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HomeMy WebLinkAboutCarlsbad Convention and Visitors Bureau; 2010-06-03;AGREEMENT FOR PROMOTION OF TOURISM AND VISITOR SERVICES CARLSBAD CONVENTION AND VISITORS BUREAU AGREEMENT is made and entered into as of the <±~Jr day of ijL , 20 lu , by and between the Carlsbad Tourism Business Implement District (CTBID), and the Carlsbad Convention and Visitors Bureau, ("Contractor"). RECITALS A. CTBID requires the professional services of a contractor that is experienced in tourism and visitor promotion programs and services. B. Contractor has the necessary experience in providing professional services and advice related to the promotion of tourism in Carlsbad. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. Contractor has submitted a proposal to CTBID and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CTBID and Contractor agree as follows: 1. SCOPE OF WORK CTBID retains Contractor to perform, and Contractor 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, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor'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 one (1) year from the date July 1, 2010 through June 30, 2011. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. CTBID Attorney Approved Version #05.06.08 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be Seven Hundred Fifty Six Thousand Five Hundred Eighty Two dollars ($756,582). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The CTBID reserves the right to withhold a ten percent (10%) retention until the CTBID has accepted the work and/or Services specified in Exhibits "A" and "B". Compensation will be made in twelve (12) monthly installments of Sixty Two Thousand Forty Nine dollars ($62,049) each month for a total of $744,582 as detailed in the attached Exhibit A to this Agreement. The first installment shall be payable in July 2010. Subsequent installments shall be paid monthly, through the term of this Agreement. In addition, up to $2,000 per month will be paid monthly for the first six months of the contract term, for a total of $12,000, to reimburse VisitCarlsbad for services provided by Christine Shimasaki as outlined in Exhibit B. VisitCarlsbad will provide CTBID copies of invoices in order to receive reimbursement for services provided. The CTBID reserves the right to terminate or reduce funding levels outlined in the Agreement in the event of CTBID revenue reductions. Recommended deductions will be reported t to the CTBID Board who shall determine the modified funding level. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of CTBID. Contractor will be under control of CTBID only as to the result to be accomplished, but will consult with CTBID as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CTBID for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CTBID will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CTBID will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify CTBID within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CTBID may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the CTBID's election, CTBID may deduct the indemnification amount from any balance owing to Contractor. CTBID Attorney Approved Version #05.06.08 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CTBID. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CTBID for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and CTBID. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by CTBID. 8. OTHER CONTRACTORS The CTBID reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the CTBID 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 caused by any negligence, recklessness, or willful misconduct of the Contractor, 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 CTBID incurs or makes to or on behalf of an injured employee under the CTBID'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. 10. INSURANCE Contractor 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 Contractor or Contractor'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-:VH". OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless CTBID Attorney or CTBID Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CTBID, its officers, agents and CTBID Attorney Approved Version #05.06.08 employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1.000.000 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 Contractor's work for CTBID). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CTBID's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The CTBID will be named as an additional insured on General Liability. 10.2.2 Contractor 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 CTBID sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CTBID's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CTBID. CTBID Attorney Approved Version #05.06.08 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CTBID will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by CTBID to obtain or maintain insurance and CTBID may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. CTBID reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor 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 Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of CTBID during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor 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 Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of CTBID. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to CTBID. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in CTBID and Contractor relinquishes all claims to the copyrights in favor of CTBID. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of CTBID and on behalf of Contractor under this Agreement. CTBID Attorney Approved Version #05.06.08 For CTBID: For Contractor: Cheryl Gerhardt Sam Ross CTBID Staff Executive Director City of Carlsbad VisitCarlsbad 1635 Faraday Ave. 400 Carlsbad Village Drive Carlsbad. CA 92008 Carlsbad. CA 92008 Phone No. 760-602-2417 Phone No. 760-434-6093 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 CTBID will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and CTBID's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the CTBID Clerk those schedules specified by CTBID and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor'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. Contractor further warrants that neither Contractor, nor Contractor'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 Contractor will file with the CTBID an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor 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 Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. CTBID Attorney Approved Version #05.06.08 6 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 Contractor or CTBID 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 (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the CTBID Manager. The CTBID 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 CTBID 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 Contractor's failure to prosecute, deliver, or perform the Services, CTBID may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CTBID decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CTBID may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by CTBID and all work in progress to CTBID address contained in this Agreement. CTBID will make a determination of fact based upon the work product delivered to CTBID and of the percentage of work that Contractor has performed which is usable and of worth to CTBID in having the Agreement completed. Based upon that finding CTBID 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 CTBID, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CTBID. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. CTBID will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor 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, CTBID will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or CTBID Attorney Approved Version #05.06.08 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, Contractor agrees that any Agreement claim submitted to CTBID 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. Contractor acknowledges that If a false claim is submitted to CTBID, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor 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 CTBID seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for CTBID 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 CTBID and Contractor 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 Contractor without the prior consent of CTBID, 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. CTBID Attorney Approved Version #05.06.08 8 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CTBID OF CARLSBAD, a municipal corporation of the State of CatifoFnia (sign here) "wioucy W4J5.V (print name/title)ATTEST: (e-mail address) *By: (sign here) - M LORRAINE GTBID (print name/title) (e-mail address) If required by CTBID, 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 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 FORM: RONAtRR. BALL, CTBID Attorney By: [ VhygaSi2. C> f casEgg? ©eptrtyCTBID Attorney CTBID Attorney Approved Version #05.06.08 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ^ oti7n*jLjit.-vT before me, O u, /) - ~ /j Here Inserae v*-—- ^v . personally appeared "Kf)lgjL*J jYl<M*4-~ ^ /•/. /4 y / Name(s) of Sign SHEPRY A. FREISINGER Commission # 1727064 Notary Public - California | San Diego County - MyCortm Exp»etFeb25,20n j Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my haj Signature OPTIONAL Though the information below /s not required by law, it may prove valuable to persons relying on the documef] and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date:Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 EXHIBIT A Scope of Services 1. VisitCarlsbad ] Board appointments will be approved by the CTBID Board. 2. Provide a periodic updates at the CTBID's request and a year- end report on the program of work deliverables which shall include an accounting of funds spent by program in a format approved by the CTBID Board. Allocation of the unspent funds shall be determined by the CTBID Board. 3. Review CTBID grant applications and make funding recommendations to the CTBID Board. 4. Develop a program of work that is primarily focused on driving demand in the leisure market segment and secondarily, the meetings market. The VisitCarlsbad Board will approve the program of work and corresponding budget allocations which are included at the end of the scope. 5. Update current market intelligence on the Carlsbad visitor profile. Research findings will be shared and communicated to the tourism community and incorporated in the development of future marketing strategies. 6. Primarily focus on visitcarlsbad .com as the primary distribution channel for new business opportunities for CTBID properties and Carlsbad community suppliers. 1 VisitCarlsbad is the dba to be used by the Carlsbad Convention and Visitors Bureau. CTBID Attorney Approved Version #05.06.08 10 a. Partner with local tourism suppliers to develop new products or packages consistent with the current market demand for special offers. b. Develop visitor-relevant content. 7. Deliver an interactive marketing campaigns focused on driving traffic to visitcarlsbad.com and hotel reservations. Promotional campaigns will include but not limited to pay-per-click advertising, online banner advertising, content development, social media, promotions and email marketing. 8. Contract for meetings market hotel leads and bookings with San Diego North Convention and Visitors Bureau (SDNCVB) 9. Pitch editorial to travel writers and write relevant content for the website, including: a. Pitch story ideas, whats new, and host travel writers b. Coordinate media FAMs in partnership with San Diego Convention and Visitors Bureau (ConVis) and SDNCVB 10. Manage the visitor center, visitor publications and collateral, including: a. Service visitor walk-ins with visitor information. b. Solicit opt-ins for future email marketing communications c. Refer visitors to local tourism suppliers d. Managing visitor publications distribution and other collateral. 11. Develop partnerships and coop opportunities with Carlsbad CTBID hotels, local tourism suppliers, and regional DMOs, such as ConVis and San Diego North. CTBID Attorney Approved Version #05.06.08 11 EXHIBIT B2Synergize, Inc. Scope of Services 2Synergize, Inc., it's principal Christine Shimasaki, by virtue of her extensive experience in destination marketing, the hospitality industry, and destination marketing organizations, is uniquely qualified to provide marketing and other consulting services to the CTBID for the 2010-11 budget year. The scope of services proposed to be delivered by ZSynergize, Inc. and specifically Christine Shimasaki includes, but not limited to the following key deliverables: 1. Monitor the execution of the action plan by VisitCarlsbad's executive director and advise on adjustments to the program of work, depending upon performance measures and results. 2. Mentor the VisitCarlsbad executive director through regularly scheduled meetings to maximize the CTBID's investment in the DM0. 3. Assist VisitCarlsbad executive director in capitalizing on Destination Marketing Association International's (DMAI) empowerMINT.com meeting industry initiative with direct mail and merchandising of special offers for the group hotels of Carlsbad. 4. Upon request, provide consulting services to the VisitCarlsbad Board of Directors on sales and marketing strategies for Carlsbad. 5. Assist with the supervision and monitoring of the interactive agency's program of work. 6. Develop VisitCarlsbad best practices in governance and measures of performance by following the industry standards. This includes performance reporting for marketing, establishing board policy manuals, and processes to ensure the DM0 is operating at the highest level of efficiency. 7. Assist in the preparation and development of VisitCarlsbad's 2011-12 business plan, inclusive of sales and marketing strategies and budget. 8. 2Synergize, Inc. to meet with and report to the CTBID Board, orally and/or in writing, at the request of the CTBID Board. 9. 2Synergize, Inc. services will not exceed $2,000 per month and consist of a maximum of 10 hours per month, at the rate of $200 per hour; to be billed monthly.