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HomeMy WebLinkAboutC-3877 - PSA for Two Resturant Week Campaigns in Calendar Year 2009 - Resturant Week0 0 PROFESSIONAL SERVICES AGREEMENT WITH NEWPORT BEACH RESTAURANT ASSOCIATION BIDAND 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 9 &Z;7 � 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 City. 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 1st, 2008 through October 315t, 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. 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. 0 E NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on 1" 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. 2 0 0 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 services 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: 3 0 0 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 12 • 0 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 CMC, Inc. in support of the Restaurant Weeks prior to the NBRA making payment to CMC, Inc. for costs and expenses as set forth in this Agreement from those transferred funds. 6. PROJECT MANAGER CMC, 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. CMC, Inc. has designated Peggy Fort to be its Project Manager. CMC, 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. CMC, 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. CMC, 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 CMC, Inc. or under CMC, Inc.'s supervision. CMC, 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 5 • M 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, CMC, 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. 91 i 0 10. INDEPENDENT CONTRACTOR It is understood that City retains CMC, Inc. on an independent contractor basis and CMC, Inc. is not an agent or employee of City. The manner and means of conducting the work are under the control of CMC, 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 CMC, Inc. or any of CMC, Inc.'s employees or agents, to be the agents or employees of City. CMC, Inc. shall have the responsibility for and control over the means of performing the work, provided that CMC, Inc. is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct CMC, Inc. as to the details of the performance or to exercise a measure of control over CMC, Inc. shall mean only that CMC, Inc. shall follow the desires of City with respect to the results of the services. 11. COOPERATION CMC, 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 CMC, Inc. on the Project. 12. POLICY CMC, 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 CMC, 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 CMC, Inc.'s indemnification of City, and prior to commencement of work. CMC, 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. CMC, 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 7 0 0 permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Siunature. 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. 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 speck language: i. 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. Ll • • 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. CIVIC, Inc. shall give NBRA and City prompt and timely notice of claim made or suit instituted arising out of or resulting from CIVIC, Inc.'s performance under this Agreement. G. Additional Insurance. CIVIC, 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 CIVIC, Inc., or of the interest of any general partner or joint venturer or syndicate member or cotenant if CIVIC, Inc. is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of CIVIC, 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. u • 16. SUBCONTRACTING E The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of CMC, Inc. Assignments of any or all rights, duties or obligations of the CMC, Inc. under this Agreement will be permitted only with the express written consent of NBRA and City. CMC, 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 CMC, 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 CMC, Inc. or any other party. CMC, Inc. shall, at CMC, Inc.'s expense, provide such Documents to City upon prior written request. Documents, including marketing and advertising pieces, prepared by CMC, 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 CMC, Inc. will be at City's sole risk and without liability to CMC, Inc. Further, any and all liability arising out of changes made to CMC, Inc.'s deliverables under this Agreement by City, NBRA or persons other than CMC, Inc. is waived against CMC, Inc. and City and NBRA assumes full responsibility for such changes unless City or NBRA has given CMC, Inc. prior notice and has received from CMC, Inc. written consent for such changes. 18. INTELLECTUAL PROPERTY INDEMNITY The CMC, 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 CMC, Inc. shall keep records and invoices in connection with the work to be performed under this Agreement. CMC, 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 CMC, Inc. under this Agreement. All such records and invoices shall be clearly identifiable. CMC, Inc. shall allow a representative of City to examine, audit and make transcripts or copies of such records and 10 0 0 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. 11 • 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 CMC, 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 12 • • 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 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.: By. I (Cor O' Title: �1t� Print Namel? By: NBRA By: cer)y i (/0 Title: �►�e51i (Fir 46,(i4l Officer) t�1 Print Name: OF dl-1�1121 J , cllk—� Title: Print Name: 0 APPROVED AS TO FORM: Z4 o--`_ City Attorney for the City of Newport Beach ATTEST. - CITY OF NEWP RT BEACH, A Municipal or ora n �y Mayor for the City of Newport Beach B LaVonne Harkless, 0%F City Clerk i Y Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates F:\users\cat\shared\ContractTem plates PubIishedonIntranet\FORM — Professional Service Agreement.doc Rev: 05-02-07 15 r NEWPORT RESTAURANT JAi41U,AHY 118-22s2009 I t ' Newport Beach Restaurant Weeks (Attachment A - CIVIC Inc. Mork Agreement) July 1st, 2008 - October 3111, 2009) CMC Inc. Comprehensive Scope of Work Marketing, Public Relations & Project Management (Revised: October 2008) M� Respectfully Submitted By. California Marketing Concepts, Inc. 1550 Bayside Drive Corona del Mar, CA 92625 (949) 675-0501 www.askcrnc.corn • • 3"J RT LV'N�:.vG JANUARY ia-22; ?669 (Attachment A - CIVIC Inc. Work Agreement) 2009 Newport Beach Restaurant Weeks CMC INC. PRIMARY OBJECTIVES • 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 UP - January 22nd 2009 with a second fail 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 sates revenues, drive traffic to NewportBeachDining.00m, create community awareness and support local charity. • To develop valuable hospitality industry partners, corporate sporisor% 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 2049 that everyone will benefit from -the patrons, the restaurants, the partners and the City. NORW MPORTANT DATES • Newport Beach Restaurant Week City Proclamation Presentation - TBA • Winter Gala Launch Event - Wednesday, January ith, 2009 O Back Bay Bistro • Official Press Conference: Newport Beach City Hall Lawn - TBA • The Third Annual Newport Beach Restaurant Week Promotion Dates: Sunday, January 191% - Thursday, January 22"d,2009 • The Fall Newport Beach Restaurant Week -End Promotion Dates: Monday, October 51h - Sunday, October 11th, 2009 NSRW PROJECT OWNERSHIP • NBRA to own NBRW promotion and campaign materials including: logos, ads, artwork event names, tag lines, etc. 2 P 9 Off, UMET SPONSORS • Newport Beach Restaurant Association & City of Newport Beach • Corporate, Media, Community & Industry Sponsorship Campaign • Community & Industry Partners: CRA, NBCVB, NB Chamber, & AOCCVB CM IM MORI Y PROJECT TEAM Peggy Fort, President and CEO CMC Inc. Duties & Responsibilitlas: Restaurant Week Director Overall Project Management, Direct Restaurant Participation, Marketing, Public Relations & Sponsorship Development per ner CMC Inc. Associate Duties & Responsibilities; Project Coordinator Marketing, Administration, Event & Volunteer Coordination *CMC Inc. Hourly, fmung Ratemopwwimiifely $30 per hour ES 2..11 PMC INC. PROJECT MANAGEMENT RESPONIBUTIES - • Collect and Analyze NBRW Post Event Surveys and Results • Coordinate NBRW Sub - Committee Agendas • Develop NS Restaurant Week Charity Component • Develop NBRW Executive Working Sub - Committee Comprised of NB Restaurant Owners • Develop NBRW Informational Meetings, Orientation & Post Parry 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 Speck To Each NB Neighborhood Le.: Cannery Village, Mariners Mile, Newport Center, Balboa Island, Corona del Mar... • Secure & Direct Active Participation of (75 -100) Newport Beach Restaurants 2.1 CIAC 1111. SPONSORSHIP IMPO/jEN,SIUMS - • Coiled 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 3.) CMC INC. OVERALL MARKETING RESPONSIRi1, IS • 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; www•il w rt ,da n� Oining.cam • Expand Media Advertising Campaign Through Partnership Marketing Opportunities • Expand Marketing & Publicity Campaign in Local, Tourism and Hospitality Markets 3 0 • CMC INC. SPECIFIC MARKETING RESIMMOILMES - CREATWE COUJITMtAL & IIDEWM CAMPAIGN DEV ROPMENT • 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 • 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 ADVERTMING CAMPAIGN $ DIRECT 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 DEVEILANUENT OF i.._ i. ! SPONSIM11111PS A C0fff1118U110 PRINT �r 944 Magazine • Publishing OC Metro, Metro Menus • DiningOut • Los Angeles Times Community News - Daily Pliot, HB Independent, LB Coastline Pilot • OC Weekly Newspaper E Coast Magazine. BROADCAST MEDIA • Develop Thirty Second Promo Spot - Newport Production Company • KOCE -TV or KDOC TV Segments or Potential Sponsorship Opportunity • NB TV News - City Scenes Segment • PSA Spots - Local Cable, Comoast Time Warner Cable TV • 97.1 FM Talk Radio - "Feed Your Face" • 97.3 Jill FM Radio KABC Talk Radio - Chef Talk • PSA Radio Spots • 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 4,1 ON INC.♦ PUBLICITY RELATKNrlSi RE rP0[MIJUTIES - • 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 • • • 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 i� ?.�.'�L �t:,�.ii 3, �.:i.J /.. � �! • � .lit � It 3f> 1. • Local Print Newspapers and Periodicals: • Le.: OC Register, Los Angeles limes 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 - Le.: 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 PRODUCE RNMURAM WEEK. OMCCIAL PRESS EVENiS • Coordinate Media To Attend Restaurant Week Press Conference 0 City Hail • Coordinate Interviews with ResWuram Chefs, City Officials & NBRA Board of Directors • Official City Proclamation Presentation - City Council Meeting PRODUCE RESTAURANT WEEK GALA LAUNCH 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 *Potentfat Revenue Generating Source REVLOP COMMUNTTT RBATIOM PI AN • Coordinate meetings and Presentations To Promote NBRW in Community • Recruit Community Volunteer Outreach Campaign ' r •' r •r •• r • rrr r r - - MEA NOW RESTAURANT PARTICIPATION COORDINATION • 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. EVENT�RDINATIION ASSISTANCE $ ADMINISTRATION • 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 • 11 MARKEnNQ COORDINATION SERVICE & ASSISTANCE • 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 0 OCT 14 2098 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 11 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, ldesantis@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: 4�kk�. k za, VV beigWM. De Santis, Sharon Z. Woo' Economic Development Administrator Assistant City Manager Attachments: Work Agreement • • PROFESSIONAL SERVICES AGREEMENT WITH NEWPORT BEACH RESTAURANT ASSOCIATION BIDAND 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 City. 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 316t, 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. 3 E • NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on 1s` day of July 2008, and shall terminate on the 31'� 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. 2 0 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 services 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: 3 • • 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 speck 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 ■ • 0 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 CMC, Inc. in support of the Restaurant Weeks prior to the NBRA making payment to CMC, Inc. for costs and expenses as set forth in this Agreement from those transferred funds. 6. PROJECT MANAGER CMC, 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. CMC, Inc. has designated Peggy Fort to be its Project Manager. CMC, 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. CMC, 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. CMC, 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 CMC, Inc. or under CMC, Ihc.'s supervision. CMC, 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 5 6 • • 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. h l� 0 • 10. INDEPENDENT CONTRACTOR It is understood that City retains CMC, Inc. on an independent contractor basis and CMC, Inc. is not an agent or employee of City. The manner and means of conducting the work are under the control of CMC, 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 CMC, Inc. or any of CMC, Inc.'s. employees or agents, to be the agents or employees of City. CMC, Inc. shall have the responsibility for and control over the means of performing the work, provided that CMC, Inc. is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct CMC, Inc. as to the details of the performance or to exercise a measure of control over CMC, Inc. shall mean only that CMC, Inc. shall follow the desires of City with respect to the results of the services. 11. COOPERATION CMC, 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 CMC, Inc. on the Project. 12. POLICY CMC, 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 CMC, 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 CMC, Inc.'s indemnification of City, and prior to commencement of work. CMC, 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. CMC, 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 7 • 0 permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 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. 8 ID 0 • 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. CIVIC, Inc. shall give NBRA and City prompt and timely notice of claim made or suit instituted arising out of or resulting from CIVIC, Inc.'s performance under this Agreement. G. Additional Insurance. CIVIC, 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 CIVIC, Inc., or of the interest of any general partner or joint venturer or syndicate member or cotenant if CIVIC, Inc. is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of CIVIC, 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. (J 0 16. SUBCONTRACTING 0 The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of CMC, Inc. Assignments of any or all rights, duties or obligations of the CMC, Inc. under this Agreement will be permitted only with the express written consent of NBRA and City. CMC, 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 CMC, 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 CMC, Inc. or any other party. CMC, Inc. shall, at CMC, Inc.'s expense, provide such Documents to City upon prior written request. Documents, including marketing and advertising pieces, prepared by CMC, 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 CMC, Inc. will be at City's sole risk and without liability to CMC, Inc. Further, any and all liability arising out of changes made to CMC, Inc.'s deliverables under this Agreement by City, NBRA or persons other than CMC, Inc. is waived against CMC, Inc. and City and NBRA assumes full responsibility for such changes unless City or NBRA has given CMC, Inc. prior notice and has received from CMC, Inc. written consent for such changes. 18. INTELLECTUAL PROPERTY INDEMNITY The CMC, 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 CMC, Inc. shall keep records and invoices in connection with the work to be performed under this Agreement. CMC, 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 CMC, Inc. under this Agreement. All such records and invoices shall be clearly identifiable. CMC, Inc. shall allow a representative of City to examine, audit and make transcripts or copies of such records and 10 l,} • • 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. 11 ,'b 0 • 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 CMC, 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 12 14 • • 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 ' ti� 0 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 By: By: (Corporate Officer) Title: Print Name: Print in (Financial Officer) Print 14 1� • 0 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: 0 LaVonne Harkless, City Clerk Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates F:kusersl cat\ sharedlContractTemplatesPublishedonintranet \FORM — Professional Service Agreement.doc Rev: 05 -02 -07 15 `1 JANUARY 18-2292009 • Newport Reach Restaurant Weeks (AttachmentA - CIVIC Inc. Work Agreement) July 1st, 2008 - October 315t, 2009) CIMIC Inc. comprehensive Scope of Work MOrketing, Public Relations & Project Management (Revised: October 2008) Respectfully Submitted By. California Marketing Concepts, Inc. 1550 Bayside Drive Corona del Mar, CA 92625 (949) 6754Mi www,askcmc.com 4 • • JANUARY �- :- •••.�i�Tt.� f 1 t /1i.:. � � _ _.t...�_ i/11 � ... 4 1 � . 1 1 (Attachment A- CIVIC Inc. Work Agreement) 2009 Newport Beach Restaurant Weeks CMC INC. PRIMARY OBJECTIVES • 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 18+" - January 22nd 2009 with a second fall Restaurant Week-End scheduled for October 5M -1191 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 NewportBeachDlningoom, 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 MPORTANT DATES • Newport Beach Restaurant Week City Proclamation Presentation -TBA • Winter Gala launch Event - Wednesday, January 7th, 2009 D Back Bay Bistro • Official Press Conference: Newport Beach City Hall Lawn - TBA • The Third Annual Newport Beach Restaurant Week Promotion Dates: Sunday, January 18m - Thursday, January 22nd, 2009 • The Fall Newport Beach Restaurant Week-End Promotion Dates: Monday, October 5th - Sunday, October 12th, 2009 IyBRW PROJECT OWNERSHIP • NBRA to own NBRW promotion and campaign materials including: logos, ads, artwork event names, tag lines, etc. 2 rid 0 OFF" TAROET SPONSORS • Newport Beach Restaurant Association & City of Newport Beach • Corporate, Media, Community & Industry Sponsorship Campaign • Community & Industry Partners: CRA, NBCVB, NB Chamber, & AOCCVB CMC INC. NBRW PROJECt" TEAM Peggy Fort, President and CEO CMC Inc. Duties & Responsibiiities: Restaurant Week Director Overall Project Management, Direct Restaurant Participation, Marketing, Public Relations & Sponsorship Development *Discounted Hourly Billing Rate: Approximately $80 (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 Timellne • 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 (75 400) Newport Beach Restaurants • 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 3.) 9W INC, OVEMU MARKEnNB RESPONSIBILITIES - • 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: wwAy.NewDort@qachDinJn9.com • Expand Media Advertising Campaign Through Partnership Marketing Opportunities • Expand Marketing & Publicity Campaign in Local, Tourism and hospitality Markets r 0 CAMC INC. SPECIFIC MARKEnNta RESM0I81UTIES - CREATM C011A' AJ A 100MIY CAMPAIGN DEVELOPM • 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 NBRA RESTAiWMIff WEEK WEB SPTE DEVELOPMENT • 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 MEDIAADdfRfISINOCAMPA11" &DIRF=NW • 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 • 944 Magazine • Churm Publishing OC Metro, Metro Menus • Dining0ut Magazine • Los Angeles Times Community News - Daily Pilct, HB Independent, LB Coastline Pilot • OC Weekly Newspaper • Orange Coast Magazine RROADeAn • Develop Thirty Second Promo Spot - Newport Production Company • KOCE 1V or KDOC TV Segments or Potential Sponsorship Opportunity • NB TV News - Clty 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 • 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 $.I CMC INC. PUBd CITY RELATU MS RESPON$I UMIES • 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 0 0 • 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: • Le.: 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 • Coordinate Media To Attend Restaurant Week Press Conference O City Hail • Coordinate Interviews with Restaurant Chefs, City Officials & NBRA Board of Directors • Official City Proclamation Presentation - City Council Meeting PRODUCE RESTAURANT WEEK MLA L IKW EYFM • 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 ar"P AVIMM iYY RALAB • Coordinate meetings and Presentations To Promote NBRW In Community • Recruit Community Volunteer Outreach Campaign _gall. i h!. MOC 18111IN RESTAURANT PARDWATHM COQRDINATR)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. EVENT COORDINATION ASSISTANCE ,& ADMINISTRATINI • Assist with Coordination of N13RW 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 n ,�0 • MARKETING COORDINATION SERVICE & ASSISTANCE • 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 rl GRANT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEWPORT BEACH RESTAURANT ASSOCIATION This Agreement, entered into this A day of nth �t r , 2007 by and between the CITY OF NEWPORT BEACH, a California municipal corporation ( "City "), and the Newport Beach Restaurant Association, a California corporation (GRANTEE), is made with reference to the following: RECITALS WHEREAS, the City is a municipal corporation and charter city committed to preserving the health, welfare and safety of its citizens. WHEREAS, GRANTEE is a California non - profit public corporation exempt from federal taxation pursuant to section 501(c)(3) of the Internal Revenue Code; and, WHEREAS, GRANTEE has requested a grant from the City to assist in marketing and operational expenses related to the development of the Second Annual Newport Beach Restaurant Week which will take place Sunday, January 20, 2008, through Thursday, January 24, 2008, and will offer a city -wide dining campaign offering special three - course prix fixe meals at participating Newport Beach restaurants. WHEREAS, the City has approved a grant in the amount of Fifty Thousand Dollars and No Cents ($50,000.00) (GRANT OR GRANT FUNDS) to GRANTEE with the understanding and GRANTEE'S agreement that the GRANT FUNDS will: (a) be expended solely for the purpose of activities related to the marketing and operation of the Second Annual Newport Beach Restaurant 1 Week (APPROVED USE); and (b) be expended during the fiscal year July 1, 2007 through June 30, 2008 (SPENDING PERIOD). WHEREAS, the City Council has determined that the GRANT is in the public interest and for the benefit of the citizens of Newport Beach because the use of GRANT FUNDS for the APPROVED USE will help provide information regarding current events and other matters of interest to the citizens of the City of Newport Beach. NOW, THEREFORE, the Parties agree as follows: 1. GRANT CITY agrees to pay to GRANTEE the GRANT amount of Fifty Thousand Dollars and No Cents ($50,000.00) in one installment payment within thirty (30) days of the execution of this Agreement. The GRANT shall be used solely by GRANTEE for the APPROVED USE and for no other use and shall be fully expended for the APPROVED USE with the SPENDING PERIOD. The balance of unused GRANT FUNDS shall be returned to the City within sixty (60) days after expiration of this Agreement. The City may approve an extension to the SPENDING PERIOD if GRANTEE requests in writing and provides program budget detail, which may include establishment of a reasonable reserve. 2. TERM The term of this Agreement shall commence on the date first written above (the EFFECTIVE DATE) and shall continue in full force and effect until terminated by the City or until June 30, 2008, whichever occurs first. 3. RESTRICTIONS ON USE OF FUNDS (a) GRANTEE warrants to City that the GRANT FUNDS will be spent solely for the APPROVED USE; and (b) The GRANT shall be used by GRANTEE for the APPROVED USE during the SPENDING PERIOD or the money shall be returned to City, as described in Section 5 below. 2 4. REPORTING AND ACCOUNTING REQUIRMENTS (a) At all times during the term if this Agreement, GRANTEE shall maintain true, proper, and complete books, records, and accounts (collectively called "Books and Records ") in which shall be entered fully and accurately all transactions taken with respect to the operation of GRANTEE and the expenditure of the GRANT FUNDS. GRANTEE shall maintain the books and records in accordance with Generally Accepted Accounting Principles, and allow the City to conduct an audit of the financial records upon reasonable notice at any times within four (4) years after expiration or termination of this Agreement. (b) GRANTEE shall, on a quarterly basis during the term of this Agreement, furnish the City with a Statement of Activities describing the receipt and disbursement activities of GRANTEE. With this report, GRANTEE shall include quarterly check registers and descriptions of each disbursement, as well as budget -to- actual- results. GRANTEE shall also provide, on a quarterly basis, a Statement of Position describing the assets and liabilities of GRANTEE. All quarterly reports shall be due to the City no later than forty -five (45) days following the end of the reporting quarter. In the event that an independent audit is conducted, GRANTEE shall forward a copy of the audited report to the City for review, including any Management Letter, Report on Internal Controls, or Reportable Conditions letter generated during the course of the audit. (c) GRANTEE agrees to exercise prudent financial management processes including proper oversight of all assets, budget preparation, and timely reporting including budget -to- actual- comparisons. (d) All Activities shall be performed by GRANTEE or under GRANTEE'S supervision. GRANTEE represents that it possesses the professional and technical skills required to perform the services required by this Agreement, and that it will perform all services with a standard of care and in a manner commensurate with the community professional standards. 3 I ` • • 5. USE OF THE MONEY The GRANT FUNDS shall be used solely by GRANTEE for the APPROVED USE and for no other use. In the event that the GRANT FUNDS are not used for the APPROVED USE by or before June 30, 2008, GRANTEE shall notify the City in writing, and shall be obligated to return the funds within sixty (60) days. 6. INDEMNIFICATION GRANTEE shall hold harmless, defend and indemnify the City, and its elected and appointed officers, boards, officers, employees, agents, and volunteers (INDEMNIFIED PARTIES) from any claim, loss, litigation, or liability arising out of or in any way related to this Agreement regardless of the cause, except for any liability arising from the sole negligence, fraud or willful misconduct of the INDEMNIFIED PARTIES. 7. GRANTEEINDEPENDENCE In the performance of this Agreement, the GRANTEE, and the agents and employees of GRANTEE, shall act in an independent capacity and not as officers or employees or agents of the City. 8. PROHIBITION AGAINST TRANSFERS GRANTEE shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 9. NOTICES All notices, demands, requests or approvals to be given under 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. 0 10 11 0 • All notices, demands, requests or approvals from GRANTEE to City shall be addressed to the City at: City Manager City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92658 -8915 (949) 644 -3000 All notices, demands, requests or approvals from City to GRANTEE shall be Newport Beach Restaurant Assn. c/o Scott Palmer, BID Administrator 2816 E. Coast Highway, Suite A Corona del Mar, CA 92625 (949) 929 -7995 (949) 721 -6821 fax TERMINATION Newport Beach Restaurant Assn. c/o California Marketing Concepts Attn: Peggy Fort, President & CEO 1550 Bayside Dr. Corona del Mar, CA 92665 (949) 675 -0501 (949) 675 -0508 fax (a) Termination for Cause. GRANTEE shall be in default if GRANTEE fails or refuses to perform any duty required by the Agreement or performs in a manner inconsistent with the terms, conditions and restrictions in this Agreement. In such event, City shall give GRANTEE, thirty (30) days written notice to cure, if the default can be cured and City shall be entitled to terminate this Agreement if GRANTEE has not cured the default within the thirty (30) day cure period. City shall be entitled to immediately terminate this Agreement if the default cannot be cured through corrective action. This Agreement is made on an annual basis, and as such is subject to non - renewal at its termination. (b) Specific Performance. GRANTEE agrees that the City has the legal right, and all necessary conditions have been satisfied, to specifically enforce GRANTEE'S obligations pursuant to this Agreement. 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. 12. 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. 13. 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. 14. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both GRANTEE and the City and approved as to form by the City Attorney. 15. 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. 16. 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. 17. EQUAL OPPORTUNITY EMPLOYMENT GRANTEE 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. 18. COMPLIANCE WITH ALL LAWS GRANTEE 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 WITNESS WHEREOF, the City and GRANTEE have executed this Agreement as of the date first above written. APP OVED AS TO FORM: rte, ff Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: By V� LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH: JAicipal q oration 0. Steven Rosans y, May for the City of Newport a ch NEWPORT BEACH RESTAURANT ASSOCI TION: By: (Corporate Officer) Title'-(L�L,Azlyyt Print Name: ScEzi L P2`� Title: Print Name: 7 GRANT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THE NEWPORT BEACH RESTAURANT ASSOCIATION This Agreement, entered into this day of July, 2006 by and between the CITY OF NEWPORT BEACH, a California municipal corporation ( "City "), and the Newport Beach Restaurant Association, a Business Improvement District (Grantee), is made with reference to the following: RECITALS WHEREAS, the City is a municipal corporation and charter city committed to preserving the health, welfare and safety of its citizens. WHEREAS, the Newport Beach Restaurant Association has requested a Grant from the City to assist in marketing and operational expenses related to the development of the First Annual Newport Beach Restaurant Week which will take place Sunday, January 21, 2007, through Thursday, January 25, 2007, and will offer an inaugural city -wide dining campaign offering special three- course prix fixe meals at participating Newport Beach restaurants. WHEREAS, the City desires to give the Newport Beach Restaurant Association a grant in the amount of Fifty Thousand Dollars $50,000.00) hereinafter referred to as the "Grant." WHEREAS, the City has approved this Grant to the Newport Beach Restaurant Association with the understanding and the Newport Beach Restaurant Association's agreement that the Grant funds will: (a) be expended solely for the purpose of marketing and operational expenses related to the First Annual Restaurant Week, and (b) be expended during the fiscal year July 1, 2006 through 1 0 June 30, 2007 (SPENDING PERIOD). (The Newport Beach Restaurant Association expenditure conditions in (a) and (b) are collectively defined as the "Approved Use "). NOW, THEREFORE, the Parties agree as follows: 1. GRANT CITY agrees to Grant to the Newport Beach Restaurant Association the sum of Fifty Thousand Dollars ($50,000). The grant funds shall be paid as follows: one installment of fifty thousand dollars ($50,000) shall be paid within thirty days of receipt of the Operating Budget for the 2006 -2007 SPENDING PERIOD. The Grant Funds shall be used solely by the Newport Beach Restaurant Association for the Approved Use and for no other use. The balance of unused Grant Funds shall be returned to the City on written demand served within sixty (60) days after expiration of this Agreement. The City may approve an extension to the SPENDING PERIOD if the Newport Beach Restaurant Association requests in writing and provides program budget detail, which may include establishment of a reasonable reserve. 2. TERM The term of this Agreement shall commence on July 1, 2006 (the Effective Date) and shall continue in full force and effect until terminated by the City or until June 30, 2007, whichever occurs first. 3. RESTRICTIONS ON USE OF FUNDS (a) The Newport Beach Restaurant Association warrants to City that the Grant Funds will be spent solely for the Approved Use; and (b) The Grant shall be used by the Newport Beach Restaurant Association for the Approved Use by June 30, 2007, or the money shall be returned to City, as described in Section 5 below. 4. REPORTING AND ACCOUNTING REQUIRMENTS 2 0 0 (a) At all times during the term if this Agreement, the Newport Beach Restaurant Association shall maintain true, proper, and complete books, records, and accounts (collectively called "Books and Records ") in which shall be entered fully and accurately all transactions taken with respect to the operation of the Newport Beach Restaurant Association. The Newport Beach Restaurant Association shall maintain the books and records in accordance with Generally Accepted Accounting Principles, and allow the City to conduct an audit of the financial records upon reasonable notice at any times within four (4) years after expiration or termination of this Agreement. (b) The Newport Beach Restaurant Association shall, on a quarterly basis during the term of this Agreement, furnish the City with a Statement of Activities describing the receipt and disbursement activities of the Newport Beach Restaurant Association. With this report, the Newport Beach Restaurant Association shall include quarterly check registers and descriptions of each disbursement, as well as budget-to-actual - results. The Newport Beach Restaurant Association shall also provide, on a quarterly basis, a Statement of Position describing the assets and liabilities of the Newport. Beach Restaurant Association. All quarterly reports shall be due to the City no later than forty -five (45) days following the end of the reporting quarter. In the event that an independent audit is conducted, the Newport Beach Restaurant Association shall forward a copy of the audited report to the City for review, including any Management Letter, Report on Internal Controls, or Reportable Conditions letter generated during the course of the audit. (c) The Newport Beach Restaurant Association agrees to exercise prudent financial management processes including proper oversight of all assets, budget preparation, and timely reporting including budget -to- actual- comparisons. (d) All Activities shall be performed by the Newport Beach Restaurant Association or under the Newport Beach Restaurant Association's supervision. The Newport Beach Restaurant Association represents that it possesses the professional and technical skills required to perform the services required by this Agreement, and that it will perform all services with a standard of care and in a manner commensurate with the community professional standards. 3 0 5. USE OF THE MONEY 0 The Grant Funds shall be used solely by the Newport Beach Restaurant Association for the Approved Use and for no other use. In the event that the Grant Funds are not used for the Approved Use by or before June 30, 2007, the Newport Beach Restaurant Association is obligated to notify the City in writing, and shall be obligated to return the funds within sixty (60) days upon written demand by City. 6. INDEMNIFICATION The Newport Beach Restaurant Association shall hold harmless, defend and indemnify the City, and its officers and employees, from any claim, loss, litigation, or liability arising out of or in any way related to this Agreement regardless of the cause, except for any liability arising from the sole negligence, fraud or willful misconduct of the City or its officers or employees. 7. GRANTEEINDEPENDENCE In the performance of this Agreement, the Newport Beach Restaurant Association, and the agents and employees of the Newport Beach Restaurant Association, shall act in an independent capacity and not as officers or employees or agents of the City. 8. PROHIBITION AGAINST TRANSFERS The Newport Beach Restaurant Association shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 9. NOTICES All notices, demands, requests or approvals to be given under 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. 12 0 0 All notices, demands, requests or approvals from the Newport Beach Restaurant Association to City shall be addressed to the City at: City Manager City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92658 -8915 (949) 644 -3000 All notices, demands, requests or approvals from City to the Newport Beach Restaurant Association shall be addressed to the Newport Beach Restaurant Association at: Dan Marcheano, President Newport Beach Restaurant Association c/o BID Systems Inc. 2816 East Coast Highway, Suite A Corona del Mar, CA 92625 (949) 929 -7995 10. TERMINATION (a) Termination for Cause. The Newport Beach Restaurant Association shall be in default if the Newport Beach Restaurant Association fails or refuses to perform any duty required by the Agreement or performs in a manner inconsistent with the terms, conditions and restrictions in this Agreement. In such event, City shall give the Newport Beach Restaurant Association, thirty (30) days written notice to cure, if the default can be cured and City shall be entitled to terminate this Agreement if the Newport Beach Restaurant Association has not cured the default within the thirty (30) day cure period. City shall be entitled to immediately terminate this Agreement if the default cannot be cured through corrective action. This Agreement is made on an annual basis, and as such is subject to non - renewal at its termination. (b) Specific Performance. The Newport Beach Restaurant Association agrees that the City has the legal right, and all necessary conditions have been satisfied, to specifically enforce the Newport Beach Restaurant Association's obligations pursuant to this Agreement. 5 0 11. WAIVER L 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. 12. 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. 13. 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. 14. 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. 15. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both the Newport Beach Restaurant Association and the City and approved as to form by the City Attorney. 16. 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. 17. CONTROLLING LAW AND VENUE E n U 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. 18. EQUAL OPPORTUNITY EMPLOYMENT The Newport Beach Restaurant Association 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 City and the Newport Beach Restaurant Association have executed this Agreement as of the date first above written. APPROVED AS TO FORM: 01--_ Cx Rct-^— Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH: A Municipal Corpor n Webb, Mayor for the City of Newport Beach BEACH RESTAURANT ,ktG/, OX0 ,1 . _. I: MIA 161L 7