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HomeMy WebLinkAbout1996-02-06; City Council; Resolution 96-531 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 28 27 0 0 RESOLUTION NO. 9 6 - 5 3 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE CARLSBAD VILLAGE BUSINESS ASSOCIATION TO PROVIDE PROFESSIONAL SERVICES RELATED TO THE PROMOTION OF THE CITY OF CARLSBAD WHEREAS, the City Council of the City of Carlsbad has determined that it is in the best interest of the City to promote tourism and provide services to visitors to the City; and WHEREAS, the City Council has further determined that the Carlsbad Village Business Association possesses the necessary skills to provide these services to the City of Carlsbad; and WHEREAS, the Carlsbad Village Business Association has agreed to provide these services under the terms and conditions of the agreement attached hereto. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California as follows: 1. That the above recitations are true and correct. 2. That the Mayor is hereby authorized to execute the attached agreement, Exhibit A, between the City of Carlsbad and the Carlsbad Village Business Association to provide professional services related to the promotion of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council on the 6th day of FEBRUARY , 1996, by the following vote, to wit: AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, H, NOES: None ABSENT: None ATTEST: ALETHA dAxL4%?y C. RAUTENKWNZ, City Clerk (SEAL) - 0 0 c AGREEMENT BETWEEN THE CITY OF CARLSBAD AND THE CARLSBAD VILLAGE BUSINESS ASSOCIATION TO PROVIDE PROFESSIONAL SERVICES RELATED TO THE PROMOTION OF THE CITY OF CARLSBAD THIS AGREEMENT, made and entered into as of the & day of *N , 1996, an effective from February 1, 1996 to June 30, 1996, by and between the CITY OF CARLSBAD, municipal corporation, hereinafter referred to as YXy," and the CARLSBAD VILLAGE BUSINES ASSOCIATION, a non-profit corporation, hereinafter referred to as "CVBA." RECITALS The City requires the services necessary for the promotion of the City of Carlsbad; and tt CVBA possess the necessary skills and qualifications to provide the services required by the Cit! NOW, THEREFORE, in consideration of these recitals and the mutual covenants containe herein, the City and the CVBA agree as follows: 1. EMPLOYMENT OF SERVICES The City agrees to engage, and the CVBA agrees to perform the services described belov A. Manage and coordinate a marketing program that positions Carlsbad as a prim destination in Southern California. Generate awareness of Carlsbad in those geographic regions of the United Stat6 which provide the largest number of visitors to Southern California each year. Operate the Visitor Information Center in the AT&SF Depot seven days per wet from 9 a.m. to 5 p.m. Monday through Friday, 10 a.m. to 4 p.m. on Saturday, ar 10 a.m. to 3 p.m. on Sunday except New Year's Day, Easter, Thanksgiving ar Christmas Day to assist visitors to Carlsbad. Establish a travel writer's program by organizing visits to Carlsbad by several trav writers that result in published articles promoting Carlsbad. B. C. D. 0 0 c E. Air 30 second commercials on ESPN during the Carlsbad 5000 braadea!3. F. Develop private funding for advertising co-op programs, central reservations fees and other participatory fees to support a full-time, aggressive tourism marketing program. Provide an accounting for all transactions related to the operation of the CVBA. G. 2. COMPENSATION For the services described above the City will compensate the CVBA in an amount not tc exceed $88,000 to be paid as described below: A. The City will compensate the CVBA up to $50,700 as described below: 1. Operate Visitor Information Center $39,000 2. Travel Writer Program 5,000 3. ESPN Commercial - Carlsbad 5000 6,700 Total Compensation $50,700 Payments for these services will be made in two equal installments of $25,350, wit1 the first installment payable upon execution of the contract, and the seconc installment payable on April 15, 1996, the mid-point of the five-month contrac period. In addition to the items listed in A above the City will pay up to $37,300 toward additional community promotion activities. These funds will be released to th CVBA on a matching basis where the CVBA must raise $1 to receive $3 of Ci funds. Payment of these expenses will be released upon receipt of a stateme itemizing the expenditures by program category and proof satisfactory to tl Finance Director of the receipt of matching funds. The expenditures must be mat within the contract period in order to qualify for reimbursement. B. 0 0 #- C. The City reserves the right to terminate or reduce the funding levels outlined in th Agreement in the event of City revenue reductions. Recommended reductions will be reportel to the City Council who shall determine the modified funding level. 3. INFORMATION AND REPORTS The CVBA shall provide the City Council with a three-month and a final report of the activii of the CVBA funded under this Agreement. These reports shall summarize activities for the thref month period ending April 30, 1996, and the subsequent report shall cover the final two-moni period ending June 30, 1996. The expenditures in the report shall be summarized using tt- categories shown in the Revised Management Proposal of the Convis in Association with tt- Carlsbad Village Business Association. 4. RECORDS AND INSPECTION The CVBA shall maintain full and accurate records with respect to all matters covere under this Agreement. The City shall have free access at all times to such records, and the rig1 to examine and audit the same and to make transcripts there from, and to inspect all progra data, documents, proceedings, and activities. These documents shall be retained for a peric of six (6) months after completion of the contract. 5. DURATION OF CONTRACT This Agreement shall extend for a period of five (5) months from February 1, 1996 to Jur 30, 1996. 6. CHANGES IN WORK If, in the course of the contract, changes seem merited by the CVBA or the City, ai informal consultations with the other party indicate that a change in the conditions of the contrz is warranted, the CVBA or the City may request a change in contract. Such changes shall I processed by the City in the following manner: A letter outlining the required changes shall I forwarded to the City by the CVBA to inform them of the proposed changes along with statement of estimated changes in charges or time schedule. A Standard Amendment 0 0 c Agreement shall be prepared by the City and approved by the City according to the procedures described in Carlsbad Municipal Code Section 3.28.1 72. Such Amendment to Agreement shall not render ineffective or invalidate unaffected portions of the Agreement. 7. COVENANTS AGAINST CONTINGENT FEES The CVBA warrants that their firm has not employed or retained any company or person other than a bona fide employee working for the CVBA, to solicit or secure this Agreement, anc that the CVBA has not paid or agreed to pay any company or person, other. than a bona fidc employee, any fee, commission, percentage, brokerage fee, gift, or any other consideratior contingent upon, or resulting from, the award or making of this Agreement. For breach c violation of this warranty, the City shall have the right to annul this Agreement without liability, 01 in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, th full amount of such fee, commission, percentage, brokerage fees, gift, or contingent fee. 8. NONDISCRIMINATION CLAUSE The CVBA shall comply with applicable State and Federal laws regardin nondiscrimination. 9. TERMINATION OF CONTRACT In the event of the CVBAs failure to prosecute, deliver, or perform the work as provide for in this contract, the City Manager may terminate this contract for nonperformance by notifyin the CVBA by certified mail of the termination of the CVBA. The CVBA, thereupon, has five ( working days to deliver said documents owned by the City and all work in progress to tl Finance Director. The Finance Director shall make a determination of fact based upon tl documents delivered to City of the percentage of work which the CVBA has performed which usable and of worth to the City in having the contract completed. Based upon that finding reported to the City Manager, the Manager shall determine the final payment of the contract This Agreement may be terminated by either party upon tendering thirty (30) days writt notice to the other party. In the event of such suspension or termination, upon request of t 0 e '- City, the CVBA shall assemble the work product and put same in order for proper filing anc closing and deliver Said product to City. In the event of termination, the CVBA shall be paid fol work performed to the termination date; however, the total shall not exceed the lump sum fec payable under paragraph 2. The City shall make the final determination as to the portions o tasks completed and the compensation to be made. In no case shall the final payment exceec the total contract amount. 10. DISPUTES If a dispute should arise regarding the performance of work under this Agreement, thi following procedure shall be used to resolve any question of fact or interpretation not otherwis settled by Agreement between parties. Such questions, if they become identified as a part of dispute among persons operating under the provisions of this Contract, shall be reduced t writing by the principal of the CVBA or the City Finance Director. A copy of such documente dispute shall be forwarded to both parties involved along with recommended methods i resolution which would be of benefit to both parties. The City Finance Director or princip receiving the letter shall reply to the letter along with a recommended method of resolution withi ten (10) calendar days. If the resolution thus obtained is unsatisfactory to the aggrieved part a letter outlining the dispute shall be forwarded to the City Council for their resolution throuf the office of the City Manager. The City Council may then opt to consider the directed solutic to the problem. In such cases, the action of the City Council shall be binding upon the parti involved, although nothing in this procedure shall prohibit the parties seeking remedies availat to them at law. 11. CLAIMS AND LAWSUITS The CVBA agrees that any contract claim submitted to the City must be asserted as p of the contract process as set forth in this Agreement and not in anticipation of litigation or conjunction with litigation. The CVBA acknowledges that if a false claim is submitted to the CI it may be considered fraud and the CVBA may be subject to criminal prosecution. e 0 *. 12. STATUS OF THE CONTRACTOR The CVBA shall perform the services provided for herein in the CVBA’s own way as an independent contractor and in pursuit of the CVBA’s independent calling, and not as an employee of the City. The CVBA shall be under control of the City only as to the result to bc accomplished and the personnel assigned to the project, but shall consult with the City a: provided for in the request for proposal. The CVBA is an independent contractor of the City. The payment made to the CVBL pursuant to this Agreement shall be the full and complete compensation to which the CVBA i: entitled pursuant this Agreement. The City shall not make any federal or state tax withholding: on behalf of the CVBA. The City shall not be required to pay any workers’ compensatior insurance on behalf of the CVBA. The CVBA agrees to indemnify the City for any tax, retiremen contribution, social security, overtime payment, workers’ compensation payment which the Cit may be required to make on behalf of the CVBA payment which the City may be required tc make on behalf of the CVBA or any employee of the CVBA for work done under this Agreemeni The CVBA shall be aware of the requirements of the Immigration Reform and Control Ac of 1985 (8 USC Sec. 1 101 - 1525) and shall comply with those requirements, including, but nc limited to, verifying the eligibility for employment of all agents, employees, sub-contractors ani contractors that are included in this Agreement. 13. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports and other work products as herein require are the property of the City, whether the work for which they are made be expected or not. I the event this contract is terminated, all documents, plans, specifications, drawings, reports an studies shall be delivered forthwith to the City. The CVBA shall have the right to make one (‘ copy of the plans for its records. e 0 @. 14. REPRODUCTION RIGHTS The CVBA agrees that all copyrights which arise from creation of the work pursuant to thi5 contract shall be vested in City and hereby agrees to relinquish all claims to such copyrights ir favor of City. 15. HOLD HARMLESS AGREEMENT The CVBA agrees to indemnify and hold harmless the City of Carlsbad and its officers officials, employees and volunteers from and against all claims, damages, losses and expense including attorney fees arising out of the performance of the work described herein caused ii whole or in part by any negligent act or omission of the CVBA, any subcontractor, anyonl directly or indirectly employed by any of them or anyone for whose acts any of them may b liable, except where caused by the active negligence, sole negligence, or willful misconduct c the City of Carlsbad. The CVBA shalt at its own expense, upon written request by the City, defend any such su or action brought against the City, its officers, officials, employees and volunteers. The CVBA indemnification of City shall not be limited by any prior or subsequent declaration by the CVBI 16. ASSIGNMENT OF AGREEMENT The CVBA shall not assign this Agreement or any part of it or any money due under without the prior written consent of the City. 17. SUBCONTRACTING If the CVBA shall subcontract any of the work to be performed under this contract by tt- CVBA, the CVBA shall be fully responsible to the City for the acts and omissions of the CVBA subcontractor and of the persons either directly or indirectly employed by the subcontractor, z the CVBA is for the acts and omissions of persons directly employed by the CVBA. Nothir contained in this contract shall create any contractual relationship between any subcontractor the CVBA and the City. The CVBA shall bind every subcontractor and every subcontractor 0 0 e. a subcontractor by the terms of this contract applicable to the CVBAs work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. 18. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City to negotiate make, accept or approve or take part in negotiating, making, accepting or approving of an) contract or subcontract in connection with the execution of this Agreement shall become directlj or indirectly interested personally in this Agreement or any part thereof. No officer or employet of the City who is authorized in such a capacity on behalf of the City to exercise any executive supervisory or other similar functions in connection with the performance of this Agreement sha become directly or indirectly interested personally in this Agreement or any part thereof. 19. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the Cib either before, during or after the execution of this contract, shall affect or modify any of the term or obligations herein contained nor entitle the CVBA to any additional payment whatsoever unde the terms of this contract. 20. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all term: conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, an each of their respective heirs, executors, administrators, successors, and assigns. 21. EFFECTIVE DATE This Agreement shall be effective on and from the day and year first written above. 22. CONFLICT OF INTEREST The City has determined, using the guidelines of the Political Reform Act and the City conflict of interest code, that the CVBA will not be required to file a conflict of interest statemei as a requirement of this Agreement. However, the CVBA hereby acknowledges that the CVB e e e. has the legal responsibility for complying with the Political Reform Act and nothing in thi! Agreement releases the CVBA from this responsibility. 23. INSURANCE The CVBA shall obtain and maintain for the duration of the contract and any and a amendments insurance against claims for injuries to persons or damage to property which ma arise out of or in connection with performance of the work hereunder by the CVBA, his agent: representatives, employees or subcontractors. Said insurance shall be obtained from a insurance carrier admitted and authorized to do business in the State of California. Th insurance carrier is required to have a current Best’s Key Rating of not less than “A-:V“ and sha meet the City’s policy for insurance as stated in Resolution No. 91-403. A. Coverases and Limits. The CVBA shall maintain the types of coverages and minimum limits indicate herein, unless a lower amount is approved by the City Attorney or City Manager 1. Comprehensive General Liability Insurance. $1,000,000 combined single-lirr per occurrence for bodily injury, personal injury and property damage. If tt submitted policies contain aggregate limits, general aggregate limits shi apply separately to the work under this contract or the general aggrega shall be twice the required per occurrence limit. Workers’ Compensation and Employer’s Liability. Workers’ Compensatic limits as required by the Labor Code of the State of California ar Employer’s Liability limits of $1,000,000 per accident for bodily injury. 2. B. Additional Provisions. The CVBA shall ensure that the policies of insurance required under this Agreeme contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all policies excludii Workers’ Compensation. * 0 4. 2. The CVBA shall furnish certificates of insurance to the City beforc commencement of work. The CVBA shall obtain occurrence coverage. This insurance shall be in force during the life of the Agreement and an extension thereof and shall not be canceled without 30 days prior writtei notice to the City sent by certified mail. If the CVBA fails to maintain any of the insurance coverages required hereir then the City will have the option to declare the CVBA in breach, or ma purchase replacement insurance or pay the premiums that are due o existing policies in order that the required coverages may be maintainec The CVBA is responsible for any payments made by the City to obtain ( maintain such insurance and the City may collect the same from the CVB or deduct the amount paid from any sums due the CVBA under th Agreement. 3. 4. 5. 0 24. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receive writtei notice on behalf of the City and on behalf of the CVBA in connection with the foregoing are a follows: For City: Title: Citv of Carlsbad Name: Finance Director Address: 1200 Carlsbad Villaue Drive Carlsbad CA 92008 For CVBA : Title: Carlsbad Village Business Association Convention and Visitors Bureau Name: Steve Link Address: PO Box 1401 Carlsbad CA 92018 0 a IN WITNESS WHEREOF, the City and the CVBA have executed this Agreement as of thc date first written above. =wy , 1996. Executed by the CVBA this 8, day of I-h CONTRACTOR: CITY: CARLSBAD VILLAGE BUSINESS ASSOCIATION CITY OF CARLSBAD, a municipal Mayor By: ATTEST: ALETHA L. RAUTENKRANZ City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. only one officer signs, the corporation must attach a resolution certified by the secretary ( assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Atto ey BY x Wity Attorney 287.96. CALIFORNIA ALL-PURP a ACKNOWLEDGMENT a \ before me, &khLM.b. &hN Qd? 4 IDATE NAME, TITLE OF OFFI&R - E 2, "JANE DOE NOjARY PUBLIC" s NAMEMOF SIGNER(S) personally appeared &fir@ 5$wt;sow --kc - B proved to me on the basis of satisfactory evidenc to be the personw whose name(&- subscribed to the within instrument and a knowledged to me that%@&ky executt the same in mlfberr authorize capacity(-, and that by )%SZt@Jtfgc signaturew on the instrument the person0 or the entity upon behalf of which tt personH acted, executed the instrumer WITNESS my hand and official seal. Though the data below IS not required by law, it may prove valuable to persons relying on the document and could pre fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMEh TITLE OR TYPE OF DOCUMENT TITLE(S) 0 GENERAL ATTORNEY-IN-FACT NUMBER OF PAGES 0 GUARDIAWCONSERVATOR DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTIP/(IES) SIGNER(S) OTHER THAN NAMED ABOVE 01 993 NATIONAL NOTARY ASSOCIATION 8236 Remmet Ave , P 0 Box 7184 Canqa Park. CE