HomeMy WebLinkAboutC34481 - Amndmnt for EPBID Advertising SvcsCITY OF PALM DESERT
ECONOMIC DEVELOPMENT DEPARTMENT
STAFF REPORT
REQUEST: APPROVE CONTRACT AMENDMENT NO. C34481 FOR FG
CREATIVE, INC. OF PALM DESERT, CALIFORNIA, IN THE AMOUNT
OF $243,000 FOR ADVERTISING SERVICES AND EXPENDITURES
FOR THE EL PASEO BUSINESS IMPROVEMENT DISTRICT
FROM: Ruth Ann Moore, Economic Development Manager
CONTRACTOR: Stephanie D. Greene
FG Creative, Inc.
74-020 Alessandro, Suite E
Palm Desert, CA 92260
DATE: June 30, 2016
CONTENTS: Contract Amendment C34481
Original Contract C34480
Recommendation
By Minute Motion:
1. Approve Contract Amendment No. C34481 in the amount of $243,000 ($45,000 in
Agency retainer fees and $198,000 in advertising and promotional expenditures);
and
2. Authorize the City Attorney to make non -substantive changes to the contract and
the Mayor to execute said contract amendment.
Funds have been included in the proposed Financial Plan for 2016/2017 Other
Advertising, Account No. 2714491-4321500. This expenditure is not part of the
General Fund.
Executive Summary
At the May 19, 2016 meeting of the El Paseo Business Improvement District (EPBID), the
Board of Directors voted unanimously to approve recommending to the City Council a one-year
extension pursuant to the provisions of the FG Creative, Inc. (FGCI) contract that represents
the district as its advertising agency.
The total budget to be administered by FGCI is $243,000 for the period of July 1, 2016 through
June 30, 2017. FGCI's retainer fee of $3,750 per month will be paid from the $243,000 budget
with the remainder going towards advertising and promotional expenses. FGCI's monthly
retainer fee remains the same amount as the previous fiscal year 2015-2016.
G.\Econ Development\Ruth Ann Moore\STAFF REPORTS\FG Contract Extention Amendment Staff Report 6-30-16 C34481.doc
Staff Report
Approval of Contract Amendment No. C34481 (FG Creative, Inc.)
June 30, 2016
Page 2
Funds are collected from the businesses through a special assessment fee and do not impact
the General Fund.
Background
In 2014, the EPBID was required to go out to bid for advertising services for the district, and
City Council awarded the contract to FGCI. The agency is responsible for overseeing the
marketing and public relations plan for the EPBID, web page oversight, internal merchant
communications, event duties and meeting agenda creation and distribution. A provision in the
contract allows for two yearly extensions of the contract. This will be the first yearly extension.
Fiscal Analysis
Fees for this contract are collected through a special assessment of the businesses. This
contract does not impact the General Fund.
Submj[tted By:
th A1nn Moor,
Economic Development Manager
Reviewed by:
Janet ore, Director of Finance
Approval:
sti McCarthy, Interim City eager
Department Head:
Martin Alvarez,
Director of Economic Development
udy A sta, Assistant City Manager
G \Ecor. Deveiopment\Ruth Ann Moore\STAFF REPORTS\FG Contract Extention Amendment Staff Report 6-30-16 C34481 doc
C34481
El PASEO BUSINESS IMPROVEMENT ADVERTISING AND PUBLIC RELATIONS
CITY OF PALM DESERT
PROFESSIONAL CONSULTANT SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 30th day of June, 2016, 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, #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 ADVERTISING AND PUBLIC RELATION 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 ADVERTISING AND PUBLIC RELATION 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 ADVERTISING AND
PUBLIC RELATION consulting services for the EL PASEO BUSINESS IMPROVEMENT
DISTRICT CONTRACT NO. C34481 project ("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 ADVERTISING
AND PUBLIC RELATION consulting services necessary for the Project ("Services"). The
Services are more particularly described in Exhibit "A" attached hereto and incorporated
herein by reference. 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, 2016 to JUNE
30 2017, 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 Payment 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.
3.2.4 Substitution of Key Personnel. Consultant has represented to City that
certain key personnel will perform and coordinate the Services under this Agreement. Should
one or more of such personnel become unavailable, Consultant may substitute other
personnel of at least equal competence upon written approval of City. In the event that City
and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to
terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to
perform the Services in a manner acceptable to the City, or who are determined by the City to
be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or
a threat to the safety of persons or property, shall be promptly removed from the Project by the
Consultant at the request of the City. The key personnel for performance of this Agreement
are as follows: STEPHANIE GREENE, CEO.
3.2.5 City's Representative. The City hereby designates RUTH ANN MOORE,
ECONOMIC DEVELOPMENT MANAGER, or his/her designee, to act as its representative in
all matters pertaining to the administration and performance of this Agreement ("City's
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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 which 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 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.
3.2.7 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.
3.2.8 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 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.
3.2.9 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
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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, including without limitation, blanket contractual liability. Defense
costs shall be paid in addition to the limits. The policy shall contain no endorsements or
provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or
suits by one insured against another; or (3) contain any other exclusion contrary to the
Agreement.
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.
Professional Liability (Errors & Omissions) Insurance: Consultant shall maintain
professional liability insurance that covers the Services to be performed in connection with this
Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy
inception date, continuity date, or retroactive date must be before the effective date of this
agreement and Consultant agrees to maintain continuous coverage through a period no less
than three years after completion of the services required by this agreement. Covered
professional services shall specifically include all work to be performed under the Agreement
and delete any exclusions that may potentially affect the work to be performed (for example,
any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks,
laboratory analysis, soil work, etc.). If coverage is written on a claims -made basis, the
retroactive date shall precede the effective date of the initial Agreement and continuous
coverage will be maintained or an extended reporting period will be exercised for a period of at
least three (3) years from termination or expiration of this Agreement.
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.
Other provisions or requirements
Insurance for Subconsultants: All Subconsultants shall be included as additional insureds
under the Consultant's policies, or the Consultant shall be responsible for causing
Subconsultants to purchase the appropriate insurance in compliance with the terms of these
Insurance Requirements, including adding the City as an Additional Insured to the
Subconsultant's policies. Consultant shall provide to City satisfactory evidence as required
under Insurance Section of this Agreement.
Proof of Insurance: Consultant shall provide certificates of insurance to City as evidence of
the insurance coverage required herein, along with a waiver of subrogation endorsement for
workers' compensation. Insurance certificates and endorsement must be approved by City's
Risk Manager prior to commencement of performance. The certificates and endorsements for
each insurance policy shall be signed by a person authorized by that insurer to bind coverage
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on its behalf. 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 Coveraqe: Consultant shall procure and maintain for the duration of the contract
insurance against claims for injuries to persons or damages to property, which may arise from
or in connection with the performance of the Work hereunder by Consultant, his agents,
representatives, employees or subconsultants.
Citv's Riqhts 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.
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 VI (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 Subroqation: 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, and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
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.
Primary and Non-Contributinq Insurance: All insurance coverages shall be primary and
any other insurance, deductible, or self-insurance maintained by the indemnified parties shall
not contribute with this primary insurance. Policies shall contain or be endorsed to contain
such provisions.
Requirements Not Limitinq: 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.
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.
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Additional Insured Status: General liability, Automobile Liability, and if applicable, Pollution
Liability, policies shall provide or be endorsed to provide that the City of Palm Desert and its
officers, officials, employees, and agents shall be additional insureds with regard to liability and
defense of suits or claims arising out of the performance of the Agreement, under such
policies. This provision shall also apply to any excess liability policies.
Citv's Riqht 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.
Timelv 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.
Safetv: 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, 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. Safety precautions, where
applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving
equipment and procedures; (B) instructions in accident prevention for all employees and
subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang
planks, confined space procedures, trenching and shoring, equipment and other safety
devices, equipment and wearing apparel as are necessary or lawfully required to prevent
accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of
all safety measures.
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 HUNDERD FORTY-THREE THOUSAND DOLLARS
($243,000) 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,
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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."
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 Agreement.
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.
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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, Inc.
74-020 Alessandro, #E
Palm Desert, CA 92260
ATTN: Stephanie Greene, CEO
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
ATTN: Ruth Ann Moore, Economic Development 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 Confidentiality.
3.5.3.1 Documents & Data: Licensinq of Intellectual Property. 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 Confidentiality. 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.
3.5.4 Cooperation: Further Acts. The Parties shall fully cooperate with one
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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 Indemnitv. 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 Agreement. This Agreement contains the entire Agreement of the
parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed by
both parties.
3.5.8 Governinq 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 Right to Emplov Other Consultants. City reserves right to employ
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other consultants in connection with this Project.
3.5.11 Successors and Assiqns. 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, 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 -Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability. 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
10 Uodate 06/30/16
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 Aqreement. 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.
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.
CITY OF PALM DESERT FG CREATIVE, INC.
By:
Mayor
ATTEST:
By:
RACHELLE KLASSEN
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
By:
STEPHANIE GREENE, CEO
11 Uodate 06/30/16
CONTRACT NO. C34481
EXHIBIT "A"
SCOPE OF SERVICES
1. SCOPE OF SERVICE: Subject to the terms and conditions of this contract, FIG
CREATIVE INC. shall furnish and provide the services and materials as outlined
in the Addendum, in accordance with the proposal presented to and accepted by
the El Paseo Business Improvement District (EPBID):
(a) Prepare or cause to be prepared art work and advertisements for approval
by the CITY or its designee (EPBID). In connection therewith, FIG
CREATIVE shall;
(i) Work within the marketing plan as approved by the CITY or its
designee, which plans and schedules shall include
recommendations as to the media, art and copy, budgets, and
coordination of such advertising with other marketing, advertising
and event activities within the EPBID;
(ii) Prepare cost estimates and furnish the same to the CITY or its
designee for their approval, enter into contracts for space or time in
media for approved advertisement and forward copy and
instruction for placement;
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CONTRACT NO. C34481
(iii) Create, design, and supervise the production of advertising to be
published in newspapers, periodicals, magazines, trade journals,
radio, television, internet and other media;
(iv) Check insertion of approved advertising and otherwise verify proper
delivery and distribution thereof;
(v) Maintain a permanent file of all art work and advertising materials
(including agendas and meeting minutes), which materials shall be
the property of the CITY and shall be made available to the CITY
for use by it without additional cost or charge; and
(vi) Evaluate and recommend payment for all expenses incurred for art
work, advertisements and for the placement and publishing thereof
in newspapers, periodicals, magazines, trade journals, radio,
television, internet and other media subject to reimbursement in
accordance with the provisions of Section 4.
(b) Prepare, publish, and distribute or cause to be prepared, published, and
distributed such publications containing matter publicizing EPBID, as may
be requested by the City or its designee. FG CREATIVE shall:
(i) Furnish or cause to be furnished all required research, writing,
editing, type specification, typesetting, photography, layout,
illustration, assembly and all other details connected with any such
requested publications;
(ii) Perform such other services as may be necessary to print, publish,
and distribute any such publications; and
CONTRACT NO. C34481
(iii) Evaluate and recommend payment for all expenses incurred for the
preparation and distribution of any such publication subject to
reimbursement in accordance with the provisions of Section 4.
(c) Assist in preparation and/or execution of such public relations events as
the CITY or its designee may request. In connection therewith, FG
CREATIVE shall:
(i) Prepare or cause to be prepared such exhibit and display materials
as may be requested and approved by the CITY or its designee;
(ii) Coordinate communication with the merchants for various events
and attempt to elicit participation by merchants for street -wide
events;
(iii) Coordinate during all EPBID sanctioned events; and
(iv) Evaluate and recommend payment of all expenses incurred in the
preparation of exhibits and display materials subject to
reimbursement in accordance with the provisions of Section 4.
(a) Prepare or cause to prepare such other brochures, maps, reports,
exhibits, display materials, and other printed material outlined in the
Addendum as may be requested and approved by the CITY or its
designee, and evaluate and recommend payment of all expenses incurred
in connection therewith subject to reimbursement in accordance with the
provisions of Section 4.
(b) Coordinate all use of social media electronic communications including
but not limited to websites, blogs, merchant email lists, Facebook,
Instagram and Twitter.
CONTRACT NO. C34481
EXHIBIT "B"
SCHEDULE OF SERVICES
ONGOING MONTHLY SERVICES AS DIRECTED BY THE EL PASEO BUSINESS IMPROVEMENT
DISTRICT'S BOARD OF DIRECTORS.
CONTRACT NO. C34481
EXHIBIT "C"
COMPENSATION
2. COMPENSATION: The CITY's budget for advertising and publicizing the
EP13ID's facilities, services and events is established as part of the CITY's fiscal
year budget for the period of July 1, 2016 - June 30, 2017 at $250,000. The
CITY's liability for advertising materials and services under this Contract shall not
exceed the contracted amount of $243,000. 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 $3,750 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
CONTRACT NO. C34481
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 data in accordance with generally accepted accounting
principles reflecting all transactions contemplated by this Contract.
CONTRACT NO. C34480
AGENCY SERVICE CONTRACT
1. PARTIES: This contract is entered into this 11th day of June, 2015, by and
between the CITY OF PALM DESERT, a municipal corporation, hereinafter
referred to as "CITY", and FG CREATIVE, INC., Palm Desert, CA.
2. SCOPE OF SERVICE: Subject to the terms and conditions of this contract, FG
CREATIVE INC. shall furnish and provide the services and materials as outlined in
the Addendum, in accordance with the proposal presented to and accepted by the
El Paseo Business Improvement District (EPBID):
(a) Prepare or cause to be prepared art work and advertisements for approval
by the CITY or its designee (EPBID). In connection therewith, FG
CREATIVE shall;
(i) Work within the marketing plan as approved by the CITY or its
designee, which plans and schedules shall include
recommendations as to the media, art and copy, budgets, and
coordination of such advertising with other marketing, advertising
and event activities within the EPBID;
(ii) Prepare cost estimates and furnish the same to the CITY or its
designee for their approval, enter into contracts for space or time in
media for approved advertisement and forward copy and instruction
for placement-,
G \rda\Ruth Ann Moore\word data\STAFF REPORTS\FG Creative 2015-2016 Contract docx
CONTRACT NO. c34480
(iii) Create, design, and supervise the production of advertising to be
published in newspapers, periodicals, magazines, trade journals,
radio, television, internet and other media;
(iv) Check insertion of approved advertising and otherwise verify proper
delivery and distribution thereof;
(v) Maintain a permanent file of all art work and advertising materials
(including agendas and meeting minutes), which materials shall be
the property of the CITY and shall be made available to the CITY for
use by it without additional cost or charge; and
(vi) Evaluate and recommend payment for all expenses incurred for art
work, advertisements and for the placement and publishing thereof
in newspapers, periodicals, magazines, trade journals, radio,
television, internet and other media subject to reimbursement in
accordance with the provisions of Section 4.
(b) Prepare, publish, and distribute or cause to be prepared, published, and
distributed such publications containing matter publicizing EPBID, as may
be requested by the City or its designee. In connection therewith, FG
CREATIVE shall:
(i) Furnish or cause to be furnished all required research, writing,
editing, type specification, typesetting, photography, layout,
illustration, assembly and all other details connected with any such
requested publications;
G VdalRuth Ann Moorelword datalSTAFF REPO RTSTG Creative 2015-2016 Contract.docx
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CONTRACT NO. c34480
(ii) Perform such other services as may be necessary to print, publish,
and distribute any such publications; and
(iii) Evaluate and recommend payment for all expenses incurred for the
preparation and distribution of any such publication subject to
reimbursement in accordance with the provisions of Section 4.
(c) Assist in preparation and/or execution of such public relations events as the
CITY or its designee may request. In connection therewith, FG CREATIVE
shall:
(i) Prepare or cause to be prepared such exhibit and display materials
as may be requested and approved by the CITY or its designee;
(ii) Coordinate communication with the merchants for various events
and attempt to elicit participation by merchants for street -wide
events;
(iii) Coordinate during all EPBID sanctioned events; and
(iv) Evaluate and recommend payment of all expenses incurred in the
preparation of exhibits and display materials subject to
reimbursement in accordance with the provisions of Section 4.
(a) Prepare or cause to prepare such other brochures, maps, reports, exhibits,
display materials, and other printed material outlined in the Addendum as
may be requested and approved by the CITY or its designee, and evaluate
and recommend payment of all expenses incurred in connection therewith
subject to reimbursement in accordance with the provisions of Section 4.
(b) Coordinate all use of social media electronic communications including but
G \rda\Ruth Ann Moore\word data\STAFF REPORTSTG Creative 2015.2016 Contract docx
J
CONTRACT NO. c34480
not limited to websites, blogs, merchant email lists, Facebook, Instagram
and Twitter.
3. TERM: The term of this contract shall commence on July 1, 2015 and end on June
30, 2016. The CITY may, at its sole option, extend said term for an additional
twelve (12) month term by notifying FG CREATIVE in writing of its selection to
extend the term not less than thirty (30) days before the expiration of the initial
term. Said extension shall not exceed a three-year period.
4. 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, 2015 - June 30, 2016 at $250,000. The CITY's
liability for advertising materials and services under this Contract shall not exceed
the contracted amount of $242,000. 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:
G kda\Ruth Ann Moore\word data\STAFF REPORTS\FG Creative 2015-2016 Contract docx
EI
S
CONTRACT NO. C34480
(a) The CITY will pay FG CREATIVE a flat fee of $3,750 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
mark up 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 data in accordance with generally accepted accounting
principles reflecting all transactions contemplated by this Contract.
5. TERMINATION: Either party may terminate this Contract at any time by giving the
other party thirty (30) days written notice of its intent to terminate; provided,
however, the CITY's obligation to compensate and reimburse FG CREATIVE for
services rendered or materials furnished or contracted for as of the date of
notification by either party of the election to terminate, shall continue in accordance
G vda\Ruth Ann Moore\ward data\STAFF REPORTS\FG Creative 2015-2016 Contract docx
5
CONTRACT NO. c34480
with the terms herein.
6. EL PASEO BUSINESS IMPROVEMENT DISTRICT: The CITY reserves the right
to designate the EPBID of the City of Palm Desert or any other committee or
individual as its representative for any part of the review and approval retained by
the CITY under any provisions of this Contract and will advise FG CREATIVE of
such designation and such designation shall continue until modified by the CITY.
7. OWNER OF WORK: All art work, advertisement of any form, exhibit and display
materials or other printed material, logos, designs, drawings, and models prepared
or performed under this Contract shall become the property of the CITY. FG
CREATIVE specifically transfers any "right of reproduction" as defined by
California Civil Code S982 and S988 to the CITY and CITY assigns.
FG CREATIVE agrees to maintain adequate books and records of all completed
designs, plans, reports, drawings, social media electronic communications and
processes and adequate books and records of all works in progress throughout
the duration of this Agreement. Said books and records shall be and remain the
property of the City upon the expiration or earlier termination of this Agreement.
Within five (5) days of any expiration or earlier termination of this Agreement, FG
CREATIVE agrees that it shall provide the City with the aforementioned books and
records.
G lxda\Ruth Ann Moorelword data\STAFF REPORTSTG Creative 2015-2016 Contract docx
r0
CONTRACT NO. c34480
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective authorized officers or representatives as the date and year first above
written.
STEPHANIE D. GREENE, CITY OF PALM DESERT
FG CREATIVE, INC.
By By
S-fEPHANIE D. GRkEE Susan Marie Weber, Mayor
ATTEST:
APPROVED AS TO FORM:
� l
BY
14Y
DAVID ERW! , CITY ATTORNEY
G \rda\Ruth Ann Moore\word data\STAFF REPORTS\FG Creative 2015-2016 Contract docx
7
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 Cal' mia )
County
On ) I If1P. 22, Zo15 before me, %- fve,.1 qn 1—_a, N�+cart -
Date Here Insert Name and Title o e Officer
personally appeared _�*P.P M A i P_ D . C"I ►'�'.Q 1'�±=_
Nameo of Signer,(
who proved to me on the basis of satisfactory evidence to be the persono whose name(t) is/axe
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
#pis/her/their authorized capacity(ies), and that by his/herAOeir signature(s) on the instrument the person($j;
or the entity upon behalf of which the persor�sj acted, executed the instrument.
M. EVELYN LUA
''. Commission # 1984516
Z Notary Public - California z
�? Riverside County D
1
My Comm. Expires Jul 8, 2016
Place Notary Seal Above
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoiWp�agraph
is true and correct. //
WITNESS my h nd
Signatures
official
of Not4ry Public
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: i Document Date: ) ut'W—
Number of Pages: + Si ner(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
02014 National Notary Association • www.NationaiNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907