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HomeMy WebLinkAbout07 - Restaurant Week January 2011CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 July 6, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Leigh M. De Santis, Economic Development Administrator 949 - 644 -3207, Idesantis @newportbeachca.gov SUBJECT: Professional Services Agreement with California Marketing Concepts, Inc for Restaurant Week January 2011 RECOMMENDATION: Approve and authorize the Mayor and City Clerk to execute the attached Professional Service Agreement (PSA) for Restaurant Week 2011 with California Marketing Concepts, Inc. (CIVIC, Inc). DISCUSSION: Background: In March, the City Council transferred the October 2010 Restaurant Week funding to January 2011 and authorized staff to send out an RFP for a marketing agency or special events planning firm to produce Restaurant Week January 2011. The RFP was directly mailed to nine (9) qualified firms and posted on the City's website should any other interested party see it and wish to respond. The City received two responses to the RFP. A third firm submitted a week late and the Orange County Restaurant Association called approximately a month late requesting a meeting. The two qualifying proposals were reviewed by a committee of seven comprised of Sheri Drewry, Jim Walker, and John Robinson, of the Newport Beach Restaurant Association (NBRA) Board, and City staff members Sharon Wood, Tara Finnigan, Kathlyn Bowden and Matt Dingwall. Both firms were interviewed by the committee. Prices for the services sought by RFP ranged from $155,500 to $99,950. The unanimous committee selection was California Marketing Concepts, Inc., because the committee found that CMC, Inc provided a higher level of detail with regard to sponsorships, media exposure, and operational issues due to their four years of experience operating the event. CIVIC, Inc was also the low bid. In the past CIVIC, Inc. PSA with CMC, Inc. July 6, 2010 Page 2 has been successful in attracting an estimated $370,000 worth of in -kind advertising in a wide variety of print media. Terms of the Agreement This Agreement is for a period of approximately 9 months from July 6, 2010 through April 30, 2011. It is split into roughly 6 months preparation time and 3 months to close the books and prepare an evaluation report on the event. Restaurant Week will take place January 22 -28, 2011. The Agreement is for $99,950, this was the lowest bid. Event expenses and reimbursable such as printing, media, banners etc. account for $43,250 of this figure and CMC, Inc will be paid $56,700 for planning, sponsorship development, marketing, implementation, and the evaluation report. In addition CMC, Inc has the opportunity to earn an incentive bonus for obtaining cash sponsorship for the event. In -kind sponsorships do not count toward the bonus nor does any funding received from the City or Visit Newport Beach, Inc. The bonus is paid on a graduated scale related to paid sponsorships and capped at $27,000. In January 2010 CMC, Inc earned a bonus incentive of approximately $2,500. The Agreement is among three parties, the City, NBRA and CMC, Inc. It specifies that the City of Newport Beach's liability is limited to $50,000 as approved by the City Council in March 2010. The balance of the Agreement cost ($49,950) will be paid by the NBRA from cash buy -in fees charged to participating restaurants or cash sponsorships collected for the event. In addition the NBRA is responsible for any bonus incentive payments earned by CMC, Inc. Funding Availability: Funding in the amount of $50,000 in account # 0110 -8250 was previously approved by the City Council. The NBRA anticipates generating event revenues of approximately $55,000 to cover their portion of the Agreement. Prepared by: Lei"Santis, Economic Development Administrator Attachments: PSA with CMC, Inc Submitted by Sharon Z. Wood, Assistant City Ma er PROFESSIONAL SERVICES AGREEMENT WITH CALIFORNIA MARKETING CONCEPTS, INC. FOR RESTAURANT WEEK 2011 IN SUPPORT OF THE NEWPORT BEACH RESTAURANT ASSOCIATION BID THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into as of this day of , 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), CALIFORNIA MARKETING CONCEPTS, INC. a California Corporation whose address is 1550 Bayside Drive, Corona Del Mar, CA 92662 ( "Consultant "), and Sheri Drewry, President Newport Beach Restaurant Association, 203 Marine Ave., Balboa Island, Ca 92662 ( "NBRA ") 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 has established the Newport Beach Restaurant Association Business Improvement District pursuant to the Parking and Business Improvement Area Law of 1989 and is authorized to levy assessments within the district in order to fund marketing, advertising and public relations to benefit restaurant businesses located within the city. C. The NBRA is an association consisting of all of the food service businesses in the City of Newport Beach. D. NBRA hosts Restaurant Week 2011, which is designed to market Newport Beach as a premier dining destination in Orange County and increase dining in Newport Beach restaurants. E. In support of the NBRA's effort to brand Newport Beach as the premier dining destination in Orange County, the City is willing to provide up to Fifty Thousand Dollars ($50,000) to support Restaurant Week 2011. F. City and NBRA Board jointly desire to engage Consultant to plan, produce, manage, execute and provide an evaluation report on Restaurant Week 2011. . For the purposes of this Agreement Restaurant Week 2011 constitutes the ( "Project "). G. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. H. The principal member[s] of Consultant for purposes of the Project shall be Peggy Fort. 0 City and NBRA have solicited and received a proposal from Consultant, have reviewed the previous experience and evaluated the expertise of Consultant, and desire to retain Consultant 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 the above written date, and shall terminate on the 30th day of April, 2011 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks from 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 Consultant shall perform the Services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant'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 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6) 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 Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or U.S. mail. 4. COMPENSATION TO CONSULTANT Subject to the provisions of this Agreement, City and the NBRA shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the Professional Services Agreement Page 2 K provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Ninety -Nine Thousand Nine Hundred Fifty Dollars and no /100 ($99,950.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. In addition to the not -to- exceed contract amount, the Consultant may earn an incentive bonus related to the Consultant's success in securing cash sponsorships other than the City's, Visit Newport Beach, Inc or from NBRA supplemental funding. In -kind sponsorships are not included in the bonus incentive program. The incentive bonus plan is incremental and cumulative as follows: Paid Sponsorships Equal to or Greater Than Bonus Paid $10,000 $1,000 $20,000 $1,500 $30,000 $2,000 $40,000 $2,500 $50,000 $3,000 $60,000 $3,500 $70,000 $4,000 $80,000 $4,500 $90,000 $5,000 The maximum bonus the Consultant could earn if $90,000 or more in cash sponsorships were paid is $27,000. 4.1 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. Any bonuses to be paid are due and payable within sixty (60) days of the deposit and verification by City Staff of the sponsorship funds against which a commission is claimed. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Professional Services Agreement Page 3 f, Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing by City and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final Work under this Agreement. 4.5 Notwithstanding any provision to the contrary herein, the City's obligation under this Agreement shall not exceed Fifty Thousand Dollars ($50,000). . Any amounts due hereunder or expenses in excess of the City's contribution of up to $50,000 is the sole responsibility of the NBRA. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Peggy Fort to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered jointly by the Planning Department, Economic Development Division and the NBRA . Leigh M. De Santis, Economic Development Administrator, or his /her designee, shall be the Project Administrator and shall have the Professional Services Agreement Page 4 authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant 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. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the community professional standard of care. 8.2 Consultant represents and warrants to 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 Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant 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 City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees, and NBRA Board (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, Professional Services Agreement Page 5 I 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 Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). To the fullest extent permitted by law, the NBRA shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, 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 Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, 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 Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. Professional Services Agreement Page 6 r 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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. Professional Services Agreement Page 7 C. Coverage Requirements. i. Workers' Compensation Coverage. Consultant has no employees and therefore need not maintain Workers' Compensation Insurance. However if during the course of this contract CIVIC, Inc. acquires employees then it shall acquire and maintain Worker's Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's emproyees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant 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, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. D. Other Insurance Provisions or Requirements The policies are to contain, or be endorsed to contain, the following provisions: i. Waiver of Subroqation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against Professional Services Agreement Page 8 10 City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the Work outlined in the Scope of Services. The subconsultants authorized by City to perform Professional Services Agreement Page 9 Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, advertising copy, impression, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, 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 Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. 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. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, elected and appointed officials, officers, representatives, employees, and NBRA Board against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. Professional Services Agreement Page 10 21. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project 25. CONFLICTS OF INTEREST The Consultant 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, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Professional Services Agreement Page 11 Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. 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 Consultant to City shall be addressed to City at: Attn: Leigh M. De Santis Planning Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3207 Fax: 949 - 644 -3224 Attn: Sheri Drewry, President NBRA Wilma's Patio 203 Marine Ave Balboa Island, Ca 92662 Phone: 949 - 675 -5542 FAX: 949- 675 -7243 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Peggy Fort CIVIC, Inc P.O. Box 5711 Balboa Island, , CA 92625 Phone: 949 - 675 -0501 Fax: 949 - 675 -0508 27, CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement and its documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 28. 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 Professional Services Agreement Page 12 (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator. 30. 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. 31. 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. 32. 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. 33. 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 Professional Services Agreement Page 13 G authorship of the Agreement or any other rule of construction which might otherwise apply. 34. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 35. 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. 36. 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. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant 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. 38. NO ATTORNEY'S FEES In the event of a legal dispute under the terms of this Agreement the prevailing party shall not be entitled to attorney's fees. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OF�F+SE OF THE CITY ATTORNEY: B>7 -� Leonie Mulvihill Assistant City Attorney CITY OF NEWPORT BEACH, A Municipal Corporation in Keith D. Curry, Mayor Professional Services Agreement Page 14 ATTEST: in Leilani Brown, City Clerk Sheri Drewry, President Newport Beach Restaurant Association, By: ( Signature) Title: Print Name: CONSULTANT: California Marketing Concepts, Inc (CIVIC) 0 Peggy Fort, President & CEO Title: Print Na (Financial Officer's Signature) Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates A08 -00093 5.13.10 Professional Services Agreement Page 15 I� .. FIFTH ANNUAL NEWPORT BEACH RESTAURANT WEEK MONTH rTASKS TO BE DONE April 2010 *April 26, 2010 - Submit 2011 NBRW Proposal `May 10 -14, 2010 - NBRW RFP Interviews May 2010 'Approve Proposed NBRW Business Plan NBRA Hoard - • Begin Community & Industry Outreach Campaign • Initiate Media & Corporate Sponsorship Solicitation a Misc. Sponsor & Partner Servicing I 'June 3, 2010 - PSA Contract Negotiation Complete & Sign *June 22, 2010 - NBRW PSA on City Council Agenda June 2010 • Begin Community & Industry Outreach Campaign • Begin Updating NBRW Sponsorship Booklet o Initiate Media & Corporate Sponsorship Solicitation r Misc. Sponsor & Partner Servicing "July 1, 2010 - NBRW PSA Start Date ❑ Community & Industry Outreach Campaign July 2010 ❑ Begin Restaurant Event Coordination Effort ❑ Develop Charity & Gala Component ❑ Develop Corporate Sponsorship Package ❑ Develop Media Sponsorships ❑ Initiate Media& Corporate Sponsorship Solicitation ❑ Initiate Production of Marketing Collateral ❑ Media Press Release Announcement ❑ Community & Industry Outreach Campaign ❑ Corporate Sponsorship Solicitation August 2010 ❑ Local Media Press Release Announcements ❑ Marketing and Advertising Campaign Development ❑ Marketing Collateral Complete r Media Ad Campaign Development • NBRA Restaurant Sign UP For NBRW • PR Campaign Launched i Research Citywide Flag Promotion n Restaurant Event Coordination Effort ❑ Secure Media Sponsorships c Sign UP NBRA Restaurants For NBRW c Sponsorship Servicing & Development ❑ Web Site Development Complete NBRA Restaurant Sign UP For NBRWI 2010 a Marketing and Advertising Campaign Development — ❑ Marketing Collateral Development ❑ Marketing Collateral Distributed D Planning For Charity Gala Event I ❑ Sponsorship Servicing & Development D Web Site Development "September 3 - Early Bird Deadline for NBRW Sign Ups 'September 17 -19 - Chef's Cooking Pavilion NBRW Kick Off ❑ Initiate Planning For Charity Gala Event October 2010 u Marketing and Advertising Campaign Development ❑ Orientation Meeting For Participating Restaurants- TBA ❑ NBRW Planning Meeting For Participating Restaurants Fi On -Site Restaurant Promotion Kit Developed • Planning For Charity Gala Event • Sponsorship Servicing & Development ❑ Web Site Development 'October 1, 2010 - NBRW Sign Ups Complete December 2010 c Distribute NBRW Collateral Display To Restaurants -, Marketing & Advertising Media Campaign ❑ Marketing and Advertising Campaign Development November 2010 On -Site Restaurant Promotion • NBRW Orientation Meeting For Participating Restaurants • Plan Charity Event Gala – Thursday Night in February • OC Community Direct Mail Campaign • Planning For Charity Gala Event ❑ On -Site Restaurant Promotion u Planning For NBRW Press Conference • Plan Charity Event Gala – Thursday Night in February ❑ Public Relations Campaign • Planning For Charity Gala Event Web Site Development ❑ City Water Bill Insert Program – December • Public Relations Campaign ❑ NB Restaurant Week Banners • Sponsorship Servicing & Development u NB Restaurant Week Posters ❑ City Water Bill Insert Program - November December 10, 2010 - Deadline for 2011 NBRW Menus 'November 30, 2010 - NBRW Orientation & Wine Tasting Event December 2010 ❑ Hang Up NB Restaurant Week Posters e. Marketing & Advertising Media Campaign ❑ Marketing Collateral Distributed On -Site Restaurant Promotion • Plan Charity Event Gala – Thursday Night in February • Planning For Charity Gala Event u Planning For NBRW Press Conference ❑ Public Relations Campaign ❑ City Water Bill Insert Program – December ❑ NB Restaurant Week Banners u NB Restaurant Week Posters December 10, 2010 - Deadline for 2011 NBRW Menus December 27- January 27, 2011 - Nang Up Citywide Flags N _ -, Marketing & Advertising Media Campaign 2011 ❑ Marketing Collateral Distributed ❑ NB Restaurant Week Banners ❑ NB Restaurant Week Posters -: On -Site Restaurant Promotion Kit Developed ❑ Plan Charity Event Gala ❑ Public Relations Campaign *January 3, 2011 - NBRW Menus On Web Site *January 9, 2011 - Gala Launch Media Event & VIP Event *January 21 -27, 2011. - Fifth Annual Newport Beach Restaurant Week *February 9, 2011 - NBRW Industry Wrap Up Meeting 2011 ❑ Produce & Distribute Sales Tracker & Sales Result Forms ❑ Produce & Distribute NBRW Online Post Campaign Survey ❑ Compile NBRW Marketing & Media Statistics Results ❑ Compile NBRW Marketing & Media Examples ❑ Produce & Manage NBRW Post Campaign Recap Meeting ❑ Produce Post Campaign Stewardship Report *March 11, 2011 - Submit 2011 Post Evaluation Stewardship Report March 2011 *March 31, 2011 - NBRW PSA End Date .Z() i .. Fiscal Year. 2014 -2011 PROPOSED CAMPAIGN DATE: January 21 -29, 2011 ACTUAL PROJECT EXPENDIllURES CREATIVE COLLATERAL DEVELOPMENT & PRINTING g 2,000 Creative Campaign & Graphic Design ,000 Citywide Banners & Restaurant Promotional Signage $ $ 2 2,000 Citywide Flag Campaign Promotions Display Material, Posters & Invites Printing - Postcard & Insert Production $ 5,000 *Total of 300,000 Pieces Distributed Total: $ 15,000 MEDIA ADVERTISING CAMPAIGNS Out of Market Print & online Campaigns — Southern California Orange County Register & LA Times Food Section & Online Campaigns $ 5,000 Anaheim CVB Online Campaign & Inserts in Market Print & Online Campaigns —Local Daily Pilot Special Section Inserts - Back Page (4) Color Plus 30k Inserts $ 3, 500 City Water Bill Insert Fees $ 500 Balboa Beacon Inserts $ In -Kind Newport Beach Chamber $ In -Kind Corona dei Mar Chamber - Confirmed In -Kind Media Partners — Print & Online Los Angeles Times Community News Daily Pilot, HB Independent, LB Coastline Pilot (Value: $50k level) $ In -Kind Orange Coast Magazine (Value: $25k level) in -Kind $ In -Kind Coast Magazine (Value: $25k level) $ In -Kind Newport Beach Magazine (Value: $25k level) $ in -Kind 944 Magazine (Value: $10k level) $ in -Kind OC Weekly Magazine (Value: $25k level) $ In -Kind Live OC Magazine (Value: $25K Level) Churm Publishing OC Metro, Metro Menus (Value: $25k level) In -Kind $ In -Kind Riviera Magazine (Value: $25k level) NEWPORT BEACH RESTAURANT WEEIf FISCAL YEAR 2010 -2011 BUDGET MEDIA ADVERTISING CAMPAIGNS — CONT. Broadcast Television & Radio Campaigns 'Develop PSA Promo Spots KWAVE & KEARTH 101 Radio (Value: $25k level) JILL FM 92.7 Radio (Value: $25k level) 100.3 FM The Sound Radio (Value.- $25k level) Time Warner Cable TV Promotion (Value: TBA level) Cox Cable N Promotion (Value: TBA) NBTV News $ In -Kind $ In -Kind $ In -Kind $ In -Kind $ In -Kind $ In -Kind $ to -Kind Total $ 10.000 Southern California Direct Mail Campaign $[n-Kind Total In -Kind Value to NBRA: $30,000 Total: $hi -Kind CHARITY & MEDIA LAUNCH EVENTS Restaurant Week VIP Media Launch Reception $ 5,000 `Expected Revenue Generation: $2,500 'In -Kind Sponsorships: Venue, Sysco Food Services, Restaurants, Chef Works (Value: $20,000) Total: $ 5,000 AGENCY CONSULATATION FEES MANAGEMENT MARKETING & PUBLIC RELATIONS Annual Project Management, Marketing & Public Relations Services $ 31,500 Event Coordination, Administration & Billing $ 25,200 Total: $ 56,700 SPONSORSHIP DEVELOPMENT —& SERVICING Internal Marketing & Sponsorship Package Production Development & Commissions $ 10,000 `Contingent Based on Incentive Bonus Plan on Cash Revenue Total: $ 10,000 MISC. ADMINISTRATION & ACCOUNTING FEES Accounting & Payroll Services $ 1,000 Photography & Video $ 750 Postage & Supplies $ 1,500 Total: $ 3,750 OTAL PROPOSED EXPENDITURES $99,950 �� i