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HomeMy WebLinkAbout09 - January 2010 Restaurant WeekCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 9 December 8, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Leigh M. De Santis, Economic Development Administrator, 949 - 644 -3207, Idesantis @newportbeachca.gov SUBJECT: January 2010 Restaurant Week Professional Services Agreement RECOMMENDATION: Waive the requirements of City Council Policy F -14, and approve and authorize the Mayor and City Clerk to sign the January 2010 Restaurant Week Professional Services Agreement between the City and California Marketing Concepts. DISCUSSION: Background: The Newport Beach Restaurant Association BID organized a Restaurant Week in both January 2007 and 2008. In 2009 the NBRA organized two Restaurant Weeks, one in January, as in previous .years, and one in October. The City has financially supported the events. The NBRA hopes the Restaurant Weeks may eventually become self sustaining and they believe that making them a bi- annual event may hasten that possibility. The City Council approved $100,000 in the 2009 -10 budget to support two Restaurant Weeks in 2010, one in January and one in October. At the meeting of November 24, the City Council considered an agreement between the City and California Marketing Concepts (CIVIC) to provide marketing support for and project management of the two Restaurant Weeks in 2010. The report for that meeting is attached. The Council had concerns about a contract that would continue into the next fiscal year, especially because staff requested a waiver of the requirements of City Council Policy F -14 because we had recently learned that the BID does not have the authority to contract on its own. The Council directed staff to amend the proposed agreement so that its term is limited to this fiscal year and it covers only the January 2010 Restaurant Week. The Council also directed that a request for proposals be issued for marketing and project management of the October 2010 Restaurant Week. Analysis: For January 2010, staff is recommending the 2009 through March 31, 2010. These dates completion of the final evaluation and closing The October 2010 event will be subject to compliance with Policy F -14. Jan 2010 Restaurant Week PSA December 8, 2008 Page 2 agreement be for the period October 1, encompass when work began through of accounts for the January 2010 event. a separate contract, which will be in The attached Professional Services Agreement is for $71,250. The source of the funds will be the $50,000 already approved and appropriated for this purpose by the City Council as part of the budget adoption in June 2009. Any expenses in excess of the City budget commitment, or commissions earned by CIVIC, will be paid from NBRA budget/levy or from the sponsorships. The City's liaison to the NBRA will be monitoring and signing expenditures under the PSA. Environmental Review: Approval of the Agreement is not a project as defined by CEQA. Funding Availability: The City Council, as part of the budget process in June 2009, approved $100,000 in funding to the Restaurant Association BID to underwrite the cost of the two restaurant week events in 2010 - January and October. This PSA would expend half of the funding. Prepared by: Submitted by eig M. "De Santi Sharon Z. Wood, Economic Development Administrator Assistant City M< Attachments: 1. Staff Report for November 24, 2009 2. Professional Services Agreement PROFESSIONAL SERVICES AGREEMENT WITH CALIFORNIA MARKETING CONCEPTS, INC. FOR TWO RESTAURANT WEEK CAMPAIGNS IN CALENDAR YEAR 2010 THIS AGREEMENT is made and entered into as of this 8th day of December 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City ") and CALIFORNIA MARKETING CONCEPTS, INC., a California Corporation ( "Consultant "), whose address is P.O. Box 5711, Balboa Island, CA 92662, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City requires event planning, event administration, project marketing and sponsorship development services for City's January 2010 Restaurant Week. C. City desires to engage Consultant to provide event planning, event administration, marketing and sponsorship development services for City's January 2010 Restaurant Week. Planning, execution and close -out of the January 2010 Restaurant Week shall constitute the "Project ". D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of this Project, shall be Peggy Fort. F. The City has solicited and received a proposal from Consultant, reviewed the previous experience and evaluated the expertise of Consultant, and recommends Consultant to City to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: fiTiV, The term of this Agreement shall commence on the 1St day of October, 2009 , not the above written date, and shall terminate on the 315t day of March 2010, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and maximum bonus, if earned, shall not exceed Seventy -One Thousand Two Hundred Fifty and No /100 Dollars ($71,250), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1. MARKETING & PUBLIC RELATIONS From October 1, 2009 through March 31, 2010, City shall pay Consultant for all marketing and public relations services including, but not limited to, ongoing consulting, execution and marketing activities as outlined in Exhibit A, at a rate of $3,500 per month in accordance with the provisions of this Section and Exhibit A. Consultant's compensation for all marketing 2 4.2 4.3 4.4 and public relations tasks performed in accordance with this Agreement shall not exceed Twenty -One Thousand Dollars and No Cents ($21,000.00) without prior written authorization from City. PROJECT MANAGEMENT City shall pay Consultant for overall project management and execution of additional campaign coordination and administrative services tasks as outlined in Exhibit A, at an hourly rate of Thirty Dollars ($30.00) per hour in accordance with the provisions of this Section and Exhibit A. Consultant's compensation for overall project management and execution of additional campaign coordination and administrative services tasks performed in accordance with this Agreement shall not exceed Twenty -One Thousand Four Hundred Fifty Dollars and No Cents ($21,450) without prior written authorization from City. REIMBURSABLE ITEMS City shall reimburse Consultant up to Three Hundred Dollars and No Cents ($300) per month, without prior written approval, for out of pocket expenses incurred in the performance of work executed on behalf of the City and NBRA. Such out of pocket expenses include, but are not limited to, reimbursements of postage, photocopying, messenger, printing, seminars etc. Out -of- pocket expenses in excess of $300.00 per month shall require advance written approval by City. SPONSORSHIP DEVELOPMENT - INCENTIVE BONUS PLAN Consultant shall develop, solicit and secure event sponsorships. Subject to the exclusions set forth below, Consultant shall be paid a bonus as an incentive for all cash sponsorships actually received by the City for the Project in advance of the event, provided that the cash sponsorship is directly attributable to Consultant's efforts as follows: SPONSORSHIP DEVELOPMENT INCENTIVE BONUS PLAN CIVIC INC. ACCUMULATIVE REVENUE GENERATED $ 10,000 $ 20,000 $ 30,000 $ 40,000 $ 50,000 $ 60,000 $70,000 $ 80,000 $ 90,000 $1,000 Bonus Paid $1,500 Bonus Paid $2,000 Bonus Paid $2,500 Bonus Paid $3,000 Bonus Paid $3,500 Bonus Paid $4,000 Bonus Paid $4,500 Bonus Paid $5,000 Bonus Paid The maximum bonus Consultant shall be entitled to receive under the incentive bonus plan shall be Twenty Seven Thousand Dollars and No 3 Cents ($27,000.00). The Parties hereto expressly agree that the bonuses called for hereunder shall be paid to Consultant from cash sponsorships actually received by the City. The Parties also expressly agree that the following shall be expressly excluded and not be considered to be cash sponsorships for purposes of determining the bonus set forth herein: A. Any funding or cash sponsorships received from the City, Visit Newport Beach, Inc. (formerly the Newport Beach Conference and Visitors Bureau), and the Newport Beach Restaurant Association. B. Any In -Kind sponsor Consultant secures and develops. 4.2 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid at an hourly rate of Thirty Dollars ($30) per hour. 4.5 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this 4 Agreement, no further payments shall be made until the conclusion of Restaurant week. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated PEGGY FORT to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Economic Development Department. LEIGH M. DE SANTIS shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 5 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. 6 ,: Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of 7 ; Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence, E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services 8 provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written I consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work,. data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS 10 City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Leigh M. De Santis 11 �• �, With a copy to: Planning Department City of Newport Beach PO Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Phone: 949 - 644 -3207 Attention: President NBRA P.O. Box 2295 Newport Beach, CA 92659 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Peggy Fort CIVIC, Inc P.O. Box 5711 Balboa Island, CA 92662 Phone: 949 - 675 -0501 Fax: 949 - 675 -0508 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, 12 ; Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this 13 Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: David R. Hunt City Attorney ATTEST: By: Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Edward D. Selich Mayor CONSULTANT: California Marketing Concepts, Inc. M A Peggy Fort, President (Financial Officer) Print Name: Attachments: Exhibit A — Scope of Services 14 s NEWPORT REACH RES`rAURANT WEEK JANUARY 2010 (Attachment -A) CMV INCa PRIMARY OBJECTIVES COMPREHENSIVE CIE OF WORK Project Management} Marketing & Public Relations - Retainer Administrative Service & Coordination - Hourly Billing Updated: December 2009 Respectfully Submitted By. California Marketing Concepts, Inc. 1550 Bayside Drive Corona del Mar, CA 92625 (949) 675 -0501 - askamc.com JANUARY _JANUARY 2010 NEWPORT BENCH RESTAURANT WEEK �NIC IH% WORK AQRFi�AENT (Attachment A) • January 22nd -28th, 2010 • NBRW Orientation - January 6th, 2010 • Gala VIP Media Launch Event - January 13th, 2010 • Launch Pre Party Event - January 21st, 2010 PROJECT OWNERSHIP • The City of Newport Beach and NBRA BID to own NBRW promotion and campaign materials including: brand, logos, ads, artwork event names, tag lines, etc. • Newport Beach Restaurant Association BID & City of Newport Beach • Corporate, Media, Community & Industry Sponsorship Campaign • Community & Industry Partners: Visit Newport Inc, Irvine Company, NB Chamber, CdM Chamber, BIDs, CRA, & AOCCVB CMC INC. PRIMARYOBJECTIYES • Produce a successful Newport Beach Restaurant Week campaign in January 2010 that generates incremental revenue and brands Newport Beach as a dining destination, which everyone will benefitfrom -the patrons, the restaurants and the City. • Plan, direct, and coordinate NBRW operational activities at the highest level of management with the help of sub - contractors, the City and NBRA BID Board of Directors. • Determine and formulate marketing programs and policies providing the overall direction of Newport Beach Restaurant Week within the guidelines set up by the NBRA BID Board of Directors. • Determine the demand for NBRW. Identify NBRW benefits, potential customers and competition. Develop NBRW pricing and marketing strategy with the goal of maximizing participation & profit share of the market. Ensure that restaurants and sponsors are satisfied. 2 i� CMC INC. PRIMARY OOJECTNES - CONT, Develop & execute an aggressive and tangible marketing and public relations campaign to brand Newport Beach as a dining destination, increase sales revenues, drive traffic to NewportBeachDining.com, create community awareness and leverage strategic partnerships. Oversee NBRW campaign development, results and monitor trends that indicate the need for new marketing & public relation programs, promotions and services. • Plan and direct media advertising policies and programs or produce collateral materials, such as POP Displays, brochures, check stuffers, posters, contests, coupons, or give - aways, to create extra interest in NBRW. • Plan and direct public relations policies and programs or produce print, online and broadcast editorial coverage and publicity to create extra interest in NBRW. • Plan and direct public relations and sponsorship programs designed to create and maintain a favorable public image for NBRW. Plan and direct sponsorship programs and activities designed to solicit and maintain funds. • Increase restaurant business and sales revenues during The Restaurant Week. The NBRW campaign to take place during a relatively slow time of the year and provide new and exciting benefits to NBRA BID restaurants. • Develop valuable media and community partnerships as a result of Restaurant Week. Develop valuable hospitality industry, purveyor and corporate sponsors as a result of Restaurant Week. • x JANUARY 2010 NEWPORT BEACH RESTAURANT WEEK CMC INC. WORK AGREEMENT (Attachment A - Continued) PQMON 71TLE- NBRW DIRECTOR — MONTHLY RETAINER FEE. 500 Peggy Fort, President and CEO CIVIC Inc. RESTAURANT WEEK PROJM MANAGEMENT MARKETING & PUBLIC RELA710NS R!MES & RESPONSIBILBIES: Overall Project Management, Marketing, Public Relations, Restaurant Participation & Sponsorship Development TASKS: OVERALL PROJECT ANAGEmENT • Assign Responsibilities to Sub - Contractors & Volunteers • Compile & Evaluate NBRW Post Campaign Survey Feedback & Results • Confer with City, NBRA BID Board Members, Restaurant Owners, Sponsors & Vendors to Discuss Issues, Coordinate Programming, Develop Marketing Activities, & Resolve Problems • Develop & Manage NB Restaurant Week Charity Component • Develop Agendas, Informational Meetings & Sub- Committee Meetings • Manage Dynamic Budget & Cash Flow in Conjunction with NBRA BID Board of Directors • Manage Dynamic Project Schedules & Production Timelines • Manage NBRW Executive Working Sub - Committee Comprised of NB Restaurant Owners • Manage NBRW Participants, Strategic Partners, Sponsors, Project Coordinators, Sub - Contractors & Vendors • Negotiation & Strategic Planning of NBRW Partnerships, Special Events & Promotions • Prepare & Present Reports Concerning Marketing Activities, Expenses, Budgets, & Other Items Affecting Business or Program Services • Prepare NBRW Budgets for Approval, Including Funding & Implementation of Programs • Promote Restaurant Week Experience Specific To Each NB Neighborhood • Review & Present Reports & Proposals to Recommend Approval or to Suggest Changes • Secure Internal Active Participation of Newport Beach Restaurants n JM_KJ- CONr OVERALL MARK N© PLAN DEVELOPMENT • Compile Lists & Promotional Pieces Describing NBRW Benefits & Offerings • Conduct Economic & Commercial Surveys to Identify Potential Markets to Promote NBRW • Coordinate & Participate in Promotional Activities & Community Events, Working with Strategic Partners, Sponsors, Media Outlets, and Restaurant Owners to Market NBRW • Create & Execute Post NBRW Bounce Back Promotion • Create Newport Beach Restaurant Week Identity Consistent Brand • Create Newport Beach Restaurant Week Marketing Collateral Consistent Brand • Develop & Execute Aggressive Ongoing Marketing Campaign to Promote NBRW • Develop & Execute Aggressive Ongoing Public Relations Campaign to Promote NBRW • Develop & Execute NBRW Restaurant Marketing & Promotion Plan • Develop Internet Marketing Opportunities Driving More Consumers to NBRA BID Official Web Site www.NewoortBeachDinina.com Leveraging Online Reservation System • Develop Internet Marketing Opportunities to Leverage Online Reservation System • Develop Social Networking & Media Marketing Campaigns Driving More Consumers to: www.Newr)ortBeachDinine.com • Expand & Execute Marketing & Publicity Campaign in Local, Tourism and Hospitality Markets • Expand & Execute Media Advertising Campaign Through Partnership Marketing Opportunities • Formulate, Direct & Coordinate Marketing Activities & Policies to Promote NBRW with Team. • Identify, Develop, & Evaluate Marketing Strategy, Based on Knowledge of NBRW Objectives, Market Characteristics, Cost & Markup Factors • Use Sales Forecasting & Strategic Planning to Ensure Success & Profitability of NBRW Analyzing Industry Developments & Monitoring Market Trends SPONSORSHIP PROGRAM DEVELOPMENT • Develop Corporate Sponsorship Package & Benefits • Develop Internal Marketing & Sponsorship Package • Develop NBRW Sponsor Stewardship Report ■ Secure Industry & Corporate Cash Sponsors on behalf of NBRW • Secure Media In -Kind Sponsorships on behalf of NBRW • Secure Minimal Buy -In Cost & Benefits For NBRW Restaurant Participants • Service All NBRW In -Kind Media, Corporate Sponsors & Industry Purveyors • Solicit Corporate & Industry Purveyors To Secure Strategic Partnerships STRATEGIC PARTNERSHIP DEVELOPMENT • Build City, CRA, Visit Newport Inc. & Chamber of Commerce Support • Develop Restaurant Participation & Cooperation • Secure Event, Flag & Banner Permits • Secure Food Industry Purveyor In -Kind Contributions • Secure In -Kind Contributions & Volunteer Support • Secure NBRA BID & City Funding • Secure Restaurant In -Kind Contributions - Launch Events, etc. CREATIVE COLLATERAL, g BRAND I0EN7TTYCAMPA1QN • Create & Display Citywide Flags, Banners & Signage • Create Newport Beach Restaurant Week Display Material & Posters • Create Newport Beach Restaurant Week Postcard & Insert Production • Develop & Distribute Orientation & Marketing Packets for Participants • Develop & Execute Ad Campaign Creative & Graphic Design • Develop NBRW Internal Sign Up Packets & Restaurant Marketing Kits • Develop Newport Beach Restaurant Week Identity Package Design • Initiate Direct Mail Campaigns, Inserts & Postage TASKS -CONT: RESTAURANT WEEK WEB MM DEVELOPMENT • Develop Social Networking Identity on Internet Driving Traffic to NBRW & www.Newt)orkBeachDinia.com • Develop Strategic Internet Cross Promotional Campaigns & Link Alliances • Strategize & Oversee NBRW Blog Posts on www.Newo0rtSeachDIning.com • Strategize & Oversee NBRW Web Site Refresh - NBRW Announcements, Menus, Events, etc. SOCIAL MEDIA MARKEnNG DEVELOPMENT • Develop & Strategize NBRW VIP Text Club Campaigns • Develop & Strategize Strategic Social Media Campaign to Leverage Publicity, Build Brand Awareness & Generate Participation in NBRW • Develop Strategic Social Media Marketing Campaign & Cross Promotions on Face Book, Twitter, MySpace & Foodie Blogs MEDIA CAMPAIGN DEVELOPMENT • Discuss & Negotiate Topics Such as Contracts, Selection of Advertising Media, or Messaging to be Advertised • Gather & Organize Information to Plan Advertising Campaigns • Inspect Layouts, Advertising Copy & Edit Scripts, Audio & Video Tapes, & Other Promotional Material for Adherence to Media Specifications • Plan & Prepare Advertising & Promotional Material to Increase Participation in NBRW • Prepare & Negotiate Advertising & Media Sponsor Contracts • Read Trade Journals & Professional Literature to Stay Informed on Trends, Innovations, and Changes that affect Media Planning ADVERTISING & DIRECT MAIL CAMPAIGN DEVELOPMENT • Direct & Manage LA Times NBRW Spadea Wrap Campaigns • Manage City Water Bill Insert Campaign - November & December • Manage Insert Campaigns with Media Partners • Manage Southern California Online Ad Campaigns - OC Register, LA Times, Daily Pilot etc. • Manage Southern California Print Ad Campaigns - OC Register, LA Times, Daily Pilot etc. )DEVELOPMENT OF MEDIA IN -KIND SPONSORSHIPS & CONTRIBUTIONS SECURE & MANAGE OFFICIAL MEDIA PARTNERSHPS PRINT & ONLINE MEDIA PARTNERS • 944 Magazine • Churm Publishing OC Metro, Metro Menus • Coast Magazine • Dining Out Magazine • Laguna Beach independent Newspaper • LiveOC Magazine • Los Angeles Times Community News - Daily Pilot, HB Independent, LB Coastline Pilot • Newport Beach Magazine • OC Weekly Newspaper • Orange Coast Magazine • Riviera Magazine BROADCAST RADIO PARTNERS • 101.5 KOCI Radio 92.7 JILL FM Radio • Develop PSA Radio Spots KABC Talk Radio - Chef Talk i' TASKS - COMM ONLINE & SOCIAL MEDIA PARTNERS • DailyCandy.com • DailyVoice.com • GreersOC.com • OCMenus.00m • Opentable.com • Yelp.com • Develop Thirty Second Promo Spot- Newport Production Company • KOCE -TV Potential Sponsorship Opportunity • NB TV News • PSA Spots - Local Cable, Comcast Time Warner Cable TV P11.18140 RELATIONS DEVELOPMENT • Act as Official NBRW Spokesperson • Coordinate & Invite Media To Newport Beach Restaurant Week Events • Coordinate Interviews with Participating Restaurant Chefs & NBRA Board of Directors • Develop & Leverage Ongoing Publicity Campaign to Promote NBRW • Develop & Maintain NBRW Image & Identity, Which Includes the Use of Logos & Signage • Develop Newport Beach Restaurant Week Press Kit • Develop Pre & Post- Publicity Campaign • Develop Radio & Cable Packages with Media Partners • Establish & Maintain Effective Working Relationships with Local & Municipal Government Officials & Media Representatives • Evaluate Advertising & Promotion Programs for Compatibility with Public Relations Efforts • Execute & Supervise & The Activities of Public Relations Campaign • Expand Editorial Coverage Through Ad Buys & Editorial Calendar Research • Identify Main Campaign Target Demographic Groups & Audiences & Determine the Best Way to Communicate Publicity Information to Them. • Manage & Oversee NBRW Photography & Video Clips Consistent with Brand • Manage Relationship with Business Newswire Services • Manage Relationship with Online Media Monitoring & Clipping Services • On -Going Media Servicing on Behalf of NBRW PR Opportunities • On -Going NBRW Press Release Development & Media Pitching • Write Interesting & Effective Press Releases & Prepare Information for Media MEDIA OUTLETS • Business Newswire Releases: All Southern California Media Outlets • Local Print Newspapers and Periodicals: Los Angeles Times, OC Register, Daily Pilot, LB Coastline, HB Independent, The Current, Riviera Magazine, Coast Magazine, Orange Coast Magazine, Newport Beach Magazine, 944 Magazine, OC Live, OC Weekly, etc. • Consumer Tourism Publications: Sunset Magazine, Where Magazine, Local Concierge, etc. • Meeting & Corporate Market Publications: i.e.: Meetings in the West, Convene, etc. • Business Publications: i.e.: OC Metro, OC Business Journal, Local Restaurant News • Food & Wine Publications: Dining Out, Metro Menus, Dining & Destinations, etc. • Restaurant & Hospitality Industry Publications: Great Taste, Restaurant Industry • Local Association Outreach & Newsletters: Balboa Beacon, NB & CdM Chamber Newsletter, NBCVB & AOCVB Newsletter & Visitor Guides, etc. 7 TASKS -CONT: PRODUCE OFFICIAL PRESS EVENT • Coordinate Interviews with Restaurant Chefs, City Officials & NBRA Board of Directors • Coordinate Media To Attend Restaurant Week Press Conference • Produce All Aspects Of NBRW Press Events to Leverage Publicity Coverage COMMUNUX RELARONS DR LOPMENT • City Council Meeting Presentations & Ongoing Meetings • Conduct Presentations to Promote NBRW in Community • Coordinate Meetings & Presentations to Promote NBRW in Community • Develop Grassroots Community Relations Marketing Plan • Direct & Answer Consumer Messaging & Questions Re: NBRW • Recruit Community Volunteers Outreach Campaign PRODUCE RESTAURANT WEEK SPECIAL EVENTS • Produce & Direct All Aspects NBRW Special Events on Day of Event • Produce NBRW Orientations For Restaurant Owners - Winter • Produce Restaurant Week Gala Launch Party - January • Produce Restaurant Week Pre & Post Party Sponsor Events • Arrange Venue, Audio - Visual Equipment, Transportation, Displays, & Other Needs • Conduct Post -Event Evaluations to Determine How Future Events Could be Improved • Confer with Partners, Staff & Volunteers at Event Site to Coordinate Details • Confirm Media Attendance at Gala Launch Events • Consult with NBRA BID Board and Restaurant Owners to Determine Objectives & Requirements for NBRW Events Such as Orientations, Media Events, Gala Launch Party, & NBRW Pre Parties • Coordinate All Aspects Of NBRW Special Events • Coordinate Services for Events, Such as Facilities, Catering, Signage, Displays, Special Needs Requirements, Printing & Event Security • Develop Strategy, Logistics and Negotiate Event Detail • Manage Charity Component & Work With Official Benefactor If Appropriate • Monitor Program & Event Activities to Ensure Compliance with Applicable Regulations & Laws, Satisfaction of Participants, & Resolution of any Problems that Arise. a a. JANUARY 2010 NEWPORT SEA CH RESTAURANT WEEK CMC INC. WORK AGREEMENT (Attachment A - Continued) ADMINISTRATIVE SERVICE & COORDINATION — HOURLY FEE: S30 *NOT TO EXCEED. $21.450 CIVIC Inc. Associate (s) COMPREHENSIV9 z COPE OF WORK RESTAURANT WEEK ADMINISTRATIVN & COORDINATION DUTIES & RESPONSIBILITIES Perform routine clerical and administrative functions such as drafting correspondence, scheduling appointments, organizing and maintaining paper and electronic tiles, or providing information to callers. Provide ongoing NBRW administrative service, coordination & support to NBRW Director /Project Manager; conduct research, prepare statistical reports, handle information requests. Perform some duties too varied and diverse to be classed in any specific office clerical category requiring limited knowledge of NBRW, office management systems and NBRA BID procedures. Clerical duties may be assigned in accordance with the office procedures of individual marketing programs and may include a combination of answering telephones, bookkeeping, typing or word processing, office machine operation and filing, etc. TASKS: NBRW ADMINISTRATIVE ASSISTANCE • Answer Telephones & Provide Information to Callers, Take Messages, or Transfer Calls to Appropriate Individual • Assist with Compiling Lists Describing NBRW Marketing programs, special events & Promotions • Assist with Copying Agendas, Handouts & Make Arrangements for Committee, NBRA BID Board, & Other Meetings • Communicate with Customers & Other Individuals to Answer Questions, Disseminate or Explain Information & Address Complaints • Compile, Copy, Sort & File Records of Activities, Business Transactions, & Other Activities • Compute, Classify, Update Databases & Record Data to Keep Records Complete • File & Retrieve Official Documents, Records & Reports • Greet Visitors & Callers, Handle Their Inquiries & Direct Them to the Appropriate Person or Resource According to their Needs • Learn to operate new office technologies as they are developed & implemented i7 ri TASKS — CONT,: • Maintain & update filing, inventory, mailing, and database systems, either manually or using a computer • Make Copies of Correspondence & Other Printed Material • Open, Sort & Distribute Incoming Correspondence, Including Faxes & Email • Operate & Program Office Equipment Such as Fax Machines, Copiers & Phone Systems, & Scanners, Voice Mail Systems & Personal Computers • Operate Computer Programs to Record, Store & Analyze Information • Perform General Office Duties Such as Filing, Answering Telephones & Handling Routine Correspondence • Perform General Office Duties Such as Ordering Supplies, Maintaining Records Management Systems & Performing Basic Bookkeeping Work • Prepare Invoices, Reports, Memos, Letters, Financial Statements & Other Documents using Word Processing, spreadsheet, database, or presentation software • Prepare Responses to Correspondence Containing Routine Inquiries • Set Up & Maintain Paper & Electronic Filing Systems for Records, Correspondence & Other Material • Use Computers for Spreadsheet, Word Processing, Database Management & Other Applications MISC, RESTAURANT ADMINISTRATION • Assist with Coordinate NBRW Official Mailings • Assist with Coordination of NBRW Participant Orientation Meetings • Assist with Restaurant & Participant Servicing & Correspondence • Follow Up Contact & Servicing with NBRW Participants Re: Sign Ups, Paperwork, Menu Development, In -Store Display & Promotion, Deliveries, etc. MIS% SPECIAL WM ASSISTANCE • Assist with Coordination of NBRW Gala Event, Pre Party Events • Assist with Coordination of NBRW Press Conference • Assist with Coordination of NBRW Volunteers • Coordinate NBRW Sub - Committee Agendas • Assist with NBRW Social Marketing Campaign • Assist with NBRW Web Site Refresh - Collect & Organize Content, etc • Assist with NBRA Online Reservation Feature Updates in Conjunction with Vendor • Assist with Web Site Updates & Refresh for NBRW • Misc. Research & Postings on Blogs & Social Networking Sites • Update & Proof NBRW Content, & Link Alliances MARKETING COORDINATION ASSISTANCE • Assist with Coordinating Marketing Activities to Promote NBRW Working with Project Manager & NBRW Director • Assist with Coordinating NBRW Database Management • Assist with Coordination of NBRW Vendors • Assist with Execution of Marketing Strategy Based on Knowledge of NBRW Objectives, Trends & Budget • Assist with Sponsor Servicing and Correspondence • Assist with coordination & participate in promotional activities & special events, working with restaurants, sponsors and vendors, to market NBRW • Assist with NBRW Survey, Results, & Misc. Servicing to