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HomeMy WebLinkAboutC-6444 - Exclusive Merchandising Agreement - City Centennial-Related MerchandiseMs. Suzanne Perga Crea8tive Products 999 18th Street Suite 300 Denver, Colorado 80202 CITY OF NEWPORT BEACH RECREATION & SENIOR SERVICES Marie Knight, Director April 14, 2006 Re: Mutual Termination of the Exclusive Merchandising Agreement dated August 11, 2005 ("Agreement"), by and between the City of Newport Beach and Suzanne M. Perga, owner of Crea8tive Products ("Vendor") Dear Suzanne, As we discussed and agreed earlier this week, the Agreement is hereby mutually terminated. This termination was effective as of April 12, 2006, and neither City nor Vendor shall have any further rights or obligations under the Agreement. Your storage unit key will be returned to you after your representative has inventoried your stock. City staff will not be accessing that storage unit at any time. Thank you for your efforts. Please countersign this correspondence and return to my attention in the self-addressed envelope provided. Feel free to contact me at (949) 644- 3151 if you have any further questions. Sincerely yours, c Marie ight Recre tion & Senior Services Director for the City of Newport Beach Suzanne Perga Crea8tive Products 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658-8915 Telephone: (949) 644-3151 • Fax: (949) 644-3155 • www. city. newport-beach. ca. us EXCLUSIVE MERCHANDISING AGREEMENT THIS EXCLUSIVE MERCHANDISING AGREEMENT ("Agreement") is entered into and effective as of d f` , 2005, by and between the City of Newport Beach, a municipal corporation ("City"), and Suzanne M. Perga, Owner Cre8ive Products, a ("Vendor"). RECITALS A. City is coordinating celebrations and other events commemorating its Centennial Anniversary from October 2005 through October 2006. B. Vendor is engaged in the business of producing and/or selling merchandise. C. City desires to have Vendor produce and/or sell specified merchandise during the Centennial Anniversary. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth, the City and Vendor hereby agree as follows: Grant of Exclusive Right. Subject to the terms and conditions set forth herein, City hereby grants to Vendor the exclusive right to sell Centennial -related Merchandise (as defined below): A. On-line on a website devoted to the sales of Centennial -related Merchandise and linked to the City website; B. At all City sponsored Centennial events, as listed on Exhibit "A", and as may be amended in writing from time to time by City ("Centennial Events"); and C. At other non -Centennial events which City determines would be appropriate venues to sell Centennial -related Merchandise. The term "Centennial -related Merchandise" shall mean the items listed on Exhibit "B", attached hereto, and such other items as the City designates, in writing, as Centennial -related Merchandise. Vendor also will act as the City's representative for licensing of all Centennial merchandise other than the merchandise they sell. 'As part of the licensing, the Vendor will work with the City to assess the desirability of any merchandise to be sold with the Centennial logo and then assess a 10% fee based on gross receipts to interested parties who desire to use the Centennial logo on their merchandise. This fee will then be split with the City on a 50/50 basis. 2. Limitation on Grant. The right granted in Section 1 relates solely to the production and sales or licensing of Centennial -related Merchandise. Vendor shall not sell any other item or conduct any other activity at the Centennial Events. 3. Term. vC, to M a*tlk s The term of this Agreement shall be "c encing on AA,� , 2005 and expiring on W oV �, 2006 ("Term"). 4. Vendor Scope of Work. Vendor shall perform the Scope of Work as listed in Exhibit "C". Merchandise. Prior to offering a Centennial -related Merchandise item for sale, Vendor shall obtain the written approval of City of both the design of that item and its sale price. Vendor shall deliver samples of such items to the City. No item shall be sold at a price exceeding the price approved by the City. Vendor shall produce sufficient quantities of Centennial -related Merchandise, and maintain sufficient back-up inventory to meet City and customer demand. 6. Trademark/Logo. In connection with this Agreement, and subject to the City's written consent for each instance, 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 standards and guidelines established by City. Vendor agrees that City has the right to examine and approve or disapprove in advance the use, contents, appearance, and presentation of any and all advertising, promotional or other similar materials proposed to be used in connection with any advertising or promotions. 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. Sales Facilities. Vendor shall provide all facilities and equipment needed for the sales of Centennial -related Merchandise at the Centennial Event sites, including, but not limited to, tents, tables, chairs, lighting and other equipment, unless otherwise provided at the event by the City. Each tent location shall be open for business at the hours for each Centennial Event as set forth on Exhibit "A", or at such other times as City designates in writing. 8. Risk of Loss. Vendor shall bear the risk of damage to, or loss of, Centennial -related Merchandise, 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 Event -Related Merchandise, Vendor' equipment or any other property used in the performance of this Agreement. 9. Payment to City_ A. Payment Amount. On the tenth (10th) of each month, Vendor shall pay to City an amount equal to ten percent 10% of the Gross Receipts resulting from the operations permitted under this Agreement ("Vendor Fees") from the previous month. All Vendor Fees must be mailed to: Revenue Division City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658-8915 The place of payment may be changed at any time by the City upon thirty (30) days prior written notice to Vendor. Mailed payments of the Vendor Fees 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. B. Delinquent Vendor Fee. If Vendor fails to pay any Vendor Fees when due, Vendor will pay, in addition to the unpaid Vendor Fees, five percent (5%) of the delinquent Vendor Fee amount as a late fee. If the Vendor Fees are 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. C. 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 at a Centennial Event. 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. D. Gross Receipts. "Gross Receipts", as used in this Agreement, shall mean the total amount of money received from Vendor's sales of Centennial -related Merchandise 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. 10. Security Deposit. Vendor shall deliver to City with the executed copies of this Agreement, a credit card number to hold as a security deposit with authorization for the City to use for payment of delinquent fees, for correcting any default or breach of this Agreement by Vendor, Vendor's successors or assignees, or for payment of expenses incurred by City as a result of Vendor's failure to faithfully perform all terms, covenants, and conditions of this Agreement. If at the end of the term of this Agreement, Vendor has performed all of the provisions of the Agreement, the card would not be charged. At any time the City would need to utilize the card to recover the above mentioned fees City would provide Vendor 24 hour notice. 11. 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. 12. Books and Records. In addition to the Scope of Work, Vendor shall maintain detailed books and accounts. Such books and accounts shall include: A. Daily inventory sheets, which Vendor shall deliver to City within fourty- eight (48) hours following the end of each Centennial Event; B. Monthly inventory sheets reflecting on-line sales, which Vendor shall deliver to City within forty-eight (48) hours following the end of each calendar month; and C. Other records required by the Scope of Work, and 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. 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. Any retail sales or charges will be recorded by means of cash registers or other comparable devices which display to the customer the amount of the transaction and automatically issue a receipt. The registers will be equipped with devices that lock in sales totals and other transaction numbers and sales details that are not resettable. Totals registered shall be read and recorded at the beginning and end of each business day of each event. A system other than these cash registers may be provided if such a system is approved by the City in writing. 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 each Centennial Event. Vendor shall keep such books and records in one (1) location within the County of Orange. These books and records must be maintained separately from all other accounts not relating to the Centennial Events and Centennial -related Merchandise. 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 Events and Centennial -related Merchandise, as necessary and appropriate for City to determine the amounts of Vendor Fees 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 Fees due as reported and paid by Vendor pursuant to this Agreement and the Vendor Fees 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 9(B). 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. 13. Vendor's Display Equipment. Vendor shall install any display equipment that Vendor deems necessary to carry out its duties under this Agreement. After the end of each Centennial Event, Vendor shall promptly remove its equipment and Centennial -related Merchandise from the Centennial Event site. Vendor shall be responsible for carrying adequate property insurance for Vendor's equipment, the Centennial -related Merchandise, and any other property used in the performance of this Agreement, including coverage for fire and theft. 14. Care and Protection. Vendor shall take all steps reasonably necessary to prevent injury to persons performing work under this Agreement, to the public, and to property. Vendor shall leave all work areas in a good and clean condition; any costs incurred by the City to repair or clean work areas shall be charged to Vendor and shall be paid within thirty (30) days of receipt of an invoice for this work. Vendor shall park its vehicles where indicated by City. 15. Security. City shall be responsible for providing and bearing the cost of adequate security at each Centennial Event. While City shall use its commercially reasonable efforts to provide adequate security at each Centennial Event, City is not responsible for loss, damage or theft of Vendor's equipment, Centennial -related Merchandise, or any other property of Vendor. City shall be responsible for public order and safety and shall have the right and authority to eject persons from the Centennial Event sites as necessary. 16. Vendor's Representations. Vendor represents and warrants to City as follows: A. that it has been validly formed and duly exists as a sole -proprietor 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 its [formation] 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; C. that it is duly authorized to enter into this Agreement and has taken all necessary [corporate, partnership] 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. 17. 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. 18. Assignment. Vendor shall not sell, assign or otherwise transfer a controlling interest in Vendor's rights hereunder. 19. Access to Space. To allow Vendor to carry out its obligations under this Agreement, Vendor shall be provided access to the Centennial Event areas at all reasonable times during the Term, including such times prior to and following event hours as may reasonably be necessary. 20. 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. 21. Vendor Representative. Vendor hereby designates Suzanne M. Perga who shall be City's primary contact to Vendor. In addition to being Vendor's liaison to the City, this representative shall also attend all Centennial Events. This Agreement will be administered by Recreation and Senior Services Department. Matt Lohr, Recreation 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. 22. Insurance and Indemni A. 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. B. General Liability Coverage. Vendor shall maintain commercial general liability insurance with a combined single limit of not less than One Million Dollars and Zero Cents ($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 general aggregate limit shall be at least twice the occurrence limit. C. 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 ombined single limit for each occurrence. $ 2i5p/000 A5001,00-0 YXI11P D. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. 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. 3. 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. 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. E. Timely otice 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. F. 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. G. 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. 23. 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, but not limited to, Centennial Events (including the negligent and/or willful acts, errors and/or omissions of 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. 24. Termination. This Agreement may be terminated at any time by City, without cause, upon thirty (30) 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. 25. Defaults and Remedies. A. Default by Vendor. In the event that: 1. 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 3. 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. 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 24, and City may enforce all its rights and remedies under this Agreement, including, but not limited to, the right to recover any Vendor Fees as they become due, plus damages. 26. 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 Vendor Fees 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 Fees. 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. 27. Rules and Regulations. Vendor shall comply with all rules and regulations concerning activities at the Centennial Events as City shall issue from time to time. 28. Waste, Damage. Vendor agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the merchandising area of the Centennial Event sites clean and clear of refuse and obstructions, and to dispose of all garbage, trash, and rubbish in a manner satisfactory to City and at Vendor's sole cost. If such areas shall be damaged by any cause which puts the merchandising area into a condition which is not decent, safe, healthy, and sanitary, Vendor agrees to make or cause to be made full repair of said damage and to restore the merchandising area to the condition which existed prior to such damage. 29. Signs Only official City of Newport Beach signs with official seal may be posted at the merchandising sites. No other sign of any kind shall be installed at any site wihtout prior written approval of City. City approval for any signs, including the City -issued signs, may be revoked at any time without liability to the City. 30. 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 in Vendor's use of the site, including but not limited to the providing of goods, services, facilities, privileges, advantages, and accommodations, and to the obtaining and holding of employment. 31. 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, 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. 32. 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. 33. 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: Matt Lohr Recreation Manager Recreation and Senior Services 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: Suzanne M. Perga, Owner Cre8ive Products P.O. Box 11419 Newport Beach, CA 92658 34. 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. 35. Invalidity. If any provision of this Agreement, or the application thereof to any persons or 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. 36. 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. 37. 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. 38. 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. 39. 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. 40. Governing Law. 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. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first above written. DATED Q LM and SeniKr Services Director City of Newport B Approved as to Form City Attorney DATED FS (( 101� Suzanne erga Cre8ive Products EXHIBIT "A" CENTENNIAL EVENTS • "Let's Do Launch Party" — Sunday, October 2, 2005 • CdM 5K — Saturday, June 3, 2006 • Sunday Fun -Day — Sunday, August 20, 2006 • Cake Cutting Ceremony — September 1, 2006 • Pier to Pier Party — Sunday, October 8, 2006 Other events and activities as mutually agreed upon by City and Vendor EXHIBIT "B" CENTENNIAL -RELATED MERCHANDISE • T -Shirts : Youth and Adult • Plastic Tumblers • Caps • Visors • Sweaters • Magnets • Polo shirts EXHIBIT "C" SCOPE OF WORK Direct provision of Centennial related merchandise Vendor shall supply the Centennial -related Merchandise, vending supplies and inventory reconciliation as City requests. Vendor shall be responsible for complete retail vending accountability, including full responsibility for inventory and as such, must provide: A. Inventory accounting upon arrival of Centennial -related Merchandise. B. Immediate notification to City of any discrepancies in initial inventory counts. C. Total management, control, and accountability of all Centennial -related Merchandise. D. An appropriate number of selling locations, sellers and stock staff at each Centennial Event in order to meet the demands of the projected crowds as estimated by the City. E. Selling locations that are well displayed and fully stocked prior to the public's access to them. F. Strict adherence to the merchandising and display standards as follows: 1. Centennial -related Merchandise for sale at all times at each Centennial Event, unless otherwise directed by City. 2. Each item neatly displayed with correct prices clearly marked. Neatly dressed customer oriented personnel. 4. Tables for displays and checkout. 5. Tents, sheltered areas, or other means of protection from inclement weather. 6. Selling areas neat and clean at all times. 7. Re -stocking of back-up inventory in a fast and efficient manner. 8. Re -orders of Centennial -related Merchandise as sales warrant. 9. Complete inventory accounting of all Centennial -related Merchandise sold with a final inventory count and merchandising report within twenty-four (24) hours of the conclusion of each Centennial Event. 10. Total Gross Receipts and a final copy of the inventory report must be mailed to the City within ten (10) days at the conclusion of each Centennial Event. G. A website, linked to City's website, dedicated to selling Centennial -related Merchandise online. Vendor shall comply with all reporting requirements for on-line sales as required by the Agreement. Vendor shall be required to fulfill all orders received through this online web -site. Licensing of All Merchandise from Outside Vendors Upon City's written approval, Respondent may license Centennial Merchandise to businesses other than Respondent's. All fees collected pursuant to this paragraph shall be divided between City and Respondent pursuant to the schedule attached hereto as Exhibit "C". CITY OF NEWPORT BEACH CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE I hereby certify that in the performance of the work for which this Agreement is entered into, I shall not employ any person in any manner so as to become subject to the Workers' Compensation Laws of the State of California. Executed on this _JJ_ day of , 2003, at Newport Beach, California.. [Add onsultant's name and title]