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HomeMy WebLinkAbout05589 - TAKE A BREAK FOOD SERVICE INC FOOD/BEVERAGE VENDING CONCESSION AT AIRPORT F en1M 'S of IL mi "'31prinlgs Deparrmcnr of Aviarion halm Springs Irneesnati®nal Airport "lak" a �*' + 3400 E. Tahquitz Canyon Way,Suice oFC � Palm Springs,California 92262-6966 /FO Tcl (760) 318-3800 o F= (760)318-3815 ° Web: www.palmspringsairporc.mm RN August 15, 2008 Take A Break Service Inc VIA FEDEX Attn: Mark Buckley, Director of Food Services 2120 Harmony Grove Road Escondido, CA 92029 RE: AGREEMENT 5589 WITH THE CITY OF PALM SPRINGS FOR VENDING CONCESSION AT THE AIRPORT Dear Mr. Buckley: Per your email to me dated August 14, 2008 Take A Break Services was taken over by First Class Vending on August 1, 2008. Per Section 7.2 of the Agreement the Take A Break Agreement 5589 may not be assigned. Therefore the Agreement needs to be terminated immediately. Jerry Graham of First Class Vending has confirmed that the vending machines will be removed from all Airport locations on Monday morning, August 18, 2008. Please forward the August revenue report and percentage payment at your earliest convenience. It was a pleasure doing business with you. Sincerely, / � (?w' J/ a9'�etBuck Wrport Asset Manager Cc: Take A Break file City Clerk f Outgoing correspondence file 4 a rr c Post Office Box 2743 • Palm Springs, California 92263-2743 FW: City of Palm Springs Airport Agreement with Take A Break Serv-e Page 1 of 2 Janet Buck From: Mark Buckley (markb@takeabreakservice.com] Sent: Thursday,August 14, 2008 4:31 AM To: Janet Buck Subject: RE: City of Palm Springs Airport Agreement with Take A Break Service Good Morning Janet, The Take over from Take A Break Service to First Class Vending occured on August 1, 2008 at the end of business approximately 5:00 PM. -----Original Message----- From: Janet Buck [mailto:Janet.Suck@palmsprings-ca.gov] Sent: Wednesday, August 13, 2008 4:19 PM To: Mark Buckley Subject: FW: City of Palm Springs Airport Agreement with Take A Break Service Attachment- «Take Section 7,2.pdf» From: Janet Buck Sent; Wednesday,August 13,2008 4:16 PM To: 'Mark Buckley' Cc: '7erry0O firstclasevending-com';Scott Daugherty;Craig Toms Subject: City of Palm Springs Airport Agreement with Take A Break Service Good Afternoon Mark, Per our telecom this afternoon after Jerry Graham (213.505.0019)called to inform us that Take A Break has been purchased by First Class Vending you will confirm via email the date the transfer occurred. Per the agreement no assignment is allowed (see Section 7.2 attached)and therefore the agreement needs to be terminated and the vending machines removed- Please advise what date you would like the removal of all vending equipment to occur. I will need to assure we have an escort available before the date and time can be finalized. Please respond by tomorrow with a date and time. I will let you know if that is acceptable. Thank you, ]b Janet M. Buck Airport Asset Manager City of Palm Springs Palm Springs International Airport 3400 E Tahquitz Canyon Way, Suite OFC Palm Springs, CA 92262 760.318.3808 Fax 760.318.3815 www.palmsprin sg aim EL-00m 8/14/2008 Indemnification by Concessionaire. Concessionaire shall indemnify, defend (with counsel ,-w,;•;.:>.r-��,. designated by City), protect and hold harmless City, City's Parties and the Releasing Parties from and against any and all claims, demands, judgments, actions, damages, xs ;rY':r r losses, penalties, liabilities, costs and expenses (including, without limitation, attorneys fees and court costs) arising at any time directly or indirectly from or in connection with (i) any default in the performance of any obligation by Concessionaire to be performed under the terms of [his Agreement, ([i) the conduct of Concessionaire's business or any activity, t.r� work or things done, permitted or suffered by Concessionaire in or about the Airport, except to the extent caused by City's negligence or willful misconduct. The obligations of Concessionaire under this Article 6 shall survive the expiration or earlier termination of this Agreement. Concessionaire, as a material part of the consideration to City, hereby assumes all risk of damage to the food I beverage vending equipment, Including, without limitation, injury to persons in, upon or about tqc food/beverage vending equipment during Concessionaire's activity at the Airport, except where such damage or injury is caused solely by the negligence or willful misconduct of the City or the City's Parties. Concessionaire hereby waives all claims with respect thereof against City. City shall not be liable for any injury to j the Concessionaire, or injury to or death of any of Concessionaire's Parties, or injury to or death of any other person in or about the Airport from any cause except to the extent caused by the negligence or willful misconduct of the City or the City's Parties. 6.3 Assumption of All Risks and Liabilities. Concessionaire assumes all risks and liabilities arising .out of the operation of the food / beverage vending concession by Concessionaire or Concessionaire's Parties, except where such damage or injury is caused solely by the negligence or willful misconduct of the City or the City's Parties. Section 7. ABANDONMENT AND SURRENDER, 7.1 Abandonment. Concessionaire shall not abandon the food/beverage vending equipment at any time during the term of this Agreement. If Concessionaire shall abandon or surrender the food/beverage vending equipment at the Airport during the agreement term, said equipment may be deemed to be abandoned, at the option of City may be II dispossessed by process of law 7.2 Surrender of Agreement. The voluntary or other surrender of this Agreement by r Concessionaire or a mutual cancellation thereof, shall not work a merger, and shall, at the option of City, terminate all provisions of existing Agreement. Concessionaire shall not assign or sublease Agreement. Section S. ENFORCEMENT OF LAW 8.1 Governing Law. This Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California. 8.2 Compliance with Law. All services rendered hereunder shall be provided in accordance with all applicable ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State, or local governmental agency having jurisdiction in effect at the time { service is rendered. Take A Break Service,Inc. Food/Beverage Vending Concession Page 6 of 13 Non-Exclusive Operafing Agreement Palm Springs International Airport TAKE A BREAK SERVICE, INC. NON-EXCLUSIVE OPERATING AGREEMENT FOR FOOD/BEVERAGE VENDING CONCESSION AT PALM SPRINGS INTERNATIONAL AIRPORT THIS AGREEMENT ("Agreement") is made and entered into this First day of January 2008 by and between the CITY OF PALM SPRINGS, a charter city and California municipal corporation ("City"), and Take a Break Service, Inc., a California corporation ("Concessionaire"). City and Concessionaire may hereinafter be referred to Individually as a "Party" and collectively as "Parties". RECITALS A. Concessionaire desires to operate a food / beverage vending concession at Palm Springs International Airport("Airport"). B. City believes that Airport employees and Ground Transportation Center users would benefit from the convenience and accessibility of such a food/beverage vending concession. NOW THEREFORE, City and Concessionaire mutually agree as follows: AGREEMENT Section 1. AGREEMENT SUMMARY Certain fundamental Agreement provisions are presented in this Section and represent the agreement of the parties hereto, subject to further definition and elaboration in the respective referenced Sections and elsewhere in this Agreement. In the event of any conflict between any fundamental Agreement provision and the balance of this Agreement, the latter shall control. 1.1 Vending Machine Locations. The "Vending Machine Locations" are not accessible by the general public and described in Exhibit"A" attached hereto. 1.2 Agreement Term. The term of this Agreement shall commence on January 1, 2008 and shall terminate on December 31, 2010 with two (2) one-year renewal options, if approved by the Director of Aviation, and at the mutual consent of both parties. 1.3 Concession Fee. The Concession Fee of as specified in the "Schedule of Payment" and described in Exhibit"B" attached hereto will be based on Gross Sales less applicable sales tax and shall be paid to the City by Concessionaire on a monthly basis. Section 2. TERM 2.1 Initial Term. The initial term of this Agreement shall commence on the date specified in Section 1.2 ("Agreement Term") and shall continue for the period specified therein unless earlier terminated as provided herein. At the end of any Agreement term, the City reserves the right to extend this Agreement for a period or up to sixty (60) days for the purpose of getting a new Agreement in place. 2.2 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement. The City reserves the right to terminate this Agreement at any time, with or Take A Break Service, Inc. Food/Beverage Vending Concession Page 1 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport AND/OR �i- l�bS�Eoti:`� �Cn without cause, upon thirty (30) days' written notice to Concessionaire, except that where termination is due to the fault of the Concessionaire, the period of notice may be such shorter time as may be determined by the City. In addition, the Concessionaire reserves the right to terminate this Agreement at any time with or without cause, upon thirty (30) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as they Concessionaire may determine. Upon receipt of any notice of termination, Concessionaire shall immediately cease all services hereunder except such as may be specifically approved by the City. Section 3. CONCESSION FEE 3.1 Concession Fee: "Concession Fee" shall mean Concessionaire shall pay the City the percentage of Concessionaire's monthly Gross Sales Revenue from the food / beverage vending Concession less applicable Sales Tax. City shall be entitled to compensation from each vending transaction in accordance with the "Schedule of Payment" attached hereto as Exhibit"B" and incorporated herein by this reference. 32 Method of Payment:_ Concessionaire shall be solely responsible for payment of percentage fee per vending transaction by the fifteenth (16h) day of each month of the Agreement term for the prior month. Concessionaire shall pay to City all Concession Fees due City under"Schedule of Payment"for the preceding month. Concession Fee payment will be accompanied by an itemized statement (Monthly Report) showing the number of vending transactions, gross revenue generated from each food / beverage vending machine, related sales tax and net revenue that the Concession Fee is calculated on. 3.3 Additional Rental. For purposes of this Agreement, all monetary obligations of Concessionaire under this Agreement, including, but not limited to, insurance premiums, property taxes (if any), maintenance expenses, late charges and utility costs shall be deemed additional rental. 3.4 Utilities. All cost for electricity used in connection with the food / beverage vending machines shall be paid by City. Concessionaire shall pay before delinquency all charges for telephone service, trash removal and all other services and utilities used in, upon, or about the food / beverage vending machines by Concessionaire. 3.5 Late Payment. Concessionaire hereby acknowledges that late payment by Concessionaire to City of rental or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Concessionaire not paid within five (5) days of its due date shall be subject to a five percent (5%) late charge. City and Concessionaire agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Concessionaire. 3.6 Interest. Any sum to be paid pursuant to the terms of this Agreement not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent (3%) over the reference rate being charged by Bank of America, N.A. from time to time during such period so long as the rate does not exceed the maximum non-usurious rate permitted by law in which case interest shall be at the maximum non-usurious rate allowed by law at the time the sum became due. Take A Break Service, Inc. Food/ Beverage Vending Concession Page 2 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport Section 4. OPERATIONAL/ EQUIPMENT REQUIREMENTS 4.1 Permitted Uses. Concessionaire shall install, operate and maintain free-standing food / beverage vending machines at designated locations as specified on Exhibit "A" at the Airport. These locations are not accessible by the general public. No tobacco or alcohol products shall be sold, offered, or given away by the Concessionaire at the Airport. 4.2 Equipment. Concessionaire shall provide new, or like new, nationally recognized, name brand equipment. Concessionaire shall furnish the manufacturer and models of equipment proposed, including specifications of capacity, and variety of product to be dispensed for advance written approval by the Director of Aviation, Only nationally recognized, premium food and beverage brands shall be allowed. A Product List and Price list will be submitted to the Director of Aviation for approval before operations begin. Product prices may not be changed without prior written approval of the Director of Aviation Vending equipment shall be installed to present an attractive, flush front, matched, uniform configuration. Equipment shall be secured to provide for safe, secure operation, and to prevent tipping, or shifting. All vending equipment shall have the ability to accept$1.00 U.S. currency and various coins, and dispense change for vended products. All vending equipment will be replenished and maintained at least one time per week. It is the Concessionaire's responsibility to keep all vending equipment clean, both inside and outside. Vending equipment should be wiped down and sanitized at least one time per week. Service response time for mechanical problems will be no more than 24 hours from City contact with Concessionaire. Title to food / beverage vending equipment shall remain with the Concessionaire. 4.3 Operational Standards. For the purpose of operating the food / beverage vending concession as described herein, and for no other purpose, the City will allow the Concessionaire, its employees and service persons the right to use the areas of the Airport specified on Exhibit "A", including the necessary rights of access and ingress and egress from the Airport. The operations of the Concessionaire, Its employees, invitees and those doing business with it shall be conducted in an orderly and proper manner and so not to annoy, disturb, or be offensive to others at the Airport. Concessionaire shall provide and its employees shall wear or carry badges or other suitable means of identification. The badges or means of identification shall be subject to the written approval of the Airport Director. The City shall have the right to object to Concessionaire regarding the demeanor, conduct or appearance of Concessionaire's employees, invitees and those doing business with it, whereupon Concessionaire will take steps necessary to remove the cause of objection. Take A Break Service, Inc. Food/Beverage Vending Concession Page 3 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport Concessionaire, its agents and employees shall conduct and maintain a friendly, cooperative, though competitive relationship with its competitors operating in the Airport. Concessionaire shall not engage in open, notorious and public disputes, disagreements or conflicts tending to deteriorate the quality of service of its competitor or be incompatible to the best interest of the public at the Airport. The City shall have the right to resolve all such disputes, disagreements, or conflicts and Its determination shall be final. 4.4 Compliance with Laws. Concessionaire shall, at its sole cost and expense, comply with all of the requirements of all municipal, state, and federal authorities now in force or which may hereafter be in force pertaining to operation of the food / beverage vending concession, and shall faithfully observe in said use all municipal ordinances, including, but not limited to, the General Plan and zoning ordinances, state and federal statutes, or other governmental regulations now in force or which shall hereinafter be in force. 4.5 Rules and Reaulations. Concessionaire shall faithfully observe and comply with the any rules and regulations that City shall from time to time promulgate and/or modify. Any amendment or modification of the Airport Rules and Regulations shall be binding upon the Concessionaire upon delivery of a copy of such amendment or modification to Concessionaire. City shall not be responsible to Concessionaire for the nonperformance of any said rules and regulations by any other Concessionaires or occupants. The Airport Rules and Regulations shall apply and be enforced as to all Concessionaires in the Demised Premises on a uniform basis. Section 5. AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE (ACDBE) 5.1 ACDBE Policy. It is the policy of the City to ensure that Airport Concession Disadvantaged Business Enterprises (ACDBEs) as defined in the Department of Transportation (DOT), 49 CFR Part 23, and other small businesses have an equal opportunity to receive and participate in concession opportunities. The City encourages concessionaire / contractor to make every reasonable effort to maximize the contracting opportunities for ACDBEs and other small businesses in the architectural, engineering and construction of the Premises, and in the procurement of goods and services necessary for the operation of the concession at the Airport. 5.2 Required ACDBE Statements. This agreement is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR Part 23. The concessionaire or contractor agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award or performance of any concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 23. The concessionaire or contractor agrees to include the above statements in any subsequent concession agreement or contract covered by 49 CFR Part 23, that it enters and cause those businesses to similarly include the statements in further agreements. 5.3 ACDBE Participation Reports. Concessionaire / Contractor shall submit ACDBE participation reports as may be required by the City, for the purpose of demonstrating compliance with 49 CFR Part 23. On or before December 31 of each agreement year Concessionaire shall furnish a report certified by an officer of the Concessionaire's company that indicates the following information for its Airport vending concession during the twelve-month period from October 1 of the previous year, through September 30 of the current year. The report shall contain the following information: Take A Break Service, Inc. Food/Beverage Vending Concession Page 4 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport 1. Total Sub Concessions (Number and Dollar Amount) 2. Total ACDBEs Sub Concessions (Number and Dollar Amount) 3. Total Contracts for Goods/ Services (Number and Dollar Amount) 4. Total ACDBEs Contracts for Goods /Services (Number and Dollar Amount) For each ACDBE included in the report the following additional information will be required: 1. Firm Name, address, phone number 2. Sub Concession Type or Goods/Services purchases 3. ACDBE Certification 4. Type of ACDBE Section 6. INSURANCE AND INDEMNIFICATION. 6.1 Insurance. Prior to its ability to access the Airport, Concessionaire will provide City with proof of insurance, at Concessionaire's sole cost and expense, to remain in full farce and effect during the entire term of this Agreement. The following policies of insurance shall be maintained: 6.1.1 Workers' Compensation Insurance. Workers' Compensation Insurance in an amount required by the laws of the State of California and Employer's Liability Insurance in an amount not less that ONE MILLION DOLLARS ($1,000,000) combined single limit for all damages arising from each accident or occupational disease. 6.1.2 Commercial General Liability.Commercial General Liability Insurance written on a per-occurrence and not a claims-made basis with a combined single limit of at least ONE. MILLION DOLLARS ($1,000,000), TWO MILLION DOLLARS ($2,000,000) aggregate limit for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. 6.1.3 Automobile Liability_ Insurance. A policy of comprehensive automobile liability insurance written on a per-occurrence basis in an amount not less than ONE MILLION DOLLARS ($1,000,000) combined single limit covering all owned, non-owned, Agreement, and hired vehicles used in connection with operations occurring at the Airport. 6.1.4 Other Insurance. Such other policies of insurance including, but not limited to, casualty insurance, business interruption insurance, and fidelity insurance, as may be required by the nature of operations. 6.1.5 General Provisions. The above insurance shall be primary and no other insurance maintained by the City will be called upon to contribute to a loss. All polices except Workers Compensation shall have the City named as an additional insured. Workers Compensation insurance of the Concessionaire shall contain a waiver-of- subrogation clause in favor of the City, its officers, directors, officials, agents, employees, volunteers, and representatives. All policies of insurance required to be obtained by Concessionaire hereunder shall be issued by insurance companies authorized to do business in California and must be rated no less than B++, VII or better in Best's Insurance Guide. Prior to engaging in any operations hereunder, Concessionaire shall deliver to City certificate(s) of insurance and original endorsements evidencing the coverage's specified above. Such policies shall not be cancelled or materially altered to the detriment of City or Concessionaire without the insurer providing City with thirty (30)days'written notice. Take A Break Service, Inc. Food/Beverage Vending Concession Page 5 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport 6.2 Indemnification by Concessionaire. Concessionaire shall indemnify, defend (with counsel designated by City), protect and hold harmless City, City's Parties and the Releasing Parties from and against any and all claims, demands, judgments, actions, damages, losses, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees and court costs) arising at any time directly or indirectly from or in connection with (i) any default in the performance of any obligation by Concessionaire to be performed under the terms of this Agreement, (ii) the conduct of Concessionaire's business or any activity, work or things done, permitted or suffered by Concessionaire in or about the Airport, except to the extent caused by City's negligence or willful misconduct. The obligations of Concessionaire under this Article 6 shall survive the expiration or earlier termination of this Agreement. Concessionaire, as a material part of the consideration to City, hereby assumes all risk of damage to the food / beverage vending equipment, including, without limitation, injury to persons in, upon or about the food ! beverage vending equipment during Concessionaire's activity at the Airport, except where such damage or injury is caused solely by the negligence or willful misconduct of the City or the City's Parties. Concessionaire hereby waives all claims with respect thereof against City. City shall not be liable for any injury to the Concessionaire, or injury to or death of any of Concessionaire's Parties, or injury to or death of any other person in or about the Airport from any cause except to the extent caused by the negligence or willful misconduct of the City or the City's Parties. 6.3 Assumption of All Risks and Liabilities. Concessionaire assumes all risks and liabilities arising out of the operation of the food / beverage vending concession by Concessionaire or Concessionaire's Parties, except where such damage or injury is caused solely by the negligence or willful misconduct of the City or the City's Parties. Section 7. ABANDONMENT AND SURRENDER. 7.1 Abandonment. Concessionaire shall not abandon the food / beverage vending equipment at any time during the term of this Agreement. If Concessionaire shall abandon or surrender the food / beverage vending equipment at the Airport during the agreement term, said equipment may be deemed to be abandoned, at the option or City may be dispossessed by process of law 7.2 Surrender of Agreement. The voluntary or other surrender of this Agreement by Concessionaire or a mutual cancellation thereof, shall not work a merger, and shall, at the option of City, terminate all provisions of existing Agreement. Concessionaire shall not assign or sublease Agreement. Section 8. ENFORCEMENT OF LAW 8.1 Governing Law. This Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California. 8.2 Compliance with Law. All services rendered hereunder shall be provided in accordance with all applicable ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State, or local governmental agency having jurisdiction in effect at the time service is rendered. Take A Break Service, Inc. Food/Beverage Vending Concession Page 6 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport 8.3 Waiver. The waiver of any breach of any provision hereunder by City or Concessionaire shall not be deemed a waiver of any preceding or subsequent breach hereunder. No failure or delay of any Party in the exercise of any right given hereunder shall constitute a waiver thereof nor shall any partial exercise of any right preclude further full exercise thereof. 8.4 Severability. If any paragraph, section, sentence, clause or phrase contained in this Agreement shall become illegal, null or void, against public policy, or otherwise unenforceable, for any reason, or held by any court of competent jurisdiction to be illegal, null or void, against public policy, or otherwise unenforceable, the remaining paragraphs, sections, sentences, clauses or phrases contained in this Agreement shall not be affected thereby. 8.5 Attorney's Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding in addition to any other relief, which may be granted, shall be entitled to reasonable attorney's fees and costs. Section 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION. 9.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Concessionaire, or any successor in interest, in the event of any default or breach by the City or for any amount, which may become due to the Concessionaire or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. Concessionaire warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 9.3 Standard Covenant Against Discrimination. Concessionaire covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Concessionaire shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.4 Americans With Disabilities Act. In its operation of the food / beverage vending concession, Concessionaire shall comply with the Americans with Disabilities Act and all federal regulations applicable under the Act. Section 10. FAA REQUIRED PROVISIONS. 10.1 Concessionaire, as a part of the consideration for this Agreement, covenants and agrees "as a covenant running with its interest in property" that in the event facilities are constructed, maintained, or otherwise operated on the Airport for a purpose for which a Take A Break Service, Inc. Food/Beverage Vending Concession Page 7 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport Department of Transportation ("DOT') program or activity is extended or for another purpose involving the provision of similar services or benefits, the Concessionaire shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations DOT, Part 23, Nondiscrimination in Federally Assisted Programs of the Department of Transportation- Effectuation of Title VI of the Civil Rights Act of 1964, as such regulations may be amended from time to time. 10.2 Concessionaire shall furnish its services on a fair, equal, and not unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable, and not unjustly discriminatory prices for its services; provided that Concessionaire may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar type of price reductions to volume purchases or other rational, reasonable basis. Non-compliance with this provision shall constitute a material breach of this Agreement and in the event of such non-compliance, City shall have the right to terminate this Agreement and any interest in property created without liability or at the election of the City or the United States either or both Governments shall have the right to judicially enforce this provision. 10.3 This Agreement shall be subordinate to the provisions and requirements of any existing or future agreement between the City and the United States relative to the development, operation, or maintenance of the Airport. 10.4 This Agreement, and all provisions hereof, shall be subject to whatever right the United States Government now has or in the future may have or acquire, affecting the control, operation, regulation, and taking over of the Airport or the exclusive or non-exclusive use of the Airport by the United States during a time of war or national emergency. 10.5 This Agreement shall not be construed as an exclusive arrangement and Concessionaire further agrees that the City, may at any time, secure similar or identical services at it sole option. Section 11 MISCELLANEOUS PROVISIONS 11.1 Headings. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions of this Agreement. 11.2 Counterparts. This Agreement may be signed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one instrument. 11.3 Labor Disputes. Concessionaire shall give prompt notice to City of any actual or potential labor dispute which delays or may delay performance of this Agreement. 11.4 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Concessionaire covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 11.5 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefore. The Take A Break Service, Inc. Food/Beverage Vending Concession Page 8 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport injured parry shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured parry; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Concessionaire's right to terminate this Agreement without cause pursuant to Subsection 5.4(c). 11.6 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either parry of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 11.7 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 11.8 Reservation of City Rights. City reserves the right, but shall not be obligated to Concessionaire, to maintain the Airport in good repair. The City further reserves the right to direct and control all activities of Concessionaire consistent with the provisions of this Agreement. 11.9 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 11.10 Integration; Amendment. It is understood that there are no oral Agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels all previous negotiations, arrangements, Agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 11.11 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 11.12 Notice.Any notice required or permitted to be given hereunder shall be in writing and signed by the Parry, officer or agent of the Party to whom it is to be sent, and shall be either: (1) personally delivered to the Party to whom it is to be sent, or (2) sent via overnight courier services, or (3) sent via certified or registered mail, return receipt Take A Break Service, Inc. Food/Beverage Vending Concession Page 9 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport requested, postage prepaid to the respective addresses, or such other addresses as the Parties may specify in writing: To-City: Palm Springs International Airport Attn: Director of Aviation 3400 East Tahquitz Canyon Way, Suite OFC Palm Springs, California 92262-6966 To Concessionaire: Take a Break Service, Inc. Attn: Mark Buckley, Director of Food Services 2120 Harmony Grove Road Escondido, California 92029 800200.4799 Take A Break Service, Inc. Food/Beverage Vending Concession Page 10 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written-above. CITY OF PALM SPRINGS ATTEST: a municipal corporation iBy / By ' Clerk - 1 p d$/ 00eJj City Manager APPROVEDK 0 FORM: By: /o' —�i � APPROVED 6Y CITY MANAGER City Attor/ey _ktys1l 6Q CONCESSIONAIRE: Check one:_Individual_Partnership KCorporation Corporations r ❑ZSretary,notarized signatures:One from each of the following.A.C arc an of rd P sid at;-or any Vice President:AND 6 Secretafy,Ass Treasurer,Assistant Treasurer,or Chief Finc By.� By: iz Signaturdv(no�jterized)` / Signature(nn000ttarirzed) Name-_ n1'"2� J u cl_ Name:/A- /(( Title: �� i �t�- ��I�� •-- Title: v %,r, cr State of C CC A G, State of _ County of&N 0 � o n d ss County of ati 0 ss (' L On 1j �7 before me, Q S L/AMR R 15 f" On (�27 before me,_(J J v -N,0 Personally appeared SN.P LL.e� Personally appeared W tle rC 4 G h Q dawn-to-rtw(or proved to me on the basis of y(or proved to me on the basis of sabs actory satisfactory evidence)to be the person(y)whose nameW evidence)to be the Person(s)whose names)is/are subscribed to is*4 subscribed to the within instrument and acknowledged the within Instrument and acknowledged to me that helsheAlleq to me that helsheApey executed the same in hisRieNtheir executed the same in hislhwAlheir authorized capacity(4q.and that authorized capacity(ies),and that by his/heNfHerc signature(4) by hislherAtre r signature(Q on the instrument the person( ).or the on the instrument the person(24,or the entity upon behalf or entity upon behalf of which the person(s)acted,executed the which the perzonN)acted,ex uted the instrument. instrument. WITNESS my hand an Ia seal. WITNESS my hand an fficiall// al Notarysignature: Notary-lgnature:�� Notary Seal: Notary Seal. W D. SUNDQUIST Comm.# 1668900 /�pp NOTARY PUBLIC-CALIFORNIA W EAN OIECO COUNTY Mr CORN EXP JUNt 1B,2010'r D. SUNDQUIST < r�pp COMM.(; 1668900 t� u, NOTARY PUBLIC.CAIPORNIA y+ Take A Break Service, Inc. Mr co a ex��JCOUNTY 2u1o" Food/Beverage Vending Concession Page 11 of 13 Off Non-Exclusive Operating Agreement Palm Springs International Airport Exhibit"A" Vending Machine Locations The designated locations/ number of food / beverage vending machines are as follows.- Ground Transportation Center(115" x 56" area) (Open 0600-0000) Food vending machine— 1 Beverage vending machine— 1 Coffee vending machine— 1 City Airport Operations Employee Break Room (Open 24 hours) Food vending machine-- 1 Beverage vending machine- 1 Airport Employee Patio Area (Beginning Fall 2007—Open 24 hours) *Food vending machines—2 or 3 *Beverage vending machine/s - 1 or 2 *Total of four vending machines will be approved for this location. Take A Break Service, Inc. Food/Beverage Vending Concession Page 12 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport Exhibit'B" Schedule of Payment Food / Beverage Vending Machines as listed in Exhibit "A" shall generate the following Concession Fees based on Gross Revenue minus applicable Sales Tax: Food Vending Machines: 15 % Concession Fee to City Beverage Vending Machines: 15 % Concession Fee to City Coffee Vending Machine: 15 % Concession Fee to City The number and type of vending machines or cost per product item shall not be changed unless Concessionaire receives prior written approval from the Director of Aviation. Take A Break Service, Inc. Food/Beverage Vending Concession Page 13 of 13 Non-Exclusive Operating Agreement Palm Springs International Airport