HomeMy WebLinkAbout2008-12-22; Carlsbad Tourism Business Improvement District; 12-08-39; Mindgruve ContractCARLSBAD TOURISM
BUSINESS IMPROVEMENT DISTRICT
AGENDA BILL
AB# 12-08-39
MTG. 12-22-08
DEPT. AdminServices
Mindgruve Contract
CTBID STAFF m'Vy™^ 1L
GENERAL ty
COUNSEL Jz>
RECOMMENDED ACTION:
1. Adopt Resolution 2008-10 authorizing the Board Chairperson to sign contract with
Mindgruve to perform Marketing Plan.
ITEM EXPLANATION:
The CTBID Board contracted with Reint Reinders & Associates (RR&A) to develop marketing
strategies and programs that will strengthen the tourism activities within Carlsbad. At the
October 14th meeting, RR&A presented an overview of its recommended strategy for the
remainder of the 2008-2009 fiscal year and the Board authorized them to procure the
assistance of Mindgruve advertising agency in preparing a detailed marketing and branding plan.
RR&A returned to the Board at the November 24th meeting with a detailed marketing plan
developed by Mindgruve with input from a committee of marketing experts from the hotel industry
in Carlsbad. The Board directed General Council to draft the documents necessary to enter into
an agreement with Mindgruve for the Board's consideration to provide all, or part of the services
described in the plan dated November 14, 2008, as may be deemed necessary by the CTBID
Board. This agreement is attached at Exhibit 2.
If the Board chooses to move forward with the Mindgruve spring marketing plan, they should
adopt the Resolution at Exhibit 1, authorizing the Board Chairperson to sign the contract with
Mindgruve to perform Marketing Plan.
FISCAL IMPACT:
The CTBID Board appropriated $350,000 at the November 24th meeting to implement the
Marketing Plan. No further appropriation is necessary.
ENVIRONMENTAL IMPACT:
This action does not approve any projects that will have a physical adverse affect on the
environment so it falls within the general rule under CEQA that this is not a project (CEQA
Regulation 15738).
EXHIBITS:
1. Resolution 2008-10 authorizing the Board Chairperson to sign contract with Mindgruve to
perform Marketing Plan.
2. Mindgruve contract
DEPARTMENT CONTACT: Cheryl Gerhardt, 760-602-2409, cqerh(a)ci.carlsbad.ca.us
FOR CITY CLERKS USE ONL Y.
BOARD ACTION: APPROVED W CONTINUED TO DATE SPECIFIC D
DENIED >nX CONTINUED TO DATE UNKNOWN d
CONTINUED D RETURNED TO STAFF D
WITHDRAWN D OTHER - SEE MINUTES D
AMENDED D
EXHIBIT 1
1 RESOLUTION NO. 2008-10
2 A RESOLUTION OF THE CARLSBAD TOURISM BUSINESS
IMPROVEMENT DISTRICT (CTBID) BOARD OF DIRECTORS
AUTHORIZING THE SELECTION OF MINDGRUVE TO
4 DEVELOP AND IMPLEMENT A SPRING MARKETING
CAMPAIGN
5
6 WHEREAS, the Carlsbad Tourism Business Improvement District (CTBID) was
7 formed by the City Council of the City of Carlsbad, California on November 15,2005; and
8 WHEREAS, the CTBID Board of Directors has all of the powers, duties and
9 responsibilities provided to it under the Parking and Business Improvement Area Law of 1989,
10 Section 36500 et seq. of the Streets and Highway Code, and Chapter 3.37 of the Carlsbad
11 Municipal Code; and
12 WHEREAS, the powers of the CTBID Board of Directors include the ability to contract
13 for services directly related to tourism promotion and marketing of the City of Carlsbad as a
14 travel destination; and
15 WHEREAS, the CTBID Board of Directors intends to undertake a marketing program
16 designed to increase tourism activities within the City of Carlsbad; and
17 WHEREAS, the CTBID Board of Directors further intends to contract for services to
18 perform a spring marketing campaign; and
19 WHEREAS, Mindgruve has presented the Board with a detailed marketing plan for the
20 remainder of the 2008-09 fiscal year; and
21 WHEREAS, sufficient funds are available in the 2008-09 budget.
22 NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Carlsbad
23 Tourism Business Improvement District, as follows:
24 1. That the above recitations are true and correct.
2. That the firm Mindgruve is selected to perform the marketing campaign.
3. That the agreement between Mindgruve and the CTBID is hereby approved and the
25 Board Chair and Clerk are hereby authorized and directed to execute said
agreements.
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PASSED, APPROVED, AND ADOPTED at a regular meeting of the Board of
Directors of the Carlsbad Tourism Business Improvement District on the jX^dav of l-j-^C^t^b^r
2008, by the following vote to wit:
AYES: 4
NOES: O
ABSENT:
APRIL SHUTE
Chairperson
ATTEST:
(J
ro Tern Clerk of the
Carlsbad Tourism Business Improvement District
-2-
Exhibit 2
AGREEMENT BEWEEN CARLSBAD TOURISM
BUSINESS IMPROVEMENT DISTRICT AND
MINDGRUVE, INC.
This agreement is made and entered into as of the ^-dav of December, 2008
("Effective Date") by and between the Carlsbad Tourism Business Improvement District
(hereinafter "CTBID"), with its principal place of business as Carlsbad Tourism Business
Improvement District c/o City of Carlsbad 1635 Faraday, Carlsbad, CA 92008 and
Mindgruve, Inc., with its principal place of business as 1018 Eighth Avenue, San Diego,
CA 92101 (hereinafter "Mindgruve" or "Contractor").
RECITALS
A. City Council of the City of Carlsbad adopted Ordinance No. NS-778
enacting Chapter 3.37 of the Carlsbad Municipal Code on November 15, 2005 thereby
creating the Carlsbad Tourism Business Improvement District; and
B. The primary purpose of the CTBID is to promote tourism and provide
services to visitors to the City of Carlsbad; and
C. The City Council has authorized the Board of Directors of the CTBID to
conduct the business of the CTBID in the time, place and manner that best suits the
needs of the Board of Directors of the CTBID, subject to-the control of federal, state and
local laws governing the activities of a Business Improvement District; and
D. The City Council has provided the Board of Directors with the ability to
contract for services necessary to carry out the purpose of the CTBID; and
E. Mindgruve is a design, branding and marketing firm that specializes in
using interactive technology for advertising and marketing businesses; and
F. The CTBID requested a proposal from Mindgruve to develop an
advertising, branding and marketing campaign using interactive technology promoting
tourism for Carlsbad, California; and
G. Mindgruve submitted a proposal for services that identified two separate
and distinct Phases of services; and
H. The CTBID Board has reviewed the proposal submitted by Mindgruve and
finds that the services to be provided by Mindgruve will be of benefit to the CTBID;
I. Mindgruve is expected to achieve the desired results in an expedited
fashion.
J. Mindgruve has affirmed its willingness and ability to perform such work in
the manner as further described below and in a timely manner.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, CTBID and Mindgruve agree as follows:
1. SCOPE OF WORK
CTBID retains Mindgruve to perform, and Mindgruve 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. In addition to
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those Services set forth in Exhibit A, Mindgruve representatives shall present status
reports/presentations to the CTBID Board of Directors as requested. Notwithstanding
status reports/presentations to the Board, Mindgruve shall provide monthly written
status reports to CTBID staff.
2. STANDARD OF PERFORMANCE
While performing the Services, Mindgruve 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 180 days from the Effective
Date first above written. This Agreement may be extended for a period up to one (1)
additional year or any part thereof, with the written consent of both parties.
4. TIME IS OF THE ESSENCE AND SCHEDULING
Mindgruve shall be responsible for developing, coordinating, and maintaining a work
flow schedule. The initial Schedule is attached hereto as Exhibit B and is incorporated
herein by this reference. Since time is of the essence for each and every provision of
this Agreement, Mindgruve shall provide an updated schedule at the beginning of each
month following the Effective Date of this Agreement or sooner if requested by CTBID
staff. All versions of Mindgruve's Schedule shall show work proposed, worked pending,
and work completed.
5. COMPENSATION
The total fee payable for the Services to be performed during the Agreement term shall
not exceed Three Hundred and Fifty Thousand dollars ($350,000) and shall include all
fees and costs associated with the Carlsbad DMO project. Mindgruve shall invoice the
CTBID on a "time and materials" basis recognizing that the entire budget for the
Carlsbad DMO shall not exceed Three Hundred and Fifty Thousand dollars ($350,000).
Mindgruve's hourly fee shall be $125.00 per hour.
Mindgruve will invoice the CTBID monthly. Each invoice shall be detailed setting forth
the nature of the service and the time spent, rounded to the nearest quarter-hour. No
other compensation for the Services will be allowed except for items covered by
subsequent amendments to this Agreement.
The CTBID will timely process Mindgruve' invoices for payment and uncontested
charges will be paid within 15 business days. Contested charges, if any will be resolved
pursuant to Section 19 below. CTBID reserves the right, but not the obligation, to
withhold a ten percent (10%) retention until CTBID has accepted the work and/or
Services specified in Exhibit "A".
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Mindgruve has included in Exhibit A good-faith estimated third party expenses [e.g.
Tasks 8 and 9 and additional costs]. In the event that a budgeted third party expense is
less than what has been estimated, Mindgruve shall transfer the excess monies into a
separate "contingency" account. This contingency account may be used for other
Exhibit A Tasks, with the CTBID Board's approval. Mindgruve will advise the CTBID
Board of any available monies held in the contingency fund.
6. STATUS OF CONTRACTOR
Mindgruve will perform the Services in Mindgruve's own way as an independent
contractor and in pursuit of Contractor's independent calling, and not as an employee or
agent of CTBID. Mindgruve 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
Mindgruve to provide services under this Agreement will not be considered employees
or agents of CTBID for any purposes.
The payment made to Mindgruve pursuant to the Agreement will be the full and
complete compensation to which Mindgruve is entitled. CTBID will not make any
federal or state tax withholdings on behalf of Mindgruve or its agents, employees or
subcontractors. CTBID will not be required to pay any workers' compensation insurance
or unemployment contributions on behalf of Mindgruve or its employees or
subcontractors. Mindgruve 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
Mindgruve or any agent, employee, or subcontractor of Mindgruve for work done under
this Agreement. At the CTBID's election, CTBID may deduct the indemnification amount
from any balance owing to Mindgruve.
7. SUBCONTRACTING
Mindgruve will not subcontract any portion of the Services without prior written approval
of CTBID. If CTBID provides its written consent for subcontracting, Mindgruve shall
provide a copy of the contract and all invoices between Mindgruve and said
subcontractor to CTBID staff. If Mindgruve subcontracts any of the Services, Mindgruve
will be fully responsible to CTBID for the acts and omissions of Mindgruve's
subcontractor and of the persons either directly or indirectly employed by the
subcontractor and affiliate with the Carlsbad DMO project, as Mindgruve is for the acts
and omissions of persons directly employed by Mindgruve. Nothing contained in this
Agreement will create any contractual relationship between any subcontractor of
Mindgruve and CTBID. Mindgruve will be responsible for payment of subcontractors.
Mindgruve will bind every subcontractor and every subcontractor of a subcontractor by
the terms of this Agreement applicable to Mindgruve's work unless specifically noted to
the contrary in the subcontract and approved in writing by CTBID.
Mindgruve has identified and designated Nielsen Claritas as a subcontractor who will be
performing a portion of the Services identified in Exhibit A. CTBID consents to this
designation of Nielsen Claritas as a subcontractor of Mindgruve.
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8. INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT
Mindgruve agrees to defend, indemnify and hold harmless CTBID and City of Carlsbad,
its elected officials, employees and agents from and against any claim, action,
proceeding, liability, loss, damage, cost or expense, including, without limitation,
reasonable attorneys' fees, as provided herein, arising out of any claim that the
Mindgruve's work product, products, services and/or deliverables, or any part of them,
infringes upon or otherwise violates any copyright, trade secret, trademark, service
mark, patent, invention, proprietary information, or other rights of any third party, or that
CTBID's use of them otherwise violates this Section [collectively referred to for
purposes of this Section as "Infringement Claims(s)"], by paying all amounts that a court
finally awards or that Mindgruve agrees to in settlement of such Infringement Claim(s),
as well as any and all expenses or charges arising from such Infringement Claim(s),
including reasonable attorneys' fees, as they are incurred by CTBID or any other party
indemnified under this Section.
CTBID also agrees that, if the use or operation of the Mindgruve's work products,
products, services and/or deliverables, or any part of them, becomes, or in Mindgruve's
opinion is likely to become, the subject of an Infringement Claim(s), CTBID will permit
Mindgruve, at Mindgruve's option and expense for all associated costs, either to procure
the right for CTBID to continue to use Mindgruve's work products, products, services
and/or deliverables, or part thereof, or to replace or modify them with another item of
comparable quality and performance capabilities to become non-infringing, provided
such replacement or modification does not cause the product, services and/or
deliverables, or any part thereof, to fail to comply with any of the requirements of this
Agreement, including but not limited to, all functionality, technical specifications and
performance warranties.
In the event CTBID's ongoing use of Mindgruve's work products, products, services
and/or deliverables, or any part of them, is the subject of any act by a third party arising
from an Infringement Claim that would preclude or impair CTBID's use of Mindgruve's
work products, products, services and/or deliverables (e.g., injunctive relief), or if
CTBID's continued use of them may subject it to punitive damages or statutory
penalties, CTBID shall give written notice to Mindgruve of such fact(s). Upon notice of
such facts, Mindgruve shall procure the right for CTBID to continue to use the work
products, products, services and/or deliverables, or part thereof, or replace or modify
the work products, products, services and/or deliverables of comparable quality and
performance capabilities to become non-infringing.
If Mindgruve fails to complete the remedial acts set forth above within thirty (30)
calendar days of the date of the written notice from CTBID, CTBID shall have the right
to take such remedial acts it determines to be reasonable to mitigate any impairment of
its use of Mindgruve's work products, products, services and/or deliverables or
damages (hereafter referred to as "CTBID's Remedial Acts"). Mindgruve shall indemnify
CTBID for all amounts paid and direct and indirect costs associated with CTBID's
Remedial Acts. Failure by Mindgruve to pay such amounts within ten (10) calendar
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days of invoice by CTBID shall, in addition to and cumulative to all other remedies,
entitle CTBID to immediately withhold payments due Mindgruve under this Agreement
up to the amount paid in connection with CTBID's Remedial Acts.
9. INDEMNIFICATION
Mindgruve 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 Mindgruve, 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. BUSINESS LICENSE
Mindgruve and all authorized subcontractors will obtain and maintain a City of Carlsbad
Business License for the term of the Agreement, as may be amended from time-to-time.
11. 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. With the
exception of Professional Liability, the insurance will be obtained from an insurance
carrier admitted and authorized to do business in the State of California and have a
current Best's Key Rating of not less than "A-:V".
11.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits
indicated below, unless General Counsel or City Manager of Carlsbad
approves a lower amount. These minimum amounts of coverage will not
constitute any limitations or cap on Contractor's indemnification obligations
under this Agreement. City of Carlsbad, CTBID, its officers, agents and
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.
11.1.1 Commercial General Liability Insurance. $1,000,000
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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.
11.1.2 Automobile Liability (if the use of an automobile is
involved for Contractor's work for City). $1,000,000 combined single-limit
per accident for bodily injury and property damage.
11.1.3 Workers' Compensation and Employer'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 Contractor has no employees and provides, to City of
Carlsbad's and CTBID's satisfaction, a declaration stating this.
11.1.4 Professional Liability. Errors and omissions liability
insurance appropriate to Contractor's profession with limits of not less
than $1,000,000 per claim. Coverage must be maintained for a period of
three years following the date of completion of the work.
11.2. Additional Provisions. Contractor will ensure that the policies of insurance
required under this Agreement contain, or are endorsed to contain, the following
provisions:
11.2.1 The City of Carlsbad and CTBID will be named as an
additional insured on General Liability.
11.2.2 Contractor will obtain occurrence coverage, excluding
Professional Liability, which will be written as claims-made coverage.
11.2.3 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 of Carlsbad and CTBID pursuant to
the Notice provisions of this Agreement.
11.3 Providing Certificates of Insurance and Endorsements. Prior to CTBID's execution
of this Agreement, Contractor will furnish certificates of insurance and endorsements to
CTBID.
11.4 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 of this
Agreement and may immediately terminate the Agreement.
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12. ACCOUNTING RECORDS
Mindgruve will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. With forty-eight (48) hour
advanced notice to Mindgruve, Mindgruve will allow a representative of CTBID during
normal, Monday through Friday, business hours to examine, audit, and make transcripts
or copies of records and any other documents created pursuant to this Agreement.
Mindgruve will allow reasonable 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
Excepting such items which are specifically identified by Mindgruve as proprietary trade
secrets, any and all sketches, drawings, tracings, field survey notes, computations,
detail, and other materials and documents prepared by Mindgruve in the performance of
this Agreement shall be the property of CTBID from the moment of their preparation,
and Mindgruve shall deliver such materials and documents to CTBID, as part of this
Agreement or upon request.
Mindgruve shall have the right to make a duplicate copy of such materials and
documents for its own file or for other purposes that CTBID may agree as to in writing.
14. COPYRIGHTS. TITLE AND ASSIGNMENT
Mindgruve and CTBID intend this to be an Agreement for Services and each considers
the deliverable product (Work) and results of the Services to be rendered by Mindgruve
hereunder to be a work made-for-hire. Mindgruve acknowledges and agrees that the
Work (and all rights therein, including, without limitation, copyright(s), trademark(s),
service mark(s), etc.) belongs to and shall be the sole and exclusive property of CTBID.
If for any reason the Work would not be considered a work made-for-hire under
applicable law, Mindgruve does hereby assign and transfer to CTBID, its successors
and assigns, the entire right, title and interest in and to the copyright in the Work and
any registrations and copyright applications relating thereto and any renewals and
extensions thereof, and in and to all works based upon, derived from, or incorporating
the Work, and in and to all income, royalties, damages, claims and payments now or
hereafter due or payable with respect thereto, and in and to all causes of action, either
in law or in equity for past, present, or future infringement based on the copyright(s),
trademark(s), service mark(s) and in and to all rights corresponding to the foregoing
throughout the world.
If the Work is one to which the provisions of 17 U.S.C. 106A apply, the Mindgruve
hereby waives and appoints CTBID to assert on the Mindgruve's behalf the Mindgruve's
moral rights or any equivalent rights regarding the form or extent of any alteration to the
Work (including, without limitation, removal or destruction) or the making of any
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derivative works based on the Work, including, without limitation, photographs, drawings
or other visual reproductions or the Work, in any medium, for CTBID purposes.
Mindgruve agrees to execute all required documents and to perform such other proper
acts, as City may deem necessary to secure for CTBID or its designee the rights herein
assigned.
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 Mindgruve under this Agreement.
For CTBID:
Name: Cheryl Gerhardt
Title: CTBID Staff
Department: Administrative Services
City of Carlsbad
1635 Faraday Ave.
Carlsbad, CA 92008
Phone No.: 760.602.2409
For Mindgruve. Inc.:
Name: Chad Robley
Title: President
Address: 1018 Eighth Avenue
San Diego, CA92101
Phone No.: 619.757.1325 x222
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 Mindgruve'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 Mindgruve or any of Mindgruve's employees, agents, or subcontractors.
Should it be determined that disclosure is required, Mindgruve or Mindgruve'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.
Mindgruve, for Contractor and on behalf of Mindgruve'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.
Mindgruve further warrants that neither Mindgruve, nor Mindgruve'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 Mindgruve will file
with the CTBID an affidavit disclosing this interest.
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17. GENERAL COMPLIANCE WITH LAWS
Mindgruve will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Mindgruve, or in any way
affect the performance of the Services by Mindgruve. Mindgruve will at all times observe
and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Mindgruve's services with all applicable laws, ordinances and regulations.
Mindgruve 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
Mindgruve 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 Mindgruve 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 Carlsbad
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 Mindgruve's failure to prosecute, deliver, or perform the Services,
CTBID may terminate this Agreement for nonperformance by notifying Mindgruve 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 Mindgruve. Upon notification of termination,
Mindgruve 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 Mindgruve has performed in compliance with the Agreement.
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, Mindgruve will
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assemble the work product and put it in order for proper filing and closing and deliver it
to CTBID. Mindgruve 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
Mindgruve warrants that Mindgruve has not employed or retained any company or
person, other than a bona fide employee working for Mindgruve, to solicit or secure this
Agreement, and that Mindgruve 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 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, Mindgruve 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. Mindgruve
acknowledges that if a false claim is submitted to CTBID, it may be considered fraud
and Mindgruve may be subject to criminal prosecution. Mindgruve 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. Mindgruve acknowledges
that the filing of a false claim may subject Mindgruve to an administrative debarment
proceeding as the result of which Mindgruve may be prevented to act as a Mindgruve
on any public work or improvement for a period of up to five (5) years. Mindgruve
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 Mindgruve and their respective successors. Neither this Agreement nor any part of
CTBID Attorney Approved Version #11.28.06
10
it nor any monies due or to become due under it may be assigned by Mindgruve 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.
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of Mindgruve each represent and warrant that they have the legal power, right and
actual authority to bind Mindgruve to the terms and conditions of this Agreement.
MINDGRUVE, INC.
*By: (^/ V^ By
(Chlicl Rob&f, President
croblev@mindqruve.com
(e-mail address) ATT_S_
*By:
(sign here) CXJ^-y^X / XJ^^o^z
DRRAINBfyl. W<
CTBID Cle
/
'
(print name/title)
(e-mail address)
If required by CTBID, proper notary 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. **Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
CTBID Attorney Approved Version #11.28.06
11
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:
RON , CTBID General Counsel
v Deputy General Counsel
12
CTBID Attorney Approved Version #04.01.02
EXHIBIT A
CTBID - Carlsbad DMO Project
Scope of Work and Deliverables
Overview
Mindgruve will accomplish the following objectives over the 180 day term starting on the
Effective Date of this Agreement.
Solidify the Carlsbad Destination Management Organization (DMO) brand & positioning
as set forth below in the Brand Platform.
Develop a new identity and logo for the Carlsbad DMO as set forth below in the
Carlsbad DMO Logo Design.
Create tourism packages with local hotels to stimulate hotel & attraction bookings as
set forth below in the Tourism Package Development.
Leverage the City of San Diego's equity and campaign initiatives to drive travelers to
the City of Carlsbad.
Develop & execute a targeted online marketing campaign via Google, Family Travel
Websites, etc.
Develop & execute an overarching Carlsbad campaign to drive vacationers to the City
of Carlsbad and put "heads in beds" for the Carlsbad Tourism Business Improvement
District's ("CTBID") hotel constituents.
This initiative will serve as the foundation and building block for all future CTBID
advertising and marketing campaigns. These campaign initiatives will be highly
scrutinized and measured by Mindgruve and the CTBID Board and together we will be
able to determine which tactics are performing best.
Definitions:
Customer Acquisition and Retention means identifying the right customers at a time
of need, capture them, and keep them engaged on an ongoing basis and coming back.
Market Feeders means linking customer and geographical information together so that
CTBID may prioritize its best markets and sites for expansion
Direct Marketing means developing laser targeted customer profiles that will improve
CTBID's rate of response by delivering messages to fewer, better-targeted prospects.
Media Planning means choosing the appropriate medium to reach CTBID's best
customers while maximizing the impact of its media expenditures.
Task 1 - Research - Not to Exceed $17,500
Mindgruve's travel marketing industry research will identify and profile the
characteristics of the customers who we want to attract to Carlsbad and the Mindgruve
will utilize this information, along with our powerful consumer segmentation to:
1) Target prospects
2) Tailor promotions to each audience
3) Improve cross-sell promotions
4) Identify partners for co-branding promotions
Mindgruve's research will provide solutions for Media Planning, Customer Acquisition
and Retention, Market Feeders, and Direct Marketing.
Mindgruve will deliver your customer's travel and lifestyle preferences based on market
segmentation, behavioral data and demographics. With this information Mindgruve will
be able to develop a strategy that will:
1) Utilize customer data to determine how much a person is worth to you (lifetime-
value and share of wallet)
2) Identify potential "best" customers
3) Eliminate advertising waste by targeting only Carlsbad's best prospects
4) Establish customer loyalty by offering what appeals to customers' lifestyles
5) Use customer lifestyle analysis to tailor promotions and maximize cross-sell
opportunities
Mindgruve will determine the best approach to drive home our Unique Value Proposition
through Carlsbad's Brand Platform.
Research will be done through Mindgruve and its sub-consultant Nielsen Claritas
Time per Schedule of Exhibit B
Mindgruve Internet Research Project Estimate 40 hours
Nielsen Claritas Research will not exceed $12,500.
Task 2 - Brand Platform - Not to Exceed $20,000
The Brand Platform is a compilation of the written, verbal and visual representation of
CTBID's brand which will serve as a guide to consistent brand communication and
identification. This deliverable will be achieved through an interactive process which will
result in the following:
1) Formalization of brand and positioning.
2) To provide brand uniformity and establish a benchmark for the way the CTBID
connects with consumers.
3) Provide agency teams (e.g. public relations, traditional advertising, interactive
marketing and photographers) for a practical guide for all Carlsbad DMO branding
efforts.
Below is an itemization of categories we will explore and included in the formalized
Brand Platform deliverable.
Target Audience- our primary audience and decision making influencers
Vision Statement- The brand's future goals. "Where do we want to go?"
Mission Statement- A mission statement answers the question, "Why do we exist?"
Strategic Positioning- A straightforward statement about what the organization offers
in the marketplace to meet specific set of needs in that category, stated in such a
way that it clearly differentiates us from the competition. Who is Carlsbad?
Unique Value Proposition- What is our point of difference?
Brand Promise- The brand's point of credibility; the most legitimate claim it can make
Brand Traits- Traits that describe the way consumers will relate to the brand. Use
these traits as the benchmark for determining whether the brand message is
connecting with the intended audience. In other words, "what we are and are not".
Brand Tone- How the brand speaks to its audiences. What's our commercial voice?
Our Story- The background and history of the CTBID brand; it will be written in a way
that connects emotionally with the consumer. What is the Carlsbad story?
Image Exploration- What types of images do we want to reveal? The stage helps to
define style, angles, type, and variety of images we plan to utilize for the campaign.
Color Story- What colors are going to be primary and complimentary to the campaign?
Type Study- What will be our primary and secondary font families that best connect to
our new brand?
Mood Board- A collection of fonts, textures, colors, photos, headlines, and lifestyle
icons that summarize our vision for the new brand.
Brand Platform will be done by Mindgruve
Brand Platform will be completed per Schedule Exhibit B
Project Estimate 160 hours
Task 3 - Carlsbad DMO Logo Design- Not to Exceed $10,000
Mindgruve will develop a new logo for the CTBID that will identify Carlsbad DMO and
connects it with its new brand positioning that will better resonate with Carlsbad target
audience. This interactive initiative will include several iterations of logo concept,
design, color, and production. Mindgruve will deliver several iterations of the logo
concept to the CTBID Board for its consideration and approval.
Carlsbad DMO Logo Design will be done by Mindgruve
Carlsbad DMO Logo Design will be completed per Schedule, Exhibit B
Project Estimate 80 hours
Task 4 - Tourism Package Development- Not to Exceed $15,000
Mindgruve will work with Hotels & Theme Park to formalize Internet special packages,
promotions, and cooperatives. Mindgruve will provide said packages, promotions and
cooperatives to the CTBID Board for its consideration and approval.
Tourism Package Development will be done by Mindgruve
Tourism Package Development will be completed per Schedule, Exhibit B
Project Estimate 120 hours
Task 5 - Brochure Design & Production- Not to Exceed $15,000
Mindgruve will design and produce a Carlsbad DMO brochure to promote Tourism
Packages with a Carlsbad Fun Map. Mindgruve will provide the mock-ups of the design
and proofs to the CTBID Board for its consideration and approval.
Brochure Design & Production will be done by Mindgruve
Brochure Design & Production will be completed per Schedule, Exhibit B
Project Estimate 120 hours
Task 6 - Print Campaign- Not to Exceed $15,000
Mindgruve will develop an advertising campaign with ads targeted for magazines, local
publications, Val Pak, etc. Mindgruve will provide the mock-ups of the ads and proofs to
the CTBID Board for its consideration and approval.
Print Campaign Design will be done by Mindgruve
Print Campaign will proceed as set forth in Schedule, Exhibit B
Print Campaign placement in publications "TBD" in an amount not to exceed $10,000
Creative Advertisement Design by Mindgruve - Project Estimate 40 hours
Task 7 - Microsite Design & Programming- Not to Exceed $25,000
Mindgruve will develop 4 or 5 microsite Internet campaigns linked to keyword domains
for specific travel package sales and promotions. Mindgruve will provide the mock-ups
of the Microsite Designs to the CTBID Board for its consideration and approval.
Microsite Design & Programming will be done by Mindgruve
Microsite Design & Programming will be completed per Schedule, Exhibit B
Project Estimate 200 hours
Task 8 - Online Banner Advertising- Not to Exceed $35,000
Mindgruve will develop and design Carlsbad DMO Banner Ads for key family travel
websites that geotarget Los Angeles, Orange, Riverside, San Bernardino, San Diego
Counties as well as Las Vegas, Phoenix, and Tijuana. Mindgruve will provide the mock-
ups of the Online Banner Ads to the CTBID Board for its consideration and approval.
Online Banner Creative, Design, Production and Media Placement will be done by
Mindgruve
Online Banner Advertising will proceed per Schedule, Exhibit B
Online Banner Advertising placement "TBD" with Board approval and shall not to
exceed $30,000
Project Estimate 40 hours
Task 9 - Pay-Per-Click Advertising- Yahoo & Google- Not to Exceed
$90,000
Mindgruve will develop and design Carlsbad DMO Pay-Per-Click (PPC) Advertising.
Key words that drive travel and destination leads at a time of need to our specialized
microsites and/or our Carlsbad Tourism Partners. Mindgruve will notify the CTBID
Board when the PPC Ads "go-live." Mindgruve will also monitor PPC traffic and allocate
and budget resources per Schedule B to ensure adequate funds for each month of PPC
advertising.
Pay-Per-Click keyword development and conversion monitoring for Google & Yahoo
PPC accounts will be done by Mindgruve
Pay-Per-Click Campaign will start pursuant to Schedule, Exhibit B
Pay-Per-Click Advertising placement TBD with Board approval and shall not exceed
$78,500
Project Estimate 100 hours
Task 10 - Email Marketing- Not to Exceed $24,000
Mindgruve will develop the content and design of the Carlsbad DMO series of targeted
e-mails that support Carlsbad's DMO Hotel & Resort Vacation Packages and
Microsites. Mindgruve will provide the draft emails to the CTBID Board for its
consideration and approval. Mindgruve will dispatch 18 e-mail(s) to a targeted audience.
E-mail Marketing Development, Content and Design will be done by Mindgruve
E-mail Marketing Campaign will be pursuant to Schedule, Exhibit B
Creative E-mail Development, Content and Design Project Estimate 180 hours
Mindgruve shall purchase the Experian E-mail lists; not to exceed $1,500
Task 11- Campaign Measurement- Not to Exceed $15,000
Mindgruve will monitor and measure the entire Carlsbad DMO Advertising Campaign on
a regular basis that will include web traffic, conversions, open rates, click thru's,
affiliates, channel partners, etc. Mindgruve will provide the monitoring and statistical
information to CTBID Board for its information and direction, if any.
Campaign Measurement will be done by Mindgruve
Campaign Measurement will proceed per Schedule, Exhibit B
Project Estimate 120 hours (20 hours per month, 5 hours per week)
Task 12 - Content Development- User Generated Content/Social
Media/Blog, Articles, Video- Not to Exceed $18,000
Mindgruve will utilize social media to leverage user generated content such as blogs,
message boards, twitter, featured articles on local attractions, and videos to better
engage our consumers via www.visitcarlsbad.com.
Content Development will be done by Mindgruve
Content Development will proceed as set forth in Schedule, Exhibit B
Project Estimate 144 hours
Task 13 - Campaign Project Management- Not to Exceed $30,000
Mindgruve will provide market strategy and concept and design development via an
interactive process with members of the Carlsbad Hotel and Resort community, elected
officials, the CTBID Board, Reint Reinders & Associates and others to leverage
resources for Carlsbad tourism. Mindgruve will provide resources that include account
manager, project managers, account client communications, meetings, and included
travel over the term of the Agreement.
Campaign Project Management will be done by Mindgruve
Project Estimate 240 hours (40 hours per month, 10 hours per week)
Additional Costs- $20,500
This is our additional items budget to cover all variable costs relating to content
copywriting, stock photography, hired photography, map illustrations, and printing.
Additional Costs TBD and approved in advance by CTBID
Mindgruve will provide backup documentation on all Additional Costs