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CITY COUNCIL AGENDA ITEM NO. 9

Meeting Date: March 8, 2005

Subject/Title: Authorize the City Manager to enter into an agreement for services for food and beverage concessions at Sunset Park Athletic Complex.

Prepared by: Poldina Scherff, Recreation Services Manager

Submitted by: Craig D. Bronzan, Director of Parks and Recreation

RECOMMENDATION
Staff recommends the approval of a two-calendar year contract for 2005 and 2006 with Bay Area Vending Company, authorizing the City Manger to enter into an agreement for services for the operation of two concession buildings at Sunset Park Athletic Complex.

PREVIOUS ACTION
On February 8, 2005 City Council adopted Resolution # 2005-32 accepting the work performed by Misan Construction, Inc., for the park improvements at Sunset Park Athletic Complex, CIP Project No. 522-5201, and direct the City Clerk to file a Notice of Completion with the County Recorder.

BACKGROUND
Staff sent out a request for proposal for a concessionaire to operate two concession buildings at Sunset Park Athletic Complex to more than eighteen (18) interested vendors for a quality food and beverage service. The City received two proposals for consideration. The concessionaire needed to meet the terms and conditions that were set in the proposal. Bay Area Vending Company clearly meets the needs of the City by providing a complete packet that included vending machines as well as all the equipment and supplies needed to run two concession stands. Bay Area Vending Company has an existing contract with the City for vending machines at various City facilities, and the City has been pleased with the vendor’s performance.

FISCAL IMPACT
Bay Area Vending Company (BAVC) will pay the City of Brentwood seven percent (7%) of all gross sales from both concession stands and vending machines for the calendar year January – December 2005. On the second year of the contract Bay Area Vending Company will pay the City of Brentwood eight percent (8%) of all gross sales from both concession stands and vending machines for the calendar year January – December 2006. Concession commission will be deposited in the Sunset Park Athletic Complex account to offset park operation expenses.

The City reserves the right to renegotiate the percentage of gross sales and/or put back out to bid the concession stands for calendar year 2007.

If City does not renew contract after 2006, and the concessionaire leaves the stainless steel sinks, concessionaire will be paid $1,000 for sinks.

Attachment:
Bay Area Vending Company Proposal
Agreement For Services

AGREEMENT FOR SERVICES

This Agreement for Services (“Agreement”), made and entered into this 8th day of March 2005, by and between the CITY OF BRENTWOOD, a municipal corporation existing under the laws of the State of California (hereinafter referred to as “CITY”), and Bay Area Vending Company, with offices in Discovery Bay, California (hereinafter referred to as “CONCESSIONAIRE”).

RECITALS

A. CITY desires certain services hereinafter described.

B. CITY desires to engage CONCESSIONAIRE to provide these services by reason of its qualifications and experience for performing such services and CONCESSIONAIRE has offered to provide the required services on the terms and in the manner set forth herein.

NOW, THEREFORE, IT IS AGREED as follows:

SECTION 1 – SCOPE OF SERVICES

1.1 The scope of services to be performed by CONCESSIONAIRE under this Agreement is for services on an as-needed basis for food and beverage services, as may be required by the CITY.

SECTION 2 – DUTIES OF CONCESSIONAIRE

2.1 CONCESSIONAIRE shall be responsible for the quality of all services furnished by CONCESSIONAIRE under this Agreement. CONCESSIONAIRE shall, without additional compensation, correct deficiencies in its services.

2.2 CONCESSIONAIRE represents that it is qualified to furnish the services described under this Agreement.

2.3 CONCESSIONAIRE shall be responsible for employing or engaging all persons necessary to perform the services of CONCESSIONAIRE.

2.4 It is understood that E. G. Bud Kyle will be the designated representative providing services to the City and this designated representative shall not be replaced without the City’s approval.

SECTION 3 – TERM

3.1 The services to be performed under this Agreement shall commence on Calendar year January - December, 2005 and be completed on Calendar year January – December 2006.
SECTION 4 – TERMINATION

4.1 Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend services any reason upon thirty (30) days’ written notice to CONCESSIONAIRE. CONCESSIONAIRE agrees to cease or suspend all services under this Agreement upon receipt of said written notice.

SECTION 5 – INTEREST OF CONCESSIONAIRE

5.1 CONCESSIONAIRE covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.

SECTION 6 – CONCESSIONAIRE’S STATUS

6.1 It is expressly agreed that in the performance of the services required under this Agreement, CONCESSIONAIRE shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the services but not the means by which the result is accomplished. Nothing herein shall be construed to make CONCESSIONAIRE an agent or employee of CITY while providing services under this Agreement.

SECTION 7 – INDEMNITY

7.1 CONCESSIONAIRE, in the performance of services, under this Agreement shall indemnify, defend, and hold harmless CITY, its directors, officers, employees and agents from any claim, loss, injury, damage, and expense and liability to the extent arising out of the negligence, errors, omissions, or wrongful acts of CONCESSIONAIRE, its employees, subcontractors, or agents. For other liability arising out of services, CONCESSIONAIRE shall indemnify, defend, and hold harmless, CITY, its directors, officers, employees, and agents from any loss, injury, damage, and expense and liability resulting from injury to or death of any person and loss of or damage to property, or claim of such injury, death, loss or damage, caused by an act or omission in the performance under this Agreement by CONCESSIONAIRE, its employees, subcontractors, or agents, except for any loss, injury, or damage caused by the sole negligence or willful misconduct by CITY.

SECTION 8 – INSURANCE

8.1 The CONCESSIONAIRE shall provide and maintain project specific insurance:

A. Commercial General Liability Insurance, occurrence form, with a limit of not less than $1,000,000.00 each occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit.
B. Automobile Liability Insurance, occurrence form, with a limit of not less than $500,000.00 each occurrence. Such insurance shall include coverage for owned, hired, and non-owned automobiles.
C. Errors and omissions insurance in the minimum amount of $1,000,000.00 aggregate.
D. Workers Compensation in at least the minimum statutory limits.
E. General Provisions for insurance. All liability and auto insurance shall:
1. Include the City of Brentwood, its elected and appointed officers, employees, and volunteers as additional insured’s with respect to this Agreement and the performance of services in this Agreement. The coverage shall contain no special limitations on the scope of its protection to the above-designated insured’s except for Workers Compensation and errors and omissions insurance.
2. Be primary with respect to any insurance or self-insurance programs of CITY, its officers, employees, and volunteers.
3. Be evidenced, prior to commencement of services, by properly executed policy endorsements in addition to a certificate of insurance.
4. No changes in insurance may be made without the written approval of the City Attorney's Office or designee.

SECTION 9 - NONASSIGNABILITY

9.1 Services of CONCESSIONAIRE: Both parities hereto recognize that this Agreement is for the services of CONCESSIONAIRE and cannot be transferred, assigned, or subcontracted by CONCESSIONAIRE.

SECTION 10 - RELIANCE UPON PROFESSIONAL SKILL
OF CONCESSIONAIRE

10.1 It is mutually understood and agreed by and between the parties hereto that CONCESSIONAIRE is skilled in the calling necessary to perform the services agreed to be done under this Agreement and that CITY relies upon the skill of CONCESSIONAIRE to do and perform the services in the manner, and CONCESSIONAIRE agrees to thus perform the services. The acceptance of CONCESSIONAIRE'S services by CITY does not operate as a release of CONCESSIONAIRE from said obligation.

SECTION 11 - WAIVERS

11.1 The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of same or of any other term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deeded to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement of any applicable law or ordinance.

SECTION 12 - COSTS AND ATTORNEYS’ FEES

12.1 Attorneys’ fees in an amount not exceeding $85.00 per hour per attorney, and in total amount not exceeding $5,000.00, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5,000.00 limit is the total of attorneys’ fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5,000.00 for attorneys’ fees arising out of an action, or actions to enforce the provisions of this Agreement.

SECTION 13 - NON-DISCRIMINATION

13.1 CONCESSIONAIRE warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONCESSIONAIRE nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.

SECTION 14 - MEDIATION

14.1 Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within thirty (30) days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from the mediators listed by either the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed-upon service. The mediator shall be selected by a "blindfolded" process.

14.2 The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator shall last until agreement is reached by the parties but not more than sixty (60) days, unless the maximum time is extended by the parties.

SECTION 15 - ARBITRATION

15.1 After mediation above, and upon agreement of the parties, any dispute or claim arising out of or relating to this Agreement may be settled by arbitration in accordance with the Construction Industry Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The costs of arbitration shall be borne equally by the parties.

SECTION 16 - LITIGATION

16.1 CONCESSIONAIRE shall testify at CITY'S request if litigation is brought against CITY in connection with CONCESSIONAIRE'S services under this Agreement. Unless the action is brought by CONCESSIONAIRE, or is based upon CONCESSIONAIRE'S wrongdoing, CITY shall compensate CONCESSIONAIRE for preparation for testimony, testimony, and travel at CONCESSIONAIRE'S standard hourly rates at the time of actual testimony.

SECTION 17 - NOTICES

17.1 All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:

To CITY: City of Brentwood
150 City Park Way
Brentwood, CA 94513

To CONCESSIONAIRE: Bay Area Vending Company
E. G. Bud Kyle
2407 Pinehurst Court
Discovery Bay, CA 94514

SECTION 18 – AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMEDMENT

18.1 This Agreement represents the entire and integrated agreement between CITY and CONCESSIONAIRE and supersedes all prior negotiations, representations, and agreements, either written or oral.
18.2 This Agreement may be amended only by written instrument, signed by both CITY and CONCESSIONAIRE.

SECTION 19 – GOVERNING LAW

19.1 This Agreement shall be governed by the laws of the State of California.

IN WITNESS WHEREOF, CITY and CONCESSIONAIRE have executed this Agreement the day and year first above written.

CITY OF BRENTWOOD CONCESSIONAIRE

Donna Landeros, City Manager Signature

Name (printed)

ATTEST:

Cynthia Garcia, Interim City Clerk

APPROVED AS TO FORM:

Thomas R Curry, Interim City Attorney

EXHIBIT “A”

FEE SCHEDULE

Bay Area Vending Company (BAVC) will pay the City of Brentwood on the 10th of each month following the close of each month, seven percent (7%) of all gross sales from both concession stands and vending machines for the calendar year January – December 2005.

Bay Area Vending Company (BAVC) will pay the City of Brentwood on the 10th of each month following the close of each month, eight percent (8%) of all gross sales from both concession stands and vending machines for the calendar year January – December 2006.

City reserves the right to renegotiate the percentage of gross sales and/or put back out the bid for Calendar year 2007.

If City does not renew contract after 2006, and concessionaire leaves the stainless steel sinks, concessionaire will be paid $1,000 for sinks.
ATTACHMENT

CONCESSIONAIRE agrees to and shall indemnify and hold CITY and its officers, agents, and employees harmless from any and all liabilities, obligations, damages, costs, injuries, or claims, thereof, including, but not limited to, claims for damage or personal injury, including death, and claims for property damage, arising in any manner from the performance or failure to perform the provisions of this Agreement. CONCESSIONAIRE agrees to, and shall, defend, indemnify, and hold harmless the CITY, its officers, agents, and employees from any suits or actions at law or in equity for damages, liabilities, or obligations caused by or arising from, or alleged to be caused by or arising from, the performance of this Agreement, except those actions arising from the sole negligence or willful misconduct of the CITY.
 

City Administration
City of Brentwood City Council
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Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov