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HomeMy WebLinkAboutSideshow Network Inc dba Marcom Interactive; 2009-06-02;AGREEMENT FOR PROFESSIONAL INTERACTIVE MEDIA CONSULTING SERVICES IN COMMUNICATIONS (SIDESHOW NETWORK, INC. dba MARCOM INTERACTIVE) ~THIS AGREEMENT is made and entered into as of the £?\KLoL day of IMjUO , 20nflf, by and between the CITY OF CARLSBAD, referred to as ("City")*' and Sideshow Network, Inc. dba Marcom Interactive, a California Corporation ("Contractor"). RECITALS The City requires the professional services of a communications agency to provide consulting services related to interactive media. 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 six (6) 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 twenty thousand dollars ($20,000) 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 the 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 City Attorney Approved Version #11.28.06 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. 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 City Attorney Approved Version #11.28.06 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. 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. City Attorney Approved Version #11.28.06 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 be determined that disclosure is required, Contractor or Contractor's employees, agents, or subcontractors will complete and file with the City Secretary 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 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) City Attorney Approved Version #11.28.06 CONTRACTOR CITY OF corporatio By: unicipal (print name/title) (e-mail address) (print name/titlej LORRAINE M. WOOD (e-mail 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: RONALD R. BAU-««U£3tttorney By: EXHIBIT "A" SCOPE OF SERVICES Social Media Strategy, Plan and Policy Development The contractor will develop a citywide social media strategy, plan and policy, including the following activities and deliverables: Activities Situational Analysis and Constraints Meet with the communications manager or other staff as appropriate to articulate a general "situational analysis." This typically includes: reviewing the existing communication plans as relevant to social media; defining and prioritizing goals for the potential initiative(s); reviewing best practices with city staff as well as what other public agencies are doing in social media; exploring constraints, such as legal, organizational, technological and/or political that the social media initiative must address or work within; defining specific city audiences for a given initiative; exploring and defining potential success measurements. Audience Research A brief online "conversation and audience review" will be conducted to inform and evaluate the city's online audiences and online places relevant to them. This audience review: provides the city with a snapshot of what is happening in its specific constituents' environment online; assists the city in pinpointing specific opportunities for a social media program; informs about how the city might best engage its various audiences; validates Facebook, YouTube and Twitter as venues for the city's efforts and discovers possible other appropriate online venues and channels for the social media initiative; develops other insights into the city's audience behaviors online. Defining Metrics Based on the outcomes of the reviews, research and constraints, the contractor will revisit the initial goals for the city's social media strategy to make sure all are aligned with the outcomes of these findings. From there, the contractor will work with the communications manager to identify relevant measures of success for the social media program. The Plan: The City's Social Media Roadmap The social media plan/roadmap brings it all together and gets specific. The plan includes recommendations for specific initiatives, specific technologies, specific channels and/or venues - and the recommendations for integrating social media with the city's overall Internet presence and internal processes. Deliverables and Timeline The following deliverables will be produced within the timeframes listed below: Up to five in-person meetings at the city offices with communications manager or other staff for information exchange, discovery and collaboration (ongoing). An interim report detailing research findings, including summary of the quantity and nature of existing social media "conversations" about Carlsbad. Contains links to examples of online discussions and an analysis of the research findings that includes initial recommendations for the city's social media program. Document will serve as baseline against which future studies will be measured (five weeks from notice to proceed). Verbal presentation and review with appropriate staff of the research report; gathering feedback from and discussion with city staff (six weeks from notice to proceed). Based on research and direction from city staff, produce a social media strategy and 12-month plan (12 weeks from notice to proceed), including: social media goals and objectives target audiences recommended social media strategies list and description of supporting tactics and target media detailed steps for implementation suggested evaluation measures and targets After meeting with the city attorney or his designee, produce a draft social media policy document. Obtain feedback from the city attorney or his designee and produce a final draft (16 weeks from notice to proceed). Up to four hours total of in-person training for up to 10 city staff (18 weeks from notice to proceed). Two-page executive summary of plan geared toward city elected leaders and staff leadership team (24 weeks from notice to proceed). Other Considerations All works submitted to and accepted by the city must be an original piece written by the contractor. All works submitted by the contractor must be in standard U.S. English. All works must be submitted in Microsoft Word format and include a headline pertaining to the work in bold. The work should appear in a non-bolded Calibri, 12 point font. All works must be written in AP style format Contractor's 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. Total: $20,000 WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Krisitina Ray, communications department May 16, 2009 (Name and Department) Date Proposed modification(s) to the PL requirement(s) for Marcom:Interactive (Type of insurance) (Name of contract) I | Reduce coverage to the amount of: [X] Waive coverage D Other: FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) I [Significance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product, [explain] I [Significance of Contractor: Contractor has unique skills and there are few if any alternatives, [explain: include number oj candidates RFP sent to and number responded if applicable] ^Contract Amount/Term of Contract: SXX.OQQ. Work will be completed over a period of 1 yr, [^[Professional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]'. IXlOther (e.g. explain why exposures are minimal, how exposures are covered in another policy, exposure control mechanisms, and any other information pertinent to your request): Admin order 68 (pg. 12) states that it is not necessary for public relations services to be covered under professional liability when "the scope of work is primarily advisory in nature, there is in-house expertise to adequately evaluate contractor's recommendations and staff can control the results of the project. In the case of Marconrlnteractive, the scope of work is primarily advisory in nature; Kristina Ray, communications manager, has the in-house expertise to adequately evaluate the contractor's recommendations; and Ray can control the results of the contractor's work. Approved by Risk Manager for this contract only: (Signature) (Date)