HomeMy WebLinkAboutC-4429 - Contract for Graphic Design ServicesCONTRACT WITH ELISA BRYANT
FOR GRAPHIC DESIGN SERVICES
THIS CONTRACT is made and entered into as of this 19 of November 2009, by and between the
CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and ELISA BRYANT dba ELISA
BRYANT GRAPHIC DESIGN, sole proprietor whose principal place of business is 3521 Castle Reagh
Place, Riverside, CA, 92506 ( "Consultant'), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the
State of California with the power to carry on its business as it is now being conducted
under the statutes of the State of California and the Charter of City.
B. City desires graphic design services to design City publication — Newport Navigator
from spring 2010 — fall 2010, for a total of 3 seasonal editions.
C. City desires to engage Consultant to perform graphic design services per the Scope of
Services listed in Exhibit A.
D. Consultant has examined all proposed work, carefully reviewed and evaluated the
specifications set forth by the City for the Project, and is familiar with all conditions
relevant to the performance of services and has committed to perform all work required
for the price specified in this Contract.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
K;W
The term of this Agreement shall commence on the above written date, and shall terminate on
the 151 day of August 31, 2010, unless terminated earlier as set forth herein or work completed
before termination date.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of Services attached
hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain
tasks of the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Contract and CONSULTANT
shall complete the Work within the time set forth in this Section. The failure by CONSULTANT
to meet this deadline may result in termination of this Contract by City and assessment of
damages as outlined in Section 2.1.
2.1 The parties agree that it is extremely difficult and impractical to determine and fix the
actual damages that City will sustain should the CONSULTANT fail to complete the
Project within the time allowed. Should CONSULTANT fail to complete the work called
for in this Contract on the date outlined in Exhibit B and City and Consultant will set -up
a timeline that is acceptable after the first major project, CONSULTANT agrees to the
deduction of liquidated damages in the sum of Fifty Dollars ($50.00) for each calendar
day beyond the date scheduled for completion provided in Section 2 of this Agreement.
Execution of this Agreement shall constitute agreement by the City and CONSULTANT
that Fifty Dollars ($50.00) per calendar day is the minimum value of the costs and
actual damage caused by the failure of the CONSULTANT to complete the work within
the allotted time. Such sum is liquidated damages and shall not be construed as a
penalty, and may be deducted from payments due the CONSULTANT if such delay
occurs.
4. COMPENSATION
City shall pay Consultant for the services on a time and expense not4o-exceed basis in
accordance with the provisions of this Section and the Schedule of Billing Rates attached
hereto as Exhibit A and incorporated herein by reference will be decided per project basis.
Consultant's compensation for all work performed in accordance with this Agreement,
including all reimbursable items and sub consultant fees, shall not exceed nine thousand
three hundred forty dollars ($9,360) for the Newport Navigator brochure without prior written
authorization from City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City.
4.1 Consultant shall submit invoices when each project is completed to City describing the
work performed within 21 days of completion of the project. Consultant's bills shall
include the name of the person who performed the work, a brief description of the
services performed and /or the specific task in the Scope of Services to which it relates,
the date the services were performed, the number of hours spent on all work billed on
an hourly basis, and a description of any reimbursable expenditures. City shall pay
Consultant no later than thirty (30) days after approval of the monthly invoice by City
staff.
4.2 City shall reimburse Consultant only for those costs or expenses specifically approved
in this Agreement, or specifically approved in writing in advance by City. Unless
otherwise approved, such costs shall be limited and include nothing more than the
following costs incurred by Consultant:
A. The actual costs of sub consultants for performance of any of the services that
Consultant agrees to render pursuant to this Agreement, which have been
approved in advance by City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically authorized in
advance in writing and incurred by Consultant in the performance of this
Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed without the
prior written authorization of City. As used herein, "Extra Work" means any work that is
determined by City to be necessary for the proper completion of the Project, but which
is not included within the Scope of Services and which the parties did not reasonably
anticipate would be necessary at the execution of this Agreement. Compensation for
any authorized Extra Work shall be paid in accordance with the Schedule of Billing
Rates as set forth in Exhibit B.
5. PROJECT MANAGER
Contract shall designate a Project Manager, who shall coordinate all phases of the Project.
This Project Manager shall be available to City at all reasonable times during the Agreement
term. CONSULTANT has designated ELISA BRYANT, OWNER to be its Project Manager.
Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit
A or assign any new or replacement personnel to the Project without the prior written consent
of City. City's approval shall not be unreasonably withheld with respect to the removal or
assignment of non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its personnel
assigned to the performance of services upon written request of City. Consultant warrants that
it will continuously furnish the necessary personnel to complete the Project on a timely basis
as contemplated by this Agreement.
6. ADMINISTRATION
This Contract will be administered by Recreation & Senior Services Department. Recreation
Manager Matthew Lohr shall be the Project Administrator and shall have the authority to act
for City under this Contract. The Project Administrator or his /her authorized representative
shall represent City in all matters pertaining to the services to be rendered pursuant to this
Contract.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this Agreement, City
agrees to provide access to, and upon request of Consultant, one copy of all existing relevant
information on file at City. City will provide all such materials in a timely manner so as not to
cause delays in Consultant's work schedule.
8. STANDARD OF CAREIWORK QUALITY
All services shall be performed by Consultant or under Consultant's supervision. Consultant
represents that it possesses the personnel required to perform the services required by this
Contract, and that it will perform all services in a manner commensurate with community
professional standards. All services shall be performed by qualified and experienced
personnel who are not employed by City.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless
City, its City Council, boards and commissions, officers, agents, volunteers, and employees
(collectively, the "Indemnified Parties ") from and against any and all claims (including, without
limitation, claims for bodily injury, death or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs
and expenses (including, without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any breach of the terms and
conditions of this Agreement, any work performed or services provided under this Agreement
(including, without limitation, defects in workmanship or materials and /or design defects [if the
design originated with Consultant]) or Consultant's presence or activities conducted on the
Project (including the negligent and/or willful acts, errors and /or omissions of Consultant, its
principals, officers, agents, employees, vendors, suppliers, consultants, sub - consultants,
anyone employed directly or indirectly by any of them or for whose acts they may be liable or
any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to
indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful
misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as
authorizing any award of attorney's fees in any action on or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless of whether any
10.
11
insurance policies are applicable. The policy limits do not act as a limitation upon the amount
of indemnification to be provided by the Consultant.
INDEPENDENT CONSULTANT
It is understood that City retains Consultant on an independent consultant basis and
Consultant is not an agent or employee of City. The manner and means of conducting the
work are under the control of Consultant, except to the extent they are limited by statute, rule
or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be
deemed to constitute approval for Consultant or any of Consultant's employees or agents, to
be the agents or employees of City. Consultant shall have the responsibility for and control
over the means of performing the work, provided that Consultant is in compliance with the
terms of this Agreement. Anything in this Agreement that may appear to give City the right to
direct Consultant as to the details of the performance or to exercise a measure of control over
Consultant shall mean only that Consultant shall follow the desires of City with respect to the
results of the services.
COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the work to be
performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project direction with
City's Project Administrator in advance of all critical decision points in order to ensure the
Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized
designee informed on a regular basis regarding the status and progress of the Project,
activities performed and planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of work,
Consultant shall obtain, provide and maintain at its own expense during the term of this
Agreement, a policy or policies of liability insurance of the type and amounts described below
and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of insurance with
original endorsements to City as evidence of the insurance coverage required herein.
Insurance certificates must be approved by City's Risk Manager prior to
commencement of performance or issuance of any permit. Current certification of
insurance shall be kept on file with City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign
certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of insurance
in the State of California, with an assigned policyholders' Rating of A (or higher) and
Financial Size Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager.
11
D. Coverage Requirements.
Automobile Liability Coverage. Consultant shall maintain automobile insurance
covering bodily injury and property damage for all activities of the Consultant
arising out of or in connection with work to be performed under this Agreement,
including coverage for any owned, hired, non -owned or rented vehicles, in an
amount not less than three hundred thousand dollars ($300,000) combined
single limit for each occurrence.
E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim
made or suit instituted arising out of or resulting from Consultant's performance under
this Agreement.
F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and
expense, any additional kinds of insurance, which in its own judgment may be
necessary for its proper protection and prosecution of the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be provided under this
Agreement shall not be assigned, transferred contracted or subcontracted out without the prior
written approval of City. Any of the following shall be construed as an assignment: The sale,
assignment, transfer or other disposition of any of the issued and outstanding capital stock of
Consultant, or of the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint-venture or syndicate or co- tenancy, which shall
result in changing the control of Consultant. Control means fifty percent (50 %) or more of the
voting power, or twenty -five percent (25 %) or more of the assets of the corporation,
partnership or joint- venture.
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this Agreement is
the professional reputation, experience and competence of Consultant. Assignments of any or
all rights, duties or obligations of the Consultant under this Agreement will be permitted only
with the express written consent of City. Consultant shall not subcontract any portion of the
work to be performed under this Agreement without the prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing produced
(hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers,
employees, agents and sub - consultant, in the course of implementing this Agreement, shall
become the exclusive property of City, and City shall have the sole right to use such materials
in its discretion without further compensation to Consultant or any other party. Consultant
shall, at Consultant's expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant pursuant to this
Agreement are not intended or represented to be suitable for reuse by City or others on any
other project. Any use of completed Documents for other projects and any use of incomplete
Documents without specific written authorization from Consultant will be at City's sole risk and
without liability to Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than Consultant is
waived against Consultant and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for such
changes.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and communications that
result from the services in this Agreement, shall be kept confidential unless City authorizes in
writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers, representatives and
employees against any and all liability, including costs, for infringement of any United States'
letters patent, trademark, or copyright infringement, including costs, contained in Consultant's
drawings and specifications provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed under
this Agreement. Consultant shall maintain complete and accurate records with respect to the
costs incurred under this Agreement and any services, expenditures and disbursements
charged to City, for a minimum period of three (3) years, or for any longer period required by
law, from the date of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of City to
examine, audit and make transcripts or copies of such records and invoices during regular
business hours. Consultant shall 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 to Consultant under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute
with respect to such payment. Such withholding shall not be deemed to constitute a failure to
pay according to the terms of this Agreement. Consultant shall not discontinue work as a
result of such withholding. Consultant shall have an immediate right to appeal to the City
Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled
to receive interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts found to have
been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional inexperience
of Consultant which result in expense to City greater than what would have resulted if there
were not errors or omissions in the work accomplished by Consultant, the additional design,
construction and /or restoration expense shall be borne by Consultant. Nothing in this
paragraph is intended to limit City's rights under the law or any other sections of this
Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
24. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the California Political
.The
Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial
interest that may foreseeably be materially affected by the work performed under this
11
Agreement, and (2) prohibits such persons from making, or participating in making, decisions
that will foreseeably financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so
constitutes a material breach and is grounds for immediate termination of this Agreement by
City. Consultant shall indemnify and hold harmless City for any and all claims for damages
resulting from Consultant's violation of this Section.
All notices, demands, requests or approvals to be given under the terms of this Agreement
shall be given in writing, and conclusively shall be deemed served when delivered personally,
or on the third business day after the deposit thereof in the United States mail, postage
prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or
approvals from Consultant to City shall be addressed to City at:
Attn: Matthew Lohr
Recreation & Senior Services Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Email: mlohrtU)newportbeachca.gov
Phone: 949 - 644 -3164
Cell: 949 - 394 -1060
Fax: 949 - 644 -3155
All notices, demands, requests or approvals from CITY to Consultant shall be addressed to
Consultant at:
Attn: Elisa Bryant
Elisa Bryant Graphic Services
3521 Castle Reagh Place
Riverside, CA 92506
Phone: 951-784-6815
Cell: 951- 232 -6571
Email: andelisa pacbell.net
26. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of this Agreement
at the time and in the manner required, that party shall be deemed in default in the
performance of this Agreement. If such default is not cured within a period of two (2) calendar
days, or if more than two (2) calendar days are reasonably required to cure the default and the
defaulting party fails to give adequate assurance of due performance within two (2) calendar
days after receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, and thereafter diligently take steps to cure the default,
the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting
party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion and
without cause, of terminating this Agreement at any time by giving seven (7) calendar days
prior written notice to Consultant. In the event of termination under this Section, City shall pay
Consultant for services satisfactorily performed and costs incurred up to the effective date of
termination for which Consultant has not been previously paid. On the effective date of
7
termination, Consultant shall deliver to City all reports, Documents and other information
developed or accumulated in the performance of this Agreement, whether in draft or final form.
27. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations
and requirements of all governmental entities, including federal, state, county or municipal,
whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall
conform to applicable City, county, state and federal laws, rules, regulations and permit
requirements and be subject to approval of the Project Administrator and City.
28. WAIVER
A waiver by either party of any breach, of any term, covenant or condition contained herein
shall not be deemed to be a waiver of any subsequent breach of the same or any other term,
covenant or condition contained herein, whether of the same or a different character.
29. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary, negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall
be held to vary the provisions herein.
30. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Scope
of Services or any other attachments attached hereto, the terms- of this Agreement shall
govern.
31. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise apply.
32. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both
Consultant and City and approved as to form by the City Attorney.
33. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable
by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue
in full force and effect.
34. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to it
and any action brought relating to this Agreement shall be adjudicated in a court of competent
jurisdiction in the County of Orange.
f:3
35. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not discriminate
against any sub -consultant, employee or applicant for employment because of race, religion,
color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and
year first written above.
APPROVED AS TO FORM
OFFICE OF THE CITY ATTORNEY
By:
yn e %iBe u hampAssistantt orney
ATT
y:
✓ Leilani Brown,
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
By:
La ra Detweil irector
creation & Senior Services Department
By:
Tisa Bryant
lisa Bryant Graphic S% ices -Owner
Attachments: . Exhibit A - Scope of Services & Schedule of Billing Rate
�rcW pQ'QA
s
cpc�FARr��
I
EXHIBIT A
CONSULTANT
Scope of Services /Schedule of Billing Rates
SERVICES TO BE PROVIDED BY CONSULTANT
A. CONSULTANT wilt enhance the image and awareness of Department programs and
services through the production of the Newport Navigator seasonal brochure and
various collateral materials with the intent to advertise, promote and encourage
participation in the Department events and activities.
B. CONSULTANT shall provide the following:
All equipment and materials required to complete assigned projects;
2. Current computer software to layout (City uses Adobe In Design), create
artwork, and perform design services for a variety of materials including
publications, pamphlets, booklets, brochures and catalogs.
II. SPECIFIC PROJECTS TO BE COMPLETED BY CONSULTANT
Newport Navigator Seasonal Edition Brochure: Consultant will work in
cooperation with the Recreation ft Senior Services Department on the completion
of 5 editions to include spring 2010, summer 2010 and fall 2010. The page count
is expected for each season to be (page counts includes 4 -page cover):
i. Spring 2010 - 68 pages
it. Summer 2010 - 84 pages
iii. Fall 2010 - 72 pages
The CONSULTANT must drop the text of classes and photos into the layout
and create an appearance exclusively for City. A sample layout and design
will be provided by the City of Newport Beach Recreation Et Services
Department in a word document of class information and pictures digital files.
The CONSULTANT is responsible for the cover design, which needs to
represent the same appearance of the inset pages giving it a consistent
appearance throughout. The Consultant will also be responsible for the
design and lay -out of the inset page.
The CONSULTANT will be responsible for making all edits (two to three
rounds of edits) however simple edits will be done in- house.
The CONSULTANT will be responsible for attending, two (2), three -hour
meetings held at City Hall per season edition. Also, CONSULTANT will need to
attend Press Check at designated Southern California printer location.
The CONSULTANT will be responsible for uploading the PDF and /or Native
files to City's contracted printer (instructions will be provided from the City
of Newport Beach Recreation Et Senior Services Department) by assigned
deadline. CONSULTANT will also send to the City the Adobe In Design and PDF
Files at the completion of each edition.
10
.l• "
Schedule of Billing Rates
Cost per page:
$ 60.00 per page
Estimated Cost Per Seasonal Edition:
Spring 2010 $ 4,080
Summer 2010 $ 5,040
Fall 2010 $ 44,320
Total Contract Cost ",380 41-314+0
CONSULTANT Information
Business Name: Elisa Brvant Graphic Desian
Contact Person: Eti_s_a Bryant
Address: 3251 Castle Reaah Place, Riverside, CA 92506
Home /Fax Number: 951 - 784 -6815
Cell: 951 - 232 -6571
Email: andelisa@pacbell.net
Tax ID /SS #: 0
11