HomeMy WebLinkAboutChris Wellhausen dba Chris Wellhausen Photography; 2014-07-16;AGREEMENT FOR PHOTOGRAPHY SERVICES
CHRIS WELLHAUSEN DBA CHRIS WELLHAUSEN PHOTOGFIAPHY
THIS AGREEMENT is made and entered into as of the day of
Zru(u , 2Q_ltt-i by and between the CITY OF CARLSBAD, a municipal
corporation,TCity"), and Chris Wellhausen, a Sole Proprietor ("Contractor").
RECITALS
City requires the professional services of a photographer who is experienced in event, portrait,
journalism and landscape photography. 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 (1) year from the date first
above written. The Agreement may be extended for two (2) additional one (l)-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
fifteen thousand dollars ($15,000.00) and shall be billed at the following rate:
• $25 per digital image (specifications included in attached scope of work), with a minimum
order of 25 images per shoot.
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 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
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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(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. Tities 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, titie 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 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
settiement of such Infringement Claim(s), as well as any and all expenses or charges arising
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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 ofthe 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 hght 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, entitie 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 directiy or indirectiy 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
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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 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. 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 usable and of worth to City in having the Agreement completed. Based upon that
finding City will determine the final payment ofthe 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.
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 litigation. Contractor
acknowledges that if a false claim is submitted to City, it may be considered fraud and
Contractor may be subject to criminal prosecution. Contractor acknowledges that California
Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and,
provides for civil penalties where a person knowingly submits a false claim to a public entity.
These provisions include false claims made with deliberate ignorance of the false information or
in reckless disregard of the truth or falsity of information. If City seeks to recover penalties
pursuant to the False Claims Act, it is entitied to recover its litigation costs, including attorney's
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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 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 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. 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.
18. 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 munidpal
(Sign here) corporation of the State of California
(Print name/title)
^Ur-.^ g t^r\sUl^lU*U<y A. Communications Manager
(e-mail address)
ATTEST:
^By:
(Sign here)
(Print name/title) City Clerk
BARBARA ENGQESON
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If required by City, proper notarial acknowledgment of execution by contractor must be attached. ILa
Corporation, Agreement must be signed by one corporate officer from each ofthe 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:
CELIA A. BREWER, City Attorney
mt City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES
Task
Produce up to 600 digital images for the City of Carlsbad.
Direct and shoot outdoor/indoor photos of city events, projects, city staff and
volunteers throughout various city locations for use in printed and electronic
communication materials. Images will also be used for archival and historical
purposes.
Coordinate with photo subjects in person or by phone about locations, time and
dates of photo shoots
Identify and coordinate photo shoots at city locations, including city landmarks,
buildings and events desired to use in printed and electronic city communications,
such as the website, newsletters and brochures.
Photos of people desired Include high-quality, candid and posed images of people in
Carlsbad locations for use in printed and electronic city communication, such as the
website, newsletters and brochures.
Photos of projects, landmarks, buildings and events desired include high-quality
images in Carlsbad locations for use in printed and electronic city communications,
such as the website, newsletters and brochures.
Contractor will provide the Communications Manager with a link to high resolution
digital (JPEG) files of images taken at each photo shoot within five (5) working days.
Link will enable Communications Manager to download high resolution images. If
requested, contractor will also provide images on a CD or DVD
Resolution and size of digital JPEG images high resolution digital files, no smaller
than 2625 w x 3375 high, (8.75 x 11.25) at 300 ppi.
City employees will handle scheduling based on availability of photographer, models
and locations, identifying locations and obtaining release forms for models (when
needed). Contractor will be in charge of obtaining signed city-approved model
release forms from individuals participating in photo shoot with forty eight (48) hours'
advance notice from city staff. Contractor is responsible for printing copies of model
release forms.
City employees will accompany photographer on shoots (when needed) and provide
direction regarding desired shots.
City employees will provide a description of each shoot, including time, location
desired images and models
City or Contractor may cancel a scheduled shoot with forty eight (48) hours' notice
for unavoidable, unscheduled and unanticipated schedule conflicts.
City or Contractor may cancel a scheduled shoot with six hours' notice if weather
conditions are deemed unacceptable for obtaining desired images.
Photo shoots will generally occur during daylight hours. Most will occur between
Monday and Friday, between the hours of 7:30 a.m. and 5:30 p.m., but up to twenty-
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five (25) percent ofthe shoots may occur during weekends.
Contractor to edit photos as deemed necessary by the city and the photographer to
correct for exposure or other imperfections.
The cost includes the unlimited right of the City of Carlsbad to use the photos. Work
(and all rights therein, including, without limitation, copyright) belongs to and shall be
the sole and exclusive property of city. City use will include primarily city produced
informational materials distributed within the City of Carlsbad. City may provide
photos to the media for use in city related media coverage.
Contractor to provide camera equipment, including camera, batteries, power,
flashes, film, light meters, tripods, memory cards.
Contractor's photos must be in color, unless othenwise noted by city employees
Images shall be named according to the following naming convention:
(photographer's initials) (short subject name) (date). For example: CW kids at
beach 061212. The only metadata to be saved with each photo file shall be "City of
Carlsbad"
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 not to exceed amount for contract: $15,000
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