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HomeMy WebLinkAboutJJS VENDING SERVICES INC - CONTRACT - CONTRACT - VENDING CONCESSIONAIREVENDING MACHINE CONCESSION AGREEMENT This Concession Agreement, hereinafter called the "Agreement", made and entered into as of the 28th day of March, 2005, by and between The City of Fort Collins, Colorado, a municipal corporation, hereinafter called "City", and JJ's Vending Services, Inc. hereinafter called "Concessionaire." WITNESSETH: GENERAL SCOPE OF SERVICES The Concessionaire agrees to provide vending machine services in accordance with the following articles: ARTICLE 1 - Concession Space 1.1 Definition of Concession Space For the purposes of this Agreement, the "Concession Space" shall mean the area located within 1000 feet of the vending machine site in each of the two (2) City facilities specified below: Senior Center at 1200 Raintree Drive, Fort Collins, CO 80526 City Park Center at 1599 City Park Drive, Fort Collins, CO 80521 1.2 Use for Vending Machines The Concessionaire shall have the use of the Concession Space for the purpose of offering, beverages, snacks and related services through vending machines as defined in Article 2 hereof. 1.2.1 The City will not authorize sales of any products that compete with products offered for sale by Concessionaire within 1000 feet of Concessionaire's vending machines. The City may authorize the sale of any beverages and non -competing food items within the parks but not within 1000 feet of Concessionaire's vending machines. ARTICLE 2 - Concessionaire's Use of Concession Space 2.1 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 for its vending operations (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, if necessary, to conduct minor repairs as required upon its vending machines in the Concession Space. Page 1 of 12 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. 15.3 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 16.1 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. 16.2 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. 16.3 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. 16.4 Limitations on City Facility Use Concessionaire shall not use, or permit the use of City facilities, or any part thereof, for any purpose or use other than those authorized by this Agreement. 16.5 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. 16.6 Benefits This Agreement is made for the sole and exclusive benefit of the City and Concessionaire, their successors and assigns, and is not made for the benefit of any third party. 16.7 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. 16.8 Successors and Assigns All covenants, stipulations and agreements in this Agreement shall extend to and bind each party hereto, its legal representatives, successors and assigns. Page 10 of 12 16.9 Headings The paragraph headings and titles of the several articles of this Agreement are inserted herein for convenience and reference 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. 16.10 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 there from. 16.11 Entire Agreement 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. 16.12 Severability 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. 16.13 Surrender of Possession Upon the expiration of this Agreement or its earlier termination as herein provided, Concessionaire shall remove all of its property from Concession Space and surrender entire possession of its rights at concession site to City and its improvements in accordance with Section 9 above, unless this Agreement is renewed or replaced. 16.14 City Representative The City designates Steve Budner, 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. 16.15 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: Concessionaire: JJ's Vending Services, Inc. Attention: Jack Jennings 6826 Franklin Loveland, CO 80538 City: City Of Fort Collins Attention: Purchasing Division P.O. Box 580 Fort Collins, Colorado 80522 Page 11 of 12 16.16 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. 16.17 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. 16.18 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. 16.19 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. 16.20 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. THE CITY OF FORT COLLINS, COLORADO A Mu i al Corporatio/� �n B . V6� L""�-`� AE- Jamrs- V. O'Neill Il, CPPO DirV of Purchasing &do V Risk `Management Date: l / ATTEST: Secretary CONCESSSIIONAIRE: JJ's Vending Services, Inc. By: Title: Date:'' L Corporate Seal Page 12 of 12 DAM: 002-003 DATE: Ue/UD/UD -ilea: ACOR , CERTIFICATE OF LIABILITY INSURANCE 04/05/2200°05 PRODUCER (970)484-0097 FAX (970)484-7077 Herbert -Leavitt Ft Collins 2S 37 Research Blvd 0100 Fort Collins, CO BOS26 THISCERTRaCATEISISSUEDASAMATTER OFINFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIL # muRED J 7s Vending Service 6826 N. Franklin Loveland, 00 SOS38 INSURER Safeco INSURER 9. Pimacol Assurance INSURER INSURER D. INSURER E. THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. NOR TOPE OF PgURANCE POLICYNUB t POLICYEFFECTNE POLICY E%PRATHDN UMRS GENBRALLIAIILm OICG267672 11/1S/2004 11/1S/200S EACH OCCURRENCE S 1 000 000 A^^ f 200,000 X COWAERCUULGENERAL LIABLITY bEDEXP(AWWQPersao) f 10,001 CLANSMADE o OCCUR PERSONAL & ADV INJURY S 1 DOD A GENERAL AGGREGATE f 2 ' OQO GENL AGGREGATE LPpWR APPLIES PER: PRODUCTS - COMP/OP AGG f 2 Q00 POLICY JECOT LOC AUTOMOBILE LSUBLITY ANYAUTO COMBINED SINGLE UM11 (EewddeM S BODLYNJUTY (Per pff�) S ALL OWNED AUTOS SCHEDULED ALTOS BODILYN,URi (Per wddem) S HIRED AUTOS NON.OWNED AUTOS PROPERTYDAMAGE (Per emden) S GARAGE LSIBLIiY AUTO ONLY. EA ACCIDENT S OTHER THAN EA ACC AUTO OKAY AGG S ANY AUTO S EXCEsgAfBRELLALVIBI.ITY EACH OCCURRENCE S AGGREGATE f OCCUR ❑ CLAIMS MADE s f DEDUCTIBLE S RETENTION $ WOMM COlreslATION AM 3308161 04/01/2004 04/01/2005 �f^, E.L. EACH ACCDENT f 100 EMFLOYERS'LIABLRY B ANY OFFICERAEMBEER EXCLUDED? El. DISEASE - I El. 100 EL. DISEASE -POLICI'LMIT S 500 Tyes Sdeecribe der SPECULPRenOVISIONS below OTHER DESCRIPTION OF OPERATIONS I LOCA7KM 0 VEHICLES I EXCLUSIONS M0® BY BOORfH1ENTI VECIM. PROVMONS %111 Operations/All Locations City of Fort Collins Building & Zoning 281 North College Avenue Fort Collins, CO 80524 SHOULD ANY OF THE ADM 068CIB.EO POUCIES NE EXPRATM DATE THEREOF. TI$ BRTUING NSURERWLL ENDEAVORTOMNL _j&_ DAYS WRRTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. BUT FAILURE TDMAL SUCH NOTICE RSAU IPOSE NO OBLIGATION ORLLUILM OR gEPRESENTATF/0. A:--`' "r ACORD 25(2DDIM) OACORD CORPORATION TBBB 2.2 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, major repairs or maintenance for operation shall be performed at the concession site located within each specific facility or surrounding premises. ARTICLE 3 - Rights of Ingress and Egress 3.1 In General Concessionaire shall have the right of ingress and egress to and from the Concession Space 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. 3.2 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 the Concession Space sites, 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 4.1 Vending Service 4.1.1 Concessionaire agrees to provide the following minimum vending services: Location — Senior Center, Fort Collins Equipment: As negotiated with the City's representative Location — City Park Center, Fort Collins Equipment: As negotiated with the City's representative 4.1.2 Concessionaire shall display the name of the firm on each vending machine. Concessionaire is responsible for all refunds to vending customers and notices of refund procedure must be prominently displayed in each vending area. 4.1.3 Services provided by the Concessionaire shall consist of the resupply of all beverage, snack and merchandise and refund envelopes daily or at sufficiently short intervals to adequately serve the demand for such items at each Concession Space location. 4.1.4 Concessionaire acknowledges the desire and obligation of the City to provide the public high quality beverages, snacks and merchandise and a high level of public service. Therefore, Concessionaire agrees to offer for sale from the Concession Space only high quality, beverages, snacks 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 shall meet and confer with Concessionaire regarding such matters. However, Concessionaire acknowledges that the City's Page 2 of 12 determination as to the same shall be conclusive. Failure of Concessionaire to correct, rectify or modify its prices or quality within seven (7) 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. 4.2 Hours of Operation The Concessionaire will be required to provide daily vending in the Concession Space. 4.3 Concessionaire Personnel 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. 4.4 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 of the gross revenues, as defined in Section 4.4.2 hereof, from Concessionaire's vending operations at each Concession Space site for the previous month. The certification shall be by an official of the Concessionaire who is responsible for the financial records of the Concessionaire. 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 each Concession Space site 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, Concessionaire shall reimburse the City for its cost 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 vending machine concession for the preceding calendar month. These reports shall show such reasonable detail and breakdown as may be required by the City. Page 3 of 12 4.4.3 The Concessionaire hereby grants to the City the right to audit Concessionaire's books and records for its operation at each Concession Space site 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. 4.5 Physical Interference Concessionaire shall not do, nor permit to be done, anything which may interfere with the 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 each Concession Space facility. 4.6 Taxes Concessionaire agrees to pay all lawful taxes, assessments and payments -in -lieu which, during the term of this Agreement or any extension hereof become due or which, may become a lien or 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 vending operations or activities in or about the Concession Space or elsewhere at the City facility. Nothing shall prevent Concessionaire from protesting, through due process, any taxes levied. ARTICLE 5 - Term 5.1 Period. The term of this Agreement shall commence on March 28, 2005 and, unless terminated sooner, expire on December 31, 2005. In addition, at the option of the City, the Agreement may be extended for an additional period of up to four (4) one year terms. Changes in the Concession Agreement shall be negotiated by and agreed to by both parties. 5.2 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 fifteen percent (15%) of its gross revenues derived from its vending operations. Page 4 of 12 6.2 Definition, Gross Revenues Gross revenues shall be defined as the amount charged for all products sold or services provided by Concessionare under this agreement whether such amount is actually collected through the machines or by other arrangement for payment for such items. 6.2.1 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. 6.2.2 Concessionaire shall not be entitled to any set-off, rebate or refund by reason of non -collection. 6.3 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. 6.4 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. 6.5 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 7.1 Concession Space at City Facilities In the operation of the Concessionaire's activities hereunder, the City shall provide: 7.1.1 Adequate electrical outlets in the Concession space; 7.1.2 Lighting fixtures for general area illumination; and 7.1.3 Unmetered electricity in the Concession Space. ARTICLE 8 - Acceptance and Trade Fixtures 8.1 Acceptance Concessionaire accepts the Concession Space "as is." 8.2 Installation of Equipment and Trade Fixtures No equipment or trade fixtures, including additional vending machines and other personal property used by Concessionaire in its business, whether or not attached to the Concession Space at specified City facility 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 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. Page 5 of 12 8.4 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 City Facilities by Concessionaire Concessionaire shall be liable for and shall repair or cause to be repaired within fifteen (15) days after occurrence any damage to City facilities, 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 10.1 Concession Space Rendered Untenantable, Except as Provided in Article 9 Above 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. 10.2 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. 10.3 Exception for Damage Caused by Concessionaire In the event of damage caused by Concessionaire as more specifically addressed in Article 9 of this Agreement, the provisions of Article 9 shall govern in any conflict between Article 9 and Article 10. 10.4 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 Concession Space or City facility, however the necessity may occur. Page 6 of 12 ARTICLE 11 - Indemnification and Insurance 11.1 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 by Concessionaire, its agents, employees or Concessionaires. 11.2 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 Concessionaires of Concessionaire and City. 11.3 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. 11.4 Concessionaire Insurance Without limiting any of the Concessionaire's obligations hereunder, the Concessionaire shall provide and maintain general liability insurance coverage naming the City as an additional insured with limits of not less than $1,000,000. 11.5 Precautions Against Injury The Concessionaire shall take all necessary precautions in performing the operations hereunder to prevent injury to persons and property. 11.6 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. ARTICLE 12 - No Interest in Real Property Concessionaire agrees that this Agreement constitutes merely a license 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. Page 7 of 12 ARTICLE 14 - Right of City to Enter, Inspect and Make Repairs 14.1 In General City and their authorized employees, agents, Concessionaires 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 the part of the Concession Space housing the vending machines 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; 14.1.2 To perform or cause to be performed maintenance and make repairs and replacements: 14.1.3 To make structural additions and alterations. 14.1.4 For any other lawful purpose. 14.2 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 part of the Concession Space housing the vending machines 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. 14.3 Obstruction by Concessionaire In the event that any personal property of Concessionaire shall obstruct the access of the City, their officers, employees, agent or Concessionaires, 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. 14.4 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. Page 8 of 12 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 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. Page 9 of 12