Loading...
HomeMy WebLinkAbout2003-10-14; City Council; Resolution 2003-2671 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO, 2003-267 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) 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. 2. That the above recitations are true and correct. 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. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the 14th dayof October 2003, by the following vote to wit: AYES: Council Members Lewis, Finnila, Hall, and Packard NOES: None ABSENT: Council Member Ku Mayor 3 AB 17,343 10-14-03 Reso 2003-267 AGREEMENT FOR PROMOTION OF TOURISM AND VISITOR SERVICES CARSLBAD CONVENTION AND VISITOR'S BUREAU THIS AGREEMENT is made and entered into as of the Jsd day of , 2003, 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". @e nde-k RECITALS A. City requires the professional services of a contractor that is experienced B. CCVB has the necessary experience in providing professional services C. Selection of CCVB is expected to achieve the desired results in an D. CCVB has submitted a proposal to City and has affirmed its willingness in tourism and visitor promotion programs and services. and advice related to the promotion of tourism in Carlsbad. expedited fashion. 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. CCVB will submit a marketing plan draft to the City on or before January 1, 2004. 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 from November 1, 2003 through June 30, 2004. 4. Time is of the essence for each and every provision of this Agreement. TIME IS OF THE ESSENCE 5. COMPENSATION The total fee payable for the Services provided during the Fiscal Year 2003 through Fiscal Year 2004 (July 1, 2003 through June 30, 2004) shall not exceed Four Hundred Nine Thousand One Hundred dollars ($409,100). Amounts spent under the prior City Attorney Approved Version #04.01.02 1 4 contract with CCVB (dated November 1, 2002 to October 31, 2003) that overlap with the new Fiscal year allocation (amounts spent between the dates of July 1, 2003 and October 31, 2003 shall be reduced from the new Fiscal Year allocation, so that the total amount of funds allocated or reimbursed to CCVB does not exceed $409,100. 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 (1 0%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR CCVB will perform the Services in CCVB's own way as an independent contractor 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 comptete 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. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. CCVB agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein I N DE M N IF I CAT ION 4 City Attorney Approved Version #04.01.02 2 caused in whole or in part by any willful misconduct or negligent act or omission of the CCVB, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. 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 this Agreement. IO. 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-:V". 10.1 Coveraqes 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. 10.1.1 Commercial General Liability Insurance.$l ,000,000 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). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 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. 3 City Attorney Approved Version #04.01.02 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to CCVB's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following tha 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 The City will be named as an additional insured on General Liability. 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 Coveraqe. 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. 12. ACCOUNTING RECORDS CCVB will maintain complete 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 4 City Attorney Approved Version #04.01.02 I 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: Name Cvnthia Haas Title Economic Dev Manaqer Department Econ. Development City of Carlsbad Address 1635 Faradav Ave Carlsbad, CA 92008 Phone No.(760) 602-2732 Name ~a W LdldlmF Title gAccVf;l/t h;,uu~vh Address 400 C4ls hd v,7ly c b, Phone No. (-%SO) 43L/ - 6043 CdSLdi CA 92008 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 Interest 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. CCVB, for CCVB and on behalf of CCVB’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no 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 City Attorney Approved Version #04.01.02 5 8 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 forwarded 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 (IO) 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. 20. TERMINATION In the event of the CCVB's failure to prosecute, deliver, or perform the Services, 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 fact based 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. 6 City Attorney Approved Version #04.01.02 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 may be prevented to act as a CCVB on any public work or improvement for a period of up to five (5) years. CCVB acknowledges 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 or any part of it nor any monies due or to become due under it may be assigned by CCVB without the prior City Attorney Approved Version #04.01.02 10 7 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. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced 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 (print name/title) CITY OF SARLSBAD, a mnicipal ATTEST: If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-president **Group B. Secretary , Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation 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 FORM: 8 City Attorney Approved Version #04.01.02 \\ RONALD R. BALL, City Attorney By: -City Attorney City Attorney Approved Version #04.01.02 9 la- CALIFORNIA ALL=PURPOSE ACKNOWLEDGMENT State of California County of } SS. vas Name and Title of Officer (e g , "Jan&&. Notary Publit) On 1. 2003 , before me, %!DW& A- ded personally appeared '3cl;tvrc~ Feavn Name@) of Signer@) 0 personally known to me B proved to me on the basis of satisfactory evidence to be the person(&'whose name# islate subscribed to the within instrument and acknowledged to me that he/sl&#ey executed the same in his/he&fw$ ' authorized capacity(ies), and that by hislherfttrtir signature@) on the instrument the person(@, or the entity upon behalf of which the person(+ acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above by law, it may prove valuable to persons relying on the document Val and reattachment of this form to another document. ed Document Document Date: Number of Pages: Signer(s) Other Than Named Above: 0 Individual 0 Corporate Officer - Title(s): 0 Partner - CI Limited Cj Gen 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: 0 1999 Nahonal Notary Association - 9350 Ue Sola Ave., P.O. Box 2402 * Chaiswonh, CA 91313-2402 * w.natimalnolaryorg Prod. No. 5907 Reorder Call Toll-Free 1 -800-8764S27 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California I County of I P-b a 003 , before me fa\ Date’ Name and Title of Officer (e g , “Jane boe. Notary Public”)l U kame(s) of Signer@) personally appeared mflw 0. NbDt7w personally known to me &proved to me on the basis of satisfactory evidence to be the person(s) whose name(%) islare subscribed to the within instrument and acknowledged to me that he/sI&tky executed the same in his/he&berr ’ authorized capacity(*), and that by his/kerftheir signaturewon the instrument the person(@, or the entity upon behalf of which the person@)+ acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above OPTIONAL ‘on below is not required by law, it may prove valuable to persons relying on the document prevent fraudulent removal and reattachment of this form to another document. hed Document Document Date: Number of Pages: Signer(s) Other Than Named Abov n Individual n Corporate Officer - Title(s): U Partner - 0 Limited 0 Gen 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator U Other: Signer Is Representing: 0 1999 National Notary ASsOCiahon * 9350 De Solo Ave.. P 0. Box 2402 * Chalsworlh. CA 913132402 * w.nalionalnolary.org Prod. No 5907 Reorder: Call Toll-Free 1-800-876-6827 I; 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 marketing programs that position Carlsbad as a year-round leisure visitor destination in Southern California. a. b. C. d. e. As brand manager, increase the brand awareness of Carlsbad in those geographic regions of the United States that provide the greatest potential for increasing the number of visitors to Carlsbad each year. Operate the Visitor Information Center in the Historic Santa Fe Train Depot seven days per week from 9:00 a.m. to 5:OO p.m., Monday through Friday, from 1O:OO a.m. to 4:OO p.m. on Saturday, and from 10:OOa.m.to 3:OO p.m. on Sunday, except New Years Day, Easter Sunday, Thanksgiving Day and Christmas Day to assist visitors and Carlsbad residents. The CCVB may adjust hours for when extraordinary events of a local or national importance (i.e., terrorist attacks, natural disasters, etc.) occur. Initiate familiarization tours by inviting the media, to include travel writers, to Carlsbad with the end result being irt published articles about Carlsbad that help to promote visitor travel to Carlsbad. Promote local community events, including, but not limited to, the San Diego Marathon, the Carlsbad 5000, the Carlsbad Triathlon, and the La Costa Resort Accenture golf and Acura tennis events through traditional and electronic marketing media. 1. When requested by the City and, where feasible to do so, the CCVB will provide tabletop information at events identified by the City. 2. The CCVB reserves the right to assess a fee to promoters of private events when requested by said promoters to provide an informational booth and/or kiosk. 3. The CCVB, through the Visitor Information Center, will provide lodging referrals to Carlsbad properties, to include resorts, hotels, motels, B&B’s, time share, vacation rentals. Develop private funding sources for the purpose of supplementing funds received from the City of Carlsbad to support a full-time, City Attorney Approved Version #04.01.02 : “:1 1r 10 i targeted marketing campaign. Such funds may come from, but are not limited to, co-operative marketing programs and fees generated through Internet-based offerings. Additionally, the CCVB shall endeavor to enlist support from the Carlsbad lodging industry to support a city-wide Business Improvement District (BID) that can match, dollar-for-dollar, funding that is derived from the City of Carlsbad. Monies generated through a BID would be devoted toward additional marketing of Carlsbad as a year-round preferred visitor destination. f. Provide reports as follows: 1. CCVB shall deliver to the City, semi-annual reports of the activity and expenses of the CCVB as 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 account 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 that demonstrates the effectiveness of CCVB’s efforts in attracting additional visitors to Carlsbad. PAYMENT OF FEES For the services described above, the City will compensate the CCVB as described below: 1. 2. Payment for the operation of the Visitor’s Center shall be made to the CCVB in equal monthly installments by the of each month for the 12 months beginning July 2003 and ending June 2004. The monthly payment amount for the period from July 2003 to June 2004 will be $15,715, not to exceed $188,541 for the twelve (12) month period. Payment for all other programs will be released to the CCVB on a reimbursement basis up to the maximum amount of $220,059. The CCVB shall use these funds to market and promote Carlsbad as a year-round leisure travel destination and will use internal controls to not exceed the City Attorney Approved Version #04.01.02 I1 amount provided for in this section. Furthermore, the CCVB will incorporate leisure market and travel agent travel shows, familiarization tours, brochures and other print materials, print advertising, Internet, and other appropriate marketing vehicles to promote Carlsbad. 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.