HomeMy WebLinkAboutSteven Barclay Agency; 2021-02-16;City Attorney Approved Version 6/12/18 1
AGREEMENT FOR PERFORMANCE SERVICES STEVEN BARCLAY AGENCY
THIS AGREEMENT is made and entered into as of the ______________ day of _________________________, 2021, by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and Steven Barclay Agency, a sole proprietorship, ("Agent”, Contractor"), who warrants that they has the authority to represent and contract on behalf of Tara Westover (“Author”, “Speaker”), for a livestreamed author talk and question/answer session. RECITALS A. City requires the professional services of an authorized agency that is experienced in providing literary figures for a livestream author talk and question/answer session. B. Contractor has the necessary experience in providing professional services related
to scheduling and securing author and speaker specified. C. 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 12 (twelve) months from the date first above written. 4. TIME IS OF THE 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 shall not exceed twelve thousand dollars ($12,000). 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.
DocuSign Envelope ID: 230AD2E3-EAC4-4B89-B4DD-27340F6679FBDebbie Jo McCool Sheila CrosbyDebbie Jo McCool Suzanne Smithson Ed Garbo
February
16th
City Attorney Approved Version 6/12/18 2
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. 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 by any negligence, recklessness, or willful misconduct 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-: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.
10.1 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
DocuSign Envelope ID: 230AD2E3-EAC4-4B89-B4DD-27340F6679FB
City Attorney Approved Version 6/12/18 3
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 (CGL) Insurance. Insurance written on an
“occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 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. 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. 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.
DocuSign Envelope ID: 230AD2E3-EAC4-4B89-B4DD-27340F6679FB
City Attorney Approved Version 6/12/184
12.ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under thisAgreement. All records will be clearly identifiable. Contractor will allow a representative of Cityduring 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 allwork, 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 DOCUMENTSAll work product produced by Contractor or its agents, employees, and subcontractors pursuantto this Agreement is the property of City. In the event this Agreement is terminated, all workproduct produced by Contractor or its agents, employees and subcontractors pursuant to thisAgreement 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.COPYRIGHTSContractor agrees that all copyrights that arise from the services will be vested in City andContractor relinquishes all claims to the copyrights in favor of City.
15.NOTICESThe name of the persons who are authorized to give written notice or to receive written notice onbehalf of City and on behalf of Contractor under this Agreement.
For City For Contractor
Name Sheila Crosby Name Steven Barclay
Title Deputy Library Director Title Owner/Director
Department Library & Cultural Arts Address 12 Western Avenue
City of Carlsbad Petaluma, CA 94952
Address 1775 Dove Lane Phone No. 707-773-0654
Carlsbad, CA 92011 Email steven@barclayagency.com
Phone No. 760-434-2876
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 INTERESTContractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall reportinvestments or interests in all categories.
Yes No
17.GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulationswhich in any manner affect those employed by Contractor, or in any way affect the performanceof the Services by Contractor. Contractor will at all times observe and comply with these laws,
DocuSign Envelope ID: 230AD2E3-EAC4-4B89-B4DD-27340F6679FB
City Attorney Approved Version 6/12/185
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.
18.DISCRIMINATION AND HARASSMENT PROHIBITEDContractor will comply with all applicable local, state and federal laws and regulations prohibitingdiscrimination and harassment.
19.DISPUTE RESOLUTIONIf 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 agreementbetween the parties. Representatives of Contractor or City will reduce such questions, and theirrespective views, to writing. A copy of such documented dispute will be forwarded to both partiesinvolved along with recommended methods of resolution, which would be of benefit to bothparties. The representative receiving the letter will reply to the letter along with a recommendedmethod of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactoryto the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. TheCity Manager will consider the facts and solutions recommended by each party and may then optto direct a solution to the problem. In such cases, the action of the City Manager will be bindingupon the parties involved, although nothing in this procedure will prohibit the parties from seekingremedies available to them at law.
20.TERMINATIONIn 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 thetermination. If City decides to abandon or indefinitely postpone the work or services contemplatedby 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 ownedby City and all work in progress to City address contained in this Agreement. City will make adetermination of fact based upon the work product delivered to City and of the percentage of workthat Contractor has performed which is usable and of worth to City in having the Agreementcompleted. 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, otherthan a bona fide employee working for Contractor, to solicit or secure this Agreement, and thatContractor 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 considerationcontingent upon, or resulting from, the award or making of this Agreement. For breach or violationof this warranty, City will have the right to annul this Agreement without liability, or, in its discretion,
DocuSign Envelope ID: 230AD2E3-EAC4-4B89-B4DD-27340F6679FB
City Attorney Approved Version 6/12/186
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 LAWSUITSBy 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 anticipationof litigation or in conjunction with litigation. Contractor acknowledges that if a false claim issubmitted 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 personknowingly submits a false claim to a public entity. These provisions include false claims madewith deliberate ignorance of the false information or in reckless disregard of the truth or falsity ofinformation. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled torecover 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 ofwhich Contractor may be prevented to act as a Contractor on any public work or improvement fora period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction isgrounds for City to terminate this Agreement.
23.JURISDICTION AND VENUEAny action at law or in equity brought by either of the parties for the purpose of enforcing a rightor rights provided for by this Agreement will be tried in a court of competent jurisdiction in theCounty of San Diego, State of California, and the parties waive all provisions of law providing fora change of venue in these proceedings to any other county.
24.SUCCESSORS AND ASSIGNSIt is mutually understood and agreed that this Agreement will be binding upon City and Contractorand their respective successors. Neither this Agreement nor 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, whichshall not be unreasonably withheld.
25.ENTIRE AGREEMENTThis Agreement, together with any other written document referred to or contemplated by it, alongwith the purchase order for this Agreement and its provisions, embody the entire Agreement andunderstanding between the parties relating to the subject matter of it. In case of conflict, the termsof the Agreement supersede the purchase order. Neither this Agreement nor any of its provisionsmay be amended, modified, waived or discharged except in a writing signed by both parties.
DocuSign Envelope ID: 230AD2E3-EAC4-4B89-B4DD-27340F6679FB
Audra Mahoney Audra Mahoney
City Attorney Approved Version 6/12/187
26.AUTHORITYThe 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 authorityto bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California
By: By:
(sign here) SUZANNE SMITHSON Library & Cultural Arts Director as authorized by the City Manager
(print name/title)
ATTEST:
By:
(sign here) For BARBARA ENGLESON
City Clerk
(print name/title)
APPROVED AS TO FORM:
For CELIA A. BREWER, City Attorney
BY: _____________________________ Assistant City Attorney
Steven Barclay, Owner/Director
DocuSign Envelope ID: 230AD2E3-EAC4-4B89-B4DD-27340F6679FB
City Attorney Approved Version 6/12/188
EXHIBIT “A”
SCOPE OF SERVICES
The Agent is partnering with the City on a Livestream author/speaking engagement for April 8,
2021, to host author Tara Westover, whose memoir "Educated" has been on the New York Times best-seller for more than two years. The City will provide the media to deliver Livestream production to the Carlsbad community. As agreed with Agent's permission, the City will record the
event and provide the recording via the City's website no longer than 7 (seven) days following the virtual event. (Ref: Contractor # TW112420-EF)
1.CONTACT INFORMATION:
Agent: Eliza Fischer, Associate Director, Senior AgentAddress: 12 Western Avenue, Petaluma, CA 94952
Email: eliza@barclayagency.comPhone Number: 707-773-0654
Mimi Lang VillaEmail: mimi@barclayagency.com
City:Sheila Crosby, Deputy Library Director Address: 1775 Dove Lane, Carlsbad, CA 92011 Email: Sheila.crosby@carlsbadca.gov Work cell phone number: 442- 232-0587
Event Day: Contact: Darin Williamson, Lead Librarian Contact phone number: 760-434-2928
2. PROGRAM DETAILS
Author’s Appearance Date: Thursday, April 8, 2021, 8:30 p.m. EST (5:30 p.m. PST)
Program: Author agrees to participate in a 60-minute livestreamed conversation with a mutually agreed upon moderator; approximately 20 minutes of viewer questions will follow. In addition,
there will be a 15-minute technical check immediately before the program is to begin. All times and formats are to be mutually agreed upon.
Place: VIRTUAL via Zoom Webinar platform (Author will be recording from a remote location)
Other: All other activities will be cleared between Parties before being scheduled. This livestreamed event will be available via password protected site and is not downloadable. The recording will remain online for no longer than 7 (seven) days and then it will be removed.
No lecture or program or any part thereof is to be reproduced, including but not limited to the reproduction by broadcasting, video-taping or tape-recording, without the written permission of the Agency or Speaker. The City’s requests that the Author sign a model release form for the event.
DocuSign Envelope ID: 230AD2E3-EAC4-4B89-B4DD-27340F6679FB
City Attorney Approved Version 6/12/189
3. VIRTUAL AND REMOTE EVENTS
Size of Audience: If event is a virtual / remote event by a mutually agreeable platform (Zoom, etc), it is understood that the size of your audience is essentially unlimited. To that end, and in fairness to the Speaker, City is allowed to sell admission (views) to the event for up to 1000
households (understanding that more than one viewer may share the same computer). This would be either for free or for an admission fee that Contractor and City mutually agreed upon. The City’s acknowledges that the City’s Zoom license is limited to 500 attendees and the event is free to the community.
Online Duration: If your event is a virtual / remote event by a mutually agreeable platform (Zoom, etc), it is to be a LIVE-STREAMED date-specific event and then taken down from any web posting or archive at its conclusion. As specifically agreed to by Agent and City the video is to remain online and for no longer than seven (7) days.
Exclusivity: Event is a virtual / remote event by a mutually agreeable platform (Zoom, etc), as attendance to it can be subscribed to for viewing from anywhere, in deference to Speaker’s commitments in other cities with exclusivity concerns, City agrees to limit its marketing outreach to its City and the San Diego area, not exceeding a surrounding area up to 90 miles from City. The City will not be partnering with other organizations in other cities to further the event’s outreach.
4. PERFORMANCE CONTENT
The Author represents and warrants that its Performance in all aspects (including any sheet music, lyrics or script as may be desired or required by City) will not violate any copyright, and that all necessary approvals to perform copyrighted works have been obtained. Author agrees to indemnify, defend and save harmless the City against any copyright claim, demand, liability or expense caused by or arising out of its Performance. Author shall be solely responsible for
the content of the Performance.
5. LOSSES
It is understood and agreed that the City shall not be responsible for any loss of or damage to the property of the Author, or for the acts or omissions of the audience.
6. INDEPENDENT CONTRACTOR
The Author(s) and/or Agent are independent contractors and not employees of City. No Author(s) or his/her employees or Agent or his/her/it employees are or shall hold themselves out as an agent or employee of the City. The Agent or Author shall have no authority to make any commitment on behalf of the City. Author and/or Agent shall be responsible to pay all applicable state, local and federal taxes associated with this agreement.
7. SUBJECT MATTER
Author agrees to refrain from presenting or performing material that is derogatory or critical of the City, contains sexually explicit actions or gestures, expletives and/or other obscenities, or
contains racial slurs or is otherwise derogatory of any race, religion, sexual orientation, age or national origin. Should such material be presented or performed, City, in its sole discretion, may immediately terminate the Performance. In the event City terminates the Performance of
Performer because of violation of this paragraph, City shall not be liable to Performer for the balance owed under this Agreement and all monies paid to Performer shall be full and complete payment of Performer’s services. In the event of this occurrence, City shall not be deemed to be in breach of this agreement.
DocuSign Envelope ID: 230AD2E3-EAC4-4B89-B4DD-27340F6679FB
City Attorney Approved Version 6/12/1810
8.INVOICING / PAYMENT:
All-inclusive fee to cover Contractor’s event(s) in the amount of twelve thousand dollars ($12,000). It has been agreed by Parties that the Contractor shall be paid three (3) days before the appearance date, April 8, 2021.
An invoice shall be submitted to City no later than March 19, 2021, to allow processing coordination and be sufficiently detailed to include related activity for review and approval by both City’s Deputy Library Director Sheila Crosby or designee. Final invoice approval will be completed by City’s Library & Cultural Arts Director or designee. Fees are payable to Steven Barclay Agency.
DocuSign Envelope ID: 230AD2E3-EAC4-4B89-B4DD-27340F6679FB
WAIVER REQUEST FORM
FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S)
Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the
requirement(s).
Requested by:
(Name and Department) (Date)
Proposed modification(s) to the __________________ requirement(s) for
(Type of insurance) (Name of contract)
Reduce coverage to the amount of: $ .
Waive coverage
Other:
FACTOR(S) IN SUPPORT OF MODIFICATION(S)
(check those that apply)
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]
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 if applicable]
Contract Amount/Term of Contract: $ . Work will be completed over a period of .
Professional Liability coverage is not available to this contractor or would increase the cost of the contract by
$ [explain].
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):
Approved by Risk Manager for this contract only:
(Signature) (Date)
Debbie Jo McCool, Library & Cultural Arts Feb. 11, 2021
General Liability Steven Barclay Agency
n
n
Live event virtually
on April 8, 2021 at a remote site selected by Author. Event is an author talk.
DocuSign Envelope ID: A144BFAB-B66B-4CB1-9C1A-BAC0D1395EEF
Debbie Jo McCool
2/16/2021
Allegra Frost