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HomeMy Public PortalAboutAgreement_2012-09-28_Premier Vend GroupCity of Temple City Vending Machine Agreement This Agreement is entered into by, and between, the City of Temple City, located at 9701 Las Tunas Drive, Temple City (hereinafter referred to as 'Proprietor) and Premier Vend Group, Inc. (also known as Downey Vendors, Inc.) (hereinafter referred to as 'Operator'). RECITALS Operator is a proprietor with principal place of business at 6814 Suva St. Bell Gardens, California 90201. Operator is engaged in the business of installing and operating automatic vending machines at various business locations and of selling articles of merchandise, food, and beverages to the public through such machines. Proprietor is a municipal corporation and charter law city and is the owner and operator of a park and recreation facility located at 10144 Bogue St., Temple City, State of California. Operator desires to install automatic vending machines on the premises of Proprietor for the sale of food, snacks, and beverages, and Proprietor desires to grant Operator a license for such purposes on the terms and conditions contained in this agreement. Therefore, in consideration of the mutual covenants and promises contained herein, it is hereby agreed as follows: ARTICLE 1. EXCLUSIVE GRANT Proprietor hereby grants to Operator the exclusive right and privilege to install, operate, and maintain up to three (3) vending machines on the premises of Proprietor located at the Live Oak Park Community Center (interior and exterior of building only), 10144 Bogue St., Temple City, State of California. Proprietor additionally grants to Operator the exclusive right and privilege to sell food, snacks, and beverages or other merchandise on the aforementioned premises of Proprietor by means of those vending machines installed and operated by Operator. Proprietor shall not cause or permit the sale of these or similar items by or through the operation of vending machines by any other person, firm, or corporation, with the exception of food, snacks, beverages, and other merchandise sold by Proprietor in connection with City -sponsored programs and/or events. ARTICLE 2. COMPENSATION Operator shall pay to Proprietor for the exclusive right to sell assorted snack and beverages on the described premises 22.5% percent of the Adjusted Gross Receipts from sales through the vending machines. For purposes herein, 'adjusted gross receipts' shall be defined as gross receipts less federal, state and local sales and excise taxes existing at the time payment is due. ARTICLE 3. INSTALLATION OF MACHINES Operator shall install on the premises of the Proprietor at such locations as are mutually agreed upon by the parties. ARTICLE 4. REMOVAL AND REPLACEMENT OF MACHINES Operator shall have the right to remove any of the machines installed on the premises of the Proprietor under this Agreement and to replace any such machine with a vending machine of similar type, quality, and appearance. ARTICLE 5. INCREASE OR DECREASE IN NUMBERS OF MACHINES Operator, with permission of Proprietor, shall have the right to increase or decrease the number of machines installed on the premises of Proprietor to adjust to changes in demand, sales, or economic conditions, provided however, at least one machine shall be provided at all times during the term of this Agreement. Proprietor shall have the right to impose restrictions on the number or placement of machines where such number or placement would interfere with the normal operation of Proprietor's recreation and park activities. ARTICLE 6. TERM The term of this Agreement shall commence on October 1, 2012 and shall continue through June 30, 2014. ARTICLE 7. OWNERSHIP OF MACHINES It is understood and agreed by and between the parties that the vending machines installed on the premises of Proprietor by Operator are and shall remain the property of Operator. Upon termination of this Agreement by any means, Operator shall have the right to remove any and all vending machines belonging to Operator which have been installed on the premises of Proprietor. ARTICLE 8. SELECTION AND PRICING Operator shall keep the machines stocked at all times with sufficient quantities of assorted snacks and beverages to insure continuous service to patrons of Proprietor. Operator shall have sole control over the selection of brands of such items to be offered for sale through the vending machines and of the prices at which they are offered for sale, but he shall to the extent possible, seek to offer the patrons of Proprietor a selection of brands at competitive prices. ARTICLE 9. RISK OF DAMAGE TO MACHINES Except as may be attributable to Proprietor by reason of the intentional acts or active negligence of its officers, agents, or employees, Operator assumes risk and responsibility for any loss, destruction, or damage occurring to the vending machine(s). Operator reserves the right to seek compensation from Proprietor from losses incurred as the result of damage to machines due solely to the intentional acts or active negligence of Proprietor's officers, agents, or employees. ARTICLE 10. MAINTENANCE AND SERVICE Operator shall regularly inspect, service, clean, and maintain the described vending machines and shall keep them operating and in good working order, at all times promptly maintaining them in a clean and sanitary condition in accordance with all applicable federal, state and local laws. Proprietor shall supply suitable waste disposal containers for the convenience of users of the vending machines and shall provide and bear the expense of garbage removal and disposal services. All trash containers shall be emptied at least once daily. ARTICLE 11. NOTIFICATION OF MACHINE FAILURE Proprietor agrees to notify Operator promptly of any failure of the vending machines to function properly and further agrees to permit only authorized agents of Operator to remove, open, or in any way tamper with the machines. ARTICLE 12. UTILITIES Proprietor shall furnish and bear the cost of all utilities necessary for the operation of the vending machines installed under this Agreement and shall furnish suitable utility outlets for use by such machines. Proprietor shall provide continuous service to the machines and machine areas and shall not cause or permit the interruption of such service except in the event of emergency or other service interruptions not under the control of Proprietor. ARTICLE 13. FEES AND TAXES Operator shall be responsible for and shall pay all state, county, and city license fees and sales or other merchandising taxes that may be imposed on the sales of merchandise through its vending machines. ARTICLE 14. RELATION OF PARTIES It is the intention of the parties that Operator be an independent contractor hereunder, and that no agency or employment relationship be created by this Agreement. ARTICLE 15. COMPLIANCE WITH LAWS Each party shall comply with all federal, state, local, or other laws or regulations applicable to the sale of merchandise through vending machines ARTICLE 16. TERMINATION OF AGREEMENT 16.1 If at any time during this agreement, the Proprietor should determine that the Operator's service is unsatisfactory, Proprietor shall advise Operator by registered mail and Operator agrees to correct such unsatisfactory condition(s) within a 15 day period. If Operator should fail at such corrective action as necessary to return the level of service to satisfactory with the prescribed 15 day period, Proprietor may cancel this agreement with a 30 day written notice by registered mail. 16.2 If circumstances change significantly that alter the intended economic value of this agreement, Operator reserves the right to cancel this agreement. 16.3 Notwithstanding any other provisions of this Agreement to the contrary, this Agreement may be terminated at any time by either party hereto by a thirty (30) day notice in writing. ARTICLE 17. ASSIGNMENT This Agreement shall not be assignable by either party without the prior written consent of the other party. Subject to the foregoing limitation, this Agreement shall enure to the benefit of and be binding upon the successors and assigns of the respective parties. ARTICLE 16. ENTIRE AGREEMENT This Agreement constitutes the entire Agreement of the parties with respect to the subject matter hereof and supersedes any and all agreements, understandings, statements, or representations either oral or in writing. ARTICLE 19. ATTORNEYS' FEES Should any litigation be commenced between the parties hereto or their personal representative concerning any provisions of these Articles, or the rights and duties of any person in relation thereto, the party or parties prevailing in such litigation shall be entitled, in addition too such other relief as may be granted, to a reasonable sum as and for their or his attorneys' fees in such litigation, which shall be determined by the court in such litigation, or in a separate action brought for that purpose. ARTICLE 20. GOVERNING LAW The validity of this Agreement and of any of its terms or provisions as well as the rights and duties of the parties hereunder shall be interpreted and construed pursuant to and in accordance with the laws of the State of California. ARTICLE 21. INSURANCE REQUIREMENTS Operator shall provide and maintain insurance acceptable to the City Manager or City Counsel, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the this Agreement by Operator, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Consultant shall provide the following scope and limits of insurance: 21.1 Minimum Scope of Insurance. Operator shall maintain professional liability insurance appropriate to the Operator's profession. This coverage may be written on a claims made" basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. 21.2 Minimum Limits of Insurance. Operator shall maintain limits of professional liability insurance no less than $1,000,000 per occurrence. 21.3 Other Provisions. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either party to this Agreement, reduced in coverage or in limits except after 30 days' prior written notice by Certified mail, return receipt requested, has been given to City. 21.4 Other Requirements. Operator agrees to deposit with City, at or before the effective date of this contract, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City Attorney may require that Consultant furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. Executed in Temple City, California on the day and year indicated beneath the signature of each party. PROPRIETOR City of Temple City 9701 Las Tunas Drive Temple City, CA 91780 By: ;�� Ci7e,,&,mber— OPERATOR Manager Dated: Premier Vend Group, Inc. 6614 Suva St. Bell Gardens, CA 90201 By: Dated: ATTEST: P) I M/'�d 1-,o City Clerk APP::, ROVED City Attorney