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HomeMy WebLinkAboutContract 28471 CITY SECRETARYC� CONTRACT NO. FORT WORTH MUNICIPAL BUILDING FOOD SERVICE FACILITY AGREEMENT WHEREAS, the City of Fort Worth desires to enter into an agreement for operating and servicing of a cafeteria and related vending facilities to provide food service to its employees and members of the public; and WHEREAS, Vanguard Resources, Inc. presently provides food services in the Metroplex and propose to equip and operate the cafeteria and vending facilities for the City of Fort Worth; and WHEREAS, the City of Fort Worth and Vanguard Resources, Inc. mutually desire to enter into an agreement whereby, for the below stated consideration, Vanguard Resources, Inc. will operate cafeteria facilities as described in its bid proposal to the City of Fort Worth and will also operate the related vending facilities as described in Exhibit A. NOW, THEREFORE,KNOW ALL BY THESE PRESENTS: That, for and in consideration of the mutual covenants, promises and agreements contained herein, the City of Fort Worth, hereinafter referred to as "City", acting by and through Bridgette Garrett, its duly authorized Interim Assistant City Manager, and Vanguard Resources, Inc., hereinafter referred to as "Contractor", do hereby covenant and agree as follows: 1. PURPOSE Subject to all of the terms, provisions and conditions herein set forth, City hereby grants to Contractor the right to operate the cafeteria and vending facilities in the Fort Worth Municipal Complex designated by the City Manager or his authorized representative. Such facilities will be operated for the purpose of selling to City employees and to the public soft drinks, candies, confections, notions, food and related items. No alcoholic beverages of any kind will be stored, dispensed or sold. 2. LICENSE The license herein granted shall extend to the Contractor only in the area of the Fort Worth Municipal Complex described and delineated on the attached plan marked Exhibit "A", which Exhibit is incorporated herein by reference for all purposes. This Agreement shall not be exclusive in areas intended for use by City employees in connection with the performance of their duties nor shall this Agreement prohibit City from allowing certain groups or organizations to periodically sell food or food products on the premises. No vending equipment shall be located outside of the principal vending area as designated on Exhibit "A" without the express written approval of the City Manager or his duly authorized representative. Contractor�h�. no: in permit any person to use the cafeteria or vending facilities for any unlawful o s•: �`�� � �Iff SEC 3. TERM AND PAYMENT 3.1 The primary term of this Agreement shall be for a period of two (2)years, and shall be automatically renewed for three additional one-year terms, said primary term commencing on March 24, 2003, or the date of full operation of the cafeteria and vending facilities whichever is later. Notwithstanding the foregoing, either party may,with or without cause, opt not to renew the Agreement during the option period by notifying in writing the other party at least 120 days prior to the beginning of the option year. 3.2 As consideration for the rights granted to Contractor hereunder, Contractor shall pay City a monthly flat fee for the first two years and a renegotiated amount for each one year remaining under the option based on the cost of city services provided to Contractor. The current fee is as follows: 2003 - $400 month 2004- $400 month 2005 - $400 month Such consideration shall be paid monthly on or before the twenty-fourth (24th) day of each calendar month during the term hereof, for the preceding calendar month, with the first payment to be due April 24, 2003 and the final payment April 24, 2005, with the renegoiated amount for the option years to follow the same schedule. Contractor shall be assessed a late payment charge in the event payment is not made as specified, calculated at the maximum interest rate allowed by law,not to exceed twenty-four percent(24%)per annum. Contractor shall deposit to its bank account all generated revenue derived from cafeteria, catering and vending services. Within ninety (90) days after the end of each one-year term under the Agreement, Contractor shall provide City an annual summarized Income & Expense Report. Contractor, in the Income & Expense Report, shall set forth revenue derived from the above- referenced services, minus labor costs, food costs and miscellaneous expenses. Contractor shall deduct a fifteen percent (15%) operations fee from the net amount prior to determining shared savings, if any. After the deduction of the fifteen percent (15%) fee, the remainder will be attributed as follows: 25% City 25% Team 50% Contractor 3.3 All such payments shall be made to the Office of the Finance Director, Finance Department, 1000 Throckmorton Street, Fort Worth, Texas 76102. 2 4. CONTRACTOR OBLIGATIONS 4.1 Contractor agrees to operate the cafeteria and vending facilities in a first class manner and in strict compliance with all applicable laws, Federal, State and local, including all applicable ordinances and the Charter of the City of Fort Worth, all applicable rules, regulations and requirements of the Health, Police and Fire Departments, and shall obey all other applicable regulations of the City of Fort Worth. The services and operations to be performed by Contractor are described in Contractor's services proposal, which is attached hereto as Exhibit "B" and incorporated herein for all purposes. Where any conflict in provisions exists between this Agreement and Exhibit "B", this Agreement shall control. All work shall be performed in accordance with the terms of this Agreement and for the consideration herein stated. 4.2 Contractor shall obtain and pay for all necessary permits and licenses in connection with the operation of the cafeteria and vending facilities, and shall pay for and remit to the appropriate authorities all applicable taxes owing in connection with its operations under this Agreement. Contractor shall use only clean, up-to-date vending equipment in its operations on the demised premises. Contractor shall keep the vending facilities open for business during such hours and on such days as may be prescribed by City. Contractor shall keep the cafeteria facilities open for business for breakfast and lunch Monday through Friday. 4.3 City will maintain an active preventive maintenance program on all of its facilities and equipment to ensure the overall effectiveness of the cafeteria operations. The maintenance program shall include but not be limited to: pest control, grease traps, enzyme programs, vent hoods, food preparation and storage equipment. All repair and preventive maintenance costs to the City-owned facility infrastructure, as well as cafeteria area equipment, will be borne by the City. Contractor agrees that it will, at its own expense, keep, and maintain the food service equipment owned or furnished by Contractor in good condition. Contractor shall return all city owned equipment and cafeteria and vending facilities to City upon the expiration or termination of this Agreement in the condition received, ordinary wear and tear and loss or damage caused by fire, flood or act of God excepted. City shall have the right and privilege, through its agents and officials, to make inspection of the demised premises and thereafter to make reasonable recommendations to Contractor of any repairs that, in the City's opinion, are necessary to be performed by Contractor upon the demised premises in accordance with the foregoing. Contractor will commence repairs within a reasonable time not to exceed thirty (30) days from the date that such recommendations are made. All equipment and supplies provided by Contractor shall remain Contractor's, and Contractor shall have the right to remove all equipment and supplies upon termination of the Agreement. 4.4 Contractor shall fan-fish to the City Manager or his duly authorized representative in advance of its operations, a list of the items, goods, services and/or products to be dispensed or sold on a regular basis by Contractor on City premises and the prices to be charged therefor. Such list shall be approved by the City Manager or his duly authorized representative and shall be subject to reconsideration and review from time to time when desired by City or the Contractor, but no amendment thereof shall take effect until approved in writing by the City Manager or his 3 duly authorized representative. Items, goods, services and/or products not reflected on said list may be sold by Contractor from time to time at prices comparable to those charged for regularly sold items, but not to the exclusion of any items, goods, service and/or products on said list. Contractor shall post in a conspicuous place on the described premises a list of all approved prices to be charged for items, goods, services and/or products sold hereunder. 4.5 Contractor shall furnish a sufficient number of trained, courteous personnel to efficiently operate the cafeteria and vending services hereunder. 5. CITY RESPONSIBILITIES 5.1 City shall furnish and maintain, at its sole expense, the cafeteria and vending facilities, (but not the food service equipment owned by Contractor) including toilet facilities and dressing rooms for Contractor employees normally made available to City employees. City shall furnish, at its sole expense, such electricity, gas, water, heat, air conditioning and sewerage utilities as are necessary for the efficient operation of the cafeteria and vending facilities. City shall monitor annually the useage of such expense to ensure recoverery of the cost associated therewith. City shall be responsible for the periodic waxing and buffing of floors and cleaning, shampooing and maintaining the carpets. City shall designate a location in the Fort Worth Municipal Building where Contractor shall deposit trash and garbage in such containers as may be prescribed by City, and City shall provide for the removal of trash and garbage from such designated locations. 5.2 City, through its duly authorized representatives, shall have the full and unrestricted right to enter the premises herein demised for the purpose of doing any and all things which City is authorized or required to do under the terms of this Agreement or which may be deemed necessary for the proper conduct and operation of City's Municipal Building. 5.3 City shall be responsible for providing adequate security for Contractor personnel, equipment, inventory and cash while on City's premises; however, City does not warrant the prevention of any loss to Contractor due to vandalism, riot or forcible entry. 6. ALTERATION AND ADDITION TO PREMISES 6.1 Contractor shall not make or suffer any waste or damage to the premises, nor will Contractor cause or permit any holes to be drilled or made into any concrete, stone, brick or plaster, nor any placards or signs, however attached to City premises,to be placed at any location in the Fort Worth Municipal Complex or on the grounds thereof except as specifically provided below. Contractor shall not make any material alterations or additions to the premises without express approval in writing in advance by the City Manager or his duly authorized representative. Any architectural additions or alterations made and attached to the premises by Contractor shall become the property of City upon termination of this contract. Contractor may, at its own expense and with the prior written approval of the City Manager or his duly authorized representative, install signs in the Fort Worth Municipal Complex indicating the location and nature of the food service facilities; however, any signs so installed must be in keeping with the design of the building and of other signs therein. Contractor agrees to reimburse City for any 4 damage or injury resulting from the installation, maintenance or removal of any such signs. City shall not be responsible for any damages or loss to such signs. 6.2. All food service outlets shall be located as identified on Exhibit"A". Any changes require the prior written approval of the City Manager or his duly authorized representative. 7. INSURANCE 7.1 Contractor shall comply with the following insurance requirements: Commercial General Liability $1,000,000.00 each occurrence 2,000,000.00 aggregate 250,000.00 fire legal liability insurance Coverages included under the policy shall not exclude: products/completed operations; contractual liability;personal injury and advertising liability. Auto Liability $1,000,000.00 each accident Coverage is to be any auto used in the course of Contractor's services performed under this contract agreement. Workers' Compensation Insurance Part A: statutory limits Part B:employer's liability $100,000.00 each accident 500,000.00 disease—each employee 100,000.00 disease—policy limit The policy is to be endorsed with a waiver of subrogation in favor of the City of Fort Worth. 7.2 Other insurance requirements and terms (a) The City is to be endorsed as an additional insured under Contractor's liability insurance policies. (b) The deductible limit on any one policy for any one occurrence shall not exceed $5,000.00 unless otherwise approved by the City. (c) Insurers of any and all insurance policies maintained by Contractor shall be authorized, or not disapproved to do business in the state of Texas, by the Texas Department of Insurance and be of financial strength and solvency acceptable to the City of Fort Worth. 5 (d) Certificate of Insurance must be provided to the City documenting required insurance coverage prior to commencement of operations contracted herein. Throughout the term of this contract, failure of the City to request certificates of Contractor's current insurance coverages shall not be construed as a waiver of such insurance requirements. (e) Each Insurance policy shall be endorsed with a thirty days notice of cancellation, non-renewal, or material change in coverage such that the City is assured to receive in writing such notice accordingly. (f) Contractor shall procure certificates of insurance from its key subcontractors and/or suppliers documenting reasonably equivalent insurance coverages and limits thereof as those required of the Contractor. Upon request by the City, Contractor shall provide City such insurance documentation within a reasonable time frame of City's request and at no cost to the City. This insurance requirement may be waived at the sole discretion of the City. Additionally, upon termination of this Agreement, Contractor agrees to provide in any agreement it has with a vending subcontractor that such vending agreement with Contractor shall automatically and unconditionally transfer to the City. 7.3 Property insurance covering the contents belonging to Contractor and/or any supplies or materials for which the Contractor is responsible shall be the legal liability of the Contractor and not that of the City. 8. RIGHT TO AUDIT 8. Contractor agrees that the City shall, until the expiration of three (3) years after final payment under this Contract, have access to and the right to examine any directly pertinent books, documents, papers and records of the Contractor involving transactions relating to this Contract. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits. Contractor further agrees to include in all of its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3)years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor involving transactions to the subcontract, and further that City shall have access during normal wokring hours to all subcontractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable advance notice of intended audits. 6 9. TERMINATION 9.1 Except as otherwise provided herein, any breach, default or failure by Contractor to perform any of the duties or obligations assumed by Contractor hereunder or to faithfully keep and perform any of the terms, conditions and provisions hereof shall be cause for termination of this agreement by City in the manner set forth in this paragraph. City shall deliver to Contractor thirty (30) working day's prior written notice of its intention to so terminate this agreement, including in such notice a reasonable description of the breach, default or failure. If within said thirty(30) working days of receipt of such notice, Contractor shall fail or refuse to cure, adjust or correct same to the satisfaction of City, then and in such event City shall have the right, without further notice to Contractor and without being deemed guilty of trespass and without any liability whatsoever on the part of the City, to declare this Agreement terminated and enter upon and take full possession of the premises, by force or otherwise, and without legal process, expel, oust and remove any and all parties who may occupy any part of said premises. In the event of termination of this Agreement according to its provisions by City, all rights, powers, and privileges of Contractor hereunder shall cease and terminate as of the effective date of such termination, and Contractor shall immediately vacate said premises within two (2) working days and shall make no claim of any kind whatsoever against City, its agents or representatives, by reason of such termination. 9.2 Any failure by City to so terminate this Agreement or the acceptance by City of fees for any period of time after such breach, default or failure by Contractor shall not be determined to be a waiver by City of any rights to terminate this Agreement for any subsequent breach, default or failure. 9.3 City may terminate this Agreement at any time for any reason upon ninety (90) days' written notice to Contractor, and Contractor may terminate this Agreement at any time for any reason upon ninety(90) days'written notice to the City. 9.4 Contractor agrees that in the event any proceedings in bankruptcy or insolvency shall be instituted against Contractor, whether voluntary or involuntary, City may, at its option, declare this Agreement terminated and upon such declaration, Contractor agrees to give and deliver immediate possession of the premises to City. 9.5 The City's right to terminate this Agreement shall be cumulative of any other legal or equitable remedy available to City for breach, default or failure by Contractor. 10. INDEPENDENT CONTRACTOR 10.1 Contractor shall operate hereunder as an independent contractor and not as an officer, agent, servant or employee of City. Contractor shall have exclusive control of, and the exclusive right to control, the details of its operation hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. The doctrine of the respondeat superior shall not apply as between City and Contractor, its officers, agents, employees, contractors and subcontractors. Nothing herein shall 7 be construed as creating a partnership or joint enterprise between City and Contractor, its officers, agents, employees, contractors and subcontractors. 10.2 Contractor agrees that no supervisory employees of City will be hired by Contractor for the term of this Agreement and six (6)months thereafter. 10.3 City acknowledges that Contractor has invested considerable amounts of time and money in training its supervisory employees in the systems, procedures, methods, forms, reports, formulas, computer programs, recipes, menus, plans techniques and other valuable information which is proprietary and unique to Contractor's mariner of conducting its business. Therefore, City agrees that supervisory employees of Contractor will neither be hired by City to perform services similar to Contractor's business for the term of this Agreement and six (6) months thereafter, nor will City permit supervisory employees of Contractor to be employed on City's premise to perform services similar to Contractor's business for a period of six (6) month subsequent to the termination of this Agreement (unless such employees were formerly employees of City). For the purpose of this prohibition, "supervisory employees" shall be defined as those persons who have directly or indirectly performed management or professional services on City's premises at any time during the twelve (12) month period immediately preceding termination of this Agreement. 10.4 In addition, City agrees that if it violates the conditions set forth in the immediately preceding paragraph, then subject to City Council appropriation of funds the City shall pay to Contractor and Contractor shall accept as liquidated damages and not as a penalty for such breach, an amount up to but not exceeding two times the annual salary of the Contractor supervisory employee hired by City or allowed to work on City's premises in violation of the terms of this Agreement. 11. INDEMNIFICATION 11.1 Subject to the terms and conditions of Section 7 hereof, Contractor agrees to, and does hereby, indemnify, hold harmless and defend City, its officers, agents, servants and employees, from and against any and all claims or suits for property damage, loss and/or personal injury, including death, to any and all persons, of whatsoever kind or character, whether real or asserted, arising out of or in connection with Contractor's operations on City's premises. 11.2 Subject to the terms and conditions of Section 8 hereof, Contractor will likewise indemnify and hold harmless City for any and all damage, destruction or loss of City property arising out of or in connection with the acts or omissions of Contractor, its officers, agents, employees, contractors, subcontractors, licensees, invitees or customers. 11.3 It is expressly understood and agreed that Contractor will indemnify, hold harmless and defend City, its officers, agents, servants and employees from and against any and all claims or suits for personal injury, including death, to any and all persons, of whatsoever kind or character, whether real or asserted, arising out of or in connection with the consumption or use of any items, goods, services and/or products sold on the herein described premises by Contractor, its officers, agents, employees, contractors, subcontractors, licensees or invitees. 8 11.4 Nothing in this Agreement shall require Contractor to indemnify City against or hold City harmless from any claims or suits for property damage, loss and/or personal injury, including death, arising out of City's negligence or that of its officers, agents, servants, employees or subcontractors other than Contractor. 12. DISCRIMINATION BY CONTRACTOR 12.1 Contractor, in the execution, performance or-attempted performance of this Agreement, will not discriminate against any person or persons on any unlawful basis nor will Contractor permit its officers, members, agents, employees or subcontractors to engage in such discrimination. 12.2 This Agreement is made and entered into with reference specifically to the ordinances codified as Chapter 13A, Article III ("Discrimination in Employment Practices") of the City Code of the City of Fort Worth, and Contractor hereby agrees that Contractor, its officers, members, agents, employees and subcontractors, have fully complied with all provisions of same and that no employee or employee-applicant has been discriminated against by the terms of such ordinances by either the Contractor, its officers,members, agents, employees or subcontractors. 13. NOTICES TO PARTIES 13. Notice addressed to City pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered at the time same is deposited in the United States mail, Certified Mail, Return Receipt Requested, in a sealed envelope with sufficient postage attached, addressed to James Keyes, Finance Department, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102, and notice to Contractor shall be conclusively determined to have been delivered at the time same is deposited in the United States mail, Certified Mail, Return Receipt Requested, in a sealed envelope with sufficient postage attached, and addressed to Ricky Powers, President, Vanguard Resources, Inc., 17300 Henderson Pass, Suite 270, San Antonio, TX 78232. 14. VENUE; JURISDICTION 14. Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, attempted performance or nonperformance of this Agreement, exclusive venue for said action shall lie in Tarrant County, Texas. This agreement and any action in connection herewith shall be governed, construed and enforced by the laws of the State of Texas. 15. SEVERABILITY 15. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, which Agreement shall 9 be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 16. NON-ASSIGNABILITY 16. Except as otherwise expressly provided herein, this Agreement is non-assignable and any unauthorized purported assignment or delegation of any of Contractor's rights or duties hereunder, without the prior written consent of City, shall be void and constitute a breach of this Agreement. This agreement shall be binding upon the parties, their successors and permitted assigns. 17. NON-WAIVER 17. The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment of either party's right to assert or rely upon such term or right on any future occasion. 18. RENEGOTIATION 18. The fiscal arrangements set forth in Section 3 are based on conditions in existence on the date Contractor commences operations, including by way of example, City's employee population and working conditions; labor, food and supply costs; Federal, State and local sales, use and excise taxes; and license and permit fees. In the event of a material change in conditions not due to Contractor's action or inaction, the fiscal arrangement shall be re-negotiated on a mutually agreeable basis to reflect such change. 19. FORCE MAJEURE 19. Neither party shall be responsible to the other for any losses resulting from the failure to perform any terms or provisions of this Agreement, if the party's failure to perform is attributable to war, riot, or other disorder; strike or other work stoppage; fire; flood; or any other act not within the control of the parry whose performance is interfered with, and which, by reasonable diligence, such party is unable to prevent. 20. CONFIDENTIALITY 20. All financial, statistical, operating and personnel data, including but not limited to recipes, menus and meal plan, relative to or utilized in Contractor's business or the business of any subsidiary of Contractor, shall be the property of Contractor and is intended to be confidential. Except as otherwise required by law, City agrees to keep such information confidential and so instruct its agents, employees, and independent contractors. 10 21. MISCELLANEOUS PROVISIONS 21.1 Contractor agrees that it will, at the end of the term of this Agreement, peaceably deliver unto City the demised premises in the condition received, ordinary wear and tear and loss or damage caused by fire, flood or act of God excepted. 21.2 Contractor agrees that it shall have no power to do any act or make any contract that may create or be the foundation for any lien upon the property or interest in the property of City, and, should any such purported lien be created or filed, Contractor, at its sole cost and expense, shall liquidate and discharge same within ten(10) days next after filing thereof; and should Contractor fail to discharge the same, such failure shall constitute a breach of this Agreement. 21.3 This written instrument, including Exhibits A and B, constitutes the entire agreement between the parties hereto concerning the work and services to be performed hereunder, and any prior or contemporaneous oral or written agreements which purport to vary from the terms hereof shall be void. IN WITNESS WHEREOF,the parties hereto have executed this Agreement in counterparts on March , 2003. AT SST: CITY OF FORT WORTH City Secretaf ' Bridgette lGarre Interim Assistant City Manager APPROVED AS TO FORM AND LEG ITY: contract Authorization r Assis t City Attorney Data VANGUARD RESOURCES, INC. By: Name: .fir Zee Title: �°�.s �' ✓�— r, EXHIBIT A OPERATION OF FOOD SERVICE FACILITY CITY OF FORT WORTH, TEXAS The City of Fort Worth vending operation includes machines located in the following areas: MUNICIPAL BUILDING Snack Bar Can Soda Variety Snacks Lower Level Can Soda Variety Snacks MUNICIPAL ANNEX Can Soda Variety Snacks COURT BUILDING Can Soda Variety Snacks PARKING FACILITY Can Soda Variety Snacks Contractor will provide vending drinks and snacks that include healthy, low-fat, low-calorie options that are consistent with food and nutrition services outlined in Exhibit B. 213580v5 12