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Home My WebLink AboutELIOT LANE COMMUNICATIONS STUDIO 1-2009WC required if consultant has employees. .~_. CLERK Ofi COUNCIL ;~' DATE, t> - ii - < ~ __ , . , CONSULTANT AGREEMENT N-2009-105 THIS AGREEMENT, made and entered into this 7`I' day of August, 2009 by and between Eliot Lane Communications Studio, a sole proprietorship (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation, organized and existing under the Constitution and laws of the State of California (hereinafter "City"}. RECITALS A. The City desires to retain a consulta<rt having special skill and knowledge in the field of advertising and graphic design. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and. that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field.. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perfornl design and production services to develop marketing materials for the City's Housing Development Division, as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges set forth in Exhibit A. The total sum to be expended under this Agreement shall not exceed $4,800.00 during the tern of this Agreement. b. Payment by City s11a11 be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need. not be made for work which fails to meet the standards of performalice set forth in the Recitals which may reasonably be expected. by City. 3. WORK FOR HIRE Consultant acknowledges that the Work is a "Work for Hire" as that term is used in the Federal Copyright Act. Consultant authorizes City, in its sole discretion, to make any editorial changes, additions, deletions, abridgment and condensation whatsoever to the Work, and is further authorized. to title, sub-title and change the title of the Work, and to couple the Work with any ancillary work (including, but not limited to, other writing, images, sounds, video, and animations). Such authorization shall extend. to all subsequent uses of the rights owned by the City pursuant to this Agreement. City reserves the right to omit any part or all of the Work submitted by Consultant. City grants back to Consultant anon-exclusive but perpetual license to reprint the Work and to create derivative works based on the Work. Consultant warrants and represents that the Work is original and has not before been published; that she is the sole owner of the Work and has full power, free of any prior contract, lien or rights of any nature in anyone which might interfere therewith, to enter into dais Agreement and to grant the rights hereby conveyed to City; that the Work contains no matter which is libelous or otherwise unlawful, infringes no right of privacy, proprietary right or copyright (whether statutory or common law); that she has not heretofore and will not hereafter enter into any agreement or understanding with any person, fine or corporation other than City for the rights in the Work granted hereunder. Consultant further agrees that she will hold City, its distributors, employees, officers, volunteers, licensees, partners, agents, advertisers, and any retailer harniless against any suit, claim, demand, proceeding, prosecution, recovery or penalty and any expense, including attorneys' fees and litigation expenses arising out of same, by reason of any claim or violation of any of the foregoing warranties or representations. 4. TERM This Agreement shall commence on the date first written above and terminate on expenditure of allocated funds, unless terminated earlier in accordance with Section 13, below. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and. wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Due to the nature of the services provided, insurance is not required. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured. against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold. harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and. claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. 8. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Infornlation" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed. to either party by any subsidiary and/or agent of the other parry is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required. to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified. under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714-647-6956 With courtesy copy to: Community Development Agency -Housing Development City of Santa Ana 20 Civic Center Plaza (M-37) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 667-2225 To Consultant: Eliot Lane Communications Studio Domielle Koselka 23541 Via Halcon Trabuco Canyon, California 92679 Telefacsimile 949-666-5296 A party may change its address by giving notice in writing to the other party. Thereafter, communication shall be addressed and transmitted to the new address. If sent by mail, commmunication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and. supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 4 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void.. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services perforned by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, ternination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other goverrnnental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR J Clerk of the Council CITY OF SANTA ANA ,~' ~ - . Ctl ~ ~~~ DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney By. , Laur Speedy Assistant City Attorney ELIOT LANE COMMUNICATIONS STUDIO "i DONNELLE KOSE KA Owner ~~ ,_ ~) ~~~~~~ Tax ID# v., RECOA~1@iDED For Approval: ~~~;~~ Cynthia J. Nelson, Deputy City Manager For Development Services Community Development Agency EXHIBIT A Santa Ana Housing Memo / 2 ~. . C't t.r?31 !;tit'~11 l`-~ `- ~tiirr To: Shelly Landry-Bayle cc: Linda Summers From: Eliot Lane Subject: Marketing Materials Recommendations Date July 20, 2009 We have evaluated Housing Development Services' existing marketin g materials, conducted pricing research and digested the input received from 23541 Via Halton you and your team. Following are our recommendations and estimated Trabuco Canyon, cA 92(179 fees. Please review them at your convenience and contact us with a T 94~}-6~ao-82E34. ny questions that arise. F 949-FiG6.5296 dkoselka@eliotlane.com Situation Analysis ~~ryvw.eliorlane.corri Housing Development Services needs updated materials that have a consistent look and feel. to them. The current marketing materials comprise • one-sheet flyers on Housing programs, • one-sheet invitations, • general information flyers and • tri-fold workshop brochures The team would like to develop higher-end marketing material(s) - in limited quantity - to distribute to developers and other influential contacts. Recommendations 1. Create printed color letterhead templates (4), including rewritten, consistent language 2. Create printed color bi-fold brochure for developers (1) 3. Make Housing section easier to find on City web site for details on recommendations see page 2 Eliot Lane's Estimated Fees Templates Project -- 15 hours / $1,800 Brochure Project -- 25 hours / $3,000 Rough Printing Estimated Fees (Master Templates) One ream (500 sheets) per template -- $400, cost per sheet = $.80 Rough Printing Estimated Fees (Bi-fold Brochure) 1500 quantity = $1,715 EXHIBIT A Santa Ana Housing Memo / 2 DETAILS Printed color letterhead templates 1. Create four master templates. Categories are Programs, Workshops, Invitations and General 2. High-end printing of each template category on stationery paper Color Template Stationery is primary format for HDS's materials and should be used for ail printed materials 3. Produce black & white versions of each template To be used for electronic versions only 4. Eliot Lane re-writes and lays out one template per category (one program, one workshop, one invitation) Create a print bi-fold brochure for developers 1. Write overview of Housing's services and programs 2. Select photography 3. Layout & design brochure (model after Development Projects brochure for brand consistency) Web Site 1. Keep the look and feel for consistency with rest of city website 2. Make Housing section easier to fine on website • Add Housing section to RESIDENTS section http://www ci santa- ana.ca.us/resident/default asp • Add housing to Economic Development's Services & Resources Directory htta://www santa-ana org/business/ BizAssist ServiceResourceDirectoryasg WORKERS' COMPENSATION DECLARATION I hereby affirm under penalty of perjury, the following declaration: I certify that during the term of my contract with the City of Santa Ana and/or the Community Redevelopment Agency of the City of Santa Ana, I will not employ any person in any manner so as to become subject to the workers' compensation laws of California, and agree that if I should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, I shall forthwith comply with those provisions. ~K~~r~ DATE: August 21, 2009 By: _Eliot Lane communications studio Name: Donnelle Koselka Title: Principal Telephone: 949-690-8284 WARNING: FAILURE TO SECURE WORKERS' COMPENSATION COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000). IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES. ApP~t(~'iTED AS '~~ ~'®~~ LISA E. STORCK Assistant City Attorney l ~