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z NEWPORT BEACH
c�<,FORN'P City Council Staff Report
January 23, 2024
Agenda Item No. 14
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Tara Finnigan, Assistant City Manager - 949-644-3001,
tinnigan@newportbeachca.gov
PREPARED BY: Melanie Franceschini, Management Analyst — 949-644-3028,
mfranceschini@newportbeachca.gov
TITLE: Professional Services Agreement with RMG Communications for
On -Call Educational and Informational Video Production
ABSTRACT:
Staff recommends approval of a professional services agreement with RMG
Communications to provide on -call educational and informational video production for
multimedia platforms, including the City of Newport Beach's social media channels,
Youtube.com, the government access channel Newport Beach Television (NBTV), and
more.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Approve a Professional Services Agreement with RMG Communications for On -Call
Educational and Informational Video Production at a not -to -exceed amount of
$330,000, and authorize the Mayor and City Clerk to execute the agreement.
DISCUSSION:
The City of Newport Beach (City) operates a government access channel called Newport
Beach Television (NBTV). City staff managed NBTV station operations, production and
programming for many years before outsourcing the services in March 2014. The existing
agreement for the management of NBTV programming and operations expired in
December 2023.
Prior to issuing a new Request for Proposals (RFP), City staff conducted a review of
NBTV programming to determine how video storytelling could be optimized to engage a
larger audience of the City's residents and stakeholders. To assess the value and gather
recommendations, a series of interviews were conducted with City staff members, City
Council members, and about 20 community members.
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Professional Services Agreement with RMG Communications for
On -Call Educational and Informational Video Production
January 23, 2024
Page 2
The consensus among those interviewed was that City -produced videos should be short,
dynamic, visually compelling and focused on information that has value to the viewers,
such as updates on new development and construction, promotion of upcoming public
events, and highlights of City services that may be underutilized by residents. It was
recommended that these short videos be distributed by social media (YouTube,
Facebook, Instagram, etc.) along with NBTV and include links to the City website for more
information or to take action. Links to the videos would be included in other City
publications such as the Newport Navigator, City website and the City Manager's weekly
newsletter. These findings were reflected in the RFP.
In keeping with the City's procurement procedures, the City issued an RFP for Video
Production and Programming Services. This RFP was split into two sections: Section A -
Filming and Streaming of City Council, Planning Commission and other Special Meetings;
and Section B - Educational and Informational Video Production.
Rather than have one broad scope for the management of NBTV programming and
operations, as in prior agreements, staff recommended entering into two different
agreements with specific scopes. The RFP scope was structured in a way that allowed
interested firms to respond to the technical component, the creative component, or both.
Section B of the RFP focuses on the creative side of video content creation. The firms
were tasked with creating short videos to engage and inform residents about City news
and updates, events and issues, which will be broadcast and shared to the City's various
media channels on TV, the website, social media platforms and YouTube.
RFP No. 24-27 was published on September 27, 2023, and closed on October 18, 2023.
The City received several qualified proposals, with firms bidding on either, or both,
sections of the RFP. All the proposals were evaluated based on the following criteria:
• Qualifications and experience of the firm and key personnel, project approach,
and
• Proposed project costs.
An evaluation panel, consisting of staff and an outside subject expert consultant, reviewed
and rated each proposer's technical qualifications using the metrics described above. Per
the RFP, proposers needed to earn a minimum 70% of the technical score in order to
advance in the selection process to have their costs reviewed. The following table
illustrates the result of the evaluation process for the Section B - Educational and
Information Video Production proposals received.
Proposer
Technical
Cost Ratio
Score
Score
Total Score
Rank
Out of 60
Out of 40
(Out of 100)
RMG
45.33
40
85.33
1
Communications
Pegasus Studios
45.33
16.83
62.16
2
TV Pro Gear,
44.33
12.38
56.71
3
Inc.
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Professional Services Agreement with RMG Communications for
On -Call Educational and Informational Video Production
January 23, 2024
Page 3
Upon completion of these evaluations and ranking, staff requests approval to enter into a
professional services agreement with RMG Communications for On -Call Educational and
Video Production at a not -to -exceed amount of $330,000 through January 22, 2027.
The City already awarded a Professional Services Agreement with TV Pro Gear, Inc. for
Video Production and Programming Services at a not -to -exceed amount of $120,000 to
address the needs requested by the Section A - Filming and Streaming of City Council,
Planning Commission and other Special Meetings component of the RFP.
FISCAL IMPACT:
The adopted budget includes sufficient funding for this on -call agreement. It will be
expensed to the NBTV Operations/Program account in the City Manager's Office Public
Information Division, 01020201-871041.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A — On -Call Professional Services Agreement with RMG Communications
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ATTACHMENT A
ON -CALL PROFESSIONAL SERVICES AGREEMENT
WITH RMG COMMUNICATIONS FOR
ON -CALL EDUCATIONAL AND INFORMATIONAL VIDEO PRODUCTION
THIS ON -CALL PROFESSIONAL SERVICES AGREEMENT ("Agreement") is
made and entered into as of this 23rd day of January, 2024 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city ("City"), and RMG COMMUNICATIONS, a California corporation ("Consultant"),
whose address is 822 N Stage Coach Lane, Fallbrook, CA 92028, 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 cant' on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide on -call Educational and Informational
Video Production ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. 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 Effective Date, and shall.
terminate on January 22, 2027, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Consultant shall perform the on -call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Upon written request from the Project Administrator as defined herein,
Consultant shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal'). The Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
2.1.2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
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I
and
2.1.3 The estimated number of hours and cost to complete the Services;
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
3.1 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 and the Letter Proposal. In the absence of a specific schedule, the Services
shall be performed to completion in a diligent and timely manner. The failure by
Consultant to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal,
if any, or perform the Services in a diligent and timely manner may result in termination
of this Agreement by City.
3.2 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 within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein 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.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery 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 Letter Proposal
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
Three Hundred Thirty Thousand Dollars and 00/100 ($330,000.00), 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 City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
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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) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement and the Letter Proposal or specifically approved
in writing in advance by City.
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 and the Letter Proposal.
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 Rachel McGuire 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 furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the City Manager's Office. City's Public
Information Manager or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
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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
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and 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, 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
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services contemplated
by this Agreement (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, attorneys'
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, reckless, 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).
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9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence orwillful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' 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 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. No civil
service status or other right of employment shall accrue to Consultant or its employees.
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 of the Work 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 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 or for other periods as specified in this Agreement, policies of insurance
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of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
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 co -tenancy, 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 subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal. Consultant shall be fully responsible to
City for all acts and omissions of any subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and any 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. City is an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and 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
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (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. Additionally, all material posted in cyberspace 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, including all logins
and password information to City upon prior written request.
17.2 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
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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.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period- required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or 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.
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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 Section 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
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seg., Consultant
shall conform to all requirements therein. 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
25.1 All notices, demands, requests or approvals, including any change in
mailing address, 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.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Public Information Manager
City Manager's Office
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
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Attn: Rachel McGuire
RMG Communications
822 N Stage Coach Lane
Fallbrook, CA 92028
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 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 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.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than 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. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 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,
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county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 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.
28.5 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.
28.6 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.
28.7 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.
28.8 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.
28.9 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, State of California.
28.10 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 race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
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28.12 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 (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORtSI EY'S OFFICE a California municipal corporation
Date: I / y M- 4f Date:
By: By:
ron C. Harp ti-� Will O'Neill
City Attorney Mayor
ATTEST: CONSULTANT:
Date: RMG COMMUNICATIONS, a California
corporation
Date:
By: By:
Leilani I. Brown Rachel McGuire
City Clerk Chief Executive Officer/Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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EXHIBIT
SCOPE OF SERVICES
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SCOPE OF SERVICES
EDUCATIONAL AND INFORMATIONAL VIDEO PRODUCTION
Consultant shall provide the following on -call services to the City, under the direction of the City
Manager's Office, which shall identify specific tasks, deliverables and deadlines.
Produce a series of 4-6 short videos (15 to 90 seconds in length) each month designed to
engage and inform Newport Beach residents about local news, events, and issues. These
videos may:
• Highlight key City projects and services offered by the various City departments;
• Promote upcoming events;
• Cover news and issues of importance to the community;
• Showcase businesses, such as new restaurants. Some of the videos will require a
voice-over;
• Drone filming will be required; and
• Other miscellaneous videos assigned by the city outside of these categories.
Most videos will require the use of engaging graphics to provide key information.
These videos will be placed on the city's social media platforms, the city's website and YouTube
channel, and broadcast on NBTV. Services will require writing, filming, and editing using the
consultant's production equipment, as well as providing music, graphics and voice-over talent
as needed.
All content created under this Agreement shall be the exclusive property of the City of Newport
Beach. The City shall have and retain all rights, including but not limited to, use, reproduce,
license, sell, make derivative works, and distribute the content, without any royalties, fees, or
other remuneration due to Consultant other than the compensation set forth in this Agreement.
Additionally, the City shall be credited as the owner of the content whenever it is used.
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EXHIBIT B
SCHEDULE OF BILLING RATES
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COST FILE
EDUCATIONAL AND INFORMATIONAL VIDEO PRODUCTION
Service
Hourly Rate
Daily Rate (8 Hours)
Uploading finished videos to
the website and social media
platforms
$175
$1,400
Pre -Production
$175
$1,400
Filming
$290
$2,250
Editing
$290
$1,600
Drone: Half Day $750 (4 hours)/ Full day $1,500 (8 hours)
Principal in Charge, Director, Sr. Comm Manager: $175/hour
Strategic Visual Designer, Multi -media Specialist: $140/hour
Mileage expenses are billed at the current IRS rate.
A customary 20% markup will be added to out -of- pocket expenses (such as advertising
buyouts, printing, stock photography purchases). All out-of-pocket expenses shall be
preapproved by City in writing before the expense is incurred.
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EXHIBIT C
INSURANCE REQUIREMENTS - PROFESSIONAL SERVICES
Provision of 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. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. 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.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at. -least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of.City of Newport Beach,
its City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control
of the property upon which. Consultant performs the Project and/or
Services contemplated by this Agreement.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and, if necessary, umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than two million dollars ($2,000,000) per
occurrence, four million dollars ($4,000,000) general aggregate. The policy
shall cover liability arising from bodily injury, property damage, completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and 'property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
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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 each accident.
D. Technology Professional Liability (Errors & Omissions) Insurance.
Appropriate to the Consultant's profession and work hereunder, with limits
not less than two million dollars ($2,000,000) per occurrence and four
million dollars ($4,000,000) in the aggregate. Coverage shall be sufficiently
broad to respond to the duties and obligations as is undertaken by the
Consultant in this agreement and shall include, but not be limited to, claims
involving infringement of intellectual property, copyright, trademark,
invasion of privacy violations, information theft, release of private
information, extortion and network security. The policy shall provide
coverage for breach response costs as well as regulatory fines and
penalties as well as credit monitoring expenses with limits sufficient to
respond to these obligations.
(a) The Policy shall include, or be endorsed to include, property damage
liability coverage for damage to, alteration of, loss of, or destruction
of electronic data and/or information "property" of the City in the care,
custody, or control of the Consultant. If not covered under the
Consultant's liability policy, such "property" coverage of the City may
be endorsed onto the Consultant's Cyber Liability Policy as covered
property as follows:
(b) Cyber Liability coverage in. an amount sufficient to cover the full
replacement value of damage to, alteration of, loss of, or destruction
of electronic data and/or information "property" of the City that will be
in the care, custody, or control of Consultant.
(c) The Insurance obligations under this agreement shall be the greater
of 1—all the Insurance coverage and limits carried by or available to
the Consultant; or 2—the minimum Insurance requirements shown in
this agreement. Any insurance proceeds in excess of the specified
limits and coverage required, which are applicable to a given loss,
shall be available to City. No representation is made that the
minimum Insurance requirements of this agreement are sufficient to
cover the indemnity or other obligations of the Consultant under this
agreement.
E. Drone Liability Insurance. Consultant shall maintain drone liability insurance
including bodily injury, property damage, products and completed
operations, personal & advertising injury, cyber liability including cyber
security and invasion of privacy, and non -owned aircraft with combined
single limit not less than $2,000,000. Legal defense coverage shall not
exhaust the combined single limit.
F. Excess/Umbrella Liability Insurance. If any Excess or Umbrella Liability
policies are used to meet the limits of liability required by this contract, then
said policies shall be "following form" of the underlying policy coverage,
terms, conditions, and provisions and shall meet all of the insurance
requirements stated in this contract, including, but not limited to, the
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additional insured and primary & non-contributory insurance requirements
stated herein. No insurance policies maintained by the City, whether primary
or excess, and which also apply to a loss covered hereunder, shall be called
upon to contribute to a loss until the Consultant's primary and excess liability
policies are exhausted.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
the City of Newport Beach, its City Council, boards and commissions,
officers, agents, volunteers, employees and any person or entity owning or
otherwise in legal control of the property upon which Consultant performs
the Project and/or Services contemplated by this Agreement 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 from each of its
subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess/umbrella liability, automobile liability, drone liability and cyber liability
if required, but not including professional liability, shall provide or be
endorsed to provide that the City of Newport Beach, its City Council, boards
and commissions, officers, agents, volunteers, employees and any person
or entity owning or otherwise in legal control of the property upon which
Consultant performs the Project and/or Services contemplated by this
Agreement shall be additional insureds with regard to liability and defense
of suits or claims arising out of operations performed by or on behalf of the
Consultant including materials, parts or equipment furnished in connection
with such operations. Additional Insured Endorsements shall be at least as
broad as ISO Form(s) CG 20 10 85; or ISO Forms CG 20 10 and CG 20 37.
C. Primary and Non Contributory. This insurance shall be primary and any
other insurance whether primary, excess, umbrella or contingent insurance,
including deductible, or self-insurance available to the insureds added by
endorsement shall be in excess of and shall not contribute with this
insurance. Coverage shall be at least as broad as ISO CG 20 01 04 13.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage
for each required coverage.
E. Subcontractors. Contractor shall require and verify that all subcontractors
maintain insurance meeting all the requirements stated herein, and
Contractor shall ensure that City is an additional insured on insurance
required from subcontractors. For CGL coverage subcontractors shall
provide coverage with a format at least as broad as CG 20 38 04 13.
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5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. All policies, endorsements, certificates, and/or
binders shall be subject to approval by the City as to form and content.
These requirements are subject to amendment or waiver only if approved
in writing by the City. The City reserves the right to require complete,
certified copies of all required insurance policies, including endorsements
required by these specifications, at any time.
The certificates and endorsements for each insurance policy shall be signed
by a person authorized by that insurer to bind coverage on its behalf.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Consultant shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage, subcontractors
shall provide coverage with a format at least as broad as CG 20 38 04 13.
D. Insurance for Subcontractors. Consultant shall be responsible for causing
Subcontractors to purchase the same types and limits of insurance in
compliance with the terms of this contract, including adding the City as an
Additional Insured, providing Primary and Non -Contributory coverage and
Waiver of Subrogation to the Subcontractor's policies. The Commercial
General Liability Additional Insured Endorsement shall be on a form at least
as broad as CG 20 38 04 13.
E. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
F. 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. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
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G. Deductible or Self -insured Retentions. Any deductible or self -insured
retention must be approved in writing by the City and shall protect the
indemnified parties in the same manner and to the same extent as they
would have been protected had the policy or policies not contained a
deductible or self -insured retention. The City may require the Permittee to
purchase coverage with a lower retention or provide proof of ability to pay
losses and related investigations, claim administration and defense
expenses within the retention. The policy language shall provide, or be
endorsed to provide, that the self -insured retention may be satisfied by
either the Permittee or the City.
H. City Remedies for Non -Compliance. If Consultant or any subconsultant
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Consultant's right to proceed until
proper evidence of insurance is provided. Any amounts paid by City shall,
at City's sole option, be deducted from amounts payable to Consultant or
reimbursed by Consultant upon demand.
I. 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, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
J. Consultant's 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.
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