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HomeMy WebLinkAbout2011-05-18; Carlsbad Tourism Business Improvement District; Resolution 2011-4EXHIBIT 2 1 RESOLUTION NO. 2011-4 2 RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD TOURISM BUSINESS IMPROVEMENT DISTRICT, AUTHORIZING THE CHAIRPERSON TO EXECUTE AGREEMENT WITH THE CARLSBAD CONVENTION AND VISITORS BUREAU (CCVB) DOING 5 BUSINESS AS VISITCARLSBAD 6 WHEREAS, The City Council ofthe City of Carlsbad adopted Ordinance No. NS-778 7 enacting Chapter 3.37 of the Carlsbad Municipal Code on November 15,2005 thereby creating 8 the Carlsbad Tourism Business hnprovement District (CTBID); and 9 WHEREAS, the primary purpose of the CTBID is to promote tourism and provide IQ services to visitors to the City of Carlsbad; and 11 WHEREAS, the City Council has authorized the Board of Directors ofthe CTBID to 12 conduct the business of the CTBID in the time, place and manner that best suits the needs of the 13 Board of Directors of the CTBID, subject to the control of federal, state and local law^s goveming 14 the activities of a Business Improvement District; and 15 WHEREAS, the City Council has provided the Board of Directors with the ability to 15 contract for services necessary to carry out the purpose of the CTBID; and 17 WHEREAS, the Board of Directors of the CTBID has determined that it is in the best I g interest of the District to promote tourism and provide services to visitors to the City of Carlsbad 19 through the use of agencies that currently exist in the community to provide these services; and 20 WHEREAS, the Board of Directors has determined that the Carlsbad Convention and 21 Visitors Bureau (CCVB) possesses the necessary skills to provide services related to the 22 promotion of tourism; and 23 WHEREAS, the CCVB intends to obtain all necessary documents to do business as 24 VisitCarlsbad; and 25 WHEREAS, the CCVB has revised its Bylaws to reduce the number of directors on its 26 Board to Seven; and 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 WHEREAS, the CCVB has agreed that the initial Board of Directors v^U not be changed without approval of the CTBID Board during the term of the contract; and WHEREAS, the CCVB has agreed to provide tourism services under the terms and conditions of the agreement attached hereto for the term July 1,2011 through June 30, 2012, NOW, THEREFORE, BE IT RESOLVED by the Board of Dkectors ofthe Carlsbad Tourism Business Improvement District, as follows: 1. That the above recitations are true and correct. 2. That subject to review and approval of the CTBID General Counsel, the Chairperson is hereby authorized to execute the attached agreement. Exhibit 1, between the CTBID and the CCVB to provide professional services related to tourism promotion. 3. That the CTBID Board understands that the current seven directors of the CCVB Board are: Jason Durbin, Sheraton Carlsbad Resort & Spa Robert Moore, Hilton Garden Inn, Carlsbad Beach Kim Akers, West Inn & Suites Peter Kock, LEGOLAND Califomia Denise Chapman, La Costa Resort & Spa Drew Allison, Hilton Homewood Suites VACANT The CCVB has agreed that the Board of Directors v^U not be changed without approval of the CTBID Board during the term of the contract. /// /// /// /// /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PASSED, APPROVED, AND ADOPTED at a regular meeting ofthe Board of Directors of the Carlsbad Tourism Business Improvement District on the 18th day of May, 2011, by the following vote to v^t: AYES: Board Members Stripe, Stiebeling, McCormick, Becerra NOES: None ABSENT: Board Members Canepa, Nayudu, Ho ward-Jones TIM STRIPE Chair ATTEST fE wool lerk of the Carlsbad Tourism Business Improvement District /// /// /// /// /// /// /// /// /// /// /// /// AGREEMENT FOR PROMOTION OF TOURISM AND VISITOR SERVICES CARLSBAD CONVENTION AND VISITORS BUREAU THIS AGREEMENT is made and entered into as of the . 20 , by and between the Carlsbad Improvement District (CTBID), and the Carlsbad Convention ("Contractor"). RECITALS of services A. CTBID requires the professional services experienced in tourism and visitor promotion programs and B. Contractor has the necessary experience in services and advice related to the promotion of tourism in Carisbad C. Selection of Contractor is expected to achieve the expedited fashion. D. Contractor has submitted a proposal to CTBID willingness and ability to perfonn such work. DRAFT EXHIBIT 1 day of Tourism Business and Visitors Bureau, a contractor that is ss. providing professional I. desired results in an and has affimned its NOW, THEREFORE, in consideration of these recitals and contained herein, CTBID and Contractor agree as follows: 1. SCOPE OF WORK CTBID retains Contractor to perfonn, and Contractor agrees to fender, those services (the "Services") that are defined in attached Exhibit "A", which rs incorporated by this reference in accordance with this Agreement's terms and conditio is. the mutual covenants 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable care and skill customarily exercised by reputable members of practicing in the Metropolitan Southern California Area, and diligence and best judgment while exercising its professional skill professional Contractor's profession will use reasonable 3nd expertise. 3. TERM The tenn of this Agreement will be effective for a period of one July 1, 2011 through June 30.2012. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreeijient. ;i) year from the date CTBID Attorney Approved Version #05.06.08 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be Seven Hundred Forty-Four Thousand Five Hundred Eighty Two dollars ($744,582). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The CTBID reserves the right to withhold a ten percent (10%) retention until CTBID has accepted the woric and/or Services specified in Exhibit "A". Compensation will be made in twelve (12) monthly installments of Sixty Two Thousand Forty Eight dollars ($62,048) each month for a total of $744,582 as detailed in the attached Exhibit A to this Agreement. The first installment shall be payable in the first full week of July 2011. Subsequent installments shall be paid in the first full week of each month, through the term of this Agreement. Adjustments to pay dates may be necessary due to the cash balance in the fund. The CTBID resen/es the right to terminate or reduce funding levels outlined in the Agreement in the event of CTBID revenue reductions. Recommended deductions will be reported t to the CTBID Board who shall determine the modified funding level. 6. STATUS OF CONTRACTOR Contractor will perfonn the Sen/ices 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 empioyees 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 woricers' 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 woricers' compensation payment which CTBID may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for woric 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 Sen/ices without prior written approval of CTBID. If Contractor subcontracts any of the Sen/Ices, Contractor will be fully responsible to CTBID for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing CTBID Attorney /approved Version #05.06.08 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 ev<^ry subcontractor of a subcontractor by the temris of this Agreement applicable to Co ntractor's woric 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 \T] connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the CTBID arjd its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attomeys fees arising out of the performance of the w/ork 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, co^ts incurs or makes to or on behalf of an injured employee uncler administered workers' compensation is included as a loss, expense purposes of this section, and that this section will sun/ive the termination of this Agreement. or expense CTBID the CTBID's self- or cost for the expiration or eariy 10. INSURANCE Contractor will obtain and maintain for the duration of the Agredment 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 perfonnance of the sen/ices by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance earner 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-iVH". 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 B4st's Key Rating Guide of at least "A:X". Contractor's agents and 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 indemnification obligations under this Agreement. CTBID, Its officers, 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 inadiequate. Contractor will obtain such additional insurance coverage, as Contractor {deems adequate, at Contractor's sole expense. CTBID Attorney Approved Version #05.06.08 1^ 10.1.1 Commercial General Liabilitv 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 woric 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 woric for CTBID). $1,000.000 combined single-limit per accident for bodily injury and property damage. 10.13 Wortcers' Compensation and Emolover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Woricers' Compensation will not be required if Contractor has no employees and provides, to CTBID's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. 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 ofthe work. 10.2. Additional Provisions. Contractor will ensure that the policies of Insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The CTBID will be named as an additionai insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to CTBID sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providino 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 from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. CTBID Attorney Approved Version #05.06.08 10.5 Submission of Insurance Policies. CTBID reserves the right to require, at anytime, complete and certified copies of any or all required ipsurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business license for the temn of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy Identifiable. Contractor will allow a representative of CTBID during nornial business hours to exanlne, audit, and make transcripts or copies of records and any other documents cre ated pursuant to this Agreement. Contractor will allow inspection of all woric, 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 woric product produced by Contractor or its agents, employees pursuant to this Agreement is the property of CTBID. In the event terminated, all work product produced by Contractor or its subcontractors pursuant to this Agreement will be delivered Contractor will have the right to make one (1) copy of the work records. and subcontractors this Agreement is employees and at once to CTBID. pl-oduct for Contractor's a£ ents. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the sen/ices and Contractor relinquishes all claims to the copyrights in favor of 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. be vested in CTBID CTBID. For CTBID: Chen/1 Gerhardt CTBID Staff Administrative Services Citv of Carlsbad 1635 Faradav Ave. Carlsbad. CA 92008 Phone No. 760-602-2446 CTBID Attorney Approved Version #05.06.08 For Contractor: Address Name Title ''^^^^ Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST CTBID will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Refomn Act and CTBID's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be detennined that disclosure is required. Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the CTBID Clerk those schedules specified by CTBID and contained in the Statement of Economic Interests Fomn 700. Contractor, for Contractor and on behalf of Contractor's agents, empioyees. subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further wan-ants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the CTBID an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the perfonnance ofthe 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 Refomn 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 sen/ices 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 perfonnance of the Sen/ices the following procedure will be used to resolve any questions of fact or interpretation not othenA/ise settled by agreement between the parties. Representatives of Contractor or CTBID wili CTBID Attorney Approved Version #05.06.0fl reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fon^/arded to both parties involved alc ng 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 reccmmended 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 foi warded to the CTBID Manager. The CTBID Manager will consider the facts and solut each party and may then opt to direct a solution to the proble m. In such cases, the action ofthe CTBID Manager will be binding upon the parties invdved, although nothing in this procedure will prohibit the parties from seeking remedies ayailable to them at law. cr 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or CTBID may terminate this Agreement for nonperformance by certified mail of the temiination. If CTBID decides to abandon the work or sen/ices contemplated by this Agreement, CTBID Agreement upon written notice to Contractor. Upon notification Contractor has five (5) business days to deliver any documents evened work in progress to CTBID address contained In this Agreemerpt detemiination of fact based upon the woric product delivered percentage of work that Contractor has perfonned which is uiable CTBID in having the Agreement completed. Based upon detennine the final payment of the Agreement. that perform the Sen/ices, rjotifying Contractor by indefinitely postpone may tenninate this of temiination. by CTBID and all CTBID will make a to CTBID and of the and of worth to finding CTBID will Either party upon tendering thirty (30) days written notice to I the other party may terminate this Agreement. In this event and upon request of CFTBID, Contractor will assemble the woric product and put it in order for proper filing ami closing and deliver it to CTBID. Contractor will be paid for work perfonned to the temiination date; however, the total will not exceed the lump sum fee payable under this /agreement. CTBID will make the final detemiination as to the portions of tasks compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or reta ned person, other than a bona fide employee working for Contractor, Agreement, and that Contractor has not paid or agreed to pay ariy other than a bona fide employee, any fee, commission, percentage or any other consideration contingent upon, or resulting from, the this Agreement. For breach or violation of this warranty, CTBID annul this Agreement without liability, or, in its discretion, to deduct price or consideration, or othenA/ise recover, the full amount of percentage, brokerage fees, gift, or contingent fee. completed and the any company or o solicit or secure this company or person, , brokerage fee, gift, award or making of will have the right to from the Agreement the fee. commission, 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to CTBID Attorney Approved Version #05.06.08 1> 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 Califomia Government Code sections 12650 et seo.. 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 infonnation or in reckless disregard of the truth or falsity of infonnation. If CTBID seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public woric or improvement for a period of up to five (5) years. Contractor acknowledges debamient 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 Califomia, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It Is mutually understood and agreed that this Agreement will be binding upon CTBID and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of CTBID, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the temns of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. /// /// CTBID Attorney Approved Version #05.06.0fi 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 temns and conditions of tiis Agreement. CONTRACTOR *By: (sign here) CTBID OF CARLBBAD corporation of the By: . a municipal State of Califomia Tim Stripe CTBID Board Chair (print name/title) ATTEST: (e-mail address) ^By: (sign here) LORRAINE M CTBID Clerk WOOD (print name/title) (e-mail address) If required by CTBID. proper notarial acknowledgment of execution must be attached. If a Corporation. Agreement must be signep officer from each of the following two groups. *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary CFO or Assis by contractor by one corporate Otherwise, the corporation must attach a resolution certified )y the secretary or assistant secretary under corporate seal empowering the officer(s corporation APPROVED AS TO FORM: RONALD R. BALL. CTBID Attorney By:. ant Treasurer Deputy CTBID Attorney signing to bind the CTBID Attorney Approved Version #05.06.08 EXHIBIT A Scope of Services 1. Visit Carisbad < Board appointments will be approved by the CTBID Board. 2. Provide periodic updates at the CTBID's request and a year-end report on the program of work deliverables which shall inciude an accounting of funds spent by program in a format approved by the CTBID Board. Allocation ofthe unspent funds shall be determined by the CTBID Board. 3. Review CTBID grant applications and make funding recommendations to the CTBID Board. 4. Develop a program of work that is primarily focused on driving demand in the leisure market segment and secondarily, the group meetings market. The Visit Carlsbad Board will approve the program of work and corresponding budget allocations which are included at the end of the scope. 5. Update current market intelligence on the Carlsbad visitor profile. Research findings will be shared and communicated to the tourism community and incorporated in the development of future marketing strategies. 6. Primarily focus on visitcarlsbad.com as the primary distribution channel for new business opportunities for CTBID properties and Carisbad tourism suppliers. a. Partner with local tourism suppliers to develop new products or packages consistent with the current market demand for special offers. b. Develop visitor-relevant content. 7. Deliver an interactive marketing campaign focused on driving traffic to vlsltcarisbad.com and hotel reservations. Promotional campaigns will inciude but not limited to pay-per-click advertising, online display advertising, content development, social media, promotions and email marketing, 8. Pitch editorial ideas to travel writer and online blogging communities and write relevant content for the website, including: CTBID Attorney Approved Version #05.06.08 10 a. Pitch story Ideas, what's new, and host travel writers b. Coordinate media FAMs in partnership with SDCyB, CTBID properties, and local tourism suppliers. 9. Manage the visitor center, visitor publications and colialterai a. Service walk-in visitors with local/regional tourism b. Collect geographical data from walk-in visitors, c. Refer visitors to local tourism suppliers, d. Manage visitor publication distribution and other 10. Develop partnerships and coop opportunities with CTBID tourism suppliers, and regional DMO's such as Visit Oceanside and CTTC. ^ Visit Carisbad is the dba used by the Carlsbad Convention and Visitors Bureau. , including: information. collateral, properties, local , SDCVB, 11 CTBID Attorney Approved Version #05.06.08 Vi)