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Home My WebLink AboutRFP - 9870 Tennis ConcessionaireRFP 9870 Tennis Concessionaire Page 1 of 38 REQUEST FOR PROPOSAL 9870 TENNIS CONCESSIONAIRE RFP DUE: 3:00 PM MT (Mountain Time), SEPTEMBER 15, 2023 The City of Fort Collins is requesting proposals for a Concessionaire to provide tennis programming for youth and adults on behalf of the City and operate the Rolland Moore Park Tennis Pro Shop. As part of the City’s commitment to sustainability , proposals must be submitted online through the Rocky Mountain E -Purchasing System (RMEPS) at http://www.bidnetdirect.com/colorado/city- of -fort-collins. Note: please ensure adequate time to submit proposals through RMEPS. Proposals not submitted by the designated Opening Date and Time will not be accepted by RMEPS. All questions should be submitted, in writing via email, to Beth Diven, Buyer II at bdiven@fcgov.com, no later than 3:00 PM MT on September 6, 2023. Please format your e- mail to include: RFP 9870 Tennis Concessionaire in the subject line. Questions received after this deadline may not be answered. Responses to all questions submitted before the deadline will be addressed in an addendum and posted on the Rock y Mountain E-Purchasing System webpage. Rocky Mountain E-Purchasing System hosted by BidNet A copy of the RFP may be obtained at http://www.bidnetdirect.com/colorado/city -of -fort-collins. This RFP has been posted utilizing the following Commodity Code(s): 805-78 Tennis Equipment 924-42 Instructors, Classes for the Public Prohibition of Unlawful Discrimination: The City of Fort Collins, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d- 4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award. The City strictly prohibits unlawful discrimination based on an individual’s gender (regardless of gender identity or gender expression), race, color, religion, creed, national origin, ancestry, age 40 years or older, marital status, disability, sexual orientation, genetic information, or other characteristics protected by law. For the purpose of this policy “sexual orientation” means a person’s actual or perceived orientation toward heterosexuality, homosexuality, and bisexuality. The City also strictly prohibits unlawful harassment in the workplace, including sexual harassment. Further, the City strictly prohibits unlawful retaliation against a person who engages in protected activity. Protected activity includes an employee complaining that he or she has been discriminated against in violation of the above policy or participating in an employment discrimination proceeding. Financial Services Purchasing Division 215 N. Mason St. 2nd Floor PO Box 580 Fort Collins, CO 80522 970.221.6775 970.221.6707 fcgov.com/purchasing RFP 9870 Tennis Concessionaire Page 2 of 38 The City requires its Concessionaires to comply with the City’s policy for equal employment opportunity and to prohibit unlawful discrimination, harassment and retaliation. This requirement applies to all third-party Concessionaires and their subcontractors/subconsultants at every tier. Public Viewing Copy: The City is a governmental entity subject to the Colorado Open Records Act, C.R.S. §§ 24-72-200.1 et seq. (“CORA”). Any proposals submitted hereunder are subject to public disclosure by the City pursuant to CORA and City ordinances. Professionals may submit one (1) additional complete proposal clearly marked “FOR PUBLIC VIEWING.” In this version of the proposal, Professionals may redact text and/or data that it deems confidential or proprietary pursuant to CORA. All pricing will be considered public records subject to disclosure under CORA and as such pricing cannot be redacted from the “FOR PUBLIC VIEWING” version of the proposal. Failure to provide a public viewing copy will be considered a waiver of any claim of confidentiality under CORA without regard to how the applicant’s proposal or certain pages of the proposal are marked confidential, proprietary, or similar. Such statement does not necessarily exempt such documentation from public disclosure if required by CORA, by order of a court of appropriate jurisdiction, or other applicable law. Generally, under CORA, trade secrets, confidential commercial information and financial data information may not be disclosed by the City. Proposals may not be marked “Confidential” or ‘Proprietary’ in their entirety. By responding to this RFP, Professionals hereby waives any and all claims for damages against the City for the City’s good faith compliance with CORA. All provisions and pricing of any contract resulting from this request for proposal will be public information. Concessionaires Registration: The City requires new service providers receiving awards from the City to submit IRS form W-9 and requires all service providers to accept Direct Deposit (Electronic) payment. If needed, the W-9 form and the Vendor Direct Deposit Authorization Form can be found on the City’s Purchasing website at www.fcgov.com/purchasing under Vendor Reference Documents. Please do not submit these documents with your proposal, however, if you take exception to participating in Direct Deposit (Electronic) payments please clearly note such in your proposal as an exception. The City may waive the requirement to participate in Direct Deposit (Electronic) payments at its sole discretion. Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall have a financial interest in the sale to the City of any real or personal property, equipment, material, supplies or services where such officer or employee exercises directly or indirectly any decision-making authority concerning such sale or any supervisory authority over the services to be rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift, gratuity favor, entertainment, kickback or any items of monetary value from any person who has or is seeking to do business with the City of Fort Collins is prohibited. Collusive or Sham Proposals: Any proposal deemed to be collusive or a sham proposal will be rejected and reported to authorities as such. Your authorized signature of this proposal assures that such proposal is genuine and is not a collusive or sham proposal. The City of Fort Collins reserves the right to reject any and all proposals and to waive any irregularities or informalities. Utilization of Award by Other Agencies: The City of Fort Collins reserves the right to allow other state and local governmental agencies, political subdivisions, and/or school districts to utilize the resulting award under all terms and conditions specified and upon agreement by all parties. Usage by any other entity shall not have a negative impact on the City of Fort Collins in the current term or in any future terms. RFP 9870 Tennis Concessionaire Page 3 of 38 The selected Concessionaire shall be required to sign the City’s Agreement prior to commencing services (see sample attached to this document). Sincerely, Gerry Paul Purchasing Director RFP 9870 Tennis Concessionaire Page 4 of 38 I. BACKGROUND & OBJECTIVE / OVERVIEW A. Objective The City of Fort Collins is requesting proposals for a Concessionaire to provide tennis programming for youth and adults on behalf of the City and operate the Rolland Moore Park Tennis Pro Shop. The awarded Concessionaire will provide pro-shop services including the sale of merchandise and rental of equipment; and conduct lessons , tournaments and other tennis programming for youth and adults. B. Background The City of Fort Collins, Recreation Division, has operated the Rolland Moore Racquet Center since 1984 with an outside Concessionaire running the operation since approximately 1998. The ideal Concessionaire should be able to provide a complete package of services and merchandise to the residents of Fort Collins. The Racquet Center at Roland Moore Park (2201 S Shields St, Fort Collins, CO 80526) has eight (8) hard surface tennis courts, two (2) quick start c ourts, and three (3) outdoor racquetball courts. The awarded Concessionaire will have exclusive rights to give private, semi-private and group lessons on all the above courts. The Concessionaire will also have priority access to the thirty -five (35) additional City - owned tennis courts and will be responsible for all scheduling and collection of fees. II. SCOPE OF PROPOSAL A. Scope of Work City expectations of the Concessionaire: • 5 years of full-time experience running a tennis facility, preferably a public facility . • 10 years of overall tennis programming experience. • Ability and knowledge to successfully operate a pro-shop and program tennis activities. • Certified USPTA Elite Pro . • Other USPTA Pros on staff preferred. At a minimum, the Concessionaire must provide: • Racquet stringing services. • Ball machine rentals (Concessionaire must supply machine and tennis balls). • Tennis lessons and other tennis activities on City -owned tennis courts. • Instructors, payment to instructors and equipment for any tennis programs. • Sale of tennis related items in the pro-shop. • Distribution of Recreation Division literature provided by the City in the pro-shop. • Registration for Tennis Programs utilizing the City’s current Recreation Software system . RFP 9870 Tennis Concessionaire Page 5 of 38 • Provide a price list for all products and services, which may be updated annually at the time of Agreement renewal only . • Scheduling for all City -owned courts. • Rental fee collection from court rentals using fees set by the City Recreation Division. • Tennis program marketing plan and activities for the growth of tennis in Fort Collins. • Quarterly and monthly reports that detail total program participation and court usage. • A schedule of courts for the public to access, both at the courts and online. The Concessionaire shall have exclusive rights to: • Pro Shop for sales of goods and services. • Providing private, semi-private, and group lessons; clinics, tournaments, and other tennis activities at the Rolland Moore Rac quet Center and other City -owned courts. • Priority use of all City -owned courts. B. Key Areas of Responsibility The Concessionaire will be responsible for: • Scheduling and collection of fees for all City -owned courts. • Care, cleaning and minor maintenance of the Pro-Shop building. • Care and cleaning of the storage shed northwest of the pro shop. • General cleaning of the area around the pro shop. • Payment of telephone and data line expenses related to the Pro Shop operation. • Care of any City property used in the Pro Shop. • Providing registration materials to the Recreation Communications office. • Reporting maintenance concerns to the proper park crew chief. • Payment to City on a (monthly) basis. • Informing Outdoor Sports Facility Scheduler of tennis court schedules. • Providing tennis programs (lessons, leagues, tournaments, etc..) to the residents of Fort Collins. • Running background checks on all staff that will work with the public . • Providing Roll-Dris or other court drying devices. • Providing the public a schedule of court usage. • Providing c ustomer service to the tennis community . • Provide website with pro-shop hours, court availability/schedules, online registration and other information about the tennis program . RFP 9870 Tennis Concessionaire Page 6 of 38 The City will be responsible for: • Maintenance of the courts, buildings and surrounding areas. • Providing marketing assistance for new activities offered by the Concessionaire, space for general tennis information in each issue of the recreation program brochures, assistance in targeting new tennis audiences in the community, and assistance with solicitation of interns form area universities. • Landscaping care and maintenance. Trash removal from City trash containers. • Establishing rental court fees. • Entering large events and other Tennis Court schedules into the City’s Event Management System (EMS). C. Anticipated Schedule The following represents the City’s target schedule for the RFP. The City reserves the right to amend the target schedule at any time. • RFP issuance: August 24, 2023 • Question deadline: 3:00 PM MT on September 6, 2023 • Final Addendum Issued: September 8, 2023 • Proposal due date: 3:00 PM MT on September 15, 2023 • Interviews (tentative): End of September/Early October • Award of Contract (tentative): October 2023 • Contract Start Date: November 1, 2023 D. Interviews In addition to submitting a written proposal, the top-rated Concessionaires may be interviewed by the RFP assessment team and asked to participate in an oral presentation to provide an overview of the company , approach to the project and to address questions. The evaluation criteria for the oral interviews will be the same as the criteria for the written evaluations and is included in Section IV. Instead of traditional in-person interviews for the optional interview session, the City may opt to use alternate methods including, but not limited to remote interviews through a platform such as Microsoft Teams or Zoom. E. Subcontractors/Subconsultants Concessionaire will be responsible for identifying any subcontractors and/or subconsultants in their proposal. Please note that the City will contract solely with the awarded Concessionaire; therefore, subcontractors and/or subconsultants will be the responsibility of the Concessionaire. F. Laws and Regulations The Concessionaire agrees to comply fully with all applicable local, State of Colorado and Federal laws and regulations and municipal ordinances to include American Disabilities Act (ADA). RFP 9870 Tennis Concessionaire Page 7 of 38 G. Concession Fee and Payment For the privilege of conducting the concession operations, the Concessionaire will pay to the City a mutually agreed upon Concession Fee, which shall be a percentage of the gross pro shop sales and service proceeds; private, semi-private and group lesson fees; clinic and tournament fees, other court/equipment rental fees; and fees charged for any other Concessionaire-organized events and programs held on City tennis courts or at other City facilities. The Concessionaire must record in the City’s Recreation Software system, all program, rental and other fees at the time of collection or by no later than the tenth (10th) calendar day of the month following the month in which the fees were collected. The C ity shall reimburse the Concessionaire the Concessionaire’s percentage of the Concession Fee, on a monthly basis, no later than the fifteen (15th) calendar day of the month for concession fees due from the previous month’s receipts. Payment for the Concessionaire’s portion of the Concession Fees shall be by direct deposit into the Concessionaire’s bank account. III. PROPOSAL SUBMITTAL Please limit the total length of your proposal to a maximum of fifty (50) 8 ½ x 11” pages (excluding cover pages, table of contents, dividers and Acknowledgement form). Font shall be a minimum of 10 Arial and margins are limited to no less than .5” for sides and top/bottom. Extended page sizes, such as 11” x 17”, count as a single page and may be used for detailed pricing. Links to other files or websites shall not be permitted. Proposals that do not conform to these requirements may be rejected. Concessionaires are required to provide detailed written responses to the following items in the order outlined below. The responses shall be considered technical offers of what Concessionaires propose to provide and shall be incorporated in the contract award as deemed appropriate by the City . A proposal that does not include all the information required may be deemed non-responsive and subject to rejection. Responses must include all the items in the order listed below. It is suggested that the Concessionaires include each of the City’s questions with their response. The City of Fort Collins shall not reimburse any firm for costs incurred in the preparation and presentation of their proposal. A. Cover Letter / Executive Summary The Executive Summary should highlight the content of the proposal and features of the program offered, including a general description of the program and any unique aspects or benefits provided by your firm. Indicate your availability to participate in the interviews/demonstrations on the proposed dates as stated in the Schedule section. B. Concessionaire Information 1. Describe the Concessionaire’s business and background 2. Number of years in the business 3. Details about ownership 4. An overview of services offered and qualifications RFP 9870 Tennis Concessionaire Page 8 of 38 5. Location(s) of offices. If multiple, please identify which will be the primary for our account. 6. Primary contact information for the company including contact name(s) and title(s), mailing address(s), phone number(s), and email address(s). C. Scope of Proposal 1. Provide a detailed narrative of the proposed programs and required services. The narrative should include any options that may be beneficial for the City to consider. 2. A schedule of planned operational days and hours for the Pro Shop. Such schedule should cover an entire year of operations. 3. Describe how the program would be managed and who would have primary responsibility for its timely and professional implementation. 4. Describe the methods and timeline of communication your firm will use with the City’s Project Manager and other parties. 5. Identify what portion of work, if any, may be subcontracted. D. Firm Capability 1. A list of qualifications for your firm and the primary individual overseeing the services described above. 2. References. Provide a minimum of three similar projects with public agencies in the last 5 years that have involved the staff and subcontractors/subconsultants proposed to work on this project. Include the owner’s name, contact name, email and phone number, subconsultants on the team and a brief description of the work . The Concessionaire authorizes the City to verify any and all information contained herein and hereby releases all those concerned providing information as a reference from any liability in connection with any information provided. 3. Provide any information that distinguishes Concessionaire from its competition and any additional information applicable to this RFP that might be valuable in assessing Concessionaire’s proposal. E. Assigned Personnel 1. List of Project Personnel: This list should include the identification of the contact person with primary responsibility for this Agreement, the personnel proposed for this Agreement, and any supervisory personnel, including partners and/or sub consultants, and their individual areas of responsibility. 2. A resume for each person assigned to the Agreement, including partners and/or sub consultants, shall be submitted. Please limit resumes to one page. 3. Some functions of this project may require the use of sub-consultants. If you intend to utilize sub-consultants you must list each and provide resumes. F. Sustainability/TBL Methodology In concise terms (no more than two pages), please describe your organization’s commitment to sustainability and supporting values. Each element of the TBL sustainability criteria will receive equal consideration in determining the final Sustainability/TBL score. RFP 9870 Tennis Concessionaire Page 9 of 38 1. Address how your firm strives to incorporate all three aspects (social, environmental, and economic) of Triple Bottom Line (TBL) sustainable practices into the workplace. Provide examples along with any metrics used to measure success within your f irm. 2. Also provide examples of how your firm has incorporated all three aspects of TBL sustainable practices in previous similar projects on which your firm has been the prime Concessionaire. Some examples are provided below: a. Environmental – Experience delivering projects / programs focused on environmental health priorities in the areas of climate resiliency, water quality and watershed protection, regulatory performance, management systems, air quality, renewable energy, sustainable building and design, construction materials management, and solid waste reduction. b. Economic – Experience working and delivering projects with an emphasis on strategic financial planning, job creation, business development, asset management, various project delivery methods, value engineering, regional partnerships, transparency, stakeholder engagement, strategic investments, aging infrastructure, repurposing of existing facilities, and competing financial priorities. c. Social - Experience working and delivering projects, programs, and/or initiatives that support Equity, Diversity, and Inclusion throughout your firm’s workplace, including leadership, and supply chain. Examples of this may be demonstration of working within cultural and language gaps, development of diversity programs, diverse project teams, equitable opportunity vendor supply chain, and how your firm has applied an equity lens to processes such as recruitment, hiring, purchasing, career pathways, salaries, and staff engagement. G. Cost Complete Section VI, Payment & Pricing Schedule. H. Sample Agreement Included with this request for proposals is a sample Agreement that the City intends to use for obtaining the services of the Concessionaire. The Concessionaire is required to review this Agreement and indicate any objections to the terms of the contract. If revisions to the contractual terms are requested, provide suggested revisions. I. Acknowledgement The Acknowledgement form is attached as Section V. Complete the attached form indicating the Concessionaire hereby acknowledges receipt of the City of Fort Collins Request for Proposal and acknowledges that the Concessionaire has read and agrees to be fully bound by all of the terms, conditions and other provisions set forth in the RFP. RFP 9870 Tennis Concessionaire Page 10 of 38 IV. REVIEW AND ASSESSMENT CRITERIA A. Proposal and Interview Criteria Concessionaires will be evaluated on the following criteria. This set of criteria will be the basis for review and assessment of the written proposals and optional interview session. At the discretion of the City, interviews of the top-rated Concessionaires may be conducted. The rating scale shall be from 1 to 10, a rating of 1 doesn’t meet minimum requirements, a rating of 5 means the category fulfills the minimum requirements, and 10 exceeds minimum requirements in that category . WEIGHTING FACTOR QUALIFICATION STANDARD 2.0 Scope of Proposal Does the proposal address all elements of the RFP? Does the proposal show an understanding of the project objectives, methodology to be used and results/outcomes required by the project? Are there any exceptions to the specifications, Scope of Work, or agreement? 1.0 Availability Do the Vendor’s proposed operating hours meet our minimum requirements. 2.0 Firm Capability Does the Vendor have the resources, financial strength, capacity and support capabilities required to successfully operate the concession? 2.0 Assigned Personnel Do the persons who will be working on the project have the necessary skills and qualifications? Are suffic ient people of the requisite skills and qualifications assigned to the project? 1.0 Sustainability/TBL Methodology Does the firm demonstrate a commitment to Sustainability and incorporate Triple Bottom Line methodology in both their Scope of Work for the project, and their day -to-day business operating processes and procedures? 2.0 Cost Are the proposed payments and costs reasonable? RFP 9870 Tennis Concessionaire Page 11 of 38 V. ACKNOWLEDGEMENT Concessionaire hereby acknowledges receipt of the City of Fort Collins Request for Proposal and acknowledges that it has read and agrees to be fully bound by all of the terms, conditions and other provisions set forth in the RFP 9870 Tennis Concessionaire and sample Agreement except as otherwise noted. Additionally, Concessionaire hereby makes the following representations to City: a. All of the statements and representations made in this proposal are true to the best of the Concessionaire’s knowledge and belief. b. Concessionaire commits that it is able to meet the terms provided in this proposal. c. This proposal is a firm and binding offer, for a period of 90 days from the date hereof. d. Concessionaire further agrees that the method of award is acceptable. e. Concessionaire also agrees to complete the proposed Agreement with the City of Fort Collins within 10 days of notice of award. If contract is not completed and signed within 10 days, City reserves the right to cancel and award to the next highest rated firm. f. Concessionaire acknowledges receipt of addenda. g. Concessionaire acknowledges no conflict of interest. h. Concessionaire acknowledges that the City is a governmental entity subject to the Colorado Open Records Act, C.R.S. §§ 24-72-200.1 et seq. (“CORA”). Any proposals submitted hereunder are subject to public disclosure by the City pursuant to CORA and City ordinances. Professionals may submit one (1) additional complete proposal clearly marked “FOR PUBLIC VIEWING.” In this version of the proposal, Professionals may redact text and/or data that it deems confidential or proprietary pursuant to CORA. All pricing will be considered public records subject to disclosure under CORA and as such pricing cannot be redacted from the “FOR PUBLIC VIEWING” version of the proposal. Failure to provide a public viewing copy will be considered a waiver of any claim of confidentiality under CORA without regard to how the applicant’s proposal or certain pages of the proposal are marked confidential, proprietary, or similar. Such statement does not necessarily exempt such documentation from public disclosure if required by CORA, by order of a court of appropriate jurisdiction, or other applicable law. Generally, under CORA, trade secrets, confidential commercial information and financial data information may not be disclosed by the City. Proposals may not be marked “Confidential” or ‘Proprietary’ in their entirety. By responding to this RFP, Professionals hereby waives any and all claims for damages against the City for the City’s good faith compliance with CORA. All provisions and pricing of any contract resulting from this request for proposal will be public information. Legal Firm Name: Physical Address: Remit to Address: Phone: RFP 9870 Tennis Concessionaire Page 12 of 38 Name of Authorized Agent of Firm: Signature of Authorized Agent: Primary Contact for Project: Title: Email Address: Phone: Cell Phone: NOTE: ACKNOWLEDGMENT IS TO BE SIGNED & RETURNED WITH YOUR PROPOSAL. RFP 9870 Tennis Concessionaire Page 13 of 38 VI. PAYMENT & PRICING SCHEDULE Provide payment amounts and pricing to cover the following items: Payment amounts of gross income to City for the following: Percentage 0Ba. Pro Shop Concession Sales and Service proceeds 1B% 2Bb. Lessons (private, semi-private and group), Clinics and Tournaments 3B% 4Bc. Any other Concessionaire organized events and programs held on City tennis courts or at other City facilities 5B% 6Bd. Racquet Stringing Services 7B% 8Be. Ball Machine Rentals 9B% 10Bf. Court Scheduling/Rental 11B% g. Clinics % h. Tournaments % Cost to the Public for the following services: Per Hour a. Ball Machine Rental $ b. Private Lessons $ c. Semi-Private Lessons $ d. Group Lessons $ e. Racquet Stringing (per racquet) $ Other Services (optional): Please describe any additional services to be offered and the associated costs in the space bellow. RFP 9870 Tennis Concessionaire Page 14 of 38 VII. SAMPLE AGREEMENT (FOR REFERENCE ONLY – DO NOT SIGN ) TENNIS CONCESSION AGREEMENT This Tennis Concession Agreement, hereinafter called the "Agreement," is made and entered into as of the day of , 20 , by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, whose principal offices are at 300 LaPorte Avenue, Fort Collins, Colorado 80521, hereinafter called "City," and , a(n) [Enter State] Corporation , whose principal offices are at , hereinafter called "Concessionaire", regarding certain services to be provided at Rolland Moore Park, 2201 S. Shields Street, Fort Collins, Colorado, 80526 (the "Park"). WITNESETH: ARTICLE 1 Tennis Services Concessionaire agrees to provide pro shop services in accordance with the Scope of Services description, attached as Exhibit "A" and incorporated herein by this reference, such services to be provided primarily by the Concessionaire. ARTICLE 2 Grant of Pro Shop Concession The City grants and Concessionaire accepts the responsibility of operating a Tennis Pro Concession in accordance with the Scope of Services description attached as Exhibit "B" and incorporated herein by this reference. ARTICLE 3 Concession Space For the purposes of this Agreement, the "Concession Space" shall mean any and all parts of the pro shop building at the Park. ARTICLE 4 Concessionaire's Use of the Concession Space 4.1 In General. Subject to other limitations expressed in this Agreement, the City grants to Concessionaire the right to exclusive use of the Concession Space and the right to use in common with others the public areas of the Park, in conjunction with its operations under this Agreement, in such spaces and manner as may be prescribed by the City. 4.2 Smoking Prohibited. Pursuant to the Fort Collins City Code, smoking is prohibited in the Concession Space, and no person shall smoke outside within twenty (20) feet from any entrance, passageway, operable window or ventilation system of the Concession Space, including outdoor patios unless such person is passing through the area, without stopping, en route to another destination. The Concessionaire shall inform persons violating this provision of the applicable law and request their compliance. 4.3 Restriction on Items Offered for Sale. In no event shall Concessionaire offer for sale or otherwise supply smoking instruments or tobacco at the Park . RFP 9870 Tennis Concessionaire Page 15 of 38 4.4 Compliance with Applicable Law . The Concessionaire agrees to comply fully with all applicable state and federal laws and regulations and municipal ordinances, as well as all rules, regulations, policies, and procedures adopted by the City. ARTICLE 5 Rights of Ingress and Egress 5.1 In General. The Concessionaire shall have the right of ingress and egress to and from the Concession Space for Concessionaire's employees, agents and invitees to the extent reasonably necessary in connection with the conduct of Concessionaire's business under this Agreement. Areas designated as restricted areas by the City shall be excluded. 5.2 Closures. The City may, at any time, temporarily or permanently, close or consent to or request the closing of any roadway or any other way at, in or near the Park, presently or hereafter used as such, so long as reasonable and safe means of ingress and egress remains available to Concessionaire. ARTICLE 6 Undertakings of Concessionaire 6.1 Service. Concessionaire agrees: 6.1.1 The Concessionaire shall furnish and pay for all equipment, except as otherwise provided by the City pursuant to Article 10, all goods, labor, transportation, supervision and services necessary to provide services in accordance with this Agreement. 6.1.2 Concessionaire acknowledges the desire and obligation of the City to provide a high level of service to the public. Therefore, Concessionaire agrees to offer for sale from the Concession Space only high quality merchandise and products. If, in the opinion of the City, the selection of items offered is inadequate or not of high quality or if any of the items are found to be objectionable for display and/or sale in a public facility, the items shall be removed or replaced as required by the City. The City Representative shall meet and confer with Concessionaire regarding such matters. However, Concessionaire acknowledges that the City's determination as to the same shall be conclusive. Failure of Concessionaire to correct, rectify or modify its quality within five (5) days of being advised in writing to do so shall be cause for default. 6.1.3 Concessionaire warrants that all Services and related responsibilities performed under this Agreement shall be performed with the highest degree of competence and care and in accordance with the highest professional and management standards. 6.1.4 Personal Services. It is understood that the City enters into this Agreement based on the special abilities of the Concessionaire and that this Agreement shall be considered as an agreement for his/her personal services. Accordingly, the Concessionaire shall neither assign any responsibilities nor delegate any duties designated to the Concessionaire under this Agreement to any other person without RFP 9870 Tennis Concessionaire Page 16 of 38 the prior written consent of the City, and as otherwise set forth in Article 15. 6.2 Hours of Operation. Subject to the exception for inclement weather expressed below, the Concessionaire will be required to provide services under this Agreement as follows: A. During the months of , from to ; B. During the months of , from to ; C. Exceptions to the schedule may be made, subject to the consent of the City, if closing is dictated by weather. 6.3 Concessionaire Personnel. Concessionaire shall control the conduct and demeanor of its agents and employees. Concessionaire agrees to supply and require its employees to wear suitable attire and to wear or carry badges or other suitable means of identification, the form for which shall be subject to prior and continuing approval of the City. 6.3.1 The Concessionaire agrees to provide to the City at all times a current list of employees, volunteers, and other representatives or agents of Concessionaire that will be working on behalf of the Concessionaire in providing services to the City under this Agreement. The Concessionaire shall keep a written record of all hours worked by volunteers and provide this information to the City on a monthly basis or upon request. The Concessionaire and the City acknowledge and agree that certain services provided by Concessionaire will require that employees, volunteers, and other representatives or agents of the Concessionaire act in positions of trust which will entail the handling of and accounting for funds of the City and City property, or direct contact with youth and members of the general public. Accordingly, Concessionaire agrees to perform, prior to acceptance of employment, background screening of all employees, volunteers, and other representatives or agents of the Concessionaire at Concessionaire’s expense. 6.3.2 In the event that a background check, or any other information available to the Concessionaire or the City, raises questions about the trustworthiness, fitness for provision of services under this Agreement, competency or suitability of any individual for a position of trust of any kind, including handling of funds, City equipment or property, or working with youths or other members of the general public, such individual shall not be employed or allowed to volunteer in connection with the services or activities required or permitted under this Agreement and, upon request, City shall provide a written statement to Concessionaire outlining its concerns and advising Concessionaire that it may not employ such person or persons. 6.3.3 The following constitute unacceptable personal conduct that the parties acknowledge and agree shall be subject to reasonable objection by the C ity. The parties acknowledge this list is not meant to be exhaustive, and other conduct not listed in this Section may be determined by the City to reasonably impair RFP 9870 Tennis Concessionaire Page 17 of 38 Concessionaire's ability to provide satisfactory services under this Agreement, and may also give rise to a reasonable objection by the City to which Concessionaire shall be expected to respond as set forth herein. In the event the Concessionaire, or anyone providing services for the Concessionaire commits any of the following examples of unacceptable conduct or 6.3.4 fails or refuses to take reasonable action to correct such conduct by any person providing services for or on behalf of Concessionaire hereunder, the City may give Concessionaire notice of violation and proceed in the manner as set forth in Section 17.1.9. a. Commission or conviction of a felony, or of any crime involving moral turpitude; b. Theft or misuse of City money or property; c. Harassment of, or discrimination against, any individual based on race, religion, national origin, age, sex, sexual orientation or disability, including any breach of the terms set forth in Exhibit C, attached hereto; d. Falsification, unauthorized use or destruction of City records, reports or other data or information belonging to the City; e. Abusive or threatening treatment of any person, including, but not limited to physical or verbal confrontation; f. Using, consuming, possessing, having in the body or distributing alcohol (except in the normal performance of concession services) or controlled substances during wor king time; g. Destruction, loss or abuse of City property; h. Unauthorized use of City equipment or property for personal use; or i. Possessing or maintaining sexually explicit materials on City property; j. Failure to meet the City’s performance expectations. 6.4. Prohibition Against Unlawful Discrimination. The City, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, affirmatively ensures that for all contracts entered into with the City, disadvantaged business enterprises are afforded a full and fair opportunity to bid on the contract and are not to be discriminated against on the grounds of race, color, or national origin in consideration for an award. The City strictly prohibits unlawful discrimination based on an individual’s gender (regardless of gender identity or gender expression), race, color, religion, creed, national origin, ancestry, age 40 years or older, marital status, disability, sexual orientation, genetic information, or other characteristics protected by law. For the purpose of this policy “sexual orientation” means a person’s actual or perceived orientation toward heterosexuality, homosexuality, and bisexuality. The City also strictly prohibits unlawful harassment in the workplace, including sexual harassment. Further, the City strictly prohibits unlawful RFP 9870 Tennis Concessionaire Page 18 of 38 retaliation against a person who engages in protected activity. Protected activity includes an employee complaining that he or she has been discriminated against in violation of the above policy or participating in an employment discrimination proceeding. The City requires its vendors to comply with the City’s policy for equal employment opportunity and to prohibit unlawful discrimination, harassment and retaliation. This requirement applies to all third-party vendors and their subConcessionaires at every tier. 6.5 Statements, Recordkeeping and Audits. Concessionaire shall keep books and records of the business, including an accounting of all revenue and expenses of the concession operation, in accordance with good accounting practice and in such form as is satisfactory to the City. The Concessionaire hereby grants to the City the right to audit Concessionaire's books and records for its operation at the Concession Space and agrees to make available to the City, or its authorized representative, at any time, Monday through Friday inclusive, between the hours of 9:00 a.m. and 5:00 p.m., at the offices of the City or the Concession Space, at the City's election, all records, books and relevant related information as may be required for audit purposes. 6.5.1 Annual financial statements are required to be filed with the City representative on or before April 15th for the prior year. 6.6 Phy sical Interference. Concessionaire shall not do, nor permit to be done, anything which may interfere with the effectiveness or accessibility of the drainage system, sewerage system, fire protection system, sprinkler system, alarm system and fire hydrants and hoses, if any, installed or located in the Concession Area or elsewhere at the Park. 6.7 Taxes. Concessionaire agrees to pay all local, state and federal social security, unemployment insurance, sales, use, personal property, possessory interest, and other taxes, assessments and payments-in-lieu which, during the term of this Agreement or any extension hereof, may become a lien of which may be levied or charged by the State, County, City of Fort Collins or other tax -levying body upon or with respect to the Concession Space or the Golf Course, upon any taxable interest acquired by the Concessionaire in this Agreement, or any taxable possessory right which Concessionaire may have in or to the Concession Space or facilities or the improvements thereon, by reason of Concessionaire's occupancy or use thereof, or otherwise, as well as all taxes on taxable property, real or personal, owned by Concessionaire or taxes on Concessionaire's operations or activities in or about the Concession Space or elsewhere at the Park. However, except as otherwise permitted by this Agreement, no charges, fees or taxes of any nature shall be imposed by the City solely upon Concessionaire for exercising any right or privilege granted by the City to Concessionaire in this Agreement with respect to the use of the Concession Space. Nothing herein shall prevent Concessionaire from protesting, through due process, any taxes levied. 6.8 Licenses. Concessionaire agrees to obtain and pay for all licenses necessary in connection with its operation. RFP 9870 Tennis Concessionaire Page 19 of 38 6.8.1 Any such licenses held by the Concessionaire in connection with this Agreement shall be surrendered by the Concessionaire upon termination of this Agreement. 6.8.2 Upon Concessionaire's surrender of all licenses and acquisition of new licenses by such replacement Concessionaire as the City may select, the City shall reimburse Concessionaire for such proportional amount of the cost of the license as may be attributable to any remaining period which may exist from the date of Concessionaire's surrender to license expiration. 6.9 Marketing. Concessionaire shall cooperate with and be responsive to the City’s marketing staff regarding marketing efforts associated with tennis programming at the Concession Space and other applicable City facilities. ARTICLE 7 T erm 7.1 Period. The term of this Agreement shall commence on and unless terminated sooner, shall expire on . This Agreement shall be automatically renewed for up to four (4) additional one (1) year terms unless the Concessionaire is in default beyond any applicable cure period or unless one party serves written notice to the other party of its intention to terminate the Agreement, provided such written notice must be served at least ninety (90) days prior to the anniversary date of the Agreement. 7.2 Holding Over. In the event that the Concessionaire, or its successor in interest, if any, shall remain beyond the term set forth herein, although no right to remain is given by this Article, it is the intention of the parties and it is hereby agreed that a right of use from month-to- month shall then arise subject to all provisions and conditions of this Agreement in connection with such right, except that the City shall have the sole right to determine reasonable fees for any holdover period. ARTICLE 8 Fee For Services/Fee For Conducting Business 8.1 Concession Fee. For the privilege of conducting the concession operations hereunder, the Concessionaire shall pay to the City an amount equal to ( ) percent of gross pro shop sales and service proceeds; private, semi-private and group lesson fees; clinic and tournament fees; other court/equipment rental fees; and fees charged for any other Concessionaire-organized events and programs held on City tennis courts or at other City facilities. 8.2 Concessionaire’s Record of Receipts. The Concessionaire must record in the City’s Recreation Software system, all program, rental and other fees at the time of collection or by no later than the tenth (10th) calendar day of the month following the month in which the fees were collected. 8.3 Time of Payment. The City shall reimburse the Concessionaire the Concessionaire’s percentage of the Concession Fee, on a monthly basis, no later than the fifteen (15th) calendar day of the month for concession fees due from the previous month’s receipts. RFP 9870 Tennis Concessionaire Page 20 of 38 8.4 Method of Payment. Payment for all fees under Article 8 shall be by direct deposit into the Concessionaire’s bank account. ART ICLE 9 Utilities, Maintenance and Janitorial Duties 9.1 Utilities. The City shall pay all charges for water, storm water, sewer, gas, trash collection, recycling, basic clubhouse security system services, telephone, and electric services to the Concession Space. The Concessionaire shall pay for any Pro Shop televisions, cable or satellite services, or expanded security services. Concessionaire is responsible for any cable/satellite TV charges. 9.2 M aintenance and Repair. The City shall maintain and repair the Concession Space and City equipment and fixtures (defined in Article 10). Concessionaire shall submit all requests for repairs or maintenance to the City Representative. Notwithstanding anything to the contrary contained herein, the City shall not in any way be liable to the Concessionaire for failure to make repairs as herein specifically required of it unless the Concessionaire has previously notified the City in writing of a need for such repairs, and the City has failed to commence and complete said repairs within a reasonable period of time following receipt of the Concessionaire's written notification. 9.2.1 The Concessionaire shall neither hold nor attempt to hold the City liable for any injury or damage, either approximate or remote, occasioned through or caused by defective electrical wiring or the breaking or stoppage of plumbing or sewage upon the Concession Space, whether said breakage or stoppage results from freezing or otherwise. 9.3 Cleaning and Janitorial. The Concessionaire shall keep the Concession Space and its fixtures clean and in good sanitary condition as required by the ordinances, resolutions, policies, statutes, and health, sanitary and police regulations of the City of Fort Collins, County of Larimer, and State of Colorado. 9.3.1 Concessionaire shall thoroughly clean the entire Concession Space, including all equipment and fixtures, whether provided by the City or Concessionaire, and the windows, floors, counters, at a minimum of three times per year. Contactor shall schedule inspections with the City representative after scheduled cleaning and provide all receipts associated with cleaning work. 9.3.2 Concessionaire is responsible for the ongoing cleanliness of the Concession Space in order to provide a clean and orderly appearance for golfers and the public, including but not limited to, chairs, patio, floor areas and removing trash accumulations to designated trash containers. 9.3.3 Concessionaire shall maintain clean and orderly restrooms in the Concession Space throughout operating hours. 9.3.4 Concessionaire shall be responsible for the daily cleaning of all outside entrances to RFP 9870 Tennis Concessionaire Page 21 of 38 the concession space. 9.3.5 Concessionaire is responsible for snow removal from pathways leading to the Concession Space when the course is open. ARTICLE 10 Acceptance and Trade Fixtures 10.1 Concession Space, City Equipment and Fixtures. In addition to the Concession Space, the City shall provide the following: 10.1.1 Existing equipment as listed on Exhibit "D", attached hereto and made a part hereof; 10.1.2 Lighting fixtures for general area illumination; 10.1.3 Heat and air conditioning; 10.1.4 Pro shop counters, storage units and safe; and 10.1.5 One cash register and/or computerized system, and credit card machine for use by Concessionaire in connection with performance of services and sales under this Agreement. 10.1.6 Pro Shop Carpeting. 10.2 Acceptance. On the date of comm encement of this Agreement, Concessionaire shall acknowledge that it accepts the Concession Space as well as any City equipment and fixtures "as is." 10.3 Installation of Equipment and Trade Fixtures. Except for the items listed on Exhibit "E", attached hereto and made a part hereof, no equipment, trade fixtures, signs or other personal property used by Concessionaire in its business, whether or not attached to the Concession Space or any Improvements thereon, shall be installed without the prior written approval of the City. 10.4 Removal of Equipment, Trade Fixtures. Concessionaire shall have the right at any time during the term of this Agreement or upon termination and within thirty (30) days thereafter, to remove all trade fixtures, equipment and other personal property owned by Concessionaire, subject to any valid lien the City may have thereon. Any property not so removed by Concessionaire upon termination shall become a part of the realty on which it is located, and title thereto shall vest in the C ity. 10.5 Title to Improvements. Upon installation or erection of Improvements by Concessionaire, such Improvements (but excluding any of Concessionaire's personal property and trade fixtures which are attached or affixed thereto) shall become a part of the realty upon which they are erected and title thereto shall vest in the City. Upon vesting, the Improvements become part of the Concession Space and are subject to the terms applicable to the RFP 9870 Tennis Concessionaire Page 22 of 38 Concession Space within this Agreement. 10.6 Applicable Law . All Improvements and all trade fixtures, equipment or other personal property installed by Concessionaire shall be subject to and conform in all respects to the applicable statutes, ordinances, building codes, sign codes, rules and regulations of all governmental agencies which have jurisdiction over such matters. ARTICLE 11 D amage by Concessionaire 11.1 Concessionaire shall be liable for and shall repair, replace or cause to be repaired or replaced within fifteen (15) days after occurrence, any damage to the Concession Space, or to City's property, equipment and fixtures (defined in Article 10) caused by Concessionaire, its board members, officers, agents, employees or anyone acting under its direction and control, ordinary wear and tear excepted. All repairs or replacements shall be made promptly and when necessary and shall be in a quality and of a class at least equal to the original. Concessionaire shall also return the Concession Space to the City in as good of a condition as when possession of it was delivered to Concessionaire, reasonable wear and tear excepted. Any reasonable costs the City incurs in disposing of Concessionaire’s personal property and fixtures, and in repairing any damages to the Concession Space in excess of reasonable wear and tear, shall be paid by Concessionaire to the City within fifteen (15) days of it receiving the City’s written statement of such costs. ARTICLE 12 Total or Partial Destruction 12.1 Concession Space or Other Major Component Rendered Untenantable. In case, during the term of this Agreement, the Concession Space, Golf Course or any principal part of any one of them shall be destroyed or shall be so damaged by fire, flood, or other casualty so as to be rendered untenantable or unusable as determined by the City: 12.1.1 Then, in such event, at the option of the City or Concessionaire, the term hereby created shall cease; and this Agreement shall become null and void from the date of such damage or destruction; and Concessionaire shall immediately surrender the Concession Space and its interest therein to the City; provided, however, that the City or Concessionaire shall exercise such option to so terminate this Agreement by notice, in writing, delivered to the other party within thirty (30) days after the City's determination of untenantability or unusability. 12.1.2 In the event neither the City nor Concessionaire shall elect to terminate this Agreement, this Agreement shall continue in full force and effect; and the City shall repair the Concession Space, Clubhouse, or Golf Course excluding improvements or equipment, signs, trade fixtures or other personal property installed by Concessionaire, with all reasonable speed, placing the same in as good a condition as it was at the time of the damage or destruction. 12.2 Concession Space Only Untenantable. In the event of destruction rendering only the Concession Space untenantable, the City shall endeavor, but not be obligated, to make RFP 9870 Tennis Concessionaire Page 23 of 38 substitute premises available for Concessionaire's use. 12.3 Components Tenantable. If the Concession Space or Golf Course shall be only injured by fire, flood, or the elements to such extent so as not to render the same untenantable and unfit for use and occupancy, the City shall repair the same with all reasonable speed. 12.4 R emoval of Rubbish. In any event, upon the occurrence of damage or destruction, Concessionaire shall remove all rubbish, debris, merchandise, furniture, furnishings, equipment and other items of its personal property within five (5) days after request being made by the City. 12.5 Exception for Damage Caused by Concessionaire. In the event of damage caused by Concessionaire as more specifically addressed in Article 11 of this Agreement, the provisions of Article 11 shall govern in any conflict between Article 11 and Article 12. 12.6 No Claim by Concessionaire. No compensation or claim shall be made by or allowed to Concessionaire by reason of any inconvenience or annoyance arising from the necessity of repairing any portion of the Concession Space or Collindale Golf Course, however the necessity may occur. ARTICLE 13 Indemnification and Insurance 13.1 City's Liability . The City shall not in any way be liable for any cost, liability, damage or injury, including cost of suit and reasonable expenses of legal services, claimed or recovered by any person whomsoever or whatsoever as a result of any operations, works, acts or omissions performed within Concession Space by Concessionaire, its agents, employees or Concessionaires unless caused or contributed to by the negligence or willful misconduct of the City, its employees, agents or Concessionaires. 13.2 Indemnification. Concessionaire covenants that it will indemnify and hold the City harmless from all claims, demands, judgments, costs and expenses, including attorneys' fees, claimed or recovered (whether justly, unjustly, falsely, fraudulently or frivolously) by any person by reason of injury to or death of any individual person or persons, or by reason of damage to, destruction or loss of use of any property, including City's personnel and City's property, directly or indirectly arising out of, resulting from or occurring in connection with any operations, works, acts or omissions of Concessionaire. As used herein, the term "Concessionaire" and "City" includes the respective directors, officers, agents, employees and Concessionaires of Concessionaire and City. In the event a subcontractor performs any work under this Agreement, the Concessionaire shall be responsible for any liability directly or indirectly arising out of the work performed by such subcontractor. 13.3 Intellectual Property Representation. Concessionaire represents that it is the owner of or is fully authorized to use any and all services, processes, machines, articles, makes, names or slogans used by it in its operation or in any way connected with this Agreement. 13.4 C oncessionaire Insurance. Without limiting any of the Concessionaire's obligations RFP 9870 Tennis Concessionaire Page 24 of 38 hereunder, the Concessionaire shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement with limits specified in Exhibit "F", which is attached hereto and incorporated herein by this reference. 13.5 Precautions Against Injury. The Concessionaire shall take all necessary precautions in performing the operations hereunder to prevent injury to persons and property. 13.6 Failure to Insure. Failure of Concessionaire to take out and/or maintain, or the taking out and/or maintenance of any required insurance shall not relieve Concessionaire from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with the obligations on Concessionaire concerning indemnification. In the event the Concessionaire fails to maintain insurance required hereunder, the City may, at its option, take out and maintain at the expense of the Concessionaire such insurance as the City may deem proper. The City may offset the cost of any such insurance from any monies that may be due or become due to the Concessionaire under this Agreement. ARTICLE 14 No Interest in Real Property 14.1 Concessionaire agrees that this Agreement constitutes merely a right to use and occupy the Concession Space for a limited purpose and does not create or convey to Concessionaire any interest in real property. ARTICLE 15 Assignment 15.1 The Concessionaire shall not assign this Agreement, sublet or otherwise allow any person to take possession of all or any portion of the Concession Space without prior written consent of the City. Any transfer of Concessionaire's interest by operation of law, merger, consolidation, or other method is void and ineffective unless Concessionaire obtains written consent of the City. ARTICLE 16 Right of City to Enter, Inspect and Make Repairs 16.1 In General. City and its authorized employees, agents, Concessionaires and other representatives shall have the right (at such times as may be reasonable under the circumstances and with as little interruption to Concessionaire's operation as is reasonably practicable) to enter upon any part of the Concession Space for the following purposes: 16.1.1 To inspect such premises at reasonable intervals during regular business hours (or at any time in case of emergency) to determine whether Concessionaire has complied with and is comply ing with the terms and conditions of this Agreement with respect to such premises; 16.1.2 To perform or cause to be performed maintenance and make repairs and replacements: and 16.1.3 To make structural additions and alterations. RFP 9870 Tennis Concessionaire Page 25 of 38 16.2 Obstruction by City . All entries made for the purposes enumerated above shall, except as otherwise provided in Article 12, Total or Partial Destruction, be without abatement of damage for inconvenience. 16.3 O bstruction by Concessionaire. In the event that any personal property of Concessionaire shall obstruct the access of the City, its officers, employees, agents or contractors, or a utility company furnishing utility service to any of the existing utility, mechanical, electrical and other systems, and thus shall interfere with the inspection, maintenance or repair of any such system, Concessionaire shall move such property, as directed by the City or said utility company, in order that access may be had to the system or part thereof for inspection, maintenance or repair. If Concessionaire shall fail to so move such property after direction from the City or said utility company to do so, the City or the utility company may move it without liability for damage sustained in moving. 16.4 N o Eviction or Abatement. Exercise of any or all of the foregoing rights in this Article, by the City, or others under right of the City, shall not be, nor be construed to be, an eviction of Concessionaire, nor be made the grounds for any abatement of any claim or demand for damages against the City, consequential or otherwise, except claims for damages to person or property caused solely by the negligence of the City. ARTICLE 17 Default, Rights of Termination 17.1 Default by Concessionaire. Time is of the essence in the performance of services and payments of any amounts due under this Agreement. Concessionaire shall be in default under this Agreement upon the occurrence of any one or more of the following events: 17.1.1 Concessionaire's failure to pay any fee or other charge when due or provide acceptable financial reports if requested by the City within five (5) workings days after notice from City of such nonpayment or request. 17.1.2 Concessionaire's failure to maintain the insurance required in Section 13.4. 17.1.3 Concessionaire's assignment of any right hereunder in violation of Article 15. 17.1.4 Concessionaire's failure to perform, keep or observe any of the terms, covenants or conditions of this Agreement within seven (7) days (or such longer time as may be necessary to cure, provided that cure is commenced within the initial seven 7 days) after notice from the City specifying the nature of the deficiency with reasonable particularity and the corrective action that is to be taken within such period to cure the deficiency. 17.1.5 The filing by Concessionaire of a voluntary petition in bankruptcy, the filing of an involuntary petition in bankruptcy against Concessionaire, the taking of possession of all or substantially all of Concessionaire's assets pursuant to proceedings brought under the provisions of any federal reorganization act or the appointment of a receiver of all or substantially all of Concessionaire's assets and the failure of RFP 9870 Tennis Concessionaire Page 26 of 38 Concessionaire to secure the return of such assets and/or the dismissal of such proceeding within thirty (30) days after the filing. 17.1.6 The abandonment for a period of (7) calendar days by Concessionaire of the conduct of its services and operations. 17.1.7 The assignment by Concessionaire of its assets for the benefit of creditors. 17.1.8 The death of the Concessionaire or his/her inability to provide services under this Agreement for an aggregate period of 45 days or more during any annual term of this Agreement. 17.1.9 After written notice to the Concessionaire of any violation of the personal conduct or performance standards set forth in Section 6, above, and a hearing of the matter before the City's Director of Purchasing, if such a hearing has been requested in writing received by the Director of Purchasing within ten (10) days after mailing of written notice of violation, a determination by the Director of Purchasing and Risk Management that the alleged violation has, in fact, occurred, and that such violation materially interferes with Concessionaire's ability to perform its services hereunder in a manner satisfactory to the City or otherwise impairs the benefits to be derived from the City by this Agreement, including the good will, satisfaction, health and safety of the general public. 17.2 City's Remedies on Default. 17.2.1 In the event of a default by Concessionaire, the City may terminate this Agreement effective immediately upon provision of written notice of such termination to Concessionaire. In the alternative, the City may elect to keep the Agreement in force and work with Concessionaire to cure the default. If this Agreement is terminated, Concessionaire shall refund to the City that portion of the Golf Services Fee paid by the City pursuant to Section 8.2 proportional to the time remaining in the calendar month at the time of the Concessionaire's default, and the City shall have the right to take possession of the Concession Space at the time of default. Concessionaire's liability to City for damages shall survive the termination, and the City may re-enter, take possession of the Concession Space and remove any persons or property by legal action or by self -help with the use of reasonable force and without liability for damages. 17.2.2 Following re-entry or abandonment, City may make arrangements for use of the Concession Space by others and in that connection may make any suitable alterations or refurbish the Concession Space, but City shall not be required to make such arrangement for any use or purpose. 17.3 Rights and Remedies Reserved. It is understood and agreed that any rights and remedies reserved pursuant to this Article are in addition to any other rights or remedies the City may have pursuant to this Agreement or to applicable law to seek judicial enforcement, damages RFP 9870 Tennis Concessionaire Page 27 of 38 or any other lawful remedy. ARTICLE 18 Miscellaneous Provisions 18.1 Cumulative Rights. All remedies provided in this Agreement shall be deemed cumulative and additional and not in lieu of, or exclusive of, each other or of any other remedy available to the City, or Concessionaire, at law or in equity, and the exercise of any remedy, or the existence herein of other remedies or indemnities shall not prevent the exercise of any other remedy. 18.2 Non-Waiver. The failure by either party to exercise any right or rights accruing to it by virtue of the breach of any covenant, condition or agreement herein by the other party shall not operate as a waiver of the exercise of such right or rights in the event of any subsequent breach by such other party, nor shall such other party be relieved thereby from its obligations under the terms hereof. 18.3 N on-liability of Individuals Other than Concessionaire. With the exception of Concessionaire, no director, officer, agent or employee of either party hereto shall be charged personally or held contractually liable by or to the other party under any term or provision of this Agreement or of any supplement, modification or amendment to this Agreement because of any breach thereof, or because of its or their execution or attempted execution of the same. 18.4 Limitations on U se. Concessionaire shall not use, or permit the use of the Concession Space, or any part thereof, for any purpose or use other than those authorized by this Agreement. Neither shall Concessionaire permit nor suffer any disorderly noise or nuisance whatsoever about the Concession Space. 18.5 G overning Law /Severability . The laws of the State of Colorado shall govern the construction, interpretation, execution, and enforcement of this Agreement. The Parties further agree that Larimer County District Court is the proper venue for all disputes. If the City subsequently agrees in writing that the matter may be heard in federal court, venue will be in Denver District Court. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 18.6 G overnmental Immunity Act. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the notices, requirements, immunities, rights, benefits, protections, limitations of liability, and other provisions of the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq. and under any other applicable law. 18.7 Colorado Open Records Act. The City is subject to Sec. 24-72-201 et seq. of the Colorado Revised Statute (CORA). This Agreement is subject to public disclosure in whole pursuant to CORA. 18.8 Benefits. This Agreement is made for the sole and exclusive benefit of the City and RFP 9870 Tennis Concessionaire Page 28 of 38 Concessionaire, their successors and assigns, and is not made for the benefit of any third party. 18.9 Construction. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 18.10 S uccessors and Assigns. All covenants, stipulations and agreements in this Agreement shall extend to and bind each party hereto, its legal representatives, successors and assigns. 18.11 Headings. The titles of the several articles of this Agreement are inserted herein for convenience only and are not intended and shall not be construed to affect in any manner the terms and provisions hereof, or the interpretation or construction thereof. 18.12 Legal Fees. In the event any legal action or proceeding is brought to collect sums due or to become due hereunder or any portion thereof or to enforce compliance with this Agreement for failure to observe any of the covenants of this Agreement, the losing party agrees to pay to the prevailing party such sums as the Court may judge reasonable attorneys' fees and costs to be allowed in such action or proceeding and in any appeal therefrom. 18.13 Contract Documents, Entire Agreement. This writing, together with the exhibits hereto constitutes the entire agreement between the parties, their officers, employees, agents and assigns and supersedes all prior agreements, understandings, warranties or promises between the parties hereto, whether written, spoken or implied from the conduct of the parties hereto. 18.14 Severability . In the event any covenant, condition or provision of this Agreement is held to be invalid by final judgment of any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall not in any way affect any of the other covenants, conditions or provisions of this Agreement, provided that the invalidity of any such covenant, condition or provision does not materially prejudice either City or Concessionaire in his/her or its respective rights and obligations under the valid covenants, conditions or provisions of this Agreement. 18.15 Surrender of Possession. Upon the expiration of this Agreement or its earlier termination as herein provided, Concessionaire shall remove all of its property from the Park and surrender entire possession of its rights at the Park to City and its improvements in accordance with Section 11 above, unless this Agreement is renewed or replaced. 18.16 City Representative. The City designates the Director of Parks, as its representative who shall make, within the scope of his/her authority, all necessary and proper decisions with reference to this Agreement. All requests for contract interpretations, amendments and other clarifications or instructions shall be directed to the City Representative. RFP 9870 Tennis Concessionaire Page 29 of 38 18.17 Notices. All notices provided under this Agreement shall be effective immediately when emailed or three (3) business days from the date of the notice when mailed to the following addresses: Concessionaire: City: Copy to: Attn: Email Address City of Fort Collins Attn: PO Box 580 Fort Collins, CO 80522 Email Address City of Fort Collins Attn: Purchasing Dept PO Box 580 Fort Collins, CO 80522 purchasing@fcgov.com 18.18 Schedules and Exhibits. Whenever reference is made in this Agreement to a Schedule or an Exhibit, unless otherwise specifically expressed to the contrary, such Schedule or Exhibit shall be deemed attached to and by this reference incorporated in this Agreement. 18.19 Force Majeure. No Party hereto shall be considered in default in the performance of an obligation hereunder to the extent that performance of such obligation is delayed, hindered, or prevented by force majeure. Force majeure shall be any cause beyond the control of the defaulting Party which could not reasonably have been foreseen and guarded against. Force majeure includes, but is not limited to, acts of God, fires, riots, pandemics, incendiarism, interference by civil or military authorities, compliance with regulations or orders of military authorities, and acts of war (declared or undeclared), provided such cause could not have been reasonably foreseen and guarded against by the defaulting Party. Force majeure shall not include increases in labor, commodity, utility, material, supply, fuel, or energy costs, or compliance with regulations or orders of civil authorities. To the extent that the performance is actually prevented, the Concessionaire must provide written notice to the City of such condition within ten (10) days from the onset of such condition. 18.20 N o Limitation on General Powers Nothing in this Agreement shall be construed as in any way limiting the general powers of the City to fully exercise their governmental functions or their obligations under any bond covenants or federal, state or local laws, rules or regulations. 18.21 N o Relationship. Nothing contained herein shall be deemed or construed by the parties hereto nor by any third party as creating the relationship of employer and employee, principal and agent or a partnership or a joint venture between the parties hereto. It is agreed that in the performance of the golf services and concession operation hereunder, the Concessionaire is an independent Concessionaire responsible to the City only as to the results to be obtained and to the extent that the services and operation shall be done in accordance with the terms of this Agreement. 18.22 Survival. To the extent necessary to carry out all of the terms and provisions hereof, the said terms, obligations and rights set forth herein required shall survive and shall not be affected by the expiration or termination of this Agreement. RFP 9870 Tennis Concessionaire Page 30 of 38 18.23 Entire Agreement; Binding Effect; Order of Precedence; Authority to Execute. This Agreement, along with all Exhibits and other documents incorporated herein, shall constitute the entire Agreement of the parties regarding this transaction and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. Covenants or representations not contained in this Agreement shall not be binding on the parties. In the event of a conflict between terms of the Agreement and any exhibit or attachment, the terms of the Agreement shall prevail. Each person executing this Agreement affirms that they have the necessary authority to sign on behalf of their respective party and to bind such party to the terms of this Agreement. [Signature Page Follows] RFP 9870 Tennis Concessionaire Page 31 of 38 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation By:_________________________________ Gerry Paul Purchasing Director Date:_______________________________ ATTEST: ________________________ APPROVED AS TO FORM: ________________________ CONCESSIONAIRE'S NAME By: Printed: Date: RFP 9870 Tennis Concessionaire Page 32 of 38 EXHIBIT A SCOPE OF SERVICES RFP 9870 Tennis Concessionaire Page 33 of 38 EXHIBIT B SCOPE OF PRO SHOP SERVICES I. Pro Shop. A. The Concessionaire shall operate a pro shop which shall stock a variety of tennis equipment (for sale and rent), supplies and related merchandise in sufficient quantity to meet the demands of customers. B. The Concessionaire shall provide all merchandise and display fixtures, stock, supplies and inventory for the shop. II. Merchandise Quality, Price Control. Concessionaire acknowledges the desire and obligation of City to provide the public high quality merchandise and a high level of public service. Therefore, Concessionaire agrees to offer for sale from the pro shop only high quality merchandise at prices not to exceed the prices customarily charged for similar merchandise in high quality Fort Collins area operations. If, in the opinion of the City, the selection of items offered is inadequate, if the merchandise is not of high quality, if any of the prices, charges and rates are excessive, or if any of the items are found to be objectionable for display and/or sale in a public facility, a representative of the City shall meet and confer with Concessionaire regarding such matters, but Concessionaire acknowledges that the City's determination as to same shall be conclusive. Failure of Concessionaire to correct, rectify or modify its prices or quality within five (5) days of being advised in writing to do so shall be cause for default. Concessionaire shall not offer for sale gift certificates, vouchers, punch cards, or other similar services, except to the extent the same are restricted and limited in duration to one year or less. III. Use of the Pro Shop. The Concessionaire shall use any and all parts of the pro shop for the purpose of operating the concessions and for other incidental purposes only. The pro shop shall not be used for any other purpose without the prior written consent of City. IV. Maintenance and Repairs. A. The City shall be responsible to maintain and repair the interior and exterior of the pro shop. The City shall not in any way be liable to the Concessionaire for failure to make repairs unless the Concessionaire has previously notified the City in writing of a need for such repairs, and the City has failed to commence and complete said repairs within a reasonable period of time following receipt of the notification. B. The Concessionaire shall be liable for and shall reimburse the City for the cost of any repairs or damage caused by any act or negligence of the Concessionaire or its agents or employees. C. The Concessionaire shall secure the retail pro shop area and shall provide janitorial services to that area, keeping it clean and in good sanitary condition as required by the ordinances, regulations and statutes of the City of Fort Collins, County of Larimer and State of Colorado and this Agreement. D. The Concessionaire shall neither hold nor attempt to hold the City liable for any injury or damage, either proximate or remote, occasioned through or caused by defective electrical wiring or the breaking or stoppage of plumbing or sewage in or upon the clubhouse, RFP 9870 Tennis Concessionaire Page 34 of 38 whether said breakage or stoppage results from freezing or otherwise. E. The Concessionaire shall not permit nor suffer the pro shop or the walls thereof to be endangered by overloading nor permit it to be used for any purpose which would render the insurance thereon void or insurance risks more hazardous without prior written consent of the City, which consent may be conditioned upon the Concessionaire obtaining additional specific insurance coverage for such more hazardous risks. V. Alterations and Im provements. A. All alterations, additions, improvements or changes to the pro shop by the Concessionaire subsequent to the commencement of the term shall be subject to the prior written approval of the City. B. The City reserves the right, from time to time (without invalidating or modifying this Agreement), to make alterations, changes and additions to the land and improvements of which the pro shop forms a part. C. The Concessionaire hereby indemnifies and agrees to hold the City harmless from all liens, claims or charges on account of any alterations, additions, improvements or changes to the pro shop by Concessionaire. D. At the end of the term of this Agreement, all fixtures, equipment, additions and alterations, except trade fixtures installed by the Concessionaire, shall be and remain the property of the City. Provided, however, the City shall have the option to require the Concessionaire to remove any or all such fixtures, equipment, additions and alterations and restore the pro shop to the condition that existed immediately prior to such change and installation, normal wear and tear excepted, all at the Concessionaire's cost and expense. All such work shall be done in a good and workmanlike manner and shall consist of new materials unless otherwise agreed to by the City. RFP 9870 Tennis Concessionaire Page 35 of 38 EXHIBIT C DISCRIMINATION PROHIBITED (A) Concessionaire agrees to comply with Title VI of the Civil Rights Act of 1964 as amended, Title VIII of the Civil Rights Act of 1968 as amended, Section 104(b) and Section 109 of Title I of the Housing and Community Development Act of 1974 as amended, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063, and Executive Order 11246 as amended by Executive Orders 11375, 11478 and 12086. Concessionaire shall not, on the grounds of race, color, sex, religion, national origin, creed, marital status, or age: (1) Deny a qualified individual any facilities, financial aid, services or other benefits provided under this Agreement; (2) Provide any facilities, services, financial aid, or other benefits which are different, or are provided in a different manner, from those provided to others under this Agreement; (3) Subject an individual to segregated or separate treatment in any facility in, or in any matter if process related to receipt of any service or benefit under this Agreement; (4) Restrict an individual in any way in access to, or in the enjoyment of any advantage or privilege enjoyed by others in connection with any service or benefit under this Agreement; (5) Treat anyone differently from others in determining if they satisfy any admission, enrollment, eligibility, membership or other requirement or condition which the individual must meet to be provided a service or benefit under this Agreement; (6) Deny anyone an opportunity to participate in any program or activity as an employee that is different from that afforded others under this Agreement. Concessionaire shall: (1) Utilize the City’s third-party translation service provider as required to provide meaningful language access to persons with limited English proficiency; and (2) Post written notices of non-discrimination in its facilities and make available to its clients a Title VI complaint form, in a form reasonably acceptable to the City. (B) Concessionaire shall abide by all applicable provisions of Section 504 of the HEW Rehabilitation Act of 1973 as amended (implemented in 24 CFR part 8) prohibiting discrimination against handicapped individuals, and the Age Discrimination Act of 1975 (implemented in 24 CFR part 146) prohibiting discrimination on the basis of age, either through purpose or intent. RFP 9870 Tennis Concessionaire Page 36 of 38 EXHIBIT D CITY-OWNED INVENTORY Provided: Desk and other city owned furniture Mounted Wall inventory rack RFP 9870 Tennis Concessionaire Page 37 of 38 EXHIBIT E CONCESSIONAIRE-PROVIDED PERSONAL PROPERTY RFP 9870 Tennis Concessionaire Page 38 of 38 EXHIBIT F INSURANCE REQUIREMENTS The Concessionaire will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Concessionaire shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies. In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Concessionaire, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Concessionaire under this Agreement. Insurance certificates should show the certificate holder as follows: City of Fort Collins Purchasing Division PO Box 580 Fort Collins, CO 80522 The City, its officers, agents and employees shall be named as additional insureds on the Concessionaire 's general liability insurance policy by marking the appropriate box or adding a statement to this effect on the certificate, for any claims arising out of work performed under this Agreement. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability . The Concessionaire shall maintain during the life of this Agreement for all of the Concessionaire's employees engaged in work performed under this agreement. Workers' Compensation & Employer’s Liability insurance shall conform with statutory limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee, or as required by Colorado law. B. General Liability. The Concessionaire shall maintain during the life of this Agreement suc h General Liability as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for General Liability, shall not be less than $1,000,000 combined single limits for bodily injury and property damage, $2,000,000 for General Aggregate, and $$1,000,000 for Produc ts Liability. In the event any work is performed by a subcontractor, the Concessionaire shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance.