Request for Proposal AUTOMATED BEVERAGE … for Proposal . AUTOMATED BEVERAGE VENDING ... and related information for each machine as ... Request for Proposal: Automated Beverage Vending

Proposal No. P12/9757 July 21, 2011

Request for Proposal

AUTOMATED BEVERAGE VENDING SERVICE

Pima County Community College District (“College” or “District”) is seeking proposals from qualified Vending Service Contractors to provide Automated Beverage Vending Service for the District’s campuses and administrative offices throughout the Tucson metropolitan area. The deadline for receipt of sealed proposals is: Wednesday, August 24, 2011 at 3:00 PM (Mountain Standard Time). Sealed proposals must be received by this deadline at the following location:

Pima County Community College District District Finance Office-Purchasing 4905D East Broadway, Room D-232 Tucson, Arizona 85709-1420

Any proposal received after the date and time listed above will be returned and will not be considered. Questions pertaining to this Request for Proposal (RFP) must be communicated in writing and be received via email by Tuesday, August 2, 2011 at 3:00 PM (Mountain Standard Time). Questions must be sent to the email address below and should include the specified Buyer’s name and proposal number, and any question(s) should include a reference to the appropriate page and section number of the RFP. Questions and answers will be posted on the Pima Community College webpage listed below by Friday, August 5, 2011 at 5:00 PM (Mountain Standard Time):

Linda A. Ellis, Senior Buyer [email protected]

Copies of the Request for Proposal, questions and answers, and any related documents are available on the Pima Community College Website: http://www.pima.edu/admin/finance/purchasing/rfp.shtml Thomas E. Harrington, C.P.M Purchasing Director Pima County Community College District District Finance Office-Purchasing 4905 East Broadway, Room D-113 Tucson, Arizona 85709-1420

mailto:[email protected]�

http://www.pima.edu/admin/finance/purchasing/rfp.shtml�


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Table of Contents Section 1 Project Summary Section 2 Scope of Work Section 3 Proposal Preparation and Submittal Section 4 Selection and Contract Award Section 5 RFP Completion Checklist Section 6 Proposal Form/Pricing and Commission Section 7 Agreement Attachment A Terms and Conditions


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Section 1 Project Summary

1. Request for Proposal Summary

Pima County Community College District (“College” or “District”) is seeking proposals from qualified firms for Automated Beverage Vending Service in accordance with the Scope of Work specified in this Request for Proposal (RFP). This Request for Proposal is for the provision of a coin, bill, and debit/credit card operated self-service, machine-vended beverage operation at the District's campuses and administrative offices throughout the Tucson metropolitan area. The beverage service categories are: carbonated soft drinks, water, energy drinks, sports drinks and juice. The District desires a full service contract under which the supplier provides all equipment, service, communication lines and product and pays a commission to the District. The District anticipates an increase in the number of machines on the District’s owned or controlled premises.

2. Entity Submitting RFP The terms “vendor”, “proposer”, “offerer”, “firm”, “consultant”, “company” or “contractor” used in this RFP or any subsequent documents or communications related to this RFP are interchangeable and mean the entity submitting a proposal and seeking to enter into a contract for the goods and/or services requested in this RFP.

3. Description of Pima County Community College District Pima County Community College District, located in Tucson, Arizona, is one of the ten largest multi-campus, multi-site Community Colleges in the United States. The College is a two-year institution offering both occupational and traditional college courses, and awards many different degrees and certificates. The College’s comprehensive curriculum includes credit courses, workforce development programs (Center for Training and Development), adult education special programs (GED), as well as corporate and community based non-credit instruction. Students attend classes at six major campuses including the Community Campus, which itself holds classes at over 70 locations in Southern Arizona. The College employs more than 1,400 regular employees, approximately 1,500 adjunct faculty and 500 part-time personnel. More than 70,000 students attend credit and non-credit classes annually. The population for the Tucson metro area is over 1 million people. The College is accredited by the Commission on Institutions of Higher Education of the North Central Association of Colleges and Schools. Details of the District’s locations and other information relative to the District may be found at www.pima.edu.

4. Background Information – Vending

The District views the machine-vended beverage service as both a service to the District community and as a source of revenue.

http://www.pima.edu/�


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The District intends for selected proposer to complete a District-wide evaluation of the placement, stock, product mix, cost, and related information for each machine as currently placed with the intent to improve sales and service. The District is also interested in providing outdoor, secured ramadas in high-traffic areas to improve sales.

The District’s calendar year 2010 sales volume is noted below:

Pima Community College Volume 2010

Package Volume

(Raw Cases) Product Units Sold 13.7oz 12L 4.67 Frapp 13.7oz 12 per case 56.00

9.5oz 12L 4.00 Frapp 9.5oz 12 per case 48.00

15.2oz 12L 350.25 Ocean Spray Juice 15.2oz 12 per case 4,203.00

16oz 12L 9.13 Tea Glass 16oz 12 per

case 109.50

20oz 12L 162.42 Sobe 20oz 12 per case 1,949.00

20oz 24 4,779.34 Soda 20oz Bottles 24 per

case 114,704.16

Can 12oz 6P 2,443.38 Soda Cans 24 per case 58,641.12

Can 15oz 12L 140.92 Energy Coffee 12 per

case 1,691.00

Can 16oz 12L 213.63 Energy cans 12 per case 2,563.50

Can 16oz 24L 14.38 Energy cans 24 per case 345.00

5. Term of Contract The term of the initial contract(s) will be a forty-five (45) month term, with the first year beginning October 1, 2011 through June 30, 2012; renewable for three (3) additional years upon mutual agreement of Contractor and the District.


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Section 2 Scope of Work

The Form of Agreement included in Section 7 contains a complete listing of specifications, scope of work, terms and conditions. The following should be addressed in detail to clarify and highlight critical areas of the service.

1. Project Start-Up Proposals should include a schedule for full service implementation including a required

in situ operational analysis. The schedule should include a proposed time-line for the installation of equipment in order to have the least disruptive impact on District operations and be fully operational from October 1, 2011 forward.

2. Product All products vended shall be nationally recognized, brand name products. The Proposer shall clearly describe all products to be vended, including the unit sizes of all products. The District Representative shall approve all products prior to initial placement as well as any proposed changes to the brand name product or unit size before being placed in machines for sale. There shall be no galls containers vended from the machines at any location.

3. Beverage Categories

3.1. Carbonated Soft Drinks – All refrigerated carbonated flavored drinks.

3.2. Water – Water is drinking water, usually spring water or mineral water, or simply treated water sold in a portable container.

3.3. Energy Drinks – Beverages which contain legal stimulants, vitamins, and minerals. 3.4. Sports Drinks - Non-carbonated refrigerated isotonic drinks intended to replenish nutrients

lost through heavy exertion or sports. 3.5. Juices - Non-carbonated refrigerated drinks containing at least seventy percent (70%) natural

juice by volume.

4. Vending Machines 4.1. Vending machines installed throughout the term of the contract must be less than three (3)

years old. All machines must be Energy Star certified and remain the property of the Proposer. 4.2. All machines shall accept debit/credit cards, coin and bill payments. Exceptions will be granted

for machines for which the average product vended purchase price is less than $1.25. 4.3. The District shall specify a maximum or minimum number and type of machines which may be

placed at specific locations on the premises. Proposer shall monitor sales to determine each


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machine’s usage and profitability. If specific machines are not realizing their maximum usage and exposure, proposer shall provide recommendations for relocation, product mix adjustments, pricing adjustments or other improvements.

4.6. Proposal shall include manufacturer cut sheets and digital photos of the vending machines to be used in this contract.

4.7 Proposers may suggest alternative locations for initial placement of machines, including

outdoor locations as applicable together with any security arrangements required for the proposed location.

5. Quality Control Protocol

5.1. All proposers shall submit their quality control protocols used for microbiological control,

quality assurance and recall process.

5.2. Proposer shall submit their target microbiological specifications and audit reports for each refrigerated item for the prior year.

6. Sanitation Plan

Proposer shall submit their sanitation plan and schedule for cleaning all machines covered by this proposal. Proposer must follow GMPs (Good Manufacturing Practices) for food processing, preparation, storage, packaging and distribution according to 21 CFR (Code of Federal Regulations).

7. Financial Issues 7.1. Proposer shall pay the District a commission on gross sales, before deducting costs of any kind

including taxes. Gross sales shall include refunds and lost or missing stock. 7.2. Proposals shall include a proposed commission structure and may include support for

construction and installation of machines in new locations or ramadas but shall not include exclusivity payments, signing bonus or allocations to student groups or scholarships.

7.3 Proposer shall pay the District interest at 18% on any payments not received by the due date,

compounded daily. 7.4. The term of the initial contract(s) will be forty-five (45) months 7.5. District has set the price for Carbonated Soft Drinks at $0.75 for 12 oz and $1.25 for 20 oz

containers. Proposer shall suggest prices for other beverage categories. Pricing under this provision shall apply until July 1, 2013 after which date price increases may not total more than the increase in the most recent Consumer Price Index (CPI) for the most recent period prior to the July 1 price change effective date. Price changes requested beyond this CPI standard will require Proposer to provide documentation reflecting a material change in the cost of goods affecting the Proposer.


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8. Service Proposer shall relocate or remove a machine within seven (7) workdays after receipt of a routine

relocation or removal request from the District. Proposer shall relocate or remove a machine within two (2) workdays after receipt of an emergency relocation or removal request from the District.

In the event installation of a machine causes disruption of the electrical service at the premises, Proposer will immediately discontinue use of the machine and request approval from the District Representative to either install a dedicated electrical circuit at Proposer’s expense or relocate the machine.

Proposer shall maintain stock in all machines. District maintains term schedules with significant fluctuations in campus attendance which leads to the potential for product shortages and/or slow product movement at certain times. Proposer is to recognize these fluctuations and respond appropriately so as to eliminate product out-of-stocks and/or outdated product. Proposer will pay District $100 for each out-of-stock or outdated product notification received by District Representative.

9. Reporting District intends to monitor closely all sales by product, machine, day, date and other variables intended to assist in improving sales. Proposer shall include in proposal a copy of sample reports demonstrating these reporting requirements.

10. Recycling Containers

District is interested in vendor-sponsored recycling programs.

11. Key Control

Proposer will reimburse District the cost of keying all doors resulting from a lost key.

12. Proposer Advantages

District desires to contract with a provider who can identify service innovations which drive the purchase of vended beverages. District expects the selected firm will initiate an active approach to innovation, distribution and marketing of beverages. Proposer shall include a description of special resources, skills or services which the firm possesses as standard business practices and detail any advantages District would realize as a result of these resources.

13. Value-Added Services

Proposal may include other services, options, ideas, etc., which are not part of the standard scope of services but would be available to the District.


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Section 3 Proposal Preparation and Submittal

Proposals must conform to all requirements stated below, and elsewhere in this RFP. Disregarding these requirements may result in disqualification of the proposal. Before submitting a proposal, each firm shall familiarize itself with the entire RFP, including Scope of Work, contract form and all laws, regulations and other factors affecting contract performance. The firm shall be responsible for fully understanding the requirements of a subsequent contract and otherwise satisfy itself as to the expense and difficulties accompanying the fulfillment of contract requirements. The submission of a proposal will constitute a representation of compliance by the firm. There will be no subsequent financial adjustment for lack of such familiarization. All proposal materials must be placed in a sealed package (envelope, box, etc.) clearly marked with the proposal name and number and the firm’s name. It is the responsibility of the firm to ensure that proposals are received in the Office of the Purchasing Director by the due date and time stated on page 1 of this RFP. The firm is responsible for delivery of their proposal by the deadline notwithstanding any claims of error or failure to perform by a mail, courier or package delivery service. No proposals or proposal modifications may be submitted orally, electronically, or via telephone, facsimile, electronic mail (email) or telegraph. All proposals must be typewritten on standard paper size (8½ x 11 inches) and shall be in the required format incorporating the forms provided in this RFP package, if any. It is permissible to copy these forms as required. The authorized person signing the proposal shall initial erasures, interlineations or other modifications on the proposal. The firm’s proposal should be organized in sections as outlined below:

1. Cover Letter

All proposals must include a cover letter submitted under the firm’s name on the firm’s letterhead containing the signature and title of a person or an official of the firm who is authorized to commit the firm to a potential contract with the College. The cover letter must also identify the primary contact for this proposal and include the College’s RFP number found within this RFP. The cover letter should express the firm’s interest and serve as an executive summary of the proposal. Claims of proprietary information must be included in the cover letter.

2. Proposal Form

All proposals must include the complete Proposal Form signed by a person or an official authorized to commit the firm to a contract with the District.

3. Proposal Copies

Proposals must be submitted as follows:

a. One (1) hardcopy clearly marked ‘original’ in 8.5” x 11” non-binding form. No metal or plastic binding – may use binder, folder, or clip for easy removal of proposal.


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b. One (1) electronic copy on CD in PDF format, labeled, and not password protected. Any confidential and/or proprietary documents must be on a separate CD and labeled appropriately.

4. Response to Scope of Work

Responses must be clear and thorough, but concise, and written in plain, easy to understand language. Responses must follow the numbering format used in the Scope of Work section. All proposals should be submitted in the format shown; proposals in any other format will be considered informal and may be rejected. Conditional proposals will not be considered. All proposals must be signed by an individual authorized to extend a formal proposal and bind the proposing organization; proposals that are not signed may be rejected. The District reserves the right to reject any or all proposals or any part thereof, or to accept any proposal, or any part thereof, or to withhold the award and to waive or decline to waive irregularities in any proposal when it determines that it is in its best interest to do so. The District also reserves the right to hold all proposals for a period of 60 days after the opening date and the right to accept a proposal not withdrawn before the scheduled proposal opening date.

5. Exceptions Requested

Any exceptions to the requirements of this RFP that the firm requests the College to consider must be placed in this section, including responses to any exceptions to Section 2 – Scope of Work, Section 3 – Proposal Preparation & Submittal and Section 7 – Pro-Forma Agreement. Each alternate or exception should be addressed separately with specific reference to the requirement. If there are no proposed alternates or exceptions, a statement to that effect must be included in this section of the proposal. Any proposed terms and conditions, contracts, waivers, licenses or agreements required by the firm should be included here with a brief explanatory introduction.

6. Proprietary Information In the event any proposer shall include in the proposal any information deemed "proprietary" or "protected," such information shall be separately packaged from the balance of the proposal and clearly marked as to any proprietary claim. The College discourages the submission of such information and undertakes to provide no more than reasonable efforts to protect the proprietary nature of such information. The College, as a public entity, cannot and does not warrant that proprietary information will not be disclosed. The College shall have the right to use any and all information included in the proposals submitted unless the information is expressly restricted by the proposer.

7. References

The District is soliciting proposals from firms in the business of providing services as listed in this Request for Proposal. The proposal submission shall include, at a minimum, references from three (3) accounts similar in size and scope to the District requirements. Each reference shall include: contact name, company name, title/position, telephone number, and e-mail address of primary contact person. Each reference shall also include the number of machines installed at each particular location. Failure to include this information may result in rejection of your proposal.


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8. Cost Proposal

Pricing and Commission per Section 6. 9. Appendix

The Proposal Appendix must include: a. All documents or forms required by the College to be completed by the firm including the required

documents specified in the Appendix of this RFP.

b. Details of any litigation your company or any of its subsidiaries or affiliates has had in the past five years relate to the performance of services provided by your firm.

c. If a firm has had any previous contracts canceled or is currently debarred, suspended, or proposed for debarment by any government entity, the current status must be documented in this proposal. The firm agrees to notify the College of any change in this status. If any customer has stopped using the product(s) or service(s) you are proposing, provide details including customer name, date when product was installed, date when product was discontinued (usage) and reason for discontinuation, including contact details of the customer.

d. If the firm intends to use any cooperative, subcontract, third party agreement, or the like to perform under their proposal, the firm must supply the name, address, qualifications and criteria used by the firm for selection of any third party, and the intended services to be performed. The services provided under the scope of work proposed, in part or in whole, shall not be subcontracted our assigned without prior written permission of the College, except that the contractor may, without prior approval and without being released from any of its responsibilities hereunder, assign the contract to any affiliate or wholly-owned subsidiary of the contractor.

e. Samples of any documentation or form that proposer will require the College to sign.

10. General a. Cost of Proposal Preparation

The College shall not reimburse the cost of developing, presenting or providing any response to this solicitation; offers submitted for consideration should be prepared simply, and economically, providing adequate information in a straightforward and concise manner.

b. Certification

By signature on the Proposal Form included herein, the consultant certifies that the submission of the proposal did not involve collusion or other anti-competitive practices. The consultant has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the submitted proposal. In addition, consultant certifies whether or not an employee of the College has, or whose relative has, a substantial interest in any agreement


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subsequent to this document. Consultant also certifies their status with regard to debarment, or suspension by any governmental entity. Failure to provide a valid signature affirming the stipulations required by this clause shall result in the rejection of the submitted proposal and, if applicable, any resulting agreement. Signing the certification with a false statement shall void the proposal and, if applicable, any resulting agreement. Any resulting agreement may be subject to legal remedies provided by law. Consultant agrees to promote and offer to the College only those services and/or materials as stated in and allowed for under resulting agreement(s).


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Section 4 Selection and Contract Award

Proposals shall be evaluated based on the requirements set forth in the RFP. Selection of the firm(s) will be at the discretion of the College and will be based on the proposal that the College deems to be the most responsive and responsible and serves the best interests of the College. It is the intent of the College to negotiate and enter into a contract with the selected firm following a Notice of Intent of Selection. Selected proposer(s) may be required to make on-site oral and visual presentations or demonstrations at the request of the College. The College will schedule the time and location for any presentations. Costs and equipment for such presentations are the responsibility of the proposer. Best and Final offers may be solicited from the pool of finalists prior to selection of the successful firm.

During this discussion period, the District will not disclose any information derived from proposals submitted or from discussions with other proposers. Once an award is made, the solicitation file, and the proposals contained therein, are in the public record and will be disclosed upon request. The award shall be made to the responsible proposer whose proposal is determined to be the most advantageous to the District based on the evaluation criteria listed below. Price, although a consideration, will not be the sole determining factor. Proposals will be reviewed by a selection committee and will be evaluated based on the following criteria, listed in order of their relative priority with most important listed first:

1. Commissions The income offered to the District based on established vending prices. District is interested in a provider to take an active approach to innovation, distribution and marketing to increase sales immediately and over the term of the contract

2. Equipment Quality, quantity, functionality, suitability, and energy consumption of vending equipment offered. Level of maintenance for the equipment offered as demonstrated in the proposal, including proposed response times for repair. District is interested in proposals guaranteeing service levels for product quality and availability with penalties paid by proposer for not achieving said guarantees.

3. Products Quality and brand name recognition of the products to be vended. District is interested in a broad product selection responsive to its diverse student profile.

4. Compliance with Agreement Terms Proposer’s ability to comply with the terms of the Form of Agreement and the Scope of Work.

5. Experience Demonstrated experience with contracts of a similar size and service level.


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Section 5

RFP Completion Checklist This checklist is a summary of some of the required components of the RFP. It is provided as a convenience to contractors, but is not intended to be all-inclusive or to imply acceptance or evidence of compliance by its use. It is the responsibility of the contractor to submit complete and compliant proposals.

� Cover Letter

� Proposal Form/Pricing and Commission

� Response to Scope of Work

� Agreement

� Appendix


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Section 6 Proposal Form/Pricing and Commission

Date __________________________________ Proposal of ___________________________________________________________________. (Name) a corporation organized and existing under the laws of the State of ______________________; a

partnership consisting of ________________________________________; an individual trading as

_______________________________________________________________.

(Name) Request for Proposal: Automated Beverage Vending Service To: Pima County Community College District (“College”)

1. In compliance with your Request for Proposal No. P12/9757, the undersigned hereby offers to furnish the services designated in the RFP, in strict accordance with the RFP, upon written notice of acceptance of this Proposal at any time within thirty (30) days after the date of opening of the Proposals, and to execute the Contract in accordance with the Proposal as accepted within five (5) days after the Contract is presented for signature.

2. The undersigned Proposer hereby acknowledges receipt of the following Addenda, if any: Addendum No. Date ____________________ _____________________ 3. Required Pricing

Prices for carbonated soft drinks shall be $0.75 for 12 oz and $1.25 for 20 oz containers. Proposer shall submit their suggested vending prices for sports drinks, energy drinks, juice and water.

4. Commission Data Sheet: Use chart below to indicate proposed commissions by product.

Item Percent Commission Carbonated Soft Drinks

%

Sports Drinks

%

Energy Drinks

%

Water

%

Juice

%


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5. The undersigned Proposer understands that the College reserves the right to reject any or

all Proposals or to waive any formality or technicality, as determined by the College in its sole discretion, in any Proposal in the interest of the College.

6. The undersigned Proposer hereby certifies and affirms that this Proposal is genuine and

not a sham or collusive, nor made in the interest or behalf of any person not herein named, and that the undersigned Proposer has not directly or indirectly induced or solicited any other Proposer to put in a sham bid, or any other person, firm, or corporation to refrain from bidding, and that the Proposer has not in any manner sought by collusion to secure for itself an advantage over any other Proposer.

5. The undersigned certifies that to the best of his/her knowledge: (check only one)

( ) There is no officer or employee of Pima Community College who has, or would have, or whose relative has, or would have, a substantial interest in any contract resulting from this request. ( ) The names of any and all public officers or employees of Pima Community College who have, or would have, or whose relative has, or would have, a substantial interest in any contract resulting from this request, and the nature of the substantial interest, are included below or as an attachment to this Proposal.

_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ 6. The Proposer certifies, to the best of its knowledge and belief, that: (i) The Proposer and/or any of its Principals or Owners:

(A) (check one) are ( ) or are not ( ) presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any governmental agency. (B) (check one) have ( ) or have not ( ), within a three year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain or performing a public (federal, state or local) contract or subcontract; violation of federal or state antitrust statutes, rules or regulations relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion; or receiving stolen property; and (C) (check one) are ( ) or are not ( ) presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any other of the offenses enumerated in paragraph (i)(B) of this provision.


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(ii) The Proposer (check one) has ( ) or has not ( ), within a three year period

preceding this offer, had one or more contracts terminated for default by any governmental agency.

“Principals,” for the purposes of this Proposal, means officers, directors, owners, partners and persons having primary or substantial management or supervisory responsibilities within a business entity.

7. The certifications in paragraphs 4, 5 and 6 of this Proposal are material representations of

fact upon which reliance will be placed when making an award. If it is later determined that the Proposer knowingly rendered an erroneous certification, in addition to other remedies available to the College, the College may terminate the contract resulting from this solicitation for default.

______________________________________ (Official Name of Firm) SEAL - If Bidder is a ______________________________________ Corporation (Signature) ______________________________________ (Print Name) ______________________________________ (Title) _______________________________________ (Complete Business Address) _______________________________________ (Email Address) _______________________________________ (Federal Taxpayer ID Number)


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Section 7 AGREEMENT

AGREEMENT FOR SUPPLY AND SUPPORT OF

COIN, BILL, AND CARD OPERATED SELF-SERVE MACHINE VENDED BEVERAGES

This Agreement is entered into as of , 2011, between Pima County Community College Distr ict and (“Contractor”).

____________________________

District and Contractor mutually agree Contractor shall provide goods and services in accordance with the specifications and terms of this Agreement.

1.

1 .1 . Dis t r i c t i ssued a Req uest f o r P roposa l ( “RFP” ) “

RECITALS

Automated Beverage Vend ing Serv ice ” da ted ________________

1.2. District and Contractor desire to enter into this Agreement to Supply and Support a Coin, Bill, and Card Operated Self-Service Automated Beverage Service.

and Con tractor responded to said RFP by its proposal dated ______________________________ (“Proposal”) both of which are incorporated herein by reference.

2.

In addition to other defined terms used herein, the following terms shall have the meaning ascribed to them below:

DEFINITIONS

May: I n d i c a t e s s o m e t h i n g t h a t i s n o t m a n d a t o r y b u t permissible/desirable.

Shall, must, will: Indicates a mandatory requirement. Failure to meet these requirements could result in District seeking any and all remedies available to it to obtain performance.

Should: Ind icates someth ing tha t is recommended but not required.

Commencement Date: October 1, 2011

Agreement Year: Initial 9-month term followed by each 12-month period commencing on July 1 and ending on the next succeeding June 30, occurring during the term of the contract and ending June 30, 2015. Accounting Period: Unless otherwise agreed in writing, the accounting period is defined as each of the twelve months in the year.


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Premises The space consisting of service provision areas located in District owned, leased, or controlled areas.

3.

All statements, notices, and other communications pertaining to this Agreement shall be written, and unless otherwise provided, shall be deemed to have been duly given when delivered in person; when sent by facsimile machine as evidenced both by the transmission report generated by a fax machine to indicate that the fax was successfully transmitted and a record of a call verifying that the facsimile transmission was received; when sent via an express delivery service that provides proof of delivery; or when sent by the U.S. Mail in a manner that provides proof of delivery (e.g. certified return receipt requested or registered), to the address set forth below, or to such other address or addresses as may be designated in writing by notice to the other party pursuant to this paragraph. Either party may by notice to the other specify a different address for subsequent notice purposes.

NOTICES

Formal Notices

If to District:

If to Contractor:

Routine Correspondence

If to District, correspondence shall be directed to the designated District Representative for this contract:

If to Contractor:


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4 .

T E R M

The term of the initial contract(s) will be a forty-five (45) month term, with the first year beginning October 1, 2011 through June 30, 2012; renewable for three (3) additional years upon mutual agreement of Contractor and the District.

5 .

5.1.

PREMISES

License.

5.2.

Subject to all the terms and conditions hereof, District hereby grants to Contractor a license right to use and occupy the Premises for the purpose herein provided. Contractor accepts the Premises "AS IS" based upon its own inspection and investigation, and without any reliance or warranty of District.

Use

. Contractor shall occupy and use the Premises only for the purpose of operating a vending service in accordance with the terms and conditions of this Agreement and for no other purpose. Contractor shall not use or allow the Premises to be used for any unlawful purpose. Contractor shall not commit or allow to be committed any waste or nuisance on the Premises. Contractor shall not overload the floors or structure of the building in which the Premises is located, or subject the Premises to any use that would damage the Premises or raise or violate any insurance coverage maintained by District. Contractor shall have access to and use of the facilities. Contractor shall exercise prudent control over the facilities to minimize wear and tear on building and fixtures. Repairs necessitated from misuse by Contractor shall be paid by Contractor.

5.3. Alterations.

No alteration shall be made to District's owned, leased, or controlled buildings or fixtures, or to utility services, by Contractor without the prior written consent of District Facilities Management, who reserves the right to approve or disapprove the alterations. Any and all such approved alterations shall be constructed with diligence, in a safe and good and workmanlike manner, and in compliance with all applicable District guidelines, governmental statutes, laws, ordinances and regulations. Machines shall not be secured to the premises without the express written approval of the District Representative.

5.4. Maintenance and Repairs.

All maintenance to the premises which are owned, leased or controlled by District shall be provided by District. All maintenance to equipment which is the property of Contractor shall be provided by Contractor.

5.5. Condition of Premise upon Termination.

At the termination of this Agreement, Contractor shall surrender the premises in as good condition as said premises was at the commencement of the Agreement, reasonable wear and tear and acts of God excepted.

6.

6.1.

CONTRACTOR VENDING OPERATIONS AND SERVICES

General. Contractor agrees to operate on the Premises a vending service in accordance with the requirements, terms, conditions, information and descriptions contained in this Agreement, including Contractor's Proposal. Contractor shall conduct its business on the Premises at all times in a professional and reputable manner. During the term of this Agreement, Contractor shall take all actions as may be reasonably requested by the District in order to carry out the purpose and intent of this Agreement.


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6.2. Service to be Rendered.

6.3.

Contractor will provide machines to vend beverages as agreed in this Agreement. These machines will be capable of operating with coins, dollar bills and debit/credit readers. The machines will be unattended and self-contained. The machines will have a notice posted on them that provides the locations and method for customers to use in obtaining a refund, the name and telephone number to call for service and the machine identification number and location. This notice shall be posted in a prominent location in a size and manner consistent with ADA requirements. Contractor will provide, install, maintain, operate, and remove machines at no cost to the District except for the electricity and/or water used by the machines.

Contractor Expenses.

6.4.

Contractor understands and agrees that Contractor is responsible for paying the cost of all merchandise, services and other expenses in connection with the operation of its business.

Compliance with Laws. Contractor, at its expense, shall at all times during the term of this Agreement, and with respect to all phases of operating its business, comply with all applicable governmental ordinances, laws, rules and regulation now or hereafter in effect at any time during the Agreement, including, without limitation, all applicable rules, regulations and policies of District. Copies of any inspection reports, notices, etc. relating to its operation on the premises, from any state, federal, city or other agency shall be forwarded to the District representative within one day of receipt.

7.

The District sets the following standards for product and service by Contractor. Failure to conform to these standards shall be deemed a default by Contractor.

PERFORMANCE STANDARDS

7.1. Product.

T h e s e p r o d u c t s w i l l p a s s a n y and all tests as may be required by any health, safety, or regulatory agency. Contractor will pay District $100 for each out-of-stock or outdated product notification received by District Representative.

Contractor agrees to supply the following Brand Name and Unit S i z e b e v e r a g e p r o d u c t s :

7.2. Quality Control.

7.3.

Contractor shall follow industry recognized standards for microbiological control, quality assurance and recall protocols.

7.3.1. Contractor will be responsible for maintaining all equipment in a clean and sanitary condition. Contractor shall adhere to its sanitation plan and schedule for cleaning all machines covered by this contract. Contractor must follow GMPs (Good Manufacturing Practices) for food processing, preparation, storage, packaging and distribution according to 21 CFR (Code of Federal Regulations).

Sanitation/Custodial.

7.3.2. District will provide normal custodial service for the vending area which consists of the cleaning of walks, hallway, etc. around the machines. All other custodial services, to specifically include cleaning under the machines, will be provided by Contractor.


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7.4. Product Containers.

7.5.

Glass containers will not be used in any vending machines on the premises.

Machines.

7.6. Contractor may change, with prior approval from the District, the type of machine in each location as long as the machine meets or exceeds the requirements above. Inability to supply new machines as requested shall be considered breach of contract.

Contractor shall be responsible for the installation and removal of all equipment used in providing the vending service as well as the purchase of all needed communications and card swipe equipment. Vending machines that will be installed throughout the term of the contract must be less than three (3) years old. All machines must be Energy Star certified. Contractor shall maintain and provide to the District Representative a list of all machines by location. This list will include the brand name, model number, serial number, date of manufacture, manufacturer's name and address, and manufacturer's telephone number. All machines shall be designed, constructed, and installed in accordance with standards of the National Sanitation Foundation, the National Automatic Merchandising Association, the Occupational Safety and Health Administrat ion, and the Americans with Disabil it ies Act. All installations shall be attractive and complement the architecture, landscape, and public image of the District. The District reserves to right to require the removal from the premises of machines that the District deems, in its sole judgment, not to meet this standard.

7.7. Damage to Machines.

7.8.

The machines will be the sole property of Contractor and Contractor will hold the District harmless for any and all damages to these machines.

Machine Maintenance and Service.

7.9.

Contractor will be required to service all equipment 365 days a year unless otherwise agreed to by the District Representative. Contractor will service every machine on the premises at least once during each reporting period. Contractor will place a sticker or decal on each machine giving the identification number for the machine and the telephone number to be called for service. This notice shall be posted in a prominent location in a size and manner consistent with ADA requirements. Contractor will maintain a maximum response time to all equipment of 24 hours. This means that within 24 hours of a fault being reported, the machine will be visited and either the fault corrected and/or the machine restocked. Service requests shall be followed up with in writing. Contractor will replace any vending machine which is out of service for longer than seventy-two (72) hours. Servicing hours must be compatible with the District operating hours. Scheduling must be approved by the District Representative.

Machine Placement.

7.10. Machines will not normally be installed on carpeted surfaces. The following factors will be considered when determining the exact placement of machines: life safety, Americans with Disabilities Act compliance, visual integrity, pedestrian traffic flow, utility issues, customer convenience, space for appropriate recycling containers, and environmental concerns. The District expressly reserves the right to make judgments as to appropriate locations and when these requirements are violated.

Machine Locations are designated by Attachment to this Contract specifying the locations at which the Contractor and District have agreed to place machines. Contractor shall provide a revised Attachment as locations/machines change.

7.11. Machine Relocation. The District may require the routine relocation or removal of a machine for the purpose of performing maintenance, modifying facilities, changing use of a facility, avoiding


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electrical problems, and many other purposes. Contractor agrees to relocate or remove a machine within seven (7) workdays after receipt of a routine relocation or removal request from the District. The District may require the emergency relocation or removal of a machine because it is a hazard to health and safety, or for other reasons. Contractor agrees that it will relocate or remove a machine within two (2) workdays after receipt of an emergency relocation or removal request from the District.

7.12. Employee Identification.

7.13.

The service employees of Contractor must wear identifying uniforms and at all times display photo identification to identify them as Contractor employees.

Machine Lighting. Machines may have illuminated front panels. Selection buttons will be illuminated.

8.

8.1.

COMMISSIONS

Payments

8.2.

shall be mailed or delivered to District Representative.

Commissions to Be Paid.

Contractor will pay the following percentage of the vend price for all items sold as commission to the District.

Item Percent Commission Carbonated Soft Drinks

%

Sports Drinks

%

Energy Drinks

%

Water

%

Juice

%

8.3. Commissions Shall Be Based on Gross Receipts.

8.4.

The term "gross receipts" is defined as the total amount received for each item before deducting all cost of sales, licenses, taxes of every kind and description or overhead expense. Contractor agrees to pay all taxes, especially transaction privilege and sales taxes, licenses, and other expenses if any.

Commissions Shall Be Earned on Receipts that are Stolen or Otherwise Missing.

8.5.

Contractor is expected to properly secure the receipts generated through the vending service. In the event that receipts are stolen or otherwise missing, Contractor shall pay a commission on these receipts as if they had been collected by Contractor.

Interest Payments. If monthly commission payments are not received by the District on the due dates prescribed herein, the unpaid commissions shall accrue interest at eighteen percent (18%) per year. All such amounts shall be calculated on a daily basis and shall be due and owing in the same manner and at the same time as the commission payments.


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9.

9.1. Contractor shall submit within fifteen (15) days following the conclusion of each accounting period a report that shows at a minimum the following information.

REPORTING

9.1.1. Machine type, identification or serial number, and location of every machine on the premises.

9.1.2. Sales, commissions, and number of items vended by machine for every machine on the premises.

9.1.3. Sales, commissions, and number of items vended subtotaled for every machine on the premises for the following six areas: West Campus, Polytechnic Campus, Downtown Campus, Residence Halls, Student Recreation Center, Memorial Union, and remaining District areas.

9.1.4. A written explanation for any machines with no sales, and for every situation where sales for a machine does not equal product sold times sell price.

9.2. Reports shall be emailed to the District Representative.

9.3. Contractor shall maintain a written record of all District inquiries including requests for addition and/or removal of machines, service issues and requests for refunds. Reports shall be requested on an as-needed basis.

10.

10.1.

ACCOUNTABILITY

Records.

10.2.

Contractor shall retain for inspection and audit by District, the Auditor General of the State of Arizona, or their agents, all books, accounts, reports, files and records relating to this Agreement for a period of at least five (5) years after expiration or termination of this Agreement; provided, however, that records relating to disputes, litigation or the settlement of claims arising out of the performance of this Agreement, shall be retained by Contractor and be subject to inspection and audit by District, its agents and/or the Auditor General of the State of Arizona, or their agents, until such litigation or claim is fully resolved. Contractor shall provide all such records at any office of District as District may designate. Further, District has the right, at Contractor's expense, to request the commission statements for the current and any previous Agreement year be examined in accordance with generally accepted auditing standards by an independent certified public accountant. The scope of this examination should be such that an auditor's opinion would be issued. The District may exercise this right no more than once per Agreement year.

Internal Controls.

The District shall have the right to review Contractor's internal controls and accounting procedures relative to Contractor's operation at the District. Significant weaknesses shall be rectified as soon as possible, but not later than thirty (30) days after written notice specifically describing such condition is received by Contractor from the District. Within thirty days after the Commencement Date, Contractor will furnish the District with a statement of how Contractor maintains accountability of revenues.


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11.

11.1.

PRICING

Price Changes.

District will not approve price increases that will merely increase the gross profitability of Contractor at the expense of students, faculty, and staff.

Any change from the prices set out in this specification or any change in the quality or unit sizes of the products provided must have the prior written approval of the District Representative. Price change requests should be supported by evidence of increased costs to Contractor. The

11.2. Price Schedule.

The following is the schedule of agreed vend prices at the inception of this agreement. Changes to this schedule will be made as an amendment to this Agreement.

Item Price

Carbonated Soft Drinks $

Sports Drinks $

Energy Drinks $

Water $

Juice $ 12.

Contractor will provide refund accounts for the refunding of monies to the public where a vending machine is not in working order. An adequate accounting procedure for refunds will be established by mutual agreement between Contractor and the District Representative.

REFUNDS

13.

Contractor shall pay all transaction privilege, sales, and use taxes together with any possessory interest or other taxes levied in connection with Contractor's use of the facilities. Contractor shall acquire, at his expense, all licenses or permits required by local, state and federal agencies and shall comply with all state and county laws and regulations.

TAXES AND LICENSES

14.

Contractor agrees to comply with and to require all subcontractors to comply with provisions of applicable state transaction privilege, sales excise tax, and compensation use tax law. Contractor further agrees to indemnify and save harmless the District from any and all claims and demands made against it by virtue of the failure of Contractor or any subcontractor to comply with the provisions of any or all said laws.

SALES AND USE TAX


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15.

INSURANCE

The Contractor, at Contractor’s own expense, shall purchase and maintain the herein stipulated minimum insurance with companies duly licensed to do business in the State of Arizona with policies and forms satisfactory to the District and possessing a current A.M. Best, Inc. Rating of B++6. All insurance required herein shall be maintained in full force and effect until all work required to be performed under the terms of the Contract is satisfactorily completed and formally accepted; failure to do so may, at the sole direction of the District, constitute a material breach of this Contract. The Contractor’s insurance shall be primary insurance, and any insurance or self-insurance maintained by the District shall not contribute to it. Any failure to comply with the claim reporting provisions of the policies or any breach of an insurance policy warranty shall not affect coverage afforded under the policy to protect the District. All policies, except Workers’ Compensation, shall contain a waiver of transfer rights of recovery (subrogation) against the District, its agents, representatives, directors, officers, and employees for any claims arising out of the Contractor’s work or service. The insurance policies may provide coverage which contains deductibles or self-insured retentions. Such deductible and/or self-insured retentions shall not be applicable with respect to the coverage provided to the District under such policies. The Contractor shall be solely responsible for deductible and/or self-insured retention and the District, at its option, may require the Contractor to secure the payment of such deductible or self-insured retentions by a surety bond or an irrevocable and unconditional letter of credit. The District reserves the right to request and to receive, within 10 working days, certified copies of any or all of the herein required insurance policies and/or endorsements. The District shall not be obligated, however, to review same or to advise Contractor of any deficiencies in such policies and endorsements, and such receipt shall not relieve Contractor from, or be deemed a waiver of the District’s right to insist on, strict fulfillment of Contractor’s obligations under this Contract. The insurance policies, except Workers’ Compensation, required by this Contract shall name the District, its agents, representatives, officers, directors, officials, and employees as Additional Insureds

REQUIRED COVERAGE

General Liability Contractor shall maintain and cause any subcontractor to maintain Commercial General Liability insurance with a limit of not less than $2,000,000 for each occurrence with a $2,000,000 Products and Completed Operations Aggregate and $2,000,000 General Aggregate Limit. The policies shall include coverage for bodily injury, broad form property damage, personal injury, products/completed operations and blanket contractual coverage including, but not limited to, the liability assumed under the indemnification provisions of this Contract, which coverage will be at least as broad as Insurance Service Office, Inc. Policy Form CG 000211093 or any replacement thereof. The coverage shall not exclude X, C, U.


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Such policies shall contain a severability of interest provision, and shall not contain a sunset provision or commutation clause, or any provision that would serve to limit third party action over claims. The Commercial General Liability additional insured endorsement shall be at least as broad as the Insurance Service Office, Inc’s, Additional Insured, Form B, CG20101185, and shall include coverage for Contractor’s operations and products and completed operations.

Automobile Liability

Contractor shall maintain and cause any subcontractors to maintain Commercial/Business Automotive Liability insurance with a combined single limit for bodily injury and property damage of not less than $1,000,000 each occurrence with respect to the Contractor’s owned, hired, and non-owned vehicles assigned to or used in performance of the Contractor’s work. Coverage will be at least as broad as coverage code 1, “any auto”, (Insurance Service Office, Inc. Policy Form CA 00011293, or any replacements thereof). Such insurance shall include coverage for loading and off loading hazards. If hazardous substances, materials or wastes are to be transported, MCS 90 endorsement shall be included and $5,000,000 per accident limits for bodily injury and property damage shall apply.

Workers’ Compensation

This Contractor shall carry Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction of Contractor’s employees engaged in the performance of the work; and, Employer’s Liability insurance of not less than $2,000,000 for each accident, $1,000,000 disease for each employee, and $1,000,000 disease policy limit.

In case any work is subcontracted, the Contractor will require the Subcontractor to provide Workers’ Compensation and Employer’s Liability to at least the same extent as required of the Contractor.

CERTIFICATES OF INSURANCE

Prior to commencing Services under this Contract, Contractor shall furnish the District with Certificates of Insurance, or formal endorsements as required by the Contract, issued by Contractor’s insurer(s), as evidence that policies providing the required coverages, conditions and limits required by this Contract are in full force and effect. In the event any insurance policy(ies) required by this contract is(are) written on a “claims made” basis, coverage shall extend for two years past completion and acceptance of the contractor’s work or services and as evidenced by annual Certificates of Insurance. If a policy does expire during the life of the contract, a renewal certificate must be sent to the District thirty (30) days prior to the expiration date.

CANCELLATION AND EXPIRATION NOTICE

Insurance evidenced by these certificates shall not expire, be canceled, or materially changed without thirty (30) days prior written notice to the District.


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16. SIGNS

Contractor shall not erect or place on or about the Premises any sign without the District's prior written approval of the location, material, size, design and content.

17.

Contractor shall have the responsibility for the total machine vending requirement. The Agreement shall not be assigned. Contractor shall not subcontract the performance of any part of the Agreement without prior written approval which approval the District may refuse at its discretion and without recourse to Contractor. Contractor will be responsible for any subcontractor activities the same as if Contractor were furnishing the service.

SUBCONTRACTS

18.

All delivery to various vending locations must be by way of the regular campus streets and service roads. No motor vehicles may be driven on the malls or walkways without prior approval of the District.

DELIVERY

21.

If a contractor other than current contractor is awarded an agreement, or if a contractor is changed during the agreement period, a period of thirty (30) days will be used to make an orderly transition to the new contractor. This transition period will begin thirty (30) days prior to the expiration of the agreement.

CONTRACT CHANGEOVER

22.

Storage space on the District campus is not available.

STORAGE

23.

The District Representative shall have the right to inspect any machine with Contractor’s Representative at any reasonable time.

RIGHT TO INSPECT MACHINES

24.

The District will provide existing 110 volt electric service at the current vending machine installations. The cost of the electricity used in conjunction with the operation of the vending machines will be borne by the District. No change or alteration of electric service will be made by Contractor without the prior written authorization of the District Representative. In the event that an installation of a machine causes disruption of the electrical service at the premises, Contractor will immediately discontinue use of the machine and either request approval from the District Representative to either install a dedicated electrical circuit at Contractor’s expense or relocate the machine. In the event District requests a machine be installed at a specific location, as approved by the District Representative, and this location requires a dedicated electrical circuit, the District shall pay for the cost of providing this dedicated electrical circuit. For any machines that require water, Contractor must use existing District provided water sources. The cost of the water used in

UTILITIES


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conjunction with the operation of the vending machines will be borne by the District. No change or alteration of water supply will be made by Contractor without the prior written authorization of the District Representative.

25.

Contractor shall not use the name of District or any District sign, logo, symbol, trademark or word mark, etc., for any purpose, without the prior written consent of District.

DISTRICT LOGO

26.

Contractor shall not in any way or in any form publicize or advertise in any manner the fact that it is providing services to District without the prior written approval of District, in each instance. However, nothing herein shall preclude Contractor from listing the District on its routine client list for matters of reference.

NEWS RELEASES

27.

It is the intention of District and Contractor that Contractor shall be deemed to be an independent contractor, and nothing in this Agreement, including Contractor's Proposal, shall be deemed to create a partnership or joint venture or the relationship of principal and agent between Contractor and the District. Nothing herein shall cause the employees, agents or representatives of either Contractor or the District to be deemed or construed to be the employee, agent or representative of the other. Any reference in Contractor's Proposal to a partnership relationship between Contractor and the District shall have no legal effect.

INDEPENDENT CONTRACTOR

28.

29.1.

PERSONNEL

Equal Opportunity Employer.

29.2.

Contractor shall operate as an equal opportunity employer.

Contractor Personnel Matters.

29.3.

Contractor shall have control over and be responsible for all personnel and employment matters involving its employees including, but not limited to, work schedules and compensation. All employees shall be employed by Contractor in its own name at its own expense, and Contractor shall pay all salaries, wages and employee benefits payable to out or on behalf of its employees. All personnel matters shall be handled in accordance with applicable law and standard procedures established for all of Contractor's locations.

Staffing.

29.4.

Contractor shall maintain an adequate staff at all times to ensure a high quality service operation on the Premises. Contractor shall identify one manager made known to District, in writing, by name to routinely review and inspect operations on the Premises.

Employee Conduct.

Contractor shall ensure that its employees engage in appropriate conduct while working at the Premises. All personnel shall be subject to District regulations regarding personal behavior and use of District facilities, and shall be dismissed at the request of the District for violations or for conduct inimical or offensive to the interests of the District and its staff.


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30.

Contractor agrees that in the event any proceedings under the Bankruptcy Act or any amendment thereto are commenced by or against Contractor, and, if against Contractor, said proceedings are not dismissed within thirty (30) days after the commencement thereof, or in the event Contractor is adjudged insolvent or makes an assignment for the benefit of its creditors, or if a writ of attachment or execution is levied on Contractor's interests under this Agreement and is not released or satisfied within ten (10) days, any such event shall constitute a breach of this Agreement by Contractor and, at the option of District and without notice, shall terminate this Agreement and also all rights of Contractor under this Agreement.

BANKRUPTCY; INSOLVENCY

31.

32.1.

DEFAULTS AND REMEDIES

Contractor Default.

32.2.

The occurrence of any of the following events or conditions shall constitute, and is hereby defined to be, an "Event of Default:" Contractor (i) fails to pay any rebates or other sums required by this Agreement within five (5) days of the date such payment is due, or (ii) fails to comply with or perform under any of the other terms, covenants or conditions hereof, or (iii) abandons the Premises, or (iv) files any proceeding under the federal bankruptcy laws now or hereafter existing or any other similar statute now or hereafter existing or other similar statute now or hereafter in effect, enters any order for relief under such laws with respect to Contractor, or the appointment of a receiver, trustee, custodian or conservator of all or any part of the assets of Contractor, or (v) drives a vehicle on a pedestrian mall more than ten (10) times during any Agreement Year. Upon the occurrence of any Event of Default, and at the time thereafter while such Event of Default is continuing, District shall have the following rights and remedies and, at District's sole and absolute discretion, from time to time may do one or more of the following: (i) Notify Contractor in writing of such failure and demand that the same be remedied within 20 days. Should Contractor fail to remedy the same within said period, District shall then have the right to terminate this Agreement without further notice. (ii) Pursue any legal and/or equitable remedy available to District to prevent removal of property from the Premises by any lawful means it deems necessary to protect its interest. District may exercise its rights and remedies at any time, to any extent and as often as District deems desirable to protect its interests. No action of District shall be construed as an election to terminate this Agreement unless written notice of such intention is given by District to Contractor.

District Default.

If District shall fail to observe or perform any of the provisions of this Agreement to be observed or performed by District, and such failure is not cured within thirty (30) days after notice by Contractor to District, then District shall be in default hereunder, and Contractor may, at any time thereafter (i) terminate this Agreement, (ii) effect a cure on District's behalf and all reasonable costs and expenses so incurred by Contractor shall be due and payable by District on demand by Contractor, or (iii) continue this Agreement and recover damages resulting from District's default. Notwithstanding the foregoing, if a default cannot reasonably be cured within thirty (30) days, District shall not be in default of this Agreement if it commences to cure the default with the 30-day period and thereafter diligently and in good faith cures the default. In no event, however, shall District be liable for any lost income, profits or consequential damages of Contractor or any other person or entity.


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33.

CASUALTY

33.1. Partial -- Contractor.

In the event of any damage or destruction of the Premises caused by the negligence or willful acts of Contractor, its employees, agents, or invitees, then at its sole cost and expense, Contractor shall restore, repair and replace the Premises to as good a condition as existed prior to such damage or destruction and this Agreement shall continue in effect without any reduction in commissions payable by Contractor hereunder. Such restoration shall be commenced promptly; shall be prosecuted with diligence to completion; and shall be performed in a good and workmanlike manner in accordance with plans and specifications therefore approved by District and in compliance with all applicable laws, regulations and codes. All restoration work performed by or on behalf of Contractor on the Premises shall be performed by Contractor as approved by District (or at District's option by District employees, at Contractor's expense), and District shall have the right to require Contractor to provide such insurance and post such payment and performance bonds as District deems necessary.

33.2. Partial -- District.

34.

In the event of any damage or destruction of the Premises, at its sole cost and expense, District shall promptly repair and replace the same to as good a condition as existed previously. In respect to any damage or destruction that District is obligated to repair or elects to repair under the terms of this Paragraph, Contractor waives all rights that would authorize Contractor to terminate this Agreement by reason of such damage or destruction, and any right to terminate this Agreement under Paragraph 32.2 hereof.

This Agreement gives Contractor rights for a machine vended beverage service to District for the following categories of beverages: carbonated soft drinks, sports drinks, energy drinks, juice drinks, and packaged water. These are not exclusive rights. Note that District has other agreements to supply carbonated and non-carbonated drinks, milk, juice and water through cafeterias and bookstores.

EXCLUSIVITY

35.

L I E N S

Contractor shall not suffer or permit to be enforced and shall indemnify and hold harmless District and the Premises from and against all mechanic's, materialmen's, contractor's, subcontractor's and all other liens, claims, security interests and demands of every kind and nature arising out of any work performed, materials furnished or obligations incurred by or on behalf of Contractor. If within 20 days following the filing of any such Lien or claim of Lien, Contractor does not cause such Lien to be released in a manner satisfactory to District, District shall have the right but not the obligation to cause the same to be released by any means District shall deem proper. All sums paid by District and all expenses incurred, shall be payable by Contractor to District upon demand, together with interest at the rate of 18% per annum from the date incurred. District shall have the right to post on the Premises any notices permitted or required by law or that District shall deem proper for the protection of District and the Premises against Liens.

36.

36.1.

LIABILITY

Indemnity. Contractor agrees to indemnify and hold harmless District, its officers, board members, agents and employees from and against any and all claims, suits, liabilities, loss, damage,


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costs and expenses (including reasonable attorney's fees) that may be brought or made against or incurred by District on account of (i) Contractor's possession, use or occupancy of the Premises, the conduct of its business thereon, or any activity, work or thing done, performed or suffered by Contractor, its agents, employees or invitees (including, without limitation, the making of the improvements to the Premises); or (ii) any injury or death to persons or damage to property on or about the Premises from any cause whatsoever during the term hereof; or (iii) any violation by Contractor in provision of this Agreement or any breach or default by Contractor in the performance of any obligation of Contractor under the terms of this Agreement; or (iv) any act, omission or negligence of Contractor, or any of its agents, employees or invitees.

36.2. Waiver.

37.

As a material part of the consideration to District, Contractor hereby assumes all risk of damage to and upon or about the Premises from any cause whatsoever, and Contractor hereby waives all claims in respect thereof against District.

The invalidity of any provision of this Agreement as determined by a court of competent jurisdiction shall not affect the validity of any other provision hereof. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, the courts of which state shall have jurisdiction of the subject matter hereof. The paragraph headings in this Agreement are for convenience only and shall not be considered in construing the intent of the parties under this Agreement. All exhibits attached hereto are a part hereof. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

INTERPRETATION

38.

This Agreement, any part hereof, or any right or duty hereunder may not be assigned, delegated, or subcontracted by Contractor without the prior written approval of District, which approval may be granted or withheld in the sole discretion of District. Contractor shall not sublicense any part of the Premises or permit any sub-licensee or concessionaire to operate on the Premises, without the prior written consent of District, which consent may be granted or withheld in the sole discretion of District.

NO ASSIGNMENT

39.

In connection with the performance of work under this Agreement, Contractor agrees not to discriminate against any employee or applicant for employment because of race, religion, color, sex, age, sexual orientation, or national origin, or because he or she has a physical or mental disability, or because he or she is a disabled veteran or a veteran of the Vietnam era. The aforesaid provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and select ion for training, including apprenticeship. Contractor shall conform to all state and federal laws, executive orders and rules and regulations relating thereto. Contractor agrees to post hereafter in conspicuous places, available for employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.

NONDISCRIMINATION

Contractor further agrees to insert the foregoing provision in all subcontracts hereunder, except subcontracts for standard commercial supplies or raw materials.


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40.

The Provisions of Section 202 of Executive Order 11246.41, C.F.R. §60-1.4.41, C.F.R. §60-250.4 and 41, C.F.R. §60-741.4 are incorporated herein by reference and shall be applicable to this Agreement unless this Agreement is exempted under the rules, regulations or orders of the Secretary of Labor.

EQUAL OPPORTUNITY

42.

The parties acknowledge this Agreement is subject to the provisions of Section 38-511, Arizona Revised Statues, and may be canceled in accordance therewith without penalty to or further obligation of District.

CONFLICT OF INTEREST

43.

No delay or omission of District to exercise any right or remedy arising from any default by Contractor of the terms hereof shall impair any such right or remedy, or shall be construed to be a waiver of any such default or an acquiescence therein. No waiver of a default shall be effective unless it is in writing. No waiver of any other provisions hereof or of any subsequent default by Contractor of the same or any other provision. The acceptance of any fee, rebate or other payment by District shall not be a waiver of any preceding breach by Contractor of any provision hereof regardless of District's knowledge of such preceding breach at the time of acceptance.

WAIVERS

44.

If either party brings an action to enforce the terms hereof or to declare the rights of the parties hereunder or for the interpretation of any part of this Agreement, the prevailing party in any such action, on trial or appeal, shall be entitled to its reasonable attorney's fees to be paid by the losing party as determined by the judge of the court and not by the jury.

ATTORNEY'S FEES

45.

District reserves the right to use and/or release for any purpose any data available under the terms of this Agreement.

RELEASE OF INFORMATION

48.

This Agreement shall be governed by and construed in accordance with the law of the State of Arizona. District and Contractor shall have all remedies afforded each by said law.

REMEDIES AND APPLICABLE LAW

49.

Neither party shall be held responsible for any losses resulting if the fulfillment of any terms or provisions of this Agreement are delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence, said party is unable to prevent.

FORCE MAJEURE


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50.

District may, by written notice to Contractor, cancel this Agreement if it is found Contractor provided to any employee, student or student group gratuities, in the form of entertainment, gifts, product, cash or otherwise, without the District’s express written approval. In the event this Agreement is canceled by District pursuant to this provision, District shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Contractor in providing such gratuities.

GRATUITIES

51.

In addition to any implied warranties, Contractor warrants the goods furnished will conform to the specifications, drawings, and descriptions listed in Contractor's Proposal, and to the sample or samples furnished by Contractor, if any. In the event of a conflict between the specifications, drawings, and descriptions, the specifications shall govern.

WARRANTIES

52.

Contractor shall give prompt notice to the District of any actual or potential labor dispute which delays or may delay performance of this Agreement.

LABOR DISPUTES

54.

The parties recognize that in actual economic practice overcharges resulting from anti-trust violations are in fact borne by the ultimate purchaser; therefore, Contractor hereby assigns to the Arizona Board of Regents any and all claims for such overcharges.

ASSIGNMENT OF ANTI-TRUST OVERCHARGE CLAIMS

55.

This Agreement may be canceled without any further obligation on the part of the District in the event sufficient appropriated funding is unavailable to assure performance of its terms. Contractor shall be notified in writing of such non-appropriation at the earliest opportunity.

CANCELLATION FOR LACK OF FUNDING

56.

Contractor and District mutually agree that each and every provision of law and clause required by law to be in this Agreement shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted or is not correctly inserted, then upon the application of either party the Agreement shall forthwith be physically amended to make such insertion or correction.

PROVISIONS REQUIRED BY LAW

57.

This writing is intended by the parties as a final expression of their Agreement and is intended also as a complete and exclusive statement of the terms of their Agreement. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this Agreement. Acceptance or acquiescence in a course of performance rendered

INTERPRETATION-PAROL EVIDENCE


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under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code is used in this Agreement, the definition contained in the Code is to control.

58.

The individual signing below on behalf of Contractor hereby represents and warrants that he/she is duly authorized to execute and deliver this Agreement on behalf of Contractor and that this Agreement is binding upon Contractor in accordance with its terms. The person authorized to act for and bind District in matters concerning this Agreement shall be the Executive Vice Chancellor or as District may by notice appoint.

AUTHORITY

District Contractor

(Address, Street) (Address, Street)

(City, State, Zip+4) (City, State, Zip+4)

(Signature) (Title) (Signature) (Title)


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Attachment A Terms and Conditions

1. Legal Remedies – All claims and controversies shall be subject to the Pima County Community

College Policy regarding Formal Protests and Appeals

2. Agreement –The Agreement shall contain the entire agreement between the College and the Consultant relating to this requirement and shall prevail over any and all previous agreements, contracts, proposals, negotiations, purchase orders or master agreement in any form.

3. Agreement Amendments – The Agreement shall be modified only by a written amendment signed by persons duly authorized to enter into agreements on behalf of the College and the Consultant.

4. Provisions Required by Law – Each and every provision of law and any clause required by law to be in the Agreement shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party the Agreement shall forthwith be physically amended to make such insertion or correction.

5. Severability – The provisions of the Agreement are severable to the extent that any provision or

application held to be invalid shall not affect any other provision or application of the Agreement which may remain in effect without the invalid provision or application.

6. Records – Pursuant to provisions of title 35, chapter 1, article 6 A.R.S. §35-215 the Consultant shall retain, and shall contractually require each subcontractor to retain, all books, accounts, reports, files and other records relating to the acquisition and performance of the Agreement for a period of five (5) years after the completion of the Agreement. All such documents shall be subject to inspection and audit at reasonable times. Upon request, a legible copy of any or all such documents shall be produced at the offices of the Auditor General, the Attorney General or the College Purchasing Office.

7. Advertising – Contractor shall not advertise or publish information concerning the Agreement, without prior written consent of the College.

8. Preparation of Specifications by Persons Other than College Personnel – All specifications shall seek to promote overall economy for the purposes intended and encourage competition and not be unduly restrictive in satisfying the College’s needs. No person preparing specifications shall receive any direct or indirect benefit from the utilization of specifications, other than fees paid for the preparation of specifications.

9. Americans With Disabilities Act – The Consultant shall comply with all applicable provisions of the Americans With Disabilities Act and applicable federal regulations under the act.

10. Conflict of Interest – The College may, within three years after its execution, cancel the agreement without penalty or further obligation if any person significantly involved in negotiating, drafting, securing or obtaining the agreement for or on behalf of the College becomes an employee of or a consultant in any capacity to any other party to the agreement with reference to


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the subject matter of the Agreement while the Agreement or any extension thereof is in effect or as otherwise provided by A.R.S. § 38-511..

11. Drug Free Workplace – The Consultant agrees that in the performance of the Agreement,

neither the Consultant nor any employee of the Consultant shall engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity covered in the Agreement. The College reserves the right to request a copy of the Consultant Drug Free Workplace Policy. The Consultant further agrees to insert a provision similar to this statement in all subcontracts for services required.

12. Equal Opportunity – The provisions of Section 202 of Executive Order 11246.41 C.F.R. Sec. -0-1.4.41 Sec. 60-250.4 and 41 C.F.R. Sec. 60-741.4 are incorporated herein by reference and shall be applicable to the Agreement unless the Agreement is exempted under the rules, regulations or orders of the U.S. Secretary of Labor.

13. Federal, State and Local Taxes, Licenses and Permits – Consultant is solely responsible for complying with all laws, ordinances, and regulations on taxes, registrations, licenses and permits, as they may apply to any matter under this document. The Consultant must demonstrate that they are duly licensed by whatever regulatory body may so require during the performance of the Agreement. Prior to the commencement of Agreement, the Consultant shall be prepared to provide evidence of such licensing as may be requested by the College. Consultant shall, at no expense to the College, procure and keep in force during the entire period of the Agreement all such permits and licenses.

14. Gratuities – The College may, by written notice to the Consultant, cancel the agreement if it is found by the College that gratuities, in the form of entertainment, gifts or otherwise were offered or given by the Consultant or any agent or representative of the contractor, to any officer or employee of the College with a view toward securing an agreement or securing favorable treatment with respect to the performing of such agreement.

15. Liens – Each Consultant shall keep the College free and clear from all liens asserted by any person or entity for any reason arising out of the furnishing of services or materials by or to the Consultant.

16. Sales and Use Tax – The College is not exempt from state sales and use tax.

17. Sexual Harassment – Federal law and the policies of the College prohibit sexual harassment of College employees or students. Sexual harassment includes any unwelcome sexual advance toward a College employee or student, any request to a sexual favor from a College employee or student, or any other verbal or physical conduct of a sexual nature that is so pervasive as to create a hostile or offensive working environment for College students. Consultant, subcontractors and suppliers for this project are required to exercise control over their employees so as to prohibit acts of sexual harassment of College employees and students. The employer of any person whom the College, in its reasonable judgment, determines has committed an act of sexual harassment agrees as a term and condition of the Agreement to cause such person to be removed from the project site and from College premises and to take such other action as may be reasonably necessary to cause the sexual harassment to cease.


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18. Smoking – All facilities of the College are smoke free. Smoking is not permitted inside College buildings or within 25 feet of doorways and air intakes. The Consultant is required to comply with this smoke free policy.

19. Confidentiality – The parties shall comply with 20 USC Section 1232(g), the Buckley Amendment to the Family Educational Right and Privacy Act of 1974. Therefore, Contractor shall not be entitled to receive Employee or Student information directly from the College, other than public information available in any College directory which is not protected by federal or state privacy or confidentiality statutes or regulations. Contractor may solicit Employee and Student information directly from Employees and Students subject to prior disclosures by Contractor of all intended uses of such information. Regardless of the Employee or Student personal information, even if such information is publicly available via directories, Contractor shall under no circumstances sell, duplicate, market, or give to any person or persons, entities or other companies a list or other personal information of any or all Employees or Students. All Employee and Student identities and personal information shall remain confidential. Disclosure by Contractor occurring without the express prior written consent of the Employee or Student shall result in the immediate termination of this agreement.

20. Assignment-Delegation – No right or interest in the Agreement shall be assigned or delegated

by Consultant without the prior written permission of the College. Any attempted assignment or delegation by Consultant shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph.

21. Force Majeure – Neither party shall be liable in damages of have the right to terminate this Agreement for any delay or default in performing under the Agreement if such delay or default is caused by conditions beyond its reasonable control including, but not limited to wars, insurrections, fires, floods, governmental restrictions and/or any other cause beyond the reasonable control of the party whose performance is affected.

22. Intellectual Property Rights – It is understood and agreed that ownership of intellectual property developed as a result of fulfilling the requirements of this Agreement belongs solely and exclusively to the College. Documents provided in connection with the Agreement belong to the College and are being used with permission. Intellectual property, as used herein, means all forms of legally protectable intellectual property, including copyrights, trademarks, inventions, patent applications, patents and mask works, drawings and/or blueprints. It is also understood and agreed that any intellectual property created as a result of Consultant’s performance of this Agreement is considered a work for hire under the U.S. copyright laws and as such, the College will own the copyright.

23. Laws and Regulations – Consultants are solely responsible for keeping themselves fully

informed of and faithfully observing all laws, ordinances, and regulations affecting the rights of their employees, and shall protect and indemnify the College, its officers and agents against any claims of liability arising from or based on any violation thereof.

24. Payment Terms – Payments by the College shall be subject to the provision of Title 35 of Arizona Revised Statutes, relating to time and manner of submission of claims. The College’s obligation is payable only and solely from funds appropriated for the purpose of the Agreement. Unless otherwise stated herein, the payment terms for the Agreement are Net 30 days.


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25. Price Adjustment – Price changes will normally only be considered at the end of one Agreement period and the beginning of another. Price change requests shall be in writing, submitted at least sixty (60) days prior to the end of the current Agreement period, and shall be supported by written evidence of increased costs to the Consultant. The College will not approve unsupported price increases that will merely increase the gross profitability of Consultant at the expense of the College. Price change requests shall be a factor in the Agreement extension review process. The College shall, in its sole opinion, determine whether the requested price increase or an alternate option is in the best interest of the College.

26. Prior Course of Dealings – No trade usage, prior course of dealing, or course of performance under other agreements shall be a part of this Agreement resulting from this RFP, nor shall such trade usage, prior course of dealing or course of performance be used in the interpretation or construction of such resulting agreement.

27. Right to Offset – The College shall be entitled to offset against any sums due the Consultant, any expenses or costs incurred by the College, or damages assessed by the College concerning the Consultant’s non-conforming performance or failure to perform the Agreement, or any other debt owing the College.

28. Insolvency – The College shall have the right to terminate the Agreement at any time in the event Consultant files a petition in bankruptcy; or is adjudicated bankrupt; or if a petition in bankruptcy is filed against Consultant and not discharged within thirty (30) days; or if Consultant becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement pursuant to any bankruptcy law; or if a receiver is appointed for Consultant or its business.

29. Lack of Funding – The Agreement may be canceled without further obligation on the part of the College in the event that sufficient appropriated funding is unavailable to assure full performance of the terms. The Consultant shall be notified in writing of such non-appropriation as soon as reasonably possible. No penalty shall accrue to the College in the event this cancellation provision is exercised. This cancellation provision shall not be construed so as to permit the College to terminate the Agreement in order to acquire similar equipment, material, supplies or services from another party.

30. Stop Work Order – The College may at any time, by written order to the Consultant, require the Consultant to stop all or any part of the work called for by the Agreement for a period of up to ninety (90) days after the order is delivered to the Consultant, and for any further period to which the parties may agree. The order shall be specifically identified as the Stop Work Order issued under this provision. Upon receipt of the order, the Consultant shall immediately comply with its terms and take all reasonable steps to minimize the incidence of costs allocable to the work covered by the order during the period of work stoppage. If a Stop Work Order issued under this provision is canceled or the period of the order or any extension expires, the Consultant shall resume work. The College shall make an equitable adjustment in the delivery schedule or Agreement price, or both, and the Agreement shall be amended in writing accordingly.

31. Suspension or Debarment – The College may by written notice to the Consultant immediately terminate the Agreement if the College determines that the Consultant has been debarred, suspended, or otherwise lawfully prohibited from participating in any public procurement activity, including but not limited to, being disapproved as a subcontractor or Contractor of any public procurement unit or other governmental body.


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32. Continuation of Performance Through Termination – The Consultant shall continue to

perform, in accordance with the requirements of Agreement, up to the date of termination, as directed in the termination notice.

33. Sudan, or Iran Scrutinized Business – Pursuant to A.R.S. #35-391.06(A) AND 35-393.06(B), Contractor certifies that it does not have a “scrutinized” business operation in either Sudan or Iran, as that term is defined in A.R.S. #35-391(15) AND 35-393(12) respectively.

34. Federal Immigration Laws and Regulations – Consultant warrants that it complies with all Federal Immigration laws and regulations that relate to its employees and complies with A.R.S. § 23-214(a) and that it requires the same compliance of all subcontractors under the agreement. Consultant acknowledges that pursuant to A.R.S. § 41-4401 and effective September 30, 2008, a breach of this warranty is a material breach of the agreement subject to penalties up to and including termination of the agreement. The College retains the legal right to audit the records of the Consultant and inspect the papers of any employee who works for the Consultant to ensure compliance with this warranty and the Consultant shall assist in any such audit. The Consultant shall include the requirements of this paragraph in each contract with subcontractors under the agreement. If the Consultant or subcontractor warrants that it has complied with the employment verification provisions prescribed by sections 274(a) and 274(b) of the Federal Immigration and Nationality Act and the E-verify requirements prescribed by A.R.S. § 23-214(A), The Consultant or subcontractor shall be deemed to be in compliance with this provision. The College may request proof of such compliance at any time during the term of the Agreement by the Consultant and any subcontractor.

35. Extended Contract The College is an active member of the Strategic Alliance for Volume Expenditures (S.A.V.E.) cooperative agreement. Under this cooperative purchasing agreement, and with the concurrence of the successful Proposer, other members of this organization may access any subsequent agreement/contract resulting from this solicitation. If the Proposer does not want to grant such access, it must be stated in their Proposal. In the absence of a statement to the contrary, the college will assume that access is granted by the Proposer to any subsequent agreement/contract.