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HomeMy WebLinkAboutGray, Daniel; 2020-03-05;AGREEMENT FOR GRAPHIC DESIGN SERVICES DANIEL GRAY A 1 ~REEMENT is made and entered into as of the ~ day of __ /_V\.,_~--------' 20].Q,, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Daniel Gray, a sole proprietorship, ("Contractor"). RECITALS A. City requires the professional services of a graphic designer that is experienced in graphic design services. B. Contractor has the necessary experience in providing professional services and advice related to graphic design 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 one ( 1) year from the date first above written. 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 as listed in Exhibit "A" shall not exceed thirty-three thousand four hundred fifty dollars ($33,450.00) during the Agreement term. No other compensation for the Services will be allowed. 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". 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 City Attorney Approved Version 6/12/18 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 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. City Attorney Approved Version 6/12/18 2 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 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. City Attorney Approved Version 6/12/18 3 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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 Director Communication & Department _E_n~g~a~g~e_m_e_n_t ____ _ City of Carlsbad Address 1200 Carlsbad Village Drive Carlsbad, CA 92008 Phone No. 760-434-2957 For Contractor Name Daniel Gray Title Address 2357 Santa Rosa Ave. Altadena, CA 91001 Phone No. 323-356-5662 Email Danielgray@me.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. 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements:;;f t e City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or in rests in all categories. YesD No City Attorney Approved Version 6/12/18 4 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 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 City Attorney Approved Version 6/12/18 5 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 (print name/title) By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By ~ [INSERTTITEOFPERSON AUTHORIZED TO SIGN (City Manager or Mayor or Division Director as authorized by the City Manager)] t), { .e L-\-0 ( to ~-M-\A\/"~ C 0~0 /\ 1 ~ ~ s~-e~elf-,~ ATTEST: '((r~S '\) V"'v--'2--CA'1 !}L, :J-Q u;;;:, ,.. 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: CELIA A. BREWER, City Attorney City Attorney Approved Version 6/12/18 7 BY: t!~ I~. 1-tutit'VZ~ Assistant City Attorney City Attorney Approved Version 6/12/18 8 EXHIBIT "A" SCOPE OF SERVICES Contractor will provide the following services for a project fee not to exceed $33,450.00, according to the schedule below. 1. Research phase (within 4 weeks of notice to proceed} Kick off meeting Meet with communication director and lead city designer to discuss project goals, including: • Help community members recognize city services and distinguish them from services provided by other agencies/organizations • Convey key messages about what the city stands for/its promise to the community • Provide flexibility to accommodate wide variety of services and sub audiences Meeting will take place in Carlsbad and last up to two hours. Deliverables 1. Meeting agenda 2. Meeting summary and action items 3. List of assets, other background city needs to provide Collaboration workshop Meet with members of the communication team, including designers, production assistants, project manager and director, to discuss city needs and priorities, an environmental scan, current challenges and opportunities, and other background that will help inform the assessment. Meeting will take place in Carlsbad and last up to two hours. Deliverables 1. Draft meeting agenda with ideas for collaboration exercises, interactive activities 2. Planning phone call with director and lead designer to discuss draft agenda 3. Final agenda 4. Facilitate/lead meeting 5. Meeting summary and action items 2. Assessment (3 weeks) Review Review current assets (visual identify guidelines, digital and print materials, photography, video, descriptive language). Review external environment to assess how city's visual communication compares, complements or competes with other organizations seeking to communicate with similar audiences. Deliverables 1. Draft report summarizing observations, including a list of assets and other background reviewed, summary of external environment, overview of industry City Attorney Approved Version 6/12/18 9 trends and best practices, and where opportunities exist for refinement of the city's visual communication. 3. Updated strategy (4 weeks} Written description Develop updated introductory sections of visual style guide summarizing the strategy and approach, key messages and differentiators. Deliverables 1. Draft language for visual guidelines website. 2. Phone call with communication director and lead designer to discuss and refine. 3. Final copy. Visual designs Create a minimum of three design directions (using a mood board + sample flier and digital ad) to meet city visual identity goals. Meet with city staff to refine and produce one final direction. Meeting will take place in Carlsbad and last up to two hours. Deliverables 1. Digital copies of three proposed directions, each with a variation on a look and feel that will meet the city's communication goals. 2. Phone call with director and lead designer to refine the three directions. 3. Meeting agenda designed to discuss and exchange feedback on design directions. 4. Facilitate meeting with communication team, including designers, production assistants, project manager and director, to gain consensus on refined design direction. 5. Produce final design direction. 4. Tool development (4 weeks} Sample designs Develop updated/refined sample designs based on the new direction for the following materials, at a minimum: • 8.5 x 11 fact sheet • lnfographic • PowerPoint template • Event flier • Children's oriented flier/brochure/event notice • Social media ad • City wayfinding sign Deliverables 1. PDF files of proposed sample designs. 2. Phone call with director and lead designer to exchange feedback. 3. Final PDF samples. Visual guidelines City Attorney Approved Version 6/12/18 10 Update the city's list of fonts and type treatments, such as headings, body copy and call out boxes; complementary colors, iconography style and photo guidelines. Deliverables 1. Draft guidelines with samples of fonts, colors, icons and photo styles 2. Phone call with director and lead designer to exchange feedback. 3. Final word document with approved copy 4. PNG files of sample fonts, type treatments, color swatches and photo style examples. Design files Develop design files using the Adobe Creative Suite that can be used by city designers as template. Deliverables 1. Native files for a minimum of three materials formats (e.g. fact sheet, flier, etc.) to be determined by the director. 5. As needed strategic counsel (as needed) Review new materials prepared by city staff and provide feedback for refinement by phone for to a maximum of up to 20 hours 6. Other Considerations • All works submitted by the Contractor must be in standard U.S. English and adhere to the City of Carlsbad Writing Style Guide. • 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. City Attorney Approved Version 6/12/18 11 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, Communication & Engagement (Name and Department) February 20, 2020 Date Proposed modification(s) to the Liability requirement(s) for Daniel Gray (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) □Significance 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] _______ _ □Significance 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] ___________ _ [2JContract Amount/Term of Contract: $33,450.00. 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]. IXJOther (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 consultant is reviewing and advising on graphic design only. City staff with expertise in city branding and graphic design will consider the recommendations and make all final decisions based on their own experience and training. The consultant will design templates for handouts, signs, etc., for use by the city's professional graphic designers. The scope does not include producing any actual final materials. Given the broad and high level nature of this project, we are requesting liability insurance be waived. Approved by Risk Manager for this contract only: H:\ WORD\Insurance\Admin Order #68 waiver modify insurance requirements.doc (Signature) ~ --2---~ (Date)