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HomeMy WebLinkAboutRFP - P701 CONCESSIONS EPIC VENDING MACHINESCity of Fort Collins Admini ative Services Purchasing Division REQUEST FOR PROPOSAL CITY OF FORT COLLINS CONCESSION — EPIC VENDING MACHINES AND VIDEO GAMES PROPOSAL NO. P-701 The City of Fort Collins is requesting proposals from firms for Concession — EPIC Vending Machines and Video Games. Written proposals, five U5 _ will be received at the City of Fort Collins' Purchasing Division, 256 West Mountain Avenue, Fort Collins, Colorado 80521. Proposals will be received before 2:30 P.M. (our clock), November 19, 1998. Proposal No. P-701. Questions concerning the scope of the project should be directed to the Project Manager, Mike McDonnell (970) 221-6337. Questions regarding proposals submittal or process should be directed to Jim Hume, Buyer (970) 221-6776. Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall have a financial interest in the sale to the City of any real or personal property, equipment, material, supplies or services where such officer or employee exercises directly or indirectly any decision - making authority concerning such sale or any supervisory authority over the services to be rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift, gratuity favor, entertainment, kickback or any items of monetary value from any person who has or is seeking to do business with the City of Fort Collins is prohibited. Collusive or sham proposals: Any proposal deemed to be collusive or a sham proposal will be rejected and reported to authorities as such. Your authorized signature of this proposal assures that such proposal is genuine and is not a collusive or sham proposal. The City of Fort Collins reserves the right to reject any and all proposals and to waive any irregularities or informalities. Proposers not responding to the services requested in this proposal shall be removed from our automated listing for: 961 /15 — Vending Services Sincerely, �3 C6-- e 'jector es B. O'Neill II, CPPO of Purchasing &Risk Management 256 W. Mountain Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6775 • FAX (970) 221-6707 SAMPLE EPIC VENDING &VIDEO GAMES CONCESSION AGREEMENT This Concession Agreement, hereinafter called the "Agreement", made and entered into as of the first day of January, 1999, by and between The City of Fort Collins, Colorado, a municipal corporation, hereinafter called "City", and E a corporation, hereinafter called "Concessionaire." WITNESSETH: ARTICLE 1 Concession Space Definition of Concession Space For the purposes of this Agreement, the "Concession Space" shall mean the area located on the north side of the lobby by the entry doors, an area to the left of the staircase and an area east of the cashiers desk. The Concession Space is located within EPIC, a building located within Edora Park at 1801 Riverside, Fort Collins, CO. Use for Vending Machines The Concessionaire shall have the use of the designated portion of the Concession Space for the purpose of offering food, beverages, video games and related services through vending machines as defined in Article 2 hereof. ARTICLE 2 Concessionaire's Use of EPIC and the Concession Space In General The City grants to Concessionaire the following rights and privileges: 2.1.1 Subject to other limitations expressed in this Agreement, the right to exclusive use of the Concession Space and the right to use in common with others the public areas of EPIC and public roads located in Edora Park, in conjunction with providing concession services (and for no other purpose) in such spaces and manner as may be prescribed by the City. 2.1.2 The right to supply and, and if necessary, to conduct emergency repairs as required upon its machines in the Concession Space. Restriction on Routine Machine Maintenance and Preparation Except as otherwise provided at Section 2.1.2, no preparation of any nature of Concessionaire's machines, including but not limited to: washing, cleaning, minor repairs or maintenance for operation shall be performed at EPIC or surrounding Edora Park. ARTICLE 3 Rights of Ingress and Egress In General 4 Concessionaire shall have the right of ingress and egress to and from the Concession Space and EPIC for Concessionaire's employees, agents and invitees to the extent reasonably necessary in connection with the conduct of Concessionaire's business under this Agreement. Areas designated as restricted areas by the City shall be excluded. Closures The City may, at any time, temporarily or permanently, close or consent to or request the closing of any roadway or any other way at, in or near EPIC or Edora Park, presently or hereafter used as such, so long a reasonable and safe means of ingress and egress as provided above remains available to Concessionaire. ARTICLE 4 Undertakings of Concessionaire Vending Service Concessionaire agrees to: 4.1.1 Provide, within seven (7) days of the execution of this Agreement, machines asset forth in the Scope of Work, consisting of M pages, and incorporated herein by this reference. 4.1.2 Concessionaire shall display the name of the firm on each machine. Notices of refund procedure must be prominently displayed on each machine. Services provided by the Concessionaire shall consist of the resupply of all food, beverage and merchandise and refund envelopes daily in order to adequately serve the demand for such items at the EPIC. 4.1.4 Concessionaire acknowledges the desire and obligation of the City to provide the public high quality food, beverages and merchandise and a high level of public service. Therefore, Concessionaire agrees to offer for sale from the Concession Space only high quality food, beverages, video games, and merchandise at prices not to exceed the prices customarily charged for similar items in Fort Collins area vending operations. If, in the opinion of the City, the selection of items offered is inadequate or not of high quality, if any of the prices are excessive or if any of the items are found to be objectionable for display and/or sale in a public facility, the City Representative shall meet and confer with Concessionaire regarding such matters. However, Concessionaire acknowledges that the City's determination as to the same shall be conclusive. Failure of Concessionaire to correct, rectify or modify its prices or quality within five (5) days of being advised in writing to do so shall be cause for default. 4.1.5 Concessionaire may not add, remove or otherwise vary its services from the machines listed in Section 4.1.1 without the prior written authorization of the City Representative. Hours of Operation The Concessionaire will be required to provide services daily in the Concession Space. At a minimum, the services shall be available for use from 5:30 a.m. to 1:00 a.m. Concessionaire Personnel K Concessionaire shall control the conduct and demeanor of its agents and employees. Upon objection from the City concerning conduct or demeanor of any such person, the Concessionaire shall immediately take all lawful steps to remove the cause of the objection. If the City so requests, Concessionaire agrees to supply and require its employees to wear suitable attire and to wear or carry badges or other suitable means of identification, the form for which shall be subject to prior and continuing approval of the City. Statements. Recordkeeping and Audits Concessionaire agrees that it will prepare and deliver to the City, on or before the twentieth (20th) day of each calendar month during the term of this Agreement, a statement which shall be subscribed and certified to as correct by Concessionaire, or its authorized representatives, showing a duly certified monthly operating statement on forms prescribed, or approved, by the City, showing all gross revenues, as defined in Section 6.2 hereof, from Concessionaire's vending and video game operations at EPIC for the previous month. The certification shall be by an official of the Concessionaire who is responsible for the financial records of the Concessionaire at EPIC. Such statement must report gross revenues on a per machine basis. 4.4.1 Within ninety (90) days following the end of each twelve (12) month period of operation and within the same number of days following termination or cancellation of this Agreement, the Concessionaire, at its sole expense, shall submit to the City an audited statement of its financial performance at EPIC including an accounting of all revenue and expenses. 4.4.2 Concessionaire shall keep books and records in accordance with good accounting practice and such other records as are satisfactory to the City. All books and records of Concessionaire, as aforesaid, shall be open for inspection by authorized representatives of the City at all reasonable times during business hours. If such an inspection is made by said authorized representatives and it is determined as a result thereof that Concessionaire has underpaid the City by more than five percent (5%) of the amount to which it is entitled under Article 6 hereof, Concessionaire shall reimburse the City for their costs of making such inspection of said books and records, and this obligation of reimbursement shall be in addition to all other obligations of Concessionaire hereunder. Termination of this Agreement for fraud shall not serve to nullify such obligation. With the payment of monthly fees and rentals each month as provided above, Concessionaire shall submit to the City a detailed statement showing gross revenue from the operation of the concession for the preceding calendar month. These reports shall detail sales on a per machine basis and in such reasonable detail and breakdown as may be required by the City. 4.4.3 The Concessionaire hereby grants to the City the right to audit Concessionaire's books and records for its operation at EPIC and agrees to make available to the City, or its authorized representative, at any time, Monday through Friday inclusive, between the hours of 9:00 a.m. and 5:00 p.m., at the offices of the City or Concessionaire's home office, at the City's election, all records, records, books and pertinent information as may be required for audit purposes. 4.4.4 The Concessionaire shall maintain special accounting equipment adequate for providing records of gross revenue as specified in this Section. Physical Interference Concessionaire shall not do, nor permit to be done, anything which may interfere with the 3 effectiveness or accessibility of the drainage system, sewerage system, fire protection system, sprinkler system, alarm system and fire hydrants and hoses, if any, installed or located in EPIC. Licensing and Taxes Contractor must comply with all health regulations of the Federal Government, the State of Colorado, the City of Fort Collins, Larimer County and any other inspection and control measures the City of Fort Collins may require. Concessionaire agrees to pay all lawful taxes, assessments and payments -in -lieu which, during the term of this Agreement or any extension hereof, may become a lien of which may be levied or charged by the State, County, City of Fort Collins or other tax -levying body upon or with respect to the Concession Space, upon any taxable interest acquired by the Concessionaire in this Agreement, or any taxable possessory right which Concessionaire may have in or to the Concession Space or facilities' or the improvements thereon, by reason of Concessionaire's occupancy thereof, or otherwise, as well as all taxes on taxable property, real or personal, owned by Concessionaire or taxes on Concessionaire's operations or activities in or about the Concession Space. However, except as otherwise permitted by this Agreement, no charges, fees or taxes of any nature shall be imposed by the City solely upon Concessionaire for exercising any right or privilege granted by the City to Concessionaire in this Agreement with respect to use of EPIC. Nothing herein shall prevent Concessionaire from protesting, through due process, any taxes levied. ARTICLE 5 Term Period The term of this Agreement shall commence on January 1, 1999 and, unless terminated sooner, expire on December 31, 1999. In addition, at the option of the City, the Agreement may be extended for additional one (1) year terms, not to exceed an additional four (4) such terms. Changes in the Concession Agreement shall be negotiated by and agreed to by both parties. Holding Over In the event that the Concessionaire, or its successor in interest, if any, shall remain beyond the term set forth herein, although no right to remain is given by this Article, it is the intention of the parties and it is hereby agreed that a right of use from month -to -month shall then arise subject to all provisions and conditions of this Agreement in connection with such right, except that the City shall have the sole right to determine reasonable fees for any holdover period. ARTICLE 6 Fee For Conducting Business 6.1 Concession Fee For the privilege of conducting the concession operations hereunder, the Concessionaire shall pay to the City an amount equal to ■ percent ('%) of its gross revenues derived from its vending operations at EPIC and an amount equal to percent (M%) of its gross revenues derived from its video games. Definition. Gross Revenues Gross revenues shall be defined as the proceeds from all vending operations, whether such 4 proceeds are actually collected through the machines or by other arrangement for payment for such items. For each machine, gross revenues shall be computed by adding the beginning inventory and any additions of inventory within the machine and then subtracting the ended inventory, at vended price less sales tax. Video game gross sales shall be computed by subtracting the beginning game counter reading from the ending reading and multiplying the result by the game price. Concessionaire shall not be entitled to any set-off, rebate or refund by reason of non - collection. Time of Payment The Concessionaire shall pay the Concession Fee to the City, on a monthly basis but, in no event, later than thirty (30) days after the close of the preceding month. Interest on Past Due Amounts Concessionaire shall pay interest on all past due amounts at the rate of eighteen percent (18%) per annum from the due date, until paid. Method of Payment Payment for all fees under Article 6 shall be by check or money order payable to the order of "City of Fort Collins" and shall be mailed or personally delivered to the Program Administrator at the address specified in Section 1.1. ARTICLE 7 Installations and Services to be Provided by the City EPIC In the operation of the Concessionaire's activities hereunder, the City shall provide within EPIC: 1. Four (4) electrical outlets in the Concession space; 2. Lighting fixtures for general area illumination; 3. Heat and air conditioning; and 4. Unmetered electricity in the Concession Space. ARTICLE 8 Acceptance and Trade Fixtures 8.1 Acceptance On the date of commencement of this Agreement, Concessionaire shall acknowledge that it accepts the Concession Space "as is." 8.2 Installation of Equipment and Trade Fixtures No equipment or trade fixtures, including additional equipment and other personal property used by Concessionaire in its business, whether or not attached to EPIC or any Improvements thereon, shall be installed without the prior written approval of the City. 8.3 Removal of Equipment. Trade Fixtures Concessionaire shall have the right at any time during the term of this Agreement or upon termination and within thirty (30) days thereafter, to remove all trade fixtures and equipment subject 5 to any valid lien the City may have thereon for unpaid rents. Any property not so removed by Concessionaire upon termination shall become a part of the realty on which it is located and title thereto shall vest in the City. Applicable Law All trade fixtures or equipment installed by Concessionaire pursuant to this Section shall be subject to and conform in all respects to the applicable statutes, ordinances, building codes, rules and regulations of all governmental agencies which have jurisdiction over such matters. ARTICLE 9 Damage to EPIC by Concessionaire 9.1 Concessionaire shall be liable for and shall repair or cause to be repaired within fifteen (15) days after occurrence any damage to EPIC, including the Concession Space, caused by Concessionaire, its board members, officers, agents, employees or anyone acting under its direction and control, ordinary wear and tear excepted. If the damage for which Concessionaire is liable is to the Concession Space, Concessionaire shall continue to be liable for all rent owed for the Concession Space, even if it has been rendered untenantable. ARTICLE 10 Total or Partial Destruction Concession Space Rendered Untenantable In case, during the term of this Agreement, the Concession Space or any part thereof shall be destroyed or shall be so damaged by fire or other casualty so as to be rendered untenantable or unusable, then, in such event, at the option of the City or Concessionaire, the term hereby created shall cease; and this Agreement shall become null and void from the date of such damage or destruction; and Concessionaire shall immediately surrender the Concession Space and its interest therein to the City; provided, however, that the City or Concessionaire shall exercise such option to so terminate this Agreement by notice, in writing, delivered to the other party within thirty (30) days after such damage or destruction. In the event neither the City nor Concessionaire shall elect to terminate this Agreement, this Agreement shall continue in full force and effect; and the City shall repair the Concession Space, equipment, signs and trade fixtures or other personal property installed by Concessionaire, with all reasonable speed, placing the same in as good a condition as it was at the time of the damage or destruction and for that purpose may use the proceeds of any insurance payable on account of such damages. In any event, Concessionaire shall remove all rubbish, debris, merchandise, furniture, furnishings, equipment and other items of its personal property within five (5) days after request being made by the City. Concession Space Tenantable If the Concession Space shall be only injured by fire or the elements to such extent so as not to render the same untenantable and unfit for use and occupancy, the City shall repair the same with all reasonable speed. Concessionaire's rent shall abate proportionately for any temporarily untenantable portion. Exception for Damage Caused by Concessionaire In the event of damage caused by Concessionaire as addressed in Article 9 of this Agreement, the provisions of Article 9 shall govern in any conflict between Article 9 and Article 10. M No Claim by Concessionaire No compensation or claim shall be made by or allowed to Concessionaire by reason of any inconvenience or annoyance arising from the necessity of repairing any portion of EPIC or Edora Park, however the necessity may occur. ARTICLE 11 Indemnification and Insurance City's Liability The City shall not in any way be liable for any cost, liability, damage or injury, including cost of suit and reasonable expenses of legal services, claimed or recovered by any person whomsoever or whatsoever as a result of any operations, works, acts or omissions performed on Edora Park by Concessionaire, its agents, employees or contractors unless caused or contributed to by the negligence or willful misconduct of the City, its employees, agents or contractors. Indemnification Concessionaire covenants that it will indemnify and hold the City harmless from all claims, demands, judgments, costs and expenses, including attorneys' fees, claimed or recovered (whether justly, unjustly, falsely, fraudulently or frivolously) by any person by reason of injury to or death of any individual person or persons, or by reason of damage to, destruction or loss of use of any property, including City's personnel and City's property, directly or indirectly arising out of, resulting from or occurring in connection with any operations, works, acts or omissions of Concessionaire. As used herein the term "Concessionaire" and "City" includes the respective directors, officers, agents, employees and contractors of Concessionaire and City. Patent Representation Concessionaire represents that it is the owner of or is fully authorized to use any and all services, processes, machines, articles, makes, names or slogans used by it in its operation or in anyway connected with this Agreement. Concessionaire Insurance Without limiting any of the Concessionaire's obligations hereunder, the Concessionaire shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement with limits specified in the $1,000,000. Precautions Against Injury The Concessionaire shall take all necessary precautions in performing the operations hereunder to prevent injury to persons and property. Failure to Insure Failure of Concessionaire to take out and/or maintain, or the taking out and/or maintenance of any required insurance shall not relieve Concessionaire from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with the obligations on Concessionaire concerning indemnification. 7 ARTICLE 12 No Interest in Real Property Concessionaire agrees that this Agreement constitutes merely a right to use and occupy the Concession Space for a limited purpose and does not create or convey to Concessionaire any interest in real property. ARTICLE 13 Assignment The Concessionaire shall not assign this Agreement without prior written consent of the City nor permit any transfer by operation of law of Concessionaire's interest created hereby, other than by merger or consolidation. ARTICLE 14 Right of City to Enter, Inspect and Make Repairs In General City and their authorized employees, agents, contractors and other representatives shall have the right (at such times as may be reasonable under the circumstances and with as little interruption to Concessionaire's operation as is reasonably practicable) to enter upon any part of the Concession Space for the following purposes: 14.1.1 To inspect such premises at reasonable intervals during regular business hours (or at any time in case of emergency) to determine whether Concessionaire has complied with and is complying with the terms and conditions of this Agreement with respect to such premises; To perform or cause to be performed maintenance and make repairs and replacements. To make structural additions and alterations. Obstruction by City All entries made for the purposes enumerated above shall, except as otherwise provided in Article 10, Total or Partial Destruction, be without abatement of rent or damage for inconvenience. However, in the event any entry by City in the Concession Space for the purpose of making repairs or alterations as provided for in Section 14.1.2 above (other than repairs necessitated as a result of damage by Concessionaire under Article 9), constitutes a substantial obstruction to and impairment of Concessionaire's right of use of such Concession Space, then Concessionaire shall be entitled to a fair and just abatement of the rent for such premises during the period required by City to make such repairs. Obstruction by Concessionaire In the event that any personal property of Concessionaire shall obstruct the access of the City, their officers, employees, agent or contractors, or a utility company furnishing utility service to any of the existing utility, mechanical, electrical and other systems, and thus shall interfere with the inspection, maintenance or repair of any such system, Concessionaire shall move such property, as directed by the City or said utility company, in order that access may be had to the system or part thereof for inspection, maintenance or repair. If Concessionaire shall fail to so move such property after direction from the City or said utility company to do so, the City or the utility company may move it without liability for damage sustained in moving. 1.1 No Eviction or Abatement Exercise of any or all of the foregoing rights in this Article, by the City, or others under right of the City, shall not be, nor be construed to be, an eviction of Concessionaire, nor be made the grounds for any abatement of rental nor any claim or demand for damages against the City, consequential or otherwise, except claims for damages to person or property caused solely by the negligence of the City. ARTICLE 15 Default, Rights of Termination 15.1 Default by Concessionaire Time of payment and performance is of the essence of this Agreement. Concessionaire shall be in default under this Agreement upon the occurrence of any one or more of the following events: 15.1.1 Concessionaire's failure to pay any fee or other charge when due and within ten (10) working days after notice from City of such nonpayment. 15.1.2 Concessionaire's failure to provide any statement when due, and within ten (10) working days after notice from City of such failure. 15.1.3 Concessionaire's failure to maintain the insurance required above. 15.1.4 Concessionaire's assignment of any right hereunder in violation of Article 13. 15.1.5 Concessionaire's failure to perform, keep or observe any of the terms, covenants or conditions within seven (7) days (or such longer time as may be necessary to cure provided that cure is commenced within the initial seven [7] days) after notice from the City specifying the nature of the deficiency with reasonable particularity and the corrective action that is to be taken within such period to cure the deficiency. 15.1.6 The filing by Concessionaire of a voluntary petition in bankruptcy, the filing of an involuntary petition in bankruptcy against Concessionaire, the taking of possession of all or substantially all of Concessionaire's assets pursuant to proceedings brought under the provisions of any federal reorganization act or the appointment of a receiver of all or substantially all of Concessionaire's assets and the failure of Concessionaire to secure the return of such assets and/or the dismissal of such proceeding within ninety (90) days after the filing. 15.1.7 The taking of possession of the Concession Space, or any portion thereof, or all or substantially all of the assets of Concessionaire by virtue of any attachment, execution or levy of any judicial process in any action instituted against Concessionaire in any court of competent jurisdiction and the failure of Concessionaire to secure the release of such attachment, execution or levy within sixty (60) days from the date of the taking of such possession. 15.1.8 The assignment by Concessionaire of its assets for the benefit of creditors. 15.2 City's Remedies on Default 15.2.1 In the event of a default by Concessionaire, the City may terminate this Agreement by 9 notice in writing to Concessionaire. In the alternative, the City may elect to keep the Agreement in force and work with Concessionaire to cure the default. If this Agreement is terminated, Concessionaire's liability to City for damages and rent shall survive the termination, and the City may re-enter, take possession of the Concession Space and remove any persons or property by legal action or by self-help with the use of reasonable force and without liability for damages. 15.2.2 Following re-entry or abandonment, City may make arrangements for use of the Concession Space by others and in that connection may make any suitable alterations or refurbish the Concession Space, but City shall not be required to make such arrangement for any use or purpose. Rights and Remedies Reserved It is understood and agreed that any rights and remedies reserved pursuant to this Article are in addition to any other rights or remedies the City may have pursuant to this Agreement or to applicable law to seek judicial enforcement, damages or any other lawful remedy. ARTICLE 16 Miscellaneous Provisions Cumulative Rights All remedies provided in this Agreement shall be deemed cumulative and additional and not in lieu of, or exclusive of, each other or of any other remedy available to the City, or Concessionaire, at law or in equity, and the exercise of any remedy, or the existence herein of other remedies or indemnities shall not prevent the exercise of any other remedy. Non -Waiver The failure by either party to exercise any right or rights accruing to it by virtue of the breach of any covenant, condition or agreement herein by the other party shall not operate as a waiver of the exercise of such right or rights in the event of any subsequent breach by such other party, nor shall such other party be relieved thereby from its obligations under the terms hereof. Non -liability of Individuals No director, officer, agent or employee of either party hereto shall be charged personally or held contractually liable by or to the other party under any term or provision of this Agreement or of any supplement, modification or amendment to this Agreement because of any breach thereof, or because of its or their execution or attempted execution of the same. Limitations on EPIC Use Concessionaire shall not use, or permit the use of EPIC, or any part thereof, for any purpose or use other than those authorized by this Agreement. Governing Law This Agreement shall be performable and enforceable in Larimer County, Colorado, and shall be construed in accordance with the laws of the State of Colorado. Benefits This Agreement is made for the sole and exclusive benefit of the City and Concessionaire, their 10 PROPOSAL NO. P- 701 CONCESSION: EPIC VENDING MACHINES & VIDEO GAMES The City of Fort Collins is soliciting proposals for vending and video game machines for the EPIC, 1801 Riverside, Ft. Collins, Co. THE CITY WILL ACCEPT BIDS ON JUST THE VENDING MACHINES OR VIDEO GAMES, OR A COMBINATION OF BOTH. Section 1.0: Proposal Requirements 1.1 Proposal Submittal The City of Fort Collins shall not reimburse any firm for costs incurred in the preparation and presentation of their proposal. Firms submitting proposals shall submit five (5) copies of the proposal with the following information: a. Company history and experience in providing vending machine and/or video game services, as described in the scope of work. Describe the company business structure (sole -proprietorship, partnership, or corporation) and indicate whether the concession would be operated directly by the company or by a sub -contractor. b. The names and brief resumes of the company representatives responsible for providing further information and for coordinating vending operations with the City. C. References from three or more organizations which currently use your company for similar products and services. For each reference, give the length of service and describe the services and products provided. d. A written description of each vending machine and video game proposed and a list of proposed products to be offered for sale. e. Proposed Concession Fee and pricing for products and games. The proposal must be signed by a duly authorized representative of the firm submitting the proposal. The signature shall include the title of the individual signing the proposal. Section 2.0: Scope of Work 2.1 Vending Machine & Video Game Requirements a) One (1) Snack Machine - The machine should have enough selections to handle a variety of snack items. For example: corn chips, nacho cheese chips, cracker jacks, cheese/peanut butter crackers, etc. b) Two (2) Soda Machines — Prefer one with Pepsi products and one with Coca-Cola products. 2 successors and assigns, and is not made for the benefit of any third party Construction In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. Successors and Assigns All covenants, stipulations and agreements in this Agreement shall extend to and bind each parry hereto, its legal representatives, successors and assigns. Headinas The titles of the several articles of this Agreement are inserted herein for convenience only, and are not intended and shall not be construed to affect in any manner the terms and provisions hereof, or the interpretation or construction thereof. Attorney Fees In the event any legal action or proceeding is brought to collect sums due or to become due hereunder or any portion thereof or to enforce compliance with this Agreement for failure to observe any of the covenants of this Agreement, the losing party agrees to pay to the prevailing party such sums as the Court may judge reasonable attorneys' fees and costs to be allowed in such action or proceeding and in any appeal therefrom. Entire Aareement This Agreement which is the entire agreement between the parties hereto, supersedes all prior agreements, understandings, warranties or promises between the parties hereto, whether written, spoken, or implied from the conduct of the parties hereto. Severabilitv In the event any covenant, condition or provision of this Agreement is held to be invalid by final judgment of any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall not in any way affect any of the other covenants, conditions or provisions of this Agreement, provided that the invalidity of any such covenant, condition or provision does not materially prejudice either City or Concessionaire in their or its respective rights and obligations under the valid covenants, conditions or provisions of this Agreement. Surrender of Possession Upon the expiration of this Agreement or its earlier termination as herein provided, Concessionaire shall remove all of its property from Edora Park and surrender entire possession of its rights at Edora Park to City and its improvements in accordance with Section 9 above, unless this Agreement is renewed or replaced. City Representative The City designates Mike McDonnell, Program Administrator, as its representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to this Agreement. All requests for contract interpretations, amendments and other clarifications or instructions shall be directed to the City Representative. 11 Notices Notices permitted or required to be given under this Agreement shall be in writing and shall be deemed given upon personal delivery or upon deposit in the United States Mail, certified, return receipt requested, postage fully prepaid, addressed as follows or to such other address as the parties may designate from time to time by notice given in accordance with this Section: If City: If Concessionaire: City of Fort Collins Purchasing PO Box 580 Fort Collins, CO 80522 Paragraph Headings Paragraph headings contained herein are for convenience and reference, and are not intended to define or limit the scope of any provisions of this Agreement. Schedules and Exhibits Whenever reference is made in this Agreement to a Schedule or an Exhibit, unless otherwise specifically expressed to the contrary, such Schedule or Exhibit shall be deemed attached to and by the reference incorporated in this Agreement. Force Majeure Neither the City nor the Concessionaire shall be deemed in violation of this Agreement if prevented from performing any of its obligations hereunder by reason of strikes, boycotts, labor disputes, embargoes, shortage of energy or materials, acts of God, act of public enemy, acts of superior governmental authority, weather conditions, rights, rebellion, sabotage or any other circumstances for which it is not responsible or that are not within its control. No Limitation on General Powers Nothing in this Agreement shall be construed as in any way limiting the general powers of the City to fully exercise their governmental functions or their obligations under any bond covenants or federal, state or local laws, rules or regulations. No Relationship Nothing contained herein shall be deemed or construed by the parties hereto nor by any third party as creating the relationship of principal and agent or a partnership or a joint venture between the parties hereto. Survival To the extent necessary to carry out all of the terms and provisions hereof, the said terms, obligations and rights set forth herein required shall survive and shall not be affected by the expiration or termination of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. End of Sample Agreement 12 c) One (1) Juice Machine - 6 selections. d) One (1) Candy Machine - The machine should have enough selections to handle a variety of candy items. For example: M&M's, plain and peanut, Hershey Candy Bars, licorice, peanut rolls, Skittles, etc. No gum products are to be sold in these machines. e) One (1) Dollar Bill Changer (separate unit). Shall be in addition to any other machines that have this capacity. f) Two (2) Video Games - Should be most popular machines and as games become obsolete, contractor will exchange for most current/popular games. Video games must be acceptable to the City Representative. 2.2 General Conditions & Specifications The following conditions and specifications are presented for general guidance in preparing a written proposal. Some of these terms will be included in the Concession Agreement (Exhibit A) in an attachment (Scope of Work), and others are already part of the Agreement. Proposers should carefully review the sample Agreement while preparing their response. a) The City of Fort Collins will in no way be responsible for the vending equipment including losses from theft, property damage or vandalism. All losses incurred by the vendor due to the above shall not be considered in determining gross revenues. b) Contractor must have a local number or toll free number for repair calls. c) Contractor shall agree to service machines on a daily basis so as to ensure that such machines are in good working order d) Contractor agrees to post notice of refund procedures. Refund procedure must be acceptable to City Representative. e) Storage is not available at any EPIC. Contractor must provide for his/her own storage. f) All machines shall be installed by the Contractor at his/her own expense, and shall be maintained and serviced by the Contractor at his/her own expense. g) No additional machines may be installed, machines removed, or locations changed without the prior written authorization of the City Representative. This provision is intended to provide an orderly and regulated method for the City to administer this contract and should not be construed as restricting the contractor in providing reasonable readjustments in machine placement or product offering to provide maximum service in keeping with good business practice. h) Contractor shall furnish the City Representative with a written description of each machine or video game prior to installation of such equipment. 3 i) For the first six calendar months of this contract, no changes in pricing of any item will be allowed. Any changes after that period in brands, weight or price must be approved in writing by the City Representative before it can be in effect. j) Detailed sales reports per machine must accompany each monthly statement and are subject to audit by the City of Fort Collins. k) Gross sales is defined as total vended sales excluding sales tax. It is computed by adding the beginning inventory to additions of merchandise to the vending machine and subtracting the ending inventory, at vended price less sales tax. Video game gross sales shall be computed by subtracting the beginning game counter reading from the ending reading and multiplying the result by the game price. Cash receipts cannot be considered as gross sales. Section 3.0 Concession Fee & Product Pricing Each vending machine and video game shall be proposed separately and shall include a percentage (%) of gross sales, excluding sales tax, to be paid to the City of Fort Collins. This percentage shall be submitted to two decimal places L._%). Proposals must include pricing for each video game and for each vending product proposed. Products must be identified by brand name and weight or size. 4 Section 4.0: Evaluation 4.1 Evaluation and Assessment of Proposal An evaluation committee shall rank the interested firms based on their written proposals using the ranking system set forth below. Firms shall be evaluated on the following criteria. The rating scale shall be from 1 to 5, with 1 being a poor rating, 3 an average rating, and 5 an outstanding rating. Weighting factors for the criteria are listed adjacent to the qualification. Weighting Qualification Standard Factor 2.0 Scope of Proposal Does the proposal show an understanding of EPIC vending and video game requirements? 2.0 Experience Are the company and company representatives experienced in vending/video game operations? 1.0 Availability Can the company provide vending and video machines and services in a timely manner? 2.0 Motivation Is the firm interested and will the firm provide good customer service? 3.0 Cost Do the proposed cost compare favorably with other firms in the vending/video game industry? 4.2 Reference Evaluation (Top -ranked firms) The Project Managers will check references using the following criteria. The evaluation rankings will be labeled Satisfactory / Unsatisfactory. 4.3 Qualification and Standard a. Overall Performance - Would you hire this company again? b. Timeliness — Were machines initially installed in a timely manner? Does the company provide ongoing services regularly? C. Completeness - Has the company been responsive to client needs? Has the company anticipated problems? Were problems solved quickly and effectively? d. Costs — Has original pricing been increased substantially? e. Job Knowledge - Do company personnel have the necessary knowledge and skills? 5 Section 5.0: Proposal Acceptance All proposals shall remain subject to initial acceptance 90 days after the day of submittal. Award may be made on the basis of written proposals or up to three of the top rated firms may be called in for interviews. Interviews will be rated using the same criteria as written proposals. 11 CONCESSION AGREEMENT EPIC VENDING & VIDEO GAMES TABLE OF CONTENTS ARTICLE PAGE 1. Concession Space 1 1.1 Definition of Concession Space 1 1.2 Use for Vending Machines 1 2. Concessionaire's Use of EPIC and the Concession Space 1 2.1 In General 1 2.2 Restriction on Routine Machine Maintenance and Preparation 2 3. Rights of Ingress and Egress 2 3.1 In General 2 3.2 Closures 2 4. Undertakings of the Concessionaire 2 4.1 Vending Service 2 4.2 Hours of Operation 3 4.3 Concessionaire Personnel 3 4.4 Statements, Recordkeeping and Audits 4 4.5 Physical Interference 5 4.6 Taxes 5 5. Term 6 5.1 Period 6 5.2 Holding Over 6 6. Fee for Conducting Business 6 6.1 Concession Fee 6 6.2 Definition, Gross Revenues 6 6.3 Time of Payment 6 6.4 Interest on Past Due Amounts 6 6.5 Method of Payment 6 TABLE OF CONTENTS ARTICLE PAGE 7. Installation and Services to be Provided by the City 7 7.1 EPIC 7 8. Acceptance and Trade Fixtures 7 8.1 Acceptance 7 8.2 Installation of Equipment and Trade Fixtures 7 8.3 Removal of Equipment, Trade Fixtures 7 8.4 Applicable Law 7 9. Damage to EPIC by Concessionaire 8 10. Total or Partial Destruction 8 10.1 Concession Space Rendered Untenantable 8 10.2 Concession Space Tenantable 8 10.3 Exception for Damage Caused by Concessionaire 9 10.4 No Claim by Concessionaire 9 11. Indemnification and Insurance 9 11.1 City's Liability 9 11.2 Indemnification 9 11.3 Patent Representation 9 11.4 Concessionaire Insurance 9 11.5 Precautions Against Injury 10 11.6 Failure to Insure 10 12. No Interest in Real Property 10 13. Assignment 10 14. Right of City to Enter, Inspect and Make Repairs 10 14.1 In General 10 14.2 Obstruction by City 10 14.3 Obstruction by Concessionaire 11 14.4 No Eviction or Abatement 11 15. Default of Rights of Termination 12 15.1 Default by Concessionaire 12 15.2 City's Remedies on Default 13 15.3 Rights and Remedies Reserved 13 16. Miscellaneous Provisions 14 16.1 Cumulative Rights 14 16.2 Non -Waiver 14 2 TABLE OF CONTENTS ARTICLE PAGE 16.3 Non -liability of Individuals 14 16.4 Limitations on EPIC Use 14 16.5 Governing Law 14 16.6 Benefits 14 16.7 Construction 14 16.8 Successors and Assigns 14 16.9 Headings 14 16.10 Attorney Fees 15 16.11 Entire Agreement 15 16.12 Severability 15 16.13 Surrender of Possession 15 16.14 Authority of City Representative 15 16.15 Notices 15 16.16 Paragraph Headings 16 16.17 Schedules and Exhibits 16 16.18 Force Majeure 16 16.19 No Limitation on General Powers 16 16.20 No Relationship 16 16.21 Survival 16 �3