HomeMy WebLinkAboutSchweitzer, David; 2013-09-04;AGREEMENT FOR VIDEO PRODUCTION SERVICES
DAVID SCHWEITZER
THIS AGREEMENT is made and entered into as of the If-"^ day of
^5^LpttiW\h^^ 20 f 3. by and between the CITY OF CARLSBAD, a municipal
corporatior( ("City"), and David Schweitzer, a sole proprietor, ("Contractor").
RECITALS
A. City requires the professional sen/ices of a video production company that is
experienced in editing, graphic design, writing, technical and pre-production support.
Photography services are also required on an as-needed basis.
B. Contractor has the necessary experience in providing professional services and
advice related to video production.
0. Contractor 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
"Sen/ices") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Sen/ices, Contractor will exercise the reasonable professional care and
skill customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment
while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of two years from the date first above
written. The City Manager may amend the Agreement to extend it for two additional two-year
periods or parts thereof in an amount not to exceed thirty-thousand dollars ($30,000) per
Agreement year. Extensions will be based upon a satisfactory review of Contractor's
performance, City needs, and appropriation of funds by the City Council. The parties will
prepare a written amendment indicating the effective date and length of the extended
Agreement.
4. TIME IS OFTHE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term will be
thirty-thousand dollars ($30,000) per Agreement year to be billed at the following rates:
• $55/hour for editing/graphic design/writing/technical and pre-production support
No other compensation for the Sen/ices will be allowed except for items covered by subsequent
amendments to this Agreement. The City reserves the right to withhold a ten percent (10%)
retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental
payments. If applicable, should be made as outlined in attached Exhibit "A".
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6. 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 fuli 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.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Sen/ices without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless
specifically noted to the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. 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
worid.
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.
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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 of 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.
10. 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 othenA/ise 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 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, sen/ices
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 wili 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, sen/ices 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, sen/ices and/or deliverables, or part thereof, or replace or modify the Works, products,
sen/ices 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.
11- INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
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arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The
insurance carrier is required to have a current Best's Key Rating of not less than "A-:VH". OR
with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers
(LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X".
11.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk
Manager or City Manager approves a lower amount. These minimum amounts of coverage will
not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of
the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate.
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
11.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit
per occurrence for bodily injury, personal injury and property damage. If the submitted policies
contain aggregate limits, general aggregate limits will apply separately to the work under this
Agreement or the general aggregate will be twice the required per occurrence limit.
11.1.2 Automobile Liabilitv. (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and
property damage.
11.1.3 Workers' Compensation and Emplover's Liabilitv, Workers' Compensation
limits as 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,
11.1.4 Professional Liability. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be
maintained for a period oJAj^ years following the date of completion of the work.
I I If box is checked. Professional Liability
City's Initials Contractor's Initials Insurance requirement is waived.
11.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
11.2.1 The City will be named as an additional insured on Commercial General
Liability which shall provide primary coverage to the City.
11.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
11.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to City sent
by certified mail pursuant to the Notice provisions of this Agreement.
11.3 Providinq Certificates of Insurance and Endorsements, Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
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11.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to
maintain the required coverages. Contractor is responsible for any payments made by City to
obtain or maintain insurance and City may collect these payments from Contractor or deduct the
amount paid from any sums due Contractor under this Agreement.
11.5 Submission of Insurance Policies. City resen/es the right to require, at anytime, complete
and certified copies of any or all required insurance policies and endorsements.
12. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
13. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of
three (3) years from the date of final payment under this Agreement.
14. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor's records.
15. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City,
16. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of City and on behalf of Contractor under this Agreement.
For Citv For Contractor
Name Val Brown/Kristina Ray Name
Title Video Prod. Mgr./Comm. Mgr. Title Eblfofl
Department Communications Address 1%^ UOO^POO
City of Carlsbad SAA^ OIB(O CA- ^^/23
Address 1200 Carlsbad Village Drive Phone No. jY? 2/S-33V<?
Carisbad, CA 92008 Email St hw^i-^^erJ'SiV'e. ^ y^lyao. ct^
Phone No. 760-434-2820
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
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17. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report
investments or Interests in all four categories.
18. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way affect the
performance of the Services by Contractor. Contractor will at all times observe and comply with
these laws, ordinances, and regulations and will be responsible for the compliance of
Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
19. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
20. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not othenA/ise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both
parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The representative receiving the letter will reply to the letter along with a
recommended method of resolution within ten (10) business days. If the resolution thus
obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be fonA/arded
to the City Manager. The City Manager will consider the facts and solutions recommended by
each party and may then opt to direct a solution to the problem. In such cases, the action of the
City Manager will be binding upon the parties involved, although nothing in this procedure will
prohibit the parties from seeking remedies available to them at law,
21. 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 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
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payable under this Agreement, City will make the final determination as to the portions of tasks
completed and the compensation to be made.
22. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or
violation of this warranty, City will have the right to annul this Agreement without liability, or, in
its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full
amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
23. 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 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,
24. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
25. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor any
monies due or to become due under it may be assigned by Contractor without the prior consent
of City, which shall not be unreasonably withheld.
26. 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.
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27. 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 CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
(sign here)
(print name/title)
By:
(sign here)
(print name/title)
^^y^Managef or wlgyor or Divicion Pi(0^fe^'J^^^^^//,
^ authorizod by tho City ManQ^y?j^.---;"y-...Q^^<:,
ATTEST:
BARBARA ENGLESON
City Clerk
If required by City, proper notarial 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
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. BREWER, City Attorney
BY
Assistant City AttdVney
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EXHIBIT "A"
SCOPE OF SERVICES
Contractor shall provide video production sen/ices to include editing, graphic design, writing,
technical and pre-production support related to city video productions, the city government
channel and website.
Communications Department will provide Contractor with detailed instructions to achieve end
results to include direction on editing, graphic design, writing, technical and pre-production
support. Contractor will provide video archival support on an as needed basis. Contractor is
responsible for providing all of its own editing equipment as needed for the various assigned
projects. On occasion and depending on the specific project, Contractor may use city equipment
on an as-needed basis. Contractor warrants that if he uses city provided equipment that he will
only use city equipment in which he is proficient in the proper use and functions. Contractor
shall immediately notify the city's video production manager or designee if any piece of city
equipment that he is using is damaged, becomes non-functional or is not functioning in a proper
manner.
Services under this contract are non-exclusive and if Contractor is unavailable for a given
project; the city resen/es the right to choose an alternate contractor to provide described
service.
Contractor shall bill hourly fees as set forth in this Agreement, Section 5 Compensation. It is
agreed that Contractor's houriy rate for services are:
• $55/hour for editing/graphic design/writing/technical and pre-production support
Other considerations:
• All works submitted to and accepted by the city must be original material created by the
Contractor.
• All works submitted by the Contractor must be in standard U.S. English and adhere to the
City of Carisbad Writing Style Guide. A copy of this guide will be provided.
• All written works must be submitted in Microsoft Word format. The work should appear in a
non-bolded Calibri, 12 point font.
• Contractor's submissions to the city may not contain profanity, erotica or pornography
and/or the Contractor's personal racial, political or religious views.
Please see Addendum "A" and Addendum "B" for video format, acquisition specifications and
file naming conventions.
The city reserves the right to use all submitted works in perpetuity and in all current and/or
future forms of current media and/or media to be developed.
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