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HomeMy WebLinkAboutC-4267 - Independent Contractor Agreement Recreation Instructort�- AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH SHEILA BARGER DBA BARGER SOLUTIONS FOR PUBLICATION OF "THE CRUISING GUIDE TO NEWPORT HARBOR" THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, is entered into as of this day of C f,Nn� , 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Co oration ( "CITY"), and SHEILA BARGER DBA BARGER SOLUTIONS a sole proprietor whose address is 1736 Dixon Street, Redondo Beach, CA 90278 ( "CONSULTANT "), and is made with reference to the following: RECITALS: A. On June 16, 2009 CITY and CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "AGREEMENT," for publication services for the "Cruising Guide to Newport Harbor," hereinafter referred to as "PROJECT ". B. CITY desires to enter into this AMENDMENT NO. 1 to reflect additional services not included in the AGREEMENT and to extend the term of the AGREEMENT to October 15, 2009. C. CITY desires to compensate CONSULTANT for additional professional services needed for PROJECT. D. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter referred to as "AMENDMENT NO. 1," as provided here below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of the AGREEMENT shall be extended to October 15, 2009. 2. ADDITIONAL SERVICES TO BE PERFORMED In addition to the services to be provided pursuant to the AGREEMENT, CONSULTANT shall diligently perform all the services described in AMENDMENT NO. 1 including, but not limited to, all work set forth in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. ADDITIONAL COMPENSATION City shall pay Consultant for the services on a flat rate basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the AGREEMENT. Consultant's compensation for all work performed in accordance with this AMENDMENT NO. 1, including all reimbursable items and subconsultant fees, shall not exceed One Thousand Two Hundred Ten Dollars and no/100 ($1,210.00) without prior written authorization from City. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 on the date first above written. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, OFFICE OF THE CITY ATTORNEY A Municipal Corporati n By: _ By:r� David R. Hunt ris Miller City Attorney Harbor Resources Manager ATTEST: CONSULTANT: By: G dk- �0 By:�,- ��,( Leilani Browwn, 4� RT Sheila Barger, Sole Pr rietor �J City Clerk Attachments: Exhibit A — Scope of Services and Billing Rates Barger Solutions TO: City Of Newport Beach Harbor Resources Department Shannon Levin 829 Harbor Island Drive Newport Beach, Ca 92660 949-644-3041 Exhibit 7 Proposal INVOICE #063190 DATE: AUGUST 26, 2009 FOR: Cruising Guide to Newport Harbor Contract # 4267 Proposal to increase quantities of printing DESCRIPTION of Change Order AMOUNT Increase the amount to be printed from 2500 magazines to 5000 magazines 8.5 x 11- 4 color publication delivered to the Harbor Resources Departmant $1210.00 TOTAL $1210.00 Make all checks payable to: Sheila Barger ayment is due wi If you have any questions concerning this invoice, contact Sheila Barger, Thank you for your business! PROFESSIONAL SERVICES AGREEMENT WITH r` BARGER SOLUTIONS FOR THE CRUISING GUIDE TO NEWPORT HARBOR PUBLICATION V THIS AGREEMENT is made and entered into as of this _ day of June, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and SHEILA BARGER doing business as (DBA) BARGER SOLUTIONS a Sole Proprietor whose address is 1736 Dixon Street, Redondo Beach, California 90278 ( "Consultant "), 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. The Harbor Resources Department and Newport Beach Harbor Commission desires to produce a Newport Harbor cruising guide. C. City desires to engage Consultant for the creation, design and production of 2,500 copies of a 16 -page, color cruising guide to Newport Harbor ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of the Project, shall be Sheila Barger. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31st day of August, 2009, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Request for Proposals attached hereto as Exhibit A and incorporated herein by reference. The 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 Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Ten Thousand Dollars and no /100 ($10.000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Payment Schedule: Due upon notice to proceed: $5,000 Due upon acceptance of Brochure by City: $5,000 City shall pay Consultant no later than thirty (30) days after approval of the final invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this 2 Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated SHEILA BARGER to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously fumish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Harbor Resources Department. CHRIS MILLER shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, 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 2 provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and 5 progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, 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. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Sianature. 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. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be perfonned under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not 9 less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright 1J infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be bome by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially E affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Chris Miller, Harbor Resources Manager Harbor Resources Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3041 Fax: 949 - 723 -0589 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Sheila Barger Barger Solutions 1736 Dixon Street Redondo Beach, CA 90278 E -mail: she @bargersolutions.com Phone: 714 -623 -8360 Fax: 310 - 318 -9411 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be 10 deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. 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. 30. 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. 31. 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. 32. INTERPRETATION 11 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. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 38. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFFCE.OF Z CITY ATTORNEY: By. David R. Hunt City Attorney ATTEST: By: _" - Leilani Brown, City Clerk Attachments: N CITY OF NEWPORT BEACH, A Municipal Corpor i n By: ���r Chris Miller Harbor Resources Manager CONSULTANT: Barger Solutions By: /� % �16� P� Sheila B er Sole Proprietor Exhibit A — Request for Proposals Exhibit B — Scope of Services/Schedule of Billing Rates 13 May 11, 2009 CITY OF NEWPORT BEACH HARBOR RESOURCES REQUEST FOR PROPOSAL MARKETING COLLATERAL The Harbor Resources Department and the Newport Beach Harbor Commission are in the process of gathering pertinent boater information which will educate both visiting and local boaters. The goal of the finished product will be to give a visiting boater a single document that will assist them while visiting Newport Beach and to also assist local boaters with the available harbor services. Scope of Services 1. The finished product will be 8.5 x 11, 16 page, self cover, 100 Ib. gloss book, saddle stitched, four-color magazine. 2. Produce 2,500 printed copies. 3. Determine the available harbor services and the needs of the visiting and local boaters by utilizing local sources including the Harbor Commission Marketing Subcommittee. 4. Develop a table of contents to clearly outline the magazine content. 5. Include maps, charts and photos in the final product. Vendor will supply final writing, maps, artwork and photos from information, maps, charts, photos that are available from the city. 6. Copy writing, graphic design, editing and proof reading are required. 7. Collaborate with City staff for progress updates and approvals. 8. Expected project duration is approximately 6-10 weeks immediately following contract execution. 9. All proposals shall be submitted (mail, fax, hand delivered or email) by Friday, May 22"d, 2009, 12:00 PM to: 829 Harbor Island Drive, Newport Beach, CA 92660 PH: (949) 644-3034 FX: (949) 723-0589 • Website: www.newport-beach.ca.us/HBR/ City of Newport Beach, Harbor Resources Attn: Chris Miller 829 Harbor Island Dr. Newport Beach, CA 92660 Fax (949) 723-0589 cmiller(o)-city.newport-beach.ca.us Late submittals will automatically be rejected. Contractor shall sign the City's standard contract. (Sample attached for your review.) A current Newport Beach business license is required. Bids will be evaluated upon a number of factors including: price, ability to complete the project within the anticipated time period, and experience within Newport Harbor and the surrounding community. Thank you, Chris Miller Harbor Resources Manager (949) 644-3043 City of Newport Beach Harbor Resources Department Cruising Guide to Newport Harbor Project Agreement April, 2009 The City of Newport Beach, Harbor Resources Department agrees to retain Barger Solutions for the creation, design, writing and production of a 16 page four color cruising guide for Newport Harbor. It is our goal to have the printed guide completed by the end of June 2009 of course the actual completion date will be dependent upon the approval process. The goal of the brochure will be to inform visiting boaters and residents about all of the harbor rules, available facilities and amenities of Newport Beach. For these services the city of Newport Beach will be billed a one time project fee of $10,000. Project scope and estimated time: • Implementation -Determine the most important topics for the visiting boater then develop copy, obtain photographs, create maps and charts, design the publication. • Production — The brochure will be a four color, 16 page bound directory with 2,500 copies printed. • Approval Process: Copy will be written and approved for content. No design except for map and locations will proceed until copy is finalized. Delivery of copy to Chris: May 1 Approval of copy back to Sheila: May 15 Rough layout of copy, photos and map — Delivery to Chris: June 1 Changes made and final approval from Chris: June 15 To press: June 16 Delivery: June 30 Note: This quote is based on using existing photography, if photography has to be purchased this will be discussed separately from this agreement. The payment terms 50% or $5,000 is due upon signing of this agreement the remaining 50% is due upon the completion of the brochure. Please indicate your approval by signing the original and one copy. Retain the copy for your files and return the signed original to Barger Solutions. Submitted by: Sheila Barger Barger Solutions Date: April 17, 2009 Please make checks out to: Sheila Bamer Accepted by: Chris Miller City of Newport Beach Harbor Resources Manager Date: