HomeMy WebLinkAbout2001-10-23; City Council; Resolution 2001-3251
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RESOLUTION NO. 2001-325
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARSLBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO
EXECUTE AN AGREEMENT WITH THE CARLSBAD
CONVENTION AND VISITORS BUREAU (CCVB) AND
APPROPRIATING $21,000 FROM THE CONTINGENCY
ACCOUNT AVAILABLE BALANCE.
WHEREAS, the City Council of the City of Carlsbad has determined that it is in the best
interest of the City to promote tourism and provide services to visitors to the City; and
WHEREAS, the City Council has further determined that the Carlsbad Convention and
Visitor’s Bureau possesses the necessary skills to provide these services to the City of Carlsbad;
and
WHEREAS, the Carlsbad Convention and Visitor’s Bureau has agreed to provide these
services under the terms and conditions of the agreement attached hereto.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California as follows:
1. That the above recitations are true and correct.
2. That the Mayor is hereby authorized to execute the attached agreement, Exhibit 2,
between the City of Carlsbad and the Carlsbad Convention and Visitor’s Bureau to provide
professional services related to the promotion of the City of Carlsbad.
3. That an appropriation of $2 1,000 from the Contingency Account available balance is
authorized.
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PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the
23rd day of OCTOBER 2001, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Finnila, Nygaard, Hall
NOES: None
ABSENT: None
Mayor
ATTEST:
City Clerk
(SEAL) J
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AGREEMENT FOR pRoM)(ITtON OF TOURISM AND VtStTOR SERUtCES
CARLSBAD CONVENTION AND VISITOR’S BUREAU
THIS AGREEMENT is made and entered into as of the 31s;r day of
2001, by and between the CITY OF CARLSBAD, a municipal
corporation, (“City”), and The Carlsbad Convention and Visitor’s Bureau, a non-profit
corporation; hereinafter referred to as “CCVB”.
RECITALS
A. City requires the professional services of a contractor that is experienced
in tourism and visitor promotion, programs and services.
B. CCVB has the necessary experience in providing professional services
and advice related to the promotion of tourism in Carlsbad.
C. Selection of CCVB is expected to achieve the desired results in an
expedited fashion.
D. CCVB has submitted a proposal to City and has affirmed its willingness
and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and CCVB agree as follows:
1. SCOPE OF WORK
. City retains CCVB to perform, and CCVB agrees to render, those services (the
“Services”) that are defined in attached Exhibit “A”, which is incorporated by this
reference in accordance with this Agreement’s terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, CCVB will exercise the reasonable professional care
and skill customarily exercised by reputable members of CCVB’s profession practicing
in the Metropolitan Southern California Area, and will use reasonable diligence and best
judgment while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of twelve (12) months
beginning November I,2001 and ending October 31,2002.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
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5. COMPENSATION
The to-tat fee payMe for ttte Services ta be perfumed dtrrirrg the Mat Agreement ten17
will be Three Hundred Eighty Four Thousand Dollars ($384,000). No other
compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. The City reserves the right to withhold a ten percent
(10%) retention until City has accepted the work and/or Services specified in Exhibit “A”.
Incremental payments to CCVB are outlined in attached Exhibit “A”.
6. STATUS OF CCVB
CCVB will perform the Services in CCVB’s own way as an independent CCVB and in
pursuit of CCVB’s independent calling, and not as an employee of City. CCVB will be
under control of City only as to the result to be accomplished, but will consult with City
as necessary. The persons used by CCVB to provide services under this Agreement will
not be considered employees of City for any purposes.
The payment made to CCVB pursuant to the Agreement will be the full and complete
compensation to which CCVB is entitled. City will not make any federal or state tax
withholdings on behalf of CCVB or its agents, employees or subcontractors. City will not
be required to pay any workers’ compensation insurance or unemployment contributions
on behalf of CCVB or its employees or subcontractors. CCVB agrees to indemnify City
within thirty (30) days for any tax, retirement contribution, social security, overtime
payment, unemployment payment or workers’ compensation payment which City may
be required to make on behalf of CCVB or any agent, employee, or subcontractor of
CCVB for work done under this Agreement. At the City’s election, City may deduct the
indemnification amount from any balance owing to CCVB.
7. SUBCONTRACTING
CCVB will not subcontract any portion of the Services without prior written approval of
City. If CCVB subcontracts any of the Services, CCVB will be fully responsible to City
for the acts and omissions of CCVB’s subcontractor and of the persons either directly or
indirectly employed by the subcontractor, as CCVB is for the acts and omissions of
persons directly employed by CCVB. Nothing contained in this Agreement will create
any contractual relationship between any subcontractor of CCVB and City. CCVB will be
responsible for payment of subcontractors. CCVB will bind every subcontractor and
every subcontractor of a subcontractor by the terms of this Agreement applicable to
CCVB’s work unless specifically noted to the contrary in the subcontract and approved
in writing by City.
8. OTHERCCVBS
The City reserves the right to employ other CCVBs in connection with the Services.
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9. INDEMNIFICATION
Except as to the sate rregtigence or wittful misconduct of City, CCVB wilt defend,
indemnify and hold City, its officers, agents and employees, harmless from any and all
loss, damage, claims, demands, liability, expense or cost, including attorney’s fees,
which arises out of, or is in any way connected with the performance of, the Services by
CCVB or any of CCVB’s employees, agents or subcontractors, notwithstanding that City
may have benefited from their services.
The parties expressly agree that any payment, attorney’s fee, costs or expense City
incurs or makes to’ or on behalf of an injured employee under the City’s self-
administered workers’ compensation is included as a loss, expense or cost for the
purposes of this section, and that this section will survive the expiration or early
termination of the Agreement.
10. INSURANCE
CCVB will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property
which may arise out of or in connection with performance of the services by CCVB or
CCVB’s agents, representatives, employees or subcontractors. The insurance will be
obtained from an insurance carrier admitted and authorized to do business in the State
of California. The insurance carrier is required to have a current Best’s Key Rating of not
less than “A-Y.
10.1 Coverages and Limits.
CCVB will maintain the types of coverages and minimum limits indicated below, unless
City Attorney or City Manager approves a lower amount. These minimum amounts of
coverage will not constitute any limitations or cap on CCVB’s indemnification obligations
under this Agreement. City, its officers, agents and employees make no representation
that the limits of the insurance specified to be carried by CCVB pursuant to this
Agreement are adequate to protect CCVB. If CCVB believes that any required
insurance coverage is inadequate, CCVB will obtain such additional insurance
coverage, as CCVB deems adequate, at CCVB’s sole expense.
10.1 .l Commercial General Liability Insurance. $1 ,OOO,OOO combined single-limit
per occurrence for bodily injury, personal injury and property damage. If the submitted
policies contain aggregate limits, general aggregate limits will apply separately to the
work under this Agreement or the general aggregate will be twice the required per
occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for CCVB’s
work for City). $1 ,OOO,OOO combined single-limit per accident for bodily injury and
property damage.
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10.1.3 Workers’ Compensation and Employer’s Liability. Workers’ Compensation
tin-its as recprhed by the Calii Labor Code and EmpIoyer’s Liabifii limits of
$1 ,OOO,OOO per accident for bodily injury. Workers’ Compensation and Employer’s
Liability insurance will not be required if CCVB has no employees and provides, to City’s
satisfaction, a declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to CCVB’s
profession with limits of not less than $1 ,OOO,OOO per claim. Coverage must be
maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions. CCVB will ensure that the policies of insurance required
under this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1
Liability.
The City will be named as an additional insured on General
10.2.2 CCVB will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior written notice
to City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City’s execution
of this Agreement, CCVB will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If CCVB fails to maintain any of these insurance
coverages, then City will have the option to declare CCVB in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to
maintain the required coverages. CCVB is responsible for any payments made by City
to obtain or maintain insurance and City may collect these payments from CCVB or
deduct the amount paid from any sums due CCVB under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and
endorsements.
11. BUSINESS LICENSE
CCVB will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
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12. ACCOUNTING RECORDS
CCVB witt maintain cumptete and accurate records with respect to costs incurred under
this Agreement. All records will be clearly identifiable. CCVB will allow a representative
of City during normal business hours to examine, audit, and make transcripts or copies
of records and any other documents created pursuant to this Agreement. CCVB will
allow inspection of all work, data, documents, proceedings, and activities related to the
Agreement for a period of three (3) years from the date of final payment under this
Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by CCVB or its agents, employees, and subcontractors
pursuant to this Agreement is the property of City. In the event this Agreement is
terminated, all work product produced by CCVB or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to City. CCVB will
have the right to make one (1) copy of the work product for CCVB’s records.
14. COPYRIGHTS
CCVB agrees that all copyrights that arise from the services will be vested in City and
CCVB relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of City and on behalf of CCVB under this Agreement.
For City: For CCVB:
Title: Economic Development Manager
Department :Economic Development
City of Carlsbad
Address 1635 Faraday Avenue
Carlsbad, CA 92008
Phone No. (760) 602-2732
Title EX~~*;T/LL &)*CCQ.L
Address GC*2 L&.sbc+l tillyc’j)‘. t&is dd, c.+ 92 Lx% I
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate CCVB’s duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City’s Conflict of Intqrest Code is required
, of CCVB or any of CCVB’s employees, agents, or subcontractors. Should it be
determined that disclosure is required, CCVB or CCVB’s affected employees, agents, or
subcontractors will complete and file with the City Clerk those schedules specified by
City and contained in the Statement of Economic Interests Form 700.
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CCVB, for CCVB and on behalf of CCVB’s agents, employees, subcontractors and
ccYnsuttal?ts warrmts that by execvtion uf this Agreemerrl, tht they have I-KY interest,
present or contemplated, in the projects affected by this Agreement. CCVB further
warrants that neither CCVB, nor CCVB’s agents, employees, subcontractors and
consultants have any ancillary real property, business interests or income that will be
affected by this Agreement or, alternatively, that CCVB will file with the City an affidavit
disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
CCVB will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by CCVB, or in any way affect
the performance of the Services by CCVB. CCVB will at all times observe and comply
with these laws, ordinances, and regulations and will be responsible for the compliance
of CCVB’s services with all applicable laws, ordinances and regulations.
CCVB will be aware of the requirements of the Immigration Reform and Control Act of
1986 and will comply with those requirements, including, but not limited to, verifying the
eligibility for employment of all agents, employees, subcontractors and consultants that
the services required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
CCVB will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following
procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of CCVB or City will reduce
such questions, and their respective views, to writing. A copy of such documented
dispute will be fowarded to both parties involved along with recommended methods of
resolution, which would be of benefit to both parties. The representative receiving the
letter will reply to the letter along with a recommended method of resolution within ten
(10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved
party, a letter outlining the disputes will be forwarded to the City Manager. The City
Manager will consider the facts and solutions recommended by each party and may
then opt to direct a solution to the problem. In such cases, the action of the City
Manager will be binding upon the parties involved, although nothing in this procedure
will prohibit the parties from seeking remedies available to them at law.
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20. TERMINATION
tn the event of the CCVB’s Mure to prosecute, detiier, or perform the Setices, City
may terminate this Agreement for nonperformance by notifying CCVB by certified mail
of the termination. If City decides to abandon or indefinitely postpone the work or
services contemplated by this Agreement, City may terminate this Agreement upon
written notice to CCVB. Upon notification of termination, CCVB has five (5) business
days to deliver any documents owned by City and all work in progress to City address
contained in this Agreement. City will make a determination of factebased upon the work
product delivered to City and of the percentage of work that CCVB has performed which
is usable and of worth to City in having the Agreement completed. Based upon that
finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may
terminate this Agreement. In this event and upon request of City, CCVB will assemble
the work product and put it in order for proper filing and closing and deliver it to City.
CCVB will be paid for work performed to the termination date; however, the total will not
exceed the lump sum fee payable under this Agreement. City will make the final
determination as to the portions of tasks completed and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
CCVB warrants that CCVB has not employed or retained any company or person, other
than a bona fide employee working for CCVB, to solicit or secure this Agreement, and
that CCVB has not paid or agreed to pay any company or person, other than a bona
fide employee, any fee, commission, percentage, brokerage fee, gift, or any other
consideration contingent upon, or resulting from, the award or making of this
Agreement. For breach or violation of this warranty, City will have the right to annul this
Agreement without liability, or, in its discretion, to deduct from the Agreement price or
consideration, or otherwise recover, the full amount of the fee, commission, percentage,
brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, CCVB agrees that any Agreement claim submitted to City
must be asserted as part of the Agreement process as set forth in this Agreement and
not in anticipation of litigation or in conjunction with litigation. CCVB acknowledges that
if a false claim is submitted to City, it may be considered fraud and CCVB may be
subject to criminal prosecution. CCVB acknowledges that California Government Code
sections 12650 et seq., the False Claims Act applies to this Agreement and, provides
for civil penalties where a person knowingly submits a false claim to a public entity.
These provisions include false claims made with deliberate ignorance of the false
information or in reckless disregard of the truth or falsity of information. If City seeks to
recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation
costs, including attorney’s fees. CCVB acknowledges that the filing of a false claim may
subject CCVB to an administrative debarment proceeding as the result of which CCVB
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may be prevented to act as a Contractor on any public work or improvement for a period
of up to five (5) years. CCVB acknowtedges debarment by another jurisdiction is
grounds for City to terminate this Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
CCVB and their respective successors. Neither this Agreement orlany part of it nor any
monies due or to become due under it may be assigned by CCVB without the prior
consent of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
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26. AUTHORITY
The individvats executing this Agreemeti and the instruments referertced in it on behalf
of CCVB each represent and warrant that they have the legal power, right and actual
authority to bind CCVB to the terms and conditions of this Agreement.
CCVB
Lr k WkkbL
(print name/title) ATTEST:
**By: /y-<-A /g&-- 7
’ (sign here)
Lx?,d4? / kc/&-J ,a----
(print name/title)
City Clerk -
If required by City, proper notarial acknowledgment of execution by CCVB must
be attached. If a Corporation, Agreement must be signed by one corporate officer
from each of the following two groups.
*Group A. “Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind the
corporation.
APPROVED AS TO FORti:
RONALD R. BALL, City Attorney
By: w &&&&+-’
Deputy City Attorney
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EXHIBIT “A”
SCOPE OF SERVICES
The City agrees to engage, and the CCVB agrees to perform the services
described below:
SCOPE OF WORK
1. Manage and coordinate a marketing program that positions Carlsbad as a
prime tourist destination in Southern California. ’
a. Generate awareness of Carlsbad in those geographic regions of
the United States which provide the largest number of visitors to
Carlsbad each year.
b. Operate the Visitor Information Center in the AT&SF Depot seven
days per week from 9:00 a.m. to 500 p.m., Monday through Friday,
from IO:00 a.m. to 4:00 p.m. on Saturday, and from IO:00 a.m. to
3:00 p.m. on Sunday, except New Years Day, Easter Sunday,
Thanksgiving Day, and Christmas Day to assist visitors to
Carlsbad.
c. Provide familiarization tours (including a travel writers program) by
organizing visits to Carlsbad by travel writers and others that result
in published articles promoting Carlsbad and additional tourism to
Carlsbad
d. Promote local community events, including the San Diego
Marathon, the Carlsbad 5000, the Carlsbad Triatholon, and the La
Costa Resort golf and tennis events in the following ways:
1. Provide hotel/motel referrals.
2. Staff Information booths as requested by the City and/or
the private event promoters.
3. Distribute promotional literature related to the events from
the Visitor Information Center.
e. Develop private funding for advertising co-op programs, central
reservations fees and other participatory fees to support a full-time
aggressive tourism marketing program.
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f. provide re@s as fotlows:
1. CCVB shall deliver to the City, semi-annual reports of the
activity and expenses of the CCVB as funded under this
agreement. These reports shall summarize activities and
expenses for each six (6) month period of the contract and
include the following information:
a. A written description of the activities of CCVB
for the quarter.
b. A statistical report showing the results of the
information gathered from inquiries at the
Visitor’s Center, CCVB website, or other
sources.
c. An accounting of the funds spent by program in
a format approved by the City.
2. CCVB shall include in the semi-annual report, statistical or
other quantitative information which demonstrates the
effectiveness of CCVB’s efforts in drawing additional
visitors to Carlsbad.
PAYMENT OF FEES
For the services described above, the City will compensate the CCVB as
described below:
1. Payment for the operation of the Visitor’s Center shall be made to
the CCVB in equal monthly installments by the 15’h of each month
for the 12 months beginning November 2001 and ending October
2002. The monthly payment amount for the period from November
2001 to October 2002 will be $11,833, not to exceed $142,000 for
the 12 month period.
2. Payment for all other programs will be released to the CCVB on a
reimbursement basis up to the maximum amounts shown below:
a. Travel Shows and FAM Tours $25,000
b. Brochures & Print Material $ 35,000
c. Internet Maintenance & Development $ 12,000
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d. Marketing, Advertising and Promotions $170,000
3. The City reserves the right to terminate or reduce the funding levels
outlined in the Agreement in the event of City revenue reductions.
Recommended reductions will be reported to the City Council who
shall determine the modified funding level.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
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Description of Attached Document
Document Date:
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