HomeMy WebLinkAbout2003-10-07; City Council; Resolution 2003-2561
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RESOLUTION NO. 2003-256
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARSLBAD, CALIFORNIA, AUTHORIZING’ THE MAYOR TO
EXECUTE AN AGREEMENT WITH THE SAN DIEGO NORTH
CONVENTION AND VISITORS BUREAU (SDNCVB).
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 Mer determined that the San Diego North
Convention and Visitor’s Bureau possesses the necessary skills to provide these services to the
City of Carlsbad; and
WHEREAS, the San Diego North Convention and Visitor’s Bureau 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.
2.
That the above recitations are true and correct.
That the Mayor is hereby authorized to execute the attached agreement, Exhibit 2,
between the City of Carlsbad and the San Diego North Convention and Visitor’s Bureau to
provide professional services related to the promotion of the City of Carlsbad.
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PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the
7th dayof October 2003, by the following vote to wit:
AYES: Council Members Lewis, Finnila, and Packard
NOES: Council Member Hall
ABSENT: Council Member Kulc
Mayor
ATTEST:
City Cler
-2- Page 2 of 2 of Resolution No. 2003-256
Exhibit 2
AB # 17,330
Resolution No.
2003-256 AGREEMENT FOR PROMOTION OF TOURISM AND GROUP SALES
SAN DIEGO NORTH CONVENTION AND VISITOR'S BUREAU
THIS AGREEMENT is made and entered into as of the I-@' day of , 2003, by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and The San Diego North Convention and Visitor's Bureau, a non-
profit corporation, hereinafter referred to as "SDNCVB".
BCtP4d
RECITALS
A.
B.
C.
D.
City requires the professional services of a contractor that is experienced
SDNCVB has the necessary experience in providing professional services
Selection of SDNCVB is expected to achieve the desired results in an
SDNCVB has submitted a proposal to City and has affirmed its willingness
in tourism and visitor promotion programs and services.
and advice related to the promotion of tourism in Carlsbad.
expedited fashion.
and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and SDNCVB agree as follows:
1. SCOPE OF WORK
City retains SDNCVB to perform, and SDNCVB 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, SDNCVB will exercise the reasonable professional care
and skill customarily exercised by reputable members of SDNCVB's profession
practicing in the Metropolitan Southern California Area, and will use reasonable
diligence and best judgment while exercising its professional skill and expertise.
TERM 3- - The term of this Agreement will be effective from October I, 2003 and through June 30,
2004.
4.
Time is of the essence for each and every provision of this Agreement.
TIME IS OF THE ESSENCE
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term
will be One Hundred Thousand dollars ($100,000) to be paid in eight (8) equal
installments of $1 1 ,I 11 .I 1 and one (I) payment of $1 1,111.12. No other compensation
for the Services will be allowed except for items covered by subsequent amendments to
this Agreement. The City reserves the right to withhold a ten percent (10%) retention
until City has accepted the work and/or Services specified in Exhibit "A".
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6. STATUS OF CONTRACTOR
SDNCVB will perform the Services in SDNCVB's own way as an independent contractor
and in pursuit of SDNCVB's independent calling, and-not as an employee of City.
SDNCVB will be under control of City only as to the result to be accomplished, but will
consult with City as necessary. The persons used by SDNCVB to provide services
under this Agreement will not be considered employees of City for any purposes.
The payment made to SDNCVB pursuant to the Agreement will be the full and complete
compensation to which SDNCVB is entitled. City will not make any federal or state tax
withholdings on behalf of SDNCVB or its agents, employees or subcontractors. City will
not be required to pay any workers' compensation insurance or unemployment
contributions on behalf of SDNCVB or its employees or subcontractors. SDNCVB
agrees to indemnify City within thirty (30) days for any tax, retirement contribution,
social security, overtime payment, unemployment payment or workers' compensation
payment which City may be required to make on behalf of SDNCVB or any agent,
employee, or subcontractor of SDNCVB for work done under this Agreement. At the
City's election, City may deduct the indemnification amount from any balance owing to
SDNCVB.
7. SUBCONTRACTING
SDNCVB will not subcontract any portion of the Services without prior written approval
of City. If SDNCVB subcontracts any of the Services, SDNCVB will be fully responsible
to City for the acts and omissions of SDNCVB's subcontractor and of the persons either
directly or indirectly employed by the subcontractor, as SDNCVB is for the acts and
omissions of persons directly employed by SDNCVB. Nothing contained in this
Agreement will create any contractual relationship between any subcontractor of
SDNCVB and City. SDNCVB will be responsible for payment of subcontractors.
SDNCVB will bind every subcontractor and every subcontractor of a subcontractor by
the terms of this Agreement applicable to SDNCVB's work unless specifically noted to
the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9.
SDNCVB agrees to indemnify and hold harmless the City and its officers, officials,
IN DE M N I F I CAT10 N
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 in whole or in part by any willful misconduct or negligent act or omission of the
SDNCVB, 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 City
incurs or makes to or on behalf of an injured employee under the City'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.
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The parties expressly agree that any payment, attorney's fee, costs or expense City
incurs or makes to or on behalf of an injured employee under the City'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
SDNCVB 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 SDNCVB or
SDNCVB'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-:VI.
IO. 1 Coverages and Limits. SDNCVB will maintain the types of coverages and minimum
limits indicated below, unless City Attorney or City Manager approves a lower amount.
These minimum amounts of coverage will not constitute any limitations or cap on
SDNCVB's indemnification obligations under this Agreement. City, its officers, agents
and employees make no representation that the limits of the insurance specified to be
carried by SDNCVB pursuant to this Agreement are adequate to protect SDNCVB. If
SDNCVB believes that any required insurance coverage is inadequate, SDNCVB will
obtain such additional insurance coverage, as SDNCVB deems adequate, at SDNCVB's
sole expense.
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 work under this Agreement or the general aggregate will be twice the
required per occurrence limit.
10.1.2 Automobile Liabilitv (if the use of an automobile is involved for
SDNCVB's work for City). $1,000,000 combined single-limit per accident for bodily injury
and property damage.
10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers'
Compensation limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if SDNCVB has no employees and
provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to
SDNCVB'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.
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10.2. Additional Provisions. SDNCVB will ensure that the policies of insurance required
under this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on General
Lia bi Ii ty.
10.2.2 SDNCVB 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 City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution
of this Agreement, SDNCVB will furnish certificates of insurance and endorsements to
City.
10.4 Failure to Maintain Coverage. If SDNCVB fails to maintain any of these insurance
coverages, then City will have the option to declare SDNCVB in breach, or may
purchase replacement insurance or pay the premiums that are due on existing policies
in order to maintain the required coverages. SDNCVB is responsible for any payments
made by City to obtain or maintain insurance and City may collect these payments from
SDNCVB or deduct the amount paid from any sums due SDNCVB under this
Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and
endorsements.
11. BUSINESS LICENSE
SDNCVB will obtain and maintain a City of Carlsbad Business License for the term of
the Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
SDNCVB will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. SDNCVB will allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of records and any other documents created pursuant to this
Agreement. SDNCVB 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 SDNCVB or its agents, employees, and subcontractors
pursuant to this Agreement is the property of City. In the event this Agreement is
terminated, all work product produced by SDNCVB or its agents, employees and
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subcontractors pursuant to this Agreement will be delivered at once to City. SDNCVB
will have the right to make one (1) copy of the work product for SDNCVB’s records.
14. COPYRIGHTS
SDNCVB agrees that all copyrights that arise from the services will be vested in City
and SDNCVB relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of City and on behalf of SDNCVB under this Agreement.
For City: For SDNCVB:
Name Cvnthia Haas Name h &&f&ln
Title Economic Dev Manager
Department Econ. Development Address A/. Ed (do &f.
Title f?f?$(M JCEO
PhoneNo. 7110 - Hs-*4/ City of Carlsbad 1 / 0
Address 1635 Faradav Ave
Carlsbad, CA 92008
Phone No.(760) 602-2732
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
City will evaluate SDNCVB’s duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City’s Conflict of Interest Code is required
of SDNCVB or any of SDNCVB’s employees, agents, or subcontractors. Should it be
determined that disclosure is required, SDNCVB or SDNCVB’s affected employees,
agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
SDNCVB, for SDNCVB and on behalf of SDNCVB’s agents, employees, subcontractors
and consultants warrants that by execution of this Agreement, that they have no
interest, present or contemplated, in the projects affected by this Agreement. SDNCVB
further warrants that neither SDNCVB, nor SDNCVB’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 SDNCVB will file
with the City an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
SDNCVB will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by SDNCVB, or in any way
affect the performance of the Services by SDNCVB. SDNCVB will at all times observe
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and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of SDNCVB's services with all applicable laws, ordinances and regulations.
SDNCVB 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
SDNCVB 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 SDNCVB or City 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 (1 0) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City
Manager. The City Manager will consider the facts and solutions recommended by each
party and may then opt to direct a solution to the problem. In such cases, the action of
the City Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
20. TERMINATION
In the event of the SDNCVB's failure to prosecute, deliver, or perform the Services, City
may terminate this Agreement for nonperformance by notifying SDNCVB by certified
mail of the termination. If City decides to abandon or indefinitely postpone the work or
services contemplated by this Agreement, City may terminate this Agreement upon
written notice to SDNCVB. Upon notification of termination, SDNCVB has five (5)
business days to deliver any documents owned by City and all work in progress to City
address contained in this Agreement. City will make a determination of fact based upon
the work product delivered to City and of the percentage of work that SDNCVB has
performed which is usable and of worth to City in having the Agreement completed.
Based upon that finding City 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 City, SDNCVB will
assemble the work product and put it in order for proper filing and closing and deliver it
to City. SDNCVB will be paid for work performed to the termination date; however, the
total will not exceed the lump sum fee payable under this Agreement. City will make the
final determination as to the portions of tasks completed and the compensation to be
made.
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21. COVENANTS AGAINST CONTINGENT FEES
SDNCVB warrants that SDNCVB has not employed or retained any company or person,
other than a bona fide employee working for SDNCVB, to solicit or secure this
Agreement, and that SDNCVB 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, City 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, SDNCVB agrees that any Agreement claim submitted to
City 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. SDNCVB
acknowledges that if a false claim is submitted to City, it may be considered fraud and
SDNCVB may be subject to criminal prosecution. SDNCVB acknowledges that
California Government Code sections 12650 et sea, 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 City seeks to recover penalties pursuant to the False Claims Act, it is
entitled to recover its litigation costs, including attorney's fees. SDNCVB acknowledges
that the filing of a false claim may subject SDNCVB to an administrative debarment
proceeding as the result of which SDNCVB may be prevented to act as a SDNCVB on
any public work or improvement for a period of up to five (5) years. SDNCVB
acknowledges debarment by another jurisdiction is grounds for City 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 f6r by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
SDNCVB 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 SDNCVB without the
prior consent of City, 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
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entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of SDNCVB each represent and warrant that they have the legal power, right and actual
authority to bind SDNCVB to the terms and conditions of this Agreement. r SDNCVB
*By: [f@
(sign here)
(print nameititle) ATTEST: f4
1’1 /GI/ &dl
If required by City, 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:
ROI!MI?Q R. BALL, City Attorney
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STATE OF CALIFORNIA 1 ) ss.
COUNTY OF JAd O"eJ0 )
On &hfibe~ 9 Jon3 , before me,&?ddRA 3. rrlOPPS ,a
Notary Public in and foisaid State, personally appeared &me q s. fhk Leu
personally known to me ( 1 whose name0 isla$ subsby
executed the same in his/@r/th&r authorized capacity($), and that by his@!r/th,&r signature^ on
the instrument the person($, or the entity upon behalf of which the personM acted, executed the
insfrument .
(This area for official notarial seal)
CALIFORNIA ALL=PURPOSE ACKNOWLEDGMENT
State of California 1
On c - /Q-OJ' , before me; 6:/ kf. /4VlJ+ /b&f&4(/ PA/- d? 1 r personally appeared fil%il &9 tnwJ Name and I 'of Officer (e g , "Jane Date
Name@) of Signer(s)
Place Notary Seal Above
F9ersonally known to me
0 proved to me on the basis of satisfactory
evidence
to be the person$whose narn*&&W
subscribed to the within instru ent and
acknowledged to me that he/she/they executed
the same in @er/their authorized
capacity(ies), and that by @/hedtAeL
signatureNon the instrument the personw, or
the entity upon behalf of which the person
acted, executed the instrument. F
y- /- Signature of Notary Public I
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
0 Individual
0 Corporate Officer - Title(s):
0 Partner - 0 Limited U General
U Attorney in Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing:
0 1999 Natonal Notaly Association - 9350 De Solo Ave.. PO Box 2402 * Chalswarth, CA 91313-2402 * w.nalionalnota~.ag Prod. No 5907 Reorder: Call Toll-Free 1-800-876.6827