HomeMy WebLinkAboutDialogue Partners Inc; 2018-05-25;AGREEMENT FOR PUBLIC INVOLVEMENT SERVICES
BETWEEN CITY OF CARLSBAD AND
DIALOGUE PARTNERS INC.
TH S AGREEMENT is made and entered into as of the '2( .SftJ day of
--"--+--+-..,....~~-· 20J.2._, by and between the CITY OF CARLSBAD, a municipal
it " , and Dialogue Partners Inc., a corporation ("Contractor").
RECITALS
City requires the professional services of a public involvement consultant experienced in
engaging community members in government decisions. Contractor has the necessary
experience in providing these professional services, 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 Exhibit "A", attached and incorporated by this
reference in accordance with the terms and conditions set forth in this Agreement.
2. Term. This Agreement will be effective for a period of three years from the date first
above written. The Agreement may be extended for two additional one-year terms with the
consent of both parties. The parties will prepare a written amendment indicating the effective
date and length of the extended Agreement.
3. Compensation. The total fee payable for the Services to be performed shall not exceed -
Seventy thousand dollars ($70,000.00) per agreement year and shall be billed at the rate of:
Principal $175/hour
Associate $150/hour
Consultant $125/hour
No other compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. City reserves the right to withhold a ten percent (10%) retention
until City has accepted the work and/or the Services specified in Exhibit "A."
4. 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,
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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
5. Ownership of Work(s). Excepting such items which are specifically identified by
Contractor as proprietary trade secrets, any and all sketches, drawings, tracings, images
(whether still or moving), audio sounds, recordings, notes, computations, writings, and other
materials and documents (collectively "Work(s)") prepared by Contractor in the performance of
this Agreement shall be the property of City from the moment of their preparation, and Contractor
shall deliver such materials and documents to City, upon request.
Contractor shall have the right to make duplicate copies of such materials and documents
for its own file or for other purposes the City may agree as to in writing.
6. Titles and Copyright Assignment. Contractor and City intend this to be an Agreement for
Services and each considers the deliverable product (Work) and results of the Services to be
rendered by Contractor hereunder to be a work made-for-hire. Contractor acknowledges and
agrees that the Work (and all rights therein, including, without limitation, copyright) belongs to
and shall be the sole and exclusive property of City.
If for any reason the Work would not be considered a work made-for-hire under
applicable law, Contractor does hereby sell, assign, and transfer to City, its successors and
assigns, the entire right, title and interest in and to the copyright in the Work and any
registrations and copyright applications relating thereto and any renewals and extensions
thereof, and in and to all works based upon, derived from, or incorporating the Work, and in and
to all income, royalties, damages, claims and payments now or hereafter due or payable with
respect thereto, and in and to all causes of action, either in law or in equity for past, present, or
future infringement based on the copyrights, and in and to all rights corresponding to the
foregoing throughout the world.
If the Work is one to which the provisions of 17 U.S.C. 106A apply, the Contractor hereby
waives and appoints City to assert on the Contractor's behalf the Contractor's moral rights or any
equivalent rights regarding the form or extent of any alteration to the Work (including, without
limitation, removal or destruction) or the making of any derivative works based on the Work,
including, without limitation, photographs, drawings or other visual reproductions or the Work, in
any medium, for City purposes.
Contractor agrees to execute all required documents and to perform such other proper
acts, as City may deem necessary to secure for City or its designee the rights herein assigned.
7. Indemnification for Intellectual Property Infringement. Contractor agrees to defend,
indemnify and hold harmless City, its elected officials, employees and agents from and against
any claim, action, proceeding, liability, loss, damage, cost or expense, including, without
limitation, reasonable attorneys' fees, as provided herein, arising out of any claim that the
Contractor's Works, products, services and/or deliverables, or any part of them, infringes upon or
otherwise violates any copyright, trade secret, trademark, service mark, patent, invention,
proprietary information, or other rights of any third party, or that City's use of them otherwise
violates this Section [collectively referred to for purposes of this Section as "Infringement
Claims(s)"], by paying all amounts that a court finally awards or that Contractor agrees to in
settlement of such Infringement Claim(s), as well as any and all expenses or charges arising
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from such Infringement Claim(s), including reasonable attorneys' fees, as they are incurred by
City or any other party indemnified under this Section.
City also agrees that, if the use or operation of the Contractor's Works, products, services
and/or deliverables, or any part of them, becomes, or in Contractor's opinion is likely to become,
the subject of an Infringement Claim(s), City will permit Contractor, at Contractor's option and
expense for all associated costs, either to procure the right for City to continue to use
Contractor's Works, products, services and/or deliverables, or part thereof, or to replace or
modify them with another item of comparable quality and performance capabilities to become
non-infringing, provided such replacement or modification does not cause the product, services
and/or deliverables, or any part thereof, to fail to comply with any of the requirements of this
Agreement, including but not limited to, all functionality, technical specifications and performance
warranties.
In the event City's ongoing use of Contractor's Work's, products, services and/or
deliverables, or any part of them, is the subject of any act by a third party arising from an
Infringement Claim that would preclude or impair City's use of Contractor's Works, products,
services and/or deliverables (e.g., injunctive relief), or if City's continued use of them may subject
it to punitive damages or statutory penalties, City shall give written notice to Contractor of such
fact(s). Upon notice of such facts, Contractor shall procure the right for City to continue to use
the Works, products, services and/or deliverables, or part thereof, or replace or modify the
Works, products, services and/or deliverables of comparable quality and performance
capabilities to become non-infringing.
If Contractor fails to complete the remedial acts set forth above within forty-five (45)
calendar days of the date of the written notice from City, City shall have the right to take such
remedial acts it determines to be reasonable to mitigate any impairment of its use of Contractor's
Works, products, services and/or deliverables or damages (hereafter referred to as "City's
Remedial Acts"). Contractor shall indemnify City for all amounts paid and direct and indirect
costs associated with City's Remedial Acts. Failure by Contractor to pay such amounts within
ten (10) calendar days of invoice by City shall, in addition to and cumulative to all other
remedies, entitle City to immediately withhold payments due Contractor under this Agreement up
to the amount paid in connection with City's Remedial Acts.
8. Indemnification -General. 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 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 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.
9. 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
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California. The insurance 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. 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 ad~quate 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 Insurance. $2,000,000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. If the submitted
policies contain aggregate limits, general aggregate limits will apply separately to the
work under this Agreement or the general aggregate will be twice the required per
occurrence limit.
10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work
for City}. $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. 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.
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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 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. Conflict of Interest. City will evaluate Contractor's duties pursuant to this Agreement to
determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code
is required of Contractor or any of Contractor's employees, agents or subcontractors. Should it
be determined that disclosure is required, Contractor or Contractor's employees, agents, or
subcontractors will complete and file with the City Clerk those schedules specified by City and
contained in the Statement of Economic Interests Form 700.
12. Compliance With Laws. Contractor will comply with all applicable local, state and federal
laws and regulations prohibiting discrimination and harassment and will obtain and maintain a
City of Carlsbad Business License for the term of this Agreement.
13. 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 and/or U.S. 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 under this Agreement. City will make the final determination as to the portions of
tasks completed and the compensation to be made.
14. 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
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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.
15. Venue and Jurisdiction. Contractor agrees and stipulates that the proper venue and
jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the
State Superior Court, San Diego County, California.
16. Assignment. Contractor may assign neither this Agreement nor any part of it, nor any
monies due or to become due under it, without the prior written consent of City.
17. Amendments This Agreement may be amended by mutual consent of City and
Contractor. Any amendment will be in writing, signed by both parties, with a statement of
estimated changes in charges or time schedule.
18. 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.
19. 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.
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CONTRACTOR
14 t:n ln/J.hl<o. , PH.u·o1, n f
(Print name/title)
K.irn e ciJ ·a/09.u.o fDrlrurs . ca.
( e-mail address)
**By:
c,/V#f.Lbl~
(Sign here)
16 m ~.Lh/,a,,.. ) ILi c H fr,, Yl/-(rint name/title)
Yim e dJ. ·a !1{1/' t f/~ rfnt. rs. c~ (e-mail a dre s)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By: 7Jt/L-
er or Mayor
ATTEST:
\~~~ BARBARA ENGLES N
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:
CELIA A. BREWER, City Attorney
By:_[u)-"----L_
Assistant City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES
Public Engagement and Facilitation Services
On an as needed basis under the direction of the communication manager, provide public
engagement and facilitation services and advice to include:
• Attend meetings with city staff to discuss upcoming opportunities for public
engagement and facilitation.
• Design public involvement processes to meet city objectives, including online
engagement.
• Make recommendations for engagement strategies, tools and approaches .
• Conduct interviews with city staff and stakeholders to obtain input on city programs
and initiatives.
• Facilitate meetings with city staff and stakeholders .
• Draft reports summarizing engagement efforts .
Other Considerations
• All works submitted to and accepted by the city must be an original piece created 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-bolded Calibri, 12
point font.
• 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.
Total not to exceed $70,000
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CERTIFICATE HOLDER:
The City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008-1949
NAMED INSURED:
Dialogue Partners Inc.
2600, 10180 -101 Street
Edmonton, AB TSJ 3Y2
CERTIFICATE OF INSURANCE
Dated: April 23, 2018
BROKER:
Lloyd Sadd Insurance Brokers Ltd.
Suite 700, 10240 -124 Street
Edmonton, AB TSN 3W6 P: 780.483.4544
This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the
coverage afforded by the policies below. The insurance afforded is subject to the terms, conditions and exclusions of the applicable policy.
COMPANIES AFFORDING COVERAGE:
Company Letter "A" CFC Underwriting Ltd
co TYPE OF INSURANCE POLICY POLICY POLICY LIMIT
LTR NUMBER EFFECTIVE EXPIRY DATE
DATE
GENERAL LIABILITY
A Commercial General Liability including: ESG00521539 March 20, 2018 March 20, 2019 $2,000,000 Per Occurrence
-Broad Form Property Damage
-Personal & Advertising Injury $2,000,000 Aggregate Products
-Cross Liability/Severability of Interest & Completed
-Contingent Employers Liability Operations
-Incidental Malpractice Liability
-Blanket Contractual
A Employee Benefits Liability ESG00521539 March 20, 2018 March 20, 2019 $2,000,000 Aggregate
A Tenants Legal Liability ESG00521539 March 20, 2018 March 20, 2019 $250,000 Aggregate
A Non-Owned Automobile ESG00521539 March 20, 2018 March 20, 2019 $2,000,000 Per Occurrence
A SEF 94 -Legal Liability for Damage to Hired ESG00521539 March 20, 2018 March 20, 2019 $50,000 Aggregate
Automobiles
ERRORS & OMISSIONS LIABILITY
A Errors & Omissions Liability ESG00521539 March 20, 2018 March 20, 2019 $2,000,000 Per Occurrence
$2,000,000 Aggregate
Re: Commercial General Liability, Policy# ESG00521539 It is hereby understood and agreed that The City of Carlsbad, its officials, employees, and volunteers is
added as an Additional Insured Effective April 23, 2018 but only with respect to liability arising out of the operations of the Named Insured.
CANCELLATION
Should the Commercial General Liability policy be cancelled before the expiration date thereof, the issuing company will endeavor to mail 30 days written notice
to the certificate holder named above, but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or
representative.
LLOYD SADD INSURANCE BROKERS LTD.
per:
MEDIA
ADDITIONAL INSURED ENDORSEMENT
ATTACHING TO POLICY
NUMBER:
THE INSURED:
WITH EFFECT FROM:
ESG00521539
Dialogue Partners Inc
20 Mar 2018
It is understood and agreed that the following amendments are made to this Policy:
1. The following DEFINITION is added:
"Additional insured" means:
The City of Carlsbad (Effective From: 03 May 2018)
1200 Carlsbad Village Drive
Carlsbad, CA 92008-1949
us
2. Where an "Additional insureds" CONDITION exists in this Policy, additional insureds are
included as a third party.
3. Where an "Additional insureds" CONDITION does not exist in this Policy, the following
CONDITION is added:
Additional Insureds
Additional insureds are indemnified under this Policy as if they were you, but only in
respect of sums which they become legally obliged to pay (including liability for claimants'
costs and expenses) as a result of any claim arising solely out of an act, error or omission
committed by you or on your behalf, provided that had the claim been made against you,
then you would be entitled to indemnity under this Policy.
Before we indemnify any additional insured, they must prove to us that the claim arose
solely out of an act, error or omission committed by you or on your behalf and fully comply
with CONDITION 1 as if they were you.
When this CONDITION applies, it will be primary and non-contributory to the additional
insured's own insurance but only if you and the additional insured have entered into a
contract that contains a provision requiring this.
Whilst additional insureds are indemnified under this Policy, any claim made by
additional insureds against you will be treated by us as if they were a third party and not
as a named insured.
4. The following CONDITION is added:
Notice of cancellation to additional insureds
If we give you notice of cancellation in accordance with the "Cancellation" CONDITION, we
will endeavour to provide the same notice of cancellation to additional insureds; however,
not doing so will not place any additional liability upon us.
SUBJECT OTHERWISE TO THE TERMS AND CONDITIONS OF THE POLICY
Authorized Signatory Authorized Signatory
842---
CFC Underwriting Ltd CFC Underwriting Ltd