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HomeMy WebLinkAboutP-22-497 Valley Wide Vending Agreement.pdf P-22-497 Service Agreement This Agreement("Agreement") is made the 28th day of October,2022, for the operation and maintenance of certain vending equipment by Valley Wide Vending Inc., a California corporation("Vendor"), within four separate premises owned,operated, or leased by the County of Fresno.,a political subdivision of the State of California("Client"). 1. Client agrees,under the terms and conditions of this Agreement,to allow Vendor to exclusively sell the kinds and types of merchandise sold from the vending equipment upon four premises owned, operated or leased by Client,located at 3500 Never Forget Lane,Clovis, California 93612, 250 West Pontiac Way (formerly 200 W. Pontiac Way), Clovis, California 93612, 205 W. Pontiac Way, Clovis, California 93612 and 380 W.Ashlan Ave., Clovis, California 93612(collectively,"Premises"). Vendor agrees to install, operate, and maintain the existing Bistro-to-Go located at each Premise. 2. There shall be no compensation paid by Client to Vendor in connection with this Agreement. Both parties understand and agree that the revenue collected from the sale of Vendor's merchandise from Vendor's equipment shall be Vendor's sole revenue as a result of this Agreement. Client may make requests as to the items that are sold,which Vendor shall accommodate, if reasonably possible. 3. Additionally,by way of this Agreement,the following four separate and existing Bistro-to-Go Service Agreements,between Vendor and Client, are hereby terminated: 1. Service Agreement P-19-761,pertaining to Bistro-to-Go located at 205 W. Pontiac Way, Clovis, California 93612,which will expire on November 15,2022; 2. Service Agreement P-20-300,pertaining to Bistro-to-Go located at 380 W.Ashlan Ave., Clovis, CA 93612,which will expire on August 17,2023; 3. Service Agreement P-20-047,pertaining to Bistro-to-Go located at 3500 Never Forget Lane,Clovis, California 93612,which will expire on January 22,2023; 4. Service Agreement P-20-093,pertaining to Bistro-to-Go located at 250 West Pontiac Way(formerly 200 W. Pontiac Way), Clovis, California 93612,which will expire on February 26,2023. 4. Vendor shall be responsible for installing and maintaining vending equipment at each of the Premises, which reasonably meets Client's needs. Vendor shall remain the sole owner of all such equipment at each of the Premises. 5. Client shall provide all utilities, including necessary water and electrical lines at each of the Premises, and shall dedicate appropriate space for Vendor's equipment at each of the Premises to maximize access to the units,provided however, Client reserves the right in its sole discretion to specify the location,available space for, and number of vendor's equipment under this Agreement. 6. If service by Vendor at all Premises is satisfactory,the term of this Agreement shall be for a period of three (3)years, effective November 1,2022 and terminate on October 31,2025,unless earlier terminated under the terms and conditions of this Agreement.Upon termination,Vendor shall immediately remove any and all vending equipment from each of the Premises. If, at any time during this Agreement, Client determines, in Client's sole discretion,that Vendor's service is unsatisfactory at any one of the Premises, Client shall provide notice to Vendor in accordance with Section 11, and Vendor agrees to correct such unsatisfactory condition(s)within 30 days. If Vendor fails to return the level of service to satisfactory, in Client's sole discretion,within the prescribed thirty(30)day period, Client may terminate this Agreement with an additional thirty(30)days written notice,without penalty. 1 Upon such termination,Vendor shall immediately remove any and all vending equipment from each of the Premises. Any such equipment not removed within five(5) days shall be deemed to have been abandoned by Vendor. 7. Prices of merchandise sold at the Premises shall be determined by Vendor,with the understanding that all merchandise shall be wholesome, fresh,palatable and of high quality, and the prices charged shall be no higher than that of similar merchandise in other local places of business. All merchandise shall be removed upon or before the expiration date designated on its packaging and replaced by fresh merchandise. 8. Subject to Section 5,Vendor may make changes in the equipment configuration(i.e. additional, different, or less equipment) and any or all of the Premises,with prior written consent from the Client, in the best interest of both parties. Vendor reserves the right to remove all units if, in its sole discretion, it is determined that the vending cannot be properly maintained. If this occurs,this Agreement shall be deemed to have been terminated immediately upon the removal of the units. 9. HOLD HARMLESS: Vendor agrees to indemnify, save,hold harmless, and at Client's request, defend Client,its officers, agents,and employees from any and all costs and expenses(including attorney's fees and costs),damages, liabilities,claims, and losses occurring or resulting to Client in connection with the performance, or failure to perform,by Vendor,its officers,agents, or employees under this Agreement, and from any and all costs and expenses(including attorney's fees and costs), damages, liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who may be injured or damaged by the performance, or failure to perform, of Vendor, its officers, agents, or employees under this Agreement. The provisions of this Section 6 shall survive termination of this Agreement. 10. INSURANCE: Without limiting Client's right to obtain indemnification from Vendor or any third parties, Vendor, at its sole expense, shall maintain in full force and effect,the following insurance policies throughout the term of the Agreement: Commercial General Liability Commercial General Liability Insurance with limits of not less than Two Million Dollars($2,000,000)per occurrence and an annual aggregate of Four Million Dollars($4,000,000). This policy shall be issued on a per occurrence basis. Client may require specific coverages including completed operations,products liability, contractual liability,Explosion-Collapse-Underground,fire legal liability or any other liability insurance deemed necessary because of the nature of this contract. Automobile Liability Comprehensive Automobile Liability Insurance with limits of not less than One Million($1,000,000.00)per accident and for property damages. Coverage shall include any auto used in connection with this Agreement. Worker's Compensation Workers compensation insurance as required by the laws of the State of California with statutory limits. Additional Requirements Relating to Insurance Vendor shall obtain endorsements to the Commercial General Liability insurance naming the County of Fresno, its officers, agents, and employees, individually and collectively, as additional insured,but only insofar as the operations under this Agreement are concerned. Such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance,maintained by Client,its officers, agents and employees shall be excess only and not contributing with insurance provided under Vendor's policies herein. This insurance shall not be cancelled or changed without a minimum of thirty(30)days advance written notice given to Client. 2 Vendor hereby waives its right to recover from Client,its officers, agents, and employees any amounts paid by the policy of worker's compensation insurance required by this Agreement. Vendor is solely responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of subrogation, but Vendor's waiver of subrogation under this paragraph is effective whether or not Vendor obtains such an endorsement. Within Thirty(30) days from the date Vendor signs and executes this Agreement,Vendor shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies, as required herein,to the County of Fresno, at 205 W. Pontiac Way, Clovis, CA 93612,ATTN: Chris Woods, stating that such insurance coverage have been obtained and are in full force; that the County of Fresno, its officers, agents and employees will not be responsible for any premiums on the policies;that for such worker's compensation insurance the Vendor has waived its right to recover from Client, its officers,agents, and employees any amounts paid under the insurance policy and that waiver does not invalidate the insurance policy;that such Commercial General Liability insurance names the County of Fresno, its officers, agents and employees, individually and collectively, as additional insured,but only insofar as the operations under this Agreement are concerned;that such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance,maintained by Client, its officers,agents and employees, shall be excess only and not contributing with insurance provided under Vendor's policies herein; and that this insurance shall not be cancelled or changed without a minimum of thirty(30) days advance,written notice given to Client. In the event Vendor fails to keep in effect at all times insurance coverage as herein provided, Client may, in addition to other remedies it may have, suspend or terminate this Agreement upon the occurrence of such event. All policies shall be issued by admitted insurers licensed to do business in the State of California, and such insurance shall be purchased from companies possessing a current A.M. Best,Inc. rating of A FSC VII or better. 11. MODIFICATION: Any matters of this Agreement may be modified from time to time by the written consent of all the parties without, in any way, affecting the remainder. 12. NON-ASSIGNMENT: Neither party shall assign,transfer or subcontract this Agreement nor their rights or duties under this Agreement without the prior written consent of the other party. 13. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations assumed by Vendor under this Agreement, it is mutually understood and agreed that Vendor, including any and all of Vendor's officers, agents, and employees will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee,joint venturer,partner, or associate of the Client. Furthermore, Client shall have no right to control or supervise or direct the manner or method by which Vendor shall perform its work and function. However, Client shall retain the right to administer this Agreement so as to verify that Vendor is performing its obligations in accordance with the terms and conditions thereof. Vendor and Client shall comply with all applicable provisions of law and the rules and regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof. Because of its status as an independent contractor,Vendor shall have absolutely no right to employment rights and benefits available to Client employees. Vendor shall be solely liable and responsible for providing to, or on behalf of, its employees all legally required employee benefits. In addition, Vendor shall be solely responsible and save Client harmless from all matters relating to payment of Vendor's employees, including compliance with Social Security withholding and all other regulations governing such matters. It is acknowledged that during the term of this Agreement,Vendor may be providing services to others unrelated to Client or to this Agreement. 3 14. NOTICES: The persons and their addresses having authority to give and receive notices under this Agreement include the following: County of Fresno,Department of Social Services Valley Wide Vending Inc. C/O Department of Internal Services 2020 N.Winery Ave, 333 W.Pontiac Way, Clovis,CA 93612 Clovis,CA 93612-5613 Attn:Will Anderson Attn: ISD Purchasing wanderson@valleywidevending.com PurchasingRequisitions@FresnoCountyCA.gov Each notice between the Client and Vendor provided for or permitted under this Agreement must be in writing, state that it is a notice provided under this Agreement,and be delivered either by personal service,by first-class United States mail,by an overnight commercial courier service,by telephonic facsimile transmission,or by Portable Document Format(PDF)document attached to an email.A notice delivered by personal service is effective upon service to the recipient.A notice delivered by first-class United States mail is effective three County business days after deposit in the United States mail,postage prepaid,addressed to the recipient.A notice delivered by an overnight commercial courier service is effective one County business day after deposit with the overnight commercial courier service,delivery fees prepaid,with delivery instructions given for next day delivery,addressed to the recipient.A notice delivered by telephonic facsimile transmission or by PDF document attached to an email is effective when transmission to the recipient is completed(but,if such transmission is completed outside of County business hours,then such delivery is deemed to be effective at the next beginning of a County business day),provided that the sender maintains a machine record of the completed transmission. 15. COMPLIANCE WITH LAWS: Vendor agrees to comply with all applicable federal, state and local laws, regulations and ordinances governing the performance of its obligations under this Agreement, including its use permitted herein. 16. VENDOR RESPONSIBILITY TO PAY PROPERTY TAXES—POSSESSORY INTEREST: The Parties acknowledge that California Revenue&Taxation Code § 107.6 provides,in relevant part,the following: "(a) The state or any local public entity of government,when entering into a written contract with a private party whereby a possessory interest subject to property taxation may be created, shall include, or cause to be included, in that contract, a statement that the property interest may be subject to property taxation if created, and that the parry in whom the possessory interest is vested may be subject to the payment of property taxes levied on the interest."Accordingly,the Parties agree that Client is a"local public entity of government,"and that Vendor is a"private party,"respectively,within the meaning of California Revenue &Taxation Code § 107.6(a), and that this Agreement(to the extent that it may be necessary under California Revenue&Taxation Code § 107.6(a)for the Parties to acknowledge and agree herein with respect to this Agreement) is a"contract,"which creates a possessory interest that may be subject to property taxation pursuant to California Revenue&Taxation Code § 107.6(a). In this regard,Vendor acknowledges and agrees that(i)Vendor has actual notice of the existence of such possessory interest; (ii) the property interest created by this Agreement may be subject to property taxation if created, and(iii) Vendor(i.e.,the parry in whom the possessory interest is vested) shall, at its sole cost and expense,be subject to the payment of property taxes levied on such interest. 17. GOVERNING LAW: Venue for any action arising out of or related to this Agreement shall only be in Fresno County, California. The rights and obligations of the parties and all interpretation and performance of this Agreement shall be governed in all respects by the laws of the State of California. 4 18. ENTIRE AGREEMENT: This Agreement contains the entire agreement between parties,and shall be binding upon the parties thereto, respective successors,executors,administrators and assigns. This Agreement Is Not Binding Until Approved by Vendor I Hereby Represent That I Am Authorized To Enter I Hereby Represent That I Am Authorized To Into This Agreement On Behalf Of Client. Enter Into This Agreement On Behalf Of Client. I Accept All Terms and Conditions of This I Accept All Terms and Conditions of This Agreement. Agreement. Representative Mike Winzler Print Name Gary E. Cornuelle Title: G,e- �owu _ Title: Purchasing Manager Digitally signed by Gary Cornuelle Signature 1. Signature Gary Cornuelle Date 2,22.10.2.113855-07'00• Vendor:Valley Wide Vending, Inc. Client: COUNTY OF FRESNO Date 1 01 zy 1 zo 22 Date 10/28/2022 5