HomeMy WebLinkAboutC-6445 - Exclusive Merchandising Agreement - City Centennial-Related MerchandiseFinal, 6-1-06
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�! MERCHANDISING AGREEMENT
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THIS MERCHANDISING AGREEMENT ("Agreement") is entered into and
effective as of ii�r.. �J�i , 2006, by and between the City of Newport Beach, a
municipal corporation ("City"), and Robert Garcia, an individual ("Vendor").
RECITALS
A. City is coordinating celebrations and other events from October 2005 through
October 2006 in order to commemorate its Centennial Anniversary. City has
developed a logo to represent the Centennial Anniversary ("Centennial Logo")
B. Vendor is engaged in the business of producing and selling posters.
C. Vendor desires to produce, market and sell posters with the Centennial Logo
("Centennial -Related Posters") to companies, retailers and individuals.
D. City agrees to allow Vendor to produce, market and sell Centennial -Related
Posters based upon the terms set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set
forth, City and Vendor hereby agree as follows:
1. Grant of Right to sell Centennial -Related Posters.
Subject to the terms and conditions set forth herein, City hereby grants to Vendor
the right to sell Centennial -Related Posters to companies, retailers and non-profit
organizations.
2. Limitation on Grant.
The right granted in Section 1 relates solely to the production,and sales of
Centennial -Related Posters. The right granted in Section 1 is not exclusive, and
City shall have the option to contract with another vendor at any time to sell or
market Centennial -Related Posters.
Term.
The term of this Agreement shall be five (5) months, commencing on July 1,
2006, and expiring on October 31, 2006 ("Term").
4. Vendor Scope of Work.
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Vendor shall produce, market and sell Centennial -Related Posters, subject to
City's approval as described below, to companies and retailers. Vendor shall not
produce, market and/or sell any other type of merchandise containing the
Centennial Logo, or the Centennial name and trademark.
5. Centennial -Related Posters.
Prior to offering Centennial -Related Posters for sale, Vendor shall obtain the
written approval of City of the design of that Centennial -Related Poster.
No Centennial -Related Poster shall be sold unless its design was previously
approved in writing by the City. Vendor shall deliver samples of the Centennial -
Related Posters to the City.
6. Trademark/Logo.
In connection with this Agreement, and subject to the City's written consent for
each change in design of the Centennial -Related Poster, including but not limited
to, the personalization of any Centennial -Related Poster with Vendor's customer's
logo, Vendor shall have the right to use City's Centennial name, trademark, and
logo. Vendor acknowledges that City has an interest in maintaining and
protecting the image and reputation of its trademark, and that in order to
accomplish this purpose, Vendor must in all cases assure City that its' trademark
and logo are at all times used in a manner consistent with the requirements
established by City. Vendor agrees that City has the right to examine and approve
or disapprove in advance the contents, appearance, and presentation of any and all
advertising, promotional or other similar materials, proposed to be used in
connection with City's Centennial name, trademark or logo. Vendor agrees that
nothing contained in this Agreement shall give it any right, title or interest in
City's trademarks and logos, and that such trademarks and logos are the sole
property of City.
7. Risk of Loss.
Vendor shall bear the risk of damage to, or loss of, Centennial -Related Posters,
Vendor's equipment or any other property used in the performance of this
Agreement and City shall have no responsibility for the protection or preservation
of the Centennial -Related Posters, Vendor' equipment or any other property used
in the performance of this Agreement.
8. Payment to City.
A. Initial Payment.
Upon the complete execution of this Agreement, Vendor shall pay to City
the amount of Five Hundred and no/100 Dollars ($500.00).
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B. Percentage Payment.
Within thirty (30) days of the expiration or earlier termination of this
Agreement, Vendor shall pay to City an amount equal to ten percent
(10%) of the Gross Receipts, as defined below, resulting from the
operations permitted under this Agreement ("Vendor Fee"). The Vendor
Fee shall be mailed or delivered to:
Revenue Division
City of Newport Beach
3300 Newport Blvd.
PO Box 1768
Newport Beach, CA 92658-8915
The Vendor Fee shall be deemed paid on the date the payment is
postmarked by the postal authorities. If postmarks are illegible, the
payment shall be deemed paid upon actual receipt by City's Accounts
Receivable division. Vendor assumes all risk of loss and responsibility for
late payment charges if payments are made by mail.
C. Delinquent Vendor Fees.
If Vendor fails to pay the Vendor Fee when due, Vendor will pay, in
addition to the unpaid Vendor Fee, five percent (5%) of the delinquent
Vendor Fee amount as a late fee. If the Vendor Fee is still unpaid at the
end of the fifteen (15) days, Vendor shall pay an additional five percent
(5%) of the delinquent Vendor Fee amount as a late fee. It is mutually
agreed by the parties to this Agreement that these amounts are appropriate
to compensate the City for loss resulting from the late payment of Vendor
Fees, including lost interest opportunities, and other cost of servicing the
delinquent account.
D. Unauthorized Use Charge.
Vendor shall pay City one hundred percent (100%) of the Gross Receipts
for any sale of goods not specifically permitted by this Agreement. The
existence of this provision, and the payment of this charge or any part of
it, does not constitute an authorization for a particular service or use, and
does not waive any City rights to terminate the sales or use, or to default
Vendor for participating in or allowing any authorized use.
E. Gross Receipts.
"Gross Receipts", as used in this Agreement, shall mean the total amount
of money received from Vendor's sales of Centennial -Related Posters
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from whatever source derived whether received or to become due, before
any deductions including, but nor limited to, any costs, possessory interest
taxes, or other property taxes. Gross Receipts, however, shall not include:
(1) federal, state, or municipal taxes collected from the consumer
(regardless of whether the amount is stated to the consumer as a separate
charge) and paid over periodically by Vendor to a governmental agency
accompanied by a tax return or statement as required by law; or (2)
refunds for merchandise that is returned. The amount of taxes and refunds
shall be clearly shown on the books and records of Vendor. Vendor Fees
shall be calculated and paid by Vendor on the basis of Gross Receipts,
whether the income is received by Vendor or by any permittee or licensee,
or their agents.
9. Taxes.
Vendor agrees to pay, before delinquency, all federal, state or local taxes,
assessments and fees assessed or levied by reason of the business or other Vendor
activities related to the operation of the merchandising business, including
licenses or permits. Such taxes shall also include, but not be limited to, sales
taxes and any property taxes. Vendor acknowledges that this Agreement may
create a possessory interest subject to property taxation and that Vendor shall pay
any property taxes levied on such interest.
10. Books and Records.
In addition to the Scope of Work, Vendor shall maintain detailed books and
accounts. Such books and accounts shall include:
A. Monthly inventory sheets reflecting sales to retailers;
B. Monthly inventory sheets reflecting sales to companies; and
C. Other records as City may request from time to time.
All such sheets shall be signed by Vendor or its authorized agent attesting
to the accuracy thereof.
Vendor shall deliver such records to the City concurrently with its payment of the
Vendor Fee.
Records shall be supported by source documents such as sales slips, daily cash
register tapes, purchase invoices, e-mails, print-outs of on-line invoices or other
documents as necessary to allow City to easily determine the Gross Receipts.
City, or its designee, shall have the right to examine Vendor's books and records
at any reasonable time for a period of three (3) years following the end of the
Term. Vendor shall keep such books and records in one (1) location within the
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County of Orange. These books and records must be maintained separately from
all other accounts not relating to the Centennial -Related Posters. City, at its
discretion, shall have the right to inspect and audit the business of Vendor, its
agents, permittees, and licensees operating in connection with the Centennial -
Related Posters, as necessary and appropriate for City to determine the amounts
of the Vendor Fee due City in compliance with the requirements of this
Agreement. At City's request, Vendor shall promptly provide, at Vendor's
expense, any necessary data to enable City to fully comply with all requirements
of the state and federal government related in any way to this Agreement. Such
data shall include, if required, a detailed breakdown of Vendor's receipts and
expenses.
The full cost of City's audit shall be borne by City unless one of the following
conditions exist, in which case Vendor shall pay the cost of City's audit:
1. the audit(s) reveal an underpayment of more than five percent (5%)
or more than $10,000, whichever is less, between the Vendor Fee
due as reported and paid by Vendor pursuant to this Agreement
and the Vendor Fee determined by the audit; or
2. Vendor has failed to maintain complete and true books, records,
accounts, and supporting documents in strict accordance with this
Section.
Any underpayment of Vendor Fees of less than five percent (5%) revealed by the
audit shall be paid within thirty (30) days written notice from City, without
penalty, otherwise, Vendor shall incur late fees on the delinquent amount pursuant
to Section 8(C).
Vendor's failure to keep complete and accurate records by means of double -entry
bookkeeping and make them available for City inspection is, like all other failures
to comply with covenants of this Agreement, a breach of this Agreement and
cause for termination.
11. Vendor's Representations.
Vendor represents and warrants to City as follows:
A. that it has been validly formed and duly exists as a sole proprietership
under the laws of the State of California;
B. that it has the right and authority to enter into this Agreement and is not
prevented from entering into this Agreement by any statute, regulation or
order of any governmental authority, or by any license, debt instrument,
mortgage, lease, contract, or other agreement or instrument binding upon
it or any of its property;
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C. that it is duly authorized to enter into this Agreement and has taken all
necessary action to obtain such authorization, and that no consent of, or
notice to, any other individual, private entity or governmental authority is
required in connection with the execution, delivery and performance of
this Agreement;
D. that it has the capability to perform its duties and functions as
contemplated by this Agreement; and
E. that this Agreement, when properly executed by both parties, will
constitute a legal, valid and binding agreement, enforceable by City in
accordance with its terms.
12. No Partnership or Agency.
The parties hereby agree that Vendor shall be and act as an independent
contractor. This Agreement is not intended to create, nor shall it be construed as
creating, a partnership. Except as specified by City in writing, Vendor shall have
no authority, express or implied, to act on behalf of City in any capacity
whatsoever as an agent.
13. Assignment.
Vendor shall not sell, assign or otherwise transfer a controlling interest in
Vendor's rights hereunder.
14. Compliance with Applicable Laws.
Vendor at its sole cost and expense, but with reasonable cooperation from City,
shall obtain all permits licenses and governmental authorizations necessary for the
conduct of its business in accordance with the terms of this Agreement, including
a business license from the City. Vendor shall also comply with all applicable
laws, statutes, ordinances and regulations governing Vendor's performance of its
obligations hereunder.
15. Vendor Representative.
Vendor hereby designates Robert Garcia as the Vendor Representative, who shall
be City's primary contact to Vendor.
This Agreement will be administered by the Revenue Division. Glen Everroad,
Revenue Division Manager, shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator or his
authorized representative shall represent City in all matters pertaining to the
services to be rendered pursuant to this Agreement.
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16. Insurance.
Without limiting Consultant's indemnification of City, and prior to
commencement of work, Consultant shall obtain, provide and maintain at its own
expense during the term of this Agreement, a policy or policies of liability
insurance of the type and amounts described below and in a form satisfactory to
City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City's at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Worker's Compensation.
Vendor shall maintain Workers' Compensation Insurance and Employer's
Liability Insurance for its employees in accordance with the laws of the
State of California. Any notice of cancellation or non -renewal of all
Workers' Compensation policies must be received by City at least thirty
(30) days prior to such change. The insurer shall agree to waive all rights
of subrogation against City, its officers, agents, employees and volunteers
for losses arising from work performed by Vendor for City.
E. General Liability Coverage.
Vendor shall maintain commercial general liability insurance with a
combined single limit of not less than One Million and 00/100 Dollars
($1,000,000.00) per occurrence for bodily injury, personal injury and
property damage, including without limitation, contractual liability. If
commercial general liability insurance or other form with a general
aggregate limit is used, either the general aggregate limit shall apply
separately to the work to be performed under this Agreement, or the
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general aggregate limit shall be at least twice the occurrence limit.
F. Automobile Liability Coverage.
Vendor shall maintain automobile insurance covering bodily injury and
property damage for all activities of 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 Five Hundred Thousand and 00/100 Dollars ($500,000.00) combined
single limit for each occurrence.
G. Endorsements.
Each general liability and automobile liability insurance policy shall be
endorsed with the following specific language:
City, its elected or appointed officers, officials, employees, agents
and volunteers are to be covered as additional insureds with respect
to liability arising out of work performed on behalf of the Vendor.
2. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Vendor's operations or services
provided to City. Any insurance maintained by City, including any
self-insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
4. The insurer waives all rights of subrogation against City, its
elected or appointed officers, officials, employees, agents and
volunteers.
5. Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
6. The insurance provided by these policies shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) days written notice has been received
by City.
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H. Timely Notice of Claims.
Vendor shall give City prompt and timely notice of claim made or suit
instituted arising out of or resulting from Vendor's performance under this
Agreement.
Change in Amounts.
City, at its discretion, may require the revisions of amounts and coverages
at any time during the term by giving Vendor sixty (60) days prior written
notice. City's requirements shall be designed to assure protection from
and against the kind and extent of risk existing in the operation pursuant to
this Agreement. Vendor also agrees to obtain any additional insurance
required by City for new improvements, in order to meet the requirements
of this Agreement.
Failure to Comply.
If Vendor fails or refuses to take out and maintain the required insurance
or fails to provide the proof of coverage, City has the right to obtain the
insurance. Vendor shall reimburse City for the premiums paid with
interest from the effective date of coverage at the maximum allowable
legal rate then in effect in California. City shall give notice of the
payment of premiums within thirty (30) days of payment stating the
amount paid, names of the insurer(s), and rate of interest. Reimbursement
and interest shall be paid by Vendor on the first (1St) day of the month
following the notice of payment by City.
Notwithstanding the preceding Section, if Vendor fails or refuses to take
out or maintain insurance, City has the right to declare this Agreement in
default without further notice to Vendor, and City shall be entitled to
exercise all legal remedies in the event of such default.
17. Indemnity.
To the fullest extent permitted by law, Vendor shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, officers, agents and
employees (collectively, the "Indemnified Parties") from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorney's fees, disbursements and court costs) of every kind and
nature whatsoever (individually, a Claim; collectively, "Claims"), which may
arise from or in any manner relate (directly or indirectly) to any work performed
or services provided under this Agreement or Vendor's presence or activities at
any place (including the negligent and/or willful acts, errors and/or omissions of
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Vendor, its principals, officers, agents, employees, 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 Vendor.
18. Termination.
This Agreement may be terminated at any time by either party to this Agreement,
without cause, upon five (5) days prior written notice to Vendor. It is mutually
agreed that City shall not be obligated for any loss, financial or otherwise, which
may be incurred by Vendor as a result of the termination of this Agreement, and,
further, that Vendor expressly waives any claim for loss or expense which Vendor
might incur as a result of termination of this Agreement. Vendor may terminate
this Agreement upon thirty (30) days written notice if City materially breaches
any term of this Agreement and City fails to cure said breach within thirty (30)
days of its receipt of the notice of breach.
19. Defaults and Remedies.
A. Default by Vendor. In the event that:
Vendor shall default in the performance or fulfillment of any
covenant or condition required by this Agreement to be performed
or fulfilled by Vendor and shall fail to cure the default within thirty
(30) days following written notice from City or within such time as
extended by City in its sole discretion; or
2. Vendor shall voluntarily file or have involuntarily filed against it
any petition under bankruptcy or insolvency act or law; or
Vendor shall make a general assignment for the benefit of
creditors;
Then City may, at its option, without further notice or demand upon
Vendor or upon any person claiming rights through Vendor, immediately
terminate this Agreement and all rights of Vendor and of all persons
claiming rights through Vendor.
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B. Abandonment by Vendor. In the event Vendor has breached this
Agreement, this Agreement shall continue in full force and effect for so
long as City does not terminate this Agreement pursuant to Section 19,
and City may enforce all its rights and remedies under this Agreement.
20. Waiver.
The waiver by a party of the performance of any provision, term, covenant or
condition of this Agreement shall not invalidate this Agreement nor shall such
waiver constitute a continuing waiver or a waiver of any other provision, term,
covenant or condition of the Agreement, whether or not similar, or a waiver of
any subsequent breach of the same. The subsequent acceptance of the Vendor
Fee by City shall not be deemed a waiver of any preceding breach by Vendor of
any provision, term, covenant or condition of this Agreement, regardless of City's
knowledge of such preceding breach at the time of acceptance of the Vendor Fee.
The waiver by a party of the time for performing any act shall not constitute a
waiver of the time of performing any other act, whether or not similar. No waiver
shall be binding unless executed in writing by the party making the waiver
Failure on the part of City to require or exact full and complete compliance with
any of the provisions, covenants, conditions or terms of this Agreement shall not
be constructed as in any manner changing the terms of this Agreement and shall
not prevent the City from enforcing any provision hereof.
21. Nondiscrimination.
Vendor agrees not to discriminate in any manner against any person or persons on
account of race, color, religion, gender, sexual orientation, medical status,
national origin, age, marital status, or physical disability under this Agreement,
including but not limited to the providing of goods, services, facilities, privileges,
advantages, and accommodations, and to the obtaining and holding of
employment.
22. Fair Employment.
In the performance of this Agreement, Vendor shall not discriminate against any
employee or applicant for employment because of race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition,
marital status, sex, sexual orientation, or age pursuant to Section 12940 et seq. of
the Government Code. Vendor shall take affirmative action to ensure that
applicants are employed, and that employees are treated during employment
without regard to their race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, sexual
orientation, or age. Such action shall include, but not be limited to, the following:
employment, upgrading, demotion or transfer, recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation;
terms, conditions or privileges of employment; and selection for training,
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including apprenticeship. Vendor shall permit access to its records of
employment, employment advertisements, application forms, and other pertinent
dates and records by the Fair Employment and Housing Commission or City for
the purpose of investigation to ascertain compliance with this Section.
23. Standard of Employees.
Vendor and its employees shall at all times conduct themselves and the operations
of Vendor in a creditable manner. Vendor shall thoroughly train its employees in
their duties and shall regularly monitor them to ensure that they behave in a
courteous manner, do not disturb the quiet enjoyment of others, and otherwise
comply with all of the provisions in this Agreement.
24. Notices.
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 (3rd) 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: Glen Everroad
Revenue Division Manager
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92663
All notices, demands, requests or approvals from City to Vendor shall be
addressed to Vendor at:
Robert Garcia
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25. Headings.
The headings of the various paragraphs hereof are intended solely for means of
reference, and are not intended for any purpose whatsoever to modify, explain or
place any construction of any on the provisions of this Agreement.
26. Invalidity.
If any provision of this Agreement, or the application thereof to any persons or
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circumstances, shall to any extent be held to be invalid or unenforceable, neither
the remainder of the Agreement nor the application of such provision to persons
or circumstances other than those as to whom or which it is held to be invalid or
unenforceable shall be affected thereby, and every provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
27. Attorney's Fees.
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be
entitled to recover its attorneys' fees.
28. Entire Agreement.
This Agreement contains the entire understanding of the parties. The terms of this
Agreement are intended by the parties hereto as a final expression of their
agreement with respect to the subject matter hereof, and may not be contradicted
by evidence of any prior or contemporaneous agreement. The parties further
intend that this Agreement constitute the complete and exclusive statement of its
terms, and that no extrinsic evidence whatsoever may be introduced in any formal
or informal proceedings, involving this Agreement. No provisions of this
Agreement may be amended or added to except by an agreement in writing,
signed by all of the parties hereto, or their respective successors in interest.
29. Successors.
All of the terms, covenants and conditions of this Agreement shall be binding
upon, and shall inure to the benefit of, the heirs, executors, administrators,
successors and assigns of the parties hereto.
30. Time is of the Essence.
Time is of the essence in performance of all the terms, covenants, and conditions
of this Agreement, and, except as otherwise provided in this Agreement, all of the
terms, covenants, and conditions of this Agreement shall apply to benefit, and
bind the successors and assigns of the respective parties, jointly and individually.
31. Governing
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of California. Any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
32. Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning
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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.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of
the date first above written.
APPROVED AS TO FORM:
Robin Clauson
City Attorney
for the City of Newport Beach
ATTEST:
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: ,
Homer Bludau
City Manager
for the City of Newport Beach
VENDOR:
By. By:
LaVonne Harkless, Robert Garcia
City Clerk
Its
Company Name