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HomeMy WebLinkAbout25G - VENDING TRUCK SERVICES - DAN YOUNG SOCCER COMPLEX REQUEST FOR COUNCIL ACTION ~ gT - CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: FEBRUARY 1, 2010 TITLE: APPROVED AGREEMENT AND APPROPRIATION ? As Recommended ADJUSTMENT FOR VENDING TRUCK ? As Amended SERVICES AT THE DAN YOUNG SOCCER ? Ordinance on 1St Reading ? Ordinance on 2"d Reading COMPLEX ? Implementing Resolution ? Set Public Hearing For ir`~ r? CONTINUED TO P I FILE NUMBER CITY MANAGER RECOMMENDED ACTION 1. Authorize the City Manager and Clerk of the Council to execute the attached agreement with Gisela's Mexican Food to provide vending truck services at the Dan Young Soccer Complex 2. Approve an appropriation adjustment recognizing projected revenue in the amount of $4,5.00 in the Recreation Special Fees and Donations revenue account (no. 02213002 57010} and appropriate same to the Recreation Special Fees and Donations expenditure account (no. 02213200 62300). DISCUSSION Request for Proposals for providing vending truck services at the Dan Young Soccer Complex was issued and mailed to 62 vending truck operators. A pre-proposal conference was conducted at the Dan Young Soccer Complex and two operators submitted proposals for consideration. An evaluation committee consisting of four representatives from the Parks, Recreation and Community Services agencies rated the two proposals. The committee considered each operator's qualifications and experience, pricing, and healthy menu options. Gisela's Mexican Food scored 360 and Alberto's Rolling Grill scored 337 out of 400 points possible. All four committee members rated Gisela's Mexican Food the most qualified operator to provide the requested services. Providing vending truck services at the Dan Young Soccer complex enhances the user experience at the complex, and will generate $900 per month in additional revenue for the City. The annual revenue for this agreement is projected to be $10,800. 25G-1 Grisela's Mexican Food February 1, 2010 Page 2 FISCAL IMPACT The appropriation adjustment will recognize revenue in the amount of $4,500 in the Recreation Special Fees and Donations revenue account (no. 02213002 57010) and appropriate same to the Recreation Special Fees and Donations expenditure account (no. 02213200 62300). Approved as to Funds and Account: Gerardo Moue Francisco Gutier z, Executive Director Parks, Recreation and Executive Director Finance and Management Services Community Services Agency A enc g y 25G-2 CONCESSION AGREEMENT THIS AGREEMENT, made and entered into this 1St day of February, 2010 by Pedro Rosas dba Gisela's Mexican Food, sole proprietorship, (hereinafter "Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a Contractor having special skill and knowledge in the field of foods services comparable with "high-level" industry practice. B. Contractor represents that Contractor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional "high-level" contractor in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: I• SCOPE OF SERVICES Contractor shall perform those services as set forth in the Scope of Services (Exhibit "A" hereto) and all attachments thereto. In the event of a conflict between the terms of this Agreement and any Exhibits or Attachments hereto, the terms of this Agreement shall prevail. 2• COMPENSATION a. In consideration for the concession rights granted by this Agreement, Contractor agrees to pay the City a monthly concession fee of $900.00 during the term of this Agreement. The payment is due on the first of each month, in advance. For example, the payment for September 2009 is due September 1, 2009. Services for a partial month shall be prorated on a daily basis. 3• TERM This Agreement shall commence on the date first written above and terminate on January 31, 2012 unless terminated earlier in accordance with Section 12, below. This Agreement may be renewed, at the option of the City, for two additional two-year terms in a monthly concession fee amount of $900.00. 4• INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which 25G-3 Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to its employees and shall be responsible for all applicable withholding taxes. 5• INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insureds) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Contractor shall supply City with a fully executed additional insured endorsement in substantially the form as set forth in Exhibit "B" attached hereto upon execution of this Agreement. Said endorsement shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Contractor is or employs a licensed professional such as an architect or engineer Contractor must obtain and maintain Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. 25G-4 e. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: (i) (ii) Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (iii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iv) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the ri ht to receive compensation and agrees to indemnify the City for any work performed prior to a goval of insurance by the City. pp 6• INDEMNIFICATION AND HOLD HARMLESS Contractor agrees to indemnify and hold harmless the City, its officers, agents employees, contractors, special counsel, and representatives from liability: (1) for ersonal p injury, damages, just compensation, lost profits, restitution, judicial or equitable relief or an other type of damage whatsoever arising out of claims for the same, which may arise from the direct or indirect actions of the Contractor or its contractors, subcontractors, agents, em to e or other persons acting on their behalf which relates in any way to the services provided bs~ Contractor under this Agreement; and (2) from any claim that personal injury, dama es y g , dust compensation, lost profits, restitution, or judicial or equitable relief or any other type of dama e whatsoever is due by reason of the terms of or effects arising from this Agreement or of tg Contractor's actions hereunder. This indemnity and hold harmless agreement a lies to he claims for damages, just compensation, restitution, lost profits or any other judicialpor e uit all relief or damages suffered, or alleged to have been suffered, by reason of the events refe ed t ble this Section or by reason of the terms of, or effects, arising from this Agreement. The Contrao in further agrees to indemnify, hold harmless, and pay all costs for the defense of the ctor including fees and costs for special counsel to be selected by the City, relative to an actionCity, third party challenging the validity of this Agreement, or asserting that personal injuy dam by a just compensation, restitution, lost profits, or judicial or equitable relief or any other t ages, damage whatsoever has arisen by reason of the terms of, or effects arising from this A redpe of g ment or Contractor's actions hereunder. City may make all reasonable decisions with res ect to it representation in any legal proceeding. p s CONFIDENTIALITY If Contractor receives from the City information which, due to the nature of such information, is reasonably understood to be confidential and/or proprietary, Contractor a that it shall not use or disclose such information except in the performance of this A ree green and further agrees to exercise the same degree of care it uses to protect its own informationent, of 25G-5 like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Contractor, disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9• NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 26 Civic Center Plaza (M-75) P.O. Box 1988 Santa Ana, California 92702 and Office of the City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 25G-6 To Contractor: Gisela's Mexican Food 1810 South Broadway, #8 Santa Ana, CA 92707 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive agreement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City. 12. TERMINATION AND DAMAGES This Agreement may be terminated by the City upon thirty (30) days written notice of termination and by the Contractor upon ninety (90) days written notice. In the event of termination by the City, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be 25G-7 the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement and in the Specifications, Exhibit "E" hereto. c. Material Breach: If the Director determines the Contractor has failed in the performance of the duties and/or schedule as provided herein, the Director may consider the Contractor in material breach. City may exercise all remedies in law or equity for said breach including, but not limited to: 1) withholding all or a portion of payment owed relative to any such failure to perform or for any delay in performance, and 2) directing the work be accomplished by either City employees or a new contractor at Contractor's expense, as determined by the Director. Contractor shall be responsible for all costs resulting from any breach, including incidental and consequential damages (see Sample Failure To Perform Letter, Exhibit " "hereto). 13. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in recruitment, selection, training, utilization, promotion, termination or any other employment related activity. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought by the parties hereto or arises out of, or in connection with or by reason of this Agreement. 15. LICENSES & PERMITS Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. These shall include but not be limited to the following: a California State Board of Equalization Seller's Permit; City of Santa Ana Business Tax Receipt; Professional Food Manager Certificate; County of Orange Heath Department Permit; and Proof of Commissary Letter. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Saidfailure shall be cause for termination of this Agreement by the City m accordance with Section 12, above. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its si authority and right to bind their respective parties to each of the terms of this Agreement and shall 25G-8 indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA: Maria D. Huizar DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney RECOMMENDED FOR APPROVAL: GERARDO MOUET Executive Director of the Parks Recreation and Community CONTRACTOR: PEDRO ROSAS Owner Tax ID # 25G-9 EXHIBIT "A" SCOPE OF SERVICES A. GE_ Contractor shall be responsible to provide quality concessionaire services at the Dan Young Soccer Complex (DYSC). The City will provide access to the complex and a permit to vend in return for a flat monthly fee. No concession facility exists; therefore, the concession operation will need to be contained and mobile. The DYSC is located at Centennial Regional Park, 3000 W. Edinger Avenue. The park is 63.5 acres and includes Hector Godinez High School. DYSC includes three adult fields with one youth field. DYSC is available for reservations Monday-Friday from 6:00 p.m.-10:00 p.m. and Saturday-Sunday from 8:00 a.m. - 10:00 p.m. All fields are heavily used year-round. B. SPECIFICATIONS 1. For the safety of the public patrons who utilize the complex during events, there are restrictions on items sold, packaging, etc. The City must approve all menu items, packaging and truck locations (or changes to the above). No cans, bottles or gum shall be sold at the complex. 2. No tobacco products shall be sold or advertised. 3. The concessionaire shall be responsible for continual trash removal during the concessionaire's operating hours and leave the facility litter free at the end of each day. 4. The concessionaire will be allowed to vend only during DYSC operating hours in the designated location. The City reserves the right to issue a 30 day notice in the event that a special event requires the use of different vending services. Vendor would not be allowed to sell during the dates listed on the notice. 5. The sale of alcohol will not be permitted. 6. Concessionaire shall tightly control the quality of the work performed by in-house staff and/or sub-contractors. Incomplete or poor quality work will not be accepted. 7. The vending operation shall be run in an efficient, courteous manner by staff that is clean and neatly dressed, presenting a positive image for the complex. Vending staff shall wear a uniform approved by the Park Superintendent. The standard uniform shall include a collared shirt, and matching pants and shoes. Special consideration will be offered to bidders able to demonstrate superior customer service. 25G-10 8. The concessionaire will be required to apply for and retain all applicable Orange County Health Department permits. Concessionaire will be required to use certified food handlers in the concession operation. 9. The concessionaire shall attend meetings with City staff as required. 10. The concessionaire shall coordinate with other agencies as required. 11. The concessionaire shall complete plan check processes with the City of Santa Ana and other agencies as required. 12. The City retains merchandizing rights for all DYSC business. 13. The concessionaire will be required to stay in the specified concessionaire area as directed by City staff. 14. The concessionaire shall provide year, make, model and pictures of vending trucks proposed for use at the DYSC. 15. The concessionaire will be required to pay City $900 per month to vend at the Dan Young Soccer Complex. The payment is due on the first of each month. For example, the payment for September 2009 is due September 1, 2009. C. CITY RESPONSIBILITIES The City will provide the following: 1. Assistance with plan check coordination within the City. 2. Staff liaison for communication and problem resolution. 25G-11 Exhibit "B" ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents and volunteers are named as additional insureds (additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective ,this endorsement form as a part of Policy # Issued to Named Insured Countersigned by Authorized Representative 25G-12