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Home My Public Portal AboutAgreement_2018-07-01_Tom Cuda VendingVENDING MACHINE AGREEMENT (Tom Cuda Vending) This VENDING MACHINE AGREEMENT ("Agreement") is entered into as of the _/5i day of 2018, between Tom Cuda Vending, a dba ("Vendor") and the City of Temple City, a Calif nia municipal corporation ("City"). RECITALS A. Tom Cuda Vending is a dba with its principal place of business in San Dimas, CA("Vendor") Vendor is engaged in the business of installing and operating automatic vending machines at various business locations and of selling articles of food and beverages to the public through such machines. B. The City and Vendor entered into an agreement where City permitted Vendor's placement of automatic vending machines at the City, for a fee, between June 1, 2017 and June 30, 2018. C. Vendor wishes to enter into a new agreement for a license from the City to install and maintain vending machines at the City, according to the terms specified below. TERMS 1. License. City grants Vendor a license to install, operate, and maintain up to three (3) vending machines which dispenses food, snacks, and beverages in the Annex and the Community Center, which are located at Live Oak Park, 10144 Bogue Street, Temple City, subject to the terms set forth in this agreement. 2. Compensation to the City. Vendor will pay City, for the license to sell assorted food, snack and beverage items on the described premises, 24% of the Adjusted Gross Receipts from sales through the vending machines. "Adjusted gross receipts" is defined as gross receipts less federal, state and local sales and excise taxes existing at the time payment is due, including California Redemption Value (CRV). Payment will be by check, made payable to "City of Temple City" and mailed to: Parks & Recreation Department, 9701 Las Tunas Drive, Temple City, CA 91780; or hand delivered to Cathy Burroughs, Parks & Recreation Director, 10144 Bogue Street, Temple City. Payment is due not less than once every three months, and must be made by the 1st of January, April, July, and October. Vendor will provide to the City sufficient documentation to corroborate the amount of payment. 3. Installation of Vending Machine. The specific location of the vending machines will be at a location as is mutually agreeable by the parties. Any vending machine may not be permanently mounted or otherwise affixed to City's property. 4. Removal or Replacement of Vending Machine. Vendor may remove a vending machine installed on the premises of the City under this agreement and replace it with a vending machine of similar type, quality, and appearance, upon 10 days prior notice to the City and no objection from the City. LA 44851-1245-0632 v 5. Increasing or Decreasing Number of Vending Machines. Vendor may not increase or decrease the number of vending machines installed on the premises of City without the prior written approval of the City. 6. Term. The term of this agreement will commence on July 1, 2018 and continues through June 30, 2020. The agreement may be renewed for up to two additional years upon mutual consent of both parties. 7. Ownership of Machine. Any vending machine installed on the premises of City by Vendor is and will remain the property of Vendor. Upon termination of this agreement, Vendor must remove all vending machines from the premises of City within 10 days of termination. 8. Selection and Pricing. Vendor will keep the vending machines stocked at all times with sufficient quantities of assorted food, snack and beverage items to insure continuous service to patrons of City. Vendor has sole control over the selection of the 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 Vendor will, to the extent possible, seek to offer the patrons of City a selection of brands at competitive prices. 9. Risk and Indemnification. Except as may be attributable to City by reason of intentional acts or active negligence of City's officers, contractors or employees, Vendor assumes risk and responsibility for any loss, destruction or damage occurring to the vending machine. Vendor reserves the right to seek compensation from City for losses incurred as the result of damage to machines due solely to the intentional acts or active negligence of City's officers, contractors or employees. Vendor will indemnity, release, and hold City harmless for all other claims. 10. Maintenance and Service. Vendor will regularly inspect, service, clean and maintain any vending machines and will keep the vending machines operating and in good working order, at all times, promptly maintaining it in a clean and sanitary condition in accordance with all applicable federal, state and local laws. City will supply suitable waste disposal containers for the convenience of users of the vending machines and will provide and bear the expense of garbage removal and disposal on a schedule to be determined by City. 11. Notification of Machine Failure. City agrees to notify Vendor promptly of any failure of any vending machine to function property and further agrees to permit only authorized agents of the Vendor to remove, open, or in any way tamper with the machine. Vendor agrees to promptly refund any money lost by patrons and reported in a timely manner to the on -duty staff of the Annex or Community Center. 12. Utilities. City will fumish and bear the cost of all utilities necessary for the operation of the vending machine installed under this agreement and will furnish suitable utility outlet for use by the vending machine. City will provide continuous service to the vending machine and will not cause or permit the interruption of such service except in the event of emergency or other service interruptions not under the control of the City. 13. Fees and Taxes. Vendor is responsible for and will pay all state, county and city license fees and sales or other merchandising taxes that may be imposed on the sales of food, LA #4851-1245-0632 vl snack or beverage items through the vending machine. Vendor will procure, and maintain throughout the term of this agreement, a valid business license from the City. 14. Relationship of Parties. Vendor agrees and warrants that Vendor is an independent contractor, and is not, and will not be, an agent or employee of the City, under this agreement. 15. Compliance with Laws. Vendor warrants that Vendor will comply with all federal, state, local or other laws or regulations applicable to the sale of merchandise through vending machines 16. Termination. This agreement may be terminated at any time by either party by a 30 day written notice, to: (i) City- City of Temple City (ii) Vendor: Tom Cuda Vending Upon termination, Vendor must remit all payment due to the City and remove all vending machines from the premises. 17. Assignment. This agreement may not be assignable by either party without the prior written consent of the other party. Subject to the foregoing limitation, this agreement will enure to the benefit of, and be binding upon, the successors and assigns of the respective parties. 18. Entire Agreement. This agreement constitutes the entire agreement of the parties with respect to the subject matter and supersedes any and all agreements, understandings, statements or representations either oral or in writing. 19. Attomev's Fees. Should any litigation be commenced between the parties or their personal representative concerning any provisions of this agreement, the party or parties prevailing in such litigation may be entitled, in addition to such other relief as may be granted, to a reasonable sum for attomeys' fees in such litigation. 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, will be interpreted and construed to and in accordance with the laws of the State of California. Any lawsuit to enforce any such rights will be filed in Los Angeles Superior Court. 21. Insurance Requirements. Vendor must provide and maintain insurance that is acceptable to the City Manager or City Council, in full force and effect throughout the term of this agreement, against claims for injuries to persons or damage to property which may arise from or in connection with this agreement by Vendor, its contractors, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than AIVII. Vendor shall provide the following scope and limits of insurance: (a) Minimum Scope of Insurance. Vendor must maintain professional liability insurance appropriate to the Vendor's profession. This coverage may be written on a "claims made" basis, and must include coverage for contractual liability. The LA #4851-1245-0632 v1 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. (b) Minimum limits of Insurance. Vendor must maintain limits of professional liability insurance no less than $1,000,000 per occurrence. (c) Endorsements and Warranty of Coverage. Each insurance policy required by this agreement will be endorsed and state the coverage will 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 the City. (d) Other requirements. Vendor agrees to deposit with City, at or before the effective date of this agreement, certificates of insurance (and all renewals of such insurance) necessary to satisfy City that the insurance provisions of this contract have been complied with. The City Attorney may require that Vendor 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 will 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 Vendor will procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. 22. Authority to Execute. Each party represents and warrants that all necessary action has been taken by such party to authorize the undersigned to execute this agreement and to bind the parties to the performance of their obligations. 23. Counterparts. Facsimile or other Electronic Signatures. This agreement may be executed in several counterparts, each of which will be deemed an original, and all of which, when taken together, constitute one and the same instrument. The agreement will be considered executed when the signature of a parry is delivered by facsimile or other electronic transmission. Such facsimile or other electronic signature will have the same effect as an original signature. 24. Severability. If any term, condition, or covenant of this agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this agreement will not be affected and the agreement will be read and construed without the invalid, void or unenforceable provision. LA #4851-1245-0632 v1 4 THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY THEIR UNDERSIGNED AUTHORIZED AGENTS AS FOLLOWS: TOM CUDA VENDING (if not an individual, two signatures are required) N me and Title/: Tom Cuda, Owner Date: S /21 / !? CITY OF TEMPLE CITY i� Bryn / ok, City Manager LA #4851-1245-0632 vi DLva1�'x- Name and Title, Date: S 1?// 'k