. dual Access. Any and all businesses within the City shall be permitted equal access
and opportunity to participate in cooperative advertising efforts and package promotions
specifically related to and supported by the use of the marketing funds referenced in this
Agreement, whether or not the business is a member of the ACRA or the Aspen Lodging
Association. That is, to the maximum extent possible, ACRA shall make a distinction between
member service and other existing programs supported by membership dues, and new programs
supported by the City by this Agreement, and as to the latter, not discriminate based on
membership in the organizations.
8. Termination. Either party may terminate this agreement effective on December 31,
2010, or December 31, 2011; provided, however, that written notice is delivered to the other party
no later than September 30 of the year preceding the calendar year that termination is to become
effective.
9. Other Restrictions and Provisions.
a. The City shall not unreasonably withhold or redirect funds from the
marketing funds raised by the visitor benefits tax that are to be handled by the ACRA. These are
intended to be additional funds for marketing, and the intent is that the City will continue its
existing funding (for the visitors center, etc.) as a floor, and not lessen those so that the marketing
funds from the tax are not absorbed into existing ACRA/City programs.
b. The marketing funds shall not be used for city capital projects such as the
construction of visitor information centers or other tourist amenities.
c. The City Council shall not, without prior consultation with ACRA, change
the agent assigned to manage the tourism marketing funds. Nor shall the City change that agent
without some sort of cause and explanation, and it shall consult with the ACRA as to any new fund
manager.
d. ACRA shall not use any of the marketing fund for providing direct
reservation services.
e. ACRA shall not use fund proceeds to influence the outcome of any election.
10. Bindin Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, representatives, successors and assigns and to any
person into or with which any party hereto may merge, consolidate, or reorganize.
4
11. Acknowledgments. The parties declare that they have read and understand the
terms of this Agreement, that they have had an opportunity to be represented by counsel with
regard to the execution of this Agreement, and that they execute this Agreement voluntarily and
without being pressured or influenced by any statement or representation made by any person
acting on behalf of any one else.
12. Indemnification. ACRA agrees to indemnify and hold harmless the City, its officers,
employees, insurers, from and against al] liability, claims and demands on account of injury, loss,
or damage, arising out of or in any manner connected with this Agreement, if such injury, loss, or
damage is caused in whole or in part, or is claimed to be caused in whole or in part by, the act,
omission, error, mistake, negligence, or other fault of ACRA, employee, representative, or agent.
ACRA agrees to investigate, handle, respond to, and to provide a defense for and defend against
any such liability, claims or demands at the sole expense of ACRA, or at the option of the City,
ACRA agrees to pay the City or reimburse the City for the defense costs incurred by the City in
connection with, any such liability, claims or demands. If it is determined by the final judgment of
a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by
the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse
ACRA for the portion of the judgment attributable to such act, omission, or other fault of the City,
its officers, or employees. If any lawsuit challenges the City's authority to impose the visitor
benefits tax, the City shall be primarily responsible for the defense of the suit.
13. No Warranties. Except as expressly set forth in this Agreement, the parties have not
made and make no other representations, warranties, statements, promises or agreements to each
other.
14. Entire Agreement. The parties agree that this Agreement represents the entire
agreement and supersedes all prior agreements between and among them with regard to the subject
matter set forth herein, and may not be amended nor may any condition contained herein be waived
except by written instrument signed by all parties
15. Notices. Notices hereunder shall be sent to the City Manager and the City Attorney
at 130 S. Galena Street, Aspen CO 81611; to ACRA at Aspen Chamber Resort Association, 425
Rio Grande Place, Aspen CO 81611; and to Oates, Knezevich & Gardenswartz, P.C., 533 East
Hopkins Avenue, Aspen CO 81611.
16. Counterpart Si nagn lures. This document may be executed in counterpart original
copies, with the original signatures on separate pages to be collated together on one original form
of the agreement.
Attest:
Clerk
CI~PEN, a municipal corporation
~~ ~~~
By:
ASPEN CHAMBER RESORT ASSOCIATION
Attest: ~ 11~1~~~,
By: Debbie Braun, President
Secretary
6
Third Amended and Restated
CITY OF ASPEN AND ACRA
TOURISM PROMOTION FUND AGREEMENT
THIS AGREEMENT is effective this 7`h day of December, 2009, by and between the CITY
OF ASPEN (the "City") and the ASPEN CIIAMBER RESORT ASSOCIATION ("ACRA"),
RECITALS
1. The City and ACRA entered into that certain Agreement dated February 27, 2001,
and the parties hereto desire to renew said agreement.
2. The City Council has adopted Ordinance No. 45, Series of 2000, which imposes a
1.0% visitor benefits tax on condition that the voters of the City of Aspen approve the
aforementioned ballot question at the November 7, 2000 municipal election, which the voters did
approve.
3. Ordinance No. 45, Series of 2000, requires the City Council to appropriate 50% of
all revenues generated by the tax for marketing and promotional efforts for the City's tourism
industry.
4. The City desires to contract with an organization capable of performing the
marketing and promotional efforts contemplated by said ordinance.
5. The Aspen Chamber Resort Association desires to contract with the City to receive
funds appropriated by the City Council for tourism promotion activities and to thereafter perform
such tourism promotion activities on behalf of the City of Aspen.
AGREEMENT
In consideration of the mutual covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties
agree as follows:
1. Intent of the narties. The parties to this Agreement agree that the following sets
forth their intent in entering into this agreement and the principles set forth below shall help guide
all future interpretations of this Agreement and the parties continuing relationship with respect to
the expenditure of tourism promotion funds of the City of Aspen.
a. The parties acknowledge that the City shall use funds generated by the
visitor benefits tax imposed by Ordinance No. 45, Series of 2000, to meet its
financial obligations pursuant to this Agreement. Accordingly, the parties
acknowledge that the purpose, limitations, and administrative requirements of such
funds as set forth in said ordinance shall apply to this Agreement.
b. The parties intend to enter into a continuing relationship for multi-year
planning and implementation of tourism promotion activities as set forth herein.
c. The parties acknowledge that the purpose of 50% of the 1% visitor benefits
tax is to, inter alia, to generate sufficient funds primarily for new (i.e. developed
since February 27, 2001, strategies and activities) for planning and delivering
tourism promotion activities on behalf of the City of Aspen. Accordingly, the
mazketing plan and budget contemplated by this Agreement shall be primarily for
new strategies and activities not currently funded by the City, ACRA or other third
parties that support the goal of bringing new visitors to Aspen.
2. Scope of Services and Marketing Program.
a. During the City's annual budget review and adoption procedures, ACRA
shall recommend a marketing plan and budget for the City's forthcoming calendar
year.
b. The marketing plan and budget shall include the following:
planning and implementing the advertisement, promotion, and
development of tourism in the City of Aspen;
tourism advertising, written and graphic materials, and cooperative
and matching promotional materials;
gathering and disseminating information on the tourist industries and
attractions of the City of Aspen;
4. purchasing such equipment, materials, and supplies as shall be
necessazy, to be used solely for tourist promotion;
contracting for those services and materials as may be incidental,
necessary, and appropriate to the accomplishment of the purposes of
the fund, including but not limited to, administrative, secretarial,
clerical, or professional services deemed necessary;
6. promoting conferences, conventions, and meetings of a commercial,
cultural, educational, or social nature to the City of Aspen;
promoting sporting events and social and cultural events sponsored
by non-profit organizations;
8. defraying administrative and clerical costs of collecting and
administering the tax, provided such expenses do not exceed the
actual costs of such administrative and clerical costs.
c. The mazketing services shall be generally primarily for new (i.e. developed
since February 27, 2001 strategies and activities), and ACRA shall not defray costs
of existing programs, special events and marketing efforts including airport host
program, visitor center support among others with funds from the marketing fund.
2
Mazketing funds may be used to enhance or promote existing tourism promotion
programs and special events.
d. The general nature and content of advertising paid for by the marketing fund
shall follow these guidelines: the purpose of advertising and promotion shall be to
enhance the year-round economy and public welfaze of the City as a whole;
advertising and promotional efforts shall avoid undue emphasis upon any particular
commercial activity or enterprise that might be construed to create a competitive
disadvantage to other similaz commercial enterprises; and there shall be no
advertising or promotion that is misleading or deceptive and therefore opposed to
the public interest or prejudicial to the interests of the City.
e. ACRA shall be solely responsible for planning and implementation of
specific details of the mazketing program and may include the lodging community in
such planning. ACRA shall monitor the program and ensure conformance to its
budget. At least 70 per cent of the funds are to be expended on program costs, rather
than on support or staff. ACRA shall not use fund proceeds for its existing
operational costs, for expenses not directly attributable to the purposes of this
Agreement, or expenses not identified in its annual marketing plan and budget as
approved by the City Council.
f The ACRA and the Aspen Lodging Association shall meet at least annually
before October 15`h of each calendar year to review a tourism promotion plan and
budget for the City's following fiscal year prior to presentation to the City Council.
3. Tenn. The term of this Agreement shall be from Januazy 1, 2010, through December
31, 2012. This Agreement maybe terminated by either party as set forth at Section 7, below.
4. Reporting and Budgeting. ACRA shall submit a detailed marketing program and
expense budget for inclusion in City's budget packets, along with a review of the previous yeaz's
program. The City Manager shall provide budget recommendations, including an estimate of
prospective tax proceeds, general fund contributions, prior year carry-forward balance, and interest
income. The mazketing fund shall be eliminated from the City's Grant Panel Review process in
that it is its own separate fund. The ACRA is allowed and encouraged to attend and advise the City
Council at all such meetings where the mazketing program and budget is discussed. ACRA shall
provide annual reports to the City on the fund and expenditures from it.
5. Accounting. The City shall pay over to ACRA the marketing funds raised by the tax
on a monthly basis. ACRA shall be responsible for paying its vendors, suppliers, subcontractors,
staff, and the like. ACRA shall maintain the tax fund receipts in a separate and interest-bearing
bank account from its general funds. The City may inspect ACRA's records upon reasonable notice.
All mazketing funds accrued during the life of this Agreement shall be paid over to ACRA,
although ACRA shall account for and refund any funds not expended for the purposes set forth in
this Agreement.
6. Sunnlemental Funding. The City agrees for the calendaz yeaz 2010, to supplement
from the City's General Fund the funds raised from the tourism promotion tax by the amount of
$500,000. In November of 2010, the City may pursue additional funding for tourism promotion in
3
the form of an additional 1 % lodging tax. If the additional funding for tourism promotion is
approved by voters, the tourism promotion fund will repay the City's General Fund $400,000. The
repayment shall be $100,000 per yeaz for four yeazs beginning in 2011, unless otherwise,
determined by mutual consent. In the event the proposed lodging tax is not approved by voters, the
$400,000 shall be repaid to the City General Fund from the existing lodging tax in the amount of
$50,000 per yeaz over eight yeazs, beginning in 2011, unless sooner required in order for the City to
be in compliance with its adopted Financial Policies as maybe amended by the City Council
7. Eoual Access. Any and all businesses within the City shall be permitted equal access
and opportunity to participate in cooperative advertising efforts and package promotions
specifically related to and supported by the use of the marketing funds referenced in this
Agreement, whether or not the business is a member of the ACRA or the Aspen Lodging
Association. That is, to the maximum extent possible, ACRA shall make a distinction between
member service and other existing programs supported by membership dues, and new programs
supported by the City by this Agreement, and as to the latter, not discriminate based on
membership in the organizations.
8. Termination. Either party may terminate this agreement effective on December 31,
2010, or December 31, 2011; provided, however, that written notice is delivered to the other party
no later than September 30 of the year preceding the calendar year that termination is to become
effective.
9. Other Restrictions and Provisions.
a. The City shall not unreasonably withhold or redirect funds from the
marketing funds raised by the visitor benefits tax that are to be handled by the ACRA. These are
intended to be additional funds for marketing, and the intent is that the City will continue its
existing funding (for the visitors center, etc.) as a floor, and not lessen those so that the marketing
funds from the tax are not absorbed into existing ACRA/City programs.
b. The marketing funds shall not be used for city capital projects such as the
construction of visitor information centers or other tourist amenities.
c. The City Council shall not, without prior consultation with ACRA, change
the agent assigned to manage the tourism mazketing funds. Nor shall the City change that agent
without some sort of cause and explanation, and it shall consult with the ACRA as to any new fund
manager.
d. ACRA shall not use any of the marketing fund for providing direct
reservation services.
e. ACRA shall not use fund proceeds to influence the outcome of any election.
10. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, representatives, successors and assigns and to any
person into or with which any party hereto may merge, consolidate, or reorganize.
4
11. Acknowledgments. The parties declare that they have read and understand the
terms of this Agreement, that they have had an opportunity to be represented by counsel with
regazd to the execution of this Agreement, and that they execute this Agreement voluntarily and
without being pressured or influenced by any statement or representation made by any person
acting on behalf of any one else.
12. Indemnification. ACRA agrees to indemnify and hold harmless the City, its officers,
employees, insurers, from and against all liability, claims and demands on account of injury, loss,
or damage, arising out of or in any manner connected with this Agreement, if such injury, loss, or
damage is caused in whole or in part, or is claimed to be caused in whole or in part by, the act,
omission, error, mistake, negligence, or other fault of ACRA, employee, representative, or agent.
ACRA agrees to investigate, handle, respond to, and to provide a defense for and defend against
any such liability, claims or demands at the sole expense of ACRA, or at the option of the City,
ACRA agrees to pay the City or reimburse the City for the defense costs incurred by the City in
connection with, any such liability, claims or demands. If it is determined by the final judgment of
a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by
the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse
ACRA for the portion of the judgment attributable to such act, omission, or other fault of the City,
its officers, or employees. If any lawsuit challenges the City's authority to impose the visitor
benefits tax, the City shall be primarily responsible for the defense of the suit.
13. No Warranties. Except as expressly set forth in this Agreement, the parties have not
made and make no other representations, warranties, statements, promises or agreements to each
other.
14. Entire Agreement. The parties agree that this Agreement represents the entire
agreement and supersedes all prior agreements between and among them with regard to the subject
matter set forth herein, and may not be amended nor may any condition contained herein be waived
except by written instrument signed by all parties
15. Notices. Notices hereunder shall be sent to the City Manager and the City Attorney
at 130 S. Galena Street, Aspen CO 81611; to ACRA at Aspen Chamber Resort Association, 425
Rio Grande Place, Aspen CO 81611; and to Oates, Knezevich & Gazdenswartz, P.C., 533 East
Hopkins Avenue, Aspen CO 81611.
16. Counterpart Signatures. This document may be executed in counterpart original
copies, with the original signatures on separate pages to be collated together on one original form
of the agreement.
CIT~JY OF A~PEN, a municipal corporation
Attest: s~~C~~~~ - 1~~.~,...~~
By:
Clerk
ASPEN CHAMBER RESORT ASSOCIATION
5
Attest: a,1~" -,~~-~FT~
By: Debbie Braun, President
Secretary