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HomeMy WebLinkAbout20 - 2006 Centennial Commemorative BookCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 20 January 11, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Recreation and Senior Services Marie Knight, Director 644- 3157 — mknight@city.newport- beach.ca.us SUBJECT: Professional Service Agreement and Budget Amendment for Creation and Publication of a Commemorative Book for the 2006 Centennial RECOMMENDATION 1. That the City Council approve the attached Professional Service Agreement (PSA) with Douglas Westfall and The Paragon Agency for the creation and publication of a book in commemoration of the City's 100 year anniversary. 2. That the City Council approve a budget amendment for funding the publication of the Commemorative Book for the 2006 Centennial by increasing expenditures in account 0110 -8250 by $114,337.00 to cover the cost of publication. The General Fund unappropriated fund balance will advance these funds and will be reimbursed by anticipated revenues of $301,000.00 from the sale of the books in FY 2005/06. BACKGROUND At the January 27, 2004 meeting, the Council established an ad hoc committee to facilitate the planning of activities and events in commemoration of the City's 100 year anniversary. The Committee has been meeting regularly and has begun the recruitment of volunteers to assist with the many activities and events. As part of the Centennial Celebration the Committee is looking at merchandise options to include pins, t- shirts, and a commemorative book. The Council may recall that the publication of a book in commemoration of both the 50th and 75th anniversary celebrations was very well received. DISCUSSION After hearing presentations from a few interested publishers, the Committee is recommending that the Council approve the attached PSA (Attachment A) with Douglas Westfall and The Paragon Agency for the publication of the 100 year anniversary book. Mr. Westfall has vast experience in the publishing industry and has authored many historical books locally including the book recently published for the Corona del Mar 100 year celebration. (Attachment B outlines Mr. Westfall's credentials and past book projects.) It is intended that this book would be published in time for the kick -off of Centennial activities anticipated to begin October 2005, and available for purchase locally to the public. Attachment C is the proposal and quote from The Paragon Agency outlining the publication requirements and timelines associated with this project. Based on input from the publisher and past experience, the Committee is recommending an initial purchase of 8,000 softbound, 1,980 hardbound, and 20 leather bound books. The total cost for this publication would be $114,337. Professional Service Agreement and Budget Amendment for Creation and Publication of a Commemorative Book for the 2006 Centennial January 11, 2005 Page 2 which includes an author fee of $10,000. The Committee is also recommending that the Council fund the initial seed money needed for the publication of the book, and that sales of the book would be used to reimburse the City's entire investment. If all 10,000 books were sold based on an estimated sale price provided by the publisher, a total of $301,000 would be raised, leaving $186,663 to be used to fund other Centennial events after the City has been reimbursed the initial investment. Environmental Review: NA by: MariqAKnight, Reblation[A Senior Services Director Attachments: A. Professional Service Agreement B. Publishers credentials C. Paragon Agency Proposal Arhhachms#W 14 WORK- MADE - FOR -HIRE AGREEMENT WITH DOUGLAS WESTFALL AND THE PARAGON AGENCY THIS AGREEMENT is made and entered into as of this _ day of January 2005, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and DOUGLAS WESTFALL and THE PARAGON AGENCY, a general partnership, whose address is P.O. Box 1281, Orange, California, 92856 (collectively referred to as "Publisher"), 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 is planning to celebrate its Centennial in 2006, marking one hundred years since the date of its incorporation in 1906. C. City has decided to engage Publisher to author and publish a 250 -page book in full color about the City of Newport Beach, tentatively titled Newport Beach in celebration of the City's Centennial (hereinafter referred to as the "Book" or the "Project "). D. As part of the Project, Publisher has agreed to gather and restore all historical photographs, maps and illustrations, generate all contemporary photographs, graphics, illustrations, and artwork, and author all required text. The Book is more particularly described in the Publisher's Proposal dated December 21, 2004, attached hereto as Attachment A (hereinafter referred to as the "Scope of Work "). E. Publisher possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. F. The principal member of Publisher for purposes of this Agreement shall be Douglas Westfall. Mr. Westfall shall be designated as the author of the Book. G. City has solicited and received a proposal from Publisher, has reviewed the previous experience and evaluated the expertise of Publisher, and desires to retain Publisher to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: I 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on December 31, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Publisher shall research, develop, design, lay out, compile, author and publish a 250 -page book in full color about the City of Newport Beach. The Book will provide a summary of the City's 100 -year history, and will be designed around six main elements: History, Architecture, Arts, Nature, Beach and the Harbor. It will include a minimum of fifty (50) contemporary photographs. It will also include a table of contents and an index. The Book will be published in three forms: soft cover, hardcover- cloth, and hardcover- bonded leather. City shall receive a minimum of 10,000 books, including 8,000 in soft cover and the remainder in hardcover, as described more fully in the Scope of Services included in Attachment A. City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TITLE AND COPYRIGHT ASSIGNMENT 3.1. Publisher and City intend this to be a contract for services and each considers the products and results of the services to be rendered by Publisher hereunder to be a work made for hire under the United States Copyright Act. Publisher acknowledges and agrees that the Book, at all stages of development, (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City. 3.2 if for any reason the Book would not be considered a work made for hire under applicable law, Publisher does hereby sell, assign, and transfer to City, its successors and assigns, the entire right, title and interest in and to the copyright in the Book and any registrations and copyright applications relating thereto and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Book, and in and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present, or future infringement based on the copyrights, and in and to all rights corresponding to the foregoing through the world. 3.3 If the Book is one to which the provisions of 17 U.S.C. 106A apply, the Publisher hereby waives and appoints City to assert on the Publisher's behalf, the Publisher's moral rights or any equivalent rights regarding the form or extent of any alteration to the Book (including, without limitation, removal or destruction) or the making of any derivative works based on 2 X the Book, including, without limitation, photographs, drawings or other visual reproductions of the Book, in any medium, for City purposes. 3.4 Publisher agrees to execute all papers and to perform such other proper acts as City may deem necessary to secure for City or its designee the rights herein assigned. 3.5 Publisher also hereby irrevocably transfers and assigns to City, and waives and agrees never to assert any and all "Moral Rights' (as defined below) that Publisher might have in or with respect to any aspect of the Book, even after termination of Publisher's work on behalf of City. "Moral Rights' shall mean any rights to object to or prevent any modification of the Book, to withdraw from circulation or control the publication or distribution of the Book, and any similar right, existing under judicial or statutory law. 4. TIME OF PERFORMANCE/ DELIVERY OF THE WORK 4.1 Time is of the essence in the performance of services under this Agreement and Publisher shall perform the services in accordance with the Schedule of Milestones and Approval Dates, dated December 15, 2004, attached hereto as Attachment B. 4.2 Publisher will deliver to the City on or before September 9, 2005, the completed Book for final approval (with all photographs, art, maps, illustrations, and other material in the medium mutually agreed upon for the Book) in a form and content satisfactory to the City. Publisher agrees to deliver all soft cover books by October 10, 2005 and all hardcover books by October 28, 2005. 4.3 If Publisher fails to deliver the Book on time, the City will have the right to terminate this Agreement and to recover from the Publisher any sums advanced in connection with the Book. Upon such termination, the Publisher may not have the Book published elsewhere until any advances paid hereunder have been repaid. 4.4 Notwithstanding the foregoing, Publisher shall not be responsible for delays due to causes beyond its reasonable control. However, in the case of any such delay, Publisher hereby agrees to provide notice to the City so that all delays can be addressed. Publisher shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays beyond Publisher's control. 5. COMPENSATION 3 City shall pay Publisher for the services in accordance with the provisions of this Section and the Schedule attached as Attachment B and incorporated herein by reference. Publisher's compensation for all work performed in accordance with this Agreement shall not exceed One - Hundred - and - Fourteen Thousand, Three - Hundred and Thirty -Seven Dollars and no /100 ($114,337.00). This amount includes a Ten - Thousand - Dollar ($10,000.00) writing fee to be paid Publisher. No additional payments to Publisher shall be made during the term of this Agreement without the prior written approval of City. 5.1 Publisher acknowledges that it has already received a Five- Thousand- Dollar ($5,000.00) advance from City toward the writing fee for the Book. 5.2 City will not be responsible for payment or reimbursement of any fees or expenses of Publisher, except for those specifically authorized herein. City agrees to waive any fees the City may charge for taking aerial photographs within the City's boundaries, provided that the photographs are taken for use in this Project. 5.3 Publisher shall submit regular invoices to City, according to the schedule outlined in Attachment A. Publisher's bills shall include a brief description of the services performed and /or the specific task in the Scope of Services to which it relates. City shall pay Publisher no later than thirty (10) days after approval of the invoice by City staff. 5.4 Publisher shall not receive any compensation for Extra Work 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 Book, 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. 6. REVISIONS City shall retain the right to make revisions to the Book prior to publication. Publisher agrees to make the revisions within thirty (30) days upon the receipt of a written request to do so from the City. In the event that Publisher is unable or unwilling to do so, City may have the revisions made by a third party and charge the cost against the sums due the Publisher under this Agreement, if any, and may display, in the revised Book and in advertising, the name of the person or persons who performed the revisions. 7. QUOTED MATERIAL With the exception of short excerpts from others' works, which constitute fair use, the Book will contain no material from other copyrighted works, including art and photographs, without a written consent of the copyright holder. The Publisher will obtain such consents at its own expense in consultation with the 4 G City. Any obligations associated with permissions will be the responsibility of the Publisher. All illustrations in the Book will come from archives and /or private individuals. In each case, Publisher shall obtain and provide to City signed releases for any materials provided by those archives and /or individuals. In addition, any written resource material will be rewritten by Publisher so as not to violate any copyright. The form and content of the releases and copyright consents must be approved by the City Attorney's Office. Publisher will file copies of all such releases and consents with the City at the time the Book is delivered. Publisher shall retain all original copyright consents and releases and make them available to the City upon request. 8. WARRANTY AND INDEMNIFICATION Publisher warrants that it has full power and authority to make this Agreement; that the Book will not infringe any copyright, violate any property rights, or contain any scandalous, libelous, or unlawful matter. Publisher will defend, indemnify and hold harmless the City and /or its licensees against all claims, suits, costs, damages, and expenses that the City and /or its licensees may sustain by reason of any scandalous, libelous, or unlawful matter contained or alleged to be contained in the Book, or any infringement or violation by the Book of any copyright or property right; and until such claim or suit has been settled or withdrawn, the City may withhold any sums due Publisher under this Agreement. 9. PROJECT MANAGER Publisher shall designate a Project Manager, who shall coordinate all phases of the Book. This Project Manager shall be available to City at all reasonable times during the Agreement term. Douglas Westfall has been designated the Project Manager on behalf of the Publisher. Publisher shall not remove or reassign the Project Manager or assign any new or replacement personnel or subcontractors to the Project without the prior written consent of City. Publisher, 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. Publisher warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 10. ADMINISTRATION This Agreement will be administered by the Recreation and Senior Services Department. Director Marie Knight shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 5 11. CITY'S RESPONSIBILITIES In order to assist Publisher in the execution of its responsibilities under this Agreement, City agrees to provide access to, and upon request of Publisher, 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 Publisher's work schedule. 12. STANDARD OF CARE 12.1 All of the services shall be performed by Publisher or under its supervision. Publisher represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, 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, nor have any contractual relationship with City. 12.2 Publisher represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Publisher to practice its profession. Publisher further represents and warrants to City that Publisher shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Publisher to practice its profession. 13. HOLD HARMLESS To the fullest extent permitted by law, Publisher shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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, attorneys 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 work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Publisher]) or Publishers presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Publisher, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, 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 Publisher to indemnify the Indemnified Parties from any Claim arising from the active 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 6 J' action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Publisher. 14. INDEPENDENT CONTRACTOR It is understood that City retains Publisher on an independent contractor basis and Publisher and its subcontractors are not agents or employees of City. The manner and means of conducting the work are under the control of Publisher, 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 Publisher or any of Publisher's employees, agents or subcontractors, to be the agents or employees of City. Publisher shall have the responsibility for and control over the means of performing the work, provided that Publisher is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Publisher as to the details of the performance or to exercise a measure of control over Publisher shall mean only that Publisher shall follow the desires of City with respect to the results of the services. 15. COOPERATION Publisher 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 Publisher on the Project. 16. CITY POLICY Publisher 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. 17. PROGRESS Publisher is responsible for keeping the Project Administrator and /or 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. 18. INSURANCE Without limiting Publisher's indemnification of City, and prior to commencement of work. Publisher 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. 7 9 A. Certificates of Insurance. Publisher 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 the City's Risk Manager 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. D. Coverage Requirements. i. Workers' Compensation Coverage. City agrees to waive the requirement that Publisher obtain and maintain state Workers' Compensation Insurance, provided that Publisher executes the City's standard form "Certificate of Exemption from Workers' Compensation Insurance." ii. General Liability Coverage. Publisher shall obtain and maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Publisher shall obtain and maintain automobile insurance covering bodily injury and property damage for all activities of the Publisher 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 five- hundred - thousand dollars ($500,000) combined single limit for each occurrence. iv. Publisher's Liability (Professional Liability). Publisher shall obtain and maintain coverage for slander, libel and defamation liability, as well as copyright and trademark infringement liability, which covers the services to be performed in connection with this Agreement in the minimum aggregate annual amount of one million dollars 8 /O ($1,000,000). City agrees to pay the reasonable cost of such insurance, subject to approval by the City's Risk Manager. V. Insurance will remain in force and effect for a minimum of three (3) years from the effective date of this Agreement. E. Endorsements. The general liability and publisher's liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Publisher. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Publisher's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Publisher shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Publisher's performance under this Agreement. G. Additional Insurance. Publisher 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. 9 �/ 19. 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 the Paragon Agency ('Paragon "), or of the interest of any general partner or joint venturer or syndicate member or cotenant if Paragon is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Paragon. 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. 20. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Publisher. Assignments of any or all rights, duties or obligations of the Publisher under this Agreement will be permitted only with the express written consent of City. Publisher shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. City hereby agrees that the following subcontractors may be used by Publisher as part of this Project: Randy Tyler of American Web Press of Yorba Linda, Ca. and Denver, Colo.; and Steve Bock of Pease Bindery of Lincoln, Nebraska. Any changes to the subcontractors used must first be approved by the City. 21. 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 Publisher, its officers, employees, agents and subcontractors, 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 Publisher or any other party. Publisher shall, at its expense, provide such Documents to City upon prior written request. 22. 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. 23. INTELLECTUAL PROPERTY INDEMNITY Publisher shall defend, indemnify and hold City, its agents, officers, representatives, employees, City Council, boards and commissions harmless from any and all liability, including costs, for any intentional violation of legally 10 protected rights of any third parties contained in Publisher's Book provided under this Agreement, including but not limited to infringement of any United States' letters patent, trademark, or copyright issued as of the effective date of this Agreement. 24. RECORDS Publisher shall keep records and invoices in connection with the work to be performed under this Agreement. Publisher 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 Publisher under this Agreement. All such records and invoices shall be clearly identifiable. Publisher shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Publisher 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 Publisher under this Agreement. 11 /J, 25. WITHHOLDINGS City may withhold payment to Publisher 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. Publisher shall not discontinue work as a result of such withholding. Publisher shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Publisher 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. 26. CONFLICTS OF INTEREST Publisher or its employees may be subject to the provisions of the California Political Reform 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 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, Publisher 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. Publisher shall indemnify and hold harmless City for any and all claims for damages resulting from Publisher's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Publisher 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 Publisher to City shall be addressed to City at: Recreation and Senior Services Department Attention: Marie Knight, Director City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3157 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Publisher shall be addressed to Publisher at: Douglas Westfall The Paragon Agency 12 `.1 29. 30. 31. P.O. Box 1281 Orange, California 92856 Phone/Fax: (714) 771-0652 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, 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 Publisher. In the event of termination under this Section, City shall pay Publisher for services satisfactorily performed and costs incurred up to the effective date of termination for which Publisher has not been previously paid. On the effective date of termination, Publisher shall deliver to City all Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. COMPLIANCE WITH ALL LAWS Publisher 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 Publisher 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. 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 o r of the same or a different character. INTEGRATED CONTRACT condition contained herein, whether 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. 32. CONFLICTS OR INCONSISTENCIES 13 /r 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. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Publisher and City and approved as to form by the City Attorney. 34. 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. 35. 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. 36. EQUAL OPPORTUNITY EMPLOYMENT Publisher represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, 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. CITY OF NEWPORT BEACH, A Municipal Corporation By: Mayor for the City of Newport Beach DOUGLAS WESTFALL The Paragon Agency 0 Douglas Westfall Owner /Publisher /Author 14 �� APPROVED AS TO FORM: Robin Clauson, City Attorney for the City of Newport Beach ATTEST: 0 LaVonne Harkless, City Clerk Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Milestones, Approval and Payment Dates F:\ users\ cat \sharedWg \ProfServices\Paragon Work- For -Hire Agreement.doc Rev: 1/04/05 15 The Paragon P ,B_r= r,.., Marie Knight City of Newport Beach 1821 Mariners Drv. Newport Beach, CA Dear Marie: Agency V4� A& Decemberl3, 2004 � , Following is a list of clients, published books, and books owned by Paragon but sold in select venues. We have done publications for The Bowers Museum, Mission San Juan Capistrano, Mission San Luis Rey, The Malki Museum, San Juan Capistrano Historical Society, Garden Grove Historical Society, Saddleback Valley Historical Society. Victorian Museum, Santa Ana Preservation & Historical Society, Southern California Genealogical Society, and the Stage Actress, Julie Harris. Other publications have been produced for: The Malki Press, Upton & Sons Publishers, and several private publications. As well, we have publications that sell in several national parks, museums and missions including: Mission Dolores, Mission San Juan Capistrano, Custer Battlefield, Gettysburgh Battlefield, Palm Springs Air Museum, March Airfield Musuem, Shiloh Battlefield and the California Science Center. The following page shows a portion of our publications, their style, type and owner /vendor. 1 have also indicated those 1 have written. Best Regards, Douglas Westfall, Publisher NZ NNZI P.O. 8,,. 281 - O,,.-'o" CA, - 92850 (714) 771 -0662 z Title I Type Style Owner Letters From The Field American History D Westfall Paragon Missions in Photogravure American History Reproduction Paragon Wreck of the Titanic American History Reproduction Paragon Capistrano Nights American History Reproduction Paragon Mission Little Chapters Local History Reproduction Mission SJC Tour of Old Towne Orange Local History D Westfall Paragon Scottie's Favorites Historic Cookbook J Westfall Paragon History of Santa Ana Local History Reproduction Paragon Orange Illustrated Local History Reproduction Paragon Town of Garden Grove Local History Reproduction GGrove HS American Swords American Collectors Authored Private Guide to San Juan Capistrao Local History Authored SJC HS Something Untamed Poetry Authored Paragon In Quest of Our Past American History Authored Questers Benjamin Westfall American History Reproduction Paragon Village of Garden Grove Local History Reproduction GG HS Prisoners of the Civil War American History D Westfall Paragon Life of Emily Dickinson American History D Westfall Paragon Dos Cientos Anos Local History Authored SJC HS Viola, Diving Wonder American History Authored Private A Diary of Brides Poetry Authored Vict, Musm. Toulouse the Moose Childrens Authored Paragon Recuerdos de El Toro Viejo Local History Authored Saddleback HS Rain of Fire American History Authored Private OC Ranchos Local History Authored Private Amelia Earhart Survived American History Authored Paragon Reflections from the Heart Poetry Authored Private Story of the Town of Bolsa Local History D Westfall Private Corona Del Mar Local History D Westfall CDM Found. Mission Dolores Local History Authored Paragon Pioneers of Whittier Local History Authored Whittier HS Wings Over Whittier Local History Authored Private San Juan Restoration American History Authored Private Our Universe Astronomy Authored Private Corona Del Mar Local History D Westfall CDM Found. Presently on press: Amelia Earhart's Radio American History Authored Paragon San Francisco 1st 100 Years Local History Reproduction Paragon Spanish & Mexican Families American History Authored So Cal Gene Soc Port Hudson American History Authored Paragon 200 Years in SJC Local History Authored SJC HS Escondieo Local History D Westfall Escondido HS Douglas Westfall Historic Publisher 6t Lecturer First Person Accounts of American History Douglas Westfall has been a historic publisher for over ten years and has had the opportunity to discover some of the really great stories of America. By publishing his own works, he maintains the control over the quality and content of the material he provides and brings these events to the public through his lecture series. As a public lecturer, he brings to light the first person stories that he finds throughout America, fascinating tales of true life experiences from subjects such as the Civil War, The Sinking of the Titanic, and Amelia Earhart. Speaking publicly, Douglas has given presentations in half of the United States, Canada, Latin America, Asia and Europe. As an educator he has taught from the fourth grade through the second year in college. In addition, he is involved with libraries, history centers, and universities in historic research. Douglas is also on the Board of Trustees of the Orange Public Library, specializing in the historic archives, within his own town. His lectures come from the books he publishes, including titles not yet released, and his presentations are filled with the personal stories of our American history. Douglas' books are sold on his website and at book stores across the nation. To book a lecture on one of his a U i c �.w wti�n A'1�' IY Old 7ow'ut Orjagk First Person Accounts of American "My history becomes you." History, contact Douglas Westfall at his office listed below. SICIA[Boksom P0. Box 1281 • Orange, CA 92856• (714) 771 -0652 • www.SpecialBooks.com M The Paragon PJB'_15- yp.ir. Marie Knight City of Newport Beach 1821 Mariners Drv. Newport Beach, CA Dear Marie: Agency V4� _ December 21, 2004 � , This proposal and quote is for one publication: a new book, titled (tentatively) Newport Beach which will go toward the promotion of and to honor the centennial of Newport Beach. The summation below is based upon input from you and the interviews of several individuals within the Newport Beach area. Following are my recommendations: The Book, Newport Beach, is to be designed around six elements: History, Architecture, Arts, Nature, Beach & the Harbor. It is the Harbor that brings focus to the piece as it is the Harbor that brings people, the desire to live here. Content will begin with history but as factors arise, modern elements from the list above, will be brought in as they relate to that part of the history. It's as if a timeline were drawn and when the contemporary pieces of Newport Beach show up, the book will begin to highlight them at that point. This provides a wide scope of the community, yet follows it's history as a plan for the publication. The book will be published in three forms: Softcover, Hardcover - Cloth, and Hardcover- Bonded Leather. I've quoted you for 10,000 units: 8,000 in Softcover, 1,980 Hardcover- cloth, and 20 Hardcover - Bonded Leather. Both Hardcover come with a full color dustjacket, and the dustjacket matches the Softcover image. Paper is 80# Influence matte; Dustjackets are full color with a gloss film UV lamination. All books are in full color and are 250 page count. The quotes are good for 90 days, modifications, updates and changes can be made if needed. All costs include or show the shipping of all books and the magazine, with the exception of postage, which will be approximated. Books are packed in 275# cartons, strapped to palettes and shipped to Newport Beach. Magazines are bagged, labeled, sorted by carrier route and deposited to the post office, from the press. Remaining magazines are packed in 275# test cartons, strapped to palettes and shipped to Newport Beach. We require 25% up front; 25% upon approval of style; 25% upon approval to press; and the remainder upon proof of publication. Vr e,00ksICOM (714) 771 -0652 P.,iONE - FAX - MODE c I� The Paragon Agency Pup! S111\1c, NEW QUOTE December 21, 2004 QUOTE: Book, NEWPORT BEACH - 10,000 copies 8,000 Softbound, 1,980 Hardbound in cloth, and 20 Hardbound in Bonded Leather. The book is 250 pages, in full color, on 70# Liberty matte, and in an 81/2 x 11 format -- before binding. The Softcover is perfect bound with a color l Opt cover, and the Hardcover is smythsewn bound in cloth hardboards, with a color dustjacket. The Hardcover Bonded Leather is also smythsewn bound in hardboards, with a color dustjacket. Both hardcover cloth and hardcover bonded leather have gold stamping on the face and spine of the book. Both also have heads and footers, rounded backs and .100 hardboards. The Softcover and all dustjackets are UV coated in a gloss surface, for protection. QTY DESCRIPTION COST EACH 8,000 Softbound Books: 71,136 8.89 1,980 Hardbound Cloth: 32,625 16.47 20 Hardbound Bonded Leather: 576 28.82 TOTAL COST 104,337 -- Softbound books would sell in the $25 range, hardbound cloth could sell at $50 or above, and hardbound bonded leather could be reserved at $100 or used as gifts. The ROI of the softbound is 280 %, the ROI of the hardbound cloth is slightly higher and the ROI for the hardbound leather if sold, is 345 %. These are all at full retail. www. Spec 19 l BOOPS. COM P.O. Boy :281 - Orange, CA - 92856 (714) 771 -06:2 P-IUdE - -AX - MODEK� \) 11� The Paragon PIIBLISHING Marie Knight City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92663 Dear Marie: Agency VA.,Decemberl5, 2004 ' Following is a schedule of milestones and approval dates, for the centennial book for Newport Beach. 2005 January February 11 March April May 6 June 30 July August 12 August 26 September 9 September 30 October 10 October 28 Style & Layout Development INITIAL DEPOSIT DUE Approval for Layout Style Research - collecting materials, additional photography Sample Chapter Development - interactive process Approval.of Chapter Writing Final book Development Review, Update & Approvals - interactive To Press PRESS DEPOSIT DUE Blue Line /Chromalin Final Approval To Bindery Softcover Books Received FINAL DEPOSIT DUE Hardcover Books Received Don recommended a retainer of $5,000 to be available in December; this can be 50% of the writing fee. The remainder of this fee can be paid with the Final Deposit, upon proof of publication, in October ($5,000). For the book project we require a 50% Initial Deposit ($52,168); 25% Press Deposit upon approval ($26,085); to press; and the remaining 25% Final Deposit, upon proof of publication ($26,084.) Total book cost: ($104,337.) Total payment to The Paragon Agency will be $114,337. All scheduled dates are based upon successful approvals. Delays beyond our control for approvals, reviews, updates and press events, will affect due dates and not be held against The Paragon Agency. BesyRegairds, D uglas W tfall, P b is er -� "e SpeUaieooks.com P.O. Box 1281 - Orange, CA - 92850 (714) 771 -0552 PHC'NE - FAX - MODEM eity 3' Ne pe�-- 33,,�6, NeNpn.t ge�Fvzzses INVCDICENCD.' 05876 EIN: 23-0433606 CUSTOMER'S ORDER NO. SALES TERMS SHIPPED VIA RESALE DATE D 4 5 000 c 0 RE"-"A` D 00' D'00f Q-" PUblicat4on (50%) 510jo 00 7t- . Q<y City of Newport Beach NO. 05BA -035 BUDGET AMENDMENT 2004-05 AMOUNT: $114,337.00 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase in Budgetary Fund Balance Iq Increase Expenditure Appropriations AN X Decrease in Budgetary Fund Balance Transfer Budget Appropriations No effect on Budgetary Fund Balance SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase expenditure appropriations for the publication of a Centennial Commemorative Book. These funds will be advanced by unappropriated General Fund Fund Balance and will be reimbursed by the sale of the books in FY 05 -06. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 010 3605 General Fund - Fund Balance REVENUE ESTIMATES (3601) Fund /Division Account Description EXPENDITURE APPROPRIATIONS (3603) Signed: Amount Debit Credit $114,337.00 Automatic $114,337.00 _C Date O� Date City Council Approval: City Clerk Date Description Division Number 0110 City Council Account Number 8250 Special Department Expense Division Number Account Number Division Number Account Number Division Number Account Number Y Signed: Fin cial Approval: Ad73U7 ' Director Signed: w, Administrative Appro I: City Manager Signed: Amount Debit Credit $114,337.00 Automatic $114,337.00 _C Date O� Date City Council Approval: City Clerk Date