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HomeMy WebLinkAboutATKINS/Post, Buckley, Schuh & Jernigan Inc; 2009-08-20; PWENG774AGREEMENT FOR PROFESSIONAL CONSULTING AND PUBLIC OUTREACH SERVICES (PBS&J) THIS AGREEMENT is made and entered into as of the 2Qfh day of fouMi&- , 20^. by and between the CARLSBAD MUNICIPAL WATER DISTRCn, referred to as ("CMWD"), and Post, Buckley, Schuh & Jernigan, Inc., doing business as PBS&J, a Florida Corporation ("Contractor"). RECITALS CMWD requires the professional services of a communications agency to provide consulting and public outreach services related to water issues. Contractor has the necessary experience in providing these professional services, has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. Scope of Work. CMWD retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in Exhibit "A", attached hereto and incorporated herein by this reference in accordance with the terms and conditions set forth in this Agreement. 2. Term. This Agreement is not to exceed one hundred thousand dollars ($100,000) per year for three (3) years with an optional two (2) year extension for a total of five (5) years. The agreement may be amended by mutual consent of the CMWD and Contractor. (1.) For communication consulting services: Rates are (a.) $165 for project manager; (b.) $140 for community relations specialist; (c.) $125 for assistant project manager; (d.) $120 for community relations specialist; (e.) $65 for account support coordinator Fees will be paid on a project-by-project basis and will be based on Contractor's schedule of rates specified above. Contractor shall prepare and submit to CMWD a detailed invoice identifying the services performed and the specified rate. Prior to initiation of any project work by Contractor, a CMWD representative shall discuss the project and fee with the Contractor. Contractor must be available to perform the project services within the identified time parameters. Thereafter, the CMWD as designee shall prepare a Project Task Description that specifies the work to be performed by Contractor, together with the maximum fee for the project. The Contractor shall review and sign the Project Task Description and return it to the CMWD representative for signature. Once signed by all parties, the CMWD will issue a Notice to Proceed to Contractor. If process payments are requested by Contractor, the Project Task Description shall set forth a schedule as to when payments are made based upon a time and materials basis, monthly. CMWD reserves the right to withhold a ten percent (10%) retention until CMWD has accepted the work and/or the Services specified in the Project Task Description. Contractor shall not add any additional contract terms or conditions in any project task description. 3. Status of Contractor. Contractor will perform the Services as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of CMWD. Contractor will be under the control of CMWD only as to the results to be accomplished. 4. Progress and Completion: The work for any project granted to the Contractor pursuant to this Agreement will begin within a mutually agreed upon time after receipt of notification to proceed by the CMWD and will be completed within the time specified in Exhibit "A" for the project. In no event shall a specific task exceed the term of this Agreement. 5. Ownership of Work(s). Excepting such items which are specifically identified by Contractor as proprietary trade secrets, any and all sketches, drawings, tracings, field survey notes, computations, detail, and other materials and documents (collectively "Work(s)") prepared by Contractor in the performance of this Agreement shall be the property of CMWD from the moment of their preparation, and Contractor shall deliver such materials and documents to CMWD, 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 CMWD may agree as to in writing. 6. Titles and Copyright Assignment. Contractor and CMWD 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 CMWD. 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 CMWD, 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 CMWD 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 CMWD purposes. Contractor agrees to execute all required documents and to perform such other proper acts, as CMWD may deem necessary to secure for CMWD or its designee the rights herein assigned. 7. Indemnification for Intellectual Property Infringement. Contractor agrees to defend, indemnify and hold harmless CMWD, 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 CMWD'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 from such Infringement Claim(s), including reasonable attorneys' fees, as they are incurred by CMWD or any other party indemnified under this Section. CMWD 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), CMWD will permit Contractor, at Contractor's option and expense for all associated costs, either to procure the right for CMWD 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 CMWD'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 CMWD's use of Contractor's Works, products, services and/or deliverables (e.g., injunctive relief), or if CMWD's continued use of them may subject it to punitive damages or statutory penalties, CMWD shall give written notice to Contractor of such fact(s). Upon notice of such facts, Contractor shall procure the right for CMWD 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 CMWD, CMWD 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 "CMWD's Remedial Acts"). Contractor shall indemnify CMWD for all amounts paid and direct and indirect costs associated with CMWD's Remedial Acts. Failure by Contractor to pay such amounts within ten (10) calendar days of invoice by CMWD shall, in addition to and cumulative to all other remedies, entitle CMWD to immediately withhold payments due Contractor under this Agreement up to the amount paid in connection with CMWD's Remedial Acts. 8. Indemnification - General. Contractor agrees to indemnify and hold harmless the CMWD 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 CMWD incurs or makes to or on behalf of an injured employee under the CMWD'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 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 five hundred thousand dollars ($500,000) each, unless otherwise authorized and approved by the CMWD Executive Manager or General Counsel. 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 CMWD by certified mail. CMWD 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 CMWD prior to CMWD's execution of this Agreement. 10. Conflict of Interest. CMWD will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and CMWD'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 CMWD those schedules specified by CMWD 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 CMWD of Carlsbad Business License for the term of this Agreement. 12. Termination. CMWD or Contractor may terminate this Agreement at any time after a discussion, and written notice to the other party. CMWD will pay Contractor's costs for services delivered up to the time of termination, if the services have been delivered in accordance with the Agreement. CMWD may terminate this agreement if CMWD Board does not appropriate funds for subsequent agreement years. 13. Claims and Lawsuits. By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing of false claims as set forth in the California False Claims Act, Government Code sections 12650, et seq.. and Carlsbad Municipal Code Sections 3.32.025, et seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the CMWD of Carlsbad to terminate this Agreement. 14. 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. 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 CMWD. 16. Amendments This Agreement may be amended by mutual consent of CMWD and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. 17. 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 Post, Buckley, Schuh & Jernigan, Inc., d/b/a PBS&J *Bv: Senior Vice President (print name/title) rgrubelOpbsj .com CMWD. a Public Agency organized under the Municipal Water Act of 1911. and a Subsidiary District of the City of Carlsbad Executive Manager ATTEST: (e-mail address) LORRAINE Secretary Assistant Secretary (print name/title) cnostra@pbsj.com (e-mail address) If required by CMWD, proper notary 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. **Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President 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: RONALD R. BALL, General Counsel By: &-.0 : 2:55: Deputy General Counsel Deputy City Attorney EXHIBIT "A" PROJECT TASK DESCRIPTION Each Project Task Description issued to Contractor by CMWD shall be made a part of this Agreement and shall be subject to the terms and conditions of this Agreement.