HomeMy WebLinkAbout11 - 2009 Restaurant Weeks Work AgreementCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. ii
October 14, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Leigh M. De Santis, Economic Development Administrator, 949 - 644 -3207,
Idesantis@city. newport - beach ca. us
SUBJECT: 2009 Restaurant Weeks Work Agreement
RECOMMENDATION:
Authorize the Mayor and City Clerk to sign the 2009 Restaurant Weeks Work
Agreement among the City, Restaurant Association and California Marketing Concepts.
DISCUSSION:
Background:
The Newport Beach Restaurant Association BID organized a Restaurant Week in 2008
and 2007. For 2009 they are planning to present two Restaurant Weeks, one in
January, as in the past two years, and one in late September or early October. With
each previous event the NBRA has been able to build participation and generate
increases in income. The NBRA hopes the Restaurant Weeks may eventually become
self sustaining and they believe that making it bi- annual may hasten that possibility.
Analysis:
In previous years, the Restaurant Association has contracted directly with California
Marketing Concepts to provide marketing support for Restaurant Week. Staff is
recommending that the City be a party to the agreement this year, because the two
proposed events will occur in two different fiscal years. The City can encumber funds
that will be expended over the sixteen (16) month period from start to conclusion of the
second event, even though this period goes beyond a fiscal year. The BID, however,
must be renewed every fiscal year, and cannot commit to the expenditure of funds for a
period when there is the possibility that it would not exist. Staff believes that, by
expanding the Work Agreement to 16 months and having the City be a party to it,
payment of City funds will occur as needed and all three parties will be better protected.
2009 Restaurant Weeks Work Agreement
October 14, 2008
Page 2
The Work Agreement clearly limits the City's liability to a maximum of $100,000 which
will be transferred to the NBRA. The City's liaison to the NBRA will be monitoring and
co- signing expenditures under the PSA. Any contract amounts in excess of the City's
$100,000 contribution are the sole liability of the NBRA and one that they anticipate
meeting through event revenues.
The NBRA Board has approved this Work Agreement.
Environmental Review:
Approval of the Work Agreement is not a project as defined by CEQA.
Funding Availability:
The City Council, as part of the budget process in June 2008, approved $100,000 in
funding to the Restaurant Association BID to underwrite the cost of the two events.
Prepared by:
Submitted by:
Leig . De Santis, Sharon Z. Woo fi(i�
Economic Development Administrator Assistant City Manager
Attachments: Work Agreement
PROFESSIONAL SERVICES AGREEMENT WITH
NEWPORT BEACH RESTAURANT ASSOCIATION BID AND
CALIFORNIA MARKETING CONCEPTS, INC. FOR
TWO RESTAURANT WEEK CAMPAIGNS IN CALENDAR YEAR 2009
THIS AGREEMENT is made and entered into as of this day of
2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City"), and the Newport Beach Restaurant Association, a Business Improvement
District of the City of Newport Beach whose address are NBRA P.O. Box 2295 Newport
Beach, CA 92659 ( "NBRA" or "BID ") and California Marketing Concepts, Inc., a
California Corporation ( "CMC, Inc. "), whose address is P.O. Box 5711, Balboa Island,
CA 92662, 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
C ity.
B. NBRA is a Business Improvement District of the City of Newport Beach 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. NBRA plans to sponsor two Restaurant Week events in
calendar year 2009.
C. NBRA and City desires to engage CMC, Inc. to provide ongoing planning, project
management, participant recruitment, marketing, public relations, event
coordination and sponsorship development services for the period of July 15t, 2008
through October 31st, 2009 in order to facilitate two Newport Beach Restaurant
Weeks; the first Restaurant Week to take place on January 18 -22, 2009 and the
second, Restaurant Week to take place in either late September or early October
2009. Together the two events constitute the 'Project'. The sixteen (16) month
period of the Agreement commences retroactively on July 1, 2008.
D. CMC, Inc. possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of CMC, Inc. for purposes of this Project, shall be Peggy
Fort.
F. NBRA has solicited and received a proposal from CMC, Inc., has reviewed the
previous experience and evaluated the expertise of CMC, Inc., and desires to
retain CMC, Inc. 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:
1. TERM
The term of this Agreement shall commence on 15` day of July 2008, and shall
terminate on the 31st day of October 2009, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
CMC, Inc shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The
NBRA and 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 Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by CMC, Inc. to perform the services in a diligent and timely manner
may result in termination of this Agreement by NBRA and City.
Notwithstanding the foregoing, CMC, Inc. shall not be responsible for delays due
to causes beyond CMC, Inc.'s reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 CMC, Inc. shall submit all requests for extensions of time for performance
in writing to the NBRA and 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 that are
beyond CMC Inc.'s control.
3.2 For all time periods not specifically set forth herein, CMC, Inc. shall respond
in the most expedient and appropriate manner under the
4. COMPENSATION TO CMC, INC.
The parties hereto expressly agree that the NBRA, and not the City, shall be
responsible under this Agreement for making all payments to CMC, Inc. as set
forth herein. The total compensation, as detailed below, for all services and work
performed in completing the Project including all subconsultant fees and
reimbursable items, shall not exceed One Hundred Thirty Seven Thousand
and Seventy Dollars and No Cents ($137,070.00) without prior written
authorization from City and NBRA.
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4.1. MARKETING & PUBLIC RELATIONS
From July 1, 2008 through the quarter ending September 30, 2009, NBRA
shall pay CIVIC, Inc. for all marketing and public relations services
including, but not limited to, ongoing consulting, execution and marketing
activities as outlined in Exhibit A, on a task basis in accordance with the
provisions of this Section. CIVIC, Inc.'s compensation for all marketing and
public relations work performed in accordance with this Agreement,
including all subconsultant fees, shall not exceed Ten Thousand Five
Hundred Dollars and No Cents per quarter ( "Quarterly Payment ") for a
total contract amount of Fifty Two Thousand Five Hundred Dollars and
No Cents ($52,500.00) without prior written authorization from City and
NBRA.
4.2 PROJECT MANAGEMENT
NBRA shall pay CIVIC, Inc. for overall project management and execution of
additional campaign coordination and administrative services as outlined in
Exhibit A, on an hourly basis at a rate of Thirty Dollars ($30.00) per hour in
accordance with the provisions of this Section. CIVIC, Inc.'s compensation
for overall project management and execution of additional campaign
coordination and administrative seniices work performed in accordance with
this Agreement, including all subconsultant fees, shall not exceed Fifty Two
Thousand Seven Hundred and Seventy Dollars and No Cents
($52,770.00) without prior written authorization from City and NBRA. No
billing rate changes shall be made during the term of this Agreement
without the prior written approval of both NBRA and City.
4.3 REIMBURSABLE ITEMS
NBRA shall reimburse CIVIC, Inc. up to Three Hundred Dollars and No
Cents ($300.00) per month, without prior written approval, for out of
pocket expenses incurred in the performance of work executed on behalf
of the City and NBRA. Such out of pocket expenses include, but, are not
limited to reimbursements of postage, photocopying, messenger, printing,
seminars etc. The City and NBRA shall not be liable to reimburse CIVIC,
Inc. for out -of- pocket expenses that exceed $300 per month without
advance written approval by the City and NBRA.
4.4 SPONSORSHIP DEVELOPMENT - INCENTIVE BONUS PLAN
CIVIC Inc. shall develop, solicit and secure event sponsorships. Subject to
the exclusions set forth below, CIVIC Inc. shall be paid a bonus as an
incentive for all cash sponsorships actually received by the City or NBRA
for the Project in advance of the event provided that the cash sponsorship
is directly attributable to CIVIC, Inc.'s efforts as follows:
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SPONSORSHIP DEVELOPMENT INCENTIVE BONUS PLAN
CMC INC. ACCUMULATIVE
REVENUE
GENERATED
$ 10,000 - $20,000
$1,000
Bonus Paid
$ 20,000 - $30,000
$1,500
Bonus Paid
$ 30,000 - $40,000
$2,000
Bonus Paid
$ 40,000 - $50,000
$2,500
Bonus Paid
$ 50,000 - $60,000
$3,000
Bonus Paid
$ 60,000 - $70,000
$3,500
Bonus Paid
$ 70,000 - $80,000
$4,000
Bonus Paid
$ 80,000 - $90,000
$4,500
Bonus Paid
$ 90,000 - $1,000,000
$5,000
Bonus Paid
The maximum bonus CMC, Inc. shall be entitled to receive under the
incentive bonus plan shall be Twenty Seven Thousand Dollars and No
Cents ($27,000.00). The Parties hereto expressly agree that the bonuses
called for hereunder shall be paid to CNC, Inc. from cash sponsorships
actually received by the City or NBRA. The Parties also expressly agree
that the following shall be expressly excluded and not considered to be
cash sponsorships for purposes of determining the bonus set forth herein:
A. Any funding or cash sponsorships from the City, the Newport
Beach Conference and Visitors Bureau and NBRA as well as
supplemental funding shall not be not included in bonus incentive
program.
B. Any In -Kind sponsor CMC Inc. secures and develops shall not be
included in the bonus incentive program.
4.5 CMC, Inc. shall submit monthly invoices to City and NBRA describing the
work performed the preceding month. CMC, Inc.'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. NBRA shall pay CMC, Inc. no later than thirty
(30) days after approval of the monthly invoice by NBRA.
4.6 CMC, Inc. shall not receive any compensation for Extra Work performed
without the prior written authorization of City and NBRA. As used herein,
"Extra Work" means any work that is determined by City and NBRA 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 at
a rate of Thirty Dollars ($30.00) per hour.
4.4 Notwithstanding any other provision of this Agreement, when payments
made by NBRA equal 90% of the maximum fee provided for in this
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Agreement, no further payments shall be made until after the conclusion
of the fall 2009 Restaurant Week envisioned under this Agreement.
5. CITY CONTRIBUTION TO NBRA
City shall transfer to NBRA One Hundred Thousand Dollars ($100,000.00) for
the production of two Restaurant Week events in calendar 2009. The NBRA and
City shall have up to thirty (30) days to review bills submitted by CIVIC, Inc. in
support of the Restaurant Weeks prior to the NBRA making payment to CIVIC,
Inc. for costs and expenses as set forth in this Agreement from those transferred
funds.
6. PROJECT MANAGER
CIVIC, Inc. shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to NBRA and City at all
reasonable times during the Agreement term. CIVIC, Inc. has designated Peggy
Fort to be its Project Manager. CIVIC, Inc. shall not assign any new or
replacement personnel to the Project without the prior written consent of NBRA
and City. NBRA's and City's approval shall not be unreasonably withheld with
respect to the removal or assignment of non -key personnel.
CIVIC, Inc., at the sole discretion of NBRA and City, shall remove from the Project
any of its personnel assigned to the performance of services upon written
request of NBRA and City. CIVIC, Inc. warrants that it will continuously furnish the
necessary personnel to complete the Project on a timely basis as contemplated
by this Agreement.
7. ADMINISTRATION
This Agreement will be administered by the NBRA with assistance from the City.
The NBRA Board shall be the principal contract administration body with
authority to act under this Agreement but shall not have authority to modify the
scope of work or increase the level of compensation without written City approval
by the City Project Administrator in accordance with city council policies. Leigh
M. De Santis shall be the City's Project Administrator and shall have the
authority to act for City under this Agreement ( "Project Administrator'). The
Project Administrator shall represent the City in all matters pertaining to the
services to be rendered pursuant to this Agreement.
8. STANDARD OF CARE
8.1 All of the services shall be performed by CIVIC, Inc. or under CIVIC, Inc.'s
supervision. CIVIC, Inc. 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
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employed by NBRA or City, nor have any contractual relationship with
NBRA or City. By delivery of completed work, CIVIC, Inc. certifies that the
work conforms to the requirements of this Agreement and all applicable
federal, state and local laws and the professional standard of care.
8.2 CIVIC, Inc. represents and warrants to NBRA and City that it has, shall
obtain, and shall keep in full force in effect during the term hereof, at its
sole cost and expense, all licenses, permits, qualifications, insurance and
approvals of whatsoever nature that is legally required of CIVIC, Inc. to
practice its profession. CIVIC, Inc. shall maintain a City of Newport Beach
business license during the term of this Agreement.
8.3 CIVIC, Inc. shall not be responsible for delay, nor shall CIVIC, Inc. be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of
NBRA or City to furnish timely information or to approve or disapprove
CIVIC, Inc.'s work promptly, or delay or faulty performance by NBRA or
City, contractors, or governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, CIVIC, Inc. shall indemnify, defend and
hold harmless the NBRA, City, the City Council, their 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 or CIVIC, Inc.'s presence or
activities conducted on the Project (including the negligent and /or willful acts,
errors and /or omissions of CIVIC, Inc., its principals, officers, agents, employees,
vendors, suppliers, CIVIC, Inc.'s 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 CIVIC,
Inc. 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 insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the CIVIC, Inc.
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10. INDEPENDENT CONTRACTOR
It is understood that City retains CIVIC, Inc. on an independent contractor basis
and CIVIC, Inc. is not an agent or employee of City. The manner and means of
conducting the work are under the control of CIVIC, Inc., 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 CIVIC, Inc. or any of CIVIC, Inc.'s employees or agents, to be the agents or
employees of City. CIVIC, Inc. shall have the responsibility for and control over
the means of performing the work, provided that CIVIC, Inc. is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct CIVIC, Inc. as to the details of the performance or to
exercise a measure of control over CIVIC, Inc. shall mean only that CIVIC, Inc.
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
CIVIC, Inc. agrees to work closely and cooperate fully with NBRA's and City's
designated Project Administrators and any other agencies that may have
jurisdiction or interest in the work to be performed. NBRA and City agree to
cooperate with the CIVIC, Inc. on the Project.
12. POLICY
CIVIC, Inc. shall discuss and review all matters relating to policy and Project
direction with the NBRA and Project Administrator in advance of all critical
decision points in order to ensure the Project proceeds in a manner consistent
with the City and NBRA goals and policies.
13. PROGRESS
CIVIC, Inc. is responsible for keeping the Project Administrators and /or their 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 CIVIC, Inc.'s indemnification of City, and prior to commencement
of work. CIVIC, Inc. 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. CIVIC, Inc. 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
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permit. Current certification of insurance shall be kept on file with City at
all times during the term of this Agreement.
B. Sj nature. 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. General Liability Coverage. CIVIC, Inc. shall 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.
ii. Automobile Liability Coverage. Peggy Fort shall maintain
automobile insurance covering bodily injury and property damage
for all activities of hers 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 one million dollars ($1,000,000) combined single limit for each
occurrence.
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
The NBRA, City, their 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 CIVIC, Inc.
ii. This policy shall be considered primary insurance as respects to
NBRA and City, their elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims, losses,
or liability arising directly or indirectly from the CIVIC, Inc.'s
operations or services provided to City and NBRA. Any insurance
maintained by City or NBRA, including any self- insured retention
City or NBRA may have, shall be considered excess insurance only
and not contributory with the insurance provided hereunder.
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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 and NBRA,
their 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 or NBRA, their 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. CMC, Inc. shall give NBRA and City prompt and
timely notice of claim made or suit instituted arising out of or resulting from
CMC, Inc.'s performance under this Agreement.
G. Additional Insurance. CMC, Inc. 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 NBRA and the 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
CMC, Inc., or of the interest of any general partner or joint venturer or syndicate
member or cotenant if CMC, Inc. is a partnership or joint- venture or syndicate or
cotenancy, which shall result in changing the control of CMC, Inc. 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.
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16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of CIVIC,
Inc. Assignments of any or all rights, duties or obligations of the CIVIC, Inc. under
this Agreement will be permitted only with the express written consent of NBRA
and City. CIVIC, Inc. shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of NBRA
and City.
17. OWNERSHIP OF DOCUMENTS
Each and every marketing plan, marketing document, sponsorship recruitment
documents, advertising materials and other writing produced (hereinafter
"Documents "), prepared or caused to be prepared by CIVIC, Inc., 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
CIVIC, Inc. or any other party. CIVIC, Inc. shall, at CIVIC, Inc.'s expense, provide
such Documents to City upon prior written request.
Documents, including marketing and advertising pieces, prepared by CIVIC, Inc.
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or NBRA on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from CIVIC, Inc. will be at City's sole risk and without liability to
CIVIC, Inc. Further, any and all liability arising out of changes made to CIVIC,
Inc.'s deliverables under this Agreement by City, NBRA or persons other than
CIVIC, Inc. is waived against CIVIC, Inc. and City and NBRA assumes full
responsibility for such changes unless City or NBRA has given CIVIC, Inc. prior
notice and has received from CIVIC, Inc. written consent for such changes.
18. INTELLECTUAL PROPERTY INDEMNITY
The CIVIC, Inc. shall defend and indemnify NBRA and City, their 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.
19. RECORDS
CIVIC, Inc. shall keep records and invoices in connection with the work to be
performed under this Agreement. CIVIC, Inc. 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 CIVIC, Inc. under this Agreement. All such records and
invoices shall be clearly identifiable. CIVIC, Inc. shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
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invoices during regular business hours. CIVIC, Inc. 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 CIVIC, Inc. under this
Agreement.
20. WITHHOLDINGS
City may withhold payment to CIVIC, Inc. 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.
CIVIC, Inc. shall not discontinue work as a result of such withholding. CIVIC, Inc
shall have an immediate right to appeal to the City Manager or his/her designee
with respect to such disputed sums. CIVIC, Inc. 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.
21. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of CIVIC, Inc. which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by CIVIC, Inc., the additional expenses shall be borne by CIVIC, Inc.
Nothing in this paragraph is intended to limit city or NBRA's rights under the law
or any other sections of this Agreement.
22. NBRA'S and /or CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
NBRA and /or City reserve the right to employ other consultants in connection
with the Project.
23. CONFLICTS OF INTEREST
CIVIC, Inc. 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, CIVIC, Inc. 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 NBRA and City. CIVIC, Inc. shall indemnify and
hold harmless NBRA and City for any and all claims for damages resulting from
CIVIC, Inc.'s violation of this Section.
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24. NOTICES
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 CIVIC,
Inc. or the NBRA to City shall be addressed to City at:
Attn: Leigh M. De Santis
Planning Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3207
Fax: 949 - 644 -33XX
All notices, demands, requests or approvals from NBRA or the City to CIVIC, Inc.
shall be addressed to CIVIC, Inc. at:
Attention: Peggy Fort
CIVIC, Inc
P.O. Box 5711
Balboa Island, CA 92662
Phone: 949 - 675 -0501
Fax:
All notices, demands, requests or approvals from CIVIC, Inc. or the City to NBRA
shall be addressed to NBRA at:
Attention: President
NBRA
P.O. Box 2295
Newport Beach, CA 92659
25. TERMINATION
In the event that any 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 five (5) calendar days, or if more than five (5) calendar days are
reasonably required to cure the default and the defaulting party fails to give
adequate assurance of due performance within five (5) 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
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the default, the non - defaulting party may terminate the Agreement forthwith by
giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, NBRA and City shall have the right, at
their sole discretion and without cause, of terminating this Agreement at any time
by giving thirty (30) calendar days prior written notice to CMC, Inc. In the event of
termination under this Section, City shall pay CMC, Inc for services satisfactorily
performed and costs incurred up to the effective date of termination for which
CMC, Inc. has not been previously paid. On the effective date of termination,
CMC, Inc. shall deliver to NBRA all reports, Documents and other information
developed or accumulated in the performance of this Agreement, whether in
draft or final form.
26. COMPLIANCE WITH ALL LAWS
CMC, Inc. 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 CMC, Inc. 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.
27. 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.
28. 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.
29. 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.
30. 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.
13 F
31. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by CMC, Inc., NBRA, and the City and approved as to form by the City
Attorney.
32. 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.
33. 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.
34. EQUAL OPPORTUNITY EMPLOYMENT
CMC, Inc. 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.
CMC, INC.: NBRA
(Corporate Officer)
Print Name: Print Name:
M
(Financial Officer)
Print Name:
14
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
City Attorney Mayor
for the City of Newport Beach for the City of Newport Beach
ATTEST:
LaVonne Harkless,
City Clerk
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
F:\ users\ cat\ shared\ ContractTemplatesPublishedonlntranet \FORM — Professional Service Agreement.doc
Rev: 05 -02 -07
15 411
1 1
Newport Desch Restaurant Weeks
(Attachment A - CMC Inc. Work Agreement)
July 1St, 2008 - October 3191, 2009)
CNIC Inc. comprehensive $wIlle of work
Marketing, Public Relations & Project Management
(Revised: October 2008)
Respectfully Submitted By:
California Marketing Concepts, Inc.
1,550 Bayside Drive Corona del Mar, CA 92625
(949) 675 -0501
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CALIFORNIA MARK iNG CONCEPTS INC. COMPREMENSWE_,$0EUF WORK
NIARKETWQ PUBLIC RELA7IONR & u"IROJECT IbtANA6ENU6NT
(Attachment A - CIVIC Inc. Work Agreement)
2009
Newport Beach Restaurant Weeks
cMc INC PRIMARY OBJECTMM
To produce two Restaurant Week Campaigns a year and join close to 100 of Newport
Beach's finest restaurants for awe - inspiring, 3- course prix -fixe menus prepared especially
for these citywide gourmet dining promotions,
The third annual campaign will take place January 18th - January 22nd 2009 with a second
fall Restaurant Week -End scheduled for October 5th-11th 2009.
• To increase restaurant business and sales revenues during The Restaurant Week
promotions and leverage a year long media campaign while providing new & exciting
benefits to NBRA members,
• To execute an aggressive and tangible marketing and public relations campaign to
promote Newport Beach as a dining destination, increase sales revenues, drive traffic to
NewportBeachDiningcom, create community awareness and support local charity.
• To develop valuable hospitality industry partners, corporate sponsors, and media
partnerships as a result of Restaurant Week.
• To develop community and retail partnerships as a result of Restaurant Week.
• To produce two successful campaigns In 20009 that everyone will benefit from -the
patrons, the restaurants, the partners and the City.
NBRW 1HPORTANY DATES
• Newport Beach Restaurant Week City Proclamation Presentation -TBA
• Winter Gala Launch Event - Wednesday, January 7th, 2009 @ Back Bay Bistro
• Official Press Conference: Newport Beach City Nall Lawn - TBA
• The Third Annual Newport Beach Restaurant Week Promotion Dates:
Sunday, January 18th - Thursday, January 220, 2009
• The Fail Newport Beach Restaurant Week -End Promotion Dates:
Monday, October 5th - Sunday, October 11th, 2009
NBRW PROJECT OWNS HIP
NBRA to own NBRW promotion and campaign materials including: logos, ads, artwork
event names, tag lines, etc.
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OFIF AL TARGET SPQMRS
• Newport Beach Restaurant Association & City of Newport Beach
• Corporate, Media, Community & Industry Sponsorship Campaign
• Community & Industry Partners: CRA, NSCVB, NB Chamber, & AOCCVB
0@111 INC NNW PROMECT TEAM
Peggy Fort, President and CEO
CMC Inc.
Duties & Responsibilities: Restaurant Week Director
Overall Project Management, Direct Restaurant Participation, Marketing, Public Relations &
Sponsorship Development
*Discounted Hourly Billing Rate: Approximately $60 (per retainer fee)
CMC Inc. Associate
Duties & Responsibilities: Project Coordinator
Marketing, Administration, Event & Volunteer Coordination
*CMC inc. Hourly Billing Rate: Approximately $30 per hour
• Collect and Analyze NBRW Post Event Surveys and Results
• Coordinate NBRW Sub - Committee Agendas
• Develop NB Restaurant Week Charity Component
• Develop NBRW Executive Working Sub- Committee Comprised of NB Restaurant Owners
• Develop NBRW Informational Meetings, Orientation & Post Party for Participants
Manage Dynamic Budget and Cash Flow in conjunction with NBRA Board of Directors
• Manage NBRW Dynamic Comprehensive Marketing Programs & Production Timeline
• Manage NBRW Sub - Contractors & Vendors
• Produce NBRW Gala Launch Event and Press Conference
• Promote Restaurant Week Experience Specific To Each NB Neighborhood
I.e.: Cannery Village, Mariner's Mile, Newport Center, Balboa Island, Corona del Mar...
• Secure & Direct Active Participation of (75 -100) Newport Beach Restaurants
21 CMC INMS"SORWR RM N isIL1T1ES -
• Collect and Analyze NBRW Statistics & Demographics
• Develop Internal Marketing& Sponsorship Package
• Secure industry & Corporate Cash Sponsors on behalf of NBRW
• Secure Minimal Buy -in Cost For NB Restaurants at $250 - $300 Each
• Secure Media In -Kind Sponsorship on behalf of NBRW
• Solicit Corporate & Industry Purveyors To Secure Strategic Partnerships
31QMC INC. OVERALL MARKETING RESPONSE Lf11ES -
• Execute & Leverage Aggressive Annual Marketing Campaign to Promote NBRW
• Execute & Leverage Aggressive Annual Public Relations Campaign to Promote NBRW
• Build Newport Beach Restaurant Week identity Consistent Brand
• Create Newport Beach Restaurant Week Marketing Collateral Consistent Brand
• Develop Internet Marketing Opportunities Including Online Reservation System Driving
More Consumers to: roywvv.N u� or'3e h ain .c
• Expand Media Advertising Campaign Through Partnership Marketing Opportunities
• Expand Marketing & Publicity Campaign in Local, Tourism and Hospitality Markets
P
t^"
CINC INC SPECIFIC MAltKI ING R£SPONSIN1LITI9S. -
CREATIVE COL0.ATE'12AL;�IDENTITY CAMPAIQA6 D PMEAIT'
• Develop Newport Beach Restaurant Week Identity Package Design
• Develop & Execute Ad Campaign Creative & Graphic Design
• Create Newport Beach Restaurant Week Postcard & Insert Production
• Create Newport Beach Restaurant Week Display Material & Posters
• Create Citywide Banners & Signage - *Potential Sponsorship opportunity
• Initiate Direct Mail Campaigns, Inserts & Postage
KRRA RESTAURANT WEEK WEE %9 QPMLOPMENT
• Develop Strategic Internet Cross Promotional Campaigns & Link Alliances
• Strategize Web site Refresh - New Design, Features i.e.: Online Reservations
• Official Launch of New Online Reservation Feature - NewportBeachDining.com
MEDIA ADV9MSINQ CAMPAIQH A WREC MAIL
• Manage Southern California Print Campaigns - OC Register & LA Times
• Manage Regional Print Campaigns in conjunction with NBRW Media Sponsors
• Manage American Express & Bureau Direct Mail Campaign
• Manage City Water Bill Insert Campaign
DIvUELQPNIEN7 OF IN KIND SPONSORSHIPS Br CONTRIBUTIONS
CMC INC TO SECURE OFFICUIL MEDIA PARR 9ft TARQET LIST
PRINT EDIA
M
• 944 Magazine
• Churm Publishing OC Metro, Metro Menus
• DiningOut Magazine
• Los Angeles Times Community News - Daily Pilot, HB Independent, LB Coastline Pilot
• OC Weekly Newspaper
• Orange Coast Magazine
BROADCAST MEDIA
• Develop Thirty Second Promo Spot - Newport Production Company
• KOCE -TV or KDOC TV Segments or Potential Sponsorship Opportunity
• NO TV News - City Scenes Segment
• PSA Spots - local Cable, Comcast Time Warner Cable TV
• 97:1 FM Talk Radio - "Feed Your Face"
• 973 Jill FM Radio
• KABC Talk Radio - Chef Talk
• PSA Radio Spots
DEWWP REMPROCALS .RA IC P EIiS
• NBRA In -Kind Contribution - Volunteer Support
• Restaurant In-Kind Contributions - launch Events, etc.
• Food Industry Purveyor In -Kind Contributions
• California Restaurant Association Support
• Newport Beach Conference & Visitors Bureau & Chamber of Commerce Support
4.) CNA.INC. PUSUOI[fY RELATIONS RI�PC?1�IUILfF1ES • Act as Official NBRW Spokesperson
• Coordinate and Invite Media To Newport Beach Restaurant Week Events
• Coordinate Interviews with Participating Restaurant Chefs & NBRA Board of Directors
• Develop Press Conference & Event Day Publicity Campaign
• Develop Newport Beach Restaurant Week Press Kit
4
ne
• Develop Pre & Post Event Publicity Campaign
• Develop Radio & Cable Packages
• Expand Editorial Coverage Through Ad Buys & Editorial Calendar Research
• Manage Relationship with Online Media Monitoring & Clipping Services
• On -Going NBRW Press Release Development & Media Pitching
• local Print Newspapers and Periodicals:
• i.e.: OC Register; Los Angeles Times Community News, Metro Menus, Coast Magazine,
Orange Coast Magazine, OC Weekly, etc.
• Consumer Tourism Publications;
i.e.: Sunset Magazine, Where Magazine, Dining Out, Dining & Destinations, Local
Concierge, etc.
• Meeting & Corporate Market Publications ..
i.e,: OC Metro, Meetings in the West, Convene, etc.
• Business Publications:
i.e.: OC Business Journal, Local Restaurant News
• Food & Wine Publications
• Restaurant & Hospitality Industry Publications
• Local Homeowner's Association Outreach & Newsletters
pR04 k� RES'e'A47R�4T � OFFlCP�. PitES4 E1fEiil'FS
• Coordinate Media To Attend Restaurant Week Press Conference *City Nall
• Coordinate Interviews with Restaurant Chefs, City Officials & NBRA Board of Directors
• Official City Proclamation Presentation - City Council Meeting
PRODUCE RESTAURANT WEEK GAI A LAUD Ali EVENT
• Confirm Media Attendance At Gala Launch
• Coordinate All Aspects Of Event
• Develop Strategy, Logistics and Negotiate Event Detail
• Manage and Work With Official Benefactor
• Restaurant Week Charity Launch Gala *Potential Revenue Generating source
DEVILOP COMMUNO RMAMM PLAN
• Coordinate meetings and Presentations To Promote NBRW in Community
• Recruit Community Volunteer Outreach Campaign
& C-MC INC. COORDINATION & ADMINiSTRA RESPONSIBII.lTIES
• Provide ongoing NBRW Coordination & Support to Project Manager
MISC. WORW RESTAURANT PAFMCIEMO101, COORRIIM"N
• Assist with Restaurant Solicitation and Correspondence
• Assist with Coordination of NBRW Participant Orientation Meetings
• Assist with Restaurant Servicing and Correspondence
• Follow Up Contact & Servicing with NBRW Participants Re: Sign Ups, Paperwork, Menu
Development, In -Store Display & Promotion, Deliveries, etc.
��RDINATION ASS! sTANGE & ADMiN1STl'tAT10N
• Assist with Coordination of NBRW Gala Event Coordination
• Assist with Coordination of NBRW Press Conference
• Attend NBRW Sub - Committee Meetings &Take Minutes
• Coordinate NBRW Official Mailings
• Misc. Coordination of NBRW Volunteers & Sponsors
• Assist with NBRW Database Updates & Management
MARKETING COORDINATION SERVICE & ASSISTA!119E
• Assist with Post Event Surveys, Data Collection & Result Compilation
• Assist with Sponsor Servicing and Correspondence
• Coordinate NBRA Online Reservation Feature in Conjunction with Vendor
• Coordinate Web Site Updates & Refresh for NBRW
• Misc. Coordination with NBRW Vendors
li