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HomeMy WebLinkAboutR-2003-093 Swanson Services Corporation Agreement (re: comissary services)RESOLUTION NO. R-2003- 93 A RESOLUTION authorizing the City Manager of the City of Yakima to execute a "Commissary Services Agreement" with the Swanson Services Corporation for inmate commissary services at the Yakima City Detention Facility. WHEREAS, the City owns and operates the Yakima City Detention Facility located at the Police Station/Legal Center, 200 South Third Street, Yakima, Washington; and WHEREAS, the City desires inmate commissary services; and WHEREAS, the Swanson Services Corporation ("Swanson") has provided said commissary services at the Detention Facility in a satisfactory manner at no cost to the City for a number of years; and WHEREAS, Swanson is willing to continue to provide these services to the City at no cost under the terms and conditions set forth in the attached Agreement; and WHEREAS, the Police Department recommends that the City continue the contractual relationship with Swanson; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to contract with Swanson Inmate Commissary Services, Inc. for inmate commissary services in accordance with the attached Commissary Services Agreement, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached and incorporated "Commissary Services Agreement" with the Swanson Services Corporation for inmate commissary services at the Yakima City Detention Facility. ADOPTED BY THE CITY COUNCIL this 24th day of June, 2003. ATTEST: City Clerk (Ik)res/swanson inmate 2003.pm CLAY KLING - 2003 Swanson Commissary Agreement.doc COMMISSARY SERVICES AGREEMENT THIS COMMISSARY SERVICES AGREEMENT (hereinafter "Agreement") is made and entered into by and between the City of Yakima (hereinafter the "City"), and Swanson Services Corporation, a Florida corporation (hereinafter "Swanson") WHEREAS, the City owns and operates the Yakima City Detention Facility (hereafter the "Detention Facility") located at the Police Station/Legal Center, 200 South Third Street, Yakima, Washington. WHEREAS, the City desires inmate commissary services. WHEREAS, Swanson has the experience and expertise necessary to provide said inmate commissary services and agrees to perform these services for the City under the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth herein, it is agreed by and between the City and Swanson as follows: 1. Commissary Grant. The City grants unto Swanson the exclusive right to sell commissary products to inmates at the Detention Facility during the term of this Agreement. 2. Scope of Services. Swanson agrees to provide the following services and items to the City. a. Swanson will purchase and maintain at high standards of quality, such mutually agreed number and type of commissary inventory items/products at mutually agreed locations for the sales of food products, non-alcoholic beverages, tobacco products, and other such articles to inmates at the Detention Facility and will keep the inventory adequately serviced and supplied with appropriate merchandise in good quality. The City will reimburse Swanson for the provision of said products on a weekly basis. b Swanson shall provide the City with Swanson's Overnite Commissarysm software and all equipment/hardware necessary to operate said software system. Swanson shall install said software and corresponding equipment/hardware at the Detention Facility 3. Swanson's Title to the Software and Hardware. a. All software installed by Swanson pursuant to this Agreement is proprietary, copyrighted, and a patent application filed with regard to, not only the software, but also the operating technology involved in Swanson's Overnite Commissarysm Service. This software and technology, shall at all times, remain the property of Swanson, with title and all rights vested in Swanson. The City shall have no property interest in said software and technology and shall at all times protect such software and technology Page 1 of 6 (1k)agr-swanson inmate -03 -pm Page 1 CLAY KLING - 2003 Swanson Commissary Agreement.doc Page 2 from copying, removal, tampering with, or disclosure to other persons or companies, without the express written consent of Swanson. b All hardware installed by Swanson shall remain the property of Swanson, unless purchased by the City. c. All maintenance, repair, or replacement of hardware shall be the responsibility of Swanson. 4. Commissary Products. All commissary products sold to inmates by Swanson pursuant to this Agreement must be approved in advance by the City. At any time during this Agreement, the City has the right to disapprove any commissary product that Swanson is selling and require that Swanson immediately stop selling said product to inmates 5. Product Pricing. The price and all subsequent price changes (increase or decrease) of all commissary products to be offered for sale under this Agreement must be approved in advance by the City 6. Inspection of Records. All records shall be kept on file by Swanson for a period of three (3) years from the date the record is made, and Swanson shall, upon reasonable notice, give the City or its authorized representative the privilege, at a reasonable time, of inspecting, examining, and auditing, during normal business hours, such of Swanson's business records which are related to Swanson's performance or nonperformance of this Agreement. The cost of such inspection, examination, and audit will be at the sole expense of the City, and such inspection, examination, and audit shall be conducted at the Yakima City Police Station/Legal Center. 7. Term. The term of this Agreement shall commence on the date of execution of this Agreement and terminate three (3) years thereafter, unless sooner terminated by either party in accordance with Section 16 of this Agreement. 8. Status of Swanson. Swanson and the City understand and expressly agree that Swanson is an independent contractor in the performance of each and every part of this Agreement. Swanson and its employees shall make no claim of City employment nor shall claim against the City any related employment benefits (i.e., social security, health care benefits, retirement benefits) 9. Taxes and Assessments. Swanson shall be solely responsible for compensating its employees and for paying all related taxes, deductions, and assessments, including but not limited to, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement; provided, however, that the City shall be responsible for any sales taxes which may be levied against its commissary sales under this Agreement. In the event the City is assessed a tax or assessment (other than sales tax) as a result of this Agreement, Swanson shall pay the same before it becomes due. Page 2 of 6 (Ik)agr-swanson inmate -03 -pm 'Commissary Agreement.doc KLING - 2003 Swanson A reement.doc Pa �9e 3 10. Nondiscrimination Provision. During the performance of this Agreement, Swanson shall not discriminate in violation of any applicable federal, state, and/or local law and/or regulation on the basis of race, age, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, mental or physical handicap. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. 11. Compliance With Law. Swanson agrees to perform those services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise, including those laws and regulations pertaining to wages and hours of employment. 12. No Insurance. It is understood the City does not maintain liability insurance for Swanson and/or its employees. 13. Indemnification and Hold Harmless. a. Swanson agrees to protect, defend, indemnify, and hold harmless the City, its elected officials, officers, employees and agents from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses (including reasonable attorneys' fees and disbursements) caused by or occurring by reason of any negligent act, error and/or omission of Swanson, its officers, employees, agents, and/or subcontractors, arising out of or in connection with the performance or non- performance of the services, duties, and obligations required of the Swanson under this Agreement, including but not limited to claims arising out of the consumption or use of the items and/or products sold under this Agreement. b. Swanson's defense, indemnification, and hold harmless obligation stated herein is dependent upon the City notifying Swanson in writing of any such claims or lawsuits against Swanson and/or the City within thirty (30) days after the date the City first receives notice of such claim or lawsuit. c. In the event that Swanson and the City are both negligent, Swanson's liability for indemnification of the City shall be limited to the contributory negligence for any resulting suits, actions, claims, liability, damages, judgments, costs and expenses (including reasonable attorney's fees and disbursements) that can be apportioned to Swanson, its officers, employees, agents, and/or subcontractors. d. Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party 14. Insurance. Before this Agreement is fully executed by the parties, the Swanson shall provide the City with a certificate of insurance as proof of commercial liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) per occurrence combined single Page 3 of 6 (Ik)agr-swanson inmate -03 -pm CLAY KLING - 2003 Swanson Commissary Agreement.doc Page 4 limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) general aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, its elected officials, officers, agents, and employees as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice (any language in the clause to the effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent). The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. 15. Excused Performance. In case performance of any terms or provisions hereof shall be delayed or prevented because of compliance with any law, decree, or order of any governmental agency or authority, either local, state, or federal, or because of riots, war, public disturbances, strikes, lockouts, differences with workmen, fires, floods, acts of God, or any other reason whatsoever which is 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, the party so suffering may at its option suspend, without liability, the performance of its obligations hereunder during the period of such suspension of performance of duties hereunder 16. Termination. The City or Swanson may terminate this Agreement, with or without cause, by giving the other party thirty (30) days written notice of termination. Upon termination or expiration of this Agreement, Swanson shall, as soon thereafter as is feasible, remove its software and hardware. 17. Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by Swanson to any other person or entity without the prior written consent of the City. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of Swanson stated herein. 18. Severability. a. If a court of competent jurisdiction holds any part, term or provision of this Agreement to be illegal, or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. b. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. c. Should the City determine that the severed portions substantially alter this Agreement so that the original intent and purpose of the Agreement no longer exists, the City Page 4 of 6 (Ik)agr-swanson inmate -03 -pm CLAY KLING - 2003 Swanson Commissary Agreement.doc may, in its sole discretion, terminate this Agreement. 19. Integration. This Agreement sets forth all of the terms, conditions, and agreements of the parties relative to the subject matter hereof and supersedes any and all such former agreements which are hereby declared terminated and of no further force and effect upon the execution and delivery hereof. There are no terms, conditions, or agreements with respect thereto, except as herein provided and no amendment or modification of this Agreement shall be effective unless reduced to writing and executed by the parties 20. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: TO CITY. City Manager Yakima City Hall 129 North Second Street Yakima, WA 98901 TO SWANSON• Swanson Services Corporation P.O. Box 1306 Tellevast, FL 34270 or to such other addresses as the parties may hereafter designate in writing. Notices and/or demands shall be sent by registered or certified mail, postage prepaid, or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 21. Survival. Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this Agreement and shall be binding on the parties to this Agreement. 22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Page 5 of 6 (lk)agr-swanson inmate -03 -pm Page 5 CLAY KLING - 2003 Swanson Commissary Agreement.doc Page 6 23. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. CITY OF YAKIMA SWANSON SERVICES CORPORATION 141110.... By: By: Dick Zais, City Manager Its: DATE: 6/903 DATE. ATTEST 17/7/Gity Clerk City Contract No a?4,0 Resolution No. Page 6 of 6 (1k)agr-swanson inmate -03 -pm e•u3 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of June 24, 2003 ITEM TITLE: Consideration of a resolution authorizing renewal of a contract with Swanson Commissary Services, Inc. for City jail inmate commissary services SUBMITTED BY: Roy Willson, Acting Chief of Police CONTACT PERSON/TELEPHONE: Interim Police Chief Roy Willson - 576-6348 Lt. Rod Light - 576-6393 SUMMARY EXPLANATION: Attached is a resolution authorizing the renewal of a contract with Swanson Inmate Commissary Services, Inc., for City Jail inmate commissary services. Swanson has been providing jail commissary services pursuant to a three-year contract executed at the time the City jail was opened. At that time, Swanson provided the only available service of this type. Since then, jail staff has been very satisfied with Swanson s products and service, which are provided at no cost to the City. Swanson derives all of its profit from the sale of commissary items to inmates. Further, jail staff has received training on the upgraded inventory and ordering computer system, which is also provided to us at no cost. This contractual relationship is working well and we can see no advantage in changing vendors at this time. Resolution X Ordinance Other (Specify) Contract X Mail to (name and address): Funding Source APPROVED FOR SUBMITTAL: 1 City Manager STAFF RECOMMENDATION: Adopt resolution. BOARD/ COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLLTCION NO. R-2003-93 (Ik) agenda police swanson 03.pm