HomeMy WebLinkAbout2006-06-15; Carlsbad Tourism Business Improvement District; 0606-8; Convention and Visitors Bureau AgreementsCITY OF CARLSBAD -AGENDA BILL
AB#
MTG.
DEPT.
0606-8
6-15-06
Admin
Services
Approve Agreements between the
CTBID and the Carlsbad Convention
and Visitors Bureau and the San Diego
North Convention and Visitors Bureau
DEPT.
CITY ATTY
RECOMMENDED ACTION:
Adopt Resolution No. 2006-5 approving an agreement between the CTBID and the Carlsbad Convention
and Visitors Bureau (CCVB) for services related to the support of tourism activities in the City of Carlsbad,
and providing staff support services to the CTBID Board
Adopt Resolution No. 2006-6 approving an agreement between the CTBID and the San Diego North
Convention and Visitors Bureau (SDNCVB) for services related to group sales in support of tourism
activities in the City of Carlsbad.
ITEM EXPLANATION:
In May 2006, the CTBID Board directed staff to distribute a request for proposal seeking qualified bidders
interested in providing a variety of tourism support services, as well as staffing functions, for the CTBID.
The deadline for submission of proposals was May 12, 2006. Although several indications of interest were
received, only two proposals were received by the deadline: one from the Carlsbad Convention and Visitors
Bureau (CCVB), and one from the San Diego North Convention and Visitors Bureau (SDNCVB).
In summary, CCVB has indicated an interest in providing brand management and general marketing
services to the CTBID, as well as operating the current Visitors Information Center located in the Santa Fe
Train Depot in downtown Carlsbad. CCVB has also offered to provide staff support services to the
CTBID.
SDNCVB has focused its proposal on providing group sales services to the CTBID, as well as expressing
an interest in providing staff support to the CTBID.
No proposals were received for the requested services in the corporate and leisure travel area.
A brief summary of the two proposals outlining the areas of interest and the business plans proposed by
each entity is shown in Exhibit 1.
An electronic copy of both proposals was provided to the board members, and to both of the interested
bidders, prior to this CTBID board meeting to facilitate a more detailed review than may be allowed during
the board meeting.
Under the terms of the Request for Proposal (RFP) interested parties were able to provide bids on all or part
of the services being requested. As the table below shows, both CCVB and SDNCVB chose to provide
bids on only a portion of the services, with only one area of overlap: the provision of staff support to the
CTBID Board.
Total of
Service CCVB SDNCVB Lowest Bids
Brand Management $ 450,750 - $ 450,750
Corporate and Leisure sales
Group Sales - $ 314,344 314,344
Visitors Information Center 272,190 - 272,190
Staff Support to CTBID 1 5,000 1_
Total $ 722,941 $ 319,344 $ 1,037,285
If the Board were to accept the proposals, as submitted, the total cost of the offered services would be
about $1.037 million. However, as the revenue projection below shows, the CTBID is expected to
receive revenue of about $870,000 in 2006-07, even if room occupancies reach an average level of 66%
during the year. This is about $170,000 short of the amount necessary to fully fund the proposed
services.
CTBID Revenue Projection - 2006-07
Number of hotel rooms available 3,600
Assumed Average Occupancy Rate 66%
Annual number of room nights available 867,240
CTBID assessment per room night $ 1.00
Total estimated annual revenue $ 867,240
Although the Board may wish to enter into agreements with both agencies, some modification in the
level of service provided would be necessary prior to action by the Board.
In the case of the CCVB proposal, there are a number of specific programs that may be delayed until
sufficient funds become available. In the case of the SDNCVB proposal, the level of service provided to
Carlsbad could be reduced during the first year of the agreement.
As an alternative, the Board may choose to enter into agreements with "not to exceed" limits on the cost
of the services to be provided. The Board may then work with its staff and contractors during the year to
assure that the programs that are most important to the success of the marketing plan are delivered with
available funds.
Staff is recommending this "not to exceed" option. The agreements attached to this agenda bill are
drafted to allow the CTBID Board to accept the proposals of both agencies, and to insert a not to exceed
amount in each. The total amount for both contracts should not exceed $867,240. Contract amendments
(in writing) may be made during the year should additional revenues become available.
The Board may consider using the anticipated carry-over from the 2006 year, approximately $83,984, to
fund one-time programs during 2006-07. However, carry-over funds should not be used to fund on-
going expenditures in future years. Exhibit 2 provides an overview of actual and estimated revenues for
the six month period January through June 2006, showing the estimated $83,984 year end fund balance.
FISCAL IMPACT:
The CTBID began operation on January 1, 2006. In the period January through April the CTBID has
collected $234,970 in assessments. This reflects an average occupancy rate of about 54.6% for the 3,600
hotel rooms currently available in the City. During the late spring and summer months hotel operators have
indicated that occupancy rates typically increase to rates above 60%. Projections for May and June reflect
occupancy rates of 60% and 65%, respectively.
Current forecasts for the period ended June 30, 2006 show that the CTBID should have an unobligated fund
balance of about $83,984. These funds may be used by the CTBID to fund one-time programs or non-
recurring expenses.
Projected revenue for 2006-07, based on an average occupancy rate of 66%, show that the CTBID will
have a total of about $867,000 to fund contracts for services. If occupancy rates differ significantly from
this projection, funding for CTBID programs will be affected.
ENVIRONMENTAL IMPACT:
This action does not approve any projects that will have a physical adverse affect on the environment so it
falls within the general rule under CEQA that this is not a project (CEQA Regulation 153789(b)).
EXHIBITS:
1. Summary of Proposals
2. CTBID Revenue Projections 2005-06
3. Agreement-CCVB
4. Agreement-SDNCVB
5. Resolution No. 2006-5 approving an agreement between the CTBID and the Carlsbad
Convention and Visitors Bureau (CCVB)
6. Resolution No. 2006-6 approving an agreement between the CTBID and the San Diego North
Convention and Visitors Bureau (SDNCVB)
7. Proposal from CCVB (previously distributed to the Board members)
8. Proposal from SDNCVB (previously distributed to the Board members)
DEPARTMENT CONTACT: Jim Elliott, 760-602-2409. jelli@ci.carlsbad.ca.us
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
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Exhibit 2
CTBID Revenue Projection - 2005-06
Number of hotel rooms available =
Month Days
Actual Revenue
January 31
February 28
March 31
April 30
Total Through April
Estimated Revenue
May 31
June 30
Total Projected Revenue through June
Total 2006 Revenue
Payments Through June 30
CCVB
SDNCVB
Repayment of City Loan
Total Payments
3,583
Room Nights
Available
111,073
100,324
111,073
107,490
429,960
111,073
107,490
30
Monthly Payment
$34,000
8,333
5,833
CTBID
Revenue
$56,374
56,196
62,495
59,905
$234,970
$66,644
69,869
$136,512
$371,482
$204,000
49,998
33,500
$287,498
Occupancy
Rate
50.8%
56.0%
56.3%
55.7%
54.6%
60.0%
65.0%
Projected Ending Balance - June 30, 2006 $83,984
EXHIBIT 3
AGREEMENT FOR TOURISM PROMOTION AND MARKETING SERVICES
Carlsbad Convention and Visitors Bureau
THIS AGREEMENT is made and entered into as of the day of
, 2006, by and between the CARLSBAD TOURISM BUSINESS
IMPROVEMENT DISTRICT, a Business Improvement District as defined in section
36500 of the California Streets and Highways Code, ("CTBID"), and CARLSBAD
CONVENTION AND VISITORS BUREAU (CCVB) ("Contractor").
RECITALS
A. CTBID requires the professional services of a contractor that is
experienced in tourism promotion and marketing services.
B. Contractor has the necessary experience in providing professional
services and advice related to tourism promotion and marketing.
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. From time to time
CTBID may amend the scope of work and related compensation. Such amendments
shall be in writing and approved by CTBID.
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 one year from the date first
above written. The CTBID Advisory Board may amend the Agreement to extend it for
two (2) additional one (1) year periods or parts thereof in an amount not to exceed
dollars ($ ) per Agreement
year. Extensions will be based upon a satisfactory review of Contractor's performance,
City Attorney Approved Version #04.01.02
CTBID needs, and appropriation of funds. The parties will prepare a written amendment
indicating the effective date and length of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term
will be an amount collected under the special assessment of $1/room night in an
amount estimated to be dollars ($ ). Contractor recognizes
that this is a good faith estimate but it is not a certain amount and will not be paid for
work performed that exceeds the amount collected. The parties will closely monitor the
collected funds so that in the event of a projected deficit contractor will be given
reasonable notice that further work shall not be performed until there are sufficient
collected funds to cover the expenses of this contract. No other compensation for the
Services will be allowed except for items covered by subsequent amendments to this
Agreement.
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 Advisory Board only as to the result to
be accomplished, but will consult with CTBID Advisory Board 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 Advisory Board'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 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
City Attorney Approved Version #04.01.02
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
Advisory Board.
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 and the City of Carlsbad and all of its agents 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 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-:V".
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below,
unless CTBID Advisory Board or General Counsel 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
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
City Attorney Approved Version #04.01.02
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 and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if Contractor has no employees and
provides, to CTBID's satisfaction, a declaration stating this.
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 and the City of Carlsbad will be named as an additional
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 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 from Contractor or deduct the amount paid from any sums due Contractor
under this Agreement.
10.5 Submission of Insurance Policies. The CTBID reserves the right to require, at
anytime, complete and certified copies of any or all required insurance policies and
endorsements.
City Attorney Approved Version #04.01.02
cX, 3
11. BUSINESS LICENSE
Contractor 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
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.
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: For Contractor:
Name April Shute Name
Title Chairperson Title
Carlsbad Tourism Business Address
Improvement District
Address 1635 Faraday Avenue Phone No.
Carlsbad. CA 92008
Phone No. 760-602-2409
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.
City Attorney Approved Version #04.01.02
16. CONFLICT OF INTEREST
Disclosure under the Political Reform Act and CTBID's Conflict of Interest Code is
required of Contractor or any of Contractor's employees, agents, or subcontractors.
Contractor or Contractor's affected employees, agents, or subcontractors will complete
and file with the City Clerk those schedules specified by CTBID and contained in the
Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor'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.
Contractor further warrants 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 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 City
Council. The City Council 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 Council will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
City Attorney Approved Version #04.01.02
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 Advisory Board
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
Advisory Board 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 Advisory Board 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
City Attorney Approved Version #04.01.02
on 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.
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.
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.
CONTRACTOR
(e-mail address)
*By:
(sign here)
(print name/title)
(e-mail address)
**By:
(sign here)
(print name/title)
City Attorney Approved Version #04.01.02
8
CARLSBAD TOURISM BUSINESS ATTEST:
IMPROVEMENT DISTRICT, a
Business Improvement District as
defined in section 36500 of the
California Streets and Highways
Code LORRAINE M. WOOD
Pro Tem Clerk of the
By; Carlsbad Tourism Business
Chairperson Improvement District
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. **Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President 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:
RONAtD R. BALL, City Attorney
City Attorney
City Attorney Approved Version #04.01.02
EXHIBIT "A"
SCOPE OF SERVICES
Proposal from Carlsbad Convention and Visitors Bureau dated May 12, 2006.
City Attorney Approved Version #04.01.02
10
EXHIBIT 4
AGREEMENT FOR TOURISM PROMOTION AND MARKETING SERVICES
San Diego North Convention and Visitors Bureau
THIS AGREEMENT is made and entered into as of the day of
2006, by and between the CARLSBAD TOURISM BUSINESS
IMPROVEMENT DISTRICT, a Business Improvement District as defined in section
36500 of the California Streets and Highways Code, ("CTBID"), and SAN DIEGO
NORTH CONVENTION AND VISITORS BUREAU (SDNCVB) ("Contractor").
RECITALS
A. CTBID requires the professional services of a contractor that is
experienced in tourism promotion and marketing services.
B. Contractor has the necessary experience in providing professional
services and advice related to tourism promotion and marketing.
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. From time to time
CTBID may amend the scope of work and related compensation. Such amendments
shall be in writing and approved by CTBID.
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 one year from the date first
above written. The CTBID Advisory Board may amend the Agreement to extend it for
two (2) additional one (1) year periods or parts thereof in an amount not to exceed
dollars ($ ) per Agreement
year. Extensions will be based upon a satisfactory review of Contractor's performance,
City Attorney Approved Version #04.01.021 30
CTBID needs, and appropriation of funds. The parties will prepare a written amendment
indicating the effective date and length of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term
will be an amount collected under the special assessment of $1/room night in an
amount estimated to be dollars ($ ). Contractor recognizes
that this is a good faith estimate but it is not a certain amount and will not be paid for
work performed that exceeds the amount collected. The parties will closely monitor the
collected funds so that in the event of a projected deficit contractor will be given
reasonable notice that further work shall not be performed until there are sufficient
collected funds to cover the expenses of this contract. No other compensation for the
Services will be allowed except for items covered by subsequent amendments to this
Agreement.
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 Advisory Board only as to the result to
be accomplished, but will consult with CTBID Advisory Board 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 Advisory Board'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 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
City Attorney Approved Version #04.01.02
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
Advisory Board.
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 and the City of Carlsbad and all of its agents 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 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-:V".
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below,
unless CTBID Advisory Board or General Counsel 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
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
City Attorney Approved Version #04.01.02
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 and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if Contractor has no employees and
provides, to CTBID's satisfaction, a declaration stating this.
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 and the City of Carlsbad will be named as an additional
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 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 from Contractor or deduct the amount paid from any sums due Contractor
under this Agreement.
10.5 Submission of Insurance Policies. The CTBID reserves the right to require, at
anytime, complete and certified copies of any or all required insurance policies and
endorsements.
City Attorney Approved Version #04.01.02
11. BUSINESS LICENSE
Contractor 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
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.
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: For Contractor:
Name April Shute Name
Title Chairperson Title
Carlsbad Tourism Business Address
Improvement District
Address 1635 Faraday Avenue Phone No.
Carlsbad. CA 92008
Phone No. 760-602-2409
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.
City Attorney Approved Version #04.01.02
16. CONFLICT OF INTEREST
Disclosure under the Political Reform Act and CTBID's Conflict of Interest Code is
required of Contractor or any of Contractor's employees, agents, or subcontractors.
Contractor or Contractor's affected employees, agents, or subcontractors will complete
and file with the City Clerk those schedules specified by CTBID and contained in the
Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor'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.
Contractor further warrants 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 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 City
Council. The City Council 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 Council will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
City Attorney Approved Version #04.01.02
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 Advisory Board
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
Advisory Board 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 Advisory Board 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
City Attorney Approved Version #04.01.02
on 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.
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.
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.
CONTRACTOR
(e-mail address)
'By:
(sign here)
(print name/title)
(e-mail address)
"By:
(sign here)
(print name/title)
City Attorney Approved Version #04.01.028
CARLSBAD TOURISM BUSINESS ATTEST:
IMPROVEMENT DISTRICT, a
Business Improvement District as
defined in section 36500 of the
California Streets and Highways
Code LORRAINE M. WOOD
Pro Tem Clerk of the
By; Carlsbad Tourism Business
Chairperson Improvement District
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. **Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President 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:
I BALL, City Attorney
City Attorney
City Attorney Approved Version #04.01.02
EXHIBIT "A"
SCOPE OF SERVICES
Proposal from San Diego North Convention and Visitors Bureau dated May 9,
2006.
City Attorney Approved Version #04.01.02
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EXHIBIT 5
RESOLUTION NO. 2006-5
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE
CARLSBAD TOURISM BUSINESS IMPROVEMENT DISTRICT
APPROVING AN AGREEMENT BETWEEN THE CTBIDAND
THE CARLSBAD CONVENTION AND VISITORS BUREAU
(CCVB) FOR SERVICES RELATED TO THE SUPPORT OF
TOURISM ACTIVITIES IN THE CITY OF CARJiSBAD, AND
PROVIDING STAFF SUPPORT SERVICES T0THE CTBID
BOARD
WHEREAS, on November 15, 2005 the City Council of the City of Carlsbad adopted
Ordinance No. NS-778 formjilg the Carlsbad Tourymi Business Improvement District, and
WHEREAS, the yCTBIp is charged wjjn carrying out activities, programs and projects
that support and promote tourism within th/City of Carlsbad, and
WHEREAS, the Bfcajd of Directors of the CTBID has asked for proposals from
organizations with the\ability to provide services that will further the goals of the CTBID in
promoting toiirism wijhin the C jjy of Carlsbad, and
IEREAS, a request for proposal was duly circulated, advertised and distributed
seeking proposals from interested parties, and
&AS, proposals were to be submitted to the Administrative Services Director of
the City of Carlsba/on or before May 12, 2006, and
WHERtfAS, the Carlsbad Convention and Visitors Bureau (CCVB) submitted a proposal
for services Within the required period, and
[EREAS, after reviewing the proposal, business plan and qualifications of the CCVB
the CTBID Board of Directors has determined that the CCVB it is in the best interest of the
CTBlD to enter into an agreement with CCVB for services related to developing the brand and
id management for the City of Carlsbad, related marketing programs, operation of the
Carlsbad Visitors Information Center, and providing staff support to the CTBID Board of
Directors,
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1 NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Carlsbad
2 Tourism Business Improvement District, as follows:
3
1. That the above recitations are true and correct.
2. That the Chairperson is hereby authorized to sign the attached agreement between the
5 CTBID and CCVB, for the delivery of services related to developing the brand and brand
management for the City of Carlsbad, related marketing programs, operation of the
6 Carlsbad Visitors Information Center, and providing staff support to the CTBID Board of
Directors, with the direct oversight of the CTBID Board of Directors.
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1 PASSED, APPROVED, AND ADOPTED at a regular meeting of the Board of
Directors of the Carlsbad Tourism Business Improvement District on the day of.
2 2006, by the following vote to wit:
3 AYES:
4 NOES:
5 ABSENT:
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7 APRIL SHUTE
8 Chairperson
ATTEST:
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LORRAINE WOOD
Pro Tern Clerk of the
12 Carlsbad Tourism Business Improvement District
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EXHIBIT 6
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RESOLUTION NO. 2006-6
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE
CARLSBAD TOURISM BUSINESS IMPROVEMENT DISTRICT
APPROVING AN AGREEMENT BETWEEN THE CTBID AND
THE SAN DIEGO NORTH CONVENTION AND VISITORS
BUREAU (SDNCVB) FOR SERVICES RELATED TO Tl
SUPPORT OF TOURISM ACTIVITIES IN THE CITY/OF
CARLSBAD
WHEREAS, on November 15, 2005 the City Council of theXJity of Carlsbad adopted
Ordinance No. NS-778 forming the Carlsbad Tourism Businesslmprovement District, and
WHEREAS, the CTBID is charged with carrying out activities, programs and projects
that support and promote tourism within the City of Carload, and
WHEREAS, the Board of Directors of the CTBID has asked for proposals from
organizations with the^bility to provide services that will further the goals of the CTBID in
promoting tourispi within the City of Carlsbad/and
WHERfcAS^^reques/for proposa/was duly circulated, advertised and distributed
V. ^^" /seeking proposalss&pm interested parties, and^r~x, /WHEREAS, proposals wero'to be submitted to the Administrative Services Director of
the Cit of C^rlstaa on or before/May 12, 2006, and
EREAS, the SanlJiego North Convention and Visitors Bureau (SDNCVB)
submitt&d>a_jispposal for services within the required period, and
WHEREAS, after reviewing the proposal, business plan and qualifications of the
SDNCVB the CTBro Board of Directors has determined that it is in the best interest of the
CTBID to enter into an agreement with SDNCVB for services related to group sales,
NOW, ;rHEREFORE, 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 Chairperson is hereby authorized sign the attached agreement between the
CTBID and SDNCVB, for the delivery of services related to group sales, with the direct
oversight of the CTBID Board of Directors. U J
1 PASSED, APPROVED, AND ADOPTED at a regular meeting of the Board of
2 Directors of the Carlsbad Tourism Business Improvement District on the day of.
3 2006, by the following vote to wit:
4 AYES:
5 NOES:
6 ABSENT:
7
8 APRIL SHUTE
Chairperson
ATTEST:
10 "
11
LORRAINE WOOD
12 Pro Tern Clerk of the
, - Carlsbad Tourism Business Improvement District
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