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HomeMy WebLinkAbout19- Agreement - Bozeman Area Chamber of Commerce - Administration of Bozeman Tourism Business Improvement Dissolution AGREEMENT FOR ADMINISTRATION OF BOZEMAN TOURISM BUSINESS IMPROVEMENT DISTRICT DISSOLUTION Between City of Bozeman, Montana and Bozeman Area Chamber of Commerce This Agreement for Administration of Bozeman Tourism Business Improvement District Dissolution(this "Agreement") made this .2-PP-'* day of ` )&- pLe,,r- , 2019, between the CITY OF BOZEMAN, MONTANA, a municipal corporation and political subdivision of the State of Montana (the"City"), and BOZEMAN AREA CHAMBER OF COMMERCE, a Montana nonprofit corporation("Chamber"), describes the rights, duties, agreements and obligations of the City and the Chamber in connection with the City's collection and remittance of assessments and the Chamber's administration of the Bozeman Tourism Business Improvement District(the "BTBID" or"District")to wind down the affairs of the District. RECITALS WHEREAS, the District was created by Resolution 4182 on July 6, 2009, implemented by Ordinance 1765 on September 10, 2009; and WHEREAS, the term of the District is ten(10)years, expiring on September 10, 2019; and WHEREAS, in accordance with 7-12-1121, MCA the City created the BTBID Board of Trustees (the `BTBID Board") and authorized the Board to exercise powers related to administration of the BTBID as described in Ordinance 1765; and WHEREAS, the Director of the BTBID Board is the duly appointed Executive Director of the Chamber, charged with the general supervision and management of the business affairs of the BTBID in accordance with its bylaws; and WHEREAS, in accordance with the BTBID's work plan and budget approved by the City Commission on June 25,2018 the authorized assessments to be collected in October 2019 and May 2020 in accordance with state law ("FY 2020 collections") will be applied to pay the TBID Dissolution Agreement 1 BTBID's budgeted expenses incurred during the period from July 1, 2018 through June 30, 2019; and WHEREAS,pursuant to 7-12-1144, MCA, obligations of the BTBID are not obligations of the City; and WHEREAS, on April 23, 2019 the BTBID Board voted to not renew the term of the BTBID,but instead to allow it to sunset; and WHEREAS, in a presentation to the Bozeman City Commission on June 17, 2019 the BTBID Board of Directors informed the City the FY 2020 Collections may be insufficient to pay the outstanding obligations of the BTBID for the period from July 1, 2018 through June 30, 2019; and WHEREAS, on May 21, 2019 the Executive Committee of the Chamber agreed to assume the obligation for payment of liabilities of the BTBID for the benefit of the BTBID should any liabilities remain outstanding after application of collected assessments as provided herein; and WHEREAS, the Bozeman City Commission appreciates the Bozeman Chamber of Commerce's willingness to participate in the dissolution of the District's operations; and WHEREAS,the Bozeman City Commission acknowledges the substantial contributions and success of the District's activities over the past ten years. NOW THEREFORE,in consideration of the undertakings described in the foregoing recitals and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the City and the Chamber agree as follows: 1. Debts/Obligations of the District: As of the date of this Agreement, the outstanding obligations of the District are those as listed on Exhibit A. The Chamber agrees that pursuant to 7-12-1144, MCA, obligations of the BTBID are not obligations of the City. 2. City's obligations. The City agrees: (i) To amend the City's FY 2020 budget to appropriate funds to the BTBID based on estimated revenues to be collected in FY 2020. TBID Dissolution Agreement 2 (ii) To take all steps necessary to collect the annual assessments for Fiscal Year 2019 levied by Resolution 4930 dated September 24, 2018 (the "Assessment") in accordance with such Resolution. (iii) To remit the collected Assessment funds to the BTBID for payment of debts and obligations by the Chamber by December 15, 2019 for amounts collected on or before November 30, 2019; and by June 15, 2020 for amounts collected on or before May 31, 2020; and, any following delinquent collections as they may occur. (iv) City will not levy an assessment for the July 1, 2019 through September 10, 2019 period. (v) City will mail notice to properties levied and assessed in FY 2019 informing them of City's intent to not levy an assessment for the period of July 1,2019 through September 10, 2019. (vi) City will review the final audit report provided by the Chamber on behalf of the BTBID and will notify the Chamber in writing when the City, in its sole discretion, accepts the audit report. 3. Chamber's obligations. The Chamber agrees: (i) To apply all funds collected by the City and remitted to the BTBID to pay off, for the benefit of the BTBID,the BTBID's outstanding obligations as listed on Exhibit A in accordance with Section 6.7 of the BTBID Bylaws. The Chamber will promptly return to the City any remitted funds of the District not necessary to satisfy such obligations. Should any such excess funds exist the City will segregate such funds and make them available to serve the purposes as stated in 7-12-1102, MCA. This may include,upon request and after entering into a grant agreement,possible remittance to a Tourism Business Improvement District established by Gallatin County to benefit owners of property who were part of the District. (ii) Upon final payment of debts and obligations of the BTBID,to file any necessary documents with the State of Montana to dissolve the BTBID as a legal entity. (iii) To undertake any other tasks necessary to effect winding down and dissolution of the BTBID. (iv) After winding down of the BTBID is completed,the Chamber will cause to occur a final audit and provide the City with a final audit report and other financial statements as requested by the City. The Chamber agrees that it will make available upon request by the City and at no expense all agreements, correspondence, and other documentation relating to the BTBID's liabilities and the winding down and dissolution of the BTBID. Any such document TBID Dissolution Agreement 3 containing information protected from disclosure pursuant to law may be held by the Bozeman City Attorney's Office. Once the City has accepted the BTBID's final audit report, the Chamber will promptly provide copies of all financial records of the BTBID related to assessments and expenditures and any other records considered public information under the City of Bozeman records retention schedule and Title 7, Chpt. 6, MCA to the City Clerk for retention. 4. Term. This Agreement and any obligations of the parties hereunder shall expire and be of no further force and effect upon the City's determination the Final Audit Report is acceptable. Upon termination of this Agreement pursuant to the preceding sentence, all obligations of the parties hereunder will thereupon expire and be of no force or effect; provided, however,the provisions of Section 6 shall survive termination of this Agreement. 5. Representations by Chamber. (i) The person signing this Agreement on behalf of the Chamber represents and warrants that he is fully authorized to execute this Agreement on behalf of the Chamber, and that by signing this Agreement the Chamber will be bound by the terms contained herein. (ii) The person signing this Agreement on behalf of the Chamber represents and warrants he is authorized to act on behalf of the BTBID Board for purposes of winding down the affairs of the BTBID. 6. Indemnity. The Chamber agrees to defend, indemnify and save and hold the City and its officers, employees, and agents (collectively, the "Indemnified Parties") harmless from and against any and all debts and obligations of the District whether shown on Exhibit A or claimed by any person or entity, and all claims, damages, costs, expenses, reasonable attorneys' fees, liabilities, and losses asserted by or on behalf of any person or entity arising out of or in any way relating to (i) the failure of the Chamber to comply with the provisions of this Agreement, including, without limitation, the failure of the Chamber to pay any outstanding obligation of the BTBID by the date on which payment is due, and (ii) the set vices or work performed under any agreement or contract entered into by the BTBID or by the Chamber on behalf of the BTBID. If a proceeding is brought against any Indemnified Party, the Chamber shall, at its expense, but only following notice by the Indemnified Party, defend such proceeding on behalf of the Indemnified Party. TBID Dissolution Agreement 4 In the event of an action filed against the City resulting from the City's performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Should any Indemnified Party be required to bring an action against the Chamber to assert its right to defense or indemnification under this Agreement or under one of the Chamber's insurance policies, the Indemnified Party shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Chamber was obligated to defend the claim(s) or was obligated to indemnify the Indemnified Party for a claim(s) or any portion(s) thereof. The Chamber waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except"responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent" as per 28-2-702, MCA. The provisions of this paragraph 6 shall survive termination of this Agreement. 7. Miscellaneous Provisions. (i) Limitation on Assignment and Amendment. This Agreement and any right or obligation hereunder shall not be assigned or amended except in writing and only following the express written consent of the parties. Any attempted assignment or amendment in contravention of the foregoing sentence shall be void. (ii) Further Assurances. Each party agrees to execute and deliver to the other such documents as may be reasonably required to implement the provisions of this Agreement. (iii) No Third Party Beneficiary. This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. (iv) Severability. If any term or provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be TBID Dissolution Agreement 5 affected thereby, and each term or provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (v) Counterparts. This Agreement may be executed in any number of counterparts, which when taken together, shall constitute one and the same agreement. (vi) Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. (vii) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Montana and the rules,policies, and regulations of the City. (viii) Contacts. The City initially appoints the following person to represent the City and interact with the Chamber related to administering and implementing the provisions of this Agreement on behalf of the City: City Representative: Andrea Surratt, City Manager 121 N. Rouse Ave. Bozeman,MT 59771 asurratt@bozeman.net 406-582-2306 The Chamber appoints the following person to represent the Chamber and interact with the City related to administering and implementing the provisions of this Agreement on behalf of the Chamber: Chamber Representative: Daryl Schliem, President/CEO 2000 Commerce Way Bozeman, MT 59715 dschliem@bozemanchamber.com 406-586-05421 END OF DOCUMENT EXCEPT SIGNATURES TBID Dissolution Agreement 6 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their authorized representatives, on the day and year first written above. CITY OF BOZEMAN ANDREA SURRATT CITY MANAGER �� ' • * . ATTEST: U • ;�--- ='--� `q17 Co. , APPR9VED AS TO F G UL N CITY OF ATTORNEY BOZEMAN AREA CHAMBER OF COMMERCE DA CHLIEM EXEC TIVE DIRECTOR TBID Dissolution Agreement 7 Exhibit A Obligations of the TBID District Collection Time Frame July 1, 2017-June 30, 2018 July 1, 2018-June 30, 2019 Events 2018-2019 2019 Airlines Seat Guarantee $ 125,000.00 $ 125,000.00 2 year agreements Airlines Marketing Match $ 100,000.00 $ 120,000.00 2 year agreements MSU Concerts/Other Grants $ 50,000.00 $ 150,000.00 Montana High School Association $ 85,000.00 $ 100,000.00 IPW $ 10,000.00 $ 5,000.00 IMEX $ 10,000.00 $ 5,000.00 Vic $ 18,000.00 $ 17,000.00 Admin and Lease $ 78,000.00 $ 78,000.00 NCUR $45,000.00 Sub Total Events $ 521,000.00 $ 600,000.00 Marketing $ 600,000.00 $ 600,000.00 Ends Total Commitment $ 1,121,000.00 $ 1,200,000.00 $ 1,086,000.00 18-Jun $ 1,198,596.00 19-Jun Total Expenditure $ 2,321,000.00 $ 2,284,596.00 LOC Payoff $ 250,000.00 Total Revenue r otal Obligation on District $ 2,571,000.00 $ 2,284,596.00 $ (286,404.00) bpzeman area tourism nusiness Improvement D�stnct Bozeman Tourism Business Improvement District - History • Created by City Ordinance 1765 — effective September 9, 2009 , under Section 7-12-1121(1) MCA. • Local Government was created for Bozeman Tourism Business Improvement District in September 2009 • EIN — 27-1842677 for Bozeman Tourism Business Improvement District • City was listed as the Agency of Record • City received Annual Budget and reports • Anderson Zurmuehlen prepared audits and worked on filings with the State on behalf of the TBID Board. Bozeman Tourism Improvement District — Sunset Plan • The Bozeman TBID Board voted unanimously to Sunset the current district on September 9, 2019 • The Board also voted unanimously to submit a Zero Budget / Zero Tax Increment for the term of July 1, 2019 — September 9, 2019. • The Board also voted unanimously at this time to move forward with creating a Regional Tourism Business Improvement District that better represents our marketing efforts. Sunset Plan - Process • Collections are a full year in arrears — Collections for July 1, 2018 - June 30, 2019 have been committed for the 2019 Budget submitted last year. Estimated at 1.2 million (Actual - $1,198,596.00) • The Bozeman TBID, Board of Directors and Executive Director are working with Department of Administration and Anderson Zurmuehlen in Sunset Process (Expect to have Sunset request filed December of 2020) • The Local Government entity — known as Bozeman Tourism Business Improvement District — will exist until all contracts have been fulfilled for the 2019 Budget. (Expect that all bills and contracts will be satisfied by December of 2020.) • Annual Report will be submitted in May 2020 to City Commission • Final Audit will be done at the end of this Budget Sunset Plan — Process Continued • After Final Audit — TBID Board will then file a local government has been dissolved — Local Government Entity Information Form — MCA 7- 6-611 (3) AND (4) • Anderson Zurmuehlen will file final documents with the City of Bozeman, Department of Administration once all liabilities have been satisfied from the Bozeman Tourism Business Improvement District • All Liabilities are the responsibility of the TBID District, Board and Executive Director, not the City of Bozeman • Chamber of Commerce Executive Committee has agreed to back any liabilities that may exceed collections, until new district has revenue Collection Time Frame July 1,2017-June 30,2018 July 1,2018-June 30,2019 Events 2018 -2019 2019-2020 irlines Seat Guarantee $ 125,000.00 $ 125,000.00 Airlines Marketing Match $ 100,000.00 $ 120,000.00 MSU Concerts/Other Grants $ 50,000.00 $ 150,000.00 Montana High School Association $ 85,000.00 $ 100,000.00 Sunset Plan IPw $ 10,000.00 $ 5,000.00 IMEX $ 10,000.00 $ 5,000.00 Projected IC $ 18,000.00 $ 17,000.00 dmin and Lease $ 78,000.00 $ 78,000.00 Shortfalls NCUR $45,000.00 ub Total Events $ 521,000.00 $ 600,000.00 Marketing $ 600,000.00 $ 600,000.00 Collections Total Commitment $ 1,121,000.00 $ 1,200,000.00 $ 1,086,000.00 $ 1,198,596.00 Total Expenditure $ 2,321,000.00 $ 2,284,596.00 LOC Payoff $ 250,000.00 Total Revenue Total Obligation on District $ 2,571,000.00 $ 2,284,596.00 $ 286,404.00) Chamber of Commerce Executive Committee • On May 21, 2019 — The Executive Committee of the Bozeman Area Chamber of Commerce voted unanimously to cover any shortfalls in the current Bozeman Tourism Business Improvement District until such time the New District has significant revenue to reimburse the Bozeman Area Chamber of Commerce. • Thank You /Questions?