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HomeMy WebLinkAboutResolution - 2010-R0235 - Vending Services With Custom Food Group - 05/27/2010Resolution No. 2010-RO235 May 27, 2010 Item No. 5.3 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Agreement No. 9500 for beverage and snack vending services per RFP 10 -005 -FO, by and between the City of Lubbock and Custom Food Group, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on ATTEST: Rebe a Garza, City Secretary APPROVED AS TO CONTENT: "Vjll-� Andy Burc6m, Chief Finance Officer um 0:10 KOX0 .ir1 Chad Weaver, Assistant City Attorney vw:ccdocs RES.Agreement-Custom Food Group March 23, 2010 May 27, 2010 TOM MARTIN, MAYOR Resolution No. 2010-R0235 SERVICES AGREEMENT This Services Agreement (this "Agreement') is entered into as of the 27th day of May, 2010 ("Effective Date") by and between Custom Food Group of Lubbock, Texas (the Contractor), and the City of Lubbock (the "City"). RECITALS WHEREAS, the City has issued a Request for Proposals (RFP 10 -005 -FO) for Beverage and Snack Vending Services. WHEREAS, the proposal submitted by the Contractor has been selected as the proposal which best meets the needs of the City for this service; and WHEREAS, Contractor desires to perform as an independent contractor to provide Beverage and Snack Vending Services upon terms and conditions maintained in this Agreement; and NOW THEREFORE, for and in consideration of the mutual promises contained herein, the City and Contractor agree as follows: City and Contractor acknowledge the Agreement consists of the following exhibits which are attached hereto and incorporated herein by reference, listed in their order of priority in the event of inconsistent or contradictory provisions: 1. This Agreement 2. Scope of Services 3. Exhibit A - Pricing 4. Exhibit B - Insurance Requirements Article 1 Services. 1.1 Contractor agrees to perform services for the City that are specified under the Scope of Services. 1.2 Contractor shall use its commercially reasonable efforts to render Services under this Agreement in a professional and business -like manner and in accordance with the standards and practices recognized in the industry. 1.3 Nonappropriation clause. All funds for payment by the City under this Agreement are subject to the availability of an annual appropriation for this purpose by the City. In the event of non -appropriation of funds by the City Council of the City of Lubbock for the goods or services provided under the Agreement, the City will terminate the Agreement, without termination charge or other liability, on the last day of the then -current fiscal year or when the appropriation made for the then -current Agreement, year for the goods or services covered by this Agreement is spent, whichever event occurs first. If at any time funds are not appropriated for the continuance of this Agreement, cancellation shall be accepted by the Seller on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this Agreement beyond the date of termination. Article 2 Miscellaneous. 2.1 This Agreement is made in the State of Texas and shall for all purposes be construed in accordance with the laws of said State, without reference to choice of law provisions. 2.2 This Agreement is performable in, and venue of any action related or pertaining to this Agreement shall lie in, Lubbock, Texas. 2.3 This Agreement and its Exhibits contains the entire agreement between the City and Contractor and supersedes any and all previous agreements, written or oral, between the parties relating to the subject matter hereof. No amendment or modification of the terms of this Agreement shall be binding upon the parties unless reduced to writing and signed by both parties. 2.4 This Agreement may be executed in counterparts, each of which shall be deemed an original. 2.5 In the event any provision of this Agreement is held illegal or invalid, the remaining provisions of this Agreement shall not be affected thereby. 2.6 The waiver of a breach of any provision of this Agreement by any parties or the failure of any parties otherwise to insist upon strict performance of any provision hereof shall not constitute a waiver of any subsequent breach or of any subsequent failure to perform. 2.7 This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives and successors and may be assigned by Contractor or the City to any successor only on the written approval of the other party. 2.8 All claims, disputes, and other matters in question between the Parties arising out of or relating to this Agreement or the breach thereof, shall be formally discussed and negotiated between the Parties for resolution. In the event that the Parties are unable to resolve the claims, disputes, or other matters in question within thirty (30) days of written notification from the aggrieved Party to the other Party, the aggrieved Party shall be free to pursue all remedies available at law or in equity. Article 3 The City Right to Audit 3.1 At any time during the Term of the Agreement, or thereafter, the City, or a duly authorized audit representative of the City or the State of Texas, at its expense and at reasonable times, reserves the right to audit Contractor's records and books relevant to all services provided to the City under this Agreement. Such audits, if requested, will take place during normal business hours and conducted at Contractor's place during normal business hours and conducted at Contractor's place of business; and Agreement will work with City only and no third party auditors. In the event such an audit by the City reveals any errors or overpayments by the City, Contractor shall refund the City the full amount of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments due Contractor. IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date. City of Lubbock, Texas Tom Martin, Mayor TEST: - Rebacca Garza, City Secretary Victor Kilman, Director of Purchasing and Contract Management APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney Custom Food Group By: Name: Nanc niton Title: ChiFinancial Officer Resolution No. 2010-R0235 SCOPE OF SERVICES 1. FULL SERVICE VENDING 1.1 Machines Contractor shall furnish and install high quality snack vending machines and all related equipment. The machines shall be modern, of the latest mechanical/electronic technology and be in new or near new condition. In no case shall machines older than five (5) years be installed. All machines shall show the Contractor's name, a local service telephone number for reporting of machine malfunctions, the person or office within the Contractor's organization responsible for refunds, and regular days of the week for re -stocking of the machines. In addition, for identification purposes, each machine shall have serial or I.D. numbers that are visible and easily located. The machines will be operated by the Contractor in such a way as to fully comply with all federal, state and local laws, as well as City policies. Should any federal, state, or city ordinance, regulation or policy change during the Term of the Agreement, the Contractor will be expected to comply with these changes upon written notice of such changes. 1.2 Locations The City will work with the Contractor to designate optimum placement of machines. The City makes no representation regarding availability of any location or of the number of machines that may be replaced at any location, and may occasionally direct that machines be removed by Contractor from selected locations. The number, type, and location of beverage vending machines will be adjusted on occasion by mutual agreement, in writing, between the City and the Contractor. The City reserves the right at any time to require the Contractor to remove, relocate, or place additional vending machines and related equipment at existing and/or new locations to meet new or unanticipated requirements that might become known during the term of the Agreement. The Contractor shall provide and install additional machines at no charge to the City. In addition, the City may request that a machine be exchanged at any time. Should the Contractor wish to relocate, exchange, or remove vending machines, a request must be submitted in writing to the City Representative. 1.3 Utilities The City shall provide existing electrical outlets in the general vicinity of the machines at no charge. In addition, the City will pay for electrical consumption required to operate machines installed under the Agreement. If additional infrastructure is required for additional machines, the Contractor shall be responsible for all costs incurred in any expansion in vending machine opportunities. The City must approve any expansion, prior to project inception. 1.4 Installation/Removal of Equipment Installation, service and removal of vending machines and related equipment shall be the sole responsibility of the Contractor at no additional cost to the City. Upon installation, the successful Contractor shall furnish the City Representative with a list of machines by location, indicating machine capacity, product selection and size, serial numbers, and date of installation. Contractor will install and secure machines in a manner that meets City code and has been approved by the City prior to machine placement. 1.5 Equipment Damage Contractor shall assume all risk and responsibility for any loss, destruction, or damage occurring to the machines or other vending equipment. In the event of any loss due to theft, fire, accident, disruption of utility services, vandalism, spoilage or other similar causes from said machines, the loss shall be borne by the Contractor. Machines provided shall be equipped with anti -theft technology. 1.6 Equipment Specifications Machines provided shall be quiet and non -disruptive to the activities occurring in City facilities, and shall be aesthetically acceptable to the City. The City may reject machine signage or logo if deemed objectionable or a distraction to the activities occurring in the vicinity. To maximize the potential of each location, machines provided must be of adequate size and capacity to maintain full and uninterrupted service at all times. Machines shall be capable of holding and dispensing a variety of Products and sizes. The machines will vend either recyclable plastic bottles or recyclable cans; glass containers are not acceptable. All machines shall be equipped to accept legal U.S. tender, be equipped with dollar bill validators, and payment mechanisms which accept combinations of dollar bills, nickels, dimes and quarters. In addition, each machine must have bill change capabilities. To ensure accurate record keeping, all machines shall be equipped with non- resettable counters, which indicate unit sales. If multiple Products are dispensed from the same machine, a separate dispensing counter is required for each separate commission rate dispensed. Upon initial installation of the machines, Contractor shall submit starting machine counter numbers to the City's designated Contact Manager for each vending machine. Machines provided shall operate on AC -110 volts with a three -wire, three -prong ground type plug. All machines shall be UL listed, designed, constructed, installed and operated in accordance with City, State and Federal codes and regulations for this type of equipment. 1.7 Service of Machines Service will be maintained by the Contractor on a 24-hour, seven -day -a- week basis. Generally, the City expects that service calls will be responded to within four (4) hours after notification of need during the period of 7:00 am and 4:00 pm on business days. Equipment furnished for special events shall be repaired or replaced in approximately one (1) hour after notification in order to minimize the losses from sales from these events. Contractor will furnish the City Representative with a service number that will allow for service outside of the normal servicing times. Preventative maintenance and repair of vending machines and related equipment shall be the responsibility of the Contractor in terms of expense and response time. The Contractor will conduct routine service and inspection of machines, as required and posted on the front of the machine so as to maintain uninterrupted service at all times. Contractor shall be responsible for the physical inventory, inventory control, and filling of machines. The Contractor shall make every effort to re -stock machines at times that will not conflict with peak usage times. Product delivery shall be made on a mutually agreed upon schedule at each location. No inventories will be maintained at any City locations. Trained, qualified personnel identified by a clearly marked and openly displayed company insignia and/or uniform will perform all service. In addition, all such persons shall carry company issued photo identification and shall present such documents to anyone on request. The Contractor shall comply with all Federal, State, and City regulations governing the procurement, preparation, storage, transport, handling and serving of all items for consumption under this Agreement. In addition, the Contractor shall keep in effect all necessary licenses and permits required by law and agree to post such permits in a prominent place as may be required by law. Contractor shall keep the machines in a clean and sanitary condition. This requirement includes interiors, exteriors, tops, and the areas under the machines. 1.8 Products to Be Dispensed The City desires a wide variety of beverages/snacks to be provided by the Contractor including as listed in Exhibit A. The beverages that will be dispensed shall be determined by what is proven to result in the highest sales at a particular location based on actual and projected customer demand. Once the City has approved the initial Product line offered, the Contractor will be allowed to add or delete products with prior written approval from the City Representative. The City reserves the right to request that a product be replaced at any time. 1.9 Product Sizes The specific Products and the size of the Products that will be sold from a specific machine will be determined by the Contractor and the City based on the appropriateness of the product, location of the machine and sales projections. 2. CONTRACT MANAGEMENT The City will appoint a City representative to represent the City in the implementation of this Agreement. The Contractor will work closely with the City representative to ensure that all aspects of the Agreement are executed with the utmost efficiency and professionalism. 2.1 Products After the initial product line is approved, the City Representative must approve any new product or dispensing size. 2.2 Price Increases Any adjustments in unit prices or commission rates shall be negotiated between the City and the Contractor. 2.3 Machines Placement of additional machines, removal and/or relocation of existing machines must be approved and coordinated by the City Representative. Machine placement must comply with Fire Marshall and safety regulations. 2.4 Advertising Any signage, logo, promotions, promotional material or anything that the City may construe as advertising intended to promote sales must be approved by the City Representative before distribution or placement. 2.5 Agreement Period The term of the Agreement ("Term") will begin effective as of the first day of the month immediately following the date this Agreement if fully executed by both parties ("Effective Date") and shall continue for a period of five (5) years. The city reserves the right, under the same terms and conditions in this Agreement, to extend the Agreement by written notice to Contractor, for an additional five (5) years, not to exceed a total of ten (10) years from the Effective Date of this Agreement. 3. ACCOUNTING REQUIREMENTS The Contractor shall maintain complete and accurate records of vending transactions including collections and inventories of both merchandise and equipment in accordance with the accepted industry standards, and will keep financial records related to this Agreement for a period of three yeas after the close of each Agreement Year's operation. 4. REPORTING 4.1 Commissions Contractor shall remit the monthly commission due to the City on or before the fifteenth (15th) business day following the end of the month just ended. In support of each commission check issued, the Contractor is required to attach an itemized statement indicating: For each location: • Net sales and commissions. For each machine: • Counter readings —indicating beginning and ending counter readings. Explanation of counter discrepancies resulting from malfunctions or repairs to the Machines. Unit sales for each type of Product sold in each machine. Resolution No. 2010-RO235 EXHIBIT A — PRICING CUSTOM FOOD GROUP Municipal Buildings PRODUCTS PRICING COMMISSIONS Candy 1.00 3% Pastry 1.25 3% Large Bag of Candy 1.35 3% Crackers .75 3% Microwave Popcorn 1.00 3% Chis 1.00 3% Mint/Gum .60 3% Civic Center / Coliseum PRODUCTS PRICING COMMISSIONS Candy 1.00 3% Pastry 1.25 3% Large Bag of Candy 1.35 3% Crackers .75 3% Microwave Popcorn 1.00 3% Chis 1.00 3% Mint/Gum .60 3% Coffee Small .75 Large 1.00 3% Tea Small .75 Large 1.00 3% Hot Chocolate Small .75 Large 1.00 3% Price will be in effect for one year. Increases if needed will be agreed upon between the City of Lubbock and Custom Food Group. Resolution No. 2010-RO235 EXHIBIT B - Insurance Requirements CITY OF LUBBOCK, TEXAS Beverage/Snack Vending Services RFP 10 -005 -FO INSURANCE SECTION A. Prior to the approval of this Agreement by the City, the Contractor shall furnish a completed Insurance Certificate, along with a copy of the additional insured endorsement, to the City, which shall be completed by an agent authorized to bind the named underwriter(s) to the coverages, limits, and termination provisions shown thereon, and which shall furnish and contain all required information referenced or indicated thereon. THE CITY SHALL HAVE NO DUTY TO PAY OR PERFORM UNDER THIS AGREEMENT UNTIL SUCH CERTIFICATE SHALL HAVE BEEN DELIVERED TO THE CITY. INSURANCE COVERAGE REQUIRED SECTION B. The City reserves the right to review the insurance requirements of this section during the effective period of the Agreement and to require adjustment of insurance coverages and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, or the claims history of the industry as well as the Contractor. SECTION C. Subject to the Contractor's right to maintain reasonable deductibles in such amounts as are approved by the City, the Contractor shall obtain and maintain in full force and effect for the duration of this Agreement, and any extension hereof, at Contractor's sole expense, insurance coverage written by companies approved by the State of Texas and acceptable to the City, in the following type(s) and amount(s): TYPE AMOUNT 1. Worker's Compensation The Contractor shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Contractor shall maintain said coverage throughout the term of the Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Contractor maintains said coverage. Any termination of worker's compensation insurance coverage by Contractor or any cancellation or non -renewal of worker's compensation insurance coverage for the Contractor shall be a material breach of this Agreement." The Contractor may maintain Occupational Medical and Disability Insurance in lieu of Workers' Compensation. In either event, the policy must be endorsed to include a wavier of subrogation in favor of the CITY OF LUBBOCK. The Contractor shall also provide to the CITY OF LUBBOCK proof of Employers' Liability in an amount no less than $500,000. 2. Commercial General Liability: General Aggregate of $200,000 3. Automobile Liability insurance, including: Combined Single Limit for bodily injury and property damage of $ 200,000 per occurrence Any Auto The City of Lubbock shall be named a primary additional insured with a waiver of subrogation in favor of the City on all coverage's. All copies of the Certificates of Insurance shall reference the project name or bid number for which the insurance is being supplied. ADDITIONAL POLICY ENDORSEMENTS The City shall be entitled, upon request, and without expense, to receive copies of the policies and all endorsements thereto and may make any reasonable request for deletion, revision, or modification of particular policy terms, conditions, limitations, or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any of such policies). Upon such request by the City, the Contractor shall exercise reasonable efforts to accomplish such changes in policy coverages, and shall pay the cost thereof. REQUIRED PROVISIONS The Contractor agrees that with respect to the above required insurance, all insurance contracts and certificate(s) of insurance will contain and state, in writing, on the certificate or its attachment, the following required provisions: a. Name the City of Lubbock and its officers, employees, and elected representatives as additional insureds, (as the interest of each insured may appear) as to all applicable coverage; b. Provide for 30 days notice to the City for cancellation, nonrenewal, or material change; c. Provide for notice to the City at the address shown below by registered mail; d. The Contractor agrees to waive subrogation against the City of Lubbock, its officers, employees, and elected representatives for injuries, including death, property damage, or any other loss to the extent same may be covered by the proceeds of insurance; e. Provide that all provisions of this Agreement concerning liability, duty, and standard of care together with the indemnification provision, shall be underwritten by contractual liability coverage sufficient to include such obligations within applicable policies. f. All copies of the Certificates of Insurance shall reference the project name or bid number for which the insurance is being supplied. NOTICES The Contractor shall notify the City in the event of any change in coverage and shall give such notices not less than 30 days prior the change, which notice must be accompanied by a replacement CERTIFICATE OF INSURANCE. All notices shall be given to the City at the following address: Marta Alvarez, Purchasing Manager City of Lubbock 1625 13'' Street, Room L04 Lubbock, Texas 79401 SECTION D. Approval, disapproval, or failure to act by the City regarding any insurance supplied by the Contractor shall not relieve the Contractor of full responsibility or liability for damages and accidents as set forth in the Agreement documents. Neither shall the bankruptcy, insolvency, or denial of liability by the insurance company exonerate the Contractor from liability.