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HomeMy WebLinkAbout15 - Approval of a Purchase Agreement for Junior Lifeguard Uniform ApparelPORT CITY OF O � _ i NEWPORT BEACH City Council Staff Report <i FO RN September 24, 2019 Agenda Item No. 15 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Jeff Boyles, Fire Chief - 949-644-3101, jboyles@nbfd.net PREPARED BY: Mary Locey, Administrative Manager, mlocey@nbfd.net PHONE: 949-644-3352 TITLE: Approval of a Purchase Agreement with QS Wholesale, LLC for Junior Lifeguard Uniform Apparel ABSTRACT: The Newport Beach Junior Lifeguard Program was established 35 years ago and has become an extremely popular program. The uniform apparel is an important component of the program and the existing purchase agreement expires in November 2019. Per the City's purchasing policies, a request for proposals was completed and the incumbent, QS Wholesale, LLC has been selected to continue providing the program's uniform apparel. RECOMMENDATIONS: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Approve a Purchase Agreement with QS Wholesale, LLC for Junior Lifeguard Uniform Apparel for a not -to -exceed amount of $1,000,000 for a term of three years with an option for two additional, one-year terms, and authorize the Mayor and City Clerk to execute the agreement. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this purchase. The cost of the uniform apparel is recovered through the program's participant fees. It will be expensed to the Junior Lifeguards Special Department Supplies account in the Fire Department, 01040405-841015. DISCUSSION: Proaram Overview The Newport Beach Junior Lifeguard Program (Program) proudly celebrated its 35th anniversary this past summer. As one of the original junior lifeguard programs, it is, and continues to be, a model for similar programs throughout the United States. The program is managed by the Newport Beach Fire Department, Lifeguard Operations Division and it is one of the City of Newport Beach's (City) most popular youth -based educational programs. 15-1 Approval of a Purchase Agreement with QS Wholesale, LLC for Junior Lifeguard Uniform Apparel September 24, 2019 Page 2 Each year, the program runs for seven weeks during the summer and serves approximately 1,350 local youth ages nine through 15. Program participants learn to recognize the ever changing and hazardous conditions of the ocean while increasing their awareness of the ocean environment, developing valuable aquatic skills, learning first-aid technics and lifesaving methods. This highly anticipated summer program has become a tradition for local residents with participation from multiple generations of Newport Beach families. Aside from providing a safe learning environment for participants, one of the most important elements of the program is the issued uniform apparel. Junior lifeguards participate in a high level of physical activities each day of the seven -week program. The uniforms need be of superior quality to endure the level of activity (running, swimming, cardio) and the ocean environment (sun, saltwater, sand) throughout the length of the program. Additionally, the quality of the material, seams, fit and coverage are important considerations when selecting program uniforms. Participants are required to wear their uniforms and comply with the established Junior Lifeguard Uniform Standard. The cost of the uniform apparel is included in the program's participation fee, which includes a backpack, towel, hat, sweatshirt, t -shirt, and board shorts. Female participants have the option of selecting a one- or two-piece swimsuit. Additional apparel items, see Exhibit B of the agreement, are available for participants and their families to purchase at the per -piece price. Per the City's fee schedule, and Municipal Code 3.36.030: Cost Recovery for User Services, the participation fee is $727 per person. The participation fee covers 100% of the cost of the uniform apparel and approximately 78% of the overall program (staff, equipment). RFP Process Staff developed a Request for Proposals (RFP) solicitation that was publicly posted to the City's online bidding platform (PlanetBids) and distributed directly to known providers of the requested uniform and apparel items, yielding three proposals. The RFP advised bidders that the evaluation and selection process would encompass two phases. In the first phase (Technical Evaluation), an evaluation panel consisting of staff from the Fire Department assessed each proposer on factors such as experience, qualifications and ability to provide uniform and apparel items. The RFP also called for all proposers to submit product samples with their proposal to allow staff to assess design quality and construction of the proposed garments. In accordance with the process instructions from the RFP, only those proposers earning at least 70% of the technical evaluation score advanced along in the evaluation process. The second phase (Cost Review) involved the City's Purchasing Agent performing an evaluation and comparison of each bidder's proposed annual uniform and apparel item production costs, according to the quantities stated in the RFP. 15-2 Approval of a Purchase Agreement with QS Wholesale, LLC for Junior Lifeguard Uniform Apparel September 24, 2019 Page 3 The table below summarizes the performance of the proposers that advanced from the first phase to have their costs considered: PROPOSER TECHNICAL COST REVIEW TOTAL OVERALL EVALUATION (ANNUAL SCORE RANK — MAX. 70 COST) — MAX. 30 QS Wholesale, LLC 68.00 30.00 98.00 1 $189,020.00 Hurley International, LLC 53.00 27.07 80.07 2 ($209,480.00) QS Wholesale, LLC (QS) earned the most points from the panel in the technical evaluation phase and also proposed lower annual costs to the City. The panel was impressed with the design, quality and construction of the uniform samples provided by the company and QS also provided impressive references from other agencies with similar junior lifeguard programs such as Solana Beach, San Diego and Del Mar. As the incumbent provider (previous agreements known as Quicksilver, Inc.) of these apparel items, staff is confident that QS is familiar with the City's program, standards and expectations. QS has proven for the past several years that it can maintain production quality and deadlines and have been responsive to requested adjustments in support of the Newport Beach Junior Lifeguard Program. Quicksilver is a well-known manufacturer of surf -related clothing and merchandise. Entering into this purchase agreement for brand merchandise provides quality products at the wholesale rate. Pieces of the uniforms may have a small, visible Quicksilver logo and the Quicksilver tag sewn inside. However, the City does not promote the brand and the Quicksilver logo / name is not included in any of the program materials or marketing efforts. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Purchase Agreement with QS Wholesale, LLC 15-3 ATTACHMENT A PURCHASE AGREEMENT WITH QS WHOLESALE, LLC FOR JUNIOR LIFEGUARD UNIFORM APPAREL THIS PURCHASE AGREEMENT ("Agreement") is made and entered into as of this 24t' day of September, 2019, by and between the City of Newport Beach, a California municipal corporation and charter city ("City"), and CSS WHOLESALE, LLC, a California limited liability company ("Vendor"), whose principal place of business is 5600 Argosy Avenue, Suite 144, Huntington Beach, California 92649, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B, City conducts an annual Junior Lifeguard Program wherein enrolled participants are supplied with Junior Lifeguard Uniforms and the option to purchase additional apparel with the Junior Lifeguard logo. C. City desires to engage Vendor to supply program apparel to support the City's requirements for the Junior Lifeguard Program including, but not limited to, backpacks, hats, boardshorts, sweatshirts, t -shirts, rashguards, beach towels, instructor shirt/dress, and swimsuits on an annual basis for the term of this Agreement ("Project"). D. Vendor has carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows - 1 - ollows: 1. TERM Unless earlier terminated in accordance with Section 16 of this Agreement, the initial term of this Agreement shall be for a period of three (3) years. The term of this Agreement shall commence on the above written date, and shall terminate on September 23, 2022 unless terminated earlier as set forth herein. The term of this Agreement shall be extended for two (2) additional one (1) year terms with the extensions to automatically commence upon the expiration of the initial term or any extended term. City may terminate these automatic one (1) year extensions by notifying the Vendor in writing at least thirty (30) days before the end of the initial term 15-4 or any extended term, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. This termination provision shall only apply to the automatic extensions; it does not apply to termination of the Agreement as a whole, which is governed by Section 16. The initial term of this Agreement small not extend beyond three (3) years. Including automatic extensions, the entire term shall not extend beyond five (5) years. 2. SCOPE OF WORK Vendor shall perform all the work and deliver all the goods as described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference ("Services," "Work" or "Goods"). As a material inducement to the City entering into this Agreement, Vendor represents and warrants that Vendor is a provider of first class work and Vendor is experienced in performing the Work contemplated herein and, in light of such status and experience, Vendor covenants that it shall follow the highest professional standards in performing the Work required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. Vendor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all transportation services necessary for the Project. 3. TIME OF PERFORMANCE Time of delivery is the essence of this Agreement. The City reserves the right to refuse any Goods and to cancel all or any part of the Goods not conforming to applicable specifications, drawings, samples or descriptions. Acceptance of any part of the order for Goods shall not bind City to accept further shipments, nor deprive City of the right to return goods already accepted, at Vendor's expense. Over shipments and under shipments shall be only as agreed to by the City. Notwithstanding the foregoing, Vendor shall not be responsible for delays due to causes beyond Vendor's reasonable control. However, in the case of any such delay in the Goods to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. Vendor shall submit all requests for extensions of time for delivery in writing to the Project Administrator as soon as reasonably possible, but no event later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Vendor's control. For all time periods not specifically set forth herein, Vendor shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand -delivery or mail. QS WHOLESALE, LLC Page 2 15-5 4. COMPENSATION City shall pay Vendor for the goods on a fixed rate basis, in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B, and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. The total amount available to compensate Vendor for all goods and services provided pursuant to this Agreement shall not exceed the sum of One Million Dollars and 00/100 ($1,000,000.00) during the term of this Agreement, including any term extensions. Vendor shall not receive any additional compensation unless approved in advance by the City in writing. City shall pay Vendor no later than thirty (30) days after invoice and acceptance of shipments by the City. 5. ADMINISTRATION This Agreement will be administered by the Fire Department. Lifeguard Operations Assistant Chief, or his/her designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 6. TYPE OF MATERIALS/STANDARD OF CARE 6.1 Vendor small use only the standard materials described in Exhibit B in performing Services under this Agreement. Any deviation from the materials described in Exhibit B shall not be utilized unless approved in advance by the City Administrator. 6.2 All of the Services shall be performed by Vendor or under Vendor's supervision. Vendor represents that it possesses the personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with highest professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 7. RESPONSIBILITY FOR DAMAGES OR INJURY 7.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Vendor's performance of the Services required hereunder; or for damage to property from any cause arising from the performance of the Project by Vendor, or its contractors, consultants, workers, or anyone employed by either of them. 7.2 Vendor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or QS WHOLESALE, LLC Page 3 15-6 from any cause arising from Vendor's Work on the Project, or the Work of any subcontractor or supplier selected by the Vendor. 7.3 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, sults, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Vendor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 7.4 Vendor shall perform all Project Work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Vendor shall be liable for any private or public property damaged during the performance of the Project Work. 7.5 To the extent authorized by law, as much of the money due Vendor under and by virtue of the Agreement as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 7.6 The rights and obligations set forth in this Section shall survive the termination of this Agreement. 8. INDEPENDENT CONTRACTOR City has retained Vendor as an independent contractor and neither Vendor nor its employees are to be considered employees of the City. The manner and means of conducting the Work are under the control of Vendor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement, No civil service status or other right of employment shall accrue to Vendor or its employees. Nothing in QS WHOLESALE, LLC Page 4 15-7 this Agreement shall be deemed to constitute approval for Vendor or any of Vendor's employees or agents, to be the agents or employees of City. Vendor shall have the responsibility for and control over the means of performing the Work, provided that Vendor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Vendor as to the details of the performance of the Work or to exercise a measure of control over Vendor shall mean only that Vendor shall follow the desires of City with respect to the results of the Services. 9. COOPERATION Vendor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Vendor on the Project. iiiL+'I:&'il1:?11:Ill: 4 10.1 Provision of Insurance. Without limiting Vendor's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described below and in a form satisfactory to City. Vendor agrees to provide insurance in accordance with requirements set forth here. If Vendor uses existing coverage to comply and that coverage does not meet these requirements, Vendor agrees to amend, supplement or endorse the existing coverage. The cost of such insurance shall be included in Vendor's bid. 10.2 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 10.3 Coverage Requirements. 10.3.1 Workers' Compensation Insurance. Vendor shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. 10.3.2 General Liability Insurance. Vendor shall maintain commercial general liability insurance, and if necessary umbrella liability CSS WHOLESALE, LLC Page 5 15-8 insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). 10.3.3 Automobile Liability Insurance. Vendor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non - owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. 14.4 Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 10.4.1 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Vendor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. 10.4.2 Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. 10.4.3 Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. 10.4.4 Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage, 10.5 Additional Agreements Between the Parties. The parties hereby agree to the following: QS WHOLESALE, LLC Page 0 15-9 14.5.1 Evidence of Insurance. Vendor 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 and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 10.5.2 _City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Vendor sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Vendor, City and Vendor may renegotiate Vendor's compensation. 10.5.3 Enforcement of Agreement Provisions. Vendor acknowledges and agrees that any actual or alleged failure on the part of City to inform Vendor of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. 10.5.4 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 Vendor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 10.5.5 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 requirements unless approved by City. 10.5.6 'City Remedies for Non -Compliance. if Vendor or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any QS WHOLESALE, LLC Page 7 15-10 amounts paid by City shall, at City's sole option, be deducted from amounts payable to Vendor or reimbursed by Vendor upon demand. 10.5.7 Timely Notice of Claims. Vendor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Vendor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. 10.5.8 Vendor's Insurance. Vendor 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. 11. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Vendor shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Vendor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Vendor in writing as unsettled at the time of its final request for payment. Vendor and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Vendor shall be required to file any claim Vendor may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 12. SUBCONTRACTING City and Vendor agree that subcontractors may be used to complete the Work outlined in the Scope of Work provided the Vendor obtains City approval prior to the subcontractor performing any work. Vendor shall be fully responsible to City for all acts and omissions of the subcontractors. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned. transferred, contracted or subcontracted out without the prior written approval of City. si kA 0 0 &TJYIYl:LO1N#11►L�*1 City may withhold payment to Vendor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute QS WHOLESALE, LLC Page 8 15-11 a failure to pay according to the terms of this Agreement. Vendor shall not discontinue Work as a result of such withholding. Vendor shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Vendor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 14. CONFLICTS OF INTEREST The Vendor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et sect., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act and/or Government Code §§ 1090 et seg., Vendor shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Vendor shall indemnify and hold harmless City for any and all claims for damages resulting from Vendor's violation of this Section. �lE��►C�iiCyx•'� All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Vendor and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Vendor to City shall be addressed to City at: Attn: Lifeguard Operations Assistant Chief Fire Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 All notices, demands, requests or approvals from City to Vendor shall be addressed to Vendor at: Attention: Mike Reilly QS WHOLESALE, LLC. 5500 Argosy Circle, Suite 100 Huntington Beach, CA 92649 QS WHOLESALE, LLC Page 9 15-12 16. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Vendor. In the event of termination under this Section, City shall pay Vendor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Vendor has not been previously paid. On the effective date of termination, Vendor shall deliver to City all materials purchased in performance of this Agreement. 17. RECITALS City and Vendor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 18. COMPLIANCE WITH ALL LAWS Vendor shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Vendor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 19. WAIVER A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 20. INTEGRATED AGREEMENT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal Agreement or implied covenant shall be held to vary the provisions herein. QS WHOLESALE, LLC _ Page 10 15-13 21. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Work, the terms of this Agreement shall govern. 22. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Vendor and City and approved as to form by the City Attorney. 23. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 24. EFFECT OF VENDOR'S EXECUTION Execution of this Agreement by Vendor is a representation that Vendor accepts the terms and conditions of this Agreement. 25. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 26. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 27. EQUAL OPPORTUNITY EMPLOYMENT Vendor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 28. NO ATTORNEY'S FEES In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. QS WHOLESALE, LLC Page 11 15-14 29. COUNTERPARTS This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. 30. PRIOR AGREEMENTS This Agreement supersedes and replaces any prior agreements between the parties for the same or similar services. [SIGNATURES ON NEXT PAGE] QS WHOLESALE, LLC Page 12 15-15 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: q • )3 • l q By: r f a on C. Harp Ci y Attorney ATTEST: Date: CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Diane B. Dixon Mayor CONSULTANT: QS WHOLESALE, LLC, a California limited liability company Date: By: By: Leilani I. Brown David Tanner City Clerk Chief Executive Officer/Manager Date: By: Ilene Eskenazi Secretary/Manager Attachments: Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates QS WHOLESALE, LLC Page 13 15-16 *:4:1113kr► SCOPE OF SERVICES 15-17 08 WHOLESALE, LLC Page A-1 EXHIBIT A SCOPE OF SERVICES Vendor shall provide, and deliver to the City, Junior Lifeguard Uniforms and other apparel as may be ordered by the City to support the City's Junior Lifeguard Program. Uniform and apparel supplied shall bear the City's approved Junior Lifeguard logo, which may change annually in the City's sole discretion. The apparel shall be in a color scheme approved by the City which may change annually in the City's sole discretion. Logos and colors typically change annually. Artwork shall be designed by a uniform contractor and approved by Junior Lifeguard staff each year. Available apparel under this Agreement shall include, but not be limited to, backpacks, hats, boardshorts, sweatshirts, t -shirts, rashguards, beach towels, instructor shirt/dress, and swimsuits. The list of apparel that may be ordered by the City, and the per-unit price for each apparel item, are set forth in Exhibit B. City shall provide Vendorwith annual apparel orderwhich shall reflect the City's estimated annual requirements for the Junior Lifeguard Program. Additionally, the City may place supplemental orders for additional apparel at any time. Vendor agrees to fulfill the City's orders based on the unit prices reflected on Exhibit B. The quantities for the City's first annual order are reflected on Exhibit B. The City's annual orders for subsequent years may vary in quantity and type based on estimated program needs per year, but the cost per unit shall remain fixed for the duration of this Agreement. 15-18 EXHIBIT B SCHEDULE OF BILLING RATES QS WHOLESALE, LLC Page B-1 15-19 EXHIBIT B SCHEDULE OF BILLING RATES The quantities listed herein re ecz th e Ory',v firy annual order, The below quantities are nal guaranived fur subseiquenr ann Lia ems: the quanhhes fiar subsequent annual orders will wry based an Armvof enrollment In the Junior Iffeguord Frogrom or other foctors, but Vender shall provide City with the City's annual requirements to support the Junior Lifeguard Program. All Items shall be in the City's approved mfor scheme and bear the City's approved Junior fifegu rrd logo. fapas and garmrn t/pear calors typically change annually. Arrwork shall be drsigned by a uniform contracmrmrd apArmeed by lunfar Ldicuards h year. ITEM I QTY TYPE OERSCRIPTION UNIT PRICE EXT. AMOUNT Heavy nylon; zipper or draw string dosing; at least two large main storage compartments; removable wet/dry hag fcr wet 1 1550 BACKPACK gear; outside pouches; padded adjustable sira ps for safely and comic n: aut3 ide adjustable method to secure fins or hike helmet; heavy duty top handle; tar Ke erqugh t0 ca Fry; fins, rutic h, drink, beach towel. Sweatshirt and Oh eS with a Small 520 00 S31.000 DO Wide Sri mm ed, 2 IGO Bushman•5tyle H.gh quality, for sun protea lion, Sturdy brim with ma IeflaI under Ii ning for everyday wear at the beach, ve Fit ilah on, adjusta Jule HAT nylon cord or elastic fit to fit chi Id and adu4 57,00 $2,804.00 Baseball or Trucker 3 1450 Style HAT High ualit , sturdy material bill for every day beach use and adjustable hack to fit child and adult 55.40 57,250.00 High quality, adjusts Jule, with material On bill, low profile IOP front, sturdy bill, nylon 4 300 Visor -Style HAT COLOR -Red, Navy, or svTxovar S6.04 S1,1300 W Competition/Sped High quality, trendy style, fpr awards/prizes. Two styles/prints are required each year (approximately 400 units per style), 5 8O0 TI Award HAT •Other item may be substituted with Iunior We goard stall ap rdvaI. 57.00 55,600-00 Boards h0rt-style, sturdy stretch Fabric Iwith approval), 3 -needle heavy stitthi ng throughout, bar tacking at all stress points, fixed reinforced waistband, dura Jule for everyday use, side/back pocket and sand grommet, bar. Jac ked/colton ti e, wide invisible fly, fabnc must be fully Opaque in both wet and dry conditions. "'Must agree to make uv to 5 trunks for special sire JG's wt5a do no fiI. into the below Sizes. Color: Red LIFEGUARD 6 25C0 BOARDSHORTS Boys and Mentis sites: 21"-33", 34", 36", 38` and 40" waist V,rnen's iluniorsI sues; X5, S, M, L. XL Girls {Youth): B/S, 10/M, II/L, 14/XL 515-50 S38,750.00 84catton /20poly, heivywetgh1, 12 Oz. or more, fleece, hooded Or crew with hand pockets Or zioper pouch, piping or color accent acceptable 7 1700 SWEATSHIRT Sixes(unisex l: Youth! 5, NI, L Adult: S. M. L. XL, XXL 514.50 $24,654.00 1 Do% heavyweight cotton, short sleeve Sites{uni5es]' Youth; Sr M, L, XL Adult= 5, M, L, XL XXL 8 2750 T-SHIRT COLOR - onapprdval SCREEN PRINT - 3 to 5 color 16 Logo front and hack S5.501 515,125-00 Jae'% heavyweight cotton, short sreeve Youth- 5, M, L, XL Adult: Sr M, L, XL, XXL MONSTER MILE T- COLOR - approval 9 1450 SHIRT SCREEN PRINT- 1a. color front and hack with Newport Beach Monster Mite design Artwork may be supplied by City of Newport Reach 55.50 57,975.D0 5.5 oz. or more, 92% Polyester/8% Elastane tang sleeve, pullover top with mock Iurtle neck collar and UPF 50• Saes: Adult XXS - XXL l0 150 RASHGUARD CPLPR - may vary, neon yellow (Iifeguard1, white {Juni Or LifeguardI SCREEN PRINT - 1 to 3 color logo 511-00 $1,650.00 Thick cotton, pnnied logo beach towel Slee: 64" x 38" Il 2400 BEACH TOWEL CPLO R - on approva I 512Ar3 524,000,00 Aloha Shill or po to -Style ani) alpha -Style dress for Hot Dog Ginner Event INSTRUCTOR 12 70 SHIRTIDRESS Sires: Adult XS - XXLCOLOR- onapprovaI S11-001 5770.00 15-20 EXHIBIT B SCHEDULE OF BILLING RATES EST7MATE0 ANNUAL TOTAL' I 5189,OMM 15-21 One piece j500I and Two Pkece (900) k I I cwe rage, dura Isle atNetic cur swpmsui I, suitable for oce a n condiv ons. Must be fully opaque in both werand dry con ditions ano have dark mtericir Iinrng, Shoulder straps must be adjustaGle, Backs must be fixed Ii.e. notie ❑rhook fasteners). Two piece style shall have a fully functional waistband drawstring. GIRLS'SWIMSUITS Sites: 13 50f1 YOuth (Girls]: X517, 518, Ml'or tJ12. ktJ14 )ONE-PIECEI Adults IJuniorsj: 5, M, L, XL COLOR — Redo r app rova I 51s.001 58.000.00 GIRLS' SWIMSUITS 14 900 TLVO-PIECE) See above 52006 ks.0 o.00 (3.4 diNerentshirtsldesigns) 100%heavyweightcotton, short sIeexe S+Ire s(unisexIi 15 30o T•51HIRT ICOMPETIT1ON Youth: 5, M, L. XL ❑ESlGNj Adult: S, M. L. %L, sXt. SCREEN PRINT —R+Color from t lba c wl th Newport Reach $5.54 51,650.80 EST7MATE0 ANNUAL TOTAL' I 5189,OMM 15-21