HomeMy WebLinkAbout2019-10-23; Carlsbad Tourism Business Improvement District; ; ASSESSMENT MODIFICATIONAB#
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CARLSBAD TOURISM
BUSINESS IMPROVEMENT DISTRICT (CTBID)
AGENDA BILL
10-19-186 CTBID STAFF
10-23-19 ASSESSMENT MODIFICATION GENERAL
COUNSEL
RECOMMENDED ACTION:
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1. Consider approving recommendation by CTBID advisory committee to select Civitas
Advisors as the agency to explore the options to modify the current CTBID assessment.
2. Adopt Resolution No. 2019-7 authorizing the Chairperson to enter into agreement between
the Carlsbad Tourism Business Improvement District (CTBID) and Civitas Advisors and
appropriating additional funding for professional services.
ITEM EXPLANATION:
At its July 17, 2019 board meeting, the Carlsbad Tourism Business Improvement District (CTBID)
Board appointed a 3-member temporary advisory committee to work on a strategic growth plan
for the CTBID. The advisory committee made up of Board Members Hughes, Rauch and Gray,
was to determine whether the existing tourism study report could be utilized and if the
assessment should be increased. The advisory committee was to return to the board at the next
scheduled meeting with their recommendations.
The advisory committee met several times over the past few months and reached out to
consultants that specialize in developing long term funding solutions for Destination Marketing
Organizations. Based on these interviews, they requested proposals from Jones Lang LaSalle
Americas, Inc. and Civitas Advisors. The advisory committee reviewed the proposals and is
recommending that Civitas Advisors be selected to explore the options to modify the current
CTBID assessment at a cost of $40,000. See attached proposal at Exhibit 1.
If the CTBID Board approves the recommendation of the advisory committee, they should
adopt Resolution No. 2019-7 authorizing the Chairperson to enter into agreement between the
Carlsbad Tourism Business Improvement District (CTBID) and Civitas Advisors.
FISCAL IMPACT:
The CTBID has $640,000 in reserves that is avaialble to be appropriated for this service.
ENVIRONMENTAL IMPACT:
This action does not qualify as a project under the California Environment Quality Act ("CEQA")
and will not have a physical adverse effect on the environment. (CEQA Regulation 15378(b).)
EXHIBITS:
1. Civitas Advisors Proposal
2. Resolution 2019-7 authorizing the Chairperson to enter into agreement between the Carlsbad
Tourism Business Improvement District (CTBID) and Civitas Advisors and appropriating
additional funding for these professional services.
A. Civitas Advisor's contract
EXHIBIT 1
. CARLSBAD TOURISM BUSINESS .
IMPROVEMENT DISTRICT PROPOSA L
Brian Hughes, Board Chair
Carlsbad Convention & Visitors Bureau
Dear Mr. Hughes,
It was great to talk to you, Bob, Jeff, and Cheryl last week on the phone. I am
pleased to present to you a proposal to assist Visit Carlsbad with exploring the
options to modify the current TBI D assessment from a fixed dollar to a percentage
and convert the district from a Parking and Business Improvement Area ("89 Act")
to a Property and Business Improvement District ("94 Act"). Civitas has formed
and renewed a majority of the nation's TBIDs, and will provide expert advice and
guidance throughout the project.
Our process to modify the CTBID is designed to secure significant support for
the project while complying with applicable laws. In concert with the Carlsbad
Convention & Visitors Bureau ("CCVB"), the Civitas team will guide a modification
process that includes developing and manipulating data, obtaining feedback 'from
business owners, preparing legal documents, guiding the stakeholder approval
process, and attending local government hearings.
Thank you for the opportunity to submit this proposal. I look forward to working
with you on this exciting project.
Nichole Farley, ·
Director of Business Development & Client Engagement
Civitas I Carlsbad Convention & Visitors Bureau 1
THE OPPORTUNITY
In our recent conversations about the proposed TBID modification, you
described the desire to modify your current TBID assessment
methodology from a fixed dollar amount to a percentage of gross sales.
You also expressed an interest in exploring options to convert the district
from the 89 Act to the 94 Act in order for CCVB to remain competitive
in the destination marketing environment through increased marketing &
promotions programs beyond that of the current TB( D.
There are two laws TBIDs can be created under: the Parking and Business
Improvement Area Law of 1989 ("89 Act") or the Property and Business
Improvement District Law of 1994 ("94 Act"). To help your destination
determine which is appropriate for you, the following page has a
comparison of t he major differences between the two laws.
Civitas has successfully completed over 150 district formation and
renewal projects throughout the world which has generated over $1.7
billion in dedicated funding for the specific needs of our clients. Our client
portfolio ranges from destinations seeking to establish themselves in the
market for the first time, to iconic long standing destinations that wish to
remain competitive and further cement their legacy in the industry.
Civitas I Carlsbad Convention & Visitors Bureau 2
CALIFORNIA TOURISM IMPROVEMENT DISTRICTS
89 Act to 94 Act Comparison
Subject
District Term
Initiation Process
Renewal Process
Governing Body
Governance Process
Corporation Public Entity Status
Lawsuits
1989Law
Districts are formed and renewed for a one
year term.
Adoption of a Resolution of Intention by the
City Council. The Council can adopt this
resolution without petitions requesting it.
Publication in newspaper, two City hearings.
If raising assessments.three hearings and
mailed notice.
An advisory board appointed by the
City Council.
Recommendations made by advisory board
and decision making authority. ·
City may consider the advisory board to be a
public entity for certain laws.
One thirty day challenge period per year.
1994Law
Districts are initially formed for up to five years,
and can be renewedfor up to ten years.
Preparation of management district plan.
Submission of petitions to the City Council signed
by businesses who will pay at least 50% of the
proposed assessment. Adoption of resolution by
City, public meeting and public hearing.
Same as for Initiation Process.
A non-profit corporation chosen and organized by
the stakeholders. Approved by Council with the
adopti_on of the management district plan.
Decisions made by the non-profit corporation,
guided by a management district plan approved by
stakeholders and the City.
Express exemption for non-profit corporation-it is
not considered a public entity.
One thirty day challenge period per five-ten year
district term.
Civitas I Carlsbad Convention & Visitors Bureau 3
SCOPE OF SERVICES & SCHEDULE -
Step 1 Step 2
structu e
Creates the necessary leadership structure to carry out
the project. Civitas, the CCVB, and business owners will
identify their respective roles in the project process.
Includes gathering information on the proposed
CTBID.
Outreach efforts arc undertaken in this step to educate .Jncl
engage with business owners and local officials and gain their
support for the proposed CTB ID.
Step4
Civitas will prepare the petition to support the CTBID
conversion and work with the CCVB on strategies to secure
signed petitions from business owners. Civitas will assist
in determining steering committee assignments and
identifying key stL1keho lders.
Step 5
Step 3
Documents necessary to convert the CTBID are
drafted. Civitas will work closely with business
owners. the CCVB. and local government staff to
ensure documents renect the needs ,ind priorities
of assessed businesses.
Civitas will guide the CCVB through the local
government hearing process to convert the
CTBID.
Civitas I Carlsbad Canvention & Visitors Bureau 4
Nichole Farley John Lambeth
P.-esident & CEO Di.-ecto.-of Business Development
& Client Engagement
Gina Reed
Project Manage,-
1-t
i ·------
Quinn Petitjean
GIS & Database Specialist
Jordan Pittman
Paralegal
MEE T YOUR TEAM
Ci vitas is a leader in developing long t erm funding
solut ions for Destination M arket ing Orga nizations. It
has helped several states investigate the potential of
establ ishing sta tewide funding, in addition to assisting
in the formation of an unparalleled ninety-nine TBIDs
throughout the United States. With its deep
experi ence and expertise, Civitas has been
commissioned by the U.S. Travel Association to conduct
nationwide studies.
Civitas also provides research, consulting, and district
formation services to destinations located around the
world, including Canada, South Ame.-ica, Europe, and
Asia. A representative distant high-priced destination
is Japan, where Civitas clients include Nomura
Research Inst itute, Japan Area-Based M anagement
Organiza tion Network, Japan Travel Burea u, and
Setouchi Tourism Authority. For its groundbreaking
work, Civitas has bee n featured in publica t ions such as
Forbes and Sk ift.
Civitas I Carlsbad Convention & Visitors Bureau 5
INVESTMENT P·ROVISIONS .
Investment
This proposal is based on the understanding that business owners and the CCVB
will provide assistance and time needed to facilitate the process on the local level,
including various database work, substantial time devoted to outreach meetings,
and gathering support and signed petitions from businesses. The CCVB's
investment for the scope of services and timeline described herein shall be
$40,000. The CCVB's investment includes four (4) trips to Carlsbad; two (2) to
meet with business owners and City officials and two (2) to attend City Council
hearings. If additional trips are necessary, we would be happy to.make additional
trips for a professional fee of $1,250 per trip, plus expenses.
Expenses
CCVB will be responsible for all costs and expenses in addition to the professional
fees. Ordinary costs and expenses, including telephone charges, postage, and
photocopying will be billed at four percent (4%) of professional fees. Other costs,
such as travel, overnight shipping, bulk mailing and printing costs (over 100 pages)
shall be billed at Civitas' actual cost. Expenses are not expected to exceed $4,000.
Billing
Civitas proposes a fixed monthly fee of $6,000 per month for six (6) months, plus
expenses. A start-up fee of ten percent (10%) of project costs, $4,000, will be due
and payable · upon execution of an agreement for services between Civitas and
the CCVB. The amount of the start-up fee will be deducted from the final invoice,
which will also be adjusted to account for the total contract price. Civitas will
send CCVB a monthly invoice for fees and costs incurred. Invoices will include the
fixed professional fee and expenses. The basis of calculation or other method of
determining expenses will be clearly identified by item and amoun't.
Investment Overview
Description Price
Professional Fees $36,000
Estimated Expenses $4,000
Civitas I Carlsbad Convention & Visitors Bureau 6
Cost Assumptions and Guidelines
We have projected a specific amount of time for the CTBID conversion. It is
assumed that the project will not exceed the budgeted amount of time. If
unanticipated matters result in additional time beyond that which has been
projected, we would continue billing professional fees of $6,000 per montn, plus
expenses, for the project duration. Factors that could increase the scope of work
and estimated costs outlined above include additional meetings not described in
this proposal, analysis of additional issues above.those described in this proposal, or
a lack of steering committee and business owner involvement in the project.
When Civitas' services conclude, all unpaid charges will immediately become due
and payable. The amount of" professional fees set forth in this agreement are a
fixed amount for completion of the project within a maximum six (6) month time
frame. The total amount of professional fees has been divided over the maximum
six (6) month time frame to determine the monthly billing amount. If the project
is completed prior to the six (6) month time frame, the remaining balance of
.professional fees will be due and payable within thirty (30) days -of project
completion.
As you know, there are many unknown variables in a project of this nature. Although
we would work diligently to convert the CTBID, factors outside Civitas and CCVB's
control could delay or thwart even the best-developed plans. We will work to
minimize risks and complete the project at the earliest possible date.
The pricing and scope outlined in this agreement will expire upon sixty (60) days
post delivery of this proposal.
Business Information
The database for this project will rely on information from local
government sources. Errors can and will occur in this data. While
Civitas will do its utmost to identify and ·correct any errors, it
is acknowledged that data from local government sources may
contain errors. We recommend CCVB continue to pursue data
correction strategies during and after conversion, including
mailings and error checking by local officials.
I Carlsbad Convention & Visitors Bureau 7
AGREEMENT
If you would like to agree to engage our services consistent with this proposal and the following terms, please sign below.
A start-up fee of ten percent (10%) of project costs, $4,000, will be due and payable upon execution of this Agreement. Civitas will send CCVB a monthly
invoice for fees and costs incurred. Each ·invoice will be payable within thirty (30) days of its mailing date. Either CCVB or Civitas shall have the right
to terminate this agreement upon ten (10) days' notice. When Civitas' services.conclude, all unpaid charges will immediately become due and payable,
including the balance of any professional fees if the project is completed prior to the maximum six (6) month time frame.
Nothing in this Agreement and nothing in statements by Civitas personnel to CCVB will b~ construed as a promise or guarantee about the outcome of
the matter. Civitas makes no such promises or guarantees.
If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire
Agreement will be severable and remain in effect. This Agreement may be modified by subsequent agreement of the parties only by an instrument in
writing signed by both of them or an oral agreement only to the extent that the parties carry it out
The parties agree to accept the terms and conditions herein.
Date
October 15, 2019
Date
Carlsbad Convention & Visitors Bureau, by
Brian Hughes,
Board Chairperson
Civitas Advisors, by
John 'Lambeth,
President & CEO
Civitas I Carlsbad Convention & Visitors Bureau B
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RESOLUTION NO. 2019-7
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
CARLSBAD TOURISM BUSINESS IMPROVEMENT DISTRICT,
AUTHORIZING THE CHAIRPERSON TO ENTER INTO AN
AGREEMENT FOR PROFESSIONAL SERVICES WITH
CIVITAS ADIVISORS
EXHIBIT 2
WHEREAS, the City Council of the City of Carlsbad adopted ordinance No. NS-778
enacting Chapter 3.37 if the Carlsbad Municipal Code on November 15, 2005 thereby creating
the Carlsbad Tourism Business Improvement District (CTBID); and
WHEREAS, the primary purpose of the CTBID is to promote tourism and provide
services to visitors to the City of Carlsbad: and
WHEREAS, the City of Carlsbad 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 the federal, state and local laws
governing the activities of a Business Improvement District; and
WHEREAS, 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
WHEREAS, Civitas Advisors, by virtue of their extensive experience in developing long
term funding for Destination Marketing Organizations, is uniquely qualified to provide
professional services to the CTBID; and
WHEREAS, it is estimated that the cost to provide these services $40,000; and
NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Carlsbad
Tourism Business Improvement District, as follows:
1. That the above recitations are true and correct.
2. That the CTBID Board selects Civitas Advisors to provide professional services to
explore options to modify the current CTBID assessment in an amount not to exceed
$40,000.
3. That $40,000 be appropriated form CTBID Fund Balance to Miscellaneous
Professional Services for Civitas Advisors contract.
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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 ~day of
_o_c_t_o_b_e_r ____ 2019, by the following vote to wit:
A YES: Stripe, Canepa, Rauch, Gray, Idris, Hughes
NOES: N/A
ABSENT:Chapin
ATTEST:
\~rdn1~
BARBARA ENGLESON
ro Tern Clerk of the
Carlsbad Tourism Business Improvement District
-2-
EXHIBIT 2A
AGREEMENT FOR ASSESSMENT MODIFICATION SERVICES WITH
CIVITAS ADVISORS
• 1 THIS AGREEMENT is made and entered into as of the i:tlt\ , day of
NlJ\J(.>,rJ\ \o sz ,r' , 20_fl_, by and between the Carlsbad Tourism Business
Improvement District (CTBID), and Civitas Advisors, a for profit, private organization
("Contractor").
RECITALS
A. CTBID requires the professional services of a contractor that is experienced
in assessment modification services.
B. Contractor has the necessary experience in providing professional services
and advice related to assessment modification.
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 six (6) months from the date
of the agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
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5. COMPENSATION
The total not to exceed fee payable for the Services to be performed during the initial
Agreement term shall not exceed Forty Thousand dollars ($40,000). 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 CTBID has accepted the work and/or Services specified in Exhibit
"A".
Compensation will be made in six (6) monthly installments of Six Thousand dollars
($6,000) each month for a not to exceed amount of $40,000 as detailed in the attached
Exhibit A to this Agreement. The first installment shall be payable upon signing of the
agreement in the amount of Four Thousand dollars ($4,000) for start-up fees.
Subsequent installments shall be paid in the first full week of each month, through the
term of this Agreement. Subsequent installments will be adjusted based on the approved
actual expenses from the prior month. Adjustments to pay dates may be necessary due
to the cash balance in the fund.
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 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.
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
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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-:VII". 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 "A:X".
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
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
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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
Liability.
The CTBID will be named as an additional insured on General
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.
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
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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.
CTBID recognizes that all work product produced by Contractor, including technical data,
evaluations, plans, specifications, reports, and other work products, are instruments of
Contractor's services and are not designed for use other than what is intended by this
Agreement. ·
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.
For CTBID:
Cheryl Gerhardt
CTBID Staff
City of Carlsbad
1635 Faraday Ave.
Carlsbad, CA 92008
Phone No. 760-602-2468
For Contractor:
John Lambeth
President & CEO
Civitas Advisors
1102 Corporate Way, Suite 140
Sacramento, CA 95831
Phone No. 916-437-4300
Each party will notify the other immediately of any chang~s of address that would require
any notice or delivery to be directed to another address:
16. RESERVED
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Each party will notify the other immediately of any changes of address thatwould require·
any notice or delivery to be directed to another address.
16. RESERVED
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.
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 Board. The CTBID Board
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 Board will be
binding upon the parties involved, although nothing in this procedure will prohibit the
parties from seeking remedies available to them at law.
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20. TERMINATION
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 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
CTBID Attorney Approved Version #05.06.08
7
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. This Agreement shall be interpreted pursuant to the laws of the State of California.
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.
Ill
Ill
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.
Civitas Advisors, Inc. Carlsbad Tourism Business
Improvement District
*By: By:
**By: ATTEST:
Civitas Advisors, Inc.
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:
CELIA A. BREWER, General Counsel to CTBID
By: ____________ _
Assistant General Counsel
CTBID Attorney Approved Version #05.06.08
9
r. : ...
EXHIBIT A
CARLSBAD TOURISM BUSINESS
IMPROVEMENT DISTRICT PROPOSAL
Brian Hughes, Board Chair
Carlsbad Convention & Visitors Bureau
. :.· ...
-··-•.•·" ...,. .. ~----~-
:-·_.,.;, J
Dear Mr. Hughes,
It was great to talk to you, Bob, Jeff, and Cheryl last week on the phone. I am
pleased to present to you a proposal to assist Visit Carlsbad with exploring the
options to modify the current TBI D assessment from a fixed dollar to a percentage
and convert the district from a Parking and Business Improvement Area ("89 Act")
to a Property and Business Improvement District ("94 Act"). Civitas has formed
and renewed a majority of the nation's TB IDs, and will provide expert advice and
guidance throughout the project.
Our process to modify the CTBID is designed to secure significant support for
the project while complying with applicable laws. In concert with the Carlsbad
Convention & Visitors Bureau ("CCVB"), the Civitas team will guide a modification
process that includes developing and manipulating data, obtaining feedback from
business owners, preparing legal documents, guiding the stakeholder approval
process, and attending local government hearings.
Thank you for the opportunity to submit this proposal. I look forward to working
with you on this exciting project.
Nichole Farley,
Director of Business Development & Client Engagement
Civitas I Carlsbad Convention & Visitors Bureau 1
THE OPPORTUNITY
In our recent conversations about the proposed TBID modification, you
described the desire to modify your curr~nt TBID assessment
methodology from a fixed dollar amount to a percentage of gross sales.
You also expressed an interest in exploring options to convert the district
from the 89 Act to the 94 Act in order for CCVB to remain competitive
in the destination marketing environment through increased marketing &
promotions programs beyond that of the current TBID.
There are two laws TB IDs can be created under: the Parking and Business
Improvement Area Law of 1989 ("89 Act") or the Property and Business
Improvement District Law of 1994 ("94 Act"). To help your destination
determine which is appropriate for you, the following page has a
comparison of the major differences between the two laws.
Civitas has successfully completed over 150 district formation and
renewal projects throughout the world which has generated over $1.7
billion in dedicated funding for the specific needs of our clients. Our client
portfolio ranges from destinations seeking to establish themselves in the
market for the first time, to iconic long standing destinations that wish to
remain competitive and further cement their legacy in the industry.
Civitas I Carlsbad Convention & Visitors Bureau 2
CALIFORNIA TOURISM IMPROVEMENT DISTRICTS
89 Act to 94 Act Comparison
Subject
District Term
Initiation Process
Renewal Process
Governing Body
Governance Process
Corporation Public Entity Status
Lawsuits
1989Law
Districts are formed and renewed for a one
year term.
Adoption of a Resolution of Intention by the
City Council. The Council can adopt this
resolution without petitions requesting it.
Publication in newspaper, two City hearings.
If raising assessments.three hearings and
mailed notice.
An advisory board appointed by the
City Council.
Recommendations made by advisory board
and decision making authority.
City may consider the advisory board to be a
public entity for certain laws.
One thirty day challenge period per year.
1994Law
Districts are initially formed for up to five years,
and can be renewedfor up to ten years.
Preparation of management district plan.
Submission of petitions to the City Council signed
by businesses who will pay at least 50% of the
proposed assessment. Adoption of resolution by
City, public meeting and public hearing.
Same as for Initiation Process.
A non-profit corporation chosen and organized by
the stakeholders. Approved by Council with the
adoption of the management district plan.
Decisions made by the non-profit corporat ion,
guided by a management district plan approved by
stakeholders and the City.
Express exemption for non-profit corporation-it is
not considered a public entity.
One thirty day challenge period perftve-ten year
district term.
Civitas I Carlsbad Convention & Visitors Bureau 3
SCOPE OF SERVICES & SCHEDULE
Step 1 Step2
Creates the necessary leadership structure to carry out
the project. Civltas, the CCVB, and business owners will
identify their respective roles in the project process.
Includes gathering information on the proposed
CTBlD.
Ou_treach efforts are undertaken in this step to educate and
engage with business owners and local officials and gain their
support for the proposed CTBlD.
Step4
Civitas will prepare the petition to support the CTBID
conversion and work with the CCVB on strategies to secure
signed petitions from business owners. Civitas will assist
in determining steering committee assignments and
identifying key stakeholders.
Step 5
Step 3
Documents necessary to convert the CTBID are
drafted. Civitas will work closely with business
owners, the CCVB, and local government staff to
ensure documents reflect the needs and priorities
of assessed businesses.
Civitas will guide the CCVB through the local
government hearing process to convert the
CTBlD.
Civitas I Carlsbad Convention & Visitors Bureau 4
John Lambeth
President & CEO
Nichole Farley
Direc tor of Business Development
& Client Engagement
Quinn Petitjean Gina Reed
Project Manager GIS & Database Specialist
Jordan Pittman
Paralegal
MEE T YOUR TEAM
Civitas is a leader in developing long term funding
solutions for Destination M arketing Organizations. It
has helped several states investigate the potential of
establishing statewide f unding. in addition to assisting
in the formation of an unparalleled ninety-ni ne TB IDs
throughout the United States. With its deep
ex perience and ex pertise, Civitas has been
commissioned by the U.S. Trave l Association to conduct
nationwide studies.
Civitas also provides resea rch, consulting, and district
formation services to destinations located around the
world, including Canada, South America, Europe, and
Asia. A representative distant high-priced destination
is Japa n, where Civitas clients include Nomura
Research Institute, Japan Area-Based Management
Organization Net work, Japan Travel Bureau, and
Setouchi Tourism Authority. For its groundbreaking
work, Ci vitas has been featured in publications such as
Forbes and Skift.
Civitas I Carlsbad Convention & Visitors Bureau 5
INVESTMENT PROVISIONS .
Investment
This proposal is based on the understanding that business owners and the CCVB
will provide assistance and time needed to facilitate the process on the local level,
including various database work, substantial time devoted to outreach meetings,
and gathering support and signed petitions from businesses. The CCVB's
investment for the scope of services and timeline described herein shall be
$40,000. The CCVB's investment includes four (4) trips to Carlsbad; two (2) to
meet with business owners and City officials and two (2) to attend City Council
hearings. If additional trips are necessary, we would be happy to make additional
trips for a professional fee of $1,250 per trip, plus expenses.
Expenses
CCVB will be responsible for all costs and expenses in addition to the professional
fees. Ordinary costs and expenses, including telephone charges, postage, and
photocopying will be billed at four percent (4%) of professional fees. Other costs,
such as travel, overnight shipping, bulk mailing and printing costs (over 100 pages)
shall be billed at Civitas' actual cost. Expenses are not expected to exceed $4,000.
Billing
Civitas proposes a fixed monthly fee of $6,000 per month for six (6) months, plus
expenses. A start-up fee of ten percent (10%) of project costs, $4,000, will be due
and payable upon execution of an agreement for services between Civitas and
the CCVB. The amount of the start-up fee will be deducted from the final invoice,
which will also be adjusted to account for the total contract price. Civitas will
send CCVB a monthly invoice for fees and costs incurred. Invoices will include the
fixed professional fee and expenses. The basis of calculation or other method of
determining expenses will be clearly ident~fied by item and amoun't.
•
Investment Overview
Description Price
Professional Fees $36,000
Estimated Expenses $4,000
Civitas I Carlsbad Convention & Visitors Bureau 6
Cost Assumptions and Guidelines
We have projected a specific amount of time for the CTBID conversion. It is
assumed that the project will not exceed the budgeted amount of time. If
unanticipated matters result in additional time beyond that which has been
projected, we would continue billing professional fees of $6,000 per month, plus
expenses, for the project duration. Factors that could increase the scope of work
and estimated costs outlined above include additional meetings not described in
this proposal, analysis of additional issues above those described in this proposal, or
a lack of steering committee and business owner involvement in the project.
When Civitas' services conclude, all unpaid charges will immediately become due
and payable. The amount of professional fees set forth in this agreement are a
fixed amount for completion of the project within a maximum six (6) month time
frame. The total amount of professional fees has been divided over the maximum
six (6) month time frame to determine the monthly billing amount. If the project
is completed prior to the six (6) month time frame, the remaining balance of
professional fees will be due and payable within thirty (30) days .of project
completion.
As you know, there are many unknown variables in a project of this nature. Although
we would work diligently to convert the CTBID, factors outside Civitas and CCVB's
control could delay or thwart even the best-developed plans. We will work to
minimize risks and complete the project atthe earliest possible date.
The pricing and scope outlined in this agreement w ill expire upon sixty (60) days
post delivery of this proposal.
Business Information
The database for this project will rely on information from local
government sources. Errors can and will occur in this data. While
Civitas will do its utmost to identify and correct any errors, it
is acknowledged that data from local government sources may
contain errors. We recommend CCVB continue to pursue data
correction strategies during and after conversion, including
mailings and error checking by local officials.
I Carlsbad Convention & Visitors Bureau 7
AGREEMENT
If you would like to agree to engage our services consistent with this proposal and the following terms, please sign below.
A start-up fee often percent {10%) of project costs, $4,000, will be due and payable upon execution of this Agreement. Civitas will send CCVB a monthly
invoice for fees and costs incurred. Each invoice will be payable within thirty (30) days of its mailing date. Either CCVB or Civitas shall have the right
to terminate this agreement upon ten {10) days' notice. When Civitas' services.conclude, all unpaid charges will immediately become due and payable,
including the balance of any professional fees if the project is completed prior to the maximum six (6) month time frame.
Nothing in this Agreement and nothing in statements by Civitas personnel to CCVB will be construed as a promise or guarantee about the outcome of
the matter. Civitas makes no such promises or guarantees.
If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire
Agreement will be severable and remain in effect. This Agreement may be modified by subsequent agreement of the parties only by an instrument in
writing signed by both of them or an oral agreement only to the extent that the parties carry it out.
The parties agree to accept the terms and conditions herein.
Date
October 15, 2019
Date
Carlsbad Convention & Visitors Bureau, by
~ , ,, I. .
(!_ Brian Hughes
Brian Hughes,
Board Chairperson
Civitas Advisors, by
John ·Lambeth,
President & CEO
Civitas I Carlsbad Convention & Visitors Bureau B