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HomeMy WebLinkAbout8 Conservation Marketing Services Agenda Item # 8 TRUCKEE DONNER CONSENT To: Board of Directors From: Steven Poncelet Date: April 07, 2010 Subject: Consideration of the Award of a Contract to Perform Conservation Marketing Services 1. WHY THIS MATTER IS BEFORE THE BOARD The award of a conservation programs marketing services contract requires Board approval as the contract amount exceeds $15,000. 2. HISTORY The Conservation Department last issued a Request for Proposal (RFP) for marketing services in the spring of 2008. Switchback Public Relations + Marketing (Switchback) was awarded the original contract that will expire on April 30, 2010. Switchback has performed well on this contract and the District's marketing and public-relations efforts have been generally very well received. 3. NEW INFORMATION Staff issued a new RFP for conservation programs marketing services on Friday, March 12t", e-mailed the RFP to consultants known to the District, and advertised the RFP in the Sierra Sun. The RFP due date was Friday, March 26th and one proposal, from Switchback, was received. A staff review committee comprised of members of the Conservation Department, Water Department, and General Services Department reviewed the proposal and, based on Switchback's past performance and the thorough proposal, are recommending an award of a contract to Switchback. The term of the proposed contract would be from May 1, 2010 through December 31, 2011 with an option to extend for one year. The term of the contract is being adjusted to conform to the new 2-year budget cycle. This is a time and material contract with a total not to exceed $66,667 with an estimated breakdown of $40,000 for public relations, $10,000 for design, and $16,667 for printing and materials (over the 20- month period). The proposed contract would include a guaranteed minimum monthly public relations charge of $1,500 and the hourly rates (including any markup) are $100/hour for public relations and $90/hour for design. There is no markup on printing and materials. The rates and mark-ups are either flat or lower than the previous contract and the proposed new contract is attached. ,y r 4. FISCAL IMPACT Sufficient funds exist in the FY10 and FY11 budgets for these marketing services and expenses. 5. RECOMMENDATION Award a contract for conservation program marketing services to Switchback Public Relations + Marketing for an amount not to exceed $66,667 for a term of 20-months. Steve oncelet Michael D. Holley Public Information & Conservation Manager General Manager PROFESSIONAL SERVICES AGREEMENT BETWEEN SWITCHBACK PR+ MARKETING, INC. (SWITCHBACK) AND TRUCKEE DONNER PUBLIC UTILITY DISTRICT This agreement is entered into this first day of May, 2010 by and between Switchback Public Relations + Marketing, Inc. (Switchback), a public relations firm, and Truckee Donner Public Utility District(District), for professional and related services to be provided to District. I SCOPE OF SERVICES Switchback shall provide to District marketing services on a time and material basis as defined herein. II FEES FOR SERVICES For services provided by Switchback to District pursuant to this agreement, District shall pay a total not to exceed $66,667 in accordance with the rates and charges set forth here: This is a time and material contract with a total not to exceed $66,667 with an estimated breakdown of $40,000 for public relations, $10,000 for design, and $16,667 for printing and materials. The contract would include a guaranteed minimum monthly public relations charge of $1,500 and the hourly rates (including any markup) are $100 per hour for public relations and $90 per hour for design. There is no markup on printing and materials. The term of the contact is from May 1, 2010 through December 31, 2011 with an option to extend for one year upon agreement by both parties. III BILLING AND PAYMENT Switchback shall submit a monthly statement to District setting forth the amount due for services and itemizing amounts due for expenses. District shall pay the full amount of such statement within thirty (30) days after receipt. Any sums billed, not disputed in written form setting forth specific exceptions and unpaid after thirty (30) days from the date of receipt, shall be subject to a late payment charge equal to the lesser of one and one-half (1 Y2) percent or the maximum rate permitted by law, for each month or fraction thereof past due. IV INDEPENDENT CONTRACTOR Switchback shall provide services to District as an independent contractor, not as an employee of District. Switchback shall not have or claim any right arising from employee status. V TERMINATION OF AGREEMENT a) Unless otherwise terminated as provided herein, this agreement shall terminate when (1) the services provided for herein have been fully and completely performed or(ii) December 31, 2011, whichever occurs first with an option to extend for one year upon agreement by both parties. b) Notwithstanding any other provision of this agreement, either party may terminate this agreement by giving thirty (30) days advance written notice to the other party and, upon Page 1 of 5 payment in full of all amounts owed to Switchback, Switchback shall immediately provide District with all written information and materials developed for District by Switchback pursuant to this agreement. c) Upon termination of this agreement, Switchback shall have no further obligation to provide services to District. If the agreement is terminated prior to completion of the services to be provided hereunder, Switchback shall render a final bill for services to District within thirty (30) days after the date of termination and District shall pay Switchback for all fees earned and expenses incurred prior to the date of termination in accordance with Section III. VI INSURANCE a) Switchback shall maintain in effect at its own expense, employer's liability insurance, one- million dollars ($1,000,000) aggregate of comprehensive general liability insurance (bodily injury and property damage), five-hundred thousand dollars ($500,000) aggregate of comprehensive automobile liability insurance (bodily injury and property damage) with respect to Switchback employees and vehicles assigned to the prosecution of work under this agreement and one-million dollars ($1,000,000) aggregate of professional liability insurance. Switchback shall also maintain statutory worker's compensation insurance. b) Switchback shall obtain and thereafter maintain in effect, if available, such additional insurance as may be requested in writing by District, the cost of which will be reimbursed by District. VII LIABILITY a) Switchback shall indemnify and hold harmless District, its directors, officers, partners, gents and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to attorney's fees, for which Switchback is determined to be legally liable resulting from negligent acts, errors, or omissions by Switchback its directors, officers, agents and employees in performance of services required by this agreement. Liability, claims, demands, damages, losses, or expenses resulting from the negligent acts, errors or omissions, whether active or passive, by District, its directors, officers, partners, agents, employees, or by others are excluded from Switchback obligations pursuant to this paragraph. b) Switchback Obligations to indemnify and hold District harmless shall be expressly limited to the proceeds of its applicable insurance coverage and shall terminate one (1) year after termination of this agreement, except that any claim for indemnification brought within such one year period shall not so terminate. c) District shall indemnify and hold harmless Switchback its directors, officers, agents and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to attorney's fees, for which District is determined to be legally liable resulting from negligent acts, errors or omissions by district, its directors, officers, partners, agents and employees. Liability, claims, demands, damages, losses or expenses resulting from the negligent acts, errors, or omissions, whether active or passive, by Switchback, its directors, officers, agents, employees, or by others are excluded from District's obligations pursuant to this paragraph. Page 2 of 5 d) In the event that District changes in any way or uses in another project or for other purposes any of the information or materials developed by Switchback pursuant to this agreement, Switchback is released from any and all liability relating to their use and District shall indemnify and hold harmless Switchback, its directors, officers, agents and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to attorney's fees, arising out of such changes or use for which District is determined to be legally liable. e) Nothing in this agreement shall be construed to create a duty to, any standard of care with reference to, or any liability to any person not a party to this agreement. f) Switchback shall not be liable to District for incidental or consequential damages. VIII VENUE Any mediation conducted pursuant to this agreement shall be conducted in the Town of Truckee, County of Nevada, California and any litigation to enforce or interpret this agreement shall be commenced and maintained only in the town of Truckee in the courts of the County of Nevada, Cal ifornia. IX MEDIATION All disputes between Switchback and District shall be subject to non-binding mediation. Either party may demand mediation by serving written notice stating the essential nature of the dispute and the amount of time and money claimed and requiring that the mediation proceed withi n sixty (60) days of service of said notice. The mediation shall be administered by the American Arbitration Association or by such other person or organization as the parties agree upon. No action or suit may be commenced unless the mediation does not occur within ninety (90) days after service of notice, the mediation occurred but did not resolve the dispute, or a statute of limitation would lapse if suit was not filed prior to sixty (60) days after service of notice. The failure to mediate a dispute may be considered in any award of attorneys'fees. X TIME IS OF THE ESSENCE Time is of the essence in this agreement. District will promptly provide Switchback with all support reasonable requested as required in order to enable Switchback to fulfill its obligations hereunder in a timely manner. XI CONFLICT OF INTEREST Switchback will abide by its professional obligations to notify District of any actual conflict of interest resulting from services provided to other clients of Switchback of which it becomes aware. District acknowledges that other affiliates or divisions of Switchback may perform similar services within the marketing industry. Switchback shall establish measures intended to protect the confidentiality of the services provided hereunder. Page 3 of 5 XII OWNERSHIP OF PROPERTY All information and materials prepared or developed by Switchback pursuant to this agreement, including but not limited to data, documents, calculations, maps sketches, notes, project specific report material and reports, shall become the property of the District, when prepared, whether delivered to District or not. All formula, methodologies, customized software development, applied software and results, Switchback's technical practices and standard document format and content developed by Switchback prior to the date of this agreement and all formula, methodologies and technical practices developed during the performance of this agreement shall remain and be the property of Switchback. XIII SUCCESSORS IN INTEREST This agreement shall be binding on, and inure to the benefit of, each party's successors in interest, including their heirs, legatees, assi gnees and legal representatives. XIV WAIVER Any waiver at any time by either party of its rights with respect to a default under this agreement, or with respect to any other matters arising in connection with this agreement, shall not be deemed a waiver with respect to any subsequent defa ult or other matter. XV SEVERAL OBLIGATIONS Except where specifically stated in this agreement to be otherwise, the duties, obligations, and liabilities of the parties are intended to be several and not joint or collective. Nothing contained in this agreement shall be construed to create an association, trust, partnership or joint venture of impose a trust or partnership duty, obligation, or liability on or with regard to either party. Each party shall be individually and severally liable for its own obligations under this agreement. XVI AMENDMENT All changes or modifications to this agreement shall be in writing and signed by both parties. XVII GOVERNING LAW This agreement shall be construed and interpreted according to, and the rights of the parties shall be governed by, the laws of the state of California. XVIII ATTORNEY'S FEES If either party becomes involved in litigation arising out of this agreement or the performance thereof, the prevailing party shall be entitled to reasonable attorney's fees, costs and expenses, in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire agreement. Page 4 of 5 XIX ENTIRE AGREEMENT This agreement constitutes the complete and final expression of the agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreements and supersedes all prior and contemporaneous offers, promises, representations, negotiations, discussions, communications and agreements which may have been made in connection with the subject matter hereof. XX SEVERABILITY If any provision of this agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this agreement and shall not cause the remainder to be invalid or unenforceable. In suc h event, the parties shall reform this agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the strick en provision. XXI NOTICES a) Any notice, demand, information, invoice, report, or item otherwise required, authorized, or provided for in this agreement, unless otherwise specified herein, shall be deemed properly given if delivered in person or sent by United States Mail, First Class postage prepaid: To: Switchback Public Relations + Marketing, Inc. Attn: Brinn Wellise 10076 West River Street, Ste 206 Truckee, CA 96161 To District: Truckee Donner Public Utility District Attn: Michael D. Holley Post Office Box 309(11570 Donner Pass Road) Truckee, CA 96160 b) All notices shall be deemed effective upon receipt by the party to whom such notice is given. XXII SIGNATURE CLAUSE The signatories hereto represent that they are authorized to enter into this agreement on behalf of the party for whom they sign. Michael D. Holley Brinn Wellise Truckee Donner Public Utility District Switchback Public Relations + Marketing, Inc. Page 5 of 5