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HomeMy WebLinkAboutC-4421 - PSA for Two Resturant Week Campaigns in Calendar Year 2010, PSA for Resturant Week 2011 in Support of the Newport Beach Restaurant Association BIDPROFESSIONAL SERVICES AGREEMENT WITH CALIFORNIA MARKETING CONCEPTS, INC. 7 FOR RESTAURANT WEEK 2011 IN SUPPORT OF THE NEWPORT BEACH RESTAURANT ASSOCIATION BID THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into as of this 4h day of 2010, by and between the CITY OF NEWPORT BEACH, a California MVnicipal Corporation ( "City "), CALIFORNIA MARKETING CONCEPTS, INC. a California Corporation whose address is 1550 Bayside Drive, Corona Del Mar, CA 92662 ("Consultant "), and Sheri Drewry, President Newport Beach Restaurant Association, 203 Marine Ave., Balboa Island, Ca 92662 ( "NBRW) and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City has established the Newport Beach Restaurant Association Business Improvement District pursuant to the Parking and Business Improvement Area Law of 1989 and is authorized to levy assessments within the district in order to fund marketing, advertising and public relations to benefit restaurant businesses located within the city. C. The NBRA is an association consisting of all of the food service businesses in the City of Newport Beach. D. NBRA hosts Restaurant Week 2011, which is designed to market Newport Beach as a premier dining destination in Orange County and increase dining in Newport Beach restaurants. E. In support of the NBRA's effort to brand Newport Beach as the premier dining destination in Orange County, the City is willing to provide up to Fifty Thousand Dollars ($50,000) to support Restaurant Week 2011. F. City and NBRA Board jointly desire to engage Consultant to plan, produce, manage, execute and provide an evaluation report on Restaurant Week 2011. . For the purposes of this Agreement Restaurant Week 2011 constitutes the ( "Project "). G. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. H. The principal member[s] of Consultant for purposes of the Project shall be Peggy Fort. I. City and NBRA have solicited and received a proposal from Consultant, have reviewed the previous experience and evaluated the expertise of Consultant, and desire to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30th day of April, 2011 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks from the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6) not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or U.S. mail. 4. COMPENSATION TO CONSULTANT Subject to the provisions of this Agreement, City and the NBRA shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B Professional Services Agreement Page 2 and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Ninety -Nine Thousand Nine Hundred Fifty Dollars and no /100 ($99,950.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. In addition to the not -to- exceed contract amount, the Consultant may earn an incentive bonus related to the Consultant's success in securing cash sponsorships other than the City's, Visit Newport Beach, Inc or from NBRA supplemental funding. In -kind sponsorships are not included in the bonus incentive program. The incentive bonus plan is incremental and cumulative as follows: Paid Sponsorships Equal to or Greater Than Bonus Paid $10,000 $1,000 $20,000 $1,500 $30,000 $2,000 $40,000 $2,500 $50,000 $3,000 $60,000 $3,500 $70,000 $4,000 $80,000 $4,500 $90,000 $5,000 The maximum bonus the Consultant could earn if $90,000 or more in cash sponsorships were paid is $27,000. 4.1 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the 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. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. Any bonuses to be paid are due and payable within sixty (60) days of the deposit and verification by City Staff of the sponsorship funds against which a commission is claimed. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Professional Services Agreement Page 3 Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing by City and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final Work under this Agreement. 4.5 Notwithstanding any provision to the contrary herein, the City's obligation under this Agreement shall not exceed Fifty Thousand Dollars ($50,000). . Any amounts due hereunder or expenses in excess of the City's contribution of up to $50,000 is the sole responsibility of the NBRA. S. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Peggy Fort to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered jointly by the Planning Department, Economic Development Division and the NBRA . Leigh M. De Santis, Economic Development Administrator, or his/her designee, shall be the Project Administrator and shall have the Professional Services Agreement Page 4 authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the community professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees, and NBRA Board (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, Professional Services Agreement Page 5 attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "). which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). To the fullest extent permitted by law, the NBRA shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees, (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terns of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. Professional Services Agreement Page 6 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. Professional Services Agreement Page 7 C. Coverage Requirements. Workers' Compensation Coverage. Consultant has no employees and therefore need not maintain Workers' Compensation Insurance. However if during the course of this contract CIVIC, Inc. acquires employees then it shall acquire and maintain Worker's Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: i. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against Professional Services Agreement Page 8 City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the Work outlined in the Scope of Services. The subconsultants authorized by City to perform Professional Services Agreement Page 9 Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, advertising copy, impression, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, elected and appointed officials, officers, representatives, employees, and NBRA Board against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. Professional Services Agreement Page 10 21. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be bome by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Professional Services Agreement Page 11 Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Leigh M. De Santis Planning Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 -644 -3207 Fax: 949 -644 -3224 Attn: Sheri Drewry, President NBRA Wilma's Patio 203 Marine Ave Balboa Island, Ca 92662 Phone: 949 -675 -5542 FAX: 949 -675 -7243 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Peggy Fort CIVIC, Inc P.O. Box 5711 Balboa Island, , CA 92625 Phone: 949 -675 -0501 Fax: 949 -675 -0508 27. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement and its documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two Professional Services Agreement Page 12 (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the Professional Services Agreement Page 13 authorship of the Agreement or any other rule of construction which might otherwise apply. 34. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 35. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 36. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 38. NO ATTORNEY'S FEES In the event of a legal dispute under the terms of this Agreement the prevailing party shall not be entitled to attorney's fees. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OF F HE CI =NEY: B- Leonie Mulvihill Assistant City Attorney CITY OF NEWPORT B CH, A Municipal Corpora' n By: Keith D. Curry, Mayor Professional Services Agreement Page 14 ATTEST: By: Leilani Brown, City Clerk��� Sheri Drewry, President Newport Beach Restaurant Association, jVAG,"0A By: ( Signature) 11 �/ Title: Print Name: Attachments A08-00093 5.13.10 CONSULTANT: California Marketing Conceptts„ Inc (CMC) Fort, President & CEO Title: 4- bE6 L Print Name: By: (Financial Officer's Signature) Title: Print Name: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Professional Services Agreement Page 15 6.1 Production Timeline m�'66"Irccs MONTH TASKS TO BE DONE April 2010 'April 26, 2010 -Submit 2011 NBRW Proposal 'May 10-14,2010 - NBRW RFP Interviews *Approve Proposed NBRW Business Plan NSRA Board May 2010 • Begin Community & Industry Outreach Campaign • Initiate Media & Corporate Sponsorship Solicitation • Misc. Sponsor & Partner Servicing *June 3, 2010 - PSA Contract Negotiation Complete & Sign June 2010 "June Z2,2010 - NBRW PSA on City Council Agenda • Begin Community & Industry Outreach Campaign ❑ Begin Updating NBRW Sponsorship Booklet • Initiate Media & Corporate Sponsorship Solicitation • Misc. Sponsor & Partner Servicing *July 1, 2010 - NBRW PSA Start Date • Community & Industry Outreach Campaign July 2010 • Begin Restaurant Event Coordination Effort • Develop Charity & Gala Component • Develop Corporate Sponsorship Package • Develop Media Sponsorships • Initiate Media & Corporate Sponsorship Solicitation • Initiate Production of Marketin Collateral • Media Press Release Announcement ❑ Communtyy, & Industry Outreach Campaign • Corporate Sponsorship Solicitation August 2010 • Local Media Press Release Announoements • Marketing and Advertising Campaign Development • Marketing Collateral Complete • Media Ad Campaign Development • NBRA Restaurant Sign UP For NBRW • PR Campaign Launched • Research Citywide Flag Promotion • Restaurant Event Coordination Effort 1� • Secure Media Sponsorships • Sign UP NBRA Restaurants For NBRW • Sponsorship Servicing & Development • Web Site Development • Complete NBRA Restaurant Sign UP For NBRWI 2010 ❑ Marketing and Advertising Campaign Development • Marketing Collateral Development • Marketing Collateral Distributed • Planning For Charity Gala Event ❑ Sponsorship Servicing & Development o Web Site Development "September 3 - Early Bird Deadline for NBRW Sign Ups 'September 17 -19 - Chefs Cooking Pavilion NBRW Kick Off 2010 • Distribute NBRW Collateral Display To Restaurants o Marketing & Advertising Media Campaign • Marketing and Advertising Campaign Development • NBRW Orientation Meeting For Participating Restaurants • OC Community Direct Mail Campaign • On-Site Restaurant Promotion • Plan Charity Event Gala — Thursday Night In February • Planning For Charity Gala Event Web Site Development • Publlc Relations Campaign • Sponsorship Servicing & Development • City Water Bill Insert Program - November 'November 30, 2010 - NBRW Orientation & Wine Tasting Event December 2010 ❑ Hang Up NB Restaurant Week Posters • Marketing & Advertising Media Campaign • Marketing Collateral Distributed ❑ On-Site Restaurant Promotion • Plan Charily Event Gala — Thursday Night in February • Planning For Charity Gala Event ❑ Planning For NBRW Press Conference • Public Relations Campaign • City Water Bill Insert Program — December • NB Restaurant Week Banners • NB Restaurant Week Posters *December 10, 2010 - Deadline for 2011 NBRW Menus 'December 27- January 27, 2011 - Hang Up Citywide Flags 1A o Initiate Planning For Charity Gala Event October 2010 ❑ • NBRW Planning Meeting For Participating Restaurants • On-Site Restaurant Promotion Kit Developed • Planning For Charity Gala Event • Sponsorship Servicing & Development • Web Site Development 'October 1, 2010 - NBRW Sign Ups Complete • Distribute NBRW Collateral Display To Restaurants o Marketing & Advertising Media Campaign • Marketing and Advertising Campaign Development • NBRW Orientation Meeting For Participating Restaurants • OC Community Direct Mail Campaign • On-Site Restaurant Promotion • Plan Charity Event Gala — Thursday Night In February • Planning For Charity Gala Event Web Site Development • Publlc Relations Campaign • Sponsorship Servicing & Development • City Water Bill Insert Program - November 'November 30, 2010 - NBRW Orientation & Wine Tasting Event December 2010 ❑ Hang Up NB Restaurant Week Posters • Marketing & Advertising Media Campaign • Marketing Collateral Distributed ❑ On-Site Restaurant Promotion • Plan Charily Event Gala — Thursday Night in February • Planning For Charity Gala Event ❑ Planning For NBRW Press Conference • Public Relations Campaign • City Water Bill Insert Program — December • NB Restaurant Week Banners • NB Restaurant Week Posters *December 10, 2010 - Deadline for 2011 NBRW Menus 'December 27- January 27, 2011 - Hang Up Citywide Flags 1A December 2010 ❑ Hang Up NB Restaurant Week Posters • Marketing & Advertising Media Campaign • Marketing Collateral Distributed ❑ On-Site Restaurant Promotion • Plan Charily Event Gala — Thursday Night in February • Planning For Charity Gala Event ❑ Planning For NBRW Press Conference • Public Relations Campaign • City Water Bill Insert Program — December • NB Restaurant Week Banners • NB Restaurant Week Posters *December 10, 2010 - Deadline for 2011 NBRW Menus 'December 27- January 27, 2011 - Hang Up Citywide Flags 1A 1A • Marketing & Advertising Media Campaign • Marketing Collateral Distributed • NB Restaurant Week Banners • NB Restaurant Week Posters • On -Site Restaurant Promotion Kit Developed • Plan Charity Event Gala • Public Relations Campaign 'January 3, 2011 - NBRW Menus On Web Site 'January 9, 2011- Gala Launch Media Event & VIP Event *January 21 -27, 2011 • Fifth Annual Newport Beach Restaurant Week *February 9,2011 - NBRW Industry Wrap Up Meeting • Produce & Distribute Sales Tracker & Sales Result Forms • Produce & Distribute NBRW Online Post Campaign Survey • Compile NBRW Marketing & Media Statistics Results • Comple NBRW Marketing & Media Examples • Produce & Manage NBRW Post Campaign Recap Meetng o Produce Post Campaign Stewardship Report *March 11, 2011- Submit 2011 Post Evaluation Stewardship Report 'March 31, 2011 - NBRW PSA End Date 2) { es Newport Beach Restaurant Week 5.2 Budget Fiscal Year. 2010 -WU Prtopom CAMPAIBR DATE January 21.29, 2011 PRWWTOUWOMMAN CREATIVE. COLLATERAL DEVELOPMENT & PRINTIN Creative Campaign & Graphic Design $ 2,000 Citywide Banners & Restaurant Promotional Signage $ 2,000 Citywide Flag Campaign Promotions $ 6,000 Display Material, Posters & Invites Printing - Postcard & Insert Production $ 5,000 *Total of 80QOOO Places D1801buted $ In4(ind Total: E 16.000 MEDIA ADVERTISING CAMPAIGNS Out of Market Print & Online Campaigns — Southern California Orange County Register & LA Times Food Section & Online Campaigns $ 5,000 Anaheim CVB Online Campaign & Inserts $ 1,000 In Market Print & Online Campaigns —Local Daly Pilot Special Section Inserts - Back Page (4) Color Plus 30k Inserts $ 3,000 City Water BID Insert Fees $ 500 Bafboa Beacon Inserts $ 600 Newport Beach Chamber $ In -Kind Corona del Mar Chamber $ In-Kind 'Confinoed In4aW Media Partners — Print & Online Los Angeles Tines Community News Daily Pilot, HB Indspendent, LB Coastline Pilot (Value: $60k leveO $ in4aw Orange Coast Magazine (Va(ua d25k love!) $ In-Klnd Coast Magazine (Value: $26k level) $ In4(ind Newport Beach Magezfne (Value: $26k k"O $ In -find 944 Magazine (Value: "Okleveo $ MAW OC We" Magazine (Value: $25k loveQ S In -Kind Live OC Magazine (Value: $25K Leval) $ k14Q W Churrn Publishing OC Metro, Metro Menus (Values *26k levee $ In-Kind Riviera Magazine (Value: $26k /eve!) $ In4Gnd Z) EDIA ADVERTISING CAMPAIGNS — CONT. Broadcast Television & Radio Campaigns 'Develop PSA Promo Spots $ In -Kind KWAVE & KEARTH 101 Radom (Value: $25k leveq $ In -Kind JILL FM 92-7 Radio (Value: $25k level) $ In -Kind 100.3 FM The Sound Radio (Value. $25k level) $ In -Kind Time Warner Cable TV Promotion (value: TBA !even $ In4Q nd Cox Cable TV Promotion (Value: TBA) $ In -Kind NBTV News $ to -Kind Total In -Kind Value to NBRA: $30,000 Total: S 10.000 $In -Kind Total: Sin -Kind CHARITY & MEDIA LAUNCH EVENTS Restaurant Week VIP Media Launch Reception $ 5,000 'Expected Revenue Generation: $2,500 7n -Kind Sponsorships: Venue, Sysco Food Services, Restaurants, Chef Works (Value: $20,000) Total: S 6.000 AGENCY CONSULATATION FEES MANAGEMENT, MARKETING & PUBLIC RELATIONS Annual Project Management, Marketing & Public Relations Services $ 31,500 Event Coordination, Administration & Billing $ 25,200 Total: S 66.700 SPONSORSHIP DEVELOPMENT & SERVICING Internal Marketing & Sponsorship Package Production Development & Commissions $ 10,000 'Contingent Based on lncandve Bonus Plan on Cash Revenue Total: _-$ 1 MISC. ADMINISTRATION & ACCOUNTING FEES Accounting & Payroll Services $ 1,000 Photography & Video $ 750 Postage & Supplies $ 1,500 Total: E 3,760 OTAL PROPOSED EXPENDITURES $979:95A X, CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 July 6, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Leigh M. De Santis, Economic Development Administrator 949 - 644 -3207, Idesantis @newportbeachca.gov SUBJECT: Professional Services Agreement with California Marketing Concepts, Inc for Restaurant Week January 2011 RECOMMENDATION: Approve and authorize the Mayor and City Clerk to execute the attached Professional Service Agreement (PSA) for Restaurant Week 2011 with California Marketing Concepts, Inc. (CIVIC, Inc). DISCUSSION: Background: In March, the City Council transferred the October 2010 Restaurant Week funding to January 2011 and authorized staff to send out an RFP for a marketing agency or special events planning firm to produce Restaurant Week January 2011. The RFP was directly mailed to nine (9) qualified firms and posted on the City's website should any other interested party see it and wish to respond. The City received two responses to the RFP. A third firm submitted a week late and the Orange County Restaurant Association called approximately a month late requesting a meeting. The two qualifying proposals were reviewed by a committee of seven comprised of Sheri Drewry, Jim Walker, and John Robinson, of the Newport Beach Restaurant Association (NBRA) Board, and City staff members Sharon Wood, Tara Finnigan, Kathlyn Bowden and Matt Dingwall. Both firms were interviewed by the committee. Prices for the services sought by RFP ranged from $155,500 to $99,950. The unanimous committee selection was California Marketing Concepts, Inc., because the committee found that CMC, Inc provided a higher level of detail with regard to sponsorships, media exposure, and operational issues due to their four years of experience operating the event. CIVIC, Inc was also the low bid. In the past CIVIC, Inc. PSA with CMC, Inc. July 6, 2010 Page 2 has been successful in attracting an estimated $370,000 worth of in -kind advertising in a wide variety of print media. Terms of the Agreement This Agreement is for a period of approximately 9 months from July 6, 2010 through April 30, 2011. It is split into roughly 6 months preparation time and 3 months to close the books and prepare an evaluation report on the event. Restaurant Week will take place January 22 -28, 2011. The Agreement is for $99,950, this was the lowest bid. Event expenses and reimbursable such as printing, media, banners etc. account for $43,250 of this figure and CMC, Inc will be paid $56,700 for planning, sponsorship development, marketing, implementation, and the evaluation report. In addition CMC, Inc has the opportunity to earn an incentive bonus for obtaining cash sponsorship for the event. In -kind sponsorships do not count toward the bonus nor does any funding received from the City or Visit Newport Beach, Inc. The bonus is paid on a graduated scale related to paid sponsorships and capped at $27,000. In January 2010 CMC, Inc earned a bonus incentive of approximately $2,500. The Agreement is among three parties, the City, NBRA and CMC, Inc. It specifies that the City of Newport Beach's liability is limited to $50,000 as approved by the City Council in March 2010. The balance of the Agreement cost ($49,950) will be paid by the NBRA from cash buy -in fees charged to participating restaurants or cash sponsorships collected for the event. In addition the NBRA is responsible for any bonus incentive payments earned by CMC, Inc. Funding Availability: Funding in the amount of $50,000 in account # 0110 -8250 was previously approved by the City Council. The NBRA anticipates generating event revenues of approximately $55,000 to cover their portion of the Agreement. Prepared by: Lei"Santis, Economic Development Administrator Attachments: PSA with CMC, Inc Submitted by Sharon Z. Wood, Assistant City Ma er PROFESSIONAL SERVICES AGREEMENT WITH CALIFORNIA MARKETING CONCEPTS, INC. FOR RESTAURANT WEEK 2011 IN SUPPORT OF THE NEWPORT BEACH RESTAURANT ASSOCIATION BID THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into as of this day of , 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), CALIFORNIA MARKETING CONCEPTS, INC. a California Corporation whose address is 1550 Bayside Drive, Corona Del Mar, CA 92662 ( "Consultant "), and Sheri Drewry, President Newport Beach Restaurant Association, 203 Marine Ave., Balboa Island, Ca 92662 ( "NBRA ") and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City has established the Newport Beach Restaurant Association Business Improvement District pursuant to the Parking and Business Improvement Area Law of 1989 and is authorized to levy assessments within the district in order to fund marketing, advertising and public relations to benefit restaurant businesses located within the city. C. The NBRA is an association consisting of all of the food service businesses in the City of Newport Beach. D. NBRA hosts Restaurant Week 2011, which is designed to market Newport Beach as a premier dining destination in Orange County and increase dining in Newport Beach restaurants. E. In support of the NBRA's effort to brand Newport Beach as the premier dining destination in Orange County, the City is willing to provide up to Fifty Thousand Dollars ($50,000) to support Restaurant Week 2011. F. City and NBRA Board jointly desire to engage Consultant to plan, produce, manage, execute and provide an evaluation report on Restaurant Week 2011. . For the purposes of this Agreement Restaurant Week 2011 constitutes the ( "Project "). G. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. H. The principal member[s] of Consultant for purposes of the Project shall be Peggy Fort. 0 City and NBRA have solicited and received a proposal from Consultant, have reviewed the previous experience and evaluated the expertise of Consultant, and desire to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30th day of April, 2011 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks from the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6) not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or U.S. mail. 4. COMPENSATION TO CONSULTANT Subject to the provisions of this Agreement, City and the NBRA shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the Professional Services Agreement Page 2 K provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Ninety -Nine Thousand Nine Hundred Fifty Dollars and no /100 ($99,950.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. In addition to the not -to- exceed contract amount, the Consultant may earn an incentive bonus related to the Consultant's success in securing cash sponsorships other than the City's, Visit Newport Beach, Inc or from NBRA supplemental funding. In -kind sponsorships are not included in the bonus incentive program. The incentive bonus plan is incremental and cumulative as follows: Paid Sponsorships Equal to or Greater Than Bonus Paid $10,000 $1,000 $20,000 $1,500 $30,000 $2,000 $40,000 $2,500 $50,000 $3,000 $60,000 $3,500 $70,000 $4,000 $80,000 $4,500 $90,000 $5,000 The maximum bonus the Consultant could earn if $90,000 or more in cash sponsorships were paid is $27,000. 4.1 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. Any bonuses to be paid are due and payable within sixty (60) days of the deposit and verification by City Staff of the sponsorship funds against which a commission is claimed. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Professional Services Agreement Page 3 f, Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing by City and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final Work under this Agreement. 4.5 Notwithstanding any provision to the contrary herein, the City's obligation under this Agreement shall not exceed Fifty Thousand Dollars ($50,000). . Any amounts due hereunder or expenses in excess of the City's contribution of up to $50,000 is the sole responsibility of the NBRA. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Peggy Fort to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered jointly by the Planning Department, Economic Development Division and the NBRA . Leigh M. De Santis, Economic Development Administrator, or his /her designee, shall be the Project Administrator and shall have the Professional Services Agreement Page 4 authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the community professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees, and NBRA Board (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, Professional Services Agreement Page 5 I attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). To the fullest extent permitted by law, the NBRA shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees, (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. Professional Services Agreement Page 6 r 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. Professional Services Agreement Page 7 C. Coverage Requirements. i. Workers' Compensation Coverage. Consultant has no employees and therefore need not maintain Workers' Compensation Insurance. However if during the course of this contract CIVIC, Inc. acquires employees then it shall acquire and maintain Worker's Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's emproyees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. D. Other Insurance Provisions or Requirements The policies are to contain, or be endorsed to contain, the following provisions: i. Waiver of Subroqation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against Professional Services Agreement Page 8 10 City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the Work outlined in the Scope of Services. The subconsultants authorized by City to perform Professional Services Agreement Page 9 Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, advertising copy, impression, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, elected and appointed officials, officers, representatives, employees, and NBRA Board against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. Professional Services Agreement Page 10 21. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project 25. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Professional Services Agreement Page 11 Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Leigh M. De Santis Planning Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3207 Fax: 949 - 644 -3224 Attn: Sheri Drewry, President NBRA Wilma's Patio 203 Marine Ave Balboa Island, Ca 92662 Phone: 949 - 675 -5542 FAX: 949- 675 -7243 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Peggy Fort CIVIC, Inc P.O. Box 5711 Balboa Island, , CA 92625 Phone: 949 - 675 -0501 Fax: 949 - 675 -0508 27, CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement and its documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two Professional Services Agreement Page 12 (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the Professional Services Agreement Page 13 G authorship of the Agreement or any other rule of construction which might otherwise apply. 34. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 35. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 36. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 38. NO ATTORNEY'S FEES In the event of a legal dispute under the terms of this Agreement the prevailing party shall not be entitled to attorney's fees. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OF�F+SE OF THE CITY ATTORNEY: B>7 -� Leonie Mulvihill Assistant City Attorney CITY OF NEWPORT BEACH, A Municipal Corporation in Keith D. Curry, Mayor Professional Services Agreement Page 14 ATTEST: in Leilani Brown, City Clerk Sheri Drewry, President Newport Beach Restaurant Association, By: ( Signature) Title: Print Name: CONSULTANT: California Marketing Concepts, Inc (CIVIC) 0 Peggy Fort, President & CEO Title: Print Na (Financial Officer's Signature) Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates A08 -00093 5.13.10 Professional Services Agreement Page 15 I� .. FIFTH ANNUAL NEWPORT BEACH RESTAURANT WEEK MONTH rTASKS TO BE DONE April 2010 *April 26, 2010 - Submit 2011 NBRW Proposal `May 10 -14, 2010 - NBRW RFP Interviews May 2010 'Approve Proposed NBRW Business Plan NBRA Hoard - • Begin Community & Industry Outreach Campaign • Initiate Media & Corporate Sponsorship Solicitation a Misc. Sponsor & Partner Servicing I 'June 3, 2010 - PSA Contract Negotiation Complete & Sign *June 22, 2010 - NBRW PSA on City Council Agenda June 2010 • Begin Community & Industry Outreach Campaign • Begin Updating NBRW Sponsorship Booklet o Initiate Media & Corporate Sponsorship Solicitation r Misc. Sponsor & Partner Servicing "July 1, 2010 - NBRW PSA Start Date ❑ Community & Industry Outreach Campaign July 2010 ❑ Begin Restaurant Event Coordination Effort ❑ Develop Charity & Gala Component ❑ Develop Corporate Sponsorship Package ❑ Develop Media Sponsorships ❑ Initiate Media& Corporate Sponsorship Solicitation ❑ Initiate Production of Marketing Collateral ❑ Media Press Release Announcement ❑ Community & Industry Outreach Campaign ❑ Corporate Sponsorship Solicitation August 2010 ❑ Local Media Press Release Announcements ❑ Marketing and Advertising Campaign Development ❑ Marketing Collateral Complete r Media Ad Campaign Development • NBRA Restaurant Sign UP For NBRW • PR Campaign Launched i Research Citywide Flag Promotion n Restaurant Event Coordination Effort ❑ Secure Media Sponsorships c Sign UP NBRA Restaurants For NBRW c Sponsorship Servicing & Development ❑ Web Site Development Complete NBRA Restaurant Sign UP For NBRWI 2010 a Marketing and Advertising Campaign Development — ❑ Marketing Collateral Development ❑ Marketing Collateral Distributed D Planning For Charity Gala Event I ❑ Sponsorship Servicing & Development D Web Site Development "September 3 - Early Bird Deadline for NBRW Sign Ups 'September 17 -19 - Chef's Cooking Pavilion NBRW Kick Off ❑ Initiate Planning For Charity Gala Event October 2010 u Marketing and Advertising Campaign Development ❑ Orientation Meeting For Participating Restaurants- TBA ❑ NBRW Planning Meeting For Participating Restaurants Fi On -Site Restaurant Promotion Kit Developed • Planning For Charity Gala Event • Sponsorship Servicing & Development ❑ Web Site Development 'October 1, 2010 - NBRW Sign Ups Complete December 2010 c Distribute NBRW Collateral Display To Restaurants -, Marketing & Advertising Media Campaign ❑ Marketing and Advertising Campaign Development November 2010 On -Site Restaurant Promotion • NBRW Orientation Meeting For Participating Restaurants • Plan Charity Event Gala – Thursday Night in February • OC Community Direct Mail Campaign • Planning For Charity Gala Event ❑ On -Site Restaurant Promotion u Planning For NBRW Press Conference • Plan Charity Event Gala – Thursday Night in February ❑ Public Relations Campaign • Planning For Charity Gala Event Web Site Development ❑ City Water Bill Insert Program – December • Public Relations Campaign ❑ NB Restaurant Week Banners • Sponsorship Servicing & Development u NB Restaurant Week Posters ❑ City Water Bill Insert Program - November December 10, 2010 - Deadline for 2011 NBRW Menus 'November 30, 2010 - NBRW Orientation & Wine Tasting Event December 2010 ❑ Hang Up NB Restaurant Week Posters e. Marketing & Advertising Media Campaign ❑ Marketing Collateral Distributed On -Site Restaurant Promotion • Plan Charity Event Gala – Thursday Night in February • Planning For Charity Gala Event u Planning For NBRW Press Conference ❑ Public Relations Campaign ❑ City Water Bill Insert Program – December ❑ NB Restaurant Week Banners u NB Restaurant Week Posters December 10, 2010 - Deadline for 2011 NBRW Menus December 27- January 27, 2011 - Nang Up Citywide Flags N _ -, Marketing & Advertising Media Campaign 2011 ❑ Marketing Collateral Distributed ❑ NB Restaurant Week Banners ❑ NB Restaurant Week Posters -: On -Site Restaurant Promotion Kit Developed ❑ Plan Charity Event Gala ❑ Public Relations Campaign *January 3, 2011 - NBRW Menus On Web Site *January 9, 2011 - Gala Launch Media Event & VIP Event *January 21 -27, 2011. - Fifth Annual Newport Beach Restaurant Week *February 9, 2011 - NBRW Industry Wrap Up Meeting 2011 ❑ Produce & Distribute Sales Tracker & Sales Result Forms ❑ Produce & Distribute NBRW Online Post Campaign Survey ❑ Compile NBRW Marketing & Media Statistics Results ❑ Compile NBRW Marketing & Media Examples ❑ Produce & Manage NBRW Post Campaign Recap Meeting ❑ Produce Post Campaign Stewardship Report *March 11, 2011 - Submit 2011 Post Evaluation Stewardship Report March 2011 *March 31, 2011 - NBRW PSA End Date .Z() i .. Fiscal Year. 2014 -2011 PROPOSED CAMPAIGN DATE: January 21 -29, 2011 ACTUAL PROJECT EXPENDIllURES CREATIVE COLLATERAL DEVELOPMENT & PRINTING g 2,000 Creative Campaign & Graphic Design ,000 Citywide Banners & Restaurant Promotional Signage $ $ 2 2,000 Citywide Flag Campaign Promotions Display Material, Posters & Invites Printing - Postcard & Insert Production $ 5,000 *Total of 300,000 Pieces Distributed Total: $ 15,000 MEDIA ADVERTISING CAMPAIGNS Out of Market Print & online Campaigns — Southern California Orange County Register & LA Times Food Section & Online Campaigns $ 5,000 Anaheim CVB Online Campaign & Inserts in Market Print & Online Campaigns —Local Daily Pilot Special Section Inserts - Back Page (4) Color Plus 30k Inserts $ 3, 500 City Water Bill Insert Fees $ 500 Balboa Beacon Inserts $ In -Kind Newport Beach Chamber $ In -Kind Corona dei Mar Chamber - Confirmed In -Kind Media Partners — Print & Online Los Angeles Times Community News Daily Pilot, HB Independent, LB Coastline Pilot (Value: $50k level) $ In -Kind Orange Coast Magazine (Value: $25k level) in -Kind $ In -Kind Coast Magazine (Value: $25k level) $ In -Kind Newport Beach Magazine (Value: $25k level) $ in -Kind 944 Magazine (Value: $10k level) $ in -Kind OC Weekly Magazine (Value: $25k level) $ In -Kind Live OC Magazine (Value: $25K Level) Churm Publishing OC Metro, Metro Menus (Value: $25k level) In -Kind $ In -Kind Riviera Magazine (Value: $25k level) NEWPORT BEACH RESTAURANT WEEIf FISCAL YEAR 2010 -2011 BUDGET MEDIA ADVERTISING CAMPAIGNS — CONT. Broadcast Television & Radio Campaigns 'Develop PSA Promo Spots KWAVE & KEARTH 101 Radio (Value: $25k level) JILL FM 92.7 Radio (Value: $25k level) 100.3 FM The Sound Radio (Value.- $25k level) Time Warner Cable TV Promotion (Value: TBA level) Cox Cable N Promotion (Value: TBA) NBTV News $ In -Kind $ In -Kind $ In -Kind $ In -Kind $ In -Kind $ In -Kind $ to -Kind Total $ 10.000 Southern California Direct Mail Campaign $[n-Kind Total In -Kind Value to NBRA: $30,000 Total: $hi -Kind CHARITY & MEDIA LAUNCH EVENTS Restaurant Week VIP Media Launch Reception $ 5,000 `Expected Revenue Generation: $2,500 'In -Kind Sponsorships: Venue, Sysco Food Services, Restaurants, Chef Works (Value: $20,000) Total: $ 5,000 AGENCY CONSULATATION FEES MANAGEMENT MARKETING & PUBLIC RELATIONS Annual Project Management, Marketing & Public Relations Services $ 31,500 Event Coordination, Administration & Billing $ 25,200 Total: $ 56,700 SPONSORSHIP DEVELOPMENT —& SERVICING Internal Marketing & Sponsorship Package Production Development & Commissions $ 10,000 `Contingent Based on Incentive Bonus Plan on Cash Revenue Total: $ 10,000 MISC. ADMINISTRATION & ACCOUNTING FEES Accounting & Payroll Services $ 1,000 Photography & Video $ 750 Postage & Supplies $ 1,500 Total: $ 3,750 OTAL PROPOSED EXPENDITURES $99,950 �� i PROFESSIONAL SERVICES AGREEMENT WITH CALIFORNIA MARKETING CONCEPTS, INC. FOR TWO RESTAURANT WEEK CAMPAIGNS IN CALENDAR YEAR 2010 THIS AGREEMENT is made and entered into as of this 8"' day of December 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City ") and CALIFORNIA MARKETING CONCEPTS, INC., a California Corporation ( "Consultant "), 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. City requires event planning, event administration, project marketing and sponsorship development services for City's January 2010 Restaurant Week. C. City desires to engage Consultant to provide event planning, event administration, marketing and sponsorship development services for City's January 2010 Restaurant Week. Planning, execution and dose -out of the January 2010 Restaurant Week shall constitute the "Project". D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of this Project shall be Peggy Fort. F. The City has solicited and received a proposal from Consultant, reviewed the previous experience and evaluated the expertise of Consultant, and recommends Consultant to City 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: TERM The term of this Agreement shall commence on the 1st day of October, 2009, not the above written date, and shall terminate on the 31" day of March 2010, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. 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. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and maximum bonus, if earned, shall not exceed Seventy -One Thousand Two Hundred Fifty and No /100 Dollars ($71,250), 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. MARKETING & PUBLIC RELATIONS From October 1, 2009 through March 31, 2010, City shall pay Consultant for all marketing and public relations services including, but not limited to, ongoing consulting, execution and marketing activities as outlined in Exhibit A, at a rate of $3,500 per month in accordance with the provisions of this Section and Exhibit A. Consultant's compensation for all marketing 2 and public relations tasks performed in accordance with this Agreement shall not exceed Twenty -One Thousand Dollars and No Cents ($21,000.00) without prior written authorization from City. 4.2 PROJECT MANAGEMENT City shall pay Consultant for overall project management and execution of additional campaign coordination and administrative services tasks as outlined in Exhibit A, at an hourly rate of Thirty Dollars ($30.00) per hour in accordance with the provisions of this Section and Exhibit A. Consultant's compensation for overall project management and execution of additional campaign coordination and administrative services tasks performed in accordance with this Agreement shall not exceed Twenty -One Thousand Four Hundred Fifty Dollars and No Cents ($21,450) without prior written authorization from City. 4.3 REIMBURSABLE ITEMS City shall reimburse Consultant up to Three Hundred Dollars and No Cents ($300) per month, without prior written approval, for out of pocket expenses incurred in the performance of work executed on behatf of the City and NBRA. Such out of pocket expenses include, but are not limited to, reimbursements of postage, photocopying, messenger, printing, seminars etc. Out -of- pocket expenses in excess of $300.00 per month shall require advance written approval by City. 4.4 SPONSORSHIP DEVELOPMENT- INCENTIVE BONUS PLAN Consultant shall develop, solicit and secure event sponsorships. Subject to the exclusions set forth below, Consultant shall be paid a bonus as an incentive for all cash sponsorships actually received by the City for the Project in advance of the event, provided that the cash sponsorship is directly attributable to Consultant's efforts as follows: SPONSORSHIP DEVELOPMENT INCENTIVE BONUS PLAN CIVIC INC. ACCUMULATIVE REVENUE GENERATED $ 10,000 $1,000 Bonus Paid $ 20,000 $1,500 Bonus Paid $ 30,000 $2,000 Bonus Paid $ 40,000 $2,500 Bonus Paid $ 50,000 $3,000 Bonus Paid $ 60,000 $3,500 Bonus Paid $ 70,000 $4,000 Bonus Paid $ 80,000 $4,500 Bonus Paid $ 90,000 $5,000 Bonus Paid The maximum bonus Consultant shall be entitled to receive under the incentive bonus plan shall be Twenty Seven Thousand Dollars and No 3 Cents ($27,000.00). The Parties hereto expressly agree that the bonuses called for hereunder shall be paid to Consultant from cash sponsorships actually received by the City. The Parties also expressly agree that the following shall be expressly excluded and not be considered to be cash sponsorships for purposes of determining the bonus set forth herein: A. Any funding or cash sponsorships received from the City, Visit Newport Beach, Inc. (formerly the Newport Beach Conference and Visitors Bureau), and the Newport Beach Restaurant Association. B. Any In -Kind sponsor Consultant secures and develops. 4.2 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.3 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 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. 4.4 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 at an hourly rate of Thirty Dollars ($30) per hour. 4.5 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this 4 Agreement, no further payments shall be made until the conclusion of Restaurant week. S. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of Hie Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated PEGGY FORT to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously 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 Economic Development Department. LEIGH M. DE SANTIS 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. 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. 5 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 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 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. 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 7 Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements, Workers' Comoensation 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. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the 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 0 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, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. 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 10 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 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: Leigh M. De Santis 11 26. 27 With a copy to: Planning Department City of Newport Beach PO Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Phone: 949 -644 -3207 Attention: President NBRA P.O. Box 2295 Newport Beach, CA 92659 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Peggy Fort CIVIC, Inc P.O. Box 5711 Balboa Island, CA 92662 Phone: 949- 675 -0501 Fax: 949 -675 -0508 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.). TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, 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, 12 28. 29. 30. 31. 32. 33. 34. 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. 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. 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. 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. 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. 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. 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. 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 13 Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: O IC F THE TY TTORNEY: B David R. Hunt City Attorney ATTEST: By: ap9, A ,, Leilani Brown, City Clerk c, CITY OF NEWPOR F,n CH, A Mupic al C r r .17 By:.. ��dwardD. eli Mayor CONSULTANT: California Marketing Conch, Inc. y Fort, President By: It eina1ncial Officer) Title. t � Print Name: Attachments: Exhibit A — Scope of Services 14 V loll OCTOBER JANUARY JANUARY 2010 NEWPORT BEACH RESTAURANT WEEK (Updated: December 2009) California Marketing Concepts, Inc. Work Agreement Renewal October 2009 - March 2010 Respectfully SuAmltted By: California Marketing Concepts, Inc. 1860 BaysIde Drive Corona del Mar, CA 92626 (949) 676-0801 www AskCMC.corn Ms. Leigh M. DeSantis Planning Department The City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Leigh: I truly appreciate the opportunity to continue to work with The City of Newport Beach and the Newport Beach Restaurant Association BID to develop The 2010 Newport Beach January Restaurant Week. The winter campaign will take place January 22n0 -28�. Based on prior discussions, I would like to re- submit the following work agreement renewal between California Marketing Concepts, Inc. (CMC Inc.), and The City of Newport Beach (The City) for the next six (6) months retroactive from October 151, 2009 through March 3141, 2010. California Marketing Concepts, Inc. (CMC Inc.) will develop and execute an approved Business Plan of Work and Budget for The Newport Beach Restaurant Week Campaign. CMC Inc. to provide ongoing project management, marketing, public relations, event coordination and sponsorship development service for (6) six months retroactive for the period of October 1s, 2009 - March 3151, 2010. CMC Inc. will evaluate and execute business and marketing program opportunities with consent and approval from The Association's Board of Directors on behalf of Newport Beach Restaurant Week (NBRW) for a marketing & public relations retainer total not to exceed $21,000 plus $1,800 as approved reimbursable expenses with a maximum commission incentive not to exceed $27,000 for the (6) six month agreement period. An additional project management, coordination and administration hourly payment will be paid to CMC, Inc. for a total not to exceed $21,450 in the (6) six month agreement period. In order to develop, manage, market and execute a comprehensive campaign for The Newport Beach Restaurant Week Campaign on behalf of The City and Association, California Marketing Concepts, Inc. (CMC Inc.) will require the following: MARKETING A PUBLIC RELATIONS - QUARTERLY RETAINER The City and Association shall pay to CMC Inc. as compensation for full performance of services pursuant to this Agreement for services retroactive from October 1st, 2009 through March 3151, 2010 (the "Retainer Period ") or a total not to exceed $21,000. CMC Inc. shall be paid two quarterly payments of $10,500 (the "Quarterly Payment*) retroactive from October 1st, 2009. The Payment shall be paid once a quarter and mailed to CMC Inc. at the address stated on the signature page hereto no later than the last day of the month. The Payment will cover all ongoing consulting, execution and marketing activities as outlined in the attached proposal. (See Attachment A) The payment is based on CMC Inc. accomplishing specific responsibilities based on an estimated (45- 50) hours of work per month (or a total of between 270 -300 hours during the Retainer Period, as months leading up to Restaurant Week may require more than 50 hours and other months may require less than 45 hours per month). 2 SPONSORSHIP DEVELOPMENT- INCENTIVE BONUS PLAN CMC Inc. shall develop, solicit and secure event sponsorships. CMC Inc. will be paid a bonus as incentive for all cash sponsorships development as determined by The Association in advance that the cash sponsorship results from CMC Inc.'s effort as follows: SPONSORSHIP DEVELOPMENT CMC INC. ACCUMULATIVE INCEItnyE BONUS PLAN REVENUE GENERATED $ 10,000 $1,000 Bonus Paid $ 20,000 $1,500 Bonus Paid $ 30,000 $2,000 Bonus Paid $ 40,000 $2,500 Bonus Paid $ 50,000 $3,000 Bonus Paid $ 60,000 $3,500 Bonus Paid $ 70,000 $4,000 Bonus Paid $ 80,000 $4,500 Bonus Paid $ 90,000 $5,000 Bonus Paid CMC Inc. bonus payment is incremental to actual cash revenue earned. Maximum bonus pay out by the Association is $27,000 if $90,000 is earned in the twelve (12) month period. City, Bureau & NBRA BID Supplemental Funding is not included in bonus incentive program • In -Kind sponsors CMC Inc. secures and develops are not included in bonus incentive program. • Restaurant buy in fees collected are included in bonus incentive program • It is the responsibility of CMC Inc. to seek clarification in advance for approval. • Any bonuses to be paid hereunder are due and payable within sixty (60) days of the deposit of the funds against which a commission is claimed. MARKEnNO CooRDINATN)N ✓IADMIM157RATIVE SERVICE - HouRLY PAYMENT CMC Inc. will provide overall project management and execution of additional campaign coordination and administrative services at a rate of $30 per hour retroactive from Octoberl5r, 2009 - March 31n, 2010 (The "Hourly Payment" Period) or a maximum not to not to exceed $21,450. The hourly payment will cover all ongoing marketing coordination and administrative activities as outlined in the attached proposal. (See Attachment A) The hourly payment is based on CMC Inc. accomplishing specific responsibilities based on an estimated 25 -30 hours of work per week (or, a total of approximately 715 hours during the Retainer Period, as months leading up to the Restaurant Weeks may require more than 27.5 hours and other months may require less than 27.5 hours per week). *Quarterly CMC Inc. Activity Reports to reflect an appropriate schedule of activities and results. All graphic design fees and additional outside vendors will be billed direct to The Association in accordance with the approved budget. MISC. EXPENSES The company will reimburse CMC Inc. on a monthly basis for all out of pocket expenses incurred in the performance of work executed on behalf of the NBRA. Such out of pocket expenses include, but, are not limited to reimbursements postage, photocopying, messenger, printing, seminars etc. Out -of- pocket expenses are not to exceed $300 per month without advance client approval. Out -of- pocket costs and expenses are payable upon invoice and specific receipts submitted. ACCOUNr EVALUATION MOntlitty Account evaluation will be conducted between CIVIC Inc. and the association on a monthly basis to ensure the success of the overall comprehensive marketing program. CONFLICT OF INMREST CLAUSE Ongoing 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. This would not prohibit the Consultant from presenting proposals and /or participating in discussions related to 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 Restaurant Association. Consultant shall indemnify and hold harmless Restaurant Association for any and all claims for damages resulting from Consultant's violation of this Section. Each November, or at the start of a new contract, the Consultant shall disclose any existing work agreements, contracts, or other forms of compensation with vendors of the Restaurant Association. If a new work agreement, contract, or other form of compensation with an existing or proposed vendor of the Restaurant Association should develop during the contract year, the Consultant shall disclose the relationship prior to the acceptance of any contract or budget allocation by the Restaurant Association. TERMINATION CLAUSE Ongoing Either party CIVIC Inc. or the association can terminate this work agreement for any reason with a thirty-day advance notice. ENnm AaRmAENT This Agreement together with any Exhibit(s) attached hereto and incorporated herein by reference contain the entire and exclusive agreement of the Parties hereto. No prior written or oral negotiations, representation, inducements, promises, correspondence, memoranda, or agreements between them originating before the date of this Agreement regarding the subject of this Agreement not embodied herein shall be of any force or effect. The Parties intend the terms of this Agreement to be the final expression of their Agreement and it may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. No extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this Agreement. No express or implied warranties, covenants, or representatives have been made concerning the subject matter of this Agreement unless expressly stated herein. The Parties hereto have not relied on any prior or contemporaneous written or oral representations in deciding to enter this Agreement. The City of Newport Beach total contribution toward this entire agreement shall not exceed $50,000. Additional funds to support this entire agreement and The Newport Beach Restaurant Week Bi- Annual Campaigns shall come from the NBRA, restaurant "buy in" fees and sponsor revenue. The entire amount paid to CIVIC Inc. shall not exceed $00 in the five (5) month agreement period. 4 NOnCES All notices, requests, demands, payments and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by facsimile transmission (with subsequent letter confirmation by mail) or three days after being mailed by certified or registered mail, postage prepaid, return receipt requested, to the parties, their successors in interest or their assignees at the addresses listed on the signature pages hereto, or at such other addresses as the parties may designate by written notice in the manner aforesaid. MowicAnoN This Agreement may not be superseded and none of the terms of this Agreement can be waived or modified except by an express written agreement signed by all parties hereto. Any oral representations or modifications concerning this Agreement (including any fully executed oral agreements or modifications) shall be of no force or effect unless contained in a subsequent written modification signed by all parties. No= of LAW This Agreement shall be governed by and construed and enforced in accordance with the internal substantive laws (and not the laws of conflicts) of the State of California. SEVERABIL Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or enforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or unenforoeability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Emnoymm AND YoLummilms of GMC INC. CIVIC Inc. shall be responsible for the compensation, benefits, taxes and all other such legal requirements of all of its employees and volunteers and the association shall have no such responsibilities unless otherwise provided in writing by The Association. In the event that either party seeks to enforce its right under this Agreement, the prevailing party shall be entitled to recover reasonable fees (including attorneys' fees), costs and other expenses incurred in connection therewith, including the fees, costs and expenses of appeals. 5 OCTOBER JANUARY NEWPORT BEACH RESTAURANT WEEK JANUARY "10 (Attachment -A) CMC INC. PRIMARY OBJECTIVE$ COMPRENENSIVE SCOPE OF WORK Project Managam K Marketing & Pablic Relations - Retahm Adminkrtrative 8ervlee i Coordination - Hotay BOling Updated: December 2009 Respectfully Submitted By: California Marketing Concepts, Inc. 1550 Bayside Drive Corona dal Mar, CA 92625 (949) 675-0501 NEWPORT U AN*f OCTOBER JANUARY (Attachment A) IMMMAKFDATES • January 22w -28,�, 2010 • NBRW Orientation -January 6'h, 2010 • Gala VIP Media Launch Event - January 13th, 2010 • Launch Pre Party Event - January 21st, 2010 • The City of Newport Beach and NBRA BID to own NBRW promotion and campaign materials including: brand, logos, ads, artwork event names, tag lines, etc. STRAMM PARTNERS • Newport Beach Restaurant Association BID & City of Newport Beach • Corporate, Media, Community & Industry Sponsorship Campaign • Community & Industry Partners: Visit Newport Inc, Irvine Company, NB Chamber, CdM Chamber, BIDs, CRA, & AOCCVB • Produce a successful Newport Beach Restaurant Week campaign in January 2010 that generates incremental revenue and brands Newport Beach as a dining destination, which everyone will benefit from - the patrons, the restaurants and the City. • Plan, direct, and coordinate NBRW operational activities at the highest level of management with the help of sub- contractors, the City and NBRA BID Board of Directors. Determine and formulate marketing programs and policies providing the overall direction of Newport Beach Restaurant Week within the guidelines set up by the NBRA BID Board of Directors. • Determine the demand for NBRW. Identify NBRW benefits, potential customers and competition. Develop NBRW pricing and marketing strategy with the goal of maximizing participation & profit share of the market. Ensure that restaurants and sponsors are satisfied. CMC INC. PRIMARY OBIECIMM - CONT, • Develop & execute an aggressive and tangible marketing and public relations campaign to brand Newport Beach as a dining destination, increase sales revenues, drive traffic to NewportBeachDining.com, create community awareness and leverage strategic partnerships. • Oversee NBRW campaign development, results and monitor trends that indicate the need for new marketing & public relation programs, promotions and services. • Plan and direct media advertising policies and programs or produce collateral materials, such as POP Displays, brochures, check stuffers, posters, contests, coupons, or give - aways, to create extra interest in NBRW. • Plan and direct public relations policies and programs or produce print, online and broadcast editorial coverage and publicity to create extra interest in NBRW. • Plan and direct public relations and sponsorship programs designed to create and maintain a favorable public image for NBRW. Plan and direct sponsorship programs and activities designed to solicit and maintain funds. • Increase restaurant business and sales revenues during The Restaurant Week. The NBRW campaign to take place during a relatively slow time of the year and provide new and exciting benefits to NBRA BID restaurants. • Develop valuable media and community partnerships as a result of Restaurant Week. Develop valuable hospitality industry, purveyor and corporate sponsors as a result of Restaurant Week. OCTOBER JANUARY Continued) f'i'll.' 111 Peggy • CIVIC Inc. Overall Project Management, Marketing, Public Relations, Restaurant Participation & Sponsorship Development OVERALL PROJECT RIANAGEMENT • Assign Responsibilities to Sub - Contractors & Volunteers • Compile & Evaluate NBRW Post Campaign Survey Feedback & Results • Confer with City, NBRA BID Board Members, Restaurant Owners, Sponsors & Vendors to Discuss Issues, Coordinate Programming, Develop Marketing Activities, & Resolve Problems • Develop & Manage NB Restaurant Week Charity Component • Develop Agendas, Informational Meetings & Subcommittee Meetings • Manage Dynamic Budget & Cash Flow in Conjunction with NBRA BID Board of Directors • Manage Dynamic Project Schedules & Production Timelines • Manage NBRW Executive Working Subcommittee Comprised of NB Restaurant Owners • Manage NBRW Participants, Strategic Partners, Sponsors, Project Coordinators, Sub - Contractors & Vendors • Negotiation & Strategic Planning of NBRW Partnerships, Special Events & Promotions • Prepare & Present Reports Concerning Marketing Activities, Expenses, Budgets, & Other Items Affecting Business or Program Services • Prepare NBRW Budgets for Approval, Including Funding & Implementation of Programs • Promote Restaurant Week Experience Specific To Each NB Neighborhood • Review & Present Reports & Proposals to Recommend Approval or to Suggest Changes • Secure Internal Active Participation of Newport Beach Restaurants TASKS -COMP OVERALL MUKEnme PLAN REMMARMUff • Compile Lists & Promotional Pieces Describing NBRW Benefits & Offerings • Conduct Economic & Commercial Surveys to Identify Potential Markets to Promote NBRW • Coordinate & Participate in Promotional Activities & Community Events, Working with Strategic Partners, Sponsors, Media Outlets, and Restaurant Owners to Market NBRW • Create & Execute Post NBRW Bounce Back Promotion • Create Newport Beach Restaurant Week Identity Consistent Brand • Create Newport Beach Restaurant Week Marketing Collateral Consistent Brand • Develop & Execute Aggressive Ongoing Marketing Campaign to Promote NBRW • Develop & Execute Aggressive Ongoing Public Relations Campaign to Promote NBRW • Develop & Execute NBRW Restaurant Marketing & Promotion Plan • Develop Internet Marketing Opportunities Driving More Consumers to NBRA BID Official Web Site www.Newi)ortBeachDining.com Leveraging Online Reservation System • Develop Internet Marketing Opportunities to Leverage Online Reservation System • Develop Social Networking & Media Marketing Campaigns Driving More Consumers to: www.Newr>ortBeachDining.com • Expand & Execute Marketing & Publicity Campaign in Local, Tourism and Hospitality Markets • Expand & Execute Media Advertising Campaign Through Partnership Marketing Opportunities • Formulate, Direct & Coordinate Marketing Activities & Policies to Promote NBRW with Team. • Identity, Develop, & Evaluate Marketing Strategy, Based on Knowledge of NBRW Objectives, Market Characteristics, Cost & Markup Factors • Use Sales Forecasting & Strategic Planning to Ensure Success & Profitability of NBRW Analyzing Industry Developments & Monitoring Market Trends SPONSORSHIP PROOPAIIIIII • Develop Corporate Sponsorship Package & Benefits • Develop Internal Marketing & Sponsorship Package • Develop NBRW Sponsor Stewardship Report • Secure Industry & Corporate Cash Sponsors on behatf of NBRW • Secure Media In -Kind Sponsorships on behalf of NBRW • Secure Minimal Buy -In Cost & Benefits For NBRW Restaurant Participants • Service All NBRW In -Kind Media, Corporate Sponsors & Industry Purveyors • Solicit Corporate & Industry Purveyors To Secure Strategic Partnerships • Build City. CRA, Visit Newport Inc. & Chamber of Commerce Support • Develop Restaurant Participation & Cooperation • Secure Event, Flag & Banner Permits • Secure Food Industry Purveyor In -Kind Contributions • Secure In -Kind Contributions & Volunteer Support • Secure NBRA BID & City Funding • Secure Restaurant In -Kind Contributions - Launch Events, etc. • Create & Display Citywide Flags, Banners & Signage • Create Newport Beach Restaurant Week Display Material & Posters • Create Newport Beach Restaurant Week Postcard & Insert Production • Develop & Distribute Orientation & Marketing Packets for Participants • Develop & Execute Ad Campaign Creative & Graphic Design • Develop NBRW Internal Sign Up Packets & Restaurant Marketing Kits • Develop Newport Beach Restaurant Week Identity Package Design • Initiate Direct Mail Campaigns, Inserts & Postage TASKS -CONi: • Develop Social Networking Identity on Internet Driving Traffic to NBRW & www.NewoortBeachDlnl com • Develop Strategic Internet Cross Promotional Campaigns & Link Alliances • Strategize & Oversee NBRW` Blog Posts on www.NewoortBeschDining oom • Strategize & Oversee NBRW Web Site Refresh - NBRW Announcements, Menus, Events, etc. • Develop & Strategize NBRW VIP Text Club Campaigns • Develop & Strategize Strategic Social Media Campaign to Leverage Publicity, Build Brand Awareness & Generate Participation in NBRW • Develop Strategic Social Media Marketing Campaign & Cross Promotions on Face Book, Twitter, MySpace & Foodie Blogs • Discuss & Negotiate Topics Such as Contracts, Selection of Advertising Media, or Messaging to be Advertised • Gather & Organize Information to Plan Advertising Campaigns • Inspect Layouts, Advertising Copy & Edit Scripts, Audio & Video Tapes, & Other Promotional Material for Adherence to Media Specifications • Plan & Prepare Advertising & Promotional Material to Increase Participation in NBRW • Prepare & Negotiate Advertising & Media Sponsor Contracts • Read Trade Journals & Professional Literature to Stay Informed on Trends, Innovations, and Changes that affect Media Planning • Direct & Manage LA Times NBRW Spadea Wrap Campaigns • Manage City Water Bill Insert Campaign - November & December • Manage Insert Campaigns with Media Partners • Manage Southern California Online Ad Campaigns - OC Register, LA Times, Daily Pilot etc. • Manage Southern California Print Ad Campaigns - OC Register, LA Times, Daily Pilot etc. PRINT A ONLINE MEDIA PARTNERS • 944 Magazine • Churm Publishing OC Metro, Metro Menus • Coast Magazine • Dining Out Magazine • Laguna Beach Independent Newspaper • LiveOC Magazine • Los Angeles Times Community News - Daily Pilot, HB Independent, LB Coastline Pilot • Newport Beach Magazine • OC Weekly Newspaper • Orange Coast Magazine • Riviera Magazine BROADCAST RADIO PARTNERS • 101.5 KOCI Radio • 92.7 JILL FM Radio • Develop PSA Radio Spots KABC Talk Radio - Chef Talk • DailyCandy.com . • •. • • • OCMenus.con • Opentable.com • Yelp.com • Develop Thirty Second Promo Spot - Newport Production Company • KOCE -TV Potential Sponsorship Opportunity • NB TV News • PSA Spots - Local Cable, Comcast Time Warner Cable TV • Act as Official NBRW Spokesperson • Coordinate & Invite Media To Newport Beach Restaurant Week Events • Coordinate Interviews with Participating Restaurant Chefs & NBRA Board of Directors • Develop & Leverage Ongoing Publicity Campaign to Promote NBRW • Develop & Maintain NBRW Image & Identity, Which Includes the Use of Logos & Signage • Develop Newport Beach Restaurant Week Press Kit • Develop Pre & Post- Publicity Campaign • Develop Radio & Cable Packages with Media Partners • Establish & Maintain Effective Working Relationships with Local & Municipal Government Officials & Media Representatives • Evaluate Advertising & Promotion Programs for Compatibility with Public Relations Efforts • Execute & Supervise & The Activities of Public Relations Campaign • Expand Editorial Coverage Through Ad Buys & Editorial Calendar Research • Identify Main Campaign Target Demographic Groups & Audiences & Determine the Best Way to Communicate Publicity Information to Them. • Manage & Oversee NBRW Photography & Video Clips Consistent with Brand • Manage Relationship with Business Newswire Services • Manage Relationship with Online Media Monitoring & Clipping Services • On -Going Media Servicing on Behalf of NBRW PR Opportunities • On -Going NBRW Press Release Development & Media Pitching • Write Interesting & Effective Press Releases & Prepare Information for Media • Business Newswire Releases: All Southern California Media Outlets • Local Print Newspapers and Periodicals: Los Angeles Times, OC Register, Daily Pilot, LB Coastline, HB Independent, The Current, Riviera Magazine, Coast Magazine, Orange Coast Magazine, Newport Beach Magazine, 944 Magazine, OC Live, OC Weekly, etc. • Consumer Tourism Publications: Sunset Magazine, Where Magazine, Local Concierge, etc. • Meeting & Corporate Market Publications: i.e.: Meetings in the West, Convene, etc. • Business Publications: i.e.: OC Metro, OC Business Journal, Local Restaurant News • Food & Wine Publicatiorm Dining Out, Metro Menus, Dining & Destinations, etc. • Restaurant & Hospitality Industry Publications: Great Taste, Restaurant Industry • Local Association Outreach & Newsletters: Balboa Beacon, NB & CdM Chamber Newsletter, NBCVB & AOCVB Newsletter & Visitor Guides, etc. 7 TAM -CONT: • Coordinate Interviews with Restaurant Chefs, City Officials & NBRA Board of Directors • Coordinate Media To Attend Restaurant Week Press Conference • Produce All Aspects Of NBRW Press Events to Leverage Publicity Coverage • City Council Meeting Presentations & Ongoing Meetings • Conduct Presentations to Promote NBRW in Community • Coordinate Meetings & Presentations to Promote NBRW in Community • Develop Grassroots Community Relations Marketing Plan • Direct & Answer Consumer Messaging & Questions Re: NBRW • Recruit Community Volunteers Outreach Campaign • Produce & Direct All Aspects NBRW Special Events on Day of Event • Produce NBRW Orientations For Restaurant Owners - Winter • Produce Restaurant Week Gala Launch Party - January • Produce Restaurant Week Pre & Post Party Sponsor Events • Arrange Venue, Audio - Visual Equipment, Transportation, Displays, & Other Needs • Conduct Post -Event Evacuations to Determine How Future Events Could be Improved • Confer with Partners, Staff & Volunteers at Event Site to Coordinate Details • Confirm Media Attendance at Gala Launch Events • Consult with NBRA BID Board and Restaurant Owners to Determine Objectives & Requirements for NBRW Events Such as Orientations, Media Events, Gala Launch Party, & NBRW Pre Parties • Coordinate All Aspects Of NBRW Special Events • Coordinate Services for Events, Such as Facilities, Catering, Signage, Displays, Special Needs Requirements, Printing & Event Security • Develop Strategy, Logistics and Negotiate Event Detail • Manage Charity Component & Work With Official Benefactor If Appropriate • Monitor Program & Event Activities to Ensure Compliance with Applicable Regulations & Laws, Satisfaction of Participants, & Resolution of any Problems that Arise. OCTOBER JANUARY illv l _!. E[ itta _ h. 1;I fi7 :. ll .l'. �.. CNIC l�. WORK AGREW ill (Attachment A - Continued) V V.,! l I .i l:. 1 il!ii. 7 Cut •ll. :l 7 - '`1. .:J Tr y raj.v .r CIVIC Inc. Associate (s) COMPREHENSIVE Perform routine clerical and administrative functions such as drafting correspondence, scheduling appointments, organizing and maintaining paper and electronic files, or providing information to callers. Provide ongoing NBRW administrative service, coordination & support to NBRW Director/ Project Manager; conduct research, prepare statistical reports, handle information requests. Perform some duties too varied and diverse to be classified in any specific office clerical category requiring limited knowledge of NBRW, office management systems and NBRA BID procedures. Clerical duties may be assigned in accordance with the office procedures of individual marketing programs and may include a combination of answering telephones, bookkeeping, typing or word processing, office machine operation and filing, etc. TASKS: • Answer Telephones & Provide Information to Callers, Take Messages, or Transfer Calls to Appropriate Individual • Assist with Compiling Lists Describing NBRW Marketing programs, special events & Promotions • Assist with Copying Agendas, Handouts & Make Arrangements for Committee, NBRA BID Board, & Other Meetings • Communicate with Customers & Other Individuals to Answer Questions, Disseminate or Explain Information & Address Complaints • Compile, Copy, Sort & File Records of Activities, Business Transactions, & Other Activities • Compute, Classify, Update Databases & Record Data to Keep Records Complete • File & Retrieve Official Documents, Records & Reports • Greet Visitors & Callers, Handle Their Inquiries & Direct Them to the Appropriate Person or Resource According to their Needs • Learn to operate new office technologies as they are developed & implemented TASKS - CM. KBRWARMINNMAMASSMANCE • Maintain & update filing, inventory, mailing, and database systems, either manually or using a computer • Make Copies of Correspondence & Other Printed Material • Open, Sort & Distribute Incoming Correspondence, Including Faxes & Email • Operate & Program Office Equipment Such as Fax Machines, Copiers & Phone Systems, & Scanners, Voice Mail Systems & Personal Computers • Operate Computer Programs to Record, Store & Analyze Information • Perform General Office Duties Such as Filing, Answering Telephones & Handling Routine Correspondence • Perform General Office Duties Such as Ordering Supplies, Maintaining Records Management Systems & Performing Basic Bookkeeping Work • Prepare Invoices, Reports, Memos, Letters, Financial Statements & Other Documents using Word Processing, spreadsheet, database, or presentation software • Prepare Responses to Correspondence Containing Routine Inquiries • Set Up & Maintain Paper & Electronic Filing Systems for Records, Correspondence & Other Material • Use Computers for Spreadsheet, Word Processing, Database Management & Other Applications • Assist with Coordinate NBRW Official Mailings • Assist with Coordination of NBRW Participant Orientation Meetings • Assist with Restaurant & Participant Servicing & Correspondence • Follow Up Contact & Servicing with NBRW Participants Re: Sign Ups, Paperwork, Menu Development, In-Store Display & Promotion, Deliveries, etc. • Assist with Coordination of NBRW Gala Event, Pre Party Events • Assist with Coordination of NBRW Press Conference • Assist with Coordination of NBRW Volunteers • Coordinate NBRW Sub - Committee Agendas • Assist with NBRW Social Marketing Campaign • Assist with NBRW Web Site Refresh - Collect & Organize Content, etc • Assist with NBRA Online Reservation Feature Updates in Conjunction with Vendor • Assist with Web Site Updates & Refresh for NBRW • Misc. Research & Postings on Blogs & Social Networking Sites • Update & Proof NBRW Content, & Link Alliances • Assist with Coordinating Marketing Activities to Promote NBRW Working with Project Manager & NBRW Director • Assist with Coordinating NBRW Database Management • Assist with Coordination of NBRW Vendors • Assist with Execution of Marketing Strategy Based on Knowledge of NBRW Objectives, Trends & Budget • Assist with Sponsor Servicing and Correspondence • Assist with coordination & participate in promotional activities & special events, working with restaurants, sponsors and vendors, to market NBRW • Assist with NBRW Survey, Results, & Misc. Servicing 10 • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT 4qd i Agenda Item No. 9 December 8, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Leigh M. De Santis, Economic Development Administrator, 949 -644 -3207, Idesanbs @newportbeachca.gov SUBJECT: January 2010 Restaurant Week Professional Services Agreement RECOMMENDATION: Waive the requirements of City Council Policy F -14, and approve and authorize the Mayor and City Clerk to sign the January 2010 Restaurant Week Professional Services Agreement between the City and California Marketing Concepts. DISCUSSION: Background: The Newport Beach Restaurant Association BID organized a Restaurant Week in both January 2007 and 2008. In 2009 the NBRA organized two Restaurant Weeks, one in January, as in previous years, and one in October. The City has financially supported the events. The NBRA hopes the Restaurant Weeks may eventually become self sustaining and they believe that making them a bi- annual event may hasten that possibility. The City Council approved $100,000 in the 2009 -10 budget to support two Restaurant Weeks in 2010, one in January and one in October. At the meeting of November 24, the City Council considered an agreement between the City and California Marketing Concepts (CIVIC) to provide marketing support for and project management of the two Restaurant Weeks in 2010. The report for that meeting is attached. The Council had concerns about a contract that would continue into the next fiscal year, especially because staff requested a waiver of the requirements of City Council Policy F -14 because we had recently learned that the BID does not have the authority to contract on its own. The Council directed staff to amend the proposed agreement so that its term is limited to this fiscal year and it covers only the January 2010 Restaurant Week. The Council also directed that a request for proposals be issued for marketing and project management of the October 2010 Restaurant Week. Analysis: Jan 2010 Restaurant Week PSA December 8, 2008 Page 2 For January 2010, staff is recommending the agreement be for the period October 1, 2009 through March 31, 2010. These dates encompass when work began through completion of the final evaluation and closing of accounts for the January 2010 event. The October 2010 event will be subject to a separate contract, which will be in compliance with Policy F -14. The attached Professional Services Agreement is for $71,250. The source of the funds will be the $50,000 already approved and appropriated for this purpose by the City Council as part of the budget adoption in June 2009. Any expenses in excess of the City budget commitment, or commissions earned by CIVIC, will be paid from NBRA budgettlevy or from the sponsorships. The City's liaison to the NBRA will be monitoring and signing expenditures under the PSA. Environmental Review Approval of the Agreement is not a project as defined by CEQA Fundinq Availabilitv: The City Council, as part of the budget process in June 2009, approved $100,000 in funding to the Restaurant Association BID to underwrite the cost of the two restaurant week events in 2010 - January and October. This PSA would expend half of the funding. Prepared by: Submitted by xilzz�, )4" eeigIf M. De Santi Sharon Z. Wood, Economic Development Administrator Assistant City Mz Attachments: 1. Staff Report for November 24, 2009 2. Professional Services Agreement 0 0 PROFESSIONAL SERVICES AGREEMENT WITH CALIFORNIA MARKETING CONCEPTS, INC. FOR TWO RESTAURANT WEEK CAMPAIGNS IN CALENDAR YEAR 2010 THIS AGREEMENT is made and entered into as of this 8h day of December 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City") and CALIFORNIA MARKETING CONCEPTS, INC., a California Corporation ( "Consultant "), 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. City requires event planning, event administration, project marketing and sponsorship development services for City's January 2010 Restaurant Week. C. City desires to engage Consultant to provide event planning, event administration, marketing and sponsorship development services for City's January 2010 Restaurant Week. Planning, execution and close -out of the January 2010 Restaurant Week shall constitute the "Project ". D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of this Project, shall be Peggy Fort. F. The City has solicited and received a proposal from Consultant, reviewed the previous experience and evaluated the expertise of Consultant, and recommends Consultant to City 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 1" day of October, 2009 , not the above written date, and shall terminate on the 31s` day of March 2010, unless terminated earlier as set forth herein. 0 0 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. 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. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and maximum bonus, if earned, shall not exceed Seventy-One Thousand Two Hundred Fifty and No /100 Dollars ($71,250), 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. MARKETING & PUBLIC RELATIONS From October 1, 2009 through March 31, 2010, City shall pay Consultant for all marketing and public relations services including, but not limited to, ongoing consulting, execution and marketing activities as outlined in Exhibit A, at a rate of $3,500 per month in accordance with the provisions of this Section and Exhibit A. Consultant's compensation for all marketing 2 0 0 and public relations tasks performed in accordance with this Agreement shall not exceed Twenty-One Thousand Dollars and No Cents ($21,000.00) without prior written authorization from City. 4.2 PROJECT MANAGEMENT City shall pay Consultant for overall project management and execution of additional campaign coordination and administrative services tasks as outlined in Exhibit A, at an hourly rate of Thirty Dollars ($30.00) per hour in accordance with the provisions of this Section and Exhibit A. Consultant's compensation for overall project management and execution of additional campaign coordination and administrative services tasks performed in accordance with this Agreement shall not exceed Twenty-One Thousand Four Hundred Fifty Dollars and No Cents ($21,450) without prior written authorization from City. 4.3 REIMBURSABLE ITEMS City shall reimburse Consultant up to Three Hundred Dollars and No Cents ($300) 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. Out -of- pocket expenses in excess of $300.00 per month shall require advance written approval by City. 4.4 SPONSORSHIP DEVELOPMENT - INCENTIVE BONUS PLAN Consultant shall develop, solicit and secure event sponsorships. Subject to the exclusions set forth below, Consultant shall be paid a bonus as an incentive for all cash sponsorships actually received by the City for the Project in advance of the event, provided that the cash sponsorship is directly attributable to Consultant's efforts as follows: SPONSORSHIP DEVELOPMENT INCENTIVE BONUS PLAN CIVIC INC. ACCUMULATIVE REVENUE GENERATED $ 10,000 $ 20,000 $ 30,000 $ 40,000 $ 50,000 $ 60,000 $ 70,000 $ 80,000 $ 90,000 $1,000 Bonus Paid $1,500 Bonus Paid $2,000 Bonus Paid $2,500 Bonus Paid $3,000 Bonus Paid $3,500 Bonus Paid $4,000 Bonus Paid $4,500 Bonus Paid $5,000 Bonus Paid The maximum bonus Consultant shall be entitled to receive under the incentive bonus plan shall be Twenty Seven Thousand Dollars and No 3 0 0 Cents ($27,000.00). The Parties hereto expressly agree that the bonuses called for hereunder shall be paid to Consultant from cash sponsorships actually received by the City. The Parties also expressly agree that the following shall be expressly excluded and not be considered to be cash sponsorships for purposes of determining the bonus set forth herein: A. Any funding or cash sponsorships received from the City, Visit Newport Beach, Inc. (formerly the Newport Beach Conference and Visitors Bureau), and the Newport Beach Restaurant Association. B. Any In -Kind sponsor Consultant secures and develops. 4.2 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.3 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 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. 4.4 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 at an hourly rate of Thirty Dollars ($30) per hour. 4.5 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this 4 Agreement, no further payments shall be made until the conclusion of Restaurant week. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated PEGGY FORT to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Economic Development Department. LEIGH M. DE SANTIS 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. 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. 5 0 0 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 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. 6 0 0 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 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. 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 7 0 0 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. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and 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. 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 0 0 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 F 0 0 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, map, record, plan, document and other writing produced (hereinafter "Documents'), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. 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 10 0 0 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 borne 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 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: Leigh M. De Santis 11 0 With a copy to: Planning Department City of Newport Beach PO Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Phone: 949 -644 -3207 Attention: President NBRA P.O. Box 2295 Newport Beach, CA 92659 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Peggy Fort CIVIC, Inc P.O. Box 5711 Balboa Island, CA 92662 Phone: 949 - 675 -0501 Fax: 949 -675 -0508 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 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, 12 0 0 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 govem. 32. 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. 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 13 0 0 Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY David R. Hunt City Attorney ATTEST: Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation Edward D. Selich Mayor CONSULTANT: California Marketing Concepts, Inc. By:. By: Titl Peggy Fort, President (Financial Officer) Print Name: Attachments: Exhibit A — Scope of Services 14 t. • P10'J 2 4 2999 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 18 November 24, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Leigh M. De Santis, Economic Development Administrator, 949 - 644 -3207, Idesantis @newportbeachca.gov SUBJECT: 2010 Restaurant Weeks Work Agreement RECOMMENDATION: Waive the requirements of City Council Policy F -14, and approve and authorize the Mayor and City Clerk to sign the 2010 Restaurant Weeks Work Agreement between the City and California Marketing Concepts. DISCUSSION: Background: The Newport Beach Restaurant Association BID organized a Restaurant Week in both January 2007 and 2008. In 2009 the NBRA organized two Restaurant Weeks, one in January, as in previous years, and one in October. The City has financially supported the events. The NBRA hopes the Restaurant Weeks may eventually become self sustaining and they believe that making them a bi- annual event may hasten that possibility. Analysis: In 2007 and 2008, the NBRA BID contracted directly with California Marketing Concepts (CMC) to provide marketing support for and project management of Restaurant Week. In 2009 staff recommended that the City become a party to the agreement because of the amount of City support being provided and because the two Restaurant Week events were scheduled to occur in two different fiscal years. The City can encumber funds that will be expended over two fiscal years. The BID, however, is 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. For 2010, staff is recommending an agreement • 2010 Restaurant Weeks Work Agreement November 24, 2008 Page 2 i between the City and CMC, in light of limitations on the BID's contracting abilities that have recently come to our attention. The NBRA Board has approved this Agreement. Under the Agreement CIVIC will, with the assistance of a NBRA sub - committee, plan two restaurant week events. In addition to planning, CIVIC is charged with the management and execution of the events. CMC's tasks will include the following. • Solicit NBRA members to participate in restaurant week • Prepare all the written materials for participants • Prepare all the marketing materials for the event, and for the public • Solicit and work with sponsors for restaurant week • Plan and conduct the participant meetings, gala kick -off event and concluding event • Conduct a post event review CIVIC reports securing over $250,000 of tangible in -kind sponsorships for January 2009 and $30,000 in cash support. Close to 70 restaurants participated in the January 2009 event. Post campaign surveys reported the highest sales volume week of the year, excluding private events, for what is traditionally a slow business period. Sales were up an average of 21% from Restaurant Week 2008 figures. The attached Professional Services Agreement clearly limits the City's liability to a maximum of $100,000 already approved and appropriated for this purpose as part of the budget adoption in June 2009. The City's liaison to the NBRA will be monitoring and signing expenditures under the PSA. Legal Review: The Office of the City Attorney has advised us that the NBRA contract should have followed City Council Policy F -14 Authority to Contract for Services. This policy provides that proposals should be invited from three qualified consultants, and the most qualified firm selected before the cost of services is negotiated. In this case, staff followed past practice with BID contracts, which has been to allow the BIDs to select consultants through whatever process they deem appropriate. If the City Council agrees that continuing past BID practice for this contract is appropriate for continuity, especially since planning for the January Restaurant Week is well underway, the Council may waive the requirements of Policy F -14 and approve of the PSA. Staff is working with the Office of the City Attorney to bring all of the BID contracts into compliance with City policies. Environmental Review: Approval of the Agreement is not a project as defined by CEQA • 2010 Restaurant Weeks Work Agreement November 24, 2008 Page 3 Funding Availability: The City Council, as part of the budget process in June 2009, approved $100,000 in funding to the Restaurant Association BID to underwrite the cost of the two events in 2010. Prepared by: Submitted by: 'J Leigh M. De Santis, Sharon Z. Wood, Economic Development Administrator Assistant City Ma ger Attachment: Professional Services Agreement 9 0 PROFESSIONAL SERVICES AGREEMENT WITH CALIFORNIA MARKETING CONCEPTS, INC. FOR TWO RESTAURANT WEEK CAMPAIGNS IN CALENDAR YEAR 2010 THIS AGREEMENT is made and entered into as of this day of 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City ") and CALIFORNIA MARKETING CONCEPTS, INC., a California Corporation ( "Consultant "), 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. City requires project marketing and sponsorship development services for City's biannual Restaurant weeks. C. City desires to engage Consultant to provide marketing and sponsorship development services for City's biannual Restaurant Weeks. The first Restaurant Week is to take place on January 22 -28, 2010 and the second Restaurant Week is to take place in September or October, 2010. Together the two Restaurant Weeks constitute the "Project ". D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of this Project, shall be Peggy Fort. F. The City has solicited and received a proposal from Consultant, reviewed the previous experience and evaluated the expertise of Consultant, and recommends Consultant to City 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 October, 2009, unless terminated earlier as set forth herein. 0 9 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. 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 parry 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. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items One Hundred Fifteen Thousand Five Hundred Dollars and no/100 ($115,500), 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. MARKETING & PUBLIC RELATIONS From November 1, 2009 through October 31, 2010, City shall pay Consultant for all marketing and public relations services including, but not limited to, ongoing consulting, execution and marketing activities as outlined In Exhibit A, at a rate of $3,500 per month in accordance with the provisions of this Section and Exhibit A. Consultant's compensation for all marketing and public relations tasks performed in accordance with this Agreement shall not exceed Forty-Two Thousand Dollars and No Cents ($42,000.00) without prior written authorization from City. 2 4.2 4.3 4.4 0 0 PROJECT MANAGEMENT City shall pay Consultant for overall project management and execution of additional campaign coordination and administrative services tasks as outlined in Exhibit A, at an hourly rate of Thirty Dollars ($30.00) per hour in accordance with the provisions of this Section and Exhibit A. Consultant's compensation for overall project management and execution of additional campaign coordination and administrative services tasks performed in accordance with this Agreement Nine Hundred Dollars and No authorization from City. REIMBURSABLE ITEMS shall not exceed Forty-Two Thousand Cents ($42,900) without prior written City shall reimburse Consultant up to Three Hundred Dollars and No Cents ($300) 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. Out -of- pocket expenses in excess of $300.00 per month shall require advance written approval by City. SPONSORSHIP DEVELOPMENT - INCENTIVE BONUS PLAN Consultant shall develop, solicit and secure event sponsorships. Subject to the exclusions set forth below, Consultant shall be paid a bonus as an incentive for all cash sponsorships actually received by the City for the Project in advance of the event, provided that the cash sponsorship is directly attributable to Consultant's efforts as follows: SPONSORSHIP DEVELOPMENT INCENTIVE BONUS PLAN CMC INC. ACCUMULATIVE REVENUE GENERATED $ 10,000 $ 20,000 $ 30,000 $ 40,000 $ 50,000 $ 60,000 $ 70,000 $ 80,000 $ 90,000 $1,000 Bonus Paid $1,500 Bonus Paid $2,000 Bonus Paid $2,500 Bonus Paid $3,000 Bonus Paid $3,500 Bonus Paid $4,000 Bonus Paid $4,500 Bonus Paid $5,000 Bonus Paid The maximum bonus Consultant 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 Consultant from cash sponsorships actually received by the City. The Parties also expressly agree that the K1 0 0 following shall be expressly excluded and not be considered to be cash sponsorships for purposes of determining the bonus set forth herein: A. Any funding or cash sponsorships received from the City, Visit Newport Beach, Inc. (formerly the Newport Beach Conference and Visitors Bureau), and the Newport Beach Restaurant Association. B. Any In -Kind sponsor Consultant secures and develops. 4.2 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.3 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 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. 4.4 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 at an hourly rate of Thirty Dollars ($30) per hour. 4.5 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until the conclusion of Restaurant week. 4 0 0 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated PEGGY FORT to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Economic Development Department. LEIGH DI SANTIS 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. 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 5 0 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 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 A 11. 12. 13. 14. 0 0 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. COOPERATION Consultant agrees to work Project Administrator and interest in the work to be Consultant on the Project. CITY POLICY closely and cooperate fully with City's designated E ny other agencies that may have jurisdiction or performed. City agrees to cooperate with the 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. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 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. 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 Califomia, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of 7 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. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the 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 M 15. 16. 0 0 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. A. 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. 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. 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 7 0 0 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, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. 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 10 0 0 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 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 shalt 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 11 0 0 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: With a copy to: Attn: Leigh M. De Santis Planning Department City of Newport Beach PO Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Phone: 949 -644 -3207 Attention: President NBRA P.O. Box 2295 Newport Beach, CA 92659 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Peggy Fort CIVIC, Inc P.O. Box 5711 Balboa Island, CA 92662 Phone: 949 - 675 -0501 Fax: 949 -675 -0508 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 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. 12 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 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 parry by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 33. AMENDMENTS 13 0 0 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. 36. 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. 14 0 0 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: David R. Hunt City Attorney ATTEST: By: Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Edward D. Selich Mayor CONSULTANT: California Marketing Concepts, Inc. in Peggy Fort, President By: (Financial Officer) Print Name: Attachments: Exhibit A — Scope of Services 15 0 0 NEWPORT BEACH REVAURANT VAM (Attachment A) CMC M PRIMARY 4WEC'f1VES OMPREND49MSCMCWWOM Project MIanagnrwa% IUa*etft 8 PuWk Runs - Ruiner Administrative Service dt Coordination - Hourly Billing Drafted: October 2009 Respectfully SubmMAad By: Califomia Marketing Concepts, Inc. 1560 6%-Mde Drive Corona del Mar. CA 92625 (949) 675-0501 1i0i w- 0 0 -1J 6r1Iit � , ; �-7 it a7�. h.:. 1�.1 r. INMiPOMANT DATES • January 22n&28th, 2010 and October 22nd-28th, 2010. Gala VIP Media Launch Event -Mid January 2010 ■ Taste of Newport Fall Restaurant Week Kick Off - September 2010 Launch Parry & Post Party Events - January & October 2010 TBA • The City of Newport Beach and NBRA BID to own NBRW promotion and campaign materials including: brand, logos, ads, artwork event names, tag lines, etc. snRATEW • Newport Beach Restaurant Association BID & City of Newport Beach • Corporate, Media, Community & Industry Sponsorship Campaign • Community & Industry Partners: Visit Newport Inc, Irvine Company, NB Chamber, CdM Chamber, BIDS, CRA, & AOCCVB • Produce two successful Newport Beach Restaurant Week campaigns in 2010 that generate incremental revenue and brand Newport Beach as a dining destination, which everyone will benefit from -the patrons, the restaurants and the City. (Note: The campaign dates encompass two fiscal year budgets: FY 2009 -2010 and FY 2010 - 2011). IN Plan, direct, and coordinate NBRW operational activities at the highest level of management with the help of sub- contractors, the City and NBRA BID Board of Directors. Determine and formulate marketing programs and policies providing the overall direction of Newport Beach Restaurant Week within the guidelines setup by the NBRA BID Board of Directors. ■ Determine the demand for NBRW. Identify NBRW benefits, potential customers and competition. Develop NBRW pricing and marketing strate9t with the goal of maximizing participation & profit share of the market. Ensure that restaurants and sponsors are satisfied. 2 CM INN PRIMIARYOBIECMIES _ CONr ■ Develop & execute an aggressive and tangible marketing and public relations campaign to brand Newport Beach as a dining destination, increase sales revenues, drive traffic to NewportBeachDining.com, create community awareness and leverage strategic partnerships. • Oversee NBRW campaign development, results and monitor trends that indicate the need for new marketing & public relation programs, promotions and services. • Plan and direct media advertising policies and programs or produce collateral materials, such as POP Displays„ brochures, check stuffers, posters, contests, coupons, or giveaways, to create extra interest in NBRW. • Plan and direct public relations policies and programs or produce print, online and broadcast editorial coverage and publicity to create extra interest in NBRW. • Plan and direct public relations and sponsorship programs designed to create and maintain a favorable public image for NBRW. Plan and direct sponsorship programs and activities designed to solicit and maintain funds. • Increase restaurant business and sales revenues during The Restaurant Week. The NBRW bb annual campaigns to take place during a relatively slow time of the year and provide new and exciting benefits to NBRA BID restaurants. • Develop valuable media and community partnerships as a result of Restaurant Week. Develop valuable hospitaitty industry, purveyor and corporate sponsors as a result of Restaurant Week. i • CIVIC INC. WORK (Attachment A - Continued) Peggy ' Fort, ,- CMC Inc. Management, Marketing, Public Relations, Restaurant Participation & Sponsorship Development • Assign Responsibilities to Subcontractors & Volunteers • Compile & Evaluate NBRW Post Campaign Survey feedback & Results • Confer with City, NBRA BID Board Members, Restaurant Owners, Sponsors & Vendors to Discuss Issues, Coordinate Programming, Develop Marketing Activities, & Resolve Problems • Develop & Manage NB Restaurant Week Charity Component • Develop Agendas, Informational Meetings & Subcommittee Meetings • Manage Dynamic Budget & Cash Flow in Conjunction with NBRA BID Board of Directors • Manage Dynamic Project Schedules & Production Timeilnes • Manage NBRW Executive Working Subcommittee Comprised of NB Restaurant Owners • Manage NBRW Participants, Strategic Partners, Sponsors, Project Coordinators, Sub - Contractors & Vendors • Negotiation & Strategic Planning of NBRW Partnerships, Special Events & Promotions • Prepare & Present Reports Concerning Marketing Activities, Expenses, Budgets, & Other items Affecting Business or Program Services • Prepare NBRW Budgets for Approval, Including Funding & Implementation of Programs • Promote Restaurant Week Experience Specific To Each NB Neighborhood • Review & Present Reports & Proposals to Recommend Approval or to Suggest Changes • Secure Internal Active Participation of Newport Beach Restaurants 0 0 • Compile Lists & Promotional Pieces Describing NBRW Benefits & Offerings • Conduct Economic & Commercial Surveys to Identify Potential Markets to Promote NBRW • Coordinate & Participate in Promotional Activities & Community Events, Working with Strategic Partners, Sponsors, Media Outlets, and Restaurant Owners to Market NBRW • Create & Execute Post NBRW Bounce Back Promotion • Create Newport Beach Restaurant Week Identity Consistent Brand • Create Newport Beach Restaurant Week Marketing Collateral Consistent Brand • Develop & Execute Aggressive Ongoing Annual Marketing Campaign to Promote NBRW • Develop & Execute Aggressive Ongoing Annual Public Relations Campaign to Promote NBRW • Develop & Execute NBRW Restaurant Marketing & Promotion Plan • Develop Internet Marketing Opportunities Driving More Consumers to NBRA BID Official Web Site www.NewwdBeachDining ccm Leveraging Online Reservation System • Develop Internet Marketing Opportunities to Leverage Online Reservation System • Develop Social Networking & Media Marketing Campaigns Driving More Consumers to: www.NewDortBeachDining,com • Expand & Execute Marketing & Publicity Campaign in Local, Tourism and Hospitality Markets • Expand & Execute Media Advertising Campaign Through Partnership Marketing Opportunities • Formulate, Direct & Coordinate Marketing Activities & Policies to Promote NBRW with Team. • Identify, Develop, & Evaluate Marketing Strategy, Based on Knowledge of NBRW Objectives, Market Characteristics, Cost & Markup Factors • Use Sales Forecasting & Strategic Planning to Ensure Success & Profitability of NBRW Analyzing Industry Developments & Monitoring Market Trends • Develop Corporate Sponsorship Package & Benefits • Develop Internal Marketing & Sponsorship Package • Develop NBRW Sponsor Stewardship Report • Secure Industry & Corporate Cash Sponsors on behalf of NBRW • Secure Media In-Kind Sponsorships on behalf of NBRW • Secure Minimal BWn Cost & Benefits For NBRW Restaurant Participants • Service All NBRW In-Kfnd Media, Corporate Sponsors & Industry Purveyors • Solicit Corporate & Industry Purveyors To Secure Strategic Partnerships • Build City, CRA, Visit Newport Inc. & Chamber of Commerce Support • Develop Restaurant Participation & Cooperation • Secure Event, Flag & Banner Permits • Secure Food Industry Purveyor Ind(ind Contributions • Secure In-Kind Contributions & Volunteer Support • Secure NBRA BID & City Funding • Secure Restaurant In-Kind Contributions - Launch Events, etc. • Create & Display Citywide Flags, Banners & Signage • Create Newport Beach Restaurant Week Display Material & Posters • Create Newport Beach Restaurant Week Postcard & Insert Production • Develop & Distribute Orientation & Marketing Packets for Participants • Develop & Execute Ad Campaign Creative & Graphic Design • Develop NBRW Internal Sign Up Packets & Restaurant Marketing Kits • Develop Newport Beach Restaurant Week Identity Package Design • Initiate Direct Mail Campaigns, inserts & Postage TASKS -CONE: REHRURAW11111M WEB 61111 DOMAMEff • Develop Social Networking Identity on Internet Driving Traffic to NBRW & www.NewoortBeachDlnlg oom • Develop Strategic Internet Cross Promotional Campaigns & Link Alliances • Strategize & Oversee NBRW Blog Posts on • Strategize & Oversee NBRW Web Site Refresh - NBRW Announcements, Menus, Events, etc. SOCIAL MEDIA NMEMN DEMAMENT • Develop & Strategize NBRW VIP Text Club Campaigns • Develop & Strategize Strategic Social Media Campaign to Leverage Publicity, Build Brand Awareness & Generate Participation In NBRW • Develop Strategic Social Media Marketing Campaign & Crass Promotions on Face Book, Twitter, MySpace & Foodle Mop • Discuss & Negotiate Topics Such as Contracts, Selection of Advertising Media, or Messaging to be Advertised • Gather & Organize Information to Plan Advertising Campaigns • Inspect Layouts, Advertising Copy & Edit Scripts, Audio & Video Tapes, & Other Promotional Material for Adherence to Media Specifications • Plan & Prepare Advertising & Promotional Material to Increase Participation in NBRW • Prepare & Negotiate Advertising & Media Sponsor Contracts • Read Trade Journals & Professional literature to Stay Informed on Trends, Innovations, and Changes that affect Media Planning • Direct & Manage LA Times NBRW Spadea Wrap Campaigns • Direct & Manage IA Times NBRW Special Section Production • Manage City Water Bill Insert Campaign - August, September, November & December • Manage Insert Campaigns with Media Partners • Manage Southern California Online Ad Campaigns - OC Register, tATmes, Daily Pilot etc. • Manage Southern California Print Ad Campaigns - OC Register, LA Times, Daily Pilot etc. PRINT A ONLINE MEDIA PARTNER • 944 Magazine • Churm Publishing OC Metro, Metro Menus • Coast Magazine • Dining Out Magazine • Laguna Beach Independent Newspaper • LiveOC Magazine • Los Angeles Times Community News - Dally Pilot HB Independent, LB Coastline Pilot ■ . Newport Beach Magazine ■ OC Wpekly Newspaper • Orange Coast Magazine ■ Riviera Magazine BROADCAST RADIO PARTNERS ■ 101-5 KOCI Radio ■ 92.7 JILL FM Radio • Develop PSA Radio Spots • KABC Talk Radio - Chef Talk 11 • DailyCandycom • DailyVoice.com • GreersOC.cem • OCMenus.com • Opentable.00m •• Yelp.com Cl BROADCAST MEDIA PARTNERS • Develop Thirty Second Promo Spot - Newport Production Company • KOCE -TV Potential Sponsorship Opportunity • NB TV News • PSA Spots -Local Cable, Comcast Time Warner Cable TV • Act as Official NBRW Spokesperson • Coordinate & Invite Media To Newport Beach Restaurant Week Events Coordinate Interviews with Participating Restaurant Chefs & NBRA Board of Directors ■ Develop & Leverage Ongoing Publicity Campaign to Promote NBRW Develop & Maintain NBRW Image & Identity, Which Includes the Use of Logos & Signage Develop Newport Beach Restaurant Week Press Kit Develop Pre & Post- Publicity Campaign • Develop Radio & Cable Packages with Media Partners • Establish & Maintain Effective Working Relationships with Local & Municipal Government Officials & Media Representatives • Evaluate Advertising & Promotion Programs for Compatibility with Public Relations Efforts • Execute & Supervise & The Activities of Public Relations Campaign • Expand Editorial Coverage Through Ad Buys & Editorial Calendar Research • Identify Main Campaign Target Demographic Groups & Audiences & Determine the Best Way to Communicate Publicity Information to Them. • Manage & Oversee NBRW Photography & Video Clips Consistent with Brand • Manage Relationship with Business Newswire Services • Manage Relationship with Online Media Monitoring & Clipping Services • On -Going Media Servicing on Behalf of NBRW PR Opportunities • On-Going NBRW Press Release Development & Media Pitching • Write Interesting & Effective Press Releases & Prepare Information for Media A ©fECIM CCMPRENENSNB PIUNW C.i•PAIIIIIIN == 011111111111 71116 ML^!! M RUM • Business Newswire Releases: All Southern California Media Outlets • Local Print Newspapers and Periodicals: Los Angeles Times, OC Register, Daily Pilot, LB Coastline, HB Independent, The Current, Riviera Magazine, Coast Magazine, Orange Coast Magazine, Newport Beach Magazine, 944 Magazine, OC Live, OC Weekly, eta • Consumer Tourism Publications: Sunset Magazine, Where Magazine, Local Concierge, eta • Meeting & Corporate Market Publications: i.e.: Meetings In the West Convene, etc. • Business Publications: Le.: OC Metro, OC Business Journal, focal Restaurant News • Food & Wine Publications: Dining Out, Metro Menus, Dining & Destinations, etc. • Restaurant & Hospitality Industry Publications: Great Taste, Restaurant Industry • Local Association Outreach & Newsletters: Balboa Beacon, NB & CdM Chamber Newsletter, NBCVB & AOCVB Newsletter & Visitor Guides, etc. 7 9 TASKS -CCNL` ERMICE 0117111011kil. PRESS MM • Coordinate Interviews with Restaurant Chefs, City Officials & NBRA Board of Directors • Coordinate Media To Attend Restaurant Week Press Conference • Produce All Aspects Of NBRW Press Events to Leverage Publicity Coverage • City Council Meeting Presentations & Ongoing Meetings • Conduct Presentations to Promote NBRW in Community • Coordinate Meetings & Presentations to Promote NBRW in Community • Develop Grassroots Community Relations Marketing Plan • Direct & Answer Consumer Messaging & Questions Re: NBRW • Recruit Community Volunteers Outreach Campaign • Produce & Coordinate NBRW Chefs Cooking Pavilion Launch Event - September • Produce & Direct All Aspects NBRW Special Events on Day of Event • Produce (2) NBRW Orientations For Restaurant Owners - Fall & Winter • Produce Restaurant Week Gala Launch Party - January • Produce Restaurant Week Pre & Post Party Sponsor Events • Arrange Venue, Audio-Visual Equipment, Transportation, Displays, & Other Needs • Conduct Post -Event Evaluations to Determine How Future Events Could be Improved • Confer with Partners, Staff & Volunteers at Event Site to Coordinate Details • Confirm Media Attendance at Gala Launch Events • Consult with NBRA BID Board and Restaurant Owners to Determine Oblectives & Requirements for NBRW Events Such as Orientations, Media Events, Gala Launch Party, NBRW Pre & Post Parties • Coordinate All Aspects Or NBRW Special Event • Coordinate Services for Events, Such as Facilities, Catering, Signage, Displays, Special Needs Requirements, Printing & Event Security • Develop Strategy, Logistics and Negotiate Event Detail • Manage Charity Component & Work With Official Benefactor If Appropriate • Monitor Program & Event Activities to Ensure Compliance with Applicable Regulations & Laws, Satisfaction of Participants, & Resolution of any Problems that Arise. • Negotiate'& Confirm NBRW Taste of Newport Sponsorship 0 11 v{, lEt l . a.641a f, I :127 , .l al �. M l� , WORK A111111111121111111 �,l (Attachment A - Continued) CMC Inc. Associate (s) Perform routine clerical and administrative functions such as drafting correspondence, scheduling appointments, organizing and maintaining paper and electronic files, or providing information to callers. Provide ongoing NBRW administrative service, coordination & support to NBRW Director /Project Manager, conduct research, prepare statistical reports, handle information requests. Perform some duties too varied and diverse to be classified in any specific office clerical category requiring limited knowledge of NBRW, office management systems and NBRA BID procedures. Clerical duties may be assigned in accordance with the office procedures of individual marketing programs and may include a combination of answering telephones, bookkeeping, typing or word processing, office machine operation and filing, etc. um NBRWAOMBIRSIRAMMASSISTANCE • Answer Telephones & Provide Information to Callers, Take Messages, or Transfer Calls to Appropriate Individual • Assist with Compiling Lists Describing NBRW Marketing programs, special events & Promotions • Assist with Copying Agendas, Handouts & Make Arrangements for Committee, NBRA BID Board, & Other Meetings • Communicate with Customers & Other Individuals to Answer Questions, Disseminate or E)Vain Information & Address Complaints • Compile, Copy, Sort & File Records of Activities, Business Transactions, & Other Activities • Compute, Classify, Update Databases & Record Data to Keep Records Complete • File & Retrieve Official Documents, Records & Reports • Greet Visitors & Callers, Handle Their Inquiries & Direct Them to the Appropriate Person or Resource According to their Needs • Learn to operate new office technologies as they are developed & implemented TASKS - Doff:• • Maintain & update filing, inventory, mailing, and database systems, either manually or using a computer • Make Copies of Correspondence & Other Printed Material • Open, Sort & Distribute Incoming Correspondence, Including Faxes & Email • Operate & Program Office Equipment Such as Fax Machines, Copiers & Phone Systems, & Scanners, Voice Mail Systems & Personal Computers • Operate Computer Programs to Record, Store & Analyze Information • Perform General Office Duties Such as Fling, Answering Telephones & Handling Routine Correspondence • Perform General Office Duties Such as Ordering Supplies, Maintaining Records Management Systems & Performing Basic Bookkeeping Work • Prepare Invoices, Reports, Memos, letters, Financial Statements & Other Documents using Word Processing, spreadsheet, database, or presentation software • Prepare Responses to Correspondence Containing Routine Inquiries • Set Up & Maintain Paper & Electronic Filing Systems for Reoords, Correspondence & Other Material • Use Computers for Spreadsheet, Word Processing, Database Management & Other Applications • Assist with Coordinate NBRW Official Mailings • Assist with Coordination of NBRW Participant Orientation Meetings • Assist with Restaurant & Participant Servicing & Correspondence • Follow Up Contact & Servicing with NBRW Participants Re: Sign Ups, Paperwork, Menu Development, In-Store Display & Promotion, Deliveries, etc. WA SPECIAL EVIElff ASSETANCE • Assist with Coordination of NBRW Gala Event, Pre & Post Party Events • Assist with Coordination of NBRW Press Conference • Assist with Coordination of NBRW Volunteers • Assist with Coordination of Taste of Newport Net's Cooking Pavilion Launch Event • Coordinate NBRW Sub- Cornmittee Agendas • Assist with NBRW Social Marketing Campaign • Assist with NBRW Web Site Refresh - Collect & Organize Content, etc • Assist with NBRA Online Reservation Feature Updates in Conjunction with Vendor • Assist with Web Site Updates & Refresh for NBRW • Misc. Research & Postings on Blogs & Social Networking Sites • Update & Proof NBRW Content, & Link Alliances • Assist with Coordinating Marketing Activities to Promote NBRW Working with Project Manager & NBRW Director • Assist with Coordinating NBRW Database Management • Assist with Coordination of NBRW Vendors • Assist with Execution of Marketing Strategy Based on Knowledge of NBRW Objectives, Trends & Budget • Assist with Sponsor Servicing and Correspondence • Assist with coordination & participate in promotional activities & special events, working with restaurants, sponsors and vendors, to market NBRW • Assist with NBRW Survey, Results, & Misc. Servicing 10