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HomeMy WebLinkAboutBurge Communications; 2018-09-19;AMENDMENT NO. 1 TO AGREEMENT FOR PROFESSIONAL WRITING SERVICES BURGE COMMUNICATIONS l is entered into and effective as of the \W& day of _-==-,,._"""'-l,---'4,,----------' 20J1_, amending the agreement dated September 19, 2018 (th Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Michael Burge, doing business as Burge Communications, a sole proprietorship, ("Contractor") (collectively, the "Parties") for Professional Writing Services. RECITALS A. On September 19, 2018, the Parties executed the Agreement for Professional Writing Services; and B. The Parties desire to alter the Agreement's scope of work to include up to an additional 133 hours of work per contract year bringing the total to a maximum of 233 hours of work per contract year; and D. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". With this Amendment, the total annual Agreement amount shall not exceed thirty-five thousand dollars ($35,000.00). 2. City will pay Contractor for all work associated with those services described in Exhibit "A" on a time and materials basis not-to-exceed thirty-five thousand dollars ($35,000.00. Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by the Agreement expiration date. 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. 6. The individuals executing tt1is Amendment 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 Amendment. City Attorney Approved Version 9/27/16 CONTRACTOR (sign here) /l;1; 1 lo,._p I C '3 u_mt'. C)w ~'l.O r (print na tlitle) By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: ~.;;;, Director ATTEST: *Ail-QL--;:;: BARBARA ENGLESON City Clerk 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: City Attorney Approved Version 9/27/16 2 EXHIBIT "A" SCOPE OF SERVICES Task: Professional writing services of up to 233 hours for the City of Carlsbad's I Communications Department billed at an hourly rate of one hundred fifty dollars ($150). City will provide a detailed description of each writing task through e-mail, phone or in- person meetina. Contractor to research and draft copy for city materials, including but not limited to newsletters, brochures, ads, website, fact sheets, Q&As and news releases. Contractor to submit to communications manager or designee determined by the communications manager a draft for review and approval. Contractor will make edits as requested by city staff. ---- Other considerations: • All works submitted to and accepted by the city must be an original piece written by the contractor. • All works submitted by the Contractor must be in standard U.S. English and adhere to the City of Carlsbad Writing Style Guide. • All works must be submitted in Microsoft Word format and include a headline pertaining to the work in bold. The work should appear in a non-balded Calibri, 12 point font. • All works must be written in AP style format • The City reserves the right to use all submitted works in current and/or future forms of current media and/or media to be develo~ed. For each task, Contractor will produce materials by specific deadlines created by communications department. Contractor will receive written notice from communications department for each task and deadline date for each task. Dates and times will be mutually agreed upon by the parties and subject to the availability of city staff and Contractor. Total for contract: not to exceed $35,000.00 per Agreement year City Attorney Approved Version 9/27/16 3 I I I I I I I I I i ACORD• CERTIFICATE OF LIABILITY INSURANCE I DATE (MMJ0D/YYYY) ~ 08/29/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER ~~[1~~Cl STATE FARM INSURANCE r.~~N,t c.n, 858-679-2880 I rt~ Nol: 858-798-9994 12396 World Trade Dr., Suite 113 E-MAIL ADDRESS: ~ San Diego, CA 92128 PRODUCER onM, I INSURER/SI AFFORDING COVERAGE NAIC # INSURED INSURER A : State Farm General Insurance Company 25151 ----------Michael Burge INSURER B : State Farm General Insurance Company 25151 -DBA Burge Communications & MC Burge _INSURER C_: ______________ -- Communications INSURER 0: 9632 Galatea Ln., Escondido, CA 92026 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR AuuL l:IUBR ,:~LJ&}:,Wo ,tOLICY EXP ------------·- LTR TYPE OF INSURANCE ,uaa -•n POLICY NUMBER M/OO/YYYYI LIMITS A GENERAL LIABILITY --90-B0-N630-3 10/13/2010 10/13/2019 EACH OCCURRENCE $ 1,000.000 X COMMERCIAi. GENERAL LIABILITY ~ [TI PREM:SEs 'i'E~~~~nce1 s I--□ CLAIMS-MADE [XI OCCUR y ~ MEO EXP (Any one peraon) $ 5,000 -X Bus Prop: $2,500 PERSONAL & ADV INJURY $ 1,000,000 - GENERAL AGGREGATE $ 2,000,000 ----- GEN1. AGGREGATE LIMIT APPLIES PER: PRODUCTS· COMP/OP AGG $ 2,000.000 xl POLICY n ~r~ n LOC ----$ AUTOMOelLE L1Ae1L1TY COMBINED SINGLE LIMIT $ ,---□ (Ea accldenl) ANY AUTO ------~--BO0IL Y INJURY (Per person) $ ALL OWNED AUTOS -,_ BODILY INJURY (Per accidenl) s SCHEDULED AUTOS PROPERTY DAMAGE r-$ HIRED AUTOS (Per accident) I----NON-OWNED AUTOS $ -$ UMBRELLA LIAB HOCCUR EACH OCCURRENCE $ ,--· --EXCESSLIAB CLAIMS-MADE ~ □ AGGREGATE s -- DEDUCTIBLE ~ $ ,___ RETENTION $ s WORKERS COMPENSATION IT"X~lrtJi¥;,I IOTH-AND EMPLOYERS' LIABILITY y IN ER ANY PROPRIETOR/PARTNER/EXECUTIVE □ □ E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? N/A --- !Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $ f yes, de■c:ribe under E.L DISEASE -POLICY LIMIT $ ~~~~·-· DESCRIPTION OF OPERATIONS I LOC-'TIONB / VEHICLES (Allacll -'CORD 101, Addlllonal Remarks Schodulo, 11 more apace It required) The City of Carlsbad, Its officials, employees and volunteers are named as additional Insured with respect to liability arising out of activities performed by or on behalf of the named Insured. CERTIFICATE HOLDER CANCELLATION City of Carlsbad SHOULD ANY OF THE ABOVE DESCRIBED POLICIES eE CANCELLED BEFORE THE Communications Dept. EXPIRATION DATE THEREOF, NOTICE WILL 8E DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 1200 Carlsbad Village Dr Carlsbad, CA 92008 AUTHORIZED REPRESENTATIVE I BRUCE HOFBAUER © 1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD 1001486 132849.4 02-11-2010 MBQH Policy No.: 90B0N6303 SECTION II ADDITIONAL INSURED ENDORSEMENT Policy No.: 90B0N6303 Named Insured: MICHAEL BURGE OBA BURGE COMMUNICATIONS & MC BURGE COMMUNICATIONS Additional Insured (include address): CITY OF CARLSBAD, ITS OFFICERS, AGENTS AND EMPLOYEES COMMUNICATIONS DEPARTMENT 1200 CARLSBAD VILLAGE DR CARLSBAD, CA 92008 FE-6609 ·.; tlHYU•C"' WHO IS AN INSURED, under SECTION II DESIGNATION OF INSURED, is amended to include as an insured the Additional Insured shown above, but only to the extent that liability is imposed on that Additional Insured solely because of your work performed for that Additional Insured shown above. Any insurance provided to the Additional Insured shall only apply with respect to a claim made or a suit brought for damages for which you are provided coverage. The Primary Insurance coverage below applies only when there is an "X" in the box. C8:} Primary Insurance. The insurance provided to the Additional Insured shown above shall be primary insurance. Any insurance carried by the Additional Insured shall be noncontributory with respect to coverage provided to you. All other policy provisions apply. FE-6609 Printed in U.S.A. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US SCHEDULE Policy Number: 90B0N6303 FE-6671 Page 1 of 1 Named Insured: MICHAEL BURGE OBA BURGE COMMUNICATIONS & MC BURGE COMMUNICATIONS Name and Address of Person or Organization: CITY OF CARLSBAD, ITS OFFICERS, AGENTS AND EMPLOYEES COMMUNICATIONS DEPARTMENT 1200 CARLSBAD VILLAGE DR CARLSBAD, CA 92008 The following is added to Paragraph 10.b. of SECTION I AND SECTION II -COMMON CONDITIONS: We waive any right of recovery we may have against the person or organization shown in the Schedule because of payments we make for injury or damage arising out of: a. Your ongoing operations; or b. Your work done under contract with that person or organization and included in the products- completed operations hazard. This waiver applies only to the person or organization shown in the Schedule. All other policy provisions apply. FE-6671 FE-6671 (04/09) ©, Copyright, State Farm Mutual Automobile Insurance Company, 2008 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Printed in U.S.A. WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Kristina Ray, communications department (Name and Department) Date Proposed modification(s) to the PL requirement(s) for Burge Communications (Type of insurance) (Name of contract) D Reduce coverage to the amount of C8J Waive coverage D Other: ------------------------------------ FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) QSignificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product. [explain] _______ _ OSignificance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded if applicable] ___________ _ IZ!Contract Amount/Term of Contract: $15.000. Work will be completed over a period of □Professional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. -------------------------------- 15<]0ther (e.g. explain why exposures are minimal, how exposures are covered in another policy, exposure control mechanisms. and any other information pertinent to your request): This contractor provides copy writing services. He will take approved information provided by city subject matter experts {reports, studies, etc.), then draft articles, website copy and other materials based on that source information. The draft text will then be reviewed and approved by the subject matter experts. Under this arrangement. there are sufficient controls in place to minimize risk to the city without requiring professional liability insurance. A ~-Jo-/~ (Signature) (Date) 11:\WORD\lnsurance\Admin Order #68 waiver modify insurance requirements.doc AGREEMENT FOR PROFESSIONAL WRITING SERVICES BETWEEN CITY OF CARLSBAD AND BURGE COMMUNICATIONS THIS AGREEMENT is made and entered into as of the / q tiJ day of -",'-"-"--"1\:::::~~--'::--:L~~=:-.-:-' 20)2, by and between the CITY OF CARLSBAD, a municipal corporati , ("City"), and Michael Burge, doing business as Burge Communications, a sole proprietorship ("Contractor"). RECITALS A. City requires the professional services of a writer experienced in writing about city issues and services for a community audience. B. Contractor has the necessary experience in providing professional writing services related to city issues and services. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City 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. 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 two (2) years from the date first above written. The City Manager may amend the Agreement to extend it for one (1) additional one-year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. 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 shall not exceed fifteen thousand dollars ($15,000) per agreement year billed at an hourly rate of one hundred fifty dollars ($150). 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". City Attorney Approved Version 6/12/18 Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 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 City. Contractor 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 Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City 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 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 Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City 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 City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City 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 City. Contractor will be responsible for payment of 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 City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, 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 by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, 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 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 City Attorney Approved Version 6/12/18 2 carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor'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 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. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an "occurrence" basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 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. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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 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, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City 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 City to obtain or City Attorney Approved Version 6/12/18 3 maintain insurance and City 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. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 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 City 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 City. 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 City. 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 City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Kristina Ray Title Communication Manager Department Communications City of Carlsbad Address 1200 Carlsbad Village Drive Carlsbad, CA 92008 Phone No. 760-434-2957 For Contractor Name Michael Burge Title Owner Address 9632 Galatea Lane Escondido, CA 92026 Phone No. 760-807-6841 Email mcburge@burgecommunications.com 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 6/12/18 4 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. YesD Naef 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 whose services are 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 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 (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 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 Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor 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 Contractor. Upon notification of termination, Contractor 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 Contractor 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, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable City Attorney Approved Version 6/12/18 5 under this Agreement. City 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, 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, Contractor 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. Contractor acknowledges that if a false claim is submitted to City, 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 City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION 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 City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor 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 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. City Attorney Approved Version 6/12/18 6 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 ~ (sign here) (print name/title) By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: [INSERT TITLE OF PERSON AUTHORIZED TO SIGN (City Manager or Mayor or Division Director as authorized by the City Manager)] v... ("\ s n "'°'-?-.o-. ':I C,J f'Y''<V'"'-(\·, ( r,,...,lr '~" fV\P\."~'3e, ATTEST: ( IJ:urttw-0Xrrl17fw ~RBARA ENGLESON u-1..,1ly Clerk 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: CELIA A;JREif[_ Attorney BY: __ f--=-?{;J~-------- Assistant City Attorney City Attorney Approved Version 6/12/18 7 EXHIBIT "A" SCOPE OF SERVICES Task: Professional writing services of up to 100 hours for the City of Carlsbad's Communications Department. City will provide a detailed description of each writing task through e-mail, phone or in- person meeting. Contractor to research and draft copy for city materials, including but not limited to newsletters, brochures, ads, website, fact sheets, Q&As and news releases. Contractor to submit to communications manager or designee determined by the communications manager a draft for review and approval. Contractor will make edits as requested by city staff. Other considerations: • All works submitted to and accepted by the city must be an original piece written by the contractor. • All works submitted by the Contractor must be in standard U.S. English and adhere to the City of Carlsbad Writing Style Guide. • All works must be submitted in Microsoft Word format and include a headline pertaining to the work in bold. The work should appear in a non-balded Calibri, 12 point font. • All works must be written in AP style format • The City reserves the right to use all submitted works in current and/or future forms of current media and/or media to be developed. For each task, Contractor will produce materials by specific deadlines created by communications department. Contractor will receive written notice from communications department for each task and deadline date for each task. Dates and times will be mutually agreed upon by the parties and subject to the availability of city staff and Contractor. Total for contract: $15,000 City Attorney Approved Version 6/12/18 8 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/00/YYYY) ~ 08/29/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER ijl!'fi~~CT STATE FARM INSURANCE rA~~NJn l:.t\• 858-679-2880 I FAX tAIC Nol: 858-798-9994 12396 World Trade Dr., Suite 113 E-MAIL ADDRESS: ~ San Diego, CA 92128 PRODUCER ICll<lTOMl=l>IOI!· I INSURER/$) AFFORDING COVERAGE NAIC# INSURED INSURER A : State Farm General Insurance Company 25151 Michael Burge INSURER B : State Farm General Insurance Company 25151 OBA Burge Communications & MC Burge INSURERC: Communications INSURER O: 9632 Galatea Ln., Escondido, CA 92026 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR AOOL SUBR ,;~;J&~i\ /OLICYEXP LIMITS LTR TYPE OF INSURANCE , .. ., .. wvn POLICY NUMBER MM/OO/YYYY) A GENERAL LIABILITY 90-B0-N630-3 10/13/2010 10/13/2019 EACH OCCURRENCE $ 1,000,000 -u'"""''"''" IU"""'"u X COMMERCIAL GENERAL LIABILITY -0 PREMISES IEa occurrence\ $ -D CLAIMS-MADE [RI OCCUR y -MED EXP (Any one person) $ 5,000 X Bus Prop: $2,500 PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 1--- GEN"L AGGREGATE LIMIT APPLIES PER: PRODUCTS • COMP/OP AGG $ 2,000,000 rx7 POLICY n ~rg: nLOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ -(Ea accident) ~ D ANY AUTO BODILY INJURY (Per person) $ 1--- ALL OWNED AUTOS ~ -BODILY INJURY (Per accident) $ SCHEDULED AUTOS PROPERTY DAMAGE -$ HIRED AUTOS (Per accident) ~ NON-OWNED AUTOS $ ~ $ UMBRELLA LIAB HOCCUR EACH OCCURRENCE $ ,_ EXCESS LIAB CLAIMS-MADE ~ D AGGREGATE $ DEDUCTIBLE ~ $ -RETENTION $ $ WORKERS COMPENSATION I WCSTATU-I \OTH- ANO EMPLOYERS' LIABILITY TORY LIMITS ER YIN ANY PROPRIETOR/PARTNER/EXECUTIVE D D E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA (Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $ If yes, describe under E.L. DISEASE· POLICY LIMIT $ nn-noAO - -D DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) The City of Carlsbad, its officials, employees and volunteers are named as additional insured with respect to liability arising out of activities performed by or on behalf of the named insured. CERTIFICATE HOLDER CANCELLATION City of Carlsbad SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WtLL BE DELIVERED IN ACCORDANCE WITH THE Communications Dept. POLICY PROVISIONS. 1200 Carlsbad Village Dr Carlsbad, CA 92008 AUTHORIZED REPRESENTATIVE I BRUCE HOFBAUER © 1988-2009 ACORD CORPORATION. Ali rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD 1001486 132849.4 02-11-2010 MBQH Policy No.: 90B0N6303 SECTION II ADDITIONAL INSURED ENDORSEMENT Policy No.: 90B0N6303 Named Insured: MICHAEL BURGE OBA BURGE COMMUNICATIONS & MC BURGE COMMUNICATIONS Additional Insured (include address): CITY OF CARLSBAD, ITS OFFICERS, AGENTS AND EMPLOYEES COMMUNICATIONS DEPARTMENT 1200 CARLSBAD VILLAGE DR CARLSBAD, CA 92008 FE-6609 ITAH PAIM & INIUUNC~ WHO IS AN INSURED, under SECTION II DESIGNATION OF INSURED, is amended to include as an insured the Additional Insured shown above, but only to the extent that liability is imposed on that Additional Insured solely because of your work performed for that Additional Insured shown above. Any insurance provided to the Additional Insured shall only apply with respect to a claim made or a suit brought for damages for which you are provided coverage. The Primary Insurance coverage below applies only when there is an "X" in the box. 1:8'.l Primary Insurance. The insurance provided to the Additional Insured shown above shall be primary insurance. Any insurance carried by the Additional Insured shall be noncontributory with respect to coverage provided to you. All other policy provisions apply. FE-6609 Printed in U.S.A. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US SCHEDULE Policy Number: 90B0N6303 FE-6671 Page 1 of 1 Named Insured: MICHAEL BURGE OBA BURGE COMMUNICATIONS & MC BURGE COMMUNICATIONS Name and Address of Person or Organization: CITY OF CARLSBAD, ITS OFFICERS, AGENTS AND EMPLOYEES COMMUNICATIONS DEPARTMENT 1200 CARLSBAD VILLAGE DR CARLSBAD, CA 92008 The following is added to Paragraph 10.b. of SECTION I AND SECTION 11-COMMON CONDITIONS: We waive any right of recovery we may have against the person or organization shown in the Schedule because of payments we make for injury or damage arising out of: a. Your ongoing operations; or b. Your work done under contract with that person or organization and included in the products- completed operations hazard. This waiver applies only to the person or organization shown in the Schedule. All other policy provisions apply. FE-6671 FE-6671 (04/09) ©, Copyright, State Farm Mutual Automobile Insurance Company, 2008 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Printed in U.S.A. WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Kristina Ray, communications department (Name and Department) Date Proposed modification(s) to the PL requirement(s) for Burge Communications (Type of insurance) (Name of contract) D Reduce coverage to the amount of ~ Waive coverage D Other: ------------------------------------- F ACTOR(S) IN SUPPORT OF MODIFICA TION(S) (check those that apply) OS ignificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product. [explain] _______ _ OS ignificance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded if applicable} ___________ _ [8'.IContract Amount/Term of Contract: $15,000. Work will be completed over a period of OProfessional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. [8'.IOther (e.g. explain why exposures are minimal, how exposures are covered in another policy, exposure control mechanisms, and any other information pertinent to your request): This contractor provides copy writing services. He will take approved information provided by city subject matter experts (reports, studies, etc.), then draft articles, website copy and other materials based on that source information. The draft text will then be reviewed and approved by the subject matter experts. Under this arrangement, there are sufficient controls in place to minimize risk to the city without requiring professional liability insurance. A ~-Jo-/1 (Signature) (Date) H:I WORD\lnsurance\Admin Order #68 waiver modify insurance requirements.doc