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HomeMy WebLinkAbout05 - Junior Lifeguard UniformsAgenda Item No. 5 December 13, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Fire Department Ralph Restadius, Acting Fire Chief 949 - 644 -3040 restadius@nbfd.net PREPARED BY: Rob Williams, Assistant Chief, Lifeguard Operations APPROVED:��_ TITLE: Purchasing Agreement for Junior Lifeguard Uniforms ABSTRACT: Annually, the Fire Department Junior Lifeguard Program contracts with an outside vendor to provide uniforms and apparel to approximately 1,250 Junior Lifeguards. Being one of the most popular programs in the City, the participants and their parents have come to expect a high quality product. RECOMMENDATION: Award three (3) year purchasing agreement to Quiksilver, Inc. to provide the Junior Lifeguards Uniforms with a 2012 cost of $167,045 plus tax, a 2013 cost of $175,836.84 plus tax, and a 2014 cost of $185,091.25 plus tax. This totals a 3 year cost agreement of $527,973.25 plus tax. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this purchase. It will be expensed to the Junior Lifeguard account in the Fire Department, 2353 -8200. DISCUSSION: The Fire Department's Junior Lifeguard Program is one of the most recognizable programs for the City of Newport Beach, along with being a model for Junior Lifeguard programs throughout the United States. There are annually 1,250 participants, along with 45 Instructors and 10 Safety Aids. One of the unique aspects of our program is the Purchasing Agreement for Junior Lifeguard Uniforms December 13, 2011 Page 2 superiority of the uniforms supplied to the participants. These uniforms have become a symbol for the City and the program, and provide ongoing advertisement, accomplishment and pride for the participants and their families. Over the last decade, many high profile surf companies have submitted proposals to provide this service. On October 3, 2011, a Request for Proposal (RFP) solicitation was issued by the City's Purchasing staff and publically distributed. The RFP solicitation generated proposals from 5 vendors. To properly evaluate the proposals, an evaluation panel was assembled consisting of staff from the Lifeguard Division and Fire Administration Division, facilitated by the Senior Buyer for the City. In accordance with the administrative procedures set forth in Council Policy F -14, a qualifications based selection process was utilized by the evaluation panel. Proposals were evaluated on criteria that included proposed cost, experience and qualifications of the proposing vendor, quality of the uniforms and the proposal responsiveness. After evaluating all five proposals, Quiksilver, Inc. was identified as the top - qualified vendor to provide high quality uniforms for the Junior Lifeguard Program. The evaluation panel unanimously ranked Quiksilver as the top ranked vendor. The following is an abstract of how all the proposals ranked after undergoing the qualifications based selection process. A full explanation can be found in Attachment B. Composite Scores (By Rank) Utilized. 1s' olace = 5 points. 2nd place. 4 points. etc. Quiksilver, Inc. 15 Original Watermen 12 Hurley 7 The Sourcing Company 6 Cares Industry, Inc. 5 While Quiksilver did not submit the lowest cost proposal, the proposed rate was within the average of all the responses. The proposal from Quiksilver distinguished itself from the other vendors by providing high quality apparel, meeting the needs of the Department and the City, and past experience with the Company. Quiksilver also has a strong presence and project experience in the local Orange County area. This experience includes 2 years of uniform apparel provided to the Newport Beach Junior Lifeguard Program, including 2011. Purchasing Agreement for Junior Lifeguard Uniforms December 13, 2011 Page 3 The proposed vendor will allow the City and Department to continue a rich tradition in providing a recognizable and quality product for the 1,250 Junior Lifeguard Participants. 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). Submitted by: /Ralp es'radius Ac ' a Fire Chief Attachments: A. Purchase Agreement between City of Newport Beach and Quiksilver, Inc. B. Proposal Evaluation Recapitulation Request For Proposal No. 10 -26: Jr. Lifeguard Uniforms Evaluation Recapitulation Racers on Panel: p Review 11/7 /2011 Date: Aggregate Scores Hurley 176 sourcing Co. if Cares Intl. IN Original Waterman 221 Quiktilver 244 5 I QT e Rater8 2: Swlontek i Rater R 2:14alphlde 14i F a f Rater 03: Williams � C A. Qualifications(15) 15 6 6 12 15 A. Qualifications (15) 15 6 6 12 15 B. Direct Experience (15) 6 6 9 12 15 B. Direct Experience (15) 12 6 9 15 12 C. Quality of Uniforms (25) 15 15 15 20 20 C. Quality of Uniforms(25) 25 15 10 IS 25 D.Proposed Cost (20) 4 16 20 12 12 O. Proposed COSL12D� 4 16 16 12 8 E. Effectiveness of Firm /Proposed Solution (15) 3 9 9 9 12 E. E /festiveness of Firm /Proposed Solution (15) 9 9 9 12 12 F. Proposal Responsiveness(1D) 2 8 8 ID 8 F. Proposal Responsiveness (10) 6 8 8 8 8 Total: 45 60 67 75 82 Total: 71 60 58 74 80 Gorda Points Awarded: 1 2 3 4 5 Gorda Points Awarded: Aggregate Scores Hurley 176 sourcing Co. 177 Cares Intl. IN Original Waterman 221 Quiktilver 244 5 QT e i Rater R 2:14alphlde 14i F 32 f Rater 03: Williams � b A. Qualifications (15) 15 6 6 12 15 B. Direct Experience (15) 12 6 9 15 12 151 1 C. Quality of Uniforms(25) 25 15 10 IS 25 9 12 11 O. Proposed COSL12D� 4 16 16 12 8 20 15 5 15 20 E. E /festiveness of Firm /Proposed Solution (15) 9 9 9 12 12 D. proposed Cost(20) 4 16 16 16 F. Proposal Responsiveness (10) 6 8 8 8 8 E. Effectiveness of Firm /Proposed Solution (15) 6 6 Total: 71 60 58 74 80 F. Proposal Responsiveness 110) Gorda Points Awarded: 3 2 1 4 5 Aggregate Scores Hurley 176 sourcing Co. 177 Cares Intl. IN Original Waterman 221 Quiktilver 244 5 QT e i Rater 03: Williams , A. Qualifications (15) 12 6 6 121 151 1 8. Di,W Experience (15) 12 6 9 12 11 C. Quality of Uniforms 25 20 15 5 15 20 D. proposed Cost(20) 4 16 16 16 12 E. Effectiveness of Firm /Proposed Solution (15) 6 6 6 9 15 F. Proposal Responsiveness 110) 6 8 6 8 8 Total: 60 57 50 72 82 Borda Points Awarded: 3 2 1 4 5 Aggregate Scores Hurley 176 sourcing Co. 177 Cares Intl. IN Original Waterman 221 Quiktilver 244 Composite Scores (By Rank) 'Borda Count Utilised, Le. 1st place awarded 5 points, 2nd place awarded 4 points, etc) Quiksllver is Original Waterman 12 Hurley 7 Sourcing Co. 6 Cares Ind. 5 PURCHASE AGREEMENT WITH QUIKSILVER, INC. FOR JUNIOR LIFEGUARD UNIFORM APPAREL THIS PURCHASE AGREEMENT (Agreement) is made and entered into as of this day of December, 2011 ( "Effective Date "), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City"), and QUIKSILVER, INC., a Delaware corporation ( "Vendor" or "Contractor"), whose principal place of business is 15202 Graham Street, 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 Califomia with the power to carry on its business as it is now being conducted under the statutes of the State of Califomia 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 Junior Lifeguard program apparel Including, hats, backpacks, sweatshirts, t- shirts, rash guards, surf caps, beach, towels, trunks and suits 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 perforn 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. TERM The term of this Agreement shall commence on the effective date, and shall terminate on December 15, 2014 unless terminated earlier as set forth herein. 2. SCOPE OF WORK 2.1 Vendor shall perform all the work and deliver all the Goods and materials as described In the Scope of Work attached hereto as Exhibit A and Incorporated herein by this reference ("World or "Goods "). As a material Inducement to the City entering Into this Agreement, Vendor represents and wan-ants that Vendor is a provider of first class Work and Goods and Vendor is experienced In performing the Worts 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. 2.2 Vendor shall perform everything required to be performed, and shall provide and fumish all the labor, materials, necessary tools, expendable equipment and all transportation services necessary for the Project. 3. TIME OF PERFORMANCE 3.1 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 If any part of the order for Goods shall not bind City to accept further shipments, nor deprive the City of the right to return goods already accepted, at seller's expense. Over shipments and under shipments shall be only as agreed to by the City. 3.2 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. 3.3 Vendor shall submit all requests for extensions of time for delivery In writing to the Project Administrator (as defined in Section 5 below) at 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. 3.4 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 01 `id ` [_ 1' _ -1NI 4.1 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 A and incorporated herein by reference. No rate changes shall be made during the tens of this Agreement without the prior written approval of the City, except for the annual adjustment to the rates as more particularly described Section 4.2 below. 4.2 As full compensation for the performance and completion of the Project as required by the Scope of Work and Schedule of Billing Rates, City shall pay to Vendor and Vendor accepts as full payment the sum of One Hundred Sixty Seven Thousand Forty Five Dollars and 001100 ($167,045.00), per Agreement year, subject to an annual adjustment of five percent (5 %) to the rates in proportion to the previous Agreement year as more fully described below: Year 1: $167,045.00 Year 2: $175 836.84 Year 3: $185 091.41 Total $527,973.25 Quiksilver, Inc. Page 2 4.2.9 Total compensation by City to Vendor shall not exceed Five Hundred Twenty Seven Thousand Hine Hundred Seventy Three Dollars and 251900 ($527,973.25) for the entire three43) year term of this Agreement. 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 t=ire Department. The Assistant Chief for Lifeguard Operations 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 Work to be rendered pursuant to this Agreement. 14;3 «j i fr C p u ; _ i= 6.9 Vendor shall use only the standard materials described in Exhibit A in performing Work under this Agreement Any deviation from the materials described in Exhibit A shall not be utilized unless approved in advance by the City Administrator. 6.2 All of the Work shall be performed by Vendor or under Vendor's supervision. Vendor represents that it possesses the personnel required to perform the Work required by this Agreement, and that it will perform all Work in a manner commensurate with highest professional standards. All Work 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 7.9 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 Work 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 from any cause arising from Vendor's Work or Goods on the Project, or the Work or Goods of any subcontractor or supplier selected by the Vendor. 7.3 To the fullest extent permitted by law, Vendor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily Injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) Ouiksilver, Inc. Page 3 to any breach of the terms and conditions of this Agreement, any Work performed or Work or Goods provided under this Agreement including, without limitation, defects in workmanship or materials or Vendors presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Vendor, 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). 7.4 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. 7.5 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. 7.6 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. 7.7 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. 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 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 Work. 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. Ouiksllver, Inc. Page 4 10. INSURAidCE 90.1 Without limiting Vendor's indemnification of City, and prior to commencement of Work. Vendor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. The cost of such insurance shall be included in Vendor's bid. 10.2 Coverage and Limit Requirements. 10.2.1 Workers' Compensation. Vendor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Vendor's employees In accordance with the laws of the State of Califomla, Section 3700 of the Labor Code. In addition, Vendor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of Callfomia, Section 3700 for all of the subcontractor's employees. The insurer Issuing the Workers' Compensation Insurance shall amend its policy by endorsement to waive all rights of subrogation against City, Its elected or appointed officers, agents, officials, employees and volunteers. Vendor shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. 10.2.2 General Liability. Vendor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000) Products and Completed Operations Aggregate for bodily Injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. 10.2.3 Automobile Liability. Vendor shall maintain automobile insurance covering bodily Injury and property damage for all activities of the Vendor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. 10.3 Other Insurance Provisions or Requirements. 10.3.1 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 an additional Insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or Issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this Agreement. All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the Ouikstiver, Inc. Page 5 "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required Insurance policies, at any time. 10.3.2 General liability Insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 10.3.2.1 City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Vendor, including the Insured's general supervision of Vendor, products and completed operations of Vendor, premises owned, occupied or used by Vendor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Vendor shall submit to City a copy of the additional Insured endorsement along with the required certificates of insurance. 10.3.2.2 Vendor's Insurance coverage shall be primary insurance and/or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Vendor's operations or services provided to the City. Any insurance or self- insurance maintained by City, Its officers, officials, employees and volunteers shall be excess of the Vendor's Insurance and shall not contribute with it. 10.3.2.3 Vendor's insurance shall apply separately to each Insured against whom claim Is made or suit is brought, except with respect to the limits of the Insurer's liability. 10.3.3 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. 10.3.4 Notice of Cancellation. Vendor agrees to oblige its insurance broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage except for builder's risk insurance. The builder's risk policy will contain or be endorsed to contain a provision providing for 30 days written notice to City of cancellation or nonrenewal, except for nonpayment for which 10 days notice is required. 10.3.6 Self- Insured Retentions. Vendor agrees not to self- insure or to use any self - insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self - insure its obligations to City. If Vendor's existing coverage includes a self - insured retention, the self- insured retention must be declared to City. City may review options with the Vendor, which may include Quiksilver, Inc. Page 6 reduction or elimination of the self - insured retention, substitution of other coverage, or other solutions. Vendor agrees to be responsible for payment of any deductibles on their policies. 10.3.6 Timely Notice of Claims. Vendor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Vendor's performance under this agreement. 10.3.7 Waiver. 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 and insurance clauses from each of its subcontractors. 10.3.8 Enforcement of Agreement Provisions. Vendor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Vendor of non- compliance with any requirement imposes no additional obligations on the City nor does It waive any rights hereunder. 10.3.9 Regulrements 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. Spec 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. 10.3.10 City's Remedies. City shall have the right to order the Vendor to stop Work under this Agreement and /or withhold any payment(s) that become due to Vendor hereunder until Vendor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the required coverage and charge Vendor the cost of the premiums or deduct the cost from Vendors payments. 10.3.11 Coverage not Limited. All insurance coverage and limits provided by Vendor and available or applicable to this agreement are Intended to apply to the full extent of the policies. Nothing contained In this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. 10.3.13 Coverage Renewal. Vendor will renew the coverage required here annually as long as Vendor continues to provide any Work under this or any other contract or agreement with the City. Vendor shall provide proof that policies of Insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Vendors insurance agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement as required in these specifications Quiksilver, Inc. Page 7 applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 11. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under the 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. The Vendor and the City expressly agree that in addition to all claims filing requirements set forth in the Agreement, the Vendor shall be required to file any claim the Vendor may have against the City in strict conformance with the Tort Claims Act (Govt. Code §§ 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. 13. V69THHOLDINGS 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 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 14.1 The Vendor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 14.2 If subject to the Act, Vendor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Vendor shall indemnify and hold harmless City for any and all claims for damages resulting from Vendor's violation of this Section. Ouiksilver, Inc. Page 8 15. NOTICES 15.1 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: Rob Williams, Assistant Chief Fire Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 6443170 Fax: 949 -673 -3056 15.2 All notices, demands, requests or approvals from City to Vendor shall be addressed to Vendor at: Attention: Dave Rosenberger Quiksilver, Inc. 15202 Graham Street Huntington Beach, CA 92649 Phone: 714885 -2284 Fax: 714885 -2285 16. TERMINATION 16.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 16.2 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 Work 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. Quiksilver, Inc. Page 9 17. STANDARD PROVISIONS 17.1 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. 17.2 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 tern, covenant or condition. 17.3 Integrated Contract This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Agreements of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 17.4 Conflicts or Inconsistencies. In the event there are any conflicts or Inconsistencies between this Agreement and the Exhibits attached hereto, the terms of this Agreement shall govern. 17.5 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. 17.5 Effect of Vendors Execution. Execution of this Agreement by Vendor is a representation that Vendor has visited the Project Site, has become familiar with the local conditions under which the Work Is to be performed, and has taken into consideration these factors In submitting its Project Proposal and Scope of Work. 17.7 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. 17.8 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. 17.9 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. 17.10 Severabiilly. If any tenn 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. 17.11 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 attomeys fees. Quiksilver, Inc. Page 10 17.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Qulksilver, Inc. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: / -- Aaron C -Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk Attachments: All-01289 CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Michael F. Henn Mayor VENDOR: QUIKSILVER, INC., a Delaware corporation Date: By: Dave Rosenberger Vice- President Date: By: Brad Holman C.F.O. Exhibit A - Scope of Work and Schedule of Billing Rates Quiksilver, Inc. Page 12 to'lE as14A ATrACHMENTA: SCOPE OF WORK fnrtrudiOns: Inftlo/ the bottom of each page of the Scope of Wont In the spaces provided as remit as part of your Proposal as AdachmenI 4 acknowledging a demonstrated understanding of the Scope of Worts Any and at! eweptforts to the stated mandatory minimum requirements shop be Indicated on the Statement of Compliance. Pricing for this propared protect can be proulded either byPNng In the spaces below and submitting thhr entire attachment with your proposal, or separate sheets may be used so tong as it contains pddng for all hems thted below. SCOPE OF WORK ANTICIPATED CITY OF NEWPORT BEACH JUNIOR LIFEGUARD UNIFORM ITEMS All items will have approved Color Scheme with JG Logo. JG Logo may be a Patch, Embroidery, or Screen print. ITEM 0 IMinnimYum QT DESCRIPTION UNIT PRICE EXTENDED PRICE 1. 1,,500 BAWAtK -Heavy Won,:lpperordmwsMrkgdodri ,atleasttwo compenments forwet/dry tns[de, outside pouches, padded adjustable strapst"s afetyandwmfort ,outside adjustable method arj o to secure fins or bike helnreL heavydutytop handle, large enough to �- carry: fins, lunch, drink, beach tgwol, sweatshirt and shoes with a small secure personal pocket for valuables. 2. 250 Wide Brimmed, Bushman 5tyle HAT- High quallty,forsun protection, sturdy brim with material under Ikdng for everyday wear atthe beach, ventilation, adjustable nylon cord or neoprene to fit �SU child and adult. 3. 1,200 Baseball orTnrdcer style HAT -High quality, sturdirmaterlal bill for emy day beach use and adjustable back to fit child and adult 6000 4. 250 Vlsw style, HAT - High4uallty, adjustable, with material on bill, low prof letopf oft sturdybill, nylon. /DLOR -Bed, Navy. or approval. 5. SW HAT°— Ntghquality. trendy style, for competition day awards. �- SSG to 0- other item may be subsumed with approval 6. 2,000 LIFEGU App TRUNK ° - Boardshort style, sturdy stretch fabric (with approval), 3 treadle heavy stitdJng throughout, bar tucking at all stress polnts, fated reinforced waistband. durable far everyday use, stde/back pocket with full Velcro closure and sand nromme% bar taded/ cotton tie, wide InvWbtelly, 23 "000 7 Boys and Men sires: 22° -33", 36", W 380 and 4V wale Girls and women sizes: 080.93 (pc -.13) *Must agree to make up to 5 special size trunks for Junior Lifeguards who do not fit Into the above sizes atyatmewport Beady RlP No 10-26 Pages Junrar Uleguwd UNtorm Apparea ITEM # QTY DESCRIPTION uNri PRICE EXTENDED PRICE 7. 1,700 SWEATSHIRT- 80aotton/2 **. Heav Welght,12 oL ormore, fleece, Hooded or Crew with hand podrets or zipper pouch, piping or color accent acceptable. f fy „�U 2t( Gx0 , Site Adult)D(S -la . 8. 2,750 T SHIRT - 100% Heavy we%htcottm Short Sleeve, Size Men's and Women's Adult Sites)CS.JO(L. COLOR -White or approval 13, ?J`U SCREEN PRINT - 3 to 5 color JG Lop front and badr. 9. 1,400 MONSTER MILE7 SHIRT - 100%HeaWwelghtcotton, JLS -JOL (Unisex) COLOR - approval s-” `-0 ff '"�w.—y� ds SCREEN PRINT- t color front and back with Newport Beall monsterdesign. Artwork may be supplied by City of Newport Beach 10. 500 RASHGUARD -5. S oz, or more, nylon " short sleeve, pullover tops with moth turtle neck collar and SPF Sue )O(5 -7IXL COLOR- tomatch)Guniformonappr M. —y-- SCREEN PRINT -2 to 3 color JG logo. . 11. 1,500 SURF CAP - 100% nylon beanie, quality taping to cover all sums, tie with tack bars for fit and fundfon. (Samples on request) COLORS•Whlte, Bright0rarge, Royal Blue, Oa /U S htYellow,ReandKellyGreen. adg d, —y 12. 1,750 BEACH TOWELS - Pdnted logo largemwel COLOR -on approval 16.ro 3�S 13. 70 INSTRUCTOR SHIRTS -Aloha/Camp shirt style, with JG logo on front Sue S• XKL COLOR-DPW Pmpaser)nRr* � Cry of Newport Bead, RFP No. 10-26 page SO Junior Ukauard Unitmm Apparel ITEM N QTY . DESCRIPTION UNIT PRICE EXTENDED PRICE 14. 950 GIWSSUrtS -one Plece( 350) and Two Keoe(M), Athletic Out for One Piece Radng A SheJOiS —)04 Color —Red or approval TWO Piece -2o 1S. 500 T-SHIRT( S)- COMPE131ON DESIGN— ('34 Different shirts /des4W) 100%Heavywelght cotton, short sleeve. . 19' -2 S'v Z� She Men s SOIL T— SCREEN PRINT —4 +color fi ant/badc with Newport Bead) Team Newport Oeslgn(s). Artwork may be supplied by Gly of Newport Bead) 16. 60 SWEATSHIRT — High quality (DriAit orihwmafit)TBO, fleece or mlcro-fieece, crew with %zip, hand pockets, piping orcokxaccent acceptable _ /S ! c 00 Size Adult —S-btL Color —Navy orapproved ' FmbrokkNor screen Pint —*IW on teftforearm 17. AitTWORK IEMBROIDERY/SGMPRINT(IFANY) 18. SHIPPING(IFANY) ' AdL 19. ADDITIONAL FITS OF ANY) SUBTOTAL $ CdyotNewport Brach RFP No.10-26 Page 11 AmtorLifeguard Uniform Apparel °e Production Time: It is anticipated that the City shall need all apparel items in -hand and delivered as of June 1, 2011 to properiy facilitate the start of the Junior Lifeguard Program. if this production time is not feasible, Contractor shall indicate as such in the Statement of Compliance. Product Samples: Proposers shall also submit product samples as part of their Proposal. City of Newport Beach Lifeguard personnel is requesting one (1) sample of each item listed in the Scope of Work. See delivery Instructions in Section 2.1 for details on where to submit samples. Proposers may submit Proposals electronically prior to delivering product samples; the order In which Proposals and product samples are received are not important. Samples shall be returned to Proposers upon completion of the RFP evaluation process. Garment License: Prior to the commencement of an Agreement, Contractor must be able to provide proof of possession of a State of California Gannent License, issued by the State's Department of Labor Standards Enforcement. The undersigned certifies that submission of this Proposal is made without prior understanding, arrangement, agreement, or connection with any corporation, firth or person submitting a Proposal for the same services, and is in all respects fair and without collusion of fraud. The undersigned certifies that they have not entered into any arrangement or agreement with any City of Newport Beach public officer. The undersigned understands collusive practices are a violation of State and Federal law and can result in fines, prison sentences, and civil damage awards. It L Prop ser n re Date 'K�AgE 2us T.t�� (2 SAID) Printed Name and TWe QryalNewpwt Bean, RPP N0-10-26 Page 12 MibrWeCt WUrdfoan Apparel