HomeMy WebLinkAboutC-4983 - PSA for Newport Beach Restaurant Association Strategic Marketing and Public Relations Services1
PROFESSIONAL SERVICES AGREEMENT WITH
CALIFORNIA MARKETING CONCEPTS, INC.
FOR NEWPORT BEACH RESTAURANT ASSOCIATION STRATEGIC MARKETING
AND PUBLIC RELATIONS SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made
and entered into as of this 7th day of October, 2011 by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation ( "City "), and CALIFORNIA
MARKETING CONCEPTS, INC., a California corporation ( "Consultant "), whose address
is 1550 Bayside Drive, Corona del Mar, California 92625 and is made with reference to
the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. The City established the Newport Beach Restaurant Association Business
Improvement District pursuant to the Parking and Business Improvement Area
Law of 1989 ( "NBRA ").
C. The NBRA's City Council appointed advisory body provides annual
recommendations to the City Council on the expenditure of revenues derived
from the levy of assessments, on the classification of businesses, and on the
method and basis of levying the assessments.
D. The NBRA's appointed advisory body will consult with the City on the
administration of this Agreement and provide input and insight into the strategic
marketing and public relations services provided under this Agreement.
E. City is seeking strategic marketing and public relations services for the NBRA.
F. City desires to engage Consultant to provide strategic marketing and public
relations services for the NBRA ( "Project ").
G. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
H. The principal member of Consultant for purposes of Project shall be Peggy Fort,
President and C.E.O of California Marketing Concepts, Inc.
I. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on June 30, 2012 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Consultant acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference. 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 of
the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and the Services shall be performed to completion in a diligent and timely
manner. The failure by Consultant to perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.1.1 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.
3.2 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator (as defined in Section 6 below) 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.
3.3 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, e-mail or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to-
exceed basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
Consultant's compensation for all Work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed One Hundred
Twenty Thousand Dollars and no /100 ($120,000.00) without prior written
authorization from City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to the Board of Directors for the
NBRA 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,
California Marketing Concepts, Inc. Page 2
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. Upon its review
and approval the NBRA shall submit Contractor's invoices to City. City shall pay
Consultant no later than thirty (30) days after approval of the monthly invoice by City.
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:
4.3.1 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.
4.3.2 Approved reproduction charges.
4.3.3 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 in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 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.
5.2 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 Office of the City Manager. Tara
Finnigan, Public Information Manager, or her designee, 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.
California Marketing Concepts, Inc. Page 3
7. STANDARD OF CARE
7.1 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.
7.2 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.
7.3 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.
8. HOLD HARMLESS
8.1 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 Worts 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).
8.2 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
California Marketing Concepts, Inc. Page 4
limits do not act as a limitation upon the amount of indemnification to be provided by the
Consultant.
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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.
10. 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.
11. 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.
12. 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. Consultant shall submit monthly financial reports and monthly
progress reports to the NBRA Board of Directors. Consultant shall make financial
reports available on demand.
13. INSURANCE
13.1 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.
13.2 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
California Marketing Concepts, Inc. Page 5
during the term of this Agreement. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
13.2.1 Consultant shall procure and maintain for the duration of the
Agreement 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 subcontractors. The cost of such
insurance shall be included in Consultant's bid.
13.3 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.
13.4 Coveraae Requirements.
13.4.1 Workers' Compensation Coverage. Consultant retains no
employees and therefore need not maintain Workers' Compensation Insurance.
However if during the course of this Contract Consultant acquires and retains any
employees, Consultant shall maintain Workers' 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 subcontractor's employees.
13.4.1.1 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.
13.4.1.2 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.
13.5 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.
13.6 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.
13.7 Other Insurance Provisions or Requirements.
California Marketing Concepts, Inc. Page 6
13.7.1 The policies are to contain, or be endorsed to contain, the following
provisions:
13.7.1.1 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 City, and shall require
similar written express waivers and insurance clauses from each of its subcontractors.
13.7.1.2 Enforcement of Agreement 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.
13.7.1.3 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.
13.7.1.4 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.
13.8 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.
13.9 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.
14. 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.
California Marketing Concepts, Inc. Page 7
15. SUBCONTRACTING
City and Consultant agree that subcontractors may be used to complete the Work
outlined in the Scope of Services. The subcontractors authorized by City to perform
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.
16. OWNERSHIP OF DOCUMENTS
16.1 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.
16.2 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.
17. 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.
18. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers, representatives and
employees against any and all liability, including costs, for infringement of any United
States' letters patent, trademark, or copyright infringement, including costs, contained in
Consultant's drawings and specifications provided under this Agreement.
19. 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.
20. 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.
21. 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.
22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
23. CONFLICTS OF INTEREST
23.1 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.
23.2 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
California Marketing Concepts, Inc. Page 9
City for any and all claims for damages resulting from Consultant's violation of this
Section.
24. NOTICES
24.1 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: Tara Finnigan, Public Information Manager
Office of the City Manager
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949 - 644 -3035
Fax: 949 - 644 -3020
Email: tinnigan@newportbeachca.gov
24.2 All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Peggy Fort, President & C.E.O.
California Marketing Concepts, Inc.
1550 Bayside Drive
Corona del Mar, CA 92625
Phone: 949 - 675 -0501
Fax: 949 - 675 -0508
Email: peggyfort@aol.com
25. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, 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 at seq.).
26. TERMINATION
26.1 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
California Marketing Concepts, Inc. Page 10
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.
26.2 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 sixty
(60) 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.
27. STANDARD PROVISIONS
27.1 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.
27.2 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.
27.3 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.
27.4 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.
27.5 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.
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27.6 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.
27.7 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.
27.8 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.
27.9 Equal Opportunity Emoloyment
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.
27.10 No Attorney's Fees
In the event of any dispute or legal action arising under this Agreement, the prevailing
party shall not be entitled to attorney's fees.
27.11 Counterparts
This Agreement may be executed in two (2) or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the same
instrument.
California Marketing Concepts, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Date: P hohl
`l
By:
Michael Torres
Deputy City Attorney
ATTEST:
Date: 'O,
By: \AWAN
Leilani I. Brown
City Clerk
Attachments:
1%.URNIP`
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: 101110111
By:
Dave Ki
City Manager
CONSULTANT: California Marketing
Concepts, Inc., a California corporation
Date: iO l t A it
By:
Peggy FV U
President,,CEO
Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
California Marketing Concepts, Inc. Page 13
NEWPORT BEA(H
if IA01AC11$50MT101
NEWPORT BEACH RESTAURANT ASSOCIATION BID
FY 2OH -2012 MARKEnNG SCOPE OF WORK & BUDGET
*Total Working Budget: Approx. $119,953K
BUDGEr ITEM TOTAL
COLLATERALDEVELOPMENT: CREATIVE PRODUCnON Gz PRINTING
MISC. NBRA COLLATERAL - DESIGN & PRINTING
Reprint NBRA Membership & Decals -1,000 Copies - Vendor Fees $ 500
NBRA New Establishment Informational Brochure -1,000 Copies - Vendor Fees $ 500
Total: E LOGO
NEWPORT BEACH DINING GUIDE PRODUCTION
Publish Newport Beach Dining Guide Upon Demand - 100,000
Copies Per Run
*Revenue Generating Source
Project item Breakdown: Misc. Sub - Contractors
New Size, Increased Pages, New Design & New Images
Graphic Design & Production Vendor Fee
$ 5,000
NBRA Database Updates Vendor Fee
$ 3,000
Ad Sales & Management - CMC Inc.
$ 2,500
Project Management & Advertising Coordination - CMC Inc.
$ 2,500
Printing Vendor Fee
$25,000
Total:
$38.000
*Ad Sponsorship Incoming Revenue
- $21,000
(16) Ads Sold @ $1,000 = $16,000
(2) Sponsor Ads Sold @ $2,500 = $5,000 Total Actual Cost: $17,000
Project Recap:
➢ Distribution 100k - Issuance Upon Demand
➢ (4) Color Brochure w/ New Design & Photos
➢ (36) Page Plus (4) Page Cover
Total:
$17.000
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Certified Folder Display Distributors - Vendor Fee $5,939
Hotels/Airport/Welcome Center
*In -Kind Added Value = $3,073 or %35 Discount Off Rate Card
Corporate / Industrial Distribution $3,249
*In -Kind Value = $4,469 or 57% Discount Off Rate Card
*Plus (3) Months Complimentary NBRW Brochure Distribution
Total; $ 9188
AD CAMPAIGN CREATIVE PRODUCTION fa DESIGN
Ad Campaign Creative & Graphic Design - Vendor Fee $ 2,500
New Brand Photography Contest & Vendor Fee $ 500
Total: $ 3.000
PRINT &t ONLINE MEDIA ADVERTISING CAMPAIGNS
National - Tourism &r Convention Market
Anaheim CVB - Tourism & Convention Market
Full Page Ad - Bi- Annual Publication $ 4,000
*In -Kind Value $16,000 Or 50% Discount Off Rate Card
Newport Beach CVB Visitor Guide - Tourism & Group Market $ 3,695
Full Page Ad - Annual Publication *In -Kind Value $2,500 or 35;6 Discount Off Rate Card
Regional - Southern California & LA Market
Mi sc. Local Newspaper & Periodical - Special Cuisine & Dining Annual Issues $ 10,000
Hyatt In Room Publication, etc
Local - Community Market
Newport Beach Chamber Posters, Map & Directory $ 2,000
NBRA BID STRATEGIC WEB SITE DEVELOPMENT
*Potential Revenue Generating Source
"Web Sire Fearures Include., Integrated NBRA Database Management, Real Time Restaurant
Searching, Restaurants Menu Display (pdf), Multiple Image Display for Restaurants, Restaurant Online
Reservations, Integrated Driving Directions, Banner Ad Manager, 1 -Click Export for all Dining Guide
Data, Event Management - Restaurant Week, Direct Marketing Application to Restaurants &
Consumers, Social Networking Campaigns & Blog.
Annual Web Site Hosting & Programming - Vendor Fees
$169 per month - Includes one (25) Misc. Hours of Service @ $120 Per Hour $ 5,500
Annual Web Site Ongoing Maintenance - Vendor Fees
$500 per month - Includes twenty (20) Hours of Service Per Month @ $25 Per Hour $ 6,000
Total. $11,500
SOCIAL MEDIA & ONGOING STRATEGIC INTERNETMARIO TTING
CAMPAIGNS
SEO Plan - Google & Face Book Ad Word Campaigns
$ 2,500
E- Newsletter(s) Copywriting, Design & Production - Vendor Fees
$ 5,000
Includes one (15 -17) Hours of Service Per Month @ $25 Per Hour
Social Networking Campaigns & Blog Development - Vendor Fees
$ 5,000
Includes one (15 -17) Hours of Service Per Month @ $25 Per Hour
i-�
CENTRALIZED NBRA PHONE RESERVATION SYSTEM
Annual Hosting Agreement and Maintenance $ 5,000
*In -Kind Value = $3,266 or Q% Discount
Total: $ 5.000
PUBLIC & MEDIA RELATIONS CAMPAIGNS
Business Wire Press Center & Online PR Services
$ 3,500
Total: $ 3.500
COOPERATIVE MARKETING CAMPAIGNS - ANAHEIM DRIVE MARKET
Anaheim Resort Transit Partnership Marketing Program $ 0
*Additional In -Kind Contribution Value= $15,000
ANOCVCB Restaurant Kiosk - *In -Kind Value $3,300 - (2) Panels $In -Kind
NBRA ANNUAL MEETING
NBRA Luncheon Event Budget & Sponsor Recognition $ 2,500
NBRA Luncheon Invites & RSVP Cards $ 500
*Incoming Revenue Tickets 42,500
(5) Table Sponsorships @ $250
(50) Tickets Sold @ $25 *Total Actual Cost $ 500
c/a- \1_ ' ._TNI-1159TUMMe ,,
Newport Beach Relay For Life
OC Food Bank - Race To Heel Hunger
Misc. Special Event Participation Fees -TBA
Police Appreciation Breakfast
Newport Beach Mayor Dinner
Total: $ 500
$In -Kind
$In -Kind
$[n -Kind
$ 0
$ 0
Total• $ 0
NBRA BID PROFESSIONAL MEMHERSHIPS
Anaheim CVB $ 750
CAL TIA $ 320
California Restaurant Association $In -Kind
Newport Beach Chamber of Commerce $In -Kind
Visit Newport Beach, Inc. $In -Kind
Total. $ L070
MARKETING & ASSOCIATION MANAGEMENT- AGENCY FEE
Marketing Agency Vendor Fee - CMC Inc.
Association Management, Marketing & Public Relations Service
*CMC Inc. Agency In -Kind Contribution Value = $40,800
Total• $ 30.000
ADMINISTRATION FEE
Misc Billing & Administration Fees
Misc. Operational Re- Imbursements & Postage
$ 3,500
$ 2,500
Total• $ 6.000
rr
OTAL. x::
EXHIBIT B — SCHEDULE OF BILLING RATES
The following Schedule of Billing Rates shall apply to the provision of strategic
marketing and public relations services by California Marketing Concepts, Inc.
Base Contract Rate:
Annual Retainer Period Fee: Thirty Thousand Dollars ($30,000.00)*
Retainer Fee shall be paid to Consultant each quarter in the amount of Seven
Thousand Five Hundred Dollars ($7,500.00).
"Included on page 3 of Exhibit A as "Marketing & Association Management Fee"
Newport Beach Dining Guide Advertising Sales $ Ad Coordination:
Advertising sales and advertising coordination compensation shall be paid to
Consultant upon production of the Newport Beach Dining Guide in the total amount of
Four Thousand Dollars ($4,000.00).
TO: Tara Finnigan
Public Information Officer
City of Newport Beach
FROM: California Marketing Concepts, Inc.
Phone: (949) 675-0501
DATE: October 17, 2011
SUBJECT: CMC Inc. Signature Information
To Whom It May Concern:
Please note that Susan M: Fort aka Peggy Fort, President A CEO of CMC, Inc. is
officially authorized to bind the corporation without the need of a second
signature.
Thank you!
ACTION BY UNANIMOUS WRITTEN CONSENT OF
BOARD OF DIRECTORS OF
CMC, INC.,
A CALIFORNIA CORPORATION
The undersigned directorofCMC, Inc. a California corporation, acting by unanimous written
consent without a meeting pursuant to section 307(b) of the California Corporations Code and the
bylaws of the corporation, consents to his election as director, accepts the resignation of the
incorporator, and adopts the following resolutions.
RESOLVED, that Susan Fort, aresident of California, whose address is 310 Fernando Street,
Suite 212, Balboa, California 92661 is appmved/appointed.as this corporation's agent for service
of process in California as required by section 1502 of the California Corporations Code.
RESOLVED, that the bylaws, consisting of 16 pages, adopted by the incorporator and
presented to the Board of Directors of this corporation are approved; and
RESOLVED FURTHER, that the secretary of this corporation is authorized and directed to
execute a certificate of the adoption of those bylaws, to insert those bylaws as so certified in the
minute book of this corporation, and to cause a copy of those bylaws, as they may be amended from
time to time, to be kept and maintained at the principal executive office of this corporation, in
accordance with section 213 of the California Corporations Code.
RESOLVED that the following persons are appointed to the offices set forth opposite their
names:
Name
Susan Fort
Susan Fort
Susan Fort
to serve at the pleasure of the board.
President
Chief Financial Officer
Secretary
Page 1 of 4
WRITTEN ACTION IN LIEU OF ANNUAL MEETING
BY THE BOARD OF DIRECTORS
OF
CMC, INC.
Thee undersigned, being the sole director of CMC, Inc., (the "Corporation"), having
performed the annual review ofthe corporation, hereby take the following action in lieu ofan annual
meeting of directors and adopts the following resolutions:
RESOLVED, that all purchases, contracts, compensations, acts, proceedings, elections and
appointments by the officers of the Corporation during the past fiscal year are hereby approved,
ratified, and confirmed.
RESOLVED, that the following officers are elected to serve as Chief Executive Officer,
Chief Financial Officer, and Secretary of the Corporation until the next annual meeting or review
by the Board of Directors of the Corporation or until any such officer resigns or is otherwise
removed from office pursuant to the Bylaws or Califimia law:
Chief Executive Officer: Susan M. Fort
Chief Financial Officer: Susan M. Fort
Secretary: Susan M. Fort
F[TRTHERRESOLVED, thatthe forgoingresolutions shall be effective as of�ApdI 21, 2008.
Date: 2j-
Susan
-
Susan M. Fort, Direc