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HomeMy WebLinkAboutEXPRESS CAFE 1-2000 . mf"'1,,:e~'("'" c-,. \,-./ '_'OJ; ~-. . . N-2000-1 64 ,. ,"2J !- ? 4)1~__ o.J.. AGREEMENT BETWEEN THE CITY OF SANTA ANA AND GEORGE AND ANCA CABAN, dba EXPRESS CAFE FOR PROVISION OF VENDING MACHINES 02--- II'-J-u) . /t!-/I THIS AGREEMENT, made and entered into this first day of August 2000, by and between the City of Santa Ana, a municipal corporation of the State of California, hereinafter referred to as "City," and George and Anca Caban dba: Express Cafe, hereinafter referred to as "Contractor." Recitals: 1. City desires to provide food and beverage machine vending services at The Depot, located at 1000 East Santa Ana Boulevard. 2. Contractor represents that it is qualified and able to provide such services to the City. WHEREFORE, in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all the terms and conditions hereof, the parties hereto do hereby agree as to the following: 1. CONTRACTOR'S SERVICES Contractor agrees to perform, at its own cost and expense, the foJJowing services for City: A. Provide the following food and beverage machines in the following location: Center First Floor Vending Space as Shown in Exhibit A 1 - Hot Beverage Machine 1 - Cold Canned Beverage Machine 1 - Glass Front Snack Machine B. Provide trained personnel to service said machines, each business day, as needed. C. Provide refunds, as needed. D. Submit written procedures for refund to City. E. Maintain said machines in operable condition at all times. F. Respond within four (4) working hours to problem caJJs and repair aJJ inoperable machines within twenty-four (24) hours of notice from City of inoperable condition. If repair of inoperable machine requires its removal for The Depot, Contractor shaJJ furnish a replacement machine within twenty-four hours. G. Provide an exterior decor trim for machines compatible with architectural style of The Depot, subject to approval by the City. Contractor wiJJ pay aJJ associated construction costs for the placement and decor trim of the vending machines. . . The City will provide electric and water service to the machines, except that the Contractor may install the electrical and water service upon approval by City, the cost of which will be repaid to Contractor from the monthly commission due City, upon submittal of proper invoice, subject to City accowlting procedures. H. Provide machines no older than five (5) years old. I. Maintain exterior of machine(s) in a clean and "like new" condition. II. FEES A. Contractor agrees to pay the City and City agrees to accept from Contractor, the following percentage of gross receipts, less the sales tax or a minimum of Two Hundred Fifty Dollars ($250.00) per month. Commission will be computed using the following formula: gross sales times appropriate percentage, minus sales tax, in an amount not less than thirteen percent (13%) net for each item below. Gross Tax Net to City I. Hot Beverages 20% -7% 13% Cup 2. Canned Sodas 20% -7% 13% 3. Combination 20% -7% 13% Snacks B. Contractor shall pay the City amounts due from adjusted gross receipts of said machines on or before the twentieth (20th) day of each calendar month, commissions due for the previous month. If gross receipts are less than Two Hundred Fifty Dollars ($250.00), the payment for that month will be Two Hundred Fifty Dollars ($250.00). Payment shall be made to: City of Santa Ana, Regional Transportation Center, 1000 E. Santa Ana Boulevard, Suite 300, Santa Ana, California 92701. Two copies of the complete data showing how commissions were calculated should be sent with the commission check. Late payments will be subject to a two percent (2%) per week penalty and service charge. III. RECORD KEEPING AND AUDIT A. Contractor shall establish and maintain separate accounting records specified for the vending machine activity at The Depot. Contractor's accounting system shall conform to generally accepted accounting principles and all records shall provide a breakdown of total costs and revenues associated with The Depot including maintenance and repair. 2 . . B. All Contractor records of revenues and repairs pertaining to vending machine activity at The Depot shall be made available at all times for audit by City upon request. IV. RELOCATION OF MACHINES Contractor agrees to relocate food and beverage machines on the ground floor to another location of the ground floor if requested by City, provided machines are adjacent to the passenger lobby. V. DURATION AND TERMINATION The term of this Agreement shall commence on August 1,2000 and shall end on July 31, 2002. This Agreement may be terminated by either party upon thirty (30) days written notice to the other, if monthly commission is not paid in full for two (2) consecutive months. Failure to perform to the following standards will be deemed cause for immediate termination of this Agreement by the CITY: A. Failure to respond to problem calls within four (4) working hours. B. Failure to provide machines less than five (5) years old. C. Failure to pay the commissions as scheduled. D. Breach of any of items "A" through "I" in Article I of this Agreement or of any other provision of this Agreement. VI. NOTICES Notices to parties shall, unless otherwise requested in writing, be sent by United States Mail, postage prepaid, and addressed as follows: To City at 1000 East Santa Ana Boulevard, Suite 300, Santa Ana, California 92701, Attention: Charles View. To Contractor at 1000 East Santa Ana Blvd, Suite 102, Santa Ana, California, 9270 I, Attention: George and Anca Caban. VII. SUBCONTRACTORS None of the services included in this Agreement shall be subcontracted without the prior written approval of City. Contractor shall be fully responsible for performance by any such subcontractor. 3 . . VIII. ASSIGNABILITY Contractor shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement, whether by assignment or novation, without the prior written consent of City; provided, however, that claims for money due Contractor from City under this Agreement may be assigned to a bank, tmst company or other financial institution, or to a tmstee in bankmptcy, without such approval. Notice of any such assignment or transfer shall be promptly furnished to City. IX. INSURANCE Contractor is solely responsible for any damage to, or theft of, the machine(s); the City shall have no responsibility or liability with regard to such machine(s). A copy of the insurance policy for the machine(s) is attached hereto as Exhibit B, and incorporated herein by reference. Contractor is also responsible to the City for any damage to City property caused by or arising out of the placement of the vending machines at The Depot location. Said policy shall contain a provision that no termination, cancellation or change of coverage of insured or additional insured shall be effective until thirty (30) days notice thereof has been given in writing to City. Contractor shall give City prompt and timely notice of any claims made or suit instituted. Contractor shall procure and maintain, at its own cost and expense, any additional kinds of insurance, which, in its own judgement, may be necessary for its proper protection. X. HOLD HARMLESS Contractor agrees to and shall indemnify, defend and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (l) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Contractor or its subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described herein; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Contractor further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 4 . . . . XI. EXCLUSIVITY AND AMENDMENT OF AGREEMENT This Agreement supersedes any and all other agreements either oral or in writing between the parties hereto with respect to employment of Contractor by City and contains all covenants and agreements between the parties with respect to such employment in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or other wise, have been made by any party, or anyone acting on behalf of any party, which are not embodies herein, and that neither agreement or Amendment hereto shall be effective unless executed in writing and signed by both City and Contractor. In this regard, the Community Development Agency of City is granted authority to act on behalf of City for amending this Agreement to permit Contractor to provide additional services at other Center locations, but may not alter any other provision of the Agreement as set forth hereinabove. XII. VALIDITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. XIII. LAWS GOVERNING THIS AGREEMENT This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 5 .. ~ " .. . . IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA ", /j J < ; . C . .: /'(!.'l\ '...) David N. Ream City Manager , , . /; "~L lil.. {',. c. Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney a,'c- /~ BY: Lisa E. Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: CONTRACTOR '.. . ./--;J IJI) '1/"(( ...... )",-c;)-... u., / ft.-., '<.---{~"- I..' ._L'. Cynthia 1. Nelson, Executive Director Community Development Agency ~ C~J- George and Anca Caban Tax ID #sK H.;J.lI~BJ7f)8r 4~i~ i l~cr)eD)i Ff 4 G6& '1 H:The Depot:Cafc Express:Vcnding Agrcement.2000 6