HomeMy WebLinkAboutKatz & Associates; 2008-04-09;AGREEMENT FOR PROFESSIONAL
CONSULTING AND
PUBLIC OUTREACH SERVICES
IN COMMUNICATIONS
(Katz & Associates)
AGREEMENT is made and entered into as of the ' day of
, 20 4f , by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and Katz and Associates, a Nevada Corporation ("Contractor").
RECITALS
City requires the professional services of a communications agency to provide consulting and
public outreach services for City proposed power plant issues.
Contractor has the necessary experience in providing these professional services, has
submitted proposals 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 hereto and incorporated
herein by this reference in accordance with the terms and conditions set forth in this Agreement.
2. Term. This Agreement, commencing on the date first written above, is for eighteen (18)
months. This Agreement may be amended in writing by mutual consent of the City and
Contractor.
3. Compensation. The cumulative total for all projects allowed pursuant to this Agreement
shall not exceed eighty-five thousand dollars ($85,000) per Agreement year.
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. 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 City 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.
6. 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.
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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.
7. 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.
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.
8. 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
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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.
9. 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.
10. 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.
11. 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
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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.
12. 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.
13. 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
delivered up to the time of termination, if the services have been delivered in accordance with
the Agreement. City may terminate this agreement if City Council does not appropriate funds for
subsequent agreement years.
14. 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
City of Carlsbad to terminate this Agreement.
15. 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.
16. 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.
17. 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.
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.
(Remainder of Page Intentionally Left Blank)
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CONTRACTOR
*By: Q« IM
CITY OF/) CARLSBAD, a
corporatior/ of ths Stats
(sign here)
Itii*
(print name/title)
unicipal
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(e-(e-mail address)
ATTEST:
*By:
(sign here)
-
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(print name/title)
^ o/° tu"^.''--."V ^.
~^ ••^EE^^%^v^ir°;^aitMoE
(e-rhail address)
If required by City, 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:
RONALDE_BALL, City Attorney
Deputy City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES
Task
Public Meetings (up to 5)
Update stakeholder lists as needed for mailings
Draft and design mailers, fliers and ads (city to pay directly for printing)
Coordinate printing and distribution of fliers and placement of ads (city to
handle distribution and pay for ad placement directly)
Attend meetings with city staff regarding meeting planning and strategy
Draft and update Carlsbad Connected Web site with meeting information
Draft and finalize a summary of each meeting for posting on Carlsbad
Connected Web site and distribution to interested stakeholders
Prepare for and attend each meeting to monitor discussion and draft
summary
Assist in the preparation of city remarks and presentations
Media
Draft and finalize up to two articles for media distribution
Prepare key points for media briefings
Participate in meetings and phone conferences regarding media strategy
Community Outreach
Schedule and coordinate presentations to interested groups
Update article for community and HOA newsletters. Distribute and follow
up to encourage placement
Research and draft three project updates for distribution to stakeholder e-
mail list. City to handle distribution
Draft letter to legislators regarding the city's position on the proposed
project. City to handle distribution
Web
Update Carlsbad Connected Web site with new information as needed
Create 2 new Web graphics for City of Carlsbad home page
Informational Materials
Update fact sheet and Q&A documents up to two times based on project
updates and city direction. City to pay directly for printing and distribution
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Project Management and Strategy
Coordination of project, timelines, budgets and as needed meetings.
Create updated work plans as needed
Provide ongoing strategic counsel regarding outreach to community
members
For each task, Vendor will produce materials by specific deadlines created by communications
department. Vendor will receive at least one-week written notice from communications
department for each task and deadline date for each task.
Total:$85,000
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