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HomeMy WebLinkAbout18-42 Resolution No. 18-42 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE OF SERVICES AGREEMENT WITH THE ELGIN AREA CONVENTION OF VISITORS BUREAU FOR MARKETING SERVICES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Richard G. Kozal, City Manager,and Kimberly A. Dewis, City Clerk,be and are hereby authorized and directed to execute a purchase of services agreement on behalf of the City of Elgin with the Elgin Area Convention of Visitors Bureau for tourism and marketing services, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: March 21, 2018 Adopted: March 21, 2018 Vote: Yeas: 8 Nays: 0 Abstain: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk PURCHASE OF SERVICES AGREEMENT FOR MARKETING SERVICES This Agreement, made and entered into this 21st day of March, 2018 by and between the City of Elgin, an Illinois municipal corporation (City), and the Elgin Area Convention of Visitors Bureau,an Illinois not-for-profit corporation(EACVB),establishes the terms and conditions under which EACVB agrees to perform tourism and marketing services for the City. WHEREAS, the City seeks to invest in the tourism industry by entering into an arrangement with an entity to promote and market the City as a destination, to assist and expand the sales of existing tourism-related businesses within the City and to aid in the attracting and organizing of major sports tournaments and special events to the City; and WHEREAS, EACVB seeks to promote the City as an overnight visitor destination and to make the City a recognized destination in Northern Illinois; and WHEREAS, EACVB is experienced in the promotion and marketing of the City as a destination, the organization and attraction of major sports tournaments and special events in the City including assistance in the promotion and marketing, the expansion of sales of existing tourism- related businesses within the City and the promotion and marketing of tourism-related businesses and events within the City, all of which are intended to grow the regional tourism industry; and WHEREAS, the City and EACVB seek to form a mutually beneficial arrangement in which EACVB undertakes certain promotion, marketing, recruitment, sponsoring and staging of various tourism-related activities, events, destinations, businesses and partnerships within and for the benefit of the City and its tourism industry, with the City sharing in support of EACVB's efforts to improve the region's tourism as a whole. Now, therefore, in consideration of the mutual promises by the City and EACV, the parties agree as follows: SECTION I Terms and Conditions 1. Services: EACVB will perform the services specified in Section II of this Agreement and provide the equipment, staff and materials to achieve those requirements. In performing the services under this Agreement, EACVB is an independent contractor and not an employee of the City, and EACVB will not hold itself out as any such employee. EACVB has no authority to make any agreement or commitment on behalf of the City. 2. Term:The term of this Agreement shall commence on July 1, 2018 and end on June 30, 2019. 3. Compensation: In consideration of the rendering of services by EACVB under this Agreement, the City agrees to pay EACVB $49,175 for each quarter year of service, payable as billed $49,175 on April 31; July 31; October 31; and January 31 for services provided by EACVB for the term this Agreement remains in effect. Not more than fifty percent (50%) of the City's compensation shall be applied for payment of EACVB salaries and related payroll expenses. The remaining fifty (50) percent of the City's compensation shall be allocated as follows: Ninety percent(90%) of that amount shall be applied to a comprehensive marketing plan for the City as described in Section III of this Agreement, and as approved by the City Manager for the City of Elgin or his or her designee. 4. Additional Funding Sources: The City's compensation to EACVB in the amount of $196,700, as established in Section I, Paragraph 3 of this Agreement (Compensation), is intended to match the grant amount the EACVB will be receiving from the State of Illinois' Convention and Local Tourism Account in the Tourism Fund (LTCB Grant). If the LTCB Grant the EACVB receives during the term of this Agreement is less than the City's Compensation,the City will reduce its Compensation to EACVB in an amount commensurate to that of the LTCB Grant. Should EACVB receive grants, contributions or any other monetary assistance from third parties, including, but not limited to, municipalities, sponsors or advertisers, the revenue received by EACVB from any such third-party funding source shall not be used for EACVB salaries and related payroll expenses. 5. Reporting: EACVB shall provide the City with the following reports on a periodic basis, in addition to such other reports as may be requested by the City: a. Quarterly Reports: Written quarterly reports describing the activities performed by EACVB under Sections II and III of this Agreement shall be provided to the City Manager or his or her designee with each quarterly request for payment as set forth in Section I, Paragraph 3 of this Agreement. The EACVB's Executive Director and the City Manager may amend the format of this report from time to time as may be mutually agreed by the parties. b. Audit: EACVB shall provide to the City a copy of the EACVB's auditor's opinion from the most recent audit prepared in accordance with applicable law. 6. Location: EACVB shall maintain a physical office with regular office hours in the City's downtown, commercial area. 2 7. EACVB Board Composition:The EACVB is governed by its By-Laws,as approved by the EACVB Board of Directors in September 2014 and updated in January 2018 (EACVB By-Laws). Section 2 of the EACVB By-Laws governs the number, tenure and qualifications of its board of directors and states"[t]he number of Directors may be decreased to not fewer than three (3), or increased by any number from time to time by amendment of this Section." The EACVB Board of Directors currently consists of eleven (11) directors. EACVB shall amend the EACVB By-Laws to increase the number of its board of directors to thirteen (13) within the first ninety (90) days of this Agreement. The EACVB By-Laws shall be amended to provide that: Four (4) directors shall be appointed by the City of Elgin City Council, with one of those four appointees being a member of the City of Elgin City Council. Four (4) directors shall be representatives from one of the following businesses or industry operating within the EACVB marketing area, with not more one such director representing any such business or industry classification: Hotel or motel Performing arts facility Museum Restaurant or other food service provider One (1) director shall be the City's Special Events and Community Engagement Manager or such other person as the City of Elgin City Manager may designate. One (1) director shall be a representative of the Grand Victoria Casino. One (1) director shall be a representative of the Downtown Neighborhood Association of Elgin. One (1) director shall be a representative of the Elgin Area Chamber of Commerce. 8. Transition in EACVB Board Composition: The City recognizes that as of the date of this Agreement,the composition of EACVB board is not wholly consistent with the amendments to the EACVB By-Laws required by Section I, Paragraph 7 of this Agreement. Further, there exists a vacancy in the EACVB Board for one of the four directors appointed by the City of Elgin City Council. The provisions of this paragraph are intended to provide for the orderly transition of representation on the EACVB board of directors consistent with Section I, Paragraph 7 of this Agreement. To that end, the EACVB and the City shall perform the 3 following action in the order set forth below within the first ninety (90) days of this Agreement: Step 1: EACVB shall increase the number of its board of directors to thirteen (13) within with the addition of the following two directors: One (1) director shall be a representative of the Downtown Neighborhood Association of Elgin. One(1) director shall be a representative of the Elgin Area Chamber of Commerce. Step 2: EACVB shall determine which of its existing directors, with the exception one of the four directors appointed by the City of Elgin City Council, the City's Parks and Recreation Director and the City's Special Events and Community Engagement Manager, shall be removed from the EACVB board of directors in accordance with this transition schedule and undertake any necessary action to effectuate that change. Step 3: The City shall appoint a representative to fill the existing vacancy in the EACVB Board for one of the four directors appointed by the City of Elgin City Council. Step 4: When the term of any current EACVB board of director expires, the EACVB shall appoint a director for the next succeeding term consistent with Section I, Paragraph 7 of this Agreement. 9. Indemnification:To the fullest extent permitted by law, EACVB agrees to and shall indemnify, defend and hold harmless the City, its officers, employees, agents, boards and commissions from and against any and all claims, suits, judgments, costs, attorney's fees, damages or other relief, including but not limited to workers compensation claims, in any way resulting from or arising out of negligent actions or omissions of the EACVB in connection herewith, including negligence or omissions of employees or agents of EACVB arising out of the performance of this Agreement. In the event of any action against the City, its officers, employees, agents, boards or commissions, covered by the foregoing duty to indemnify, defend and hold harmless such action shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 10. No Personal Liability: No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement. 11. Insurance: 4 a. Comprehensive Liability: EACVB shall provide, pay for and maintain in effect, during the term of this Agreement, a policy of comprehensive general liability insurance with limits of at least$1,000,000 aggregate for bodily injury and$1,000,000 aggregate for property damage. EACVB shall deliver to the City a certificate of insurance naming the City as additional insured.The policy shall not be modified or terminated without 30 days prior written notice to the City. The certificate of insurance that shall include the obligation assumed by the EACVB under Section I, Paragraph 9 of this Agreement entitled "Indemnification" shall be provided. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the City. There shall be no endorsement or modification of this insurance to make it excess over other available insurance, alternatively, if the insurance states that it is excess or prorated, it shall be endorsed to be primary with respect to the City. b. Comprehensive Automobile Liability: Comprehensive Automobile Liability Insurance covering all owned, non-owned and hired motor vehicles with limits of not less than $1,000,000 per occurrence for damage to property. c. Combined Single Limit Policy:The requirements for insurance coverage for the general liability and auto exposures may be met with a combined single limit of$1,000,000 per occurrence subject to a $1,000,000 aggregate. d. Professional Liability: EACVB shall carry, when applicable, professional liability insurance covering claims resulting from error, omissions or negligent acts with a combined single limit of not less than $1,000,000 per occurrence. A certificate of insurance shall be submitted to the City as evidence of insurance protection.The policy shall not be modified or terminated without 30 days prior written notice to the City. 12. Nondiscrimination: In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the City. 5 13. Assignment and Successors: This Agreement and each and every portion thereof shall be binding upon the successors and the assigns of the parties hereto; provided, however, that no assignment shall be made without the prior written consent of the City which consent may be withheld at the sole discretion of the City. 14. Delegations and Subcontractors: Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and EACVB shall remain liable to the City with respect to each and every item, condition and other provision hereof to the same extent that the EACVB would have been obligated if it had done the work itself and no assignment, delegation or subcontract had been made. Any proposed subcontractor shall require the City's advanced written approval. 15. Cooperation with Other Marketing-Related Boards and Agencies: EACVB shall cooperate with any other marketing-related boards and agencies under the City's employ, including but not limited to the Elgin Area Chamber of Commerce and Downtown Neighborhood Association, or with any marketing-related board, agency or professional performing work associated with this Agreement. 16. No Co-Partnership or Agency: This Agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. 17. Severability: The parties intend and agreed that, if any paragraph, sub-paragraph, phrase, clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 18. Headings: The headings of the several paragraphs of this Agreement are inserted only as a matter of convenience and for reference and in no way are they intended to define, limit or describe the scope of intent of any provision of this Agreement, nor shall they be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof. 19. Modification or Amendment: This Agreement and its attachments constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof, or change order as herein provided. 20. Notices: The City and EACVB shall each appoint a contact for all written communications between the parties. For the City, all notices shall be sent to: City Manager, City of Elgin, 150 Dexter Court, Elgin, Illinois, 60120. For EACVB, all notices shall be sent to: Executive Director, Elgin Area Convention of Visitors Bureau, 60 S. Grove Avenue, Elgin, IL, 60120.The 6 parties shall apprise each other of changes in contact information as may occur from time to time. All notices, reports and documents sent pursuant to this Agreement shall be mailed to the above addresses by First Class Mail, postage prepaid. 21. Confidentiality: It is recognized that the handling of prospect information requires access to confidential information. As such, EACVB shall maintain all prospect information in confidence. EACVB shall provide confidential prospect information solely to the Mayor and City Manager as representatives of the City, who to the extent permitted by law shall attempt to maintain such information in strict confidence. All other prospect information shall be so coded, organized or structured to prevent the identity of the prospect from being publicly known until such time that the prospect may deem it appropriate. 22. Funding Opportunities: It is recognized that EACVB may wish to access certain grant funding pools whereby the City must act as a "pass through" or coordinating agency. In such cases, the City Manager shall be authorized by the City Council to execute, administer and manage such grants on behalf of the City and EACVB, provided that such grant does not necessitate an appropriation of funds by the municipality. 23. Applicable Law: This Agreement shall be deemed to have been made in and shall be construed in accordance with the laws of the State of Illinois.Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 24. Cooperation with Other Consultants: EACVB shall cooperate with any other consultants in the City's employ or any work associated with this Agreement. 25. Sexual Harassment Policies: As a condition of this Agreement, EACVB shall have written sexual harassment policies that include, at a minimum, the following information: a. The illegality of sexual harassment; b. The definition of sexual harassment under state law; c. A description of sexual harassment, utilizing examples; d. The vendor's internal complaint process including penalties; e. The legal recourse, investigative and complaint process available through the Illinois Department of Human Rights and the Illinois Human Rights Commission; f. Directions on how to contact the department and commission; g. Protection against retaliation as provided by Section 6-101 of the Human Rights Act. 7 A copy of the policies shall be provided by EACVB to the Department of Human Rights upon request 775 ILCS 5/2-105. 26. Compliance with Laws: Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement that EACVB shall comply with all applicable federal, state, City and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage,workplace safety and legal status of employees. Without limiting the foregoing, EACVB hereby certifies, represents and warrants to the City that all EACVB's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. EACVB shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of the EACVB to determine EACVB's compliance with the provisions of this section. In the event the City proceeds with such an audit, the EACVB shall make available to the City the EACVB'S relevant records at no cost to the City. EACVB shall pay any and all costs associated with any such audit. 27. Work Products. All work products prepared by EACVB pursuant hereto, including, but not limited to, reports, studies, plans and recommendations shall be the property of the City and shall be delivered to the City upon request of the City provided, however, that EACVB may retain copies of such work products for its records. 28. Breach of Agreement: If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek administrative, contractual or legal remedies as may be available to the violation or breach; and in addition, if either party by reason of any default fails to within 15 days after notice thereof by the other party to comply with the conditions of this Agreement,the other party may terminate this Agreement. Notwithstanding the foregoing or anything else to the contrary in this Agreement, with the sole exception of an action to recover the monies the City has agreed to pay to EACVB pursuant to Section 3 hereof, no action shall be commenced by EACVB against the City for monetary damages. 29. Termination: Notwithstanding any other provision hereof, the City may terminate this Agreement at any time upon 30 days prior written notice to EACVB. In the event this Agreement is so terminated, EACVB shall be paid for services actually performed, and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not exceed the quarterly amount set forth under Section 1, Paragraph 3. Additionally, in the event this Agreement is so terminated, EACVB shall immediately cease the expenditure of any funds paid to EACVB by the City and shall refund to the City any unearned or unexpended funds. 8 30. News Releases: EACVB shall not issue any news releases relating to the City without prior approval from the City, nor shall EACVB make public proposals developed under this Agreement without prior written approval from the City prior to said documentation becoming matters of public record. 31. Interference with Public Contracting: EACVB certifies hereby that it is not barred from bidding or submitting a proposal for this Agreement as a result of violation of 725 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 32. Invoices: EACVB shall submit invoices to the City for the payments to be made by the City to EACVB pursuant to Section 1, Paragraph 3 of this Agreement. Such invoices shall be in a format approved by the City. EACVB shall maintain records showing actual time devoted and costs incurred pursuant to this Agreement. EACVB shall permit an authorized representative of the City to inspect and audit all data and records of EACVB for work done under this Agreement. EACVB shall make these records available at reasonable times during the Agreement term and for one year after termination of this Agreement. 33. Budget Appropriation: Notwithstanding anything else to the contrary in this Agreement,the parties understand and agree that the fiscal year of the City is the twelve-month period ending December 31 of each year. The obligations of the City under any contract for any fiscal year are subject to and contingent upon the appropriation of funds sufficient to discharge the obligations that accrue in that fiscal year and authorization to spend such funds for the purposes of the contract. If, for any fiscal year during the term of this Agreement, sufficient funds for the discharge of the City's obligations under the Agreement are not appropriated and authorized, then this Agreement shall terminate as of the last day of the preceding year, or when such appropriated and authorized funds are exhausted, whichever is later,without liability to the City for damages, penalties or other charges or any other relief whatsoever on account of such termination. SECTION II EACVB Duties, Services and Deliverables 1. EACVB Services: During the term of this agreement, EACVB agrees to the following services to the City: • Develop a comprehensive marketing plan to advertise, promote and publicize the City of Elgin to achieve, as the City's first priority,the goal of booking trade shows, conventions, conferences, sporting tournaments, weddings and other events at the city's facilities and area hotels in a manner that results in an economic impact for the City. 9 • Develop a marketing campaign directed to decision-makers and individual travelers to promote additional business and leisure travel to the City. This will require input from other agencies within the community, such as but not limited to, Elgin Area Chamber of Commerce, Downtown Neighborhood Association, Gail Borden Library, Elgin Cultural Arts Commission, Elgin Bike and Pedestrian Advisory Committee, Northwest Chicagoland Sports Commission, Side Street Studio Arts, Grand Victoria Casino, Historical Society, Elgin Public Museum, Elgin Parks and Recreation Department and the City. • Participate in activities related to the branding the City for the purpose of local, regional and national identity, and coordinate such activities with the City of Elgin City Manager's Office. 2. Development of Marketing Plan: EACVB will create and adopt within the first 90 days of the Agreement, in cooperation with the City, a marketing plan for the funds provided by the City containing the information described in Section III of this Agreement (Marketing Plan). The Marketing Plan shall be approved by the City Manager or his/her designee prior to its implementation. The Marketing Plan for subsequent fiscal years shall be incorporated into any successor Agreement as an exhibit when submitted for consideration and approval by the City Council of the City of Elgin. The Marketing Plan shall include, but not be limited to, performance criteria and goals for use of City facilities, event attendance, hotel night usage and delegate spending estimates. The Marketing Plan shall also specifically identify what percentage of leads for the previous fiscal year were successfully converted from "Tentative Groups" into "Definite Groups" (as defined below), otherwise known as the EACVB's "Conversion Rate." For each fiscal year of this Agreement, the EACVB shall have a goal of meeting the industry standard Conversion Rate for similar size cities and demographics, or as otherwise agreed to by the parties. EACVB shall take all reasonable and necessary action to achieve the goals set forth in the approved Marketing Plan and this Agreement. For the purposes of this Agreement, "Tentative Groups" means those groups which have expressed sufficient interest in booking facilities to cause EACVB to reserve space for them even though a letter of intent or contract has not been signed. "Definite Groups" means those groups that have signed a contract committing to use of the facilities during specific dates and for a specific purpose. 10 SECTION III Marketing Plan Subject to the provisions of Section II of this Agreement, EACVB shall, in consultation with the City, perform the following marketing and promotion activities and convention services during the Term of this Agreement: 1. Sales and Services in General: EACVB shall pursue convention, meeting and trade show business for the facilities through sales and marketing activities,with an emphasis on booking the Centre, Golf Courses, Hemmens Cultural Center, Eastside Recreation Center, Festival Park and the Elgin Sports Complex. EACVB shall offer promotional brochures, delegate housing and other appropriate assistance to Definite Groups, and to those associations, groups and trade shows that have contracted with hotels and/or motels in the City to hold room blocks therein in connection with events to be held at venues within the City other than the facilities. 2. Convention Marketing and Sales Support Services: EACVB shall provide the following sales and marketing services for the Facilities: a. Develop and maintain an annual strategic sales and marketing plan with the goal of promoting the City's key assets to attract large national and/or regional conventions, trade shows and consumer shows, and as venues to host sporting events, concerts, performing arts events, community events, large banquets and social events that will attract large audiences and patrons, and that bring visitors who will benefit the City's business community, including increased occupancy of local hotel rooms and direct visitor spending at restaurants and retail establishments,and thereby stimulate sales tax, transient occupancy tax and other revenue to the City. The annual strategic sales and marketing plan shall contain, but not be limited to: • Conducting market and customer satisfaction research. • Providing advertising and promotional support services for the facilities as appropriate. • Creating convention, trade show, theater and concert promotional materials, floor plans, maps and other materials used to market the facilities and the City as a destination. • Providing incidental services required in connection with convention or trade show events, including audience development and promotional activities. • Providing all sales and sales support services for the facilities, including onsite information and directions, the development and distribution of visitor guides to 11 local attractions, destination marketing and serving as a resource for the referral of groups/events to the appropriate resource/hotel. ■ Providing each of the following: Sales direction, administration, staffing and management. Sales and marketing personnel management. Web development and maintenance. Internal and external communications. Sales strategy/deployment model/personnel plan. Sales process and procedure definitions/guidelines. Sales accountabilities. 3. Impressions, Marketing/Branding: Recognizing the importance of EACVB services in assisting with branding both the City and the facilities, an annual accounting of impressions created by EACVB will be documented.The report will include a report of advertising types that are most effective in generating business and increasing event attendance. The impressions will include data regarding the following areas: media impression (inclusive of social, print, radio and television), web site traffic and convention sales tradeshow activities. In addition, marketing/branding indicators will be developed to gauge the effectiveness of the following: (i) media placements — circulation; (ii) media placement — equivalent advertising value; (iii) media placements—number of placements; (iv) publications by travels writers; (v)website— unique visitors, page views; (vi) number of business reply responses to printed advertising; and (vii) click-throughs and impressions of online advertising placements. These will be reviewed annually by mutual agreement. Sources will be determined annually in collaboration with the City. 4. City-Wide Activities: EACVB shall provide staff and promotional support for all City-sponsored events. EACVB shall host a community-wide calendar and consult with the City of Elgin City Manager's Office in developing strategies related to the branding of the City and in efforts related to the City's marketing and promotional efforts and activities, including, as appropriate, with respect to the following: a. Film and Video: EACVB shall support inquiries from film production companies through sales and marketing activities. b. Tour and Travel: EACVB shall exercise its best efforts to (1) attract individual and group leisure travelers to the City through sales and marketing activities, (2) influence individual business travelers to stay at City hotels or motels and (3) provide visitor information and services. IN WITNESS WHEREOF, the parties hereto have entered into and executed this agreement effective as of the date and year first written above. 12 CITY OF ELGIN: LGIN : REA CONVENTION &VISITORS BURUEA 6..grO"; • Adire City Manager Pre.ide t &CEO Attest: / /l . I4 City Cler 13