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HomeMy WebLinkAboutSchneider, Leslie dba Schneider Consulting; 2017-11-14;AGREEMENT FOR PUBLIC OUTREACH AND INVOLVEMENT SERVICES BETWEEN CITY OF CARLSBAD AND LESLIE SCHNEIDER dba SCHNEIDER CONSUL TING ,. THIS AGREEMENT is made and entered into as of the i 4tf1 day of r ) f1I KcoboJ' ' 20 I ·1 ' by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Leslie Schneider, dba Schneider Consulting, a sole proprietor, ("Contractor"). RECITALS City requires the professional services of a public outreach and involvement consultant that is experienced in providing public information and communication services to government entities. Contractor has the necessary experience in providing these professional services, 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 Exhibit "A", attached and incorporated by this reference in accordance with the terms and conditions set forth in this Agreement. 2. Term. This Agreement will be effective for a period of three years from the date first above written. The Agreement may be extended for two additional one-year terms with the consent of both parties. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 3. Compensation. The total fee payable for the Services to be performed during the initial Agreement term shall not exceed thirty-five thousand dollars ($35,000.00) per agreement year and shall be billed at the rate of fifty dollars ($50.00) per hour. 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 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 City Attorney Approved Version 6-2015 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 5. Ownership of Work(s). Excepting such items which are specifically identified by Contractor as proprietary trade secrets, any and all sketches, drawings, tracings, images (whether still or moving), audio sounds, recordings, notes, computations, writings, 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. 6. 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. 7. 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 City Attorney Approved Version 6-2015 2 from such Infringement Claim(s), including reasonable attorneys' fees, as they are incurred by City or any other party indemnified under this Section. City also agrees that, if the use or operation of the Contractor's Works, products, services and/or deliverables, or any part of them, becomes, or in Contractor's opinion is likely to become, the subject of an Infringement Claim(s), City will permit Contractor, at Contractor's option and expense for all associated costs, either to procure the right for City to continue to use Contractor's Works, products, services and/or deliverables, or part thereof, or to replace or modify them with another item of comparable quality and performance capabilities to become non-infringing, provided such replacement or modification does not cause the product, services and/or deliverables, or any part thereof, to fail to comply with any of the requirements of this 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. 8. 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. 9. 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 City Attorney Approved Version 6-2015 3 California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10. Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the 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. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability Insurance. $2,000,000 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 Liability. (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. 10.1.3 Workers' Compensation and Employer's Liability. 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. 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 Commercial General Liability which shall provide primary coverage to the City. 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. City Attorney Approved Version 6-2015 4 10.3 Providing Certificates of Insurance 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 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. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 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 Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 12. Compliance With Laws. Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment and will obtain and maintain a City of Carlsbad Business License for the term of this Agreement. 13. Termination. 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 and/or U.S. 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. 14. 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 City Attorney Approved Version 6-2015 5 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. 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. 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. 19. 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. City Attorney Approved Version 6-2015 6 CONTRACTOR .. ~-) /-CITY OF CARLSBAD, a municipal *Bycl , ('LA_ :oyrporation of the State of California I (Sigh here) ~~ l{ ~ \' <'. ~\c \w .. , , Jt, · h:-o v1, , s "'"'~ ~ c~ orayor (Print name/title) S c \, V¼ -· cl~ ~ \ e ~ \ ; t 0, ( c ,Jc ~ ~"r\o ,-l (e-mail address) **By: (Sign here) (Print name/title) (e-mail address) ATTEST: Uwavµ\A KntJ!L_,ftrt BARBARA ENGLESON i 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:_.__..,,_/1...........,.j\t,-,--lL-i---'--__ Assistant City Attorney City Attorney Approved Version 6-2015 7 EXHIBIT "A" SCOPE OF SERVICES Public Outreach and Involvement Services Provide public outreach and involvement services as needed to implement city communication functions, including: • Public information for city issues, events, projects and services • Coordination of public outreach and involvement activities to promote awareness of and involvement in city programs, events, issues and services • Production of city informational materials • Coordination and promotion of special events and public meetings • Writing news releases, articles, website content, fact sheets and informational descriptions of city issues, events, projects and services This task will be directed by the communications manager or community relations manager. Other Considerations • All works submitted to and accepted by the city must be an original piece created by the contractor. • All works submitted by the contractor must be in standard U.S. English and adhere to the City of Carlsbad Writing Style Guide. • 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-balded 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. • 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 (not to exceed): $35,000 per agreement year City Attorney Approved Version 6-2015 8 CERTIFICATE OF EXEMPTION WORKERS' COMPENSATION/EMPLOYERS' LIABILITY INSURANCE , am the -~~~~,·~v~f~2 ·,_l'\.t_~~5_·· _(-'_· L_...:._· _\A-L~>-~------ [insert name] [title] of ~~c \\ V\-( ,·le, Cc,)'\_~\.. ) J ,· 1~h hereby certify that_'~,\~. c.._._·\t~v_Lt~··_.._._~"-.-('~-~'~~ t_'\~~--- [ name of company] 6 [ name of company]. has no employees and is not required by law to maintain workers' compensation or employers' liability insurance. Should _c_r...·_·--_C_·_~_\!i_L_t_,·~-~··~',_(_._C_;y_\~~~'---_{~·-J_;_r._· ~-employ any person during the term [ name of company] [ de ' ription of project or work that is being contracted] then workers' compensation and employers' liability insurance will be obtained. 06/15/2006 25 USAA INSURANCE AGENCY INC/PBS PO BOX 33015 SAN ANTONIO TX 78265 City of Carlsbad 1200 CARLSBAD VILLAGE DR CARLSBAD CA 92008 ACORD 25 (2016/03) ____, AH I {)~l?;1;17;~Y{)7 ACC>R~• CERTIFICATE OF LIABILITY INSURANCE '-.-----R076 THIS CERTIFICATEIS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME· USAA INSURANCE AGENCY INC/PHS PHONE l;AX (888) 443-6112 (A/C, No, Ed) (A/C, No) 814991 P: F: (888) 443-6112 E-MAIL ADDRESS PO BOX 33015 INSURER(S) AFFORDING COVERAGE NAIC# SAN ANTONIO TX 78265 INSURER A Senlinel lns Co LTD INSURED INSURER B LESLIE SCHNEIDER DBA SCHNEIDER INSURERC CONSULTING INSURER D 774 FIELDSTONE LN INSURER E: ENCINITAS CA 92024 INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS.EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. JNSR TY/'E OF INSURANCE ADDL SI/BR POUCY NUMBER l'Ol/CY EFF /'Ol/CYEX/' UM/TS ITY ""'" wr•n i,lf,\f/lJ/J/l'YYYJ ; •. #.#/HH/1'\'\'\' COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE ~2,000,000 I CLAIMS-MADE CJoccuR DAMAGE TO RENTED d,000,000 PREMISES {Ea occurrence) A X General Liab X 65 SBM NY2423 11/06/2017 11/06/2018 MED EXP (Any one person) ·10, 000 -PERSONAL & ADV INJURY ,2,000,000 - GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE :;4,000,000 / =i POLICY D ~:g-i 0 LOC PRODUCTS -COMP/OP AGG ,4,000,000 OTHER: ~; AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) ' - ANY AUTO BODILY INJURY (Per person) $ --OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) ,, - -HIRED NON-OWNED PROPERTY DAMAGE AUTOS ONLY AUTOS ONLY (Per accident) -- UMBRELLA LIAB H OCCUR EACH OCCURRENCE ' - EXCESS LIAB CLAIMS-MADE AGGREGATE " DEDI !RETENTION $ •: WOHKEHS CO.UPl:'.\'SAT/0.\' 'PER I IOTH- AN/J E.lf PUH'ERS' 1./ABIUTY STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVE Y/N EL EACH ACCIDENT OFFICER/MEMBER EXCLUDED? D NIA >---,; (Mandatory in NH) EL DISEASE-EA EMPLOYEE >---If yes, describe under EL DISEASE -POLICY LIMIT ·; DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Those usual to the Insured's Operations. The City of Carlsbad, its officials, employees, and volunteers are named as Additional Insured per the Business Liability Coverage Form SS0008 attached to this policy. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Carlsbad AUTHORIZED REPRESENTATIVE 1200 CARLSBAD VILLAGE DR a~orca:1~ CARLSBAD, CA 92008 © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD SPECTRUM POLICY DECLARATIONS (Continued) POLICY NUMBER: 65 SBM NY2423 ADDITIONAL INSUREDS: THE FOLLOWING ARE ADDITIONAL INSUREDS FOR BUSINESS LIABILITY COVERAGE IN THIS POLICY. LOCATION 001 BUILDING 001 TYPE PERSON ORGANIZATION NAME CITY OF CARLSBAD CARLSBAD Form 55 00 02 12 06 Process Date: 10/26/17 CA 92008 Page 004 (CONTINUED ON NEXT PAGE) Policy Expiration Date: 11 / o 6 / 18