HomeMy WebLinkAboutDefalco, Philip Dale; 2013-12-17; PWM14-22PEMAGREEIVIENT FOR PHOTOGRAPHY SERVICES
BETWEEN CITY OF CARLSBAD AND
PHILIP DALE DEFALCO DBA DEFALCO PHOTOGRAPHY
THIS AGREEMENT is made and entered into as of the /7"^ day of
t>^Ce^[:^c^r . 20 13 . by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and PHILIP DALE DEFALCO, a sole proprietor, dba DEFALCO
PHOTOGRAPHY ("Contractor").
RECITALS
City requires the professional services of a photographer who is experienced in portrait, event
and project 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 two (2) years from the date first
above written. The Agreement may be extended for one (1) additional one (1) year term with
the consent of both parties.
3. Compensation. The total fee payable for the Services to be performed shall not exceed
fourteen thousand eight hundred and seventy five dollars ($14,875) per agreement year, for a
total of twenty nine thousand seven hundred and fifty dollars ($29,750.00) for the term of the
contract. Fees shall be billed at the rate of one hundred and seventy five dollars ($175.00) per
hour. No other compensafion 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 compensafion 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' compensafion 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
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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 sfill 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 wrifing.
6. Tifies and Copvright Assignment. Contractor and City intend this to be an Agreement for
Services and each considers the deliverable product (Work) and results ofthe Services to be
rendered by Contractor hereunder to be a work made-for-hire. Contractor acknowledges and
agrees that the Work (and ali 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 enfire 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.
Ifthe 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 limitafion, 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, acfion, 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 othenA/ise
violates this Section [collectively referred to for purposes ofthis Secfion 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 underthis Section.
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City also agrees that, ifthe use or operation ofthe 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 confinue 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, entitie City to immediately withhold payments due Contractor under this Agreement
up to the amount paid in connection with City's Remedial Acts.
8. Indemnificafion - 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 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 Besfs 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 othenft/ise authorized and approved by the City
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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 satisfacfion, 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 ofthis 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 terminafion. 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 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
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as a Contractor on any public work or improvement for a period of up to five (5) years.
Contractor acknowledges debarment by another jurisdicfion 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 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 writing signed by both parties.
18. Authoritv. 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
(Sign hffere)
?l^ilv^ VLfaXcQ, 6LoiAey"~
(Print name/titie)
(e-mail address)
**By:
(Sign here)
(Print name/tifie)
(e-mail address)
CITY OF CARLSBAD, a municipal
corporation of the State of California
Communiyca^ns Manager
ATTEST:
BARBARA ENGLESON
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 oflficer 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. BRgJ/ER, City Attorney
TKsgrstdiil-G^y Attorney
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EXHIBIT "A"
SCOPE OF SERVICES
Task
Photography of up to 85 hours in the City of Carlsbad
Direct and shoot outdoor/indoor photos of city events, projects, city staff
and volunteers throughout various city locations.
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 Carfsbad locations for use in printed and electronic city
communications, such as the website, newsletters and brochures.
Contractor will provide communications manager with a disc of high
resolution digital (JPEG) files of images taken at the photo shoot within
seven (7) (working) days.
Resolution and size of digital JPEG images shall be no smaller than 3836
pixels X 2558 pixels at 13" x 9." File size shall be no larger than 6 MB
unless otherwise specified..
City employees will handle scheduling based on availability of
photographer, models and locations, identifying locafions and obtaining
release forms for models (when needed). Contractor will be in charge of
obtaining signed model release forms from individuals participating in
photo shoot with forty eight (48) hours' advance notice from city staff.
Contractor is responsible for prinfing copies of model release forms
provided by the city.
City employees may 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.
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Photo shoots wiil 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-five (25) percent ofthe shoots may occur dunng
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.
Contractorto provide camera equipment, including camera, batteries,
power, flashes, film, light meters, tripods, memory cards.
Contractor's photos must be in color, unless otherwise noted by city
employees.
Contractor will coordinate dates/times/locations with the city's
communication manger or designee.
Deliver or mail communications department, 1200 Carfsbad Village Drive,
Carlsbad, CA 92008, with a disc of each photo shoot within one (1) week
of each shoot Discs should be labeled with the shot location and date.
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: $14,875 per year
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