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Item 16.2 - Award of Bid Vending Machine Service at Poway Community Swim Center 3 AGENDAPORT SUMMARY 4111 TO: Honorable Mayor and Members of the City Council• • FROM: James L. Bowersox, City Mona tin" I lei "11Sift- 4. INITIATED BY: John D. Fitch, Assistant City Manage►1mr`" THE Robert L. Thomas, Director of Community Services Greg Sundberg, Recreation Supervisor DATE: June 13, 1995 SUBJECT: Award of Bid for Vending Machine Service at Poway Community Swim Center ABSTRACT The City's concession operation at Poway Community Swim Center has been modified to accommodate vending machine operations. The City solicited proposals for this service. Staff is recommending that the City Council award the bid for the Poway Community Swim Center Concession vending machine operation to Southland Vending Services, in the amount of 27.5 percent commission for two years and authorize the City Manager to execute the attached contract. ENVIRONMENTAL REVIEW This item is not subject to CEQA review. FISCAL IMPACT At a 27.5 percent commission, anticipated revenue would be approximately $2,500 per year. ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE None. RECOMMENDATION It is recommended that the City Council award the bid for the Poway Community Swim Center Concession vending operation to Southland Vending Services in the amount of 27.5 percent commission for FY 95-96 and FY 96-97 and authorize the City Manager to execute the attached contract. ACTION Approved staff recommendation, 5-0. / «L cq 2 Marie Lofton, Deputy City Clerk JUN 13 1995 ITEM 16 • 2 ~ AGENDA REPOR' CITY OF POW A Y This report is included on the Consent Calendar. There will be no separate discussion of the re~)[t prior to approval by the City Council unless members of the Council. staff or public request it to be removed from the Consent Calendar and discussed separately. If you wish to have this report pulled for discussion, please fill out a slip indicating the report number and give it to the City Clerk prior to the beginning of the City Council meeting. TO: FROM: INITIATED BY: Honorable Mayor and Members of the City Council James L. Bowersox, City Ma~, John D. Fitch, Assistant City Manager~~ ,~ ,~ Robert L. Thomas, Director of Community Services~\ Greg Sundberg, Recreation Supervisor June 13, 1995 Award of Bid for Vending Machine Service at Poway Community Swim Center DATE: SUBJECT: BACKGROUND The City's concession operation at Poway Community Swim Center has been vacant for a year. The concession has been modified to accommodate vending machine operations. Request for proposals were solicited for vending machine operations at the Swim Center. The service contract will be for a two year period with an additional two year option. FINDINGS Proposals were solicited from 20 companies that provide vending services and was advertised in the local paper. Three bids were received. They are: Bidder Southland Vending San Diego, CA Amount 27.5% DMA Vending Poway, CA Villarrea 1 Poway, CA 20.0% 6.0% ENVIRONMENTAL REVIEW This item is not sub'ect to CE A review. ACTION: 2 of 12 )) JUN 13 1995 ITEM 16. 2 Agenda Report June 13, 1995 Page Z FISCAL I"PACT At a Z7.5 percent commission, anticipated revenue would be approximately $Z,SOO per year. ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE None. RECO....ENDATION It is recommended that the City Council award the bid for the Poway Community Swim Center Concession vending operation to Southland Vending Services in the amount of Z7.5 percent commission for FY 95-96 and FY 96-97 and authorize the City Manager to execute the attached contract. JLB:JDF:RlT:GDS Attachment Vending Services Contract (C:\DATA\AGENDA\VENDMACH.COH) JUN 13 1995 ITEM 16. 2 3 of 12 SERVICE CONTRACT POWAY COMMUNITY PARK AND SWIM CENTER CONCESSION This Service Contract entered into this 13th day of June, 1995, between the City of Poway, (hereinafter referred to as "City"), and Southland Vending Services, (hereiRifter referred to as "Vendor") for providing and operating vending machines at the Poway Community Swim Center Concession. WITNESSETH This Contract is made with reference to the following facts and objectives: A. City, owns and operates a youth and family-oriented swim center and recreation area for the general public in the City of Poway, County of San Diego, California; and B. The principal objectives of this Contract are: 1) to enable members of the public to purchase, during specific hours the park and pool are open to swimming and other sporting events, items associated with typical vending machine operations (no alcoholic beverages), and 2) that the premises and all equipment, furniture, fixtures, and other personal property used thereon at all times be maintained in good, neat, sightly, and sanitary condition and repair; all of the above to the satisfaction of the City. Vending machines will include hot and cold beverage dispenser, frozen prepackaged items, sandwiches, chips, cookies, and candy. All machines will have the capability of providing change or a separate change machine will be provided. 1 . TERJI 1.1 The initial term shall be for two (2) seasonal years commencing on June 26, 1995, and ending at 5 p.m. on September 30, 1997, unless sooner terminated or extended as provided elsewhere herein. 1.2 The Contract shall be deemed to be renewed for two (2) consecutive one (1) year terms on the same terms and conditions unless one of the parties serves notice on the other by registered mail at least sixty (60) calendar days before the end of a term, stating an intention not to extend the term for the next year. 1.3 Should City decide to release the Vendor at any time up to ninety (90) calendar days following the normal expiration of this Contract without notice pursuant to Section 1.2, City shall then give Vendor notice of such intent and the terms of the new Contract. City's decision may be preceded by the receipt of proposals from other prospective vendors. Vendor shall have the right for ten (10) calendar days following the giving by City of the notice to accept the terms of the new Contract and to enter into a new Contract with City. If Vendor fails to exercise this right of first refusal, City shall be free to pursue vendors without further notification to Vendor. This right of first refusal need not be given if City is not then satisfied that Vendor has and will operate the premises in the best interest of the City and the public. 4 of 12 1 JUN 13 1995 HEM 16. 2 2. PAYMENT 2.1 Vendor shall pay to the City twenty-seven and one-half percent (27.5%) of Vendor's gross receipts (as herein defined) made from or upon the premises during the entire term. Said percentage shall be paid on or before the fifteenth (15th) day of each ca1.ndar month for the preceding calendar month. 2.2 Vendor's gross receipts means all receipts, of every kind and description, arising from the vending machines, and Vendor's employees, agendas, and licensees or concessionaires, or independent contractors, including but not limited to, receipts from the sales of merchandise, rentals, and charges for labor and service, and whether made by shop personnel or vending machines, or others. No deduction or any kind shall be considered in determining gross receipts except funds collected for California Sales Tax. Gross receipts shall include all cash receipts and all credit or charge sales before any discounts, credits, allowances or offset. 2.3 On or before the fifteenth (15th) day of each calendar month, Vendor shall furnish City with an exact accounting of gross receipts for the preceding calendar month. Each accounting shall be signed and certified to be correct by Vendor and or Vendor's authorized representative, and if Vendor is a corporation the accounting shall be signed and certified to be correct by any officer of Vendor. Vendor shall keep at the premises or other convenient location in San Diego County, full and accurate books of account, records, cash receipts, and other pertinent data showing its gross receipts. Upon request of City, Vendor shall also furnish to City copies of its quarterly California Sales and Use Tax return at the time each is filed with the State of California. Such books of account, records, cash receipts. and other pertinent data shall be kept for a period of three (3) years after the end of each lease year. The receipt by City of any statement, or any payment of percentage rent for any period, shall not bind City as to the correctness of the statement or the payment. City shall be entitled during the term and within three (3) years after expiration or termination of this Contract to inspect and examine at no cost, all Vendor's books of account, records, cash receipts, tax returns, and other pertinent data, so City can ascertain Vendor's gross receipts. City's right to so inspect and examine (and to an independent audit as hereinafter provided) shall be only for the thirty-six (36) month period just prior to the date City requests the inspection examination or audit. Vendor shall cooperate fully with City. JUN 13 1995 ITEM 16. 2 5 of 12 2 2.4 City shi a 1 so be ent it 1 ed, twi ce duri n~ ach 1 ease year and once after expiration or termination of this Contract, to an independent audit of Vendor's books of account, records, cash receipts, and other pertinent data to determine Vendor's gross sales, by a certified public accountant to be designated by City. Th. audit shall be limited to the determination of gross receipts and shall be conducted during usual business hours at the premises of Vendor's office in San Diego County. If the audit shows that there is a deficiency in payment of any percentage rent, the deficiency shall become immediately due and payable. The cost of the audit shall be paid by City unless the audit shows that Vendor understated gross receipts by more than five percent (5%), in which case Vendor shall pay all City's cost of the audit. City shall keep any information gained from such statements, inspection or audit confidential and shall not disclose it other than to carry out the purpose of this Contract. 3. USE 3.1 The premises shall be used only for the purpose of conducting and operating the vending machines and for no other purpose. 3.2 Vending area shall be open continuously for business during specified hours that the Community Park and Swim Center are open to sporting events and swimming. Hours of operation have been established by the City as the following: Deeember-Mal"ch April-May Monday-Friday Monday-Friday 11 :00 a.m.-5:00 p.m. 2:00-8:00 -p.m. Saturday/Sunday 9:00 a.m.-8:00 p.m. .June, .JulY,A!l9Ust . S~tHber,Oetober1 November Monday-Sunday Monday-Friday 8:00 a.m.-8:00 p.m. 2:00 p.m.-8:00 p.m. Saturday/Sunday 9:00 a.m.-8:00 ~.m. 3.3 Vendor agrees that all merchandise and services offered by Vendor are subject to approval by City and that no merchandise will be offered for sale which in the City's sole opinion, is not in keeping with a youth and family-oriented recreation area. Vendor further agrees that all merchandise and services will be offered for sale at prices comparable to those charged at other public recreation areas in San Diego County. 3.4 Vendor agrees that the content, style, appearance, and location of all signs, placards, and advertising in or about the premises, including window advertising, are subject to City's prior written approval. 6 of 12 3 JUN 13 1995 ITEM 16, 2 3.5 Vendor ag s to provide a continuous reim, sement fund not to exceed twenty dollars ($20) for money lost in machines. This will be coordinated through the Recreation Supervisor. 3.6 Vendor shall comply promptly with all federal, state, county, and .untcipal statutes and ordinances, and with all regulations, orders and directives of appropriate governmental agencies, such as now exist or may hereafter exist concerning the use, sanitation, and safety of the vending machines. 4. FURNITURE, FIXTURES, EQUIPMENT, AND OTHER PERSONAL PROPERTY 4.1 Vendor will at Vendor's own cost and expense, equip and maintain at the premises all furniture, fixtures, equipment, and other personal property required by Vendor for the operation of the premises in accordance with the objectives of this Contract. Vendor shall have the right, at any time and from time to time and within fifteen (15) days after the expiration or earlier termination of this Contract to remove any and all of said furniture, fixtures, equipment, and other personal property of Vendor from the premises. All such properties not removed within such time shall become and remain the property of City. The removal of such properties shall be effected solely at the expense of the Vendor and in a manner satisfactory to City and without injury or damage to the premises or any of the improvements constructed by City, and Vendor covenants to repair immediately, at Vendor's expense any injury or damage caused by such removal. All required licenses and permits relative to signs or other improvements installed by Vendor shall be the sole responsibility of the Vendor and Vendor shall pay all such costs related thereto. Vendor will remove all Vendor owned equipment at the end of each Contract Term. 5. IMPROVEMENTS AND ALTERATIONS 5.1 Any remodeling, repair, or alteration performed or caused to be performed by Vendor, shall be only in accordance with plans and specifications prepared by Vendor and approved by City. Such plans and specifications shall be submitted to City for approval not less than ten (10) regular business days prior to commencement of the proposed work. 5.2 City shall have the right to require Vendor at any time prior to commencement or completion of any remodeling, repair, or alteration to furnish City with a performance and payment bond written by a surety company authorized to do business in the State of California and whose financial responsibility is reasonably satisfactory to the City, guaranteeing City of the timely performance of the work and specifications, and further guaranteeing the full and complete payment by or on behalf of Vendor of all costs, charges, and expenses in connection with or related to the work, free and clear of all mechanics' or other liens, conditional bills of sale, chattel mortgages, security instruments of other liens or encumbrances of any kid or nature whatsoever. 7 of 12 4 JUN 13 1995 ITEM 16. 2 5.3 Except. provided in Paragraph 4.1 here. . all improvements, alterations, and fixtures located in or on the premises at the expiration or prior termination of the term of this Contract shall automatically at that time become the property of City without the pi~nt of any consideration therefore, and without the necessity of any bill of sale. 6. MAINTENANCE OF PREMISES 6.1 By entry hereunder, tenant accepts the premises and all improvements thereon as being clean, safe, sanitary, and sightly condition and in good repair. Vendor agrees to maintain the premises and all improvements in said condition of good repair. Vending machines will be serviced and repaired within 48 hours of breakdown. 7. TAXES 7.1 Vendor shall pay before delinquency, all taxes and assessments assessed or levied upon Vendor and improvements by reason of this Contract (including any possessory interest tax) or on any furniture,fixtures, equipment, and personal property thereon, or by reason of the business or other activities or Vendor upon or in connection with the premises, including without limitation, any sales, use, income, or franchise tax, and shall pay any fees imposed by law for licenses or permits for any business or activities of Vendor upon the premises or under this Contract. 8. UTILITIES 8.1 The foregoing shall not apply to water or water meter installations which will be furnished Vendor by City without charge. 9. INDEMNIFICATION AND EXCULPATION 9.1 Vendor shall indemnify and hold harmless the City, its officers, officials, employees, and agents from and against all claims, damages, losses, and expenses including attorney fees arising out of the performance of the work described herein, caused in whole or in part by any negligent act or omission of the vendor, and subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the sole negligence or willful misconduct of the City. 10. PUBLIC LIABILITY AND INSURANCE 10.1 Vendor, at Vendor's cost, shall maintain on all Vendor's personal property, Vendor's improvements, and alterations, in, or on, or about the premises, a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, to the extent of at least one hundred percent (100%) of their actual cash value. The proceeds from any such policy shall be used by the Vendor for the replacement of personal property or the restoration of tenant's improvements or alterations. 8 of 12 5 JUN 13 1995 ITEM IS. 2 Contractor, ~ndor shall maintain a policy 0, ~eneral Liability Insurance voerage in an amount of at least $1,000,000, on which the City of Poway is endorsed as an additional insured. 10.2 In case this Contract is terminated, the insurance policies previded for in this Contract, and all rights under them and the insurance proceeds shall be assigned to the City at the City's election. 11. NONDISCRIMINATION 11.1 Vendor agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, or national origin. 12. ASSI6NIIENT - SUBCONTRACT 12.1 Vendor shall not assign or transfer the single or any part of this Contract or any interest therein, nor sublease the whole or any part of the premises, nor permit the occupancy of any part thereof by any other person, nor (if Vendor is a corporation permit transfer of the Contract or possession of the premises by merger, consolidation or dissolution, nor permit sale of a controlling interest in the voting stock in said corporation) without the consent in writing of the City~ If Vendor is a corporation, it is mutually agreed the personal qualifications of the parties do hereby agree to maintain active control and supervision of the operations conducted.on the premises. No assignment, voluntary or involuntary, in whole or in part of the Contract on any interest therein, and no sublease of the whole or nay part of the premises and no permission to any person to occupy the whole or part of the premises, shall be valid or effective without written consent of the City, provided however, that nothing herein contained shall be construed to prevent the occupancy of said premises by any employee or business invitee of Vendor. 13 Vendor'S DEFAULT 13.1 The occurrence of any of the following shall constitute a default by Vendor: a. Failure to submit accounting when due, if the failure continues for ten (10) days. b. Abandonment and vacation of the premises (failure to open and operate the premises for five (5) consecutive days shall be deemed an abandonment and vacation per agreed times and days, unless caused by forces beyond the control of Vendor and Vendor exerts and continues to exert reasonable effort to occupy and operate the premises, and Vendor is not in default under Paragraph 13.1a above. c. Failure to perform any other provision of this Contract if the failure to perform is not cured within fifteen (15) calendar days after notice has been given to Vendor. If the default cannot be cured within the fifteen (15) day period and diligently and in good faith continues to cure the default. 6 JUN 13 1995 ITEM 16. 2 9 of 12 -----..---------- d. VI Jr becoming insolvent, making, assignment for the benefit of creditors, becoming the subject of a bankruptcy proceeding, reorganization arrangement, insolvency, receivership, liquidation, or dissolution proceedings, or any judicial sale of Vendor's interest under the Contract. 13.2 Netices given under this paragraph shall specify the alleged default and the applicable lease provisions, and shall demand that Vendor perform the provisions of this Contract or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the premises. No such notice shall be deemed a forfeiture or a termination of this Contract unless City so elects in the notice. 14. CITY'S REMEDIES 14.1 City shall have the following set forth in sUb-paragraphs 1 through 4 of this paragraph if Vendor commits a default or if Vendor made any material misrepresentation or omission to City in obtaining this Contract. These remedies are not exclusive: They are cumulative in addition to any remedies now or later allowed by law. 14.2 (Vendor's Right to Possession not Terminated.) City can continue this Contract in full force and effect, and the Contract will continue in effect so long as City does not terminate Vendor's rights to possession, and City shall have the right to collect rent when due. During the period Vendor is in default. 14.3 (City's Right to Cure Vendor's Default.) City, at any time after Vendor commits a default, can cure the default at Vendor's cost. If City at any time, by reason of Vendor's default, pays any sum or does any act that requires the payment of any sum, the sum paid by the City shall be due immediately form Vendor to City at the time the sum is paid, and if paid at a later date shall bear interest at the rate of 18 percent per annum from the date the sum is paid by City until City is reimbursed by Vendor. The sum, together with interest on it shall be additional rent. 14.4 (Interest on Unpaid Rent.) Rent not paid within five (5) calendar days of its due date shall bear interest at the rate of 18 percent per annum from the date until paid. 15. ATTORNEYS' FEES 15.1 If either party becomes a party to any litigation concerning this Contract, the premises, or the building or other improvements in which the premises are located, by reason of any act or omission of the other party or its authorized representatives, and not by any act or omission of the party that becomes a party to that litigation or by any act or omission of its authorized representatives, the party that causes the other party to become involved in the litigation shall be liable to that party for reasonable attorneys' fees and court costs incurred by it in the 1 itigation. 10 of 12 7 JUN 13 1995 ITEM 16. 2 16. WAIVER BY CITY 16.1 Any waiver by City of any breach of anyone or more of the terms, covenants, and conditions of this Contract shall not be a waiver of any subsequent or other breach of the same or of any other te~, covenant, or condition of this Contract nor shall any failure of City to require or exact full and complete compliance with any of the terms, covenants, or conditions of this Contract be construed as changing the terms hereof, or stop City from enforcing the full provisions hereof, nor shall the terms of this Contract be changed or altered in any way whatsoever other than by written agreement. All remedies herein provided are cumulative and in addition to any others granted by law. 17. NOTICES 17.1 Notices or demands hereunder given or to be given by City or Vendor to the other may be personally served upon City or Vendor or any person hereafter authorized by either in writing to receive such notice or may be served by certified letter addressed to the appropriate address herein after set forth or to such other address as City and Vendor may hereafter designate by written notice. City Manager City of Poway PO Box 7B9 Poway, CA 92074-0789 18. GENERAL PROVISIONS 18.1 Time is of the essence of each and all of the terms and conditions of this Contract. 18.2 Subject to the provisions hereof with respect to assignment, the provisions hereof shall insure to the benefit of and be binding upon the parties hereto and upon the successors and assigns, heirs, devises, personal representatives of the parties as fully and to the same extent as though specifically mentioned herein in each instance. 18.3 In this Contract, whenever the context require, the singular number includes the plural. 18.4 Each term and each provision of this Contract performable by Vendor shall be construed to be both covenant and a condition. 18.S Nothing contained herein shall be deemed to create any relationship between the parties other than Landlord and Vendor. If Vendor is a corporation, the personal qualifications of officials/directors are part of the consideration for the granting of this Contract and said officers/directors do agree to personally guarantee the performance of this Contract by said corporate Vendor. 18.6 The unenforceability, invalidity, or illegality of any provision shall not render the other provisions unenforceable, invalid, or illegal. 8 JUN 13 1995 ITEM 16. 2 11 of 12 -----------.------- -_._.._--"~-_..._-- 19. Contract oocur 'TS 19.1 The complete Contract includes this Contract and the following Contract documents: a. Notice Inviting Sealed Proposals b. Instructions to bidders c. Bidder's Questionnaire (including financial statement) d. Proposal e. Verification of Bidder's Proposal, Bidder's Questionnaire, and Financial Statement CITY OF POWAY SOUTHLAND VENDING SERVICES James L. Bowersox Edward J. Banko City Manager Pres i dent JUN 13 1995 ITEM 16. 2 12 of 12 9