02. Resolution 5425 - Creating a Tourism Business Improvement DistrictTel 406.758.7708
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TO: Mayor 'T`amm]. Fisher
and Kalispell City Council
FROM* Charles Harball, City Attorney
Jane Howzngton, City Manager
SUBJECT: Resolution No. 5425 — Creation of the Kalispell Tourism
Business Improvement District and ordinance No. 1675 --
Regulations for the Tourism Business Improvement District
MEETING DATE: May 3, 2010 — Regular Council Meeting
BACKGROUND: A group of hoteliers, working with the Chamber of Commerce,
have petitioned to form. a Business Improvement District. Under the terms of MCA
7-12-111(4) a district without contiguous boundaries may be formed from properties
in a district that have a common purpose of providing overnight stags at lodging
facilities and which encompasses all properties in the district with the same
identified purpose. The petition contains signatures exceeding the 60% statutory
threshold and no protests have been received for Council to consider.
EC o A.'TIO: After considering the evidence received at the public
hearing the City Council should consider making the finding that such BID meets
the purposes of the statute and passing resolution. No. 5425 thereby creating the
business improvement district and appointing the board of trustees from the slate
provided by the working committee. ordinance No. 1675 creating the regulation for
the BID sets forth the statutory framework and should be adopted by Council..
FISCAL A.CTs: The board of trustees representing the sixteen property
owners shall recommend a work plan., budget and assessment recommendation to
the Council. only these property owners shall be liable for the assessments and
they shall be the most directly benefited by undertakings of the district.
Respectfully submitted,
Charles Harball, City Attorney
41ne Howington, City Manager
RESOLUTION / DISTRICT
PURSUANT TO THE TERMS OF TITLE 7 CHAPTER 12 PART 11 OF MONTANA CODE
ANNOT-ITED.
WHEREAS, pursuant to Title 7 Chapter 12 Part 11 of Montana Code Annotated, the City of
Kalispell is authorized to create business improvement districts; and
WHEREAS, the City of Kalispell was presented with petitions signed by the owners of more than
60% of the area of the property to be included in the district composed of
noncontiguous areas that have the common purpose of providing overnight stays at
lodging facilities which properties are shown on the attached Exhibit "A" and which
by this reference is made a part hereof; and
WHEREAS, the aforementioned petition requests that the City of Kalispell create a business
improvement district for up to ten (10) years, pursuant to Section 7-12-1141 MCA;
and
WHEREAS, the purpose of said business improvement district appears to promote the health,
safety, prosperity, security and general welfare of the inhabitants of the City of
Kalispell and the proposed district, and appears to be of special benefit to the
property within the boundaries of said proposed district; and
WHEREAS, AS, on March 22, 2010 the Kalispell City Council issued Resolution 5419 declaring its
intent to create a business improvement district for the City of Kalispell, Montana, to
fix a date of a public hearing for May 3, 2010, and to provide for publication of
notice of said hearing; and
WHEREAS, the City Clerk caused proper notice of passage of the resolution to be published as
provided in MICA 7--1--2 1 2 1 and by mailing a copy of the notice to every owner of
real property within the proposed district listed on the last completed assessment roll
for state, county, and school district taxes, at the owner's last -known address, on the
same day the notice was first published or posted; and
WHEREAS, upon proper notice having been given and upon the expiration of 15 days as required
by FICA. 7-12-1113, the office of City Clerk received no written protests, and there
is therefore insufficient protest to bar proceedings as allowed by FICA 7-12-1114.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALIS PELL AS FOLLOWS:
SECTION I. That the Kalispell City Council shall and does hereby create a business
improvement district pursuant to Title 7 Chapter 12 Part 11, Montana Code
.Annotated the term of which shall be ten (10) years and which shall be
known as the "Kalispell Tourism Business Improvement District."
SECTION II. Said business improvement district shall be those properties identified on the
attached Exhibit "A" which by this reference is made a part hereof as well as
any future lodging facility located within the corporate limits of the City of
Kalispell with five or more rooms providing overnight stays for transient
patrons as its business.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL, THIS 3rd DAY OF MAY, 2010.
Tamm i Fisher
Mayor
ATTEST:
Theresa white
City Clerk
EXHIBIT 44A9'
Legal Description
Kalispell Tourism Business Improvement District
The boundaries of the District shall be all parcels, tracts, lots and blocks within the corporate limits
of the City of Kalispell where a five or more room hotel is located and providing overnight stays as
a lodging facility for transient patrons as its business.
This description currently identifies all of the following lodging businesses located at the respective
described street addresses and within the respective described legal parcel.
Aero Inn, 1 30 Highway 93 South.
(Bissell Revocable Trust)
Assessor No. 0112600
Lot 1.A. of the R.esubdivision of Lot 1 of Block 1 of Airport Addition to Kalispell, Subdivision 73, in
Section 20, Township 28 North., Range 21 west, P.M.M., Flathead County, Montana
Blue & white Motel, 640 East Idaho
(Blue & white Motel, Inc.)
.Assessor No. 0084500
Tracts 30-1. 8, 30-20B and 30-27 in. the Northwest (quarter of the Southwest Quarter of Section 8,
Township 28 North, Range 21 west, P.M.M., Flathead County, Montana
Comfort Inn,1330 Highway 2 west
(BRIG Kalispell LLC)
Assessor No. 0428680
A. portion of Tract I in 4B's Addition Number 45 in Section 12, Township 28 North, Range 22
West, P.M.M., Flathead County, Montana
Econo Lodge Inn & Suites,1680 Highway 93 South
(Bullette Company of Michigan LLC)
Assessor No. 0703050
Unit 1 of Diamond Lil's Condominiums in Section 17, Township 28 North, Range 22 west,
P.M.M., Flathead County, Montana
Assessor No. 0971720
Unit 3 of Diamond Lil's Condominiums in Section 17, Township 28 Forth, Range 22 west,
P.M.M., Flathead County, Montana
(Johnson Properties LLC)
Assessor No. 0277026
Unit 2 of Diamond Lil's Condominiums in Section 17, 'Township 28 North, Range 22 west,
P.M.M., Flathead County, Montana
Glacier Peaks Inn,1550 Highway 93 North.
(Northwest Hospitality Inc.)
Assessor No. 0976349
Resubdivision of Lot 1 of Hall .addition in Section 6, Township 28 North, Range 21 west, P.M.M.,
Flathead County, Montana
Glacier Ridge Suites, 281 1st avenue WN
(Camren Center LLC)
Assessor No. 0946500
Lots 19 and 20 in Block 6, Kalispell original Townsite, in Section 18, Township 28 North, Range
21 Vest, P.M.I., Flathead County, Montana
Hampton Inn Kalispell,1140 Highway 2 west
(Spring Creek Development, LLC)
Assessor No. 0981479
Tract 1 of Certificate of Survey 15567 located in the Southeast Quarter of the Southeast Quarter of
Section 12, 'Township 28 North, Range 22 Nest, P.M.M., Flathead County, Montana
Hilltop Inn, 801 L Idaho Street
(Kalispell Hilltop LLC)
Assessor No. 0586900
Tract 2 of Certificate of Survey 8076 located in the Southeast Quarter of the Northwest Quarter and
the Northeast Quarter of the Southwest Quarter of Section 8, Township 28 North, Range 21 west,
P.M.M., Flathead County, Montana
Hilton Garden Inn, 1845 Highway 93 South
(Kalispell Motel, LLC)
Assessor No. 0586900
Tract 1 of Certificate of Survey No. 17045, a tract of land situated, lying, and being the forth half
of the Northwest Quarter of Section 20, Township 28 North, Range 21 west, P.M.M., Flathead
County, Montana
Holiday Inn Express, 275 Treeline Road
(Big Slay HIE, LLC)
Assessor No. 0012481
Imp 1906 on Lot 1 of the Holiday Inn Express Subdivision in Section 36, Township 29 North,
Range 22 west, P.M.M., Flathead County, Montana
Kalispell Grand. Hotel,100 Main Street
(CM Clark)
Assessor No. 0020900
Lots 1 and 2 of Kalispell Original °T`ownsite in Section 18, Township 28 North, Range 21 west,
P.M.M., Flathead County, Montana
Motel 6,1540 Highway 93 South
(M-Six Penvest 1 Business Trust)
.Assessor No. 0599250
A portion of Lot 7 and a portion of the Northerly 50 feet of Lot 8, Bloch 1 of the Plat of Poston
Addition in Section 17, Township 28 North., Range 2lwest, P.M.M., Flathead County, Montana
Outlaw Inns 1701 Highway 93 South
(Kalispell Hospitality Company, Inc.)
Assessor No. 0877530
Lots l , 2 and 3 of Ryker Addition to Kalispell Amended Lots 1-10 in Block 2 in Section 17,
Township 28 North, Range 21 west, P.M.M., Flathead County, Montana
Red Lion Hotel, 20 North Main
(Red Dion Hotel Limited Partnership)
Assessor No. 0974450
Tracts 8BA and 2AB in Southeast Quarter of the Southwest Quarter of the South. Half of the
Southeast Quarter in Section 7, Township 28 North., Range 21 West, P.M.M., Flathead County,
Montana
Super 8,1341 1st Avenue East
(D & D Inc. Hospitality Associates)
Assessor No. 0036470
Tracts 5XB, 5-23A, 5-23.A.A and 5FA in the Southwest Quarter of the Southwest Quarter of Section
17, Township 28 North, Range 21 west, P.M.M., Flathead County, Montana
Travelodge, 350 forth Main
(Montana Hospitality)
Assessor No. 0263865
Lots 1 through 6 and 9 through 12 of Bloch 241, Kalispell Addition 6, in Section 7, Township 28
North, Range 21 west, P.M.M., Flathead County, Montana
Kalispell Tourism Business Improvement
District
2010
Adopted by the Board of Trustees
January ,2010
KALISPELL TOURISM BUSINESS IMPROVEMENT DISTRICT
BYLAWS
Article I
Organization
Section 1.1 Name. The name of the organization shall be the Kalispell Tourism Business
Improvement Districts hereafter referred to as the "TBID,"
Section 1.2 Mission. The mission of the TBID is to generate room nights for lodging facilities in
the city of Kalispell, Montana by effectively marketing our region as a preferred
travel destination.
Section 1.3 Powers. The TBID may engage in any activity consistent with the City of Kalispell
law, Montana law, and these Bylaws, provided that the Board of Trustees determines
that the activity is in furtherance of the purposes for which the TIBD was formed.
Section 1.4 Definitions. The following terms used herein shall have the following definitions:
fif
(a) "Act means the Montana Business Improvement District Act.
(b) "Appointing Authority" means the City Council of the City of Kalispell,
Montana.
(c) "Board" means the board of trustees of the TBID.
(d) "Governing Body" means the City Council of the City of Kalispell, Montana.
Article 1I
Board of Trustees
Section 2.1 Board of Trustees. All corporate powers shall be exercised by or under authority of,
and the business and affairs of the TBID shall be managed under the direction of, the
Board of Trustees of the TBID except as may be otherwise provided in these Bylaws
or by law.
Section 2.2 Number. The Board of Trustees shall consist of not less than five or more than seven
owners of hotel property within the TBID or their designees. The number of trustees
of the board, once established, may be changed within these limits from time to time
by resolution of the Governing Body. A resolution to reduce board membership may
not require resignation of any member prior to completion of the member's appointed
tern.
Section 2.Qualifications of 3 Trustees. Candidates for trustee should meet the following general
criteria: (1) owners of land within the geographic area of the TBID or their designee,
(2) committed to the well-being of the TBID, (3) respected citizen or leader, (4) able
to work effectively as part of a group, (5) competent in some area of value in
achieving objectives of the TBID, (6) able to maintain a commitment for the tern of
appointment, and (7) balances board in terms of representation of large, medium and
small hotel properties.
Section 2.4 Nominations. Nominations for the Board of the TBID shall be made according to the
guidelines established by the City of Kalispell.
Section 2.5 Appointment. Seven initial trustees have been appointed by the Governing Body in
City of Kalispell Resolution xx-xxxx, and future trustees shall be appointed by the
Appointing Authority and approved by the Governing Body.
Section 2.6 Tenn. Three of the trustees who are first appointed must be designated to serve for
terms of 11, 2, and 3 years, respectively, from the date of their appointments, and two
must be designated to serve for terms of 4 years from the date of their appointments.
For a seven--mernber board, there must be two additional appointments for terms of 2
years and 3 years, respectively. After initial appointment, trustees must be appointed
for a term of office of 4 years, except that a vacancy occurring during a term must be
filled for the unexpired term. A trustee shall hold office until the trustee's successor
has been appointed and qualified,
Section 2.7 Absences. If, within a period of twelve (12) consecutive months, any trustee is absent
from three (3) or more regular Board meetings, notice of which has been given to the
trustee at the trustee's usual place of work or residence, or by announcement at a
meeting attended by the trustee, the Chairman may call such absences to the attention
of the Board which may then recommend to the Appointing Authority that such
trustee be removed and that another person be appointed to serve for the unexpired
tenor.
Section 2.8 Resignation, Removal and vacancies . A trustee may resign at any time by delivering
written notice to the Board. A. trustees resignation is effective upon delivery of the
notice of resignation unless the Board authorizes other -vise. A member of the Board
may be removed by the Appointing Authority, with the consent of the Governing
Body. A vacancy on the Board shall be filled by the Appointing Authority, with the
approval of the Governing Body.
Section 2.9 Powers and Duties. The Board shall have those powers set forth in the Act, The
Board's responsibilities shall include, without limitation, (1) administration of the
TBID, including oversight of expenditure of its funds; (2) the establishment of
goals and policies for the TBID, (3) providing annual budgets and work plans to the
Governing Body for approval each fiscal year; (4) nomination of trustees for the
TBID to the Appointing Authority and Governing Body; (5) recommending to the
Governing Body for approval each fiscal year a method of levying an assessment on
the property within the TBID that will best ensure that the assessment on each lot or
parcel is equitable in proportion to the benefits to be received; (6) appointment of a
director of the TBID; (7) approval and implementation of projects and programs to be
undertaken or administered in furtherance of the objectives of the TBID and the
purposes of the Act, (8) compliance with the requirements of the Act, and (9) long
range and strategic planning.
Section 2.1 o No Compensation. Members of the Board may receive no compensation.
Article III
Meetings of the Board
Section 3.1 Regular Board Meetings. The regular monthly meetings of the Board shall be held at
a time and location determined by the Board. Notice of such meetings shall be
provided by telephone, telefax, U.S. mail, email, or other communication, at least
seventy-two hours before the regular meeting is to occur. Public notice of regular
Board meetings shall be provided via news release, web site, newspaper
advertisement or other method determined by the Board to inform the community.
Section 3.2 Special Board Meetings. The Chair or any officer and two members of the Board may
call a special meeting of the Board upon at least forty-eight hours notice as provided
in Section 3.1 to each member of the Board. Such notice shall state the purpose for
which such special meeting is called.
Section 3.3 Quorum. A quorum of the Board consists of a majority of the number of trustees in
office immediately before the meeting begins. Trustees may be in attendance at any
meeting in person or by telephone connection, but any such connection shall permit
any trustee not attending in person to hear all discussion concerning any item upon
which action is to be taken, and shall permit all persons in attendance to hear the
trustee attending by telephone.
Section 3.4 Board Action. 1f a quorum is present at a meeting of the Board, then the affin-native
majority vote of the trustees present at the meeting shall constitute the act of the
Board. The Board may not tape any action unless a quorum of the Board is present,
except a majority of less than a quorum may adjourn the meeting from time to time
without further notice. Each trustee shall have one (1) vote.
Section 3.5 Proxy Prohibition. No proxy voting shall be permitted.
Section .6 Actions b written Consent. Any action of the Board may be taken without a
meeting and may be in the form of fax or email. A 2/3 majority of the voting
members of the Board are required to pass a written motion.
Section 3.7 Committees. The Board may designate and establish such committees and task forces
as it considers appropriate to carry into effect the objectives and purposes of the
TBID. Committee chairs will be appointed by the Chair of the Board. Committee
meetings or task force meetings may be called at any time by the chairperson of the
committee or task force or by the Chair of the Board. At any duly called meeting of a
committee or task force, those present shall constitute a quorum. Each committee and
bask force shall study, investigate and make recommendations to the Board on
subjects within the general scope of activity assigned it by the Chair of the Board or
which subsequently may be referred to it by the Chair of the Board or by the Board.
.Article IV
Officers
Section 4.1 officers, There shall be a Chairs a Vice Chair, a Secretary/Treasurer and TBID
Executive Director of the Board who shall be the officers of TBID. In the absence of
the Chair the Vice Chair shall act as chairman. The Executive Director is a non ---
voting member of the Board.
Section 4.2 Election of officers. officers shall be elected annually by the Board at the last regular
meeting of the fiscal year. Any officer may sign all official documents on behalf of
the organization upon approval by the Board, and shall have such other duties as the
Board may direct.
Section 4.3 Chair. The Chair shall preside at all meetings of the Board and at any other meetings
of the TBID. The Chair shall appoint members to such committees and task forces as
are created by the Board of Directors. The initial chair shall be appointed by the
Mayor of the City of Kalispell, pursuant to §7-12-1122 M.C.A. The teen of office of
the Chair shall be for one year or until his/her successor is elected.
Section 4.4 Vice Chair. The Vice Chair shall perfon-n the duties and exercise the powers of the
Chair in the absence or disability of the Chair and shall perform any other duties as
prescribed by the Board of Directors.
Section 4.5 Secretary/Treasurer, The secretary/treasurer shall beep a record of all proceedings,
minutes of meetings, certificates, contracts and corporate acts of the Board and shall
be responsible for oversight of the financial records of the organization. The Board
may appoint an assistant secretary/treasurer who need not be a member of the Board.
Section 4.6 Executive Director. An Executive Director of the TBID shall be appointed by the
Board. The Executive Director must be the executive director of a nonprofit
convention and visitor bureau, as defined in 15- 65--101, M.C.A., if a nonprofit
convention and visitor bureau is operating within the Governing Body's jurisdiction.
The Executive Director shall be charged with the general supervision and
management of the business affairs of the TBID. The Executive Director shall be the
chief executive officer and shall be charged with initiating and implementing the
marketing plan, budget and related projects, the general supervision over employees,
including their duties and compensation in conformity with the policies approved by
the Board. The Executive Director shall Deep the minutes of the Board meetings,
keep other records as the Board may direct, and perform such other duties as may be
prescribed by the Board, these Bylaws, or by law. The Executive Director shall so
manage the affairs of the TBID as to promote the objectives for which the TBID is
organized.
Section 4.7 other officer Duties. The Board may provide such additional duties for any officer,
as it deems necessary.
Section 4.8 officer Vacanc . A vacancy in any office shall be filled by the Board at its next
regular meeting for the remainder of the unexpired ten-n.
Article V
Confl*ct of Interest
Section 5.1 Conflict of Interest. A conflict of interest transaction is a transaction with the TBID
in which a trustee of the TBID has a direct or indirect interest. A conflict of interest
transaction is not voidable or the basis for imposing liability on the interested trustee
if the transaction was fair at the time it was entered into or is approved pursuant to
Mont. Code Ann. §35-2-418. However, in no event shall the interested trustee vote
on the decision to enter into such transaction. Any trustee having an interest or
conflict in a transaction presented to the Board for authorization, approval, or
ratification shall make a prompt, full and frank disclosure of his or her interest to the
Board prior to its acting on such transaction. Such disclosure shall include any
relevant and material facts, Known to such person, about the transaction which might
reasonably be construed to be adverse to the TB ID's interest. The Board shall
thereupon determine, by majority vote, whether the disclosure shows that a conflict
of interest exists or can reasonably be construed to exist. If a conflict is deemed to
exist, such trustee shall not vote on, nor use his or her personal influence on, nor
participate (other than to present factual infon-nation or to respond to questions) in
the discussions or deliberations with respect to such contract or transaction, nor shall
the trustee be counted in detennining the quorum for the meeting. The minutes of the
meeting will, upon request, reflect that a disclosure was made, the action taken with
respect to such
disclosure, and, if applicable, the abstention from voting and the presence of a
quorum.
Article vI
Administrative and Financial Provisions
Section 6.1 Fiscal Year. The fiscal year of TBID shall be July I - June 30.
Section 6.2 Check Wr ting,,Authority. The Board shall establish limits on the check writing
authority of trustees, officers, employees, and agents of TBID.
Section 6.3 Budget.. and Marketing..Plan. Expenditure of all income shall be allocated to meet the
operating needs of the TBID under a budget and marketing plan prepared by the
Executive Director and adopted by the Board and the Governing Authority. The
Executive Director shall make a cumulative report each month to the Board on
income and expenditures. The approved budget and marketing plan shall be
reviewed as requested by the Board to assure that funds are being expended as
allocated and to deters -nine if any reallocation of resources is needed.
Section 6.4 Disbursements. Upon approval of the Fiscal Year Budget by the Board and the
Governing Body, the Executive Director is authorized to make such disbursements
as necessary on accounts and expenses provided for in that budget, without
additional approval from the Board. Such disbursements may be made by check and
require any one (1) of the following signatures: Executive Director or Chair or any
designated trustee(s). Checks shall be supported by proper requisitions, vouchers,
statements, or other evidence showing the expenditure to be appropriate and
authorized under the budget.
Section 6.5 Indebtedness. No loan or advance shall be made or contracted on behalf of the TBID,
and no note, bond, or other evidence of indebtcdness shall be executed or delivered
in its name except in the manner provided by law and as authorized by the Board.
Section 6.6 Public Records. All financial records of the TBID related to assessments are public
documents and shall be made available to any member of the public who wishes to
see them, provided arrangements are made in advance to review said records in the
office of the TBID during regular office hours. Approval of a majority of the Board
shall be required to remove any financial record of the TBID from the public file.
Section 6.7 Audit. The Board shall engage an independent certified public accounting fir -n to
audit, annually, all general and special accounts of the TBID in accordance to the
standards established by the City of Kalispell. The firm may be instructed to perform
unannounced audits at any given period of the year for verification of accounts, in
addition to the annual audit. The Board may from time to time audit hotel reports of
occupancy to assure proper collections of assessments. All audit results should be
distributed in writing on a timely basis to the Board.
Section 6.8 'Use of Assessments. Assessments collected by the TIBD shall be used for the
following purposes:
(a) The funding of all uses and projects for tourism promotion within Kalispell
as specified in the Kalispell TBID budget; and
(b) The marketing of convention and trade shows that benefit local tourism and
lodging businesses in Kalispell; and
(C) The marketing of Kalispell to the travel industry in order to benefit local
tourism and the lodging businesses located within the Kalispell TBID; and
(d) The marketing of Kalispell to recruit major sporting events in order to
promote local tourism and to benefit the lodging businesses within the
Billings IBID.
Section 6.9 Spokesperson. only the Chair of the Board, the Executive Director, or their
designee shall have authority to speak on behalf of, or to issue press releases for, the
Board or the TBID
Article vII
Amendments
Section 7.1 These Bylaws may be amended or repealed and new Bylaws adopted by the Board
any regular or special meeting of the Board by the affirmative vote of at least two-thirds (2/3) of the
trustees.
CERTIFICATE OF ADOPTION OF BYLAWS
The undersigned hereby certifies that the above Bylaws of the Kalispell Tourism Business
Improvement District were duly adopted by majority vote of the Board of Directors at a duly held
meeting on January 1 2010, and now constitute the Bylaws of the Kalispell Tourism Business
Improvement District.
DATED: January , 2010.
, Secretary
Kalispell Tourism Business Improvement District Board of Directors
and
Kalispell Chamber of Commerce
Operating Agreement
THIS AGREEMENT ("Agreement") is made this xx day January, 20101 by and
between the Kalispell Chamber of Commerce, a 501 (c)(6) non-profit corporation, with its
principal place of business at 15 Depot Park, Kalispell, Montana, ("Chamber/CVB"), and
the Kalispell Tourism Business improvement District Board of Directors, a division of the
City of Kalispell; with its principal place of business at 15 Depot Park, Kalispell, Montana
("TBID"). The Chamber and the TBID are collectively referred to as the "Parties" and
individually at the "Party".
WHEREAS, on January xx, 2010, the City of Kalispell, by Resolution xx-xxxx,
created a Tourism Business Improvement District for a 10-year duration, effective
January xx, 2010, and;
WHEREAS, the mission of the TBID is to promote and market Kalispell, Montana
and to promote tourism, conventions, trade shows, and generate room nights for lodging
facilities in Kalispell by effectively marketing our region as a preferred travel destination,
and;
WHEREAS, the mission of the Chamber is to develop a strong business climate
and vibrant economy by serving the community in a leadership role thereby enhancing
the quality of life, and;
WHEREAS, the Chamber and TBID have common goals and interests in the
promotion, marketing, and selling of visitor overnights and such goals and interests are
in furtherance of the purposes of both Parties, and;
WHEREAS, the State of Montana has mandated that the director of a tourism
business improvement district must be the executive director of the existing convention
and visitor bureau, when one exists, and the Chamber has served as that designated
entity by the City of Kalispell since 1987, and;
WHEREAS, given their common interests and their mutual desire to maximize
opportunities available to them and the minimize administrative expenses, the Parties
wish to enter into this Agreement, by which the Chamber will provide the TBID with
certain staffing, office space, office equipment, office furniture, office supplies, office
services, and other administrative support, and by which the Chamber may license, and
TBID may accept certain intellectual property;
NOW THEREFORE, in consideration of the premises set forth above and the
promises set forth below, the sufficiency and receipt of which are hereby acknowledged,
the Parties hereby agrees as follows:
1. Term and Termination
A. Term. This agreement shall be effective as of January xx, 2010 and shall remain
in full force and effect until June 30, 2020, or as long as the tourism business
improvement district created by the city of Kalispell pursuant to Resolution xx-
xxxx is in effect, unless terminated earlier pursuant to this Agreement.
B. Termination without cause. Either Party may terminate this Agreement, without
cause, by giving written notice to the other Party stating when, but not less than
ninety (90) days thereafter, such termination shall be effective.
C. Termination for cause. Either Party may terminate this Agreement, for cause, if
either Party notifies the other Party of a material breach of any provision of the
Agreement. The breaching Party shall have thirty (30) days following notice to
cure the breach. The notice shall specify the alleged breach and the date on
which termination will be effective unless such breach is cured to the satisfaction
of the non -breaching Party within the time period allowed.
D. Termination for other Reasons.
1. Either Party may terminate this Agreement upon thirty (30) days notice to the
other if at any time:
a. The City of Kalispell does not approve an annual work plan or budget for
the tourism business improvement district that permits continuation of this
Agreement as determined in their reasonable discretion of the TBID.
b. Either Party determines that its continued relationship with the other Party
will threaten any relevant tax exemption that either Party now possesses
❑r shall possess in the future.
2. This Agreement shall terminate automatically upon termination of the tourism
business improvement district created by the city of Kalispell pursuant to
Resolution xx-xxxx.
3. This Agreement may be terminated at any time by mutual written agreement
of the Parties.
II. Board Res onsibilities and Relationshi
The Board of Directors of each Party shall retain all governing authority of that
respective Party placed in it by law and its bylaws. The Board of Directors of each Party
shall represent that Party in matters relating to this Agreement and interpretation. Each
Party shall appoint a non -voting member from its Board of ❑irectors to serve in an ex -
off icio capacity on the other Party's Board to provide regular reports and
communications.
Ill. Services
During the term of this Agreement, TBID engages Chamber/CVB to provide the
services and functions described in this Agreement, and the Chamber/CVB agrees to
provide such services and functions, under the terms set forth herein. The services and
functions are as follows:
A. offices Space,_ Furniture Su lies and Services
2
1. Office Space. ChamberlCVB shall provide TBID with office space, at the
TB I D's cost, within the Chamber/CVB's premises, currently located at 15
Depot Park, Kalispell, Montana (see Addendum A).
2. Furniture Fixtures and E ui ment. ChamberlCVB shall provide TBID
with the use of office equipment, office furniture, office supplies, office
services, and other administrative support as is currently offered (see
Addendum B).
3. Pa ment for S ecific Items. If the Parties agree that specific additional
equipment, furniture, supplies or services are needed solely for the use of
the TBID, the cost of the same will be borne by the TBID. If the Parties
determine that specific additional equipment, furniture, supplies or
services are needed for the mutual shared use of the Parties, the Parties
shall determine a reasonable basis to share the cost.
B. Professional Services and Staffin
1. President/CEO. The President/CEO of the ChamberlCVB shall act as the
Executive Director of the TBID without charge to the TBID. The
President/CEO shall report to the TBID Board of Directors and shall serve
as the Director of the TBID funds as required by state statute (Montana
Code Annotated-2007, 7-12-1121). The President/CEO shall have
supervisory authority and responsibility for all staff of the ChamberlCVB,
and shall have sole discretion to hire, fire, evaluate and assign duties to
employees. The President/CEO will be evaluated by the ChamberlCVB
Board. The TBID may have a representative serve on the selection
committee for TBID program manager positions.
2. Employee Services. ChamberlCVB shall employ professionals who shall
provide services to the TBID. These employees shall report to the
ChamberlCVB President/CEO. TBID shall reimburse ChamberlCVB for
all costs and expenses related to recruiting, hiring, and training
employees including all costs related to salary, benefits and other
compensation as may be adjusted from time to time. These employees
shall be subject to the employment policies of the ChamberlCVB and
shall be subject to its oversight and supervision. The ChamberlCVB shall
have the authority to hire, discipline and discharge its employees.
3. Financial Administration. The ChamberlCVB shall establish and
administer accounting procedures, systems, and controls in accordance
with generally accepted accounting principles in order to develop, prepare
and safe keep the financial records and books of account for the business
and financial affairs of the TBID. The ChamberlCVB shall prepare and
provide regular financial statements for the review and use of the Board
of Directors of the TBID at its regular Board meetings.
a. Disbursements. TBID disbursements shall be made in
accordance with the bylaws of the TBID. The President/CEO
shall assist in development of its annual report and workplan
to present for annual approval by the City of Kalispell.
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b. Agency Fund. The ChamberlcVB is acting as an agent of the
City of Kalispell for the administration of TBID funds. The City
will collect assessed funds quarterly from hoteliers within the
district. Disbursements will be made quarterly from the city
into a restricted account of the ChamberlCVB. The
charnberlCVB will provide accounting, tax, and audit services,
and liability insurance according to the standards established
by the city for Agency Funds. such costs will be paid from, or
reimbursed by, TBID funds.
IV. Intellectual and Physical Property
A. _Name and Lobo. Each Party shall retain ownership and use of its own
registered name, logo, and any trademarks or service marks.
B. confidential Information and Intellectual Pro ert . During the term of this
Agreement, the Parties anticipate that certain information and intellectual
property will be developed for the purposes of the chamberlcVB and the
TBI D's mission and activities. said confidential information and intellectual
property includes, but is not limited to, databases, lists, customer lists, visitor
guides and publications, financial and proprietary information, concepts,
documents, materials, trade secrets, business contacts, and ideas about
current and future projects which the chamberlcVB or TBID regards as
confidential. All such confidential information developed pursuant to the
services provided under this Agreement shall be owned jointly by the
Chamber/CVB and the TBID.
C. Physical Property. Physical property solely with TBID funds will be owned by
the TBID. Property purchased jointly by the chamberlcVB and TBID will be
owned jointly by the Chamber/CVB and the TBID and will be distributed
equitably upon any separation of the Parties
V. Insurance
A. TBID Insurance. The chamberlcVB, as an agent of the City, shall
maintain a policy or policies of comprehensive general liability insurance
coverage which will include activities of the TBID and name the city as
additionally insured in an amount sufficient for such purposes by the city
of Kalispell, as required by 7-12- 143 MCA.
B. Proof of Coverage. Proof of the foregoing insurance coverage, as
applicable, shall be provided by the chamberlcVB to the city at the
commencement of this Agreement, and annually upon renewal of
coverage.
VI. Indemnification
Each Party hereby agrees to indemnify, save and hold harmless the other Party
and the other Party Is subsidiaries, affiliates, related entities, partners, agents, directors,
employees, attorneys, heirs, successors, and assigns, and each other from and against
all claims, actions, demands, losses, damages, judgments, settlements, costs and
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expenses (including reasonable attorney's fees and expenses), and liabilities of every
kind and character whatsoever, which may arise by reason of: ) any act or omission
constituting a breach or default under this Agreement by the party or any of its officers,
directors, employees, or agents in their capacity as officers, directors, employees, or
agents of the Party; and/or 2} the inaccuracy or breach of any of the representations or
warranties made by the Party under this Agreement. The indemnity under this Section
shall require the payment of costs and expenses by the liable Party as they are incurred.
The Party seeking reimbursement or indemnity under this Section shall promptly notify
the liable (other) Party upon receipt of any claim or legal action referenced in this
Section. The indemnified Party shall not at any time admit liability or otherwise attempt
to settle or compromise said claim, action or demand, except upon the express prior
written instruction or agreement of the indemnifying Party or upon the repudiation or
denial of the indemnification by the indemnifying Party. For the purposes of this Section,
a repudiation or denial of indemnification shall be deemed to occur if the Party seeking
indemnification does not receive written confirmation of indemnification from the other
Party from whom the indemnification is sought within thirty (30) calendar days of notice
of the claim, action or demand by the Party seeking indemnification. The Party seeking
indemnification shall make all reasonable efforts to provide the Party from whom
reimbursement is sought with all information that may be useful in determining whether
indemnification is proper. The provisions of this Section shall survive any termination or
expiration of this Agreement.
VII. Relationship of Parties
In the performance of the services to be provided pursuant to this Agreement, the
Parties understand and agree that the Chamber/CVB and any of its employees or
agents shall be, and at all times are, acting as agents of the TBi D. No Party shall have
the power to bind or obligate the other except as specifically provided in this Agreement.
VIII. Notices
Any notices required hereunder shall be in writing and shall be deemed to have
been duly given when hand delivered or when deposited in the United State mail, if
mailed by certified or registered mail, return receipt requested, postage prepaid, or sent
by federal express or other courier service and addressed to the person(s) at the
address set forth at the end of this Agreement or such other person and/or address of
which the receiving party has given notice pursuant to this Section. All notices shall be
considered given and received on the date appearing on the return receipt thereof, or on
the delivery date appearing on the records of federal express or other courier service.
ix. General Provisions
A. Legal Capacity. The Parties each warrant to the other that it has the legal
capacity to enter into this Agreement, that the execution has been duly approved
by its Board of Directors and that its obligations under the Agreement do not
violate its organizational documents, bylaws, or any agreement to which it is
party.
B. Non-Assum tion of Liabilit . Except as specifically set forth herein,
chamber/CVB shall not, by entering into and performing this Agreement, become
liable for any of the existing or future obligations, liabilities, or debts or TBID
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under this Agreement. TBID shall not, by entering into and performing this
Agreement, become liable for any of the future obligations, liabilities, or debts of
Chamber/CVB.
C. Amendments. No amendments or additions to this Agreement shall be
binding unless executed in writing and signed by the Parties
D. Governing Law. This Agreement shall be governed by and constructed
according to the laws of and subject exclusively to the jurisdiction of the courts of
the State of Montana. Venue for any action under this Agreement shall be in
Flathead county, Montana.
E. Waiver of Breach. No waiver of any breach of any provision ❑r condition
of this Agreement, whether by course or dealing or otherwise, shall be effective
unless evidenced by any instrument in writing duly executed by the party against
whom such enforcement or waiver is sought. Waiver of breach of any term or
provision of this Agreement shall not be deemed a waiver of any other breach of
the same or a difference provision.
F. Severability. In the event any term or provision of this Agreement is
rendered invalid or unenforceable by any valid legislative or regulatory act or
declared null and void by any court of competent jurisdiction, the remaining
provisions of this Agreement shall remain in full force and effect.
O. Headings. The paragraph headings contained in this Agreement are for
reference purposes only and should not affect in any way the meaning or
interpretation of this Agreement.
H. Prior Agreements. This Agreement constitutes the complete Agreement
of the Parties, and shall supersede and render null and void all prior and
contemporaneous agreements between the Parties regarding the subject matter
hereof.
1. Assignment. Neither Party may assign its rights duties or obligations
under this Agreement without the prior written consent of the other Party, which
consent may be withheld in the sole discretion of a Party. This Agreement shall
be binding upon and inure to the benefit of permitted assignees.
J. Attorne 's Fees. If any legal proceeding is commenced which is related
to this Agreement, the losing Party shall pay the prevailing Parley's actual
attorney's fees and expenses incurred in the preparation for, conduct of or
appeal or enforcement of judgment from the proceeding.
K. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original for all purposes and all of which taken
together, shall constitute one and the same instrument.
IN WITNESS HEREOF, the parties hereto have executed this Agreement on this
xx day of January, 2010.
G
KALISPELL TOURISM BUSINESS IMPROVEMENT DISTRICT
BOARD OF DIRECTORS
By:
Its:
KALISPELL CHAMBER OF COMMERCE AND
CONVENTION AND VISITOR BUREAU
By:
Its:
CITY OF KALISPELL
By:
Its:
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