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HomeMy WebLinkAboutJovenville LLC dba We The Creative; 2014-08-27;AGREEMENT FOR PROFESSIONAL GRAPHIC DESIGN SERVICES BETWEEN CITY OF CARLSBAD AND JOVENVILLE, LLC D.B.A. WE THE CREATIVE, A LIMITED LIABIUTY PARTNERSHIP THIS AGREEMENT is made and entered into as of the ^7"^ clay of Auiau^'O 20/*A , by and between the CITY OF CARLSBAD, a municipal corporatioh? C'City"), and Jovenville, LLC, D.B.A. We The Creative, a Califomia limited liability partnership ("Contractor"). RECITALS City requires the professional services of a graphic designer experienced in creating visual materials for the City's public outreach and communication efforts, including but not limited to Web, publications and video. 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. Scooe 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, with an optional three (3) year extension for a total of five (5) years. 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) per agreement year and shall be billed at the billing 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 Services specified in Exhibit "A." For graphic design services: Rates are: a) $65 for graphic designer per hour b) $65 for copywriter per hour c) $90 for project manager per hour d) $90 for senior graphic designer per hour e) $110 for creative director per hour 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. City Attorney Approved Version 1.2014 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 (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. 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 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. 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 limitation, removal or destruction) or the making of any derivative works based on the Work, including, without limitation, photographs, drawings or other visual reproductions orthe 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 City Attorney Approved Version 1.2014 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 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, 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 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 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 City Attorney Approved Version 1.2014 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 ofthis 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 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 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 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 City Attorney Approved Version 1.2014 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 Govemment Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civii penaities 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 resolution of any disputes between the parties arising out of this Agreement is the State Superior Court, San Diego County, Califomia. 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 ( pign hereby [7 e) , n i \ (^\0U^^{\\< ^LOA\ (Print ndfhe/title) 4 mail address) Joven Orozco, President (Print name/title) Joven@WeTheCreatlve.com (e-mail address) **gy. CITY OF CARLSBAD, a municipal corporation ofthe State of California lay, CoNfimunications IVIanager City Attorney Approved Version 1.2014 ATTEST: JARA E City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. |f_a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-President "Group B. Secretary, Assistant Secretary, 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. RRFWFR, City Attorney Assistant City Attorney City Attorney Approved Version 1.2014 EXHIBIT "A" SCOPE OF SERVICES City will provide a detailed description of each graphic design task and deadlines through e-mail, phone or in-person meeting. Contractor to design city materials, including but not limited to newsletters, brochures, ads, web and web graphics and fact sheets. Contractor to submit to communications manager or her designee a draft for review and approval. Contractor will modify designs based on direction from the Communications Department. City will provide Contractor with photos, if needed. Contractor to obtain unlimited usage rights for any additional stock photos purchased and used. Contractor to follow style guidelines provided by the Communications Department for any Contractor created graphics, including fonts and colors. Contractor will deliver the following for each project: • All Project files in Adobe PDF files • All physical and digital media source files (graphics, animations and any other elements created for the project).Raw footage is to be delivered in native format. Other considerations: • All works submitted to and accepted by the city must be an original piece designed by the contractor. • Contractor's graphic design submissions to the city may not contain profanity, erotica or pornography and/or the Contractor's personal racial, political 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. 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. City Attorney Approved Version 1.2014