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HomeMy WebLinkAboutC37062 Extension FY 20-21 El Paseo Business Improvement District (EPBID) Advertising SvcsCONTRACT NO. C37062 STAFF REPORT CITY OF PALM DESERT ECONOMIC DEVELOPMENT DEPARTMENT MEETING DATE: July 9, 2020 PREPARED BY: Thomas Soule, Tourism & Marketing Manager REQUEST: Extend by one year the contract between the City of Palm Desert and FG Creative, Inc. to provide Advertising Services for the El Paseo Parking & Business Improvement District, and consent to the assignment of the contract from FG Creative to CV Strategies. Recommendation By Minute Motion that the City Council: Approve a one-year extension of Contract No. C37060 to FG Creative, Inc. to provide advertising services for the El Paseo Parking & Business Improvement District; and 2. Consent to the assignment of the contract from FG Creative to CV Strategies, and 3. Authorize the City Attorney to formulate an extension and assignment acceptance to the contract and the Mayor to execute the extension on behalf of the City. Funds are available in Account No. 2714491-4321500. Committee/Commission Recommendation At its regular meeting on February 20, 2020, the El Paseo Parking & Business Improvement District (EPPBID) Board of Directors recommended to the City Council that the contract with FG Creative to represent the district as its advertising agency be renewed for one year. Background Analvsis After a competitive selection process and with the full support of the EPPBID Board, the City Council approved a one-year contract with FG Creative for Fiscal Year 2018/19 to provide advertising services for the EPPBID. The contract allows the City the unilateral option, at its sole discretion, to renew the agreement automatically for up to two additional one-year terms. This would be the second and final one-year extension of the agreement. The original contract provides FG Creative a monthly retainer of $2,000, for work that includes, but is not limited to, the following services: Development of an annual budget that includes a comprehensive, strategic, and diversified media plan. Negotiation, scheduling, and maintainance of media buys. July 09, 2020 — Staff Report Renew EPPBID Marketing Contract with FG Creative Page 2 of 3 • Development of an annual branding campaign and create all graphic assets as needed to fulfill the media plan. • Organiztion and management of two merchant meetings per year. • Management of public relations efforts on behalf of the EPPBID. Hard costs associated with online advertising placement and other media buys are not included in the monthly retainer and are accounted for in Exhibit "C" of the original contract. However, due to the unknowns presented by the COVID-19 crisis, the board has been especially thoughtful about creating a budget for FY 2020/21. While hoping for the best, the board is planning for a large drop in revenue for the District. Working with staff — and taking into account their cash reserves — the Board has approved a budget of $192,000, which includes an adjusted monthly retainer for FG Creative of $1,500 per month that includes the services listed above with the exception of public relations services. The total amount of the contract for FY 2020/21 is $192,000. The Board will revisit the budget on a quarterly basis to evaluate the situation and make any needed changes to their spending plan accordingly. if revenue outperforms projections, staff will return to Council with a revised plan before any further spending is added to the proposed budget. Furthermore, partly as a response to the COVID-19 crisis, FGC will merge on August 1, 2020, with CV Strategies, a local PR firm, to create a new agency that will be able to offer more services and new areas of expertise. When the merger is complete, staff requests the City Councils' consent to assign Contract No. C37060 to CV Strategies. Based on the recommendation of the EPPBID Board, staff recommends the renewal of the contract with FG Creative for advertising services for a one-year period, from July 1, 2020, to June 30, 2021. Fiscal Analvsis The cost of the subject contract and media buys are funded through the EPPBID annual assessments collected from district members and there is no impact on the City's General Fund. Funds are available in Account No. 2714491-4321500. LEGAL REVIEW RH DEPT. REVIEW Martiw AL,va�rea FINANCIAL REVIEW ya .et -m. "'Oou Robert W. Martin Alvarez Hargreaves Director of Economic Janet M. Moore City Attorney Development Director of Finance City Manager, Lauri Aylaian: VENDOR: Stephanie D. Greene FG Creative, Inc. 73-585 El Paseo, Suite A-1126 Palm Desert, CA 92260 ASSISTANT CITY MANAGER N/A Andy Firestine Assistant City Manager July 09, 2020 — Staff Report Renew EPPBID Marketing Contract with FG Creative Page 3 of 3 ATTACHMENT: Contract C37060 I I I y Of PRIM UESERI 7;-510 Fm:i) WARIN(i DRIVE PALM DESERT,CALIFORNIA 92260-2578 TEL: 760 346—o6i x info 'a ciryofpalmdeaert.org June 28, 2018 Stephanie Greene, CEO FG Creative, Inc. 74-020 Alessandro, Suite E Palm Desert, California 92260 Dear Ms. Greene: Subject: Contract No. C37060 — Advertising Services for the El Paseo Parkins and Business Improvement District At its regular meeting of May 24, 2018, the Palm Desert City Council, by Minute Motion: 1) Approved the award of subject contract to FG Creative, Inc., Palm Desert, California, in the amount of $235,000 that includes $24,000 for advertising consulting services for the El Paseo Business Improvement District and a reimbursement in an amount not to exceed $211,000 for advertising production; 2) authorized City Attorney to make non -substantive changes to the contract and Mayor to execute same on behalf of the City. Enclosed is a fully executed Agreement for your records. If you have any questions or require additional information, please do not hesitate to contact us. Sincerely, SS RACHELLE D. KLASSEN, MMC CITY CLERK RDK:mgs Enclosure (as noted) cc/enc: Thomas Soule, Tourism and Marketing Manager Finance Department ILI CITY OF PALM DESERT CONTRACT NO. C37060 PROFESSIONAL SERVICES AGREEMENT MARKETING SERVICES CITY OF PALM DESERT PROFESSIONAL CONSULTANT SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this 24TH day of MAY , 20 18 , by and between the City of Palm Desert, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California, 92260 ("City") and FG Creative, Inc., a corporation in California, with its principal place of business at 74-020 Alessandro, Suite E, Palm Desert, CA 92260 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional marketing consulting services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing professional marketing consulting services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such professional marketing consulting services for the City's tourism and general marketing ("Project") as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional marketing consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. CONTRACT NO. C37060 All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from July 1, 2018 to June 30, 2019, unless earlier terminated as provided herein. Automatic renewal of the contract is not to exceed three consecutive years. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 3.2 Responsibilities of Consultant. 3.2.1 Independent Contractor; Control and Pavment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.5 Citv's Representative. The City hereby designates Thomas Soule, Tourism & Marketing Manager, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's CONTRACT NO. C37060 Representative"). Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee. City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant, but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents that increase the Scope of Work or change the Consultant's total compensation, subject to the provisions contained in Section 3.3 of this Agreement. 3.2.6 Consultant's Representative. Consultant hereby designates Stephanie Greene, CEO, or her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all times. 3.2.8 Standard of Care; Performance of Emplovees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub - consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all CONTRACT NO. C37060 violations of such laws and regulations in connection with Services. If Consultant performs any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.2.10 Insurance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. 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 that is satisfactory to City. General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted. 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 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 $1,000,000 combined single limit for each accident. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City of Palm Desert, its officers, agents, employees and volunteers. Umbrella or Excess Liability Insurance. Consultant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Consultant may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set CONTRACT NO. C37060 forth above, including commercial general liability and employer's liability. Such policy or policies shall include the following terms and conditions: • A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; • Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; and • Policies shall "follow form" to the underlying primary policies. • Insureds under primary policies shall also be insureds under the umbrella or excess policies. OTHER PROVISIONS OR REQUIREMENTS Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Duration of Coverage. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his/her agents, representatives, employees or subconsultants. Primary/Non-Contributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect it as a named insured. City's Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant, or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. CONTRACT NO. C37060 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers 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. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers, or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers, and shall require similar written express waivers and insurance clauses from each of its sub -contractors. Enforcement of Contract Provisions (non estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 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 the 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. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. Additional Insured Status. General and automobile liability policies shall provide or be endorsed to provide that the City of Palm Desert and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. CONTRACT NO. C37060 Prohibition of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability. The policy(ies) shall not contain any cross -liability exclusions. Pass Through Clause. Consultant agrees to ensure that its sub -consultants, sub- contractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with consultants, sub -contractors, and others engaged in the project will be submitted to City for review. City's Right to Revise Specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation. Self -Insured Retentions. Any self -insured retentions must be declared to and approved by City. City reserves the right to require that self -insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City. 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. 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. Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, CONTRACT NO. C37060 and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. 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. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed Two Hundred Thirty -Five Thousand Dollars ($235,000) without authorization of the City Council or City Manager, as applicable, per the Palm Desert Municipal Code. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Pavment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges thereon. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without authorization from the City Council or City Manager, as applicable, per the Palm Desert Municipal Code. 3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit "C" may be adjusted each year at the time of renewal as set forth in Exhibit "C." CONTRACT NO. C37060 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. 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 under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Aqreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: FG Creative 74-020 Alessandro #E Palm Desert, CA 92260 ATTN: Stephanie Greene, CEO CONTRACT NO. C37060 City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 ATTN: Thomas Soule, Tourism & Marketing Manager Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentialitv. 3.5.3.1 Documents & Data; Licensinq of Intellectual Propertv. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings and data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 3.5.3.2 Confidentialitv. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. CONTRACT NO. C37060 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement. 3.5.5 Attornev's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action. 3.5.6 Indemnification. 3.5.6.1 Scope of Indemnity. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's Services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 3.5.6.2 Additional Indemnitv Obliqations. To the fullest extent permitted by law, Consultant shall defend, with counsel of City's choosing and at Consultant's own cost, expense and risk, any and all claims, suits, actions or other proceedings of every kind covered by Section 3.5.6.1 that may be brought or instituted against City or its directors, officials, officers, employees, volunteers and agents. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, volunteers and agents as part of any such claim, suit, action or other proceeding. Consultant shall also reimburse City for the cost of any settlement paid by City or its directors, officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City's attorney's fees and costs, including expert witness fees. Consultant shall reimburse City and its directors, officials, officers, employees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, agents, or volunteers. 3.5.7 Entire Aareement. This of the parties with respect to the subject negotiations, understandings or agreements. a writing signed by both parties. CONTRACT NO. C37060 Agreement contains the entire Agreement matter hereof, and supersedes all prior This Agreement may only be modified by 3.5.8 Govemina Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 Citv's Riaht to Emplov Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, CONTRACT NO. C37060 benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third-Partv Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invaliditv; Severabilitv. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation, or to undertake self-insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authoritv to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. CONTRACT NO. C37060 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. [SIGNATURES ON NEXT PAGE] CONTRACT NO. C37060 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND FG CREATIVE, INC. CITY OF PALM DESERT Sabby Jorthan Mayor Attest: By: Rachelle D. Klassen, City Clerk City of Palm Desert, California Approved as to Form: B st est & r ger LP y Attorney FG CREATIVE, INC. By: Stephanie Greene, CEO CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California n ) County of On A,.)- n ^ x i 6 before me, Date 1 Here Insert Name and Title of the O is personally appeared J I C1-,nI Q. (::--f e.,tr\ <-, Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the perso whose name/ is/ywe su scribed// to the within instrume t and acknowl dged t me that ", he/ ey executed the same in 0/her/thvlr authorized capacity(i ), and that by I /her/tIAir signatureA on t e instrument the person(,W1 or the entity upon behalf of which the personlacted, executed the instrument. Y' I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. '� •^ JEFf R KALLMANN WITNESS my hand and official seat. / # 2225133 `'l_ �' N'•i, •Y F'�:!C :ALf6HNU V' 1J414; eM, c. �„ F f Signatureit�a ture of o ry Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Corporate Officer - Title(s): Partner - Limited 7 General Individual ' Attorney in Fact Trustee Guardian or Conservator Other: Signer Is Representing: Number of Pages: Signer's Name: I Corporate Officer - Title(s): Partner - -- Limited __ General Individual i�j Attorney in Fact - Trustee ;. I Guardian or Conservator Other: Signer Is Representing: _ .,,..,,,•.�:eeex:ererc,�:er:e�x.�e:ex:exeex.exr:e,�e;cx:<;rsutercc:c.�c::e,�eex:eyee�c:ex:Ccc,�e:Gnu,�e=cx:ex;e,�,�x:�x:e,�u,�=�.cexe.�.t>e:e,� 02016 National Notary Association - www.NationaiNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CONTRACT NO. C37060 EXHIBIT "A" SCOPE OF SERVICES • Develop an annual budget that includes a comprehensive, strategic and diversified media plan and account management that promotes El Paseo to its target audience, in accordance with direction provided by the Board. This media plan should demonstrate maximum efficiency of spend and a clear ability to measure return on investment (ROI). • Negotiate, schedule and maintain media buys in accordance with the approved media plan. Please note that all buys performed on behalf of the EPPBID must be billed at net amounts. • Provide media administrative services including, but not limited to, record keeping; flowcharts; budget recaps; billing; processing payment; maintaining media buy schedules; buy confirmations; tracking make goods and credits; trafficking of creative materials. • Develop and implement a monthly merchant outreach program. • Attend and present pertinent updates at the monthly EPPBID Board meetings. • Evaluate all media proposals submitted to the Board and issue recommendations based on cost, validity, and perceived benefits to the marketing/advertising objectives of the Board. • Provide monthly and quarterly reports summarizing project activities and achievements of all services outlined in this scope of work. • Submit detailed invoices to include the projects and services worked on or completed with supporting documentation for the previous month's activities. • Develop an annual branding campaign and create all graphic assets as needed to fulfill the media plan and all outbound marketing. To include but not limited to: digital, print, radio and collateral material, and other elements, as mandated by the media plan. • Create a strategic Social Media Plan and manage all aspects of the EPPBID social media channels, including but not limited to Facebook, Instagram and Twitter. • Organize and manage two Merchant meetings per year (Pre -Season and Post - Season). • Develop and implement a program to boost community and tourism outreach, such as a Desert Resort Concierge mixer on the street. • Develop and coordinate a program that offers savings from a majority of El Paseo businesses to consumers, such as an El Paseo Visitor Savings Pass. • Manage Public Relations efforts as needed on behalf of the EPPBID. • Maintain a blog on behalf of the EPPBID. • Update and maintain the EPPBID website monthly. • Agency shall represent EPPBID's voice and vision when working with media partners, in the best interest of the "El Paseo" brand. CONTRACT NO. C37060 EXHIBIT "B" SCHEDULE OF SERVICES Ongoing monthly services as directed by the El Paseo Parking & Business Improvement District Board of Directors. CONTRACT NO. C37060 EXHIBIT "C" COMPENSATION The CITY's budget for advertising and publicizing the EPBID's facilities, services and events is established as part of the CITY's fiscal year budget for the period of July 1, 2018 - June 30, 2019 at $240,000. The CITY's liability for advertising materials and services under this Contract shall not exceed the contracted amount of $235,000. The CITY reserves the right, at any time during the term or any extension thereof, to adjust the amount budgeted for advertising and promotion services. Prior to performing any services or furnishing any material contemplated by this Contract to be undertaken and furnished by FG CREATIVE, the CITY or its designee, after conferring with FG CREATIVE, shall authorize the services rendered and materials to be furnished, the agreed compensation to be paid for their services, the manner of payment (lump sum or periodic progress payments), the description and estimate of reimbursable expense, and such other matters as may be deemed proper. Subject to the limitations and provisions set forth in this section, the CITY shall compensate and reimburse FG CREATIVE as follows: (a) The CITY will pay FG CREATIVE a flat fee of $2,000 per month to cover advertising services in accordance with the proposal presented by FG CREATIVE as attached in the Addendum to the EPBID and/or any marketing mutually agreed to by the parties hereto. The fee covers not less than 40 hours per month; such services include, but are not limited to, meetings, account planning and service, production management, media planning and buying, and clerical. (b) FG CREATIVE will purchase media at the lowest rate available. All billings will be submitted at net costs for payment by the CITY. FG CREATIVE will not markup billings or receive commissions. (c) FG CREATIVE shall bill the CITY monthly for the previous month's activities. Each invoice shall contain, in reasonable detail, the projects and services worked on and rendered with supporting documentation of reimbursable costs and expenses. Payment and reimbursements provided for in this Section 4 will be made in due course by the City of Palm Desert. (d) FG CREATIVE shall keep full and accurate books of account and records and other pertinent CONTRACT NO. C37060 data in accordance with generally accepted accounting principles reflecting all transactions contemplated by this Contract.