HomeMy WebLinkAboutPost, Buckley, Schuh, and Jernigan Inc; 2009-05-04;AGREEMENT FOR PROFESSIONAL
CONSULTING AND
PUBLIC OUTREACH SERVICES
IN WASTE WATER
(PBS&J)
AGREEMENT is made and entered into as of the f day of
_, 20/^7. by and between the CITY OF CARLSBAD, referred to as
("City"), anil Post, Buckley, Schuh & Jernigan, Inc., doing business as PBS&J, a
Florida Corporation ("Contractor").
RECITALS
The City requires the professional services of a communications agency to
provide consulting and public outreach services related to waste water 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 one (1)
year. 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 thirty thousand dollars ($30,000) 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
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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.
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),
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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 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'
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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 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 sea., and Carlsbad Municipal Code
Sections 3.32.025, et sea. 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.
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CONTRACTOR: POST, BUCKLEY, SCHUH
& JERNIGAN, IN£., d/b/a PBS&J
*By:
CITY OF CARLSBAD,
corporati Clifornia
(sign herd)
Richard M. Grubel, Senior Vice President
(print name/title)
rgrubel@pbsj.com
(e-mail address)
ATTEST:
LORRAINE M. WOC^D^n,,
City Clerk
(sigirfiere)
Charles D. Nostra, Assistant Secretary
(print name/title)
cnostra @ pbsj.com
(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. BALL, City Attorney
B*: )QO_ L
"Deputy City Attorney^
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EXHIBIT "A"
SCOPE OF SERVICES
Task
• Write copy for one (1) fact sheet for residents and one (1) for
businesses, each up to two (2) pages.
• Design coordination for four (4) fact sheets using a graphic
designer under contract with the City.
o Graphic design services to be billed directly to the City
and are not included in this contract.
o Printing services to be billed directly to the City and are
not included in this contract.
• Coordinate up to five (5) presentations to business groups,
HO As and other interested parties.
• Develop a PowerPoint presentation and deliver presentation to
up to three (3) groups or parties.
• Coordinate a public meeting to obtain input on the WDRs,
including public notification through direct-mail and
newspaper advertising (media buy, postage and printing to be
paid for directly by the City), coordination with city staff on
room set up (room facility and A V needs to be provided by the
City), and attendance at meeting to assist with logistics and
note taking.
• Outreach report documenting outreach efforts and input
received.
• 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 US
English
• All works must be submitted in Microsoft Word format and
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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 must proofread and complete a grammar and spell
check on each article prior to submissions
• City staff has the right to edit stories
• 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 publications and or future publications in any form of
current media and/or media to be developed.
For each task, Contractor will produce materials by specific deadlines created by City or
the City's communications department.
Total:$30,000
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