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HomeMy WebLinkAboutSTRAIGHTLINE COMMUNICATIONS 4 - 2010 i- -- ~ ~ . ~ 3 C>- \ ,. ~ 2 CD ~ .- u \NSURANCE tiQI ON F\LE WORK MAY MQI PROCEED CLERK OF COUNC\L ~ nATE: 3-1-'3--/ D N-2010-022 CONTRACTOR AGREEMENT THIS AGREEMENT, made and entered into this 8th day of January, 2010 by and betweencStraigptline Communications (hereinafter "Contractor"), 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"). RECIT ALS A. The City desires to retain a consultant having special skill and knowledge in the field of professional copywriting, design and publishing services. B. Contractor represents that Contractor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor 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 Contractor shall provide copywriting, design and publishing services necessary to prepare the 2010/20 11 Water Calendar presenting the 2009 Consumer Confidence Report, referred to as the "2009 Water Quality Report", as set forth in Exhibit A to this Agreement. Additional services performed by Consultant must be authorized in writing by the Water Services Quality Coordinator, prior to commencement of such additional services. 2. DELIVERY OF WORK PRODUCT Contractor shall deliver to City all work-product resulting from the services provided. City shall retain ownership and control of any work product produced as a deliverable pursuant to this Agreement, including but not limited to photographs, negatives, writings, images, discs, drawings, recordings and videotapes. Contractor authorizes City, in its sole discretion, to make any editorial changes, additions, deletions, abridgment and condensation whatsoever in the body of the Work, and is further authorized to title, sub-title, and change the title and image of the Work, and to couple the Work with any ancillary work, including, but not limited to, other writing, photos, images, sounds, video, and animations, such authorization shall extend to all subsequent uses of the rights owned 1 by the City pursuant to this Agreement. City reserves the right to omit any part or all of the Work submitted by Contractor. 3. WARRANTY OF RIGHTS. Contractor warrants and represents that the Work is original and has not been published or altered; that he or she is the sole Creator 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 this Agreement and to grant the rights hereby conveyed to the 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 he or she has not heretofore and will not hereafter enter into any agreement or understanding with any person, firm or corporations other than City for the rights in the Work granted hereunder. 4. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed $15,000.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 5. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2010, unless terminated earlier in accordance with Section 14, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of Public Works and the City Attorney. 6. INDEPENDENT CONTRACTOR Contractor 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 Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor 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. 2 7. INSURANCE In accordance with the provisions of Section 3300 of the Labor Code, Contractor, if Contractor 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, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 8. INDEMNIFICATION Contractor 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 Contractor 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. 9. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor 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 Information" 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 party 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 Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 10. CONFLICT OF INTEREST CLAUSE Contractor 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. 11. NOTICE 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 3 sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copy to: Public Works Agency City of Santa Ana Thomas Dix, Water Quality Coordinator 220 S. Daisy (M-85) Santa Ana, California 92703 telefacsimile (714) 647-3345 To Contractor: S traightline Communications Ms. Linda O'Hanlon 14930 Greenleaf Street Sherman Oaks, California 91403 Telefacsimile (818) 386-1964 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication 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. 12. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, 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 Contractor. 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 Contractor 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 13. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor 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. 14. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor 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 Contractor 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 Contractor 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. 15. DISCRIMINATION Contractor 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, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 16. 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. 17. PROFESSIONAL LICENSES Contractor 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 governmental agencies. Contractor shall notify the City 5 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. 18. 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: ~~ --f,vMARIA D. k f\.R Clerk of the Council CITY OF SANTA ANA ') /. I uJi2/J / / I.J~ DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney \', (\ c~ BYi o-l}.~ Laura Sheedy Assistant City Attorney! RECOMMENDED FOR APPROVAL: CONTRACTOR - ~ Executive Director of the Public Works Agency L~O~ (Title) f\Q~\ ~ Tax ID# -.5! .. d3 01S f.d:;O 6 EXHIBIT A SCOPE OF SERVICES Contractor shall produce the 2009 Walter Quality Report for the City of Santa Ana. The final calendar design will be submitted by May 1, 2010 in order that the City may select a printer for publication. Consultant will work with the selected printer to make sure the calendar is printed and delivered to City by June 1,2010. Description Copywriting/ Design/Project Management Line Total Review of State document to note any changes; miscellaneous interviews with other departments; copywriting and editing for 40 page calendar. $3,500.00 Design/layout of 40-page calendar; three rounds of revisions. $1,500.00 $6,500.00* $1,350.00 Spanish translation, two rounds of revisions, and proofing. Project Management: meetings with client, conference calls, coordination for photography, coordination for departmental resources (if applicable), photo selection, proofing, review of bluelines, coordinate with printer. Sub-Total $12,850.00** * Amount includes work on new images and backgrounds used in design. **Pursuant to agreements established in previous years, amount does not exceed $15,000 Payment Terms Client will be billed 50% of total upon submission of the first calendar layout for client review, and balance of total on completion of printing and bindery. Notes Calendar Theme: Based on our initial meeting with the City, the theme of the 2009 Water Quality Report/Calendar with be "water conservation". Pages opposite each monthly calendar will feature a photograph with corresponding text. The small informational box on most calendar pages will be used to highlight information only if it is related to the corresponding photograph and text. The calendar will include information and a compelling photo to discourage the use of water bottles, highlighting the negative impact it has created on our environment. The overall format will remain the same as previous years, however, design elements, colors, typeface, backgrounds, photographs, and graphic treatments will be modified and/or created new to fit this year's theme. A comp of the proposed design will be submitted to the client for approval before implementing the design direction throughout the calendar. Estimate does not include custom photography, stock images, printing, mailing, postage, shipping/messengers, freight, and sales tax. These costs, if applicable, will be provided upon request and submitted for approval before incurred. 7 If City significantly changes the scope of the project, the project will be re-quoted and submitted to client for approval before commencement of additional work. Fees for additional professional services that are not outlined in this agreement will be provided upon request. In case of project cancellation, all costs incurred to date are billable. Unauthorized Use (Industrv Standard): City shall indemnify Staightline Communications against claims and expenses arising from uses of materials provided by City, for which City does not have the rights to or authority to use. City shall be responsible for payment for any special licensing or royalty fees resulting from the use of City provided material requiring such payment. 8