HomeMy WebLinkAboutBrainshine; 2007-08-21;AGREEMENT FOR GRAPHIC DESIGN SERVICES
THIS AGREEMENT is made and entered into as of the t^J/ day of
_ /u^uins. f 20 <D 7 . by and between the CITY OF CARLSBAD, a municipal
corpora'tion,4^City"), and Brainshine, a California corporation, a graphic design business
("Contractor").
RECITALS
City requires the professional services of a graphic designer who is experienced in
magazine production, production of the City & Arts sections of the Winter 2007/Spring 2008
Community Services Guide. 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 one year from the date first above
written. The agreement can be extended for two additional one-year terms with the consent of
both parties.
3. Compensation. The total fee payable for the Services to be performed will be not to
exceed five thousand dollars ($5,000.00). No other compensation for the Services will be
allowed except for items covered by subsequent amendments to this Agreement. City reserves
the right to withhold a ten percent (10%) retention until City has accepted the work and/or the
Services specified in Exhibit "A."
4. Status of Contractor. Contractor will perform the Services as an independent contractor
and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will
be under the control of City only as to the results to be accomplished.
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 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
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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 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
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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 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 City Attorney or the
City Manager. 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 specified 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. City or Contractor may terminate this Agreement at any time after a
discussion, and written notice to the other party. City will pay Contractor's costs for services
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delivered up to the time of termination, if the services have been delivered in accordance with
the Agreement.
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, etseq.. and Carlsbad Municipal Code Sections 3.32.025, et
seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the
City 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 arishg 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 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
(e-mail address)
CITY OF CARLSBAD, a municipal
corporation of the State of California
(Print name/title)Cjty Manager-ctMayer
(e-mail address)ATTEST:
v\*»'ni"//.
k\,SB4/)"v
(Print name/title)
ORRAINE M. WOOD
City Clerk
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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. **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. BALtrCity Attorney
Deputy City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES
Vendor will produce the Winter 2007/Spring 2008 issue of the Community Services Guide for
Library, Arts, and City Manager's office,
• Communications Department, Arts and Library will provide vendor with copy and photos
for the Community Services Guide by Oct. 29, 2007.
• A digital, e-mail PDF of draft 1 is due to the Communications Department no later than Nov.
1,2007.
• Communications Department will return all draft 1 changes by Nov. 5, 2007 .
• Final copy with all the elements in place (screens, fonts, graphics and high-res images)
plus a set of marked up lasers to printer by Nov. 8, 2007.
• Inside pages will consist of one-spot color and will have copy as well as photos.
o Communications Department will provide copy.
o Photos may bleed
o City of Carlsbad will provide digital jpeg. images for vendor.
o Vendor will provide stock images when a Carlsbad photo is unavailable.
o Vendor is responsible for photo touch ups.
Vendor will design front covers and back covers of Community Services Guide
• Communications department will provide copy and photo for front covers and copy and
photos for outside back covers.
• Vender will provide stock images when a Carlsbad photo is unavailable for a cover.
• Front and back covers will have color photos and will be in a four-color format.
• A digital, e-mail PDF of draft 1 is due to the Communications Department no later than Nov.
1,2007.
• Communications Department will return all changes by Nov. 5, 2007,
• Final copy with all the elements in place (screens, fonts, graphics and high-res images)
plus a set of marked up lasers to printer by Nov. 8, 2007.
Vendor will prepare and deliver an electronic file with all the elements in place (screens, fonts,
graphics and high-res images) plus a set of marked up lasers to printer Nov. 8, 2007.
Vendor will produce materials by specific deadlines stated above.
Total: $5,000
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