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