FOOD AND BEVERAGE SERVICE AT THE CITY OF SAN JOSE ALMADEN BRANCH LIBRARY AND COMMUNITY CENTER

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1 REQUEST FOR PROPOSAL RFP# 12/07 RB FOOD AND BEVERAGE SERVICE AT THE CITY OF SAN JOSE ALMADEN BRANCH LIBRARY AND COMMUNITY CENTER RFP release date: December 11, 2007 Contact name: Address: Phone: Fax: address: Mandatory Pre-proposal Conference Lucinda Norman Library Administration Dr. Martin Luther King, Jr. Library 150 East San Fernando St, 4 th Floor San Jose, CA fax Lucinda.Norman@sjlibrary.org Almaden Branch Library & Community Center Location: Café Area Date: December 20, 2007 Time: 11:30 a.m. Deadline for questions: December 28, 2007 RFP due date: Time: Location: January 9, :00 p.m. Library Administration Dr. Martin Luther King, Jr. Library 150 East San Fernando St, 4 th Floor San Jose, CA _2-1 -

2 1. INTRODUCTION The City of San Jose Library Division intends to enter into an Agreement with a qualified Operator or Operators to provide refreshment services from a food and beverage service bar cart at the Almaden Branch Library. The facility location also houses Library and Parks & Recreation services. It is ready for immediate operation. 2. BACKGROUND The City of San Jose Library Department intends to enter into an Agreement with a qualified Operator or Operators to provide a food and beverage service bar cart for the Almaden Branch and Community Center located at 6445 Camden Avenue, San Jose ALMADEN PARKS & RECREATION AND COMMUNITY CENTER: Monday, Wednesday, Friday 8:00 a.m. to 5:00 p.m. Tuesday & Thursday 8:00 a.m. to 8:00 p.m. Saturday 9:00 a.m. to 1:00 p.m. ALMADEN BRANCH LIBRARY: Monday 2:00 to 7:00 p.m. Tuesday and Wednesday 11:00 a.m. to 8:00 p.m. Thursday, Friday and Saturday 10:00 a.m. to 6:00 p.m. The City will require the operator to open to the public Monday thru Saturday from 10:00 a.m. to 6:00 p.m. The Operator may extend hours earlier and later per the facility open hours noted above. 3. SCOPE OF WORK A. FOOD AND BEVERAGE AREA The food and beverage area will be located in the inside or near the Internet Café Area (Attachment F ). An area of approximately 100 square feet has been set aside for the Operator s operations. The space allows for a operator fixed or movable counter(s), the operator s area is adequate enough to store equipment below and/or above the counter and in adjacent area. Plumbing and electrical connections have been provided. A cold water plumbing line and sewer connection have been provided. The operator will be responsible for supplying hot water equipment to their equipment. The Library provides and owns chairs, tables, stools, WiFi and power for PC hook ups. B. ANTICIPATED USAGE OF BUILDING The Almaden Branch Library and Community Center facility provides joint City services with a gate count between 4,000 and 5,000 daily visitors or approximately 90,000 visitors per month. Newly constructed branch libraries generally average 30,000 to 35,000 customers visiting each month. Data above is estimated only based on following historical data: The gate count is an estimate based on past gate count data. Staffing models for branch libraries of this size, 20,000 to 26,000 square feet employ full time equivalent staff with staff working on a normal workday C. FOOD TYPE _2-2 -

3 The Café must provide moderately priced fresh food selections such as desserts, muffins, yogurt, bagels, fruit, etc. coffee and tea, as well as juices and other cold beverage selections. Additional food, such as pre-made sandwiches, salads, etc. can be provided at operator s discretion. Operator shall provide a list of products and pricing that will be provided with the response to this request. D. ITEMS TO BE PROVIDED BY THE FOOD AND BEVERAGE OPERATOR: Menu and other promotional materials including signage (with City Representative s approval). All necessary equipment and fixtures for providing service. Staffing for all aspect of the operation of the concession and associated business tasks. Trash removal, cleaning supplies and cleaning service for Café and designated customer area. Operator to provide trash receptacles. Bathroom and janitorial area is approximately 150 away from café area. All food, beverages and supplies; and mechanisms for ordering and receiving and maintaining accounts for food, beverages and supplies. E. CLEANING Operator shall protect all floor surfaces in order to avoid staining and soiling during all operations. On a daily basis, operator shall clean the cart and surrounding area, including all walls, concrete, floors, glass, etc that, by the City s determination, are soiled by operation of the cart. Operator shall leave all areas used, including pantry, waste disposal, water supply, etc, in a pristine condition. F. PERMITS Throughout the term of the concession agreement, the Operator will be required to obtain all permits necessary to operate the cart, including, but not limited to, Health Department permits. It is the Operator s responsibility to obtain and maintain all appropriate licenses and permits and to pay all local, state and federal taxes that apply. 4. MANDATORY PRE PROPOSAL CONFERENCE The Mandatory Pre-Proposal will be held on December 20, 2007, at 11:30 AM Pacific Time. This meeting requirement may only be met by attending in-person. A maximum of two representatives from each proposer firm (including subcontractors) may attend this meeting. The purpose of this meeting is for City Staff to present an overview of the RFP, answer questions, and conduct a site visit. City Staff reserves the right not to answer any questions that are non-applicable or inappropriate or to defer _2

4 responding until written answers are prepared for distribution. All questions received from proposers relating to this RFP will be posted anonymously at with their corresponding answers. Questions will be addressed and answered as soon as possible, and no later than December 28, Location: Almaden Branch Library & Community Center, 6445 Camden Avenue, San Jose 5. MINIMUM QUALIFICATIONS Certain minimum requirements have been established in order for proposers to be considered for contracts described in this Request for Proposal (RFP): Proposers shall have two or more years of continuous experience within the last five years in the ownership, management or operation of one or more specialty food and beverage facilities (carts or bars). The successful Proposer shall include a cost proposal to purchase in cash, with no installment payments, the food and beverages fixtures including cart, counters, equipment, and supplies that are in place at the site as is. Upon purchase these fixtures become the property and responsibility of the Proposer. A Proposer must submit a satisfactory Criminal History Questionnaire (Attachment M ) showing the propposer to be of good moral character. Proposers not meeting the minimum requirements shall be deemed non-responsive and will not be considered. 6. TERM OF AGREEMENT The initial agreement shall be for 2 years. The agreement shall have 3 options for renewal, at the sole discretion of the City _2-4 -

5 7. COMPENSATION TO THE CITY Operator will pay compensation to the City for the space they are utilizing for the Food and Beverage area. Operator agrees to pay City as consideration for the concession privileges granted herein the amount of One Hundred Dollars ($100.00) per month for this Library, made payable to the City of San Jose on or before the first day of each month. If such flat rental fee is not paid within five (5) days of the due date, are not paid within thirty (30) days of the end of each month, Operator shall pay late fees of $25.00 per day for each day that such payment is not received by the City. 8. SUBMITTAL REQUIREMENTS THE CITY WILL NOT ACCEPT A PROPOSAL IF: Any of the RFP forms are left blank or are materially altered; Any document or item necessary to the proposal is incomplete, improperly executed, indefinite, ambiguous, or is missing; Proposal is not prepared and submitted in accordance with the provisions of these RFP instructions and specifications Proposal responsivness, Pass / Fail 9. BACKGROUND CHECK AND REFERENCES The City requires that prospective Operators operating in public libraries have appropriate qualifications indicating that the concession will be operated responsibly, with accountability, and with the public health, safety, and welfare foremost. The City of San Jose may, in conjunction with the submittal of a proposal, check any references submitted and also conduct a review of publicly available information. Additionally, the City may seek Summary Criminal History information on the Operator and each of the Operator owners and employees pursuant to Penal Code Section By submittal of a proposal, each proposer acknowledges and accepts that such background and reference checks may, at City s discretion, be conducted and may be a factor in evaluating the acceptability of any proposal. Exhibit M to this RFP lists various questions concerning the Proposer s background. In the City s sole discretion, the City may disqualify any proposer for convictions, or for acts which although not a conviction, would constitute a crime, if such convictions or acts are substantially related to the qualifications, functions, or duties of the business, profession or trade providing the services specified in this RFP. Failure to fully and completely respond to the questions in Exhibit M is also a basis for disqualification and for termination of any concession agreement, if awarded. The City is in the process of reviewing and potentially revising permit requirements under Title 6 of the San Jose Municipal Code (Code) to authorize and require criminal history checks of certain operators and their employees operating in San Jose. The Proposer will agree to comply with any such revisions to the Code when they are enacted, even if such revisions result in more restrictive requirements than those included within or referenced in this RFP, or any subsequent concession agreement with the proposer _2-5 -

6 Previous Customer Experience Worksheet Please provide three client references for which you have provided ownership, management or operation of one or more specialty food and beverage facilities (carts or bars). Include the agency name, contact person, title, telephone number, address, and description of services provided. 10. REQUIRED SUBMITTALS TO BE CONSIDERED FOR THIS SERVICE: Attachment A Certification Attachment B Request for Contracting Preference for Local and Small Businesses Submit this form with your proposal only if you wish to be considered for this preference. It may not be submitted late Attachment C Exemplar Please note any exceptions to the Agreement. If there are no exceptions, submit the 1 st page of the Agreement stating No Exceptions Attachment D Acknowledgement of Addenda Attachment E-Insurance Requirements ( submit at the time of award of contract) Attachment F Location On Premises Attachment G Operating Standards Attachment H Pricing / Menu and proposed Product Cost Sheet Attachment I Equipment List and Space Requirements Attachment J Customer References Form, three business references 10.2 Attachment K Management Plan, including resume of proposed Account Manager/Café Manager, proposed team description and experience Attachment L Operational Plan offered by Operator. Including: structure type (kiosk, counter, cart, etc).please provides drawings and list of equipment, if adding any additional pieces Attachment M Criminal History Questionaire 11. SELECTION PROCESS AND EVALUATION CRITERIA SELECTION PROCESS City staff will evaluate proposal submissions. The City reserves the right to interview prospective firms/individuals prior to making its selection. The City also reserves the right to rely on information from sources other than the information provided by the respondents. Finalists (proposals determined to have scored in the competitive range against the criteria listed below) may be invited to present oral presentations for the purpose of allowing the City to fully understand the proposer s ability to meet the evaluation criteria. Oral presentations will not be scored separately. Instead the City may modify proposal scores and resulting rankings based on the oral presentation. Experience and Capabilities 50 % Management and Operation Plan Customer Satisfaction and Firm Reputation 20 % References _2-6 -

7 Other information that comes to light during the evaluation period Fee Structure (Cost) Menu and pricing 20 % Local Business Enterprise 5 % Local and Small Business Enterprise 5 % 12. PROCESS INTEGRITY GUIDELINES In accordance with Procurement and Contract Process Integrity and Conflict of Interest Council policy adapted on 02/07/07, Proposers may be disqualified from this procurement without further consideration for any of the following: Evidence of collusion, directly or indirectly, among Proposers regarding the amount, terms, or conditions of this proposal. Failure to direct all questions/inquiries through the contact listed in this document. Offering gifts or souvenirs, even of minimal value, to City officials or employees. Any attempt to improperly influence any member of the selection staff. Existence of any lawsuit, unresolved contractual claim or dispute between Proposer and the City. Evidence of submitting incorrect information in the response to a solicitation or misrepresent to fail to disclose material facts during the evaluation process. 13. GENERAL INFORMATION Responses will be evaluated as outlined in Section 12. Final award shall be contingent upon the selected firm (Contractor) accepting City s terms and conditions per Attachment C of this RFP. City reserves the right to accept an offer in full, or in part, or to reject all offers. All questions/inquiries must be made through the contact listed on the cover sheet of this document, via . Contact with representative(s) other than name listed in this RFP is grounds for disqualification. The City will provide a written response to all questions in the form of an Addendum. You must respond to this RFP by the due date and time as stated on the cover sheet of this document in order for your quotation to be considered. Quotations may be submitted via fax or e- mail, and must be addressed to the attention of the contact listed on the cover sheet of this document, clearly labeled RFP-12/07. The successful proposer will be required to demonstrate evidence of insurance and agree to City s Terms and Conditions as indicated in Attachment: Exhibit C. 14. PUBLIC NATURE OF PROPOSAL MATERIAL All correspondence with the City including responses to this RFP will become the exclusive property of the City and will become public records under the California Public Records Act (Cal. Government Code section 6250 et seq.) All documents that you send to the City will be subject to disclosure if requested by a member of the public. There are a very limited number of narrow exceptions to this disclosure requirement _2-7 -

8 Therefore, any proposal which contains language purporting to render all or significant portions of their proposal Confidential, Trade Secret or Proprietary, or fails to provide the exemption information required as described below will automatically be considered a public record in its entirety and shall be disclosed to the requesting party without further consideration or notice. Do not mark your entire proposal as confidential. The City will not disclose any part of any proposal before it announces a recommendation for award, on the ground that there is a substantial public interest in not disclosing proposals during the evaluation process. After the announcement of a recommended award, all proposals received in response to this RFP will be subject to public disclosure. If you believe that there are portion(s) of your proposal which are exempt from disclosure under the Public Records Act, you must mark it as such and state the specific provision in the Public Records Act which provides the exemption as well as the factual basis for claiming the exemption. For example, if you submit trade secret information, you must plainly mark the information as Trade Secret and refer to the appropriate section of the Public Records Act which provides the exemption as well as the factual basis for claiming the exemption. Although the California Public Records Act recognizes that certain confidential trade secret information may be protected from disclosure, the City of San José may not be in a position to establish that the information that a Proposer submits is a trade secret. If a request is made for information marked Confidential, Trade Secret or Proprietary, the City will provide Proposers who submitted the information with reasonable notice to seek protection from disclosure by a court of competent jurisdiction. 15. COSTS All costs associated with responding to this request are to be borne by the respondent. 16. NON-DISCRIMINATION It is the City s policy that the selected firm shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to the performance of City of San José contracts. 17. OBJECTIONS AND PROTESTS A. OBJECTIONS Any objections as to the structure, content or distribution of this RFP must be submitted in writing to the purchasing contact listed below. Objections must be as specific as possible, and identify the RFP section number and title, as well as a description and rationale for the objection _2-8 -

9 B. PROTESTS If an unsuccessful Proposer wants to dispute the award recommendation, the Protest must be submitted in writing to the Chief Purchasing Officer no later than ten calendar days after announcement of the successful Proposer, detailing the grounds, factual basis and providing all supporting information. Protests will not be considered for disputes of proposal requirements and specifications, which must be addressed in accordance with Section 12. Failure to submit a timely written Protest to the Chief Purchasing Officer will bar consideration of the Protest. The Chief Purchasing Officer s address for submitting objections or protests is: Attention: Ms. Jane Light, Library Director San José Public Library 150 East San Fernando St. San Jose, CA FACILITY RELATED RESPONSIBILITIES: A. The selected proposer ( Operator ) shall use City facilities in a reasonably efficient manner. Operator, and its subcontractors, employees, and agents shall keep City facilities in good order, shall not permit waste or damage to such facilities, and shall not use such facilities for any unlawful purpose or act. Operaor shall comply, and shall cause its subcontractors and employees to comply with all applicable laws and regulations including all of the City s standard policies and procedures that are provided to Operator in writing regarding access to and use of the airport and other City facilities, including procedures for the physical security and safety of City facilities. Operator shall not cause the breach of any lease agreements governing use of City facilities. Any damage to City facilities caused by the operator and its subcontractors and employees will be at operator s expense _2-9 -

10 ATTACHMENT A Proposing Firm Name: Certification Address: Telephone: Facsimile: Contact person name and title: PROPOSER REPRESENTATIONS 1. Proposer did not, in any way, collude, conspire or agree, directly or indirectly, with any person, firm, corporation or other Proposer in regard to the amount, terms, or conditions of this proposal. 2. Proposer additionally certifies that neither proposer nor its principals are presently disbarred, suspended, proposed for disbarment, declared ineligible or voluntarily excluded from participation in this transaction by any federal department or agency, any California State agency, or any local governmental agency. 3. Proposer acknowledges that all requests for deviations, exceptions, and approved equals are enclosed herein and that only those deviations, exceptions, and approved equals included in the RFP document or permitted by formal addenda are accepted by the City. 4. Proposer did not receive unauthorized information from any City staff member or City Consultant during the Proposal period except as provided for in the Request for Proposals package, formal addenda issued by the City, or the pre-proposal conference. 5. Proposer hereby certifies that the information contained in the proposal and all accompanying documents is true and correct. 6. Please check the appropriate box below: If the proposal is submitted by an individual, it shall be signed by him or her, and if he or she is doing business under a fictitious name, the proposal shall so state. If the proposal is submitted by a partnership, the full names and addresses of all members and the address of the partnership, the full names and addresses of all members and the addresses of the partnership, the full names and addresses of all members and the address of the partnership shall be stated and the proposal shall be signed for all members by one or more members thereof. If the proposal is submitted by a corporation, it shall be signed in the corporate name by an authorized officer or officers. If the proposal is submitted by a limited liability company, it shall be signed in the corporate name by an authorized officer or officers. 10

11 If the proposal is submitted by a joint venture, the full names and addresses of all members of the joint venture shall be stated and it shall be signed by each individual. By signing below, the submission of a proposal with all accompanying documents shall be deemed a representation and certification by the Proposer that they have investigated all aspects of the RFP, that they are aware of the applicable facts pertaining to the RFP process, its procedures and requirements, and that they have read and understand the RFP. Authorized Representative Name (sign name): Authorized Representative Signature (print name): Authorized Representative Title (print title):+ Complete additional signatures below as required per # 6 above Authorized Representative Name (sign name): Authorized Representative Signature (print name): Authorized Representative Title (print title):+ Authorized Representative Name (sign name): Authorized Representative Signature (print name): Authorized Representative Title (print title):+ 11

12 ATTACHMENT B LOCAL AND SMALL BUSINESS PREFERENCE City of San Jose Request for Contracting Preference for Local and Small Businesses Chapter 4.06 of the San Jose Municipal Code provides for a preference for Local and Small Businesses in the procurement of contracts for supplies, materials and equipment and for general and professional consulting services. The amount of the preference depends on whether the operator qualifies as a Local Business Enterprise* or Small Business Enterprise** and whether price has been chosen as the determinative factor in the selection of the operator. In order to be a Local Business Enterprise (LBE) you must have a current San Jose Business Tax Certificate Number and have an office in Santa Clara County with at least one employee. If you qualify as an LBE you can also qualify as a Small Business Enterprise (SBE) if the total number of employees (regardless of where they are located) of your firm is 35 or fewer. There are two ways in which the preference can be applied. In procurements where price is the determinative factor (i.e. there are not a variety of other factors being considered in the selection process) the preference is in the form of a credit applied to the dollar value of the bid or quote. For example, a non-local operator submits a quote of $200 per item and a LBE submits a quote of $204 per item. The LBE receives a 2.5% credit on the quote, which equals approximately $5 and thus the LBE will win the award because the quote is evaluated as if it had been submitted as $199. The following determinations have been made with respect to this procurement: (for official use only) Type of Procurement Bid Request for Quote Request for Proposal Type of Preference Price is Determinative Price is Not Determinative Amount of Preference LBE preference = 2.5% of Cost LBE preference = 5% of Points SBE preference = 2.5% of Cost SBE preference = 5% of Points In order to be considered for any preference you must fill out the following statement(s) under penalty of perjury. Business Name Business Address Telephone No. Type of Business Corporation LLC LLP General Partnership Sole proprietorship Other (explain) *LOCAL BUSINESS ENTERPRISE (LBE) PREFERENCE In order to qualify as an LBE you must provide the following information: Current San Jose Business Tax Certificate Number Address of Principal Business Office or Regional, Branch or Satellite Office with at least one employee located in Santa Clara County: **SMALL BUSINESS ENTERPRISE (SBE) PREFERENCE In order to qualify as an SBE you must qualify as an LBE and have 35 or fewer employees. This number is for your entire business --NOT just local employees, or employees working in the office address given above. Please state the number of employees that your Business has: Based upon the forgoing information I am requesting that the Business named above be given the following preferences (please check): Local Business Enterprise Small Business Enterprise I declare under penalty of perjury that the information supplied by me in this form is true and correct. Executed at: Date: Signature Print name, California 12

13 ATTACHMENT C Exemplar Agreement CONCESSION AGREEMENT AND LICENSE FOR FOOD AND BEVERAGE SERVICES BETWEEN THE CITY OF SAN JOSE AND This Agreement is entered as of between the City of San Jose, a municipal corporation (hereinafter City ),, a California Corporation (hereinafter Operator ). RECITALS WHEREAS, City desires to provide food and beverage services for the Almaden Branch Library located at, 6445 Camden Avenue, San Jose, California; and WHEREAS, City has issued a Request for Proposals ("RFP") dated for food and beverage services for the Library; and WHEREAS, City has determined that Operator s proposal most closely satisfies the needs of City and is deemed to be the most advantageous to City; and WHEREAS, City and Operator desire to enter into an Agreement to provide food and beverage services for the Library; NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: SECTION 1. SCOPE OF SERVICES. Operator shall install and operate a coffee bar/mobile espresso cart at the Library, at the location depicted in Attachment A-1 to Exhibit A, SCOPE OF SERVICES, ( Premises ) which is attached hereto and incorporated herein. Operator shall perform those services specified in detail in Exhibit A. SECTION 2. TERM. A. Initial Term. The term of this Agreement is for two years from, inclusive, subject to the provisions of subsection 2B below. B. Options. The City reserves the right to extend the term of this Agreement for three (3) additional one-year terms ( Option Periods ). The City's Library Director may extend the term of this Agreement by providing written notice to extend the term no less than thirty (30) days prior written notice of City's intention to exercise its option to extend the term of this Agreement The form of written Notice of Exercise of Option is set forth in Exhibit B. 13

14 SECTION 3. CONCESSION FEE. Operator agrees to pay City as consideration for the concession privileges granted herein the amount of one hundred ($100.00) per month per library, made payable to the City of San Jose on or before the first day of each month. If such concession fee is not paid within five (5) days of the due date, are not paid within thirty (30) days of the end of each month, Operator shall pay late fees of $25.00 per day for each day that such payment is not received by the City. SECTION 4. INDEPENDENT CONTRACTOR. It is understood and agreed that Operator, in the performance of the work and services agreed to be performed by Operator, shall act as and be an independent contractor and not an agent or employee of City; and as an independent contractor, Operator shall obtain no rights to retirement benefits or other benefits which accrue to City s employees, and Operator hereby expressly waives any claim it may have to any such rights. SECTION 5. ASSIGNABILITY. The parties agree that the expertise and experience of Operator are material considerations for this Agreement. Operator shall not assign or transfer any interest in this Agreement nor the performance of any of Operator s obligations hereunder, without the prior written consent of City, which consent shall not be unreasonably withheld. Any attempt by Operator to assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. SECTION 6. INDEMNIFICATION. Operator shall defend, indemnify and hold harmless City, its officers, employees and agents against any claim, loss or liability arising out of or resulting in any way from work performed under this Agreement due to the willful or negligent acts (active or passive) or omissions by Operator s officers, employees or agents. The acceptance of said services and duties by City shall not operate as a waiver of such right of indemnification. SECTION 7. BAILEE DISCLAIMER. The parties understand and agree that City in no way purports to be a bailee, and is therefore not responsible in any way for any damage to Operator s property or the property of Operator s contractors, agents, employees and invitees. SECTION 8. WAIVER OF CLAIMS. Operator, as a material part of the consideration to be rendered to City under this Agreement, hereby waives all claims or causes of action against the City, its officers or employees which Operator may now or hereafter have for damages to goods, wares, merchandise or other property in, about or upon the Premises, from any cause or causes arising at any time. In particular, but not by way of limitation, Operator hereby waives any and all claims or causes of action which Operator may now or hereafter have against the City, its officers or employees: (a) for loss, injury or damage sustained by reason of any deficiency, impairment and interruption of any service or system serving any portion of the Library or the Premises and (b) for any loss, damage to the property of, or injury or damage to Operator, Operator s agents, employees, or 14

15 volunteers, from any cause or causes arising at any time because of Operator s use or occupancy of the Library or the Premises. SECTION 9. INSURANCE REQUIREMENTS. Operator agrees to have and maintain the policies set forth in EXHIBIT C, entitled INSURANCE, which is attached hereto and incorporated herein. All policies, endorsements, certificates and/or binders shall be subject to approval by the Director of Finance or the Director s authorized designee ( Risk Manager ) as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the Risk Manager. Operator agrees to provide City with a copy of said policies, certificates and/or endorsements before work commences under this Agreement. SECTION 10. OPERATOR S EMPLOYEES. Persons employed or contracted for by Operator for conducting Operator s Beverage Service Operations at the Library shall be qualified to perform the duties assigned to them and shall be of good moral character. All employees shall conduct themselves at all times in a businesslike manner, dress in appropriate uniforms, and shall be courteous at all times to patrons. SECTION 11. NONDISCRIMINATION. Operator shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, sexual orientation, disability, ethnicity, or national origin in connection with or related to the performance of this Agreement. SECTION 12. TERMINATION. A. City or Operator shall have the right to terminate this Agreement, without cause, by giving not less than thirty (30) days' written notice of termination. B. City may terminate this Agreement, immediately upon service of written notice, for any material omission or misrepresentation of information required to be submitted to City during the Request for Proposal process for the award of this Concession Agreement. B. If Operator fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice. C. The City Librarian is empowered to terminate this Agreement on behalf of City. SECTION 13. COMPLIANCE WITH LAWS. Operator shall comply with all applicable laws, ordinances, codes and regulations (collectively laws ) of the federal, state and local governments, including without limitation, any and all laws specified elsewhere in this Agreement. Operator shall maintain in effect all applicable permits required for its operations hereunder. 15

16 SECTION 14. PAYMENT OF TAXES/ POSSESSORY INTEREST TAXES. A. Operator shall pay before delinquency any and all taxes, assessments, fees and other public charges which may be levied, assessed or imposed upon any of Operator s interest, or which may be imposed upon Operator s business, or which may be imposed upon Operator for the privilege of conducting said business at the Library site, or which may be imposed upon any other property of Operator. B. Operator recognizes and understands in accepting this Agreement that its interest therein may be subject to a possessory interest tax that the City and County may impose on such interest, and that such tax payment shall not reduce any fees due to City hereunder and any such tax shall be the liability of and be paid by the Operator. SECTION 15. OWNERSHIP OF MATERIALS. All reports, documents or other materials developed or discovered by Operator or any other person engaged directly or indirectly by Operator to perform the services required hereunder shall be and remain the property of City without restriction or limitation upon their use. SECTION 16. WAIVER. Operator agrees that waiver by City of any breach or violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition. The acceptance by City of the performance of any work or services by Operator shall not be deemed to be a waiver of any term or condition of this Agreement. SECTION 17. OPERATOR S BOOKS AND RECORDS. A. Operator shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to the services performed by Operator under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Operator pursuant to this Agreement. B. Operator shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Attorney, City Auditor, City Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Operator s address indicated for receipt of notices in this Agreement. D. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Operator s business, City may, by written request by any of the above-name officers, require that custody of the 16

17 records be given to City and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by Operator, Operator s representatives, or Operator s successor-in-interest. SECTION 18. CONFLICT OF INTEREST. Operator shall avoid all conflict of interest or appearance of conflict of interest in performance of this Agreement. SECTION 19. GIFTS. A. Operator acknowledges that Chapter of the San Jose Municipal Code prohibits City s officers and designated employees from accepting gifts as defined in Chapter B. Operator agrees not to offer any City officer or designated employee any gift prohibited by Chapter C. Operator s offer or giving of any gift prohibited by Chapter shall constitute a material breach of this Agreement. In addition to any other remedies City may have in law or equity, City may terminate this Agreement for such breach as provided in SECTION 13 of this Agreement. SECTION 20. DISQUALIFICATION OF FORMER EMPLOYEES. Operator is familiar with the provisions relating to the disqualification of former officers and employees of City in matters which are connected with former duties or official responsibilities as set forth in the San Jose Municipal Code ( Revolving Door Ordinance ). Operator shall not utilize either directly or indirectly any officer, employee, or agent of Operator to perform services under this Agreement, if in the performance of such services, the officer, employee, or agent would be in violation of the Revolving Door Ordinance. SECTION 21. NOTICES. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective parties as follows: To City: Branch Library Business Office Analyst 150 E. San Fernando St. 4 th Floor San Jose, CA To Operator: Notices shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit in the mail. 17

18 SECTION 22. GOVERNING LAW. City and Operator agree that the law governing this Agreement shall be that of the state of California. Operator further agrees to comply with any applicable local ordinances, standards, policies, and/or rules and regulations as established or implemented by the City of San Jose, even if such ordinances, standards, policies, or rules and regulations result in the provisions of this Agreement becoming more restrictive than those included within or referenced by this Agreement. SECTION 23. VENUE. In the event that suit shall be brought by either party to this contract, the parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara, or if federal jurisdiction is appropriate, exclusively in the United States District Court, Northern District of California, San Jose, California. SECTION 24. ATTACHMENTS. The documents forming the entire agreement between the City and the Operator shall consist of this Agreement including the following attachments: EXHIBIT A SCOPE OF SERVICES, including Attachments A-1, A-2, A-3, and A-4 EXHIBIT B NOTICE OF EXERCISE OF OPTION EXHIBIT C INSURANCE REQUIREMENTS In the event any discrepancies or inconsistencies between the provisions of the Agreement and any of the above-referenced documents arise, the provisions of this Agreement will prevail. This Agreement and the Exhibits set forth above, contain all of the agreements, representations and understandings of the parties hereto, and supersede and replace any previous understandings, commitments, or agreements, whether oral or written. Signatures appear on following page: / / / / / / / / / / / 18

19 WITNESS THE EXECUTION HEREOF on the day and year first hereinabove written. APPROVED AS TO FORM: City City of San Jose, a municipal corporation Senior Deputy City Attorney By Operator By By Owner Date: 19

20 EXHIBIT A SCOPE OF SERVICES A. GENERAL DESCRIPTION. City grants to Operator a license to install and operate a coffee bar/mobile espresso cart on the Library Premises, as depicted in Attachment A-1 of this Exhibit A. Operator shall provide hot and cold beverages, as well as light snacks and pastry food items ( Beverage Service Operation ) to Library customers as more particularly described below. B. OPERATOR SERVICES. (1) Hours of operation. Operator s Beverage Service Operation shall be consistent with the Library s hours of operation and shall be available to Library customers between the hours of: 2:00pm to 7:00pm Monday, Tuesday and Wednesday 11:00am to 8:00 p.m. Thursday through Saturday 10:00am to 6:00pm, excluding City-recognized holidays. The parties may alter the hours of operation depending on the need and demand exhibited by Facility customers. The parties may alter the hours of operation without the need for formal amendment so long as each party mutually agrees upon the alteration in writing. (2) Specifications. Operator shall provide a beverage service operation according to the Operating Standards attached as Attachment A-2 to this Exhibit A. Either the City or the Operator may cease operations, after consultation with the other party, if it is determined that set up costs and/or operation costs are not feasible when analyzing net profit after expenses. (3) Pricing. Operator s price list shall be as set forth in the Attachment A-3 to this Exhibit A. After six months the operator may adjust the pricing at their discretion. City shall have the right to review all prices charged for food and beverages and request reconsideration of prices judged to be excessive. The City must first approve adding any additional menu items. Operator agrees to disclose actual cost of any item(s) reviewed. (4) Maintenance. Operator shall comply with all County health standards relating to food service personnel, and the cleanliness and maintenance of kitchen, food service, storage and dining areas. Operator shall maintain the equipment and surrounding area in a state of cleanliness at all times; Operator shall place paper, filters, coffee grounds, food scraps, bottles, cans, paper cups and similar refuse in receptacles located behind the Library. Operator will be responsible for emergency cleanups of areas in and around the beverage service operations. (5) City policies. During the term of this Agreement, Operator shall adhere to all applicable City policy directives, including but not limited to the City policy regarding source reduction, which is attached as Attachment A-3 to this Exhibit A. (6) Equipment. Operator shall provide the coffee bar/espresso cart as generally depicted in Attachment A-4 to this Exhibit A. The color, size, and other specific 1

21 features of the coffee bar/espresso cart shall be determined by mutual agreement of the parties. The coffee bar/espresso cart equipment and furnishings provided by the Operator shall be and shall remain the property of Operator. (7) Business Review Meeting. (BRM) Business review meetings will be held every month for the first six (6) months at library and every quarter thereafter. The objective of the BRM is to present actual performance against standards, review any operational issues and customer feedback. Library and Operator will set timeline for action against issues presented. Operator is responsible to adhere and respond within agreed timeline. C. CITY SERVICES (1) Utilities. City shall furnish: i. 220 AC electrical service (dedicated 20 AMP circuits); ii. 110 volt outlets (2) iii. Trash disposal; iv. Basic sewer connections; v. And cold domestic water service connections to Beverage Service Operation area. (2) Maintenance. Operator shall periodically clean the area where the Beverage Service Operations are performed including the walls, ceiling, floor, and garbage receptacles. Operator shall also empty the garbage receptacles in Beverage Service Operation area at the end of each business day. (3) Storage. City to provide storage space for supplies, for the coffee bar/espresso cart to meet County of Santa Clara Health Code requirements. Operator will be responsible for providing movable storage if needed and must be pre-approved by the Library Director. D. OPERATOR REQUIREMENTS. The operator will provide the following: (1) All necessary professional equipment, including installation to perform the function of the food and beverage area, including, but not limited to, beverage equipment, coolers, and glass display cases; (2) Tables and chairs for the seating area beyond that already provided by library if necessary. Library must approve aesthetics and design; (3) Hot water via Insta-Hot equipment; (4) Final utility connections; (5) Additional utility services, professional fees, and installation for such needs beyond that provided by the Library; and (6) Signage and menu boards as specified in Exhibit A, Scope of Services, line E. 2

22 E. SIGNS. (1) The prices of all items offered for sale shall be displayed on a sign located at the respective place of sale. Such display of prices shall be done in a manner to be seen clearly and read by customers. The separation of tax and price of each item shall also be clearly indicated. (2) Operator shall not install, erect, affix, paint or place any sign, lettering or other advertising device in, on, or about the Premises without the written consent of the Library Director having first been obtained. Operator shall at the option of the Library Director, remove any and all signs, lettering or other advertising device, or a replacement thereof, which may be permitted by the Library Director at Operator s sole cost and expense upon the expiration or termination of this Agreement. (3) Operator shall provide at least one sign approved by the Library Director, easily visible to the public, which states the name, address and telephone number of at least one individual responsible for responding to emergencies and for servicing of complaints and concerns. F. REQUIREMENTS FOR CONSTRUCTION OF IMPROVEMENTS. (1) Operator s Improvements Operator agrees to install the Required Improvements and Equipment in the designated area at its sole cost and expense without any reimbursement from City in accordance with the provisions of this Agreement. Operator shall be solely responsible for the proper installation of the Required Improvements and Equipment, and shall be liable for any damage or loss to any portion of the Library which results from the installation or use of the Improvements or any work related thereto. If Operator causes the disturbance or damage of any asbestos and asbestos-containing materials, Operator shall be solely responsible for the costs of remedying the disturbance or damage including, without limitation, the removal of any asbestos and asbestos-containing materials. (2) Schedule Operator shall comply with the schedule attached as Attachment A-5 to this Exhibit A for the installation of the Improvements. In the event that Operator has not completed installation of the Improvements by the Commencement Date, Operator will be assessed downtime charges in accordance with Section 8 (B) for each calendar day after the Commencement Date that Operator s Improvements and Equipment are not operational. (3) Approval of Plans and Specifications (a) Operator shall not construct any Improvements, remove any asbestos or asbestos-containing materials from the Library, or make any subsequent alterations or additions to the Required Improvements and Equipment, 3

23 without the prior written approval of the Director. Full and complete plans and specifications for all work, facilities and Required Improvements and Equipment, and the time required to complete same, shall be submitted to and receive the written approval of Director before work or construction is commenced. First-class standards of design and construction will be required in connection with all such work, facilities and improvements. All construction must conform with the plans and specifications as approved by Director. (b) (c) Operator may enter the Library to conduct pre-construction planning and preparation work that does not interfere with the operations of the Library, upon the Director s prior written approval. Eight (8) copies of plans for all improvements or subsequent changes or alterations shall be given to Director for review prior to commencement of construction. Director, after giving his or her final approval, shall return to Operator one (1) approved copy for its records. (d) Upon completion of all work, Operator shall provide to Director two (2) completed sets of as-built drawings and provide a CAD disk if Operator produces drawings on disk, and a breakdown which shows all costs incurred for such works. Operator agrees that, upon the request of Director, Operator will inspect the designated coffee bar/espresso cart area jointly with Director to verify the as-built drawings. (4) General Approvals (a) All Required Improvements, Equipment and fixtures, including the plans and specifications therefore, constructed or installed by Operator, its agents or contractors, shall conform in all respects to applicable statutes, ordinances, building codes and rules and regulations. (b) (c) (d) Operator shall obtain at its sole cost and expense all governmental reviews and approvals (including any approvals of the Director or any other City official), licenses, and permits which are, or may be, required and are necessary to install the Required Improvements and/or Equipment and to operate the coffee bar/espresso cart, including, but not limited to, all plans and specifications approvals, site development reviews, development permits, and building permits. Operator shall comply with all conditions, restrictions or contingencies imposed upon, or attached to, the governmental approvals, licenses, and permits described herein. All work shall be performed only by competent contractors duly licensed under the laws of the State of California and shall be performed pursuant to written contracts with such contractors. The Director's approval shall not be deemed to include the approval of any other City department or governmental or public entity, which Operator may be required to obtain. 4