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HomeMy WebLinkAboutTara Lee Torburn Graphic Design; 2006-11-20; PWENG579AMENDMENT NO. 3 TO EXTEND AND AMEND AGREEMENT FOR GRAPHIC DESIGN SERVICES (TARA LEE TORBURN GRAPHIC DESIGN) $6 This Amendment No. 3 is entered into and effective as of the day of h?fl JGfir!'3e& , 200=, extending and amending the agreement dated November 20, 2006 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Tara Lee Torburn Graphic Design, ("Contractor") (collectively, the "Parties") for graphic design services. RECITALS A. On November 16, 2007, the Parties executed Amendment No. 1 to the Agreement to continue the services and program begun during the initial agreement term for newsletter and brochure design; and B. On September 30, 2008, the Parties executed Amendment No. 2 to the Agreement to extend and fund the agreement for an additional one (1) year period; and C. The Parties desire to alter the Agreement's scope of work to extend and fund the Agreement for a period of one (1) year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on November 19, 2010 on a time and materials basis not-to-exceed four thousand five hundred dollars ($4500.00). 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version #05.22.01 4. The individuals executing this Amendment 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 Amendment. CONTRACTOR CITY OF CARLSBAD, a municipal TARA LEE TORBURN GRAPHIC DESIGN, a sole pr.apzietorship City Manager wthywr or Authorized Signatory Tara Lee Torburn I Sole Proprietor (print nameltitle) yh;a/tos @&5-~.wv) (e-mail address) ATTEST: (sign here) (print nameltitle) (e-mail address) 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: RONALD R. BALL, City Attorney By: ~e-puty City ~ttornel City Attorney Approved Version #05.22.01 AMENDMENT NO. 2 TO EXTEND AND AMEND AGREEMENT FOR GRAPHIC DESIGN SERVICES (TARA LEE TORBURN GRAPHIC DESIGN) This Amendment No. 2 is entered into and effective as of the d7* day of d&z&Ad , 2008 , extending and amending the agreement dated November 20, 2006qthe "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Tara Lee Torburn Graphic Design, ("Contractor") (collectively, the "Parties") for graphic design services. RECITALS A. On November 16, 2007 the Parties executed Amendment No.1 to the Agreement to continue the services and program begun during the initial agreement term for newsletter and brochure design; and B. The Parties desire to extend the Agreement for a period of one (1) year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on November 20, 2009 on a time and materials basis not-to-exceed four thousand five hundred dollars ($4,500.00). 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version #05.22.01 4. The individuals executing this Amendment 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 Amendment. CONTRACTOR TARA LEE TORBURN GRAPHIC CITY OF CARLSBAD, a municipal corporation of the Sfate omrnia & City Manager arMe)hF. or Authorized Signature Tara Lee Torburn 1 Sole Pro~rietor ATTEST: (print nameltitle) -t+ov\r,emHo~ (e-mail address) **By: (sign here) (print nameltitle) (e-mail address) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Cor~oration, 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: RONALD R. BALL, City Attorney By: 44puty City Attorney \ City Attorney Approved Version #05.22.01 REQUEST FORM - GENERAL LIABILITY FACTORS IN SUPPORT OF REQUEST TO MODIFY GENERAL LIABILITY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement(s) will be either accepting a lower limit of coverage or waiving the requirement(s). Requested by: DAN WEINHEIMER 1 PUBLIC WORKS ADMIN November 1,2006 (Name and Department) (Date) The proposed modification to the insurance requirement(s) for Professional Services Agreement - Tara Lee Torburn - Graphic Design is: (Name of contract) a Coverage in the amount of: $ # Waiving General Liability Insurance FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) 8 Category Assum~tion(s) NA: Category assumptions are not applicable. [explain] originality and use only by the City of Carlsbad. o Sirnificance of Contractor: Contractor has previous experience with the City that is important to the eficiency of completing the scope of work and the quality of the work- product. [explain] Simificance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded if applicable] )(, Contract Amount/Term of Contract: $4,500.00. Work will be completed over a period of I vear with 3 allowable I year extensions . [This factor alone is not enough to support a request] Other (ex. explain why exposures are minimal, how exposures are covered in another ' policy. exposure control mechanisms. and any other information pertinent to vour reauest): General liability has been excluded in previous agreements for graphic desian work -- Vedder / C-ns . . Approved by City Attorney for this contract only: REQUEST FORM - AUTO LIABILITY FACTORS IN SUPPORT OF REQUEST TO MODIFY AUTOMOBILE INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(?.) entirely. DAN WEINHEIMER / PUBLIC WORKS - ADMM November 1 .. 2006 Requested by: (Name and Department) (Date) Professional Services Agreement - Tara Lee The proposed modification(s) to the insurance requirement for Torburn - for Graphic ~isign is: (Name of contract) o Coverage in the amount of: )( Waving Automobile Liability Insurance - Consultant will provide personal auto ins certificate. FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) o Category Assumption(s) NA: Category assumptions are not applicable. [explain]* o No Auto Use Required: All work is done off-site and/or requires no use of an automobile.* [this is not necessary if evident in scope of work] Amount of driving required: Occasional meetings with staff or onelfew site visits for a service such as maintenance.* a 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." o Significance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded ifapplicable]* o Contract Amount/Term of Contract: $ . Work will be completed over a period of i~ o Other*: * "Employment" below must be completed. o Emvlovment: There is a negligible chance that the City will be liable for damages related, to a vehicle accident because the risk of a finding that the Contractor is employed by the City is negligible. [explain] Approved by City Attorney for this contract only: (Name and Department) REQUEST FORM - PROFESSIONAL LIABILITY FACTORS IN SUPPORT OF REQUEST TO MODIFY PROFESSIONAL LIABILITY 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: DAN WEINHEIMER - PUBLIC WORKS - ADMIN (Name and Department) Professional Services Agreement - Tara The proposed modification(s) to the insurance requirement(s) for Lee Torbum - for Gra~hic Desien is: (Name of contract) Coverage in the amount of: $ < Waving Professional Liability Insurance. FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) o Cate~orv Assumvtion(s) NA: Category assumptions are not applicable. [explain] 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] - Contractor works fiequentlv with various Citv departments doinn graphic desim work. She is an independent contractor and will have her work reviewed and approved by City staff before published. o Simificance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded ifapplicable] o Contractor's work-product is recommendations only; no design or other work-product for which there is no in-house expertise. [explain]: o Professional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. o Other (e.~. exvlain why exposures minimal, how exposures covered in another volicy, exDosure control mechanisms. and any other information vertinent to your reauest): Approved by City Attorney for this contract only: l'@-,,& (~i~naturz) (Date) CERTIFICATE OF EXEMPTION WORKERS' COMPENSATION/EMPLOYERS' LIABILITY INSURANCE 1, TARA LEE TORBURN , am the SOLE PROPRIETOR of TARA LEE TORBURN GRAPHIC DESIGN . I hereby certify that. TARA LEE TORBURN GRAPHIC DESIGN has no employees and is not required by law to maintain workers' compensation or employers' liability insurance. Should. TAM LEE TORBURN GRAPHIC DESIGN employ any person during the term of the Agreement with the City of Carlsbad for GRAPHIC DESIGN SERVICES DESCRIBED IN EXHIBIT "A" OF THE AGREEMENT (PWENG579) , then workers' compensation and employers' liability insurance will be obtained. Tara Lee Torburn TARA LEE TORBURN GRAPHIC DESIGN Date AMENDMENT NO. 1 TO EXTEND AND AMEND AGREEMENT FOR GRAPHIC DESIGN SERVICES (TARA LEE TORBURN GRAPHIC DESIGN) endment No. 1 is entered into and effective as of the * day of , 2007, extending and amending the agreement dated November 28, 2006 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Tara Lee Torburn Graphic Design, ("Contractor") (collectively, the "Parties") for graphic design services. RECITALS A. The Parties desire to continue the services and program begun during the initial agreement term for newsletter and brochure design; and B. The Parties desire to extend the Agreement for a period of one (1) year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on November 19, 2008 on a time and materials basis not-to-exceed four thousand five hundred dollars ($4,500). 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version #05.22.01 4. The individuals executing this Amendment 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 Amendment. CONTRACTOR CITY OF CARLSBAD, a municipal City Manager or Mayor or Authorized Signatory Tara Lee Torburn I Sole Proprietor (print nameltitle) ATTEST: t.b&emtm (e-mail address) (sign here) (print nameltitle) (e-mail address) 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: RONALD R. BALL, City Attorney By: aeduty 6ty ~ttorne~~ \ City Attorney Approved Version #05.22.01 AGREEMENT FOR GRAPHIC DESIGN SERVICES (TARA LEE TORBURN GRAPHIC DESIGN) THIS AGREEMENT is made and entered into as of the A@ day of , 20&, by and between the CITY OF CARLSBAD, a municipal d TARA LEE TORBURN GRAPHIC DESIGN, a Contractor. RECITALS A. City requires the professional services of a graphic designer that is experienced in newsletter and brochure design. B. Contractor has the necessary experience in providing professional services and advice related to graphic design. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. 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 "Services") 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 Services, 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 one (1) year from the date first above written. The City Manager may amend the Agreement to extend it for three (3) additional one (1) year periods or parts thereof in an amount not to exceed four thousand five hundred dollars ($4,500) 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 OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. City Attorney Approved Version #04.01.02 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be four thousand five hundred dollars ($4,500). No other compensation for the Services 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". 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 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. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services 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. City Attorney Approved Version #04.01.02 9. INDEMNIFICATION 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 for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may 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-:V". 10.1 Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney 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. 10.1.1 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. 10.1.2 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. City Attorney Approved Version #04.01.02 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 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 of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 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. 10.3 Providinq Certificates of lnsurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coveraqe. 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. 10.5 Submission of lnsurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. 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. City Attorney Approved Version #04.01.02 12. 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. 13. 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. 14. 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. 15. 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 City: For Contractor: Name Dan Weinheimer Name Tara Lee Torburn Title Associate Analvst Title Princi~al Dept Public Works-Env. Programs CITY OF CARLSBAD TARA LEE TORBURN GRAPHIC DESIGN Address 1 635 Faraday Avenue Address 1 1 15 Alberta Avenue Carlsbad, CA 92008 Oceanside, CA 92054 Phone No. (760) 602-2776 Phone No. 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. 16. CONFLICT OF INTEREST City will evaluate Contractor's duties pursuant to this Agreement to determine whether dis-closure under the Political Reform Act and City's ~oGlict 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 affected 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. City Attorney Approved Version #04.01.02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. 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 that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. - 19. 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 otherwise 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 (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded 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. City Attorney Approved Version #04.01.02 20. 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 payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. 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. 22. 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 coniunction 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. City Attorney Approved Version #04.01.02 23. 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. 24. 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. 25. 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. City Attorney Approved Version #04.01.02 26. AUTHORITY The individuals executinq this A~reement and the instruments referenced in it on behalf of Contractor each represent $d 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 prpifornia corporatio TARA LEE TORBURN By: City Manager or Mayor (print nameltitle) +LN~L~& e &1&1re~v2e,om (e-mail address) 'L/OR~INE M. WOOD **By: City Clerk (sign here) -+3 (print nameltitle) (e-mail address) 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: RONALD R. BALL, City Attorney By: Deputy City Attorney City Attorney Approved Version #04.01.02 9 TAM LEE TORBURN GRAPHIC DESIGN 1115 ALBERTA AVENUE OCEANSIDE, CALIFORNIA 92054 (760) 439-5334 FAX (7601 439-1670 EXHIBIT "A" Proposed projects for Public Works: newsletters, brochures and other collateral materials, such as door hangers. Projects will be prepared digitally for output directly to film negatives or direct to printing plates, as required by printer, or for other digital applications. concept development and preliminary design project design and layout art direction, mechanical preparation and final production design and formatting text; typesetting photo selection scan and digitally manipulate photos, slides, graphics download text, photos, graphics from email; format as required placement of photos and/or graphic elements where required meetings, including with printer as required final review, corrections and fine-tuning of each project proofs and mock-ups as required throughout duration of projects coordinating with printer(s) to insure projects print trouble-free files to be transferred to printer(s) via email, Internet or CD/DVD reviewing of proofs from printer as required Graphics services: 75 hours 8 $60/hour CERTIFICATE OF EXEMPTION WORKERS' COMPENSATION/EMPLOY ERS ' LIABILITY INSURANCE 1, TARA LEE TORBURN , am the SOLE PROPRIETOR of TARA LEE TORBURN GRAPHIC DESIGN . I hereby certify that. TARA LEE TORBURN GRAPHIC DESIGN has no employees and is not required by law to maintain workers' compensation or employers' liability insurance. Should. TARA LEE TORBURN GRAPHIC DESIGN employ any person during the term of the Agreement with the City of Carlsbad for GRAPHIC DESIGN SERVICES DESCRIBED IN EXHIBIT bbA"OF THE AGREEMENT (PWENG579) , then workers' compensation and employers' liability insurance will be obtained. Tara Lee Torburn TAM LEE TORBURN GRAPHIC DESIGN Date REQUEST FORM - AUTO LIABILITY FACTORS IN SUPPORT OF REQUEST TO MODIFY AUTOMOBILE INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s) entirely. DAN WEINHEIMER / PUBLIC WORKS - ADMIN November 1.. 2006 Requested by: (Name and Department) (Date) Professional Services Agreement - Tara Lee The proposed modification(s) to the insurance requirement for Torburn - for Graphic Design is: (Name of contract) a Coverage in the amount of: )( Waving Automobile Liability Insurance - Consultant will provide personal auto ins certificate. FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) o Category Assumption(s) NA: Category assumptions are not applicable. [explain]* o No Auto Use Required: All work is done off-site and/or requires no use of an automobile.* [this is not necessary if evident in scope of work] 8 Amount of driving required: Occasional meetings with staff or onelfew site visits for a service such as maintenance. * o 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.* Significance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded ifapplicablel* a Contract Amount/Term of Contract: $ . Work will be completed over a period of * o Other*: * "Employment" below must be completed. Employment: There is a negligible chance that the City will be liable for damages related to a vehicle accident because the risk of a finding that the Contractor is employed by the City is 'negligible. [explain] Approved by City Attorney for this contract only: . (Name and Department) REQUEST FORM - GENERAL LIABILITY FACTORS IN SUPPORT OF REQUEST TO MODIFY GENERAL LIABILITY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement(s) will be either accepting a lower limit of coverage or waiving the requirement(s). Requested by: DAN WEINHEIMER / PUBLIC WORKS ADMIN November 1,2006 (Name and Department) (Date) The proposed modification to the insurance requirement(s) for Professional Services Agreement - Tara Lee Torburn - Graphic Design is: (Name of contract) a Coverage in the amount of: $ X Waiving General Liability Insurance FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) q Category Assumption(s) NA: Category assumptions are not applicable. [explain] Conshnt :F work i.7 .performed in her home is is- code . . ~n wzll he approved hv Cz of Carlshad/Dan Weznhamer to znsure originality and use only by the City of Carlsbad. 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] Simificance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded if applicable] )( Contract AmountITerm of Contract: $4.500.00. Work will be completed over a period of I vear with 3 allowable 1 vear extensions . [This factor alone is not enough to support a request] Other (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): General liabili~ has been excluded in previous agreementsf graphic desian work -- . . r / Comna Approved by City Attornev for this contract only: (Signature) (~ite) REQUEST FORM - PROFESSIONAL LIABILITY FACTORS IN SUPPORT OF REQUEST TO MODIFY PROFESSIONAL LIABILITY 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: DAN WEINHEIMER - PUBLIC WORKS - ADMIN (Name and Department) Professional Services Agreement - Tara The proposed modification(s) to the insurance requirement(s) for Lee Torburn - for Gra~hic Design is: (Name of contract) Coverage in the amount of: $ < Waving Professional Liability Insurance. FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) o Category Assumption(s) NA: Category assumptions are not applicable. [explain] # 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] - Contractor works frequently with various City departments doing graphic design work. She is an independent contractor and will have her work reviewed and approved by City staff before published. o Simificance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded $applicable] o Contractor's work-product is recommendations only; no design or other work-product for which there is no in-house expertise. [explain]: Professional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. o Other (ex. explain why exposures minimal, how exposures covered in another policy, exposure control mechanisms, and any other information pertinent to your request): Approved by City Attorney for this contract only: (~i~natur;) (Date)