Loading...
HomeMy WebLinkAbout2015-03-01 Big Red CITY OF ATASCADERO n CAM CONTRACT FOR Big Red Marketing Administration Services for the City of Atascadero Tourism Business Improvement District (ATBID) Advisory Board . r 1915 1979 � CAD CONSULTANT SERVICES AGREEMENT FOR THE CITY OF ATASCADERO Big Red Marketing THIS CONTRACT is made and entered into between City of Atascadero, a Municipal Corporation ("City") and Big Red Marketing ("Consultant'). City and Consultant agree as follows: 1. SCOPE AND STANDARDS: A. CONTRACT. Consultant shall do all work, attend all meetings, produce all reports and carry out all activities necessary to complete the services described in the SCOPE OF WORK AND STANDARDS FOR SERVICES, attached hereto and incorporated herein by this reference as Exhibit A, as requested by the City. This Contract and its exhibits shall be known as the "Contract Documents." Terms set forth in any Contract Document shall be deemed to be incorporated in all Contract Documents as if set forth in full therein. 2. EMPLOYMENT STATUS OF PERSONNEL: A. INDEPENDENT CONTRACTOR; EMPLOYEES OF CONSULTANT. 'Consultant eaters into this Contract as, and shall at all times remain as to the City, an independent contractor and not as an employee of the City. Nothing in this Contract shall be construed to be inconsistent with this relationship or status. Any persons employed by Consultant for the performance of services pursuant to this Contract shall remain employees of Consultant, shall at all times be under the direction and control of Consultant, and shall not be considered employees of City. All persons employed by Consultant to perform services pursuant to this Contract shall be entitled solely to the right and privileges afforded to Consultant employees and shall not be entitled, as a result of providing services hereunder, to any additional rights or privileges that may be afforded to City employees. 1 City of Atascadero ABi Red - Diefenderfer - "' B. INDEPENDENT INVESTIGATION. The Consultant agrees and hereby represents it has satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Contract is based on such independent investigation and research. C. -COMPLIANCE WITH EMPLOYMENT LAWS. The Consultant shall keep itself fully informed of, shall observe and comply with, and shall cause any and all persons, firms or corporations employed by it or under its control to observe and comply with, applicable federal, state, county and municipal laws, ordinances, regulations, orders and decrees which in any manner affect those engaged or employed on the work described by this Contract or the materials used or which in any way affect the conduct of the work. D. UNLAWFUL DISCRIMINATION PROHIBITED. Consultant shall not engage in unlawful employment discrimination: Such unlawful employment discrimination includes, but is not limited to, employment discrimination based upon a person's race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, gender, citizenship or sexual orientation. 3. TIME OF PERFORMANCE: The services of Consultant are to commence upon execution of this Contract by City, and shall be undertaken and completed in a prompt and timely manner, in accordance with the Scope of Work referenced in Exhibit A. Except as provided in Sections 6 and 19 below, this Contract shall terminate no later than March 1, 2016 unless extended by the mutual agreement of both parties. 4. COMPENSATION_ A. TERMS. Compensation to the Consultant shall be as set forth in Exhibit B attached hereto and made a part hereof. B. NO PAY FOR ADDITIONAL SERVICES WITHOUT WRITING. Consultant shall not be compensated for any services rendered in connection with its performance of this Contract, which are in addition to those set forth herein or listed in Exhibit A, unless such additional services are authorized in advance and in writing by the City Manager or the City Manager's designee (hereinafter "City Manager" shall include the City Manager's designee). Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by City and Consultant at the time City's express written authorization signed by the City Manager is given to Consultant for the performance of said services. � r 2 City of Atascadero Big Red - Diefenderfer ,�„q, ' 5. SUPERVISION, LABOR AGREEMENTS AND PERSONNEL: A. CONSULTANT SUPERVISES PERSONNEL. The Consultant shall have the responsibility for supervising the services provided under this Contract, hiring of personnel, establishing standards of performance, assignment of personnel, determining and affecting discipline, determining required training, maintaining personnel'files, and other matters relating to the performance of services and control of personnel. The City Manager. may use any reasonable means to monitor performance and the Consultant shall comply with the City Manager's request to monitor performance. B. PERFORMANCE NOT SUBJECT TO EMPLOYMENT AGREEMENTS_ The City acknowledges that the, Consultant may be obligated to comply with bargaining agreements and/or other agreements with employees and that the Consultant is legally obligated to comply. with these Contracts. It is expressly the intent of the parties and it is agreed by the parties that the Consultant's performance shall not in any manner be subject to any bargaining agreement(s) or any other agreement(s) the Consultant may have'covering and/or with is employees. C. APPROVAL OF STAFF MEMBERS. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant's staff assigned to perform the services required under,this-contract. Consultant shall notify City of any changes in Consultant's staff to { be assigned to perform.,the services required under this Contract and shall obtain the approval of the City Manager of a Iist of all proposed staff members'who are to be assigned to perform services under this Contract prior to any such performance: b. TERMINATION: A. 30 DAYS NOTICE. The City, upon thirty (30) days written notice, may terminate this Contract, without cause, at any time. In the event of such termination, Consultant shall be compensated for non-disputed fees under the terms of this Contract up to 'the date of termination. B. OBLIGATIONS SURVIVE TERMINATION. ', Notwithstanding 'any termination of this Contract, Consultant shall not be relieved of liability to the City for damages'sustained by the City by virtueof any breach of this Contract by Consultant, and the City 'may withhold any payments due`to Consultant until such time as the exact amount of damages; if any, due the City from 'Consultant is determined. All of the indemnification, defense and hold harmless obligations in this Contract shall survive termination. 3 City of Atascadero Big Red - Diefenderfer 7. CHANGES: The City or Consultant may, from time to time, request changes in the scope of the services of Consultant to be performed hereunder. Such changes, including any increase or decrease in the amount of Consultant's compensation and/or changes in the sched ule must be authorized in advance by both Parties in writing. Mutually agreed changes shall be incorporated in written amendments to this Contract. Any increase in the amount of Consultant's compensation and/or changes in Exhibit A and or Exhibit B must be authorized in advance by the City Manager. 8. PROPERTY OF CITY: A. MATERIALS PREPARED EXCLUSIVE PROPERTY OF CITY. It is mutually agreed that all materials prepared by the Consultant under this Contract are upon creation and shall be at all times the exclusive property of the City, and the Consultant shall have no property right therein whatsoever. City agrees that Consultant shall bear no responsibility for any reuse of the materials prepared by.the Consultant if used for purposes other than those expressly set forth in the Intended Use of Consultant's Products and Materials section of this Contract. Consultant shall not disseminate any information or reports gathered or created pursuant to this.Contract without the prior written approval of City including without limitation information or reports required by.government agencies to enable Consultant to perform its duties under this Contract and as may be required under the California Public Records Act excepting therefrom as may be provided .by court order. Consultant will be allowed to retain copies of all deliverables. B. CONSULTANT TO DELIVER CITY PROPERTY. Immediately upon termination, or upon the request by the City, the City shall be entitled to, and the Consultant shall deliver to the City, all data, drawings, specifications, reports, estimates, summaries and other such materials and property .of the City as may have been prepared or accumulated to date by the Consultant in performing this Contract. Consultant will be allowed to retain copies of all deliverables to the City. 9. CONFLICTS OF INTEREST.- A. NTEREST:A. CONSULTANT covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Contract. Consultant further covenants that in the performance of this Contract, Consultant shall take reasonable care to ensure that no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Contract. Consultant agrees to include language similar to this Section 9(A) in all contracts with subcontractors and agents for the work contemplated herein. 4 City of Atascadero Red - Diefenderfer Big R i - lo. CONFIDENTIAL INFORMATION: A. ALL INFORMATION KEPT IN CONFIDENCE. All materials prepared or assembled by Consultant pursuant to performance of this Contract are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of the City, except by cour order: B. REIMBURSEMENT FOR UNAUTHORIZED RELEASE. If Consultant or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, the City has the right to reimbursement and indemnity from party releasing such information for any damages caused by the releasing party's, including the non-releasing party's attorney's fees and disbursements, including without limitation expert's fees and disbursements. C. COOPERATION. City and Consultant,shall promptly notify the other party should Consultant or City, its officers; employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena 'from any party regarding this=Contract and the work performed thereunder or with respect to any project or property located within the City. City- and Consultant each retains the right, but has no obligation, to represent the other party and/or be present at any deposition, hearing or similar proceeding. Consultant and Cityagree to cooperate fully with the 'other.party and to provide the other party with the opportunity to review any.response to discovery requests provided by Consultant or City. However, City and Consultant's right to review any such response does not imply or mean the right by the other party to control, direct, or rewrite said response. 11. PROVISION OF LABOR, EQUIPMENT AND-SUPPLIES: A. -CONSULTANT PROPERTY. Consultant -shall furnish all necessary labor, supervision, equipment,_ communications facilities, and supplies necessary to perform the services required by this Contract. City acknowledges that -ail equipment and other-tangible assets used by Consultant in providing these services are the property of Consultant and shall remain the property of Consultant upon termination of this Contract. B. SPECIAL SUPPLIES. City shall be responsible for supplying any special supplies, stationary, notices, forms or similar items'that it requires to be issued'with a City logo. All such items shall be approved by the City Manager and shall be provided at City's sole cost and expense. r 5 City of Atascadero ` s�3 ` Big Red - Diefenderfer 12. COMPLIANCE WITH LAW.- A. AW;A. COMPLIANCE REQUIRED. Consultant shall keep itself informed of applicable local, state, and federal laws and regulations which may affect those employed by it or in any way affect the performance of its services pursuant to this Contract. Consultant shall observe and comply with all applicable laws, ordinances, regulations and ,codes of federal, state and local governments, and shall commit. no trespass on any public or private property in performing any of the work authorized by this Contract. Consultant shall at all times hold a valid contractor's license if performing any function or activity for which a license is required pursuant to Chapter 9 (commencing with section 7000) of Division 3 of the California Business and Professions Code, and Consultant shall provide a copy of the license(s) upon the request of the City. The City, its officials, officers, elected officials, appointed officials and employees shall not be liable at law or in equity as a result of any failure-of consultant-to cam ply with this section. B. PREVAILING WAGES. In the event it is determined that the Consultant is required to pay prevailing wages for the work performed under this Agreement, the Consultant shall pay all penalties and wages as required by applicable law. 13. SUBCONTRACTING: None of the services covered by this Contract shall be subcontracted without the prior written consent of the City Manager. Consultant shall be as fully responsible to the City for the negligent acts and omissions of its contractors and subcontractors, and of persons either directly or indirectly employed by them, as it is for the negligent acts and omissions of persons directly employed by Consultant. 14. ASSIGNABILITY: Consultant shall not assign or transfer any interest in this Contract whether�by assignment or notation. However, claims for money due or to-become due Consultant from the City under this Contract may be assigned to a financial institution, but.only with prior written consent of the City Manager. Notice of any assignment or transfer Whether voluntary or involuntary shall be furnished promptly to the City. The rights and benefits under this agreement are for the sole and exclusive benefit of the City and this Contract shall not be construed that any third party has an interest in the Contract. 15. LIABILITY OF CONSULTANT: Consultant shall be responsible for performing the work under this Contract in a manner which is consistent with the generally accepted standards of Consultant's profession and shall be liable for its own negligence and the negligent acts of its employees, agents, contractors and subcontractors. The City shall have no right of control over the manner in which the work is to be done but only as to its outcome, and shall not be charged with the responsibility of preventing risk to Consultant or its employees, agents, contractors or subcontractors. 6 City of Atascadero `- Big Red -- Diefenderfer 3J, 16. INDEMNIFICATION: A. INDEMNIFICATION FOR PROFESSIONAL LIABILITY. When the law establishes a professional-standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant 'shall indemnify, protect; defend and hold harmless City and any and all of its officials, employees and agents ("Indemnified Parties") from- and against any and all losses, liabilities, damages, costs and expenses, including attorneys fees and costs to the extent same are caused in whole or in part by any` negligence or wrongful act, error or omission of Consultant, willful misconduct, or recklessness of its officers, agents, employees or subconsultants'(or any entity or individual that Consultant shall bear the legal liability thereof) in the perform;jnce of professional services under thi&agreement. B. INDEMNIFICATION-FOR OTHER THAN PROFESSIONAL LIABILITY.. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual:or entity for which consultant is legally liable, including but not limited to officers, agents''employees or subconsultants of Consultant. C. GENERAL INDEMNIFICATION PROVISIONS. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section for each and every subconsultant or any other person or entity involved by, for,` with or on behalf of Consultant in the performance of this agreement. In the event consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional. obligations on City and will in no way act as a waiver of.any rights.hereunder. This,obligation to indemnify and defend City as set forth here is binding on the successor,assigns or heirs of Consultant and shall survive the termination of this agreement or this section. 17. INSURANCE: Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit C attached to and part of this agreement. 18. RECORDS: Consultant shall maintain complete and accurate records with respect to labor costs, f 1 material expenses, parcels abated or serviced and other such information required by City that relates to the performance of services under this Contract. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and 7 City of Atascadero �`�' Big Red - Diefenderfer = . -P i shall be clearly identified and readily accessible and in.a form acceptable to the City, which the City may specify and change from time to time. Consultant shall provide free access to the representatives of City or its designees, at reasonable times, to such books and records, shall give City the right to examine and audit said books and records, shall permit C ity to make transcripts therefrom as necessary, and shall allow inspection of all work, data, documents, proceedings, and activities related to this Contract. Such records; together with supporting documents, shall be maintained for a period of three (3) years.after receipt of final payment. 19. MISCELLANEOUS PROVISIONS: A. ASSIGNMENT OR SUBSTITUTION. City has an NONDISCRIMINATION / NONPREFERENTIAL TREATMENT STATEMENT In performing this Contract, the parties shall not discriminate or grant preferential-treatment on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, or national origin, and shall comply to the fullest extent allowed by law, with all applicable local, state, and federal laws relating to nondiscrimination. B. UNAUTHORIZED ALIENS. Consultant.hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act (8 U.S.C.A. & 1101 et seg.), as amended; and in connection therewith, shall not employ unauthorized aliens as defined -therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this contract, and should the Federal Government impose sanctions against the City for such use of unauthorized aliens, Consultant hereby agrees to, and shall, reimburse City for the cost of all such sanctions imposed, together with any and all costs, including attorneys' fees, incurred by the City in connection therewith. C. GOVERNING LAW. The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Contract and also govern the interpretation of this Contract. Any litigation concerning this Contract shall take place in the San Luis Obispo Superior Court, federal diversity jurisdiction being expressly waived. D. City has an interest in the qualifications of and capability of the persons and entities that will fulfill the duties and obligations imposed upon Consultant by this Contract. In recognition of that interest, neither any complete nor partial assignment of this Contract, may be made by Consultant nor changed, substituted for, deleted, or added to without the prior written consent of City which consent shall not be unreasonably withheld. Any attempted assignment or substitution shall be ineffective, null, and void, and constitute a material breach of this Contract entitling City to any and all remedies at law or in equity, including summary termination of this Contract. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Contract. E. ENTIRE CONTRACT. This Contract constitutes the entire Contract and understanding between the parties relative to the services specified herein and there are no understandings, agreements, conditions, representations, warranties or promises, with respect to this Contract, except those contained in or referred to in this Contract and this Contract 8 City of-Atascadero Big Red - Diefenderfer supersedes all prior understandings, agreements, courses of conduct, prior dealings among the parties and documentation of any kind without limitation. F. AMENDMENTS. This Contract may be modified or amended, or any of its provisions waived, only by a subsequent written agreement executed by each of the parties. The parties agree that this requirement for written modifications cannot be waived and any attempted waiver shall be void. G. CONSTRUCTION AND INTERPRETATION. Consultant and City ' agree and acknowledge that the provisions of this Contract have been arrived at through negotiation and that each party has had a full and fair opportunity revise the provisions of this Contract and to have such provisions reviewed by legal counsel. Therefore, any ambiguities in construing or -interpreting this Contract -shall not be resolved against the drafting party. The titles-of-the various sections are merely informational and shall not be construed as a substantive portion of this Contract. H. WAIVER. The waiver at any time by any party of any of its rights with respect to a default or other matter arising in connection with this Contract shall not be deemed a wavier With respect to any subsequent default or other matter. 1. SEVERABILITY. The invalidity, illegality or unenforceability, of any provision of this Contract shall not render the other provisions invalid, illegal or unenforceable. 9 City of Atascadero ' Big Red - Diefenderfer J. NOTICES_ All invoices, payments, notices, demands, requests, comments, or approvals that are required to be given by one party to the other under this Contract shall be in writing and shall be deemed to have been given if delivered personally or enclosed in a properly addressed envelope and deposited in a United States Post Office for delivery by registered or certified mail addressed to the parties (deemed to have been received three (3) business days after deposit in the U.S. Mail) at the following addresses: City: City of Atascadero City Manager 6500 Palma Avenue Atascadero, CA 93422 Consultant Big Red Marketing— Amanda Diefenderfer P.O. Box 14907 San Luis Obispo, CA 93406 adief@bigredmktg.com Each party may change the address at which it gives notice by giving ten (10) days t advance, written notice to the other party. K_ AUTHORITY TO EXECUTE. The person or persons executing this Contract on behalf of Consultant warrant and represent that they have the authority to execute this Contract on behalf of their agency and further warrant and represent that they have the authority to bind Consultant to the performance of its obligations hereunder. Effective March 1, 2015 by the parties as follows. Big Red-Marketing By: Amanda Diefenderfer, Proprietress City of Atascadero By. aachelle aRickard, City Manager 10 CERTIFICATE OF COMPLIANCE WITH LABOR CODE § 3700 1 am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and i have complied or will comply with such provisions before commencing the performance of the work of this contract. (Cal. Labor C. §§1860, 1861.) CONSULTANT Amanda Diefenderfer, Proprietress A-1 Exhibit A SCOPE OF WORK The overall role of this position will be to work in conjunction with the ATBID. City of Atascadero, tourism industry partners and other stakeholders and organizations with a primary focus to include: • Assist in maintaining roles and responsibilities in ATBID communication chart (City and all other entities) • Act as administrator to support ATBID and its members in all capacities to execute the plans and attain goals, including and not limited to financial growth and laying the groundwork for future success • Act as Destination Manager (DM) to guide the organization to develop and! implement strategies to increase occupancy consistent with the annual goals and objectives established by the ATBID and its annual marketing plans • Assist in creating ATBID policies and procedures • Administrative: o Communicate effectively with and between ATBID, City Council, City and County liaison and staff, ATBID members, community leaders, and related tourism partners to maintain strong internal and external relationships o Provide clear and concise recommendations through ongoing communication regarding direction, opportunities, challenges, and progress to the ATBID o Assist the Board in the selection, retention and management of professional services and vendors o Take a visionary lead role in all activities and ensure ATBID actions are consistent with strategic goals and direction o Development and management of timeline and deliverables with marketing firm • Monitor progress of website development and implementation updates to marketing firm • Communicate with marketing firm the vision of the ATBID to assist in the development of the marketing plan • Execute promotional plans • Develop measurable criteria and benchmarks for monitoring the success of the ATBID and effectiveness of contracted marketing firm B-2 o Attendance to all meetings related to the ATBID, including monthly Board meetings and subcommittee meetings, APC and Atascadero City Council Meetings ■ Prepare ATBID agenda and deliver to city tourism coordinator for posting and distribution in accordance to Brown Act requirements ■ Partner with tourism coordinator to develop and distribute minutes of all ATBID Board meetings o Represent the ATBID and its members by attending countywide events and related professional association meetings o Partner with tourism coordinator and marketing firm to prepare,and present the budget, Year End Report and annual marketing plans o Work with City to manage timelines for the ATBID's-annual-renewal process o Develop and implement communication tools so that all members are informed of ATBID progress and programs • Create and maintain an accurate member inventory to include individual property contact information, property type and unit count ■ Conduct annual site visits of all member properties and maintain regular communications with all members o Maintain and provide timely budgets, actual receipts and expenditures information, with monthly progress reports to the ATBID Board ■ Adhere to City guidelines and submit monthly contractor fee invoice and expenses with back up each month ■ Review all vendor invoices for accuracy and compliance to budget • Strategy: o Take a visionary lead role in all activities and ensure ATBID actions are consistent with strategic goals and direction o Champion change and innovation to encourage diverse thoughts and contributions o Participate'in the creation and execution of cooperative opportunities, marketing pian, and budget development o Collaborate with local events and tourism partners to maximize the opportunity for members and identify sponsorship opportunities. i B-3