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HomeMy WebLinkAboutTorburn, Tara; 2017-05-11;AMENDMENTN0.2TOEXTENDANDAMENDAGREEMENTFOR GRAPHIC DESIGN SERVICES TARA TORBURN Amendment No. 2 is entered into and effective as of the -t\Vv day of -~~~----------' 201.0, extending and amending the agreement dated May 11, 2017 ( "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Tara Torburn, a sole proprietorship, ("Contractor") (collectively, the "Parties") for graphic design services. RECITALS A. On May 11, 2017, the Parties executed a one year agreement for graphic design services); and B. On April 24, 2019, the Parties desire to extend and amend the Agreement for a period of one year. C. The Parties desire to extend and amend the Agreement for a period of one year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one year ending on May 11, 2021 on a time and materials basis not-to- exceed twenty-eight thousand dollars ($28,000.00) per agreement year to be billed at the new rate of ninety dollars ($90.00) per hour. 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. Ill Ill Ill Ill Ill Ill City Attorney Approved Version 1/30/13 4. The individuals executing this 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. CONTRACTOR (sign here) ·::ill1f;A Li~ Jl)Rb J RJJ I (.)J} )Ji£_ (print name/title) By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: ATTEST: City Clerk Engagement Director Kristina Ray 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 1/30/13 2 .-----. DATE (MM/00/YYYY) AC:C>RY CERTIFICATE OF LIABILITY INSURANCE ...... ~--08/27/2019 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 SUBROGATIONIS 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 CONTACT TAGUE INSURANCE AGENCY/PHS NAME: 72165144 PHONE (866) 467-8730 I FAX (888) 443-6112 (AIC, No, Ext): (AIC, No): The Hartford Business Service Center 3600 Wiseman Blvd E-MAIL San Antonio, TX 78265 ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC# INSURED INSURER A: Sentinel Insurance Company Ltd. 11000 TARA LEE TORBURN INSURER B: 1115 ALBERTA AVE OCEANSIDE CA 92054-4204 INSURERC: INSURERD: INSURERE: 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 TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS LTR INSR WVD IMM/00/YYYYI IMM/DDN YYYI COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $2,000,000 - DCLAIMS-MADE0 OCCUR DAMAGE TO RENTED $1,000,000 -PREMISES /Ea occurrence) X General Liability MED EXP (Any one person) $10,000 A X 72 SBA UU1144 09/25/2019 09/25/2020 PERSONAL & ADV INJURY $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $4,000,000 / Fl POLICY □ PRO-0LOC PRODUCTS -COMP/OP AGG $4,000,000 JECT OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ~ I /Ea accident\ ANY AUTO BODILY INJURY (Per person) ~ ALL OWNED -SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) f--HIRED f---NON-OWNED PROPERTY DAMAGE AUTOS AUTOS (Per accident) f--f--- UMBRELLA LIAB H OCCUR EACH OCCURRENCE -CLAIMS-EXCESSLIAB AGGREGATE MADE DEDI I RETENTION $ WORKERS COMPENSATION IPER I IOTH- AND EMPLOYERS' LIABILITY STATUTE ER ANY Y/N E.L. EACH ACCIDENT PROPRIETOR/PARTNER/EXECUTIVE [ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) N/A E.L. DISEASE -EA EMPLOYEE If yes, describe under E.L. DISEASE -POLICY LIMIT DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERA T/ONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Those usual to the lnsured's Operations. Please see additional remarks schedule acord form 101 attached. CERTIFICATE HOLDER CANCELLATION CITY OF CARLSBAD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED 1200 CARLSBAD VILLAGE DR BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED CARLSBAD CA 92008 IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE 6U&VJ£ Ca::1~ © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: LOC#: _______ _ ADDITIONAL REMARKS SCHEDULE Page _2_ of 2 AGENCY NAMED INSURED TAGUE INSURANCE AGENCY/PHS TARA LEE TORBURN POLICY NUMBER 1115 ALBERTA AVE SEE ACORD 25 OCEANSIDE CA 92054-4204 CARRIER NAICCODE SEE ACORD 25 EFFECTIVE DATE: SEE ACORD 25 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM FORM NUMBER: ACORD 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE The City of Carlsbad, its officials, employees and volunteers are named as additional insured per the SS 00 08 Business liability form. Waiver of Subrogation applies in favor of the Certificate Holder per the Business Liability Coverage Form SS0008, attached to this policy. Notice of Cancellation will be provided in accordance with Form SS12230611, attached to this policy. ACORD 101 (2014/01) © 2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD 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) April3,2020 Date Proposed modification(s) to the PL requirement(s) for Tara Torbum --------------(Type of insurance) (Name of contract) D Reduce coverage to the amount of ~ Waive coverage D Other: ------------------------------------- FACTOR(S) IN SUPPORT OF MODIFICATION(S) ( check those that apply) OSignificance 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] ___________ _ ~Contract Amount/Term of Contract: $28,000 per year. Work will be completed over a period of 1 years OProfessional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. -------------------------------- !XlOther (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): Contractor will only implement designs based on approved templates from the City of Carlsbad brand guidelines, and any needed photos or other images will be provided by the City of Carlsbad. Due to this limited role, the risk of professional liability is minimal. All work products will be reviewed and approved by city staff with professional expertise in graphic design and communication. Contractor will not ditribute finished products; that will be the responsibility of city staff. Approved by Risk Manager for this contract only: (Signature) H:\WORD\Insurance\Admin Order #68 waiver modify insurance requirements.doc AMENDMENT NO. 1 TO EXTEND AND AMEND AGREEMENT FOR GRAPHIC DESIGN SERVICES TARA TORBURN 'A This Amendment No. 1 is entered into and effective as of the 1.-4:\Vv day of £d \ , 2ol1_, extending and amending the agreement dated May 1 ~ 17 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Tara Torburn, a sole proprietorship, ("Contractor") (collectively, the "Parties") for graphic design services. RECITALS A On May 11, 2017, the Parties executed a one year agreement for graphic design services); and B. The Parties desire to extend and amend the Agreement for a period of one year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one year ending on May 11, 2020 on a time and materials basis not-to- exceed twenty-eight thousand dollars ($28,000.00). 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. Ill Ill Ill Ill Ill /II Ill City Attorney Approved Version 1 /30/13 4. The individuals executing this 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. CONTRACTOR B (sign here) 1'av-eu Lee l()vltJLL (VJ (print name/title) By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California yor or Director 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 /' II (} () BY:/~~ ----'-=-C.------'------Assistant City Attorney City Attorney Approved Version 1/30/13 2 OP ID: MH ACORD. CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYYYY) ~ 01/10/2019 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 ~~~l~cT Mariellen High Ta8ue Insurance Agency rigNfio Ext\: 760-729-1143 I rt~ Nol: 760-729-8617 15 E Broadway Ste A Vista, CA 92084-6068 :t1lJ~ss: mhigh@tagueins.com Steven Tague ~~~~i~~: ID#: TOBUR-1 INSURER(S) AFFORDING COVERAGE NAIC# ~---- INSURED Tara Lee Torburn 1NsuRERA: Hartford Casualty Insurance Co 29424 1115 Alberta Ave INSURERB: Oceanside, CA 92054 INSURER C: INSURER D: 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 ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE , .. ., .. W\/n POLICY NUMBER fMM/DDIYYYYI fMM/DDIYYYYI LIMITS ~ERAL LIABILITY EACH OCCURRENCE $ 2,000,000 ==:r5MERCIAL GENERAL LIABILITY X 72SBAUU1144 DAMAGE TO RENTED $ 1,000,000 PREMISES (Ea occurrence\ CLAIMS-MADE [K] OCCUR MED EXP (Any one person) $ 10,000 A X Business Owners 09/25/2018 09/25/2019 PERSONAL & ADV INJURY $ 2,000,000 ·- GENERAL AGGREGATE $ 4,000,000 - GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS -COMP/OP AGG $ 4,000,000 xl POLICY n ~f2,: nLOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ ~ ANY AUTO (Ea accident) BODILY INJURY (Per person) $ ~ ALL OWNED AUTOS BODILY INJURY (Per accident) $ I I SCHEDULED AUTOS PROPERTY DAMAGE ,---------, $ HIRED AUTOS (PER ACCIDENT) -- NON-OWNED AUTOS $ - $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ - EXCESS LIAB CLAIMS-MADE AGGREGATE $ DEDUCTIBLE $ - RETENTION $ $ WORKERS COMPENSATION I WCSTATU-I IOTH- AND EMPLOYERS' LIABILITY TORY LIMITS ER Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE □ E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $ If yes. describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) *unless non pay which is 10 days. The City, its officials, employees and volunteers are additional insureds as respects liability arising out of work or ~erations §erformed b~ or on behalf of the Contractor per attached Ha ord form S 00 08 04 5; RE: Agreement for Professional Graphic Design Services in Communications for Recreation Department CERTIFICATE HOLDER CANCELLATION CITY001 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Carlsbad THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Recreation Department 799 Pine Avenue, Suite 200 AUTHORIZED REPRESENTATIVE Carlsbad, CA 92008 ~\~ I © 1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 72 SBA UU1144 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -PERSON-ORGANIZATION THE CITY OF CARLSBAD, IT'S OFFICALS, EMPLOYEES AND VOLUNTEERS 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CA 92008 Form IH 12 00 11 85 T SEQ. NO. 003 Printed in U.S.A. Page 001 Process Date: 0 7 / 11 / 18 Expiration Date: o 9 I 2 5 I 19 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) April 8, 2019 Date Proposed modification(s) to the PL requirement(s) for Tara Torbum --------------(Type of insurance) (Name of contract) D Reduce coverage to the amount of [21 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] ___________ _ [2:]Contract Amount/Term of Contract: $28,000 per year. Work will be completed over a period of 1 years □Professional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. [2:]Other (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): Contractor will only implement designs based on approved templates from the City of Carlsbad brand guidelines, and any needed photos or other images will be provided by the City of Carlsbad. Due to this limited role, the risk of professional liability is minimal. All work products will be reviewed and approved by city staff with professional expertise in graphic design and communication. Contractor will not ditribute finished products; that will be the responsibility of city staff. (Signature) H:\WORD\Insurance\Admin Order #68 waiver modify insurance requirements.doc AGREEMENT FOR GRAPHIC DESIGN SERVICES BETWEEN CITY OF CARLSBAD AND TARA TORBURN, A SOLE PRIOPRIETOR FOR GRAPHIC DESIGN ~~ ~GREEMENT is made and entered into as of the , . J L f:h day of _ __/~.(} , 20 11 , by and between the CITY OF CARLSBAD, a municipal corporation, "C' "), and Tara Torburn, a sole proprietorship, ("Contractor") for graphic design services. RECITALS City requires the professional services of a professional graphic designer who is experienced in graphic design for digital and print public outreach materials. 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 two years from the date first above written. The Agreement may be extended for three 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 twenty-eight thousand dollars ($28,000.00) per agreement year and shall be billed at the rate of eighty dollars ($80.00) per 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 (1 0%) 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, City Attorney Approved Version 6-2015 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 City Attorney Approved Version 6-2015 2 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 City Attorney Approved Version 6-2015 3 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. 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 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. 1 0.1.1 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. 1 0.1.2 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. 1 0.1.3 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. 1 0.1.4 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: 1 0.2.1 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. 1 0.2.3 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. City Attorney Approved Version 6-2015 4 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will fum ish 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 usabfe 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, City Attorney Approved Version 6-2015 5 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. 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. City Attorney Approved Version 6-2015 6 CONTRACTOR ~-~~ (Sign here) ftlf?A: lkf2:ft're()@.) WVf:IZ- (Print name/title) f ++-ovb@ Mac.?Q1Y) (e-mail address) **By: (Sign here) (Print name/title) (e-mail address) CITY OF CARLSBAD, a municipal corporation of the State of California By: ~yor ATTEST: 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 6-2015 7 EXHIBIT "A" SCOPE OF SERVICES Professional graphic design services for the City of Carlsbad. City will provide a detailed description of each graphic design project, including goals, audience, uses and deadlines, through e-mail, phone or in-person meeting. Contractor to design city materials, including but not limited to newsletters, brochures, ads, web graphics and fact sheets. Contractor to submit to community relations manager or media and graphics supervisor a draft for review and approval. Contractor will modify designs based on direction from the community relations manager or media and graphics supervisor. City will provide Contractor with photos, if needed. Contractor to obtain unlimited usage rights for any additional stock photos purchased and used. Contractor to follow style guidelines provided by the Communications Department for any Contractor created graphics, including fonts and colors. Contractor will deliver the following for each project: • All Project files in Adobe PDF files • All physical and digital media source files (graphics, animations and any other elements created for the project). Other considerations: • All works submitted to and accepted by the city must be an original piece designed by the contractor. • Contractor's graphic design submissions to the city may not contain profanity, erotica or pornography and/or the Contractor's personal racial, political or religious views. • 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: Number of hours: 8 NTE $28,000 per year NTE 350 per year City Attorney Approved Version 6-2015