HomeMy WebLinkAboutAtkins North America Inc; 2014-04-06;AGREEMENT FOR COMMUNICATIONS SERVICES
BETWEEN CITY OF CARLSBAD AND
ATKINS NORTH AMERICA, INC.
THIS AGREEMENT is made and entered into as of the l^"^ day of
CTunC^ 20 , by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and Atkins North America, Inc., a Florida corporation ("Contractor").
RECITALS
City requires the professional services of a communication consultant experienced in providing
public outreach and involvement services for city issues, events, projects and sen/ices.
Contractor has the necessary experience in providing these professional services, has
submitted a proposal to City and has affirmed its willingness and ability to perfonn 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 sen/ices (the "Sen/ices") 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 (2) years from the date first
above written. The Agreement may be extended for three (3) 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 thousand dollars ($20,000.00) per agreement year and shall be billed at the hourly rates
listed below. 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 Sen/ices specified in Exhibit "A."
(a.) $130 for senior project manager
(b.) $120 for community relations specialist and project manager
(c.) $115 for community relations specialist I
(d.) $95 for community relations specialist II
(e.) $65 for account support coordinator
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
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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
5. Ownership of Work(sV 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 Coovrioht Assionment. Contractor and City intend this to be an Agreement for
Services and each considers the deliverable product (Work) and results ofthe Sen/ices 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 Propertv Infrinoement. 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
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or othenwise 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 othenwise
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
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,
sen/ices 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, sen/ices 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, sen/ices 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, sen/ices 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.
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9. Insurance. Contractor will obtain and maintain policies of commercial general liability
insurance, automobile liability insurance, a combined policy of workers' compensation,
employers liability insurance, and professional liability insurance from an insurance company
authorized to transact the business of insurance in the State of California which has a current
rating in the Best's Key Rating guide of at least A-:V in an amount of not less than one million
dollars ($1,000,000) for each policy, unless othenwise authorized and approved by the City
Attorney or the City Manager. Notwithstanding, Workers' Compensation and employers liability
insurance limits shall not be less than the amount 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. Contractor will obtain occurrence coverage,
excluding Professional Liability, which will be written as claims-made coverage. The insurance
will be in force during the life of this Agreement and will not be canceled without thirty (30) days
prior written notice to the City by certified mail. City will be named as an additional insured on
General and Automobile liability. Contractor will furnish certificates of insurance to the Contract
Department, with endorsements to City prior to City's execution of this Agreement.
10. 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 specifled by City and
contained in the Statement of Economic Interests Form 700.
11. 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.
12. Termination. In the event of the Contractor's failure to prosecute, deliver, or perform the
Sen/ices, 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 terminafion date; however, the total will not exceed the lump
sum fee payable under this Agreement. City will make the final determinafion as to the portions
of tasks completed and the compensation to be made.
13. 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 litigafion. 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
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Government Code secfions 12650 et seq., the False Claims Act applies to this Agreement and,
provides for civil penalfies 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.
14. Venue and Jurisdiction. Contractor agrees and stipulates that the proper venue and
jurisdiction for resolufion of any disputes between the parties arising out of this Agreement is the
State Superior Court, San Diego County, California.
15. 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.
16. Amendments This Agreement may be amended by mutual consent of City and
Contractor. Any amendment will be in wrifing, signed by both parties, with a statement of
estimated changes in charges or fime schedule.
17. Enfire 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 enfire Agreement and understanding between the parties relafing to the subject
matter of it. In case of confiict, 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 wrifing signed by both parties.
18. Authority. The individuals execufing 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 condifions of this Agreement.
CONTRACTOR ^ . . A • * * o *
Rene de los Rios - Assistant Secretary
ATKINS NORTH AMERICA, INC. (Print name/title)
*D . ^ . Rene.DeLosRios@atkinsglobal.com
y VLva—C^^^^^''''-*^ address)
(Sign here)
^ . .yt I L* »/ & CITY OF CARLSBAD, a municipal
/vV.lQ<Jg4^7!)f V. -K corporation of the State of Califomia
(Print name/title)
(e-mail address) CiTJ Maitthgcr or f^te^i^
(Sign here)
Kristina Ray
Communications Manager
ATTEST:
City Attorney Approved Version 1.2014
5
BARBARA ENGLESON
City Clerk
If required by City,proper notarial ackno^dgment of execution by contractor must be attached. Jf_a
Corooration. Agreement must be signed by one corporate officer from each of the following two groups.
*Group A.
Chainnan,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporafion must attach a resolufion certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporafion.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
City Attorney
City Attorney Approved Version 1.2014
NOTARY ACKNOWLEDGEMENT
STATE OF FLORIDA }
COUNTY OF MLAMI-DADE }
PERSONALLY
Rene de los Rios
APPEARED before me,
well known
the undersigned authority,
to me or who has produced
as identification and known
by me to be the Assistant Secretary of the corporation named above, and
acknowledged before me that he executed the foregoing instrument on behalf of said corporation as
its true act and deed, and that he was duly authorized to do so.
WITNESS my hand and official seal this day of May, 2014.
NOT/^ PUBLIC
Print Name: Annette Munoz
My Commission Expires: March 1,2015
ANNtTJtMUHOi
i^K^^^S. ''<>'3^y ''"'''''^' °' Florida
I'C My Comm. Expires Mar 1,2015
'^^^^^^ Commission # EE 44105
''''•HSi^^" Bonded Through Natioflal Notary Assn.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
State of California
County of.
On ^b^lvM before me, ^kpV\ayi\^\^^rS<^V^ ^ Us^^M^
^ J Dlti ^K-T I Here Insert Name and Title of the Officer
personally appeared Name(s) of Signer(s)
STEPHANIE HENOERm {
Commission # 200183a {
Ipff^B NotwylHiMc'CaUtoniii I
Sm Disgo Coimty g My Comm. giirtros Jsn 13. jOill •<04'm'mmi9mi>mmkimmm¥^
who proved to me on the basis of satisfactory
evidence to be the personj;s)-whose name(s). iSiiare
subscribed to the within instrument and acknowledged
to me that he/sl?i«/t*=tey executed the same in
his/heF/their authorized capacity(i«6), and that by
his/h€*Ahetr signature(s} on the instrument the
person(s); or the entity upon behalf of which the
person(.^acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal Above
Signature:
OPTIONAL
Signature of Notary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document: _
Document Date: . Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
• Corporate Officer — Title(s):
• Individual
• Partner — • Limited • General
• Attorney in Fact
• Trustee
• Guardian or Conservator
• Other:
RIGHTTHUMBPRINT
OF SIGNER
Top of thumb here
Signer Is Representing:
Signer's Name:
• Corporate Officer — Title(s):
• Individual
• Partner — • Limited • General
• Attorney in Fact
• Trustee
• Guardian or Conservator
• Other:
RIGHT THUIVIBPRINT
OF SIGNER
Top of thumb here
i 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827)
CORPORATE RESOLUTION
OF
ATKINS NORTH AMERICA, INC.
RESOLVED, that the below named officers are authorized to execute documents on
behalf of Atkins Nortti America, Inc.:
L. Joe Boyer
Barry J. Schulz
Thomas F. Barry, Jr.
Martin H. Brown
Kenneth J. Bums, Jr.
C. Ernest Edgar, IV
Donna M. Huey
Justin P. Jones
Steven J. Levin
Steven C. Malecki
Eric S. McLaurin
Maureen M. Nayowith
Michael M. Newton
David D. Quinn
William R. Winkler
Chief Executive Officer/President
Chief Operating Officer
Senior Vice President
Senior Vice President/Chief Information Officer
Senior Vice President
Senior Vice President/General Counsel/Secretary
Senior Vice President
Senior Vice President
Senior Vice President/Chief Financial Officer/Treasurer
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
FURTHER RESOLVED, that the following named officers are authorized to attest to the
signatures of officers executing documents on behalf of Atkins North America, Inc:
C. Ernest Edgar, rv
James R. Steele, Jr.
Rene de los Rios
Jayanth Jayaram
Senior Vice President/General Counsel/Secretary
Vice President/Assistant Secretary
Vice President/Assistant Secretary
Vice President/Assistant Secretary
This resolution is adopted as of April 16,2014 and remains in effect until a succeeding
resolution is adopted.
Emest Edgar, IV, Secretary
Corporate Seal
•S: SEAL
1930 r.oi
EXHIBIT "A"
SCOPE OF SERVICES
Public Outreach and Involvement Services
Provide public outreach and involvement services as needed to support the city's communication
function, including:
• Public information for city issues, events, projects and services.
• Coordinafion of public outreach and involvement acfivities to promote awareness of and
involvement in city programs, events, issues and services.
• Producfion of city informafional materials.
• Coordinafion and promotion of special events and public meetings.
• Wrifing news releases, articles, website content, fact sheets and informational descripfions
of city issues, events, projects and services.
This task will be directed by the communications manager.
Other Considerations
All works submitted to and accepted by the city must be an original piece written by the
Contractor.
All works submitted by the Contractor must be in standard U.S. English and adhere to the City
of Carlsbad Wrifing 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.
All works must be written in AP style format.
Contractor's submissions to the city may not contain profanity, erofica or pornography and/or
the Contractor's personal racial, polifical 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.
Total (not to exceed) twenty thousand dollars ($20,000)
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