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HomeMy WebLinkAboutC-8898-1 - License Agreement for Vending Machine Services for City FacilitiesE Qr— LICENSE AGREEMENT BY AND BETWEEN THE CITY OF QZ� NEWPORT BEACH AND DOWNEY VENDORS, INC. FOR VENDING MACHINE SERVICES FOR CITY FACILITIES V This LICENSE AGREEMENT ("Agreement") is entered into this 1st day of May, 2022 ("Effective Date") by and between the City of Newport Beach, a California municipal corporation and charter city ("Licensor" or "City"), and DOWNEY VENDORS, INC., a California corporation ("Licensee"), whose address is 6814 Suva Street, Bell Gardens, California 90201, individually referred to as "Party" or collectively as "Parties." RECITALS A. Licensor is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the charter of the City. B. Licensor is the owner of the following facilities: Newport Beach Civic Center, 100 Civic Center Drive, Newport Beach, California; Newport Beach Central Library, 1000 Avocado Avenue, Newport Beach, California; and Newport Beach Police Department, 870 Santa Barbara Drive, Newport Beach, California (collectively the "Facilities"). C. The Facilities have designated areas suitable for the placement of food and beverage vending machines and Licensor has determined it would be of benefit to City employees for Vending Machines to be provided at the Facilities. D. Pursuant to City Council Policy F-7, Licensor conducted an open bid process and published a Request for Proposals. After a careful evaluation process, Licensor selected Licensee as the provider of Vending Machines. E. Licensee desires to install and operate Vending Machines and Licensor agrees to license such use in designated areas at the Facilities on the terms and conditions contained herein. IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, the Parties agree as follows: 1. Use of Designated Premises. 1.1 License. City hereby issues a revocable, non-exclusive, non -assignable license to Licensee to use those areas designated by City, in its sole and absolute discretion, at the Facilities ("Premises"), upon the terms and conditions of this Agreement, for the purpose of installing, operating and maintaining Vending Machines, as described in Exhibit "A" attached hereto and incorporated herein ("Vending Machines"). 1.2 Condition of Premises. Licensee agrees that the Premises shall be made available for the designated use by Licensee in its "as is" condition. 1.3 No Real Property Interest. No grant of an easement or other interest in land is intended by this Agreement. 1.4 No Hold Over. Nothing herein shall be construed to give Licensee any right to hold over or to continue use of the Premises after the expiration or termination of this Agreement. 1.5 Policies and Procedures. Licensor reserves to itself sole authority to establish policies and procedures governing use of the Facilities and Premises, with which Licensee, its employees, representatives, volunteers, invitees and agents shall comply. 2. Term and Termination. 2.1 Term. Initial term of this Agreement shall commence on the Effective Date and shall expire three (3) years following that date unless terminated earlier as set forth herein. 2.2 City's Option to Terminate. Notwithstanding any provision of this Agreement, City shall have the right to terminate this Agreement at any time in its sole and absolute discretion, for any reason, upon prior written notice to Licensee. 3. Consideration. 3.1 Compensation. The parties agree that Licensee shall be authorized to use the Premises for the purposes set forth herein at no cost. The parties agree that the benefit that will accrue to Licensor by Licensee's provision and maintenance of the Vending Machines is commensurate with the value to Licensee of the use of the Premises. 3.2 Reimbursement of Approval Fees. Licensee may request reimbursement from Licensor up to an amount not to exceed One Thousand Dollars ($1,000.00) in the aggregate for the actual fees paid by Licensee to a regulatory authority to obtain licenses, permits, or other approvals required to operate the Vending Machines at the Premises. 3.3 Reimbursement of Repairs. Licensee may request reimbursement from Licensor up to an amount not to exceed Two Thousand Dollars ($2,000.00) in the aggregate for the reasonable costs paid by Licensee to repair damage to the Vending Machines that occurs at the Premises. 3.4 Invoices. To request reimbursement from Licensor, Licensee shall submit a written invoice to Licensor with a description of any reimbursable expenditures and including supporting documentation as may be requested by Licensor to substantiate the reimbursable expenditures. Licensor shall reimburse Licensee no later than thirty (30) calendar days after approval of the invoice by City staff. 3.5 Production of Statement, Records and Audit. Licensee shall keep full, complete and proper books, records and accounts of its daily transactions at the Premises. Upon City's written request, Licensee agrees to make these books, records and accounts available for inspection by City, along with all supporting records Downey Vendors, Inc. Page 2 ("Records"), at Licensee's notice address listed herein or at another address within Orange County, California designated by Licensee. Alternatively, Licensee may bring the Records to the City's notice address listed herein. Licensee shall retain and preserve for at least three (3) years all Records, including but not limited to, books, bankbooks or duplicate deposit books and other evidence of monthly transaction details from transactions at the Premises. City may at any time during the Term and within one hundred eighty (180) calendar days after expiration or Termination of this Agreement inspect and complete an audit of Licensee's books and records and to make transcripts to verify compliance with the terms of this Agreement. The audit may be conducted at any reasonable time during normal business hours. Licensee shall cooperate with City in making the inspection and conducting the audit. The audit shall be limited to the determination of compliance with the terms of this Agreement and shall be conducted during usual business hours in a manner that minimizes any interference with the conduct of Licensee's regular business operations. City shall bear its costs of the audit unless the audit shows that Licensee was in breach of this Agreement, in which case Licensee shall pay all City's reasonable costs of the audit. 4. Conditions of Use. 4.1 Use of Premises. The Premises may only be used by Licensee for the installation, operation, maintenance, repair and servicing of the Vending Machines. Licensee shall make no other use of the Premises without the prior written consent of City. 4.1 Due Care. Licensee shall operate and manage the Premises in a manner comparable to other high quality businesses providing similar services. 4.2 Responsibility. Licensee shall be solely responsible for all administration and operation of the Vending Machines, including but not limited to, bookkeeping, taxes, procurement and shipment of inventory, management, operations, collecting and handling all monies, receiving and signing for the delivery of goods, installation, maintenance, securing permits or other necessary approvals, and any and all other aspects of operation. 4.3 Prohibited Uses. Licensee shall not use or permit the use of the Vending Machines or the Premises in any manner that: (a) creates a nuisance, (b) creates a potential fire hazard, (c) violates any city, state, federal or other jurisdictional agency's law or regulation, or (d) promotes, directly or indirectly, any political party, political candidate, or political activity. 4.4 Personnel. Licensee shall be responsible for hiring the necessary personnel to conduct the operation and maintenance of the Vending Machines. Licensee shall comply with all federal, state, local and other jurisdictional agency's laws related to the employment of workers, including but not limited to, minimum wage, social security, nondiscrimination, ADA, unemployment compensation, and workers' compensation. If required by the City, Licensee's employees shall wear an identification badge while at the Facilities. Downey Vendors, Inc. Page 3 4.5 Independent Contractor. It is understood that Licensee is an independent contractor and not an agent or employee of City. The manner and means of operating the Vending Machines are under the control of Licensee, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Licensee's employees. Nothing in this Agreement shall be deemed to constitute approval for Licensee or any of Licensee's employees or agents, to be the agents or employees of City. Licensee shall have the responsibility for and control over the means of operating the Vending Machines, provided that Licensee is in compliance with the terms of this Agreement. City shall have no interest in the business of Licensee. 4.6 Other Operations. Licensee shall coordinate use of the Premises to avoid conflict with any other activities that may be in operation at the Premises or within the Facilities during the term of this Agreement. Licensee shall not interfere with other businesses or activities currently operating at the Facilities. 4.7 Entry bV City. City and its authorized representative(s) may inspect the Premises during normal business hours for any lawful purpose. In case of emergency, City or its authorized City representative(s) may, without prior notice, enter the Premises by whatever force reasonably necessary. Any entry to the Premises by City under this Agreement shall not be construed as a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Licensee from the Premises or any portion thereof. Any damage caused to the Premises pursuant to this Section by the City shall be repaired or replaced by the City at the City's sole expense. 4.8 Interruptions of Use. Licensor shall have the right to temporarily shut off utilities to the Premises, or to close the Premises or Facilities for maintenance, operational purposes, health and safety, emergencies, or other reason Licensor determines is necessary or convenient. Licensor shall use best efforts to provide advance notice to Licensee prior to any such shut off or closure. Licensor shall not be in default of this Agreement and shall not be liable to Licensee or any other party for any interference with operation of the Vending Machines occasioned by such shut off or closure. 4.9 Payment of Obligations. Licensee shall promptly pay, when due, all bills, debts, liabilities and obligations incurred by Licensee arising out of or in connection with operation of the Vending Machines and Licensee's occupation and use of the Premises. 5. Installation and Maintenance. 5.1 Installation. Licensee, at Licensee's sole cost, shall be responsible for the transport, delivery, setup and complete installation of the Vending Machines at the Premises. Licensee shall not physically alter or perform construction upon the Premises or Facilities without the prior written approval of City. Installation shall be completed in a manner consistent with the quality, design and aesthetics as approved by City. Downey Vendors, Inc. Page 4 5.2 Fixture, Equipment and Furnishings. Licensee shall furnish all fixtures, equipment, and furnishings for operation of the Vending Machines subject to City approval. Fixtures, equipment, and furnishings may include, but are not necessarily limited to, electrical, telephone, data, and security cabling and equipment to the Premises ("Licensee Improvements"). 5.3 Maintenance. Licensee shall diligently maintain and repair the Vending Machines and Licensee Improvements at Licensee's sole cost and expense. 5.4 Ownership. Vending Machines and all of Licensee's trade fixtures and personal property shall be and at all times remain the property of Licensee. Licensee shall retain ownership of all equipment on the Premises. 5.5 Access to Premises. Licensee may access the Premises for installation, maintenance, restocking, or other lawful purposes between the hours of 8:00 a.m. and 5:00 p.m. on City Hall business days. Licensor reserves the right to delay or suspend Licensee's access to the Premises at any time. 5.6 Subcontractors and Agents. Any contractors of Licensee shall be fully licensed and bonded. Licensee's contractors and any subcontractors shall obtain insurance in an amount and form to be approved by City's Risk Manager, including workers compensation insurance as required by law, general liability, automobile liability and builder's risk insurance covering improvements to be constructed. City, its elected or appointed officers, agents, officials, employees, volunteers, and any person or entity owning or otherwise in legal control of the Facilities shall be named as an additional insured on the contractor's and any subcontractor's policies 5.7 Failure to Maintain. City may perform maintenance or repairs in the event Licensee fails to commence required maintenance or repairs within three (3) days of written notice from Licensor requesting such maintenance or repairs. The cost of any maintenance or repairs performed by the City pursuant to this Section shall be reimbursed by Licensee to City promptly following written notice and demand from City to Licensee. Notwithstanding Section 3 of this Agreement, the amount paid by Licensee to City pursuant to this Section shall not be subject to reimbursement under Section 3 of this Agreement. 6. Operation of Vending Machines. Licensee shall use its best efforts to operate the Vending Machines on a twenty- four (24) hour basis. Licensee shall have the right, upon seven (7) days' prior written notice to the City, to suspend operation of any Vending Machines for periodic maintenance inspections, adjustments, servicing operations or other maintenance purposes. City acknowledges that despite Licensee's best efforts, the Vending Machines may be rendered inoperative for reasonable periods of time due to breakdowns, operations failures or other reasons. Licensee may engage an independent contractor to perform Licensee's maintenance obligations hereunder in accordance with the terms of this Agreement. Downey Vendors, Inc. Page 5 7. Removal of Vending Machines. Upon the expiration or termination of this Agreement, Licensee shall remove the Vending Machines and other trade fixtures and personal property from the Premises, and restore the Premises to its original condition, at Licensee's sole cost and expense. Licensee shall repair any damage to the Premises caused by such removal at Licensee's sole cost and expense. Such removal shall occur not more than seven (7) calendar days after the expiration or other termination of this Agreement. If the Vending Machines, or other trade fixtures and personal property are not removed from the Premises by this time, then City shall have the right to dispose of such items in such manner as it may deem fit and to charge Licensee for the reasonable costs of such removal, disposal, and repair which reasonable costs Licensee shall pay promptly following written notice and demand. Notwithstanding Section 3 of this Agreement, the amount paid by Licensee to City pursuant to this Section shall not be subject to reimbursement under Section 3 of this Agreement. 8. Maintenance of Premises. By taking possession of the Premises, Licensee shall be deemed to have accepted the Premises as being in good and sanitary order, condition and repair. Licensee shall, at all times during the term of this Agreement and any renewal or extension hereof, maintain the Premises in a clean and orderly condition at Licensee's sole cost and expense, and shall, upon termination of this Agreement, surrender the Premises to City in a clean, safe and orderly condition. City shall maintain the other improvements located on the Facilities, including without limitation the parking lot. 9. Alterations, Additions and Improvements. Licensee shall not make any alterations, additions, or improvements to the Premises without obtaining the prior written consent of City. Should City consent to the making of any such alterations, additions, or improvements by Licensee, such alterations, additions, or improvements shall be made at the sole cost and expense of Licensee by a contractor or other person selected by Licensee and approved in writing by City before the work commences. All alterations must be constructed: (a) in a good and workmanlike manner using materials of a quality comparable to those on the Premises; (b) in conformance with all relevant codes, regulations, and ordinance; and (c) only after necessary permits, licenses, and approvals have been obtained by Licensee from appropriate governmental agencies. All alterations must be diligently prosecuted to completion. Except as provided otherwise in this Agreement, any and all alterations, additions, or improvements shall on termination of this Agreement become the property of City and shall remain on the Premises. 10. Services and Utilities. City shall provide, at no cost of Licensee, the Vending Machines with electricity, telecommunication lines, data lines, and other utilities required for the use of the Premises for Vending Machines. Downey Vendors, Inc. Page 6 11. Security and Safety. Licensee shall be solely responsible for all security with respect to the contents and operation of the Vending Machines. All installation and construction by Licensee on the Premises shall be in conformity with all applicable building and zoning codes, and shall conform to the safety requirements and any other applicable governmental law. 12. Taxes. Licensee understands that this Agreement may create a possessory interest and shall pay directly to the appropriate taxing authorities all taxes applicable under this Agreement, including but not limited to any real estate tax, levy or assessment on the Premises. Licensee shall pay before delinquency: (i) all taxes assessed by any taxing authority which are attributable to Licensee's operations at the Vending Machines, (ii) all personal property taxes assessed on Licensee's fixtures, equipment and machinery, and (iii) any possessory interest tax, levied pursuant to California Revenue and Taxation Code Section 107 et seq., which City has advised Licensee may be assessed based on applicable law. 13. Damage or Destruction. Should the Vending Machines be destroyed by any cause not due to the negligent or willful act of City, Licensee shall, at its own cost and expense, promptly repair or replace the same. 14. Assignment and Subletting. Licensee shall not assign, sublease or otherwise transfer all or any part of this Agreement without the prior written consent of City. 15. Insurance. Without limiting Licensee's indemnification of City, Licensee shall obtain, provide and maintain at its own expense during the Term of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to City. The policy or policies shall provide, at a minimum, those items described in Exhibit "C" attached hereto and incorporated herein by this reference. 16. Default. 16.1 The occurrence of any one (1) or more of the following events shall constitute an event of default under this Agreement: 16.1.1 Any Vending Machine is not operational for more than an aggregate of thirty (30) days in any six (6) calendar month period for any reason not attributable to the City. 16.1.2 Any Vending Machine is not operational for more than seven (7) consecutive days for any reason not attributable to the City. Downey Vendors, Inc. Page 7 16.1.3 The failure by Licensee to observe or perform any of the covenants, conditions or other provisions of this Agreement where such failure shall continue for a period of seven (7) calendar days after written notice from the City thereof. 16.1.4 The making by Licensee of any general assignment or general arrangement for the benefit of creditors; or the filing by or against Licensee of a petition to have Licensee adjudged a bankrupt, or a petition for reorganization or arrangement under any law relating to bankruptcy, unless, in the case of a petition filed against Licensee, the same is dismissed within sixty (60) calendar days; or the appointment of a trustee or a receiver to take possession of, or the attachment, execution or other seizure of substantially all of Licensee's assets located at Premises, or of Licensee's interest in this Agreement, where such possessions, attachment, execution or other seizure is not restored to Licensee within thirty (30) calendar days. 17. Remedies on Default. 17.1 In the event of any default by Licensee, in addition to any other remedies available to the City at law or in equity, the City may: 17.1.1 Continue this Agreement in effect and enforce all rights and remedies under this Agreement; or 17.1.2 Immediately terminate this Agreement by providing written notice to Licensee and recover from Licensee any amount necessary to compensate City for any and all detriment negligently or willfully caused by Licensee's failure to perform its obligations under this Agreement. Notwithstanding Section 3 of this Agreement, the amount paid by Licensee to City pursuant to this Section shall not be subject to reimbursement under Section 3 of this Agreement 18. Control of Vending Machines. 18.1 City acknowledges that the operation of the Vending Machines shall be governed by the policies and procedures developed or to be developed by Licensee from time to time which shall be consistent with all applicable law and the terms of this Agreement. Except as expressly set forth herein to the contrary, Licensee shall have the sole and exclusive right to control and manage the Vending Machines, the operation and maintenance thereof, and all business and transactions conducted thereby, including without limitation, the functions and features provided, the development of products, and the provision of services. 18.2 Notwithstanding the foregoing, the goods provided for sale by the Vending Machines shall include those products and prices set forth on Exhibit "B" attached hereto and incorporated herein by this reference. 19. Parties Representatives. 19.1 Licensee shall designate in writing to Licensor representatives who shall be responsible for the day-to-day operation, maintenance, cleanliness, and general order. Downey Vendors, Inc. Page 8 19.2 The Real Property Administrator, or his or her designee, shall represent Licensor in all matters so assigned under this Agreement and shall be responsible for the administration of this Agreement ("Licensor's Representative"). Nothing contained in this section shall be construed to authorize Licensor's Representative to amend, cancel, waive, or otherwise modify any terms of this Agreement, except to the extent such changes or modifications are expressly authorized by this Agreement. 20. Notices. Any notice required or permitted by this Agreement to be provided to either Party hereto by the other Party hereto shall be in writing and shall be deemed duly provided when personally delivered to the Party to which it is directed or, in lieu of such personal delivery, three (3) days after deposit in the United States mail, sent certified mail with first- class postage prepaid, and addressed as follows: If to City: City of Newport Beach Attn: Real Property Administrator 100 Civic Center Drive Newport Beach, CA 92658 If to Licensee: Downey Vendors Inc. Attn- David Robert Baker 6814 Suva Street Bell Gardens, CA 90201 Phone: (562)928-1301 Either Party hereto may, by written notice to the other Party hereto, specify a different address for notice purposes. 21. Indemnification. 21.1 In addition to any other indemnity provided for in this Agreement, and notwithstanding any other provisions of this Agreement to the contrary, Licensee shall indemnify, defend and hold harmless Licensor, its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against all claims, 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 that may arise from or in any manner relate to (directly or indirectly): (i) Licensee's rights, obligations, acts or omissions under this Agreement, (ii) Licensee or its employees, contractors, subcontractors, guests, volunteers, invitees, sublicensees, or other agents ("Licensee Parties") use of the Premises or Vending Machines, and (iii) Licensee Parties negligence orwillful misconduct (individually, each a "Claim" and, collectively, "Claims"). The indemnification in this Section specifically includes, without limitation, all Claims arising by reason of: 21.1.1 The death or injury of any person or damage to real or personal property caused or allegedly caused by the Vending Machines, the goods associated Downey Vendors, Inc. Page 9 therewith, condition of the Premises, Licensee Improvements, or an act or omission of Licensee Parties; 21.1.2 Any work performed on the Premises, Licensee Improvements, or materials furnished in connection therewith, by or at the request of Licensee or Licensee Parties, with the exception of maintenance performed by City; and/or 21.1.3 Licensee's failure to perform any provision of this Agreement or to comply with any requirement of law or any requirement imposed on the Premises or Vending Machines by any duly authorized governmental agency or political subdivision. 21.2 Licensee's obligations in this Section (or any other provision providing indemnity in this Agreement) shall not extend to the degree any Claim is proximately caused by the sole negligence or willful misconduct of Licensor, subject to any immunities which may apply to Licensor with respect to such Claims. 21.3 This indemnification provision and any other indemnification or insurance requirements provided elsewhere in this Agreement shall survive the termination of this Agreement and shall survive for the entire time that any third party can make a Claim. Policy limits, exclusions, or lack of coverage shall not operate to limit or reduce the application or extent of Licensee's indemnity obligations under this Agreement. 22. Loss or Damage. In the event the Premises are rendered partially or wholly unusable due to fire or other casualty, City may elect to require that the Licensee pay to City the proceeds of any insurance which may become payable to the Licensee by reason thereof, or to permit such proceeds to be used for the restoration of any damage done, by an amount equal to the diminution in value of the Facilities by reason of such loss or damage or the amount of insurance payable to the Licensee, whichever is greater. 23. Compliance with Laws; ADA. Each Party represents and warrants that it shall obey and conform at its sole cost and expense and in every manner of its business related to this Agreement to all federal, state and local laws, regulations and directives. City shall be responsible for any repairs, improvements, or upgrades to the Facilities required to comply with the provisions of the Americans with Disabilities Act ("ADA"); however, Licensee shall be solely responsible for any repairs, improvements, or upgrades to the Vending Machines required to comply with the provisions of the ADA. Any breach of said warranty and representation or claim of breach shall be the sole responsibility of the breaching Party and the breaching Party will hold the non -breaching Party completely safe and harmless for said breach or claim of breach. 24. General Provisions. 24.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Downey Vendors, Inc. Page 10 24.2 Force Maieure. The performance of both Parties shall be excused during the period, and to the extent, that such performance is rendered impossible, impracticable or unduly burdensome due to force majeure. The term "force majeure" shall mean acts of God, strikes, lockouts, or labor difficulty; unavailability of parts, equipment or materials through normal supply sources; or the failure of any utility to supply its services for reasons beyond the control of the Party whose performance is to be excused_ 24.3 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, personal representatives, successors and assigns. 24.4 No Attorneys' Fees. In any action between the Parties to interpret, enforce, award, modify or rescind any of the terms or provisions of this Agreement, or any action otherwise commenced or taken in connection with this Agreement, each Party shall be responsible for its own respective costs and attorneys' fees. 24.5 Jurisdiction and Venue. This Agreement shall be construed under the laws of the State of California in effect at the time of the signing of this Agreement. The Parties consent to the jurisdiction of the California courts with venue in County of Orange. 24.6 Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise. 24.7 Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by both Parties. 24.8 No Waiver. A waiver by either Party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement. 24.9 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each Party. 24.10 Severability. If any term, provision, condition or covenant of this Agreement or its application to any Party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, and the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 24.11 Time of Essence. Time is expressly made of the essence with respect to the performance by Licensee of each and every obligation and condition of this Agreement. Downey Vendors, Inc. Page 11 24.12 Cooperation. Each Party agrees to cooperate with the other and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements. 24.13 Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all Parties, shall constitute a binding agreement. 24.14 This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 24.15 This Agreement may be modified or amended only by a written document executed by both parties and approved as to form by the City Attorney. 24.16 No Discrimination. Licensee hereby covenants on behalf of itself, its successors, and assigns, and all persons claiming under or through Licensee, and this Agreement is made and accepted upon and subject to the condition, that there shall be no discrimination against or segregation of any person or group of persons on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law in the subleasing, transferring, use, occupancy, tenure, or enjoyment of the Premises herein leased nor shall Licensee itself, or any person claiming under or through Licensee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use of or vendees of the Premises. [SIGNATURES ON NEXT PAGE] Downey Vendors, Inc. Page 12 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first set forth above. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: �$ a By: a on C. Harp bify Attorney ATTEST: Date: bW. nZ By: Leilani I. Brow City Clerk �VV. WP �OR1`1 CITY: CITY OF NEWPORT BEACH, a California municipal corporation Date: b/16.4,2L for' Grace K. Leung City Manager LICENSEE: DOWNEY VENDORS, INC. a California corporation Date: By: Michael Jame5,,rerraro Chief Executive Officer Date: Z 2oz 2 By: / vid ert Yaker Chief Firral Officer [END OF SIGNATURES] Attachments: Exhibit A — Designated Areas Within City Facilities And Vending Machine Specifications Exhibit B — Vending Machine Goods And Price List Exhibit C —Insurance Requirements Downey Vendors, Inc. Page 13 EXHIBIT "A" DESIGNATED AREAS WITHIN CITY FACILITIES AND VENDING MACHINE SPECIFICATIONS The current facilities that require vending machines are as follows: Facility: Newport Beach Newport Beach Newport Beach Civic Center Central Library Police Department Address: 100 Civic 1000 Avocado 870 Santa Barbara Center Drive Avenue Drive # of City Staff: 230 50 232 (This site is a 24/7 operation) # of Machines: 2 2 3 Machine Type: Food and Food and Refrigerated Food, Beverage Beverage Snacks and Beverage Vending Machines Requirements 1. Vending machines must be able to accept cash and credit card, at a minimum. 2. Provider must be able to customize food and beverage offerings at the discretion of the City. 3. Provider must be able to provide a selection of healthy offerings, as identified by the City. 4. Provider must be able to check machines on a regular basis as to ensure stock does not run low, or vending machines must have the ability to report to provider on an automated basis regarding stock. Provide beverage and/or snack vending machines, approved locations. 5. Ensure that no less than 50 percent of the food and beverage provided in all vending machines located at City -owned facilities are of a healthy variety. 6. The vending operation shall be run in an efficient and courteous manner. Vending services staff member(s) shall be clean and neatly dressed, presenting a positive image for City facilities. 7. For the safety of the public patrons who utilize City facilities and/or maintenance concerns regarding City facilities, restrictions may be necessary including items sold, packaging, etc. The City must approve all menu items, packaging, and machines, and machine locations (or changes to the above). 8. Contractor shall obtain a business license to operate within the City of Newport Beach and maintain current insurance coverage requirement limits. 9. Contractor shall attend meetings with City staff as required. 10. Contractor shall provide a revenue/expenditure report if requested by the City. 11. Vending services personnel assigned to the Newport Beach Police Department must be fingerprinted and cleared through a full background check by Department of Justice. 12. Contractor employees shall be required to wear a uniform and name badge for identification purposes. Uniforms shall be clean and neat in appearance at all times. 13. If at any time the City determines that any person employed by the Contractor providing services under the contract requires corrective action, the City shall notify the Contractor who shall take immediate corrective action. The Contractor shall be solely responsible for the hiring, supervising, training, disciplinary actions and termination of their employees. Downey Vendors, Inc. Page A-1 If any person employed by the Contractor fails or refuses to carry out the direction of the City, or appears to be incompetent, or acts in a disorderly or improper manner, that person shall be discharged immediately from servicing the City's account on the request of the Contract Administrator, or his/her designee, and such person shall not again work on any City site. 14. Contractor shall install vending machines at all sites and shall comply with all applicable Federal, State, and Local laws, ordinances, rules and regulations, and policies. 15. Contractor shall respond to all service calls within the times within forty-eight (48) hours of notice from the City. 16. Contractor, at its sole cost, shall maintain, service and repair any vending machines within forty-eight (48) hours of notice from the City. 17. All equipment beyond repair shall be replaced with like equipment or better by the Contractor, at Contactor's expense. Contractor shall not remove equipment from any location without the City's written consent and the Contractor shall advise the City in writing following a change of equipment. 18. All machines shall be U.L. listed and Energy Star rated. Beverage vending machines shall be equipped with energy saving modules. 19. Upon the City's request, the Contractor shall add additional machines at various City owned locations. All additional equipment shall be new vending machines with non- resettable cash accounting meters and bill validators. 20. Upon the City's request, the Contractor shall remove machines at various City owned locations. Leaving the area clean and free from damage. 21. Ensure all machines comply with ADA requirements (see attachments in PlanetBids for ADA requirements). Downey Vendors, Inc. Page A-2 EXHIBIT "B" VENDING MACHINE GOODS AND PRICE LIST The following schedule of pricing does not include applicable sales tax and CRV. Prices for items dispensed at the vending machine will be rounded to the nearest $0.25 to facilitate the ability to provide change. Prices are subject to change and the vendor shall notify the contract administrator for approval fifteen (15) days in advance should price changes occur. Boulder Jalapeno Cheddar 1.5 oz $1.29 Sour Punch Bites Strawberry/Apple/Raspberry 5 oz $2.89 Boulder Kettle Avocado Oil 1.25 oz $1.29 Sour Punch Bites Ragin Reds 5 oz $2.89 Smartfood White Cheddar 1 oz $1.49 Peanut M&M's 5.3 oz peg $3.89 Lays Baked Original 1.125 oz $1.29 Snickers minis 4.4 oz $3.89 Ruffles Baked Cheddar & Sour Cream 1.125 oz $1.29 Sour Patch 5oz Watermelon 12ct $3.89 Popcornopolis Zebra Popcorn 3oz $2.99 Swedish Fish 5 oz $2.89 Chex Mix Traditional 1.75 oz $1.29 Wonderful Pistachios Shelled 5 oz $5.69 Albanese Gummi Bears 12 Flavor 3.5 oz $1.79 Twizzler Nibs Cherry 6 oz $2.89 Wheat Thins Toasted Chips Veggie 1.75 oz $1.29 Red Vines original red 4oz $1.99 Baken-Et Pork Rinds Hot & Spicy 1 oz $1.29 Snickers 1.86 oz UPC code $1.49 Gardetto Original Snack mix 1.75 oz $1.29 Peanut M&M's 1.74 oz UPC code $1.49 Takis Fuego Chips 2 oz $1.49 Kit Kat Chocolate King Size 3 oz $3.19 Dorito Flamin Hot Cool Ranch 1.75 oz $1.49 Reese's Pieces 4 oz box $2.89 Reese's Snack Mix Tube 2 oz $2.99 Twix caramel King Size 3.02 oz $2.89 Arizona Fruit Snacks Mixed Fruit 5 oz $2.99 Snickers almond King Size 2 Piece 3.23 oz $2.89 Lifesaver tummies 5 Flavor 7 oz $3.49 Airheads Xtreme Bites Rainbow Berry 2$1.49 oz Jack Link Prime Rib Tender Cuts 1.0 oz $2.49 Milky Way Bar 1.84 oz UPC code $1.49 Jack Link Beef Steak Bites Original 1.5 oz $3.99 Nutter Butter Cookie 1.9 oz $1.39 Cheez-its Crackers 1.5 oz $1.39 Bauducco Vanilla Wafers 1.41 oz $1.39 Knotts Raspberry Cookies 2 oz $1.39 Clif Builders Choc peanut butter 2.4 oz $2.89 Cheetos Baked Flamin Hot 1.5 oz LSS $1.49 Pepperidge Farm Goldfish cheddar crackers 1.5 oz $1.39 Cheetos Flamin Hot Limon 2 oz $1.49 Grandmas Vanilla Cream Mini 3.71 oz $1.49 Downey Vendors, Inc. Page B-1 Munchies snack mix Flamin' Hot 1.75 oz $1.49 Grandmas Mini Chocolate Chip 2oz $1.39 Funyuns Hot 1.25 oz $1.49 Snickers Ice Cream King Size 2.8 oz 1 $2.25 Downey Vendors, Inc. Page B-2 EXHIBIT "C" INSURANCE Without limiting Licensee's indemnification of City, Licensee will obtain, provide and maintain at its own expense during the Term of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to City. The policy or policies shall provide, at a minimum, those items described below. 1. Provision of Insurance. Without limiting Licensee's indemnification of City, and prior to commencement of work on Premises by Licensee or Licensee's agents, representatives, consultants, contractors and/or subcontractors, Licensee 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. Licensee agrees to provide insurance in accordance with requirements set forth here. Licensee may use existing coverage to comply with these requirements. 2. Acceptable Insurers. All insurance or reinsurance 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. 3. Coverage Requirements. A. Workers' Compensation Insurance. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least One Million Dollars and 00/100 ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than One Million Dollars and 00/100 ($1,000,000) per occurrence, Two Million Dollars and 00/100 ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and Downey Vendors, Inc. Page C-1 liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Products Liability Coverage. Licensee shall maintain products liability insurance covering bodily injury and property damage for all activities of the Licensee arising out of or in connection with products or services sold by the Licensee under this Agreement, in an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000.00) combined single limit for each occurrence. D. Fire and Extended Coverage. Licensee shall maintain fire and extended coverage insurance, together with insurance against vandalism, theft and malicious mischief, on the improvements and fixtures, alterations, trade fixtures, signs, equipment, personal property and inventory on or upon the Premises from loss or damage to the extent of their full replacement value. E. Automobile Liability Insurance. Licensee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Licensee or all activities of Licensee's consultants, contractors and/or subcontractors arising out of or in connection with work to be performed on the Premises, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars and 00/100 ($1,000,000) combined single limit each accident. 4. Endorsements: Policies shall contain or be endorsed to contain the following provisions: A. Additional Insured Status. City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as an additional insured under all general liability with respect to liability arising out of Licensee's activities related to this Agreement and with respect to use or occupancy of the Premises. City, its elected or appointed officers, officials, employees, agents and volunteers shall be named as an additional insured on any of Licensee's contractor's or subcontractor's policies. B. Primary and Non Contributo[y. Policies 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 Licensee's operations. 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. Downey Vendors, Inc. Page C-2 C. Liability Insurance. Liability 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. D. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its consultants, contractors or subcontractors. E. Reporting Provisions. 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. F. Notice of Cancellation. The insurance required by this Agreement shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) written notice has been received by City. It is Licensee's obligation to ensure that provisions for such notice have been established. G. Loss Payee. City shall be included a loss payee under the commercial property insurance. 5. Additional Requirements. A. In the event City determines that (i) the Licensee's activities on the Facilities creates an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Licensee agrees that the minimum limits of any insurance policy required to be obtained by Licensee or Licensee's consultants, contractors or subcontractors, may be changed accordingly upon receipt of written notice from City. With respect to changes in insurance requirements that are available from Licensee's then -existing insurance carrier, Licensee shall deposit certificates evidencing acceptable insurance policies with City incorporating such changes within thirty (30) calendar days of receipt of such notice. With respect to changes in insurance requirements that are not available from Licensee's then- existing insurance carrier, Licensee shall deposit certificates evidencing acceptable insurance policies with City, incorporating such changes, within ninety (90) calendar days of receipt of such notice. Downey Vendors, Inc. Page C-3 B. Any deductibles applicable to the commercial property or insurance purchased in compliance with the requirements of this section shall be approved by City. C. Licensee and Licensee's consultants, contractors and/or subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by the City. Licensee shall verify that all consultants, contractors and/or subcontractors maintain insurance meeting all the requirements stated herein, and Licensee shall ensure that City is an additional insured on insurance required from contractors, consultants and/or subcontractors. D. For General Liability coverage, contractors, consultants and/or subcontractors shall provide coverage with a format at least as broad as provided by Insurance Services Office form CG 203 80413. E. If Licensee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Licensee. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. F. Licensee shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Licensee or Licensee's agents, representatives, consultants, contractors or subcontractors performance under this Agreement. G. Licensee shall provide certificates of insurance, with original endorsements as required above, to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City prior to commencement of work or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. H. All required insurance shall be in force on the Effective Date, and shall be maintained continuously in force throughout the term of this Agreement. In addition, the cost of all required insurance shall be borne by Licensee or by Licensee's consultants, contractors or subcontractors. If Licensee or Licensee's consultants, contractors or subcontractors fail or refuse to maintain insurance as required in this Agreement, or fail to provide proof of insurance, City has the right to declare this Agreement in default without further notice to Licensee, and City shall be entitled to exercise all available remedies. Downey Vendors, Inc. Page C-4 Licensee agrees not to use the Premises in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance City may have on the Premises or on adjacent premises, or that will cause cancellation of any other insurance coverage for the Premises or adjoining premises. Licensee further agrees not to keep on the Premises or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the Premises. Licensee shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the Premises. Downey Vendors, Inc. Page C-5