HomeMy WebLinkAboutRESPONSE - RFP - P1037 SOUTHRIDGE RESTAURANT/SNACK BAR CONCESSIONAIRE (30)1
*DRAFT*
SOUTHRIDGE GOLF COURSE
RESTAURANT/SNACK BAR
CONCESSION AGREEMENT
This Concession Agreement, hereinafter called the "Agreement," is made and entered into as
of the __ day of __, __, 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, _________ whose principal offices are at _____,
hereinafter called "Concessionaire."
W I T N E S S E T H :
ARTICLE 1
Concession Space
1.1 Definition of Concession Space. For the purposes of this Agreement, the "Concession
Space" shall mean the following areas at the SouthRidge Golf Course, 5750 South Lemay
Avenue, Fort Collins, Colorado, 80525:
1.1.1 The south half of the main floor in the Clubhouse building, restrooms, and common
hallway, plus the adjacent outdoor patio; and
1.1.2 The snack bar Bunker House and restrooms located between the first tee box and ninth
green.
1.2 Use of Concession Space. The Concessionaire shall have the use of the Concession
Space for the purpose of offering food, non-alcoholic beverages, licensed alcoholic beverages,
and related services primarily to golfers using the SouthRidge Golf Course and, incidentally, to
the public.
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ARTICLE 2
Concessionaire's Use of the Clubhouse and the Concession Space
2.1 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 Clubhouse building and the grounds of the
SouthRidge Golf Course in conjunction with its food and beverage operations (and for no other
purpose) in such spaces and manner as may be prescribed by the City.
2.2 Designation of Smoking Areas. The City shall designate smoking and non-smoking
areas of the Concession Space, clubhouse, and the grounds of SouthRidge Golf Course in
compliance with the applicable Fort Collins City ordinance.
2.3 Restriction on Items Offered for Sale. Concessionaire may offer such non-food or
non-beverage items as are incidental to its food and beverage service. In no event, however,
shall Concessionaire offer for sale or otherwise supply smoking instruments or tobacco at
SouthRidge Golf Course.
2.4 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
and regulations, policies, and procedures adopted by the City or any of its Boards, Service Areas,
Divisions or Departments having jurisdiction over SouthRidge Golf Course.
ARTICLE 3
Rights of Ingress and Egress
3.1 In General. The Concessionaire shall have the right of ingress and egress to and from
the Clubhouse and 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.
3.2 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 Clubhouse or
SouthRidge Golf Course, presently or hereafter used as such, so long as a reasonable and safe
means of ingress and egress remains available to Concessionaire.
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ARTICLE 4
Undertakings of Concessionaire
4.1 Service. Concessionaire agrees:
4.1.1 The Concessionaire shall furnish and pay for all equipment, except as otherwise
provided by the City pursuant to Article 8, all goods, labor, transportation, supervision and
services necessary to provide food and beverage services in accordance with this Agreement.
4.1.2 Services provided by the Concessionaire shall include the maintenance of an adequate
stock of food and beverage supplies, condiments, dishes, silverware, napkin dispensers, salt and
pepper shakers, cups and glassware, and any kitchen utensils or bar equipment if necessary to
serve the demand for such items at the SouthRidge Golf Course, as well as paying for all cable
and/or satellite television services in the Clubhouse except for the Pro Shop.
4.1.3 Concessionaire acknowledges the desire and obligation of the City to provide the public
high quality food and beverages and a high level of public service. Therefore, Concessionaire
agrees to offer for sale from the Concession Space only good quality food and beverages at fair
and competitive pricing, relative to comparable restaurant facilities in Fort Collins. If, in the
opinion of the City, the pricing is not comparable, or the selection of items offered is inadequate
or not of good quality, or if any of the items are found to be objectionable for display and/or sale
in a public facility, then the pricing shall change or 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 prices
or quality within five (5) days of being advised in writing to do so shall be cause for default.
4.1.4 Concessionaire shall submit to the City for review a list of all items to be sold in the
concession area, and proposed prices for all such items. The Concessionaire shall submit to the
City in writing all subsequent item and price changes.
4.2 Hours of Operation. Subject to the exception for inclement weather expressed in 4.2.2
below, the Concessionaire will be required to provide daily food and beverage services in the
Concession Space during the months of April, May, June, July, August and September; at a
minimum, the services shall be available from no later than 6:30 a.m. to no earlier than sundown
during these months.
4.2.1 The parties agree that the hours of operation during the months of October, November,
December, January, February, and March shall be from no later than 10:00 a.m. to no earlier than
4:30 p.m. daily, at a minimum. However, the Concessionaire shall not be required to operate the
concession when the Golf Course is closed due to bad weather or other reason.
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4.2.2 Throughout the year, Concessionaire may, in its own discretion, close the concession
during inclement weather, or provide less than a full-service operation pending customer demand
during specified times, unless the closure or service level is objected to by the City.
4.3 Special Events Option. Concessionaire shall have the first option, upon request by the
City or the SouthRidge Golf Professional, but shall not be obligated, to provide luncheons or
other meals for special occasions, including but not limited to association meetings and
tournaments. In the event such a request is made and Concessionaire elects not to provide such
services, the City or the SouthRidge Golf Professional may provide food and beverage services
through other means. Such services shall not make use of the Concession Space, unless
approved by Concessionaire.
4.4 Concessionaire Personnel. Concessionaire shall control the conduct and demeanor of
its agents and employees. If the City so requests, 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 of which shall be subject to prior and continuing approval of the City.
4.4.1 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 Concessionaire in providing services to the City under this Agreement.
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
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 other members of the
general public. Accordingly, Concessionaire agrees that all employees, volunteers, and other
representatives or agents of the Concessionaire in positions of trust, as described in Exhibit A,
consisting of two (2) pages and incorporated herein by this reference, shall be screened using the
background screening procedure described on Exhibit A, at Concessionaires expense, and that
the results of such background screening shall be provided to the City prior to any such persons
participation in the provision of services hereunder. The Concessionaire shall require the
completion and execution of the Disclosure/Request, Authorization, and Waiver form attached
hereto as Exhibit B, consisting of one (1) page and incorporated herein by this reference.
Concessionaire shall also provide to their employees/volunteers a copy of the Summary of
Rights under the Fair Credit Reporting Act attached hereto as Exhibit C, consisting of two (2)
pages and incorporated herein by this reference.
4.4.2 The City may provide assistance in completing the background investigation,
including providing information from the completed disclosure form to an outside vendor for a
confidential records check. Concessionaire acknowledges that in such event, by providing such
assistance to Concessionaire, the City assumes no responsibility for the timeliness, accuracy or
completeness of the background investigation, or for the director or indirect consequences
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resulting from the same, and Concessionaire shall hold the City harmless for any injury or loss
resulting therefrom.
4.4.3 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, competence 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, or in a manner that would permit contact by that person with the funds, equipment,
property associated with the provision of services hereunder, or persons participating in
programs or services provided under this Agreement.
4.4.4 Upon receipt of written notice from the City of any reasonable objection from the City
concerning trustworthiness, fitness for provision of services under this Agreement, competence
or suitability of any individual for a position of trust of any kind, or concerning conduct,
demeanor or competence of any employee or volunteer of Concessionaire, the Concessionaire
shall immediately take all lawful steps to remove or otherwise address to the City's reasonable
satisfaction the cause of the objection or to remove such individual from the performance of any
services provided hereunder.
4.4.5 The following constitute unacceptable personal conduct that the parties acknowledge
and agree shall be subject to reasonable objection by the City. The parties acknowledge that
other conduct not listed in this Section may be determined by the City to be reasonably expected
to impair 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 that Concessionaire, or the individual site manager, if
different from Concessionaire, commits any of the following examples of unacceptable conduct,
or 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 15.1.9.
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;
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;
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F. Using, consuming, possessing, having in the body or distributing alcohol
(except in the normal performance of concession services) or controlled
substances during working 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.
4.5 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 SouthRidge Golf Course 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 SouthRidge Golf Course, at the City's
election, all records, books and relevant related information as may be required for audit
purposes.
4.6 Physical 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 Clubhouse or elsewhere at SouthRidge Golf Course.
4.7 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 SouthRidge
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,
clubhouse, or elsewhere at SouthRidge Golf Course. 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 and Clubhouse. Nothing herein shall
prevent Concessionaire from protesting, through due process, any taxes levied.
4.8 Licenses. Concessionaire agrees to obtain and pay for all licenses necessary in
connection with its operation, including but not limited to, a County Health Department Food
Services Establishment inspection, a Hotel-Restaurant with Optional Premises Liquor License,
and a City business license and/or occupation license. Failure to qualify for a liquor license or
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other required license, or failure to obtain any such license within ninety (90) days of execution
of this Agreement shall constitute a default hereunder.
4.8.1 Any such licenses held by the Concessionaire in connection with this Agreement shall
be surrendered by the Concessionaire upon termination of this Agreement.
4.8.2 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.
4.8.3 For the purpose of the Hotel-Restaurant with Optional Premises Liquor License,
the "premises" shall be defined to include The Clubhouse and Patio, the Bunker House, and
the entire grounds of SouthRidge Golf Course.
4.9 Vending Machines/Beverage Carts. This Agreement does not contemplate
Concessionaire's use of vending machines in the supplying of food, beverages or incidental
items during the April through September golf season. Any installation or use of vending
machines is subject to the prior written consent of the City Representative.
4.9.1 Concessionaire shall be required to provide and operate a minimum of two (2)
beverage/food carts in order to provide food and beverage services on the grounds of the golf
course from April through September when a sufficient number of customers are golfing. City-
owned or leased golf cats shall not be used for this purpose unless approved by the City.
ARTICLE 5
Term
5.1 Period. The term of this Agreement shall commence January 1, 2007 or on the date
this Agreement is executed by the parties and, unless terminated sooner, shall expire on
December 31, 2007.
5.2 Renewal -- 2008. This Agreement shall be automatically renewed for a period from
January 1, 2008, until December 31, 2008, unless the Concessionaire is in default 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 December 31,
2007.
5.3 Renewal -- 2009. This Agreement shall be automatically renewed for a period from
January 1, 2009, until December 31, 2009, unless the Concessionaire is in default or unless one
party serves written notice to the other party of its intention to terminate the Agreement,
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provided such written notice must be served at least ninety (90) days prior to December 31,
2008.
5.4 Renewal -- 2010. This Agreement shall be automatically renewed for a period from
January 1, 2010, until December 31, 2010, unless the Concessionaire is in default 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 December 31,
2009.
5.5 Renewal -- 2011. This Agreement shall be automatically renewed for a period from
January 1, 2011, until December 31, 2011, unless the Concessionaire is in default 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 December 31,
2010.
5.6 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 6
Fee For Conducting Business
6.1 Concession Fee. For the privilege of conducting the concession operations hereunder,
and the exclusive use of the Concession Space, the Concessionaire shall pay to the City____
Dollars () in 2007, ________Dollars () in 2008, ____ Dollars () in 2009, _____Dollars () in
2010, and ____ Dollars () in 2011 as the Concession Fee.
6.1.1 During the term of the Agreement, Concessionaire shall provide busing and janitorial
services described in Section 7.3, at the Concession Space and in designated locations of the
Clubhouse, Patio, and Bunker House.
6.2 Time of Payment. The Concessionaire shall pay the Concession Fee in two (2) equal
semi-annual payments, no later than ten (10) days after the first day of the months of July and
December.
6.3 Interest on Past Due Amounts. Concessionaire shall pay interest on all past due
amounts at the rate of eighteen percent (18%) per annum from the due date, until paid.
6.4 Method of Payment. Payment for all fees under Article 6 shall be by check or money
order payable to the order of "City of Fort Collins-- Golf" and shall be mailed or personally
delivered to the City Representative at 300 LaPorte Avenue, P.O. Box 580, Fort Collins,
Colorado, 80522.
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ARTICLE 7
Utilities, Maintenance and Janitorial Duties
7.1 Utilities. The City shall pay all charges for water, storm water, sewer, gas, trash
collection, recycling, basic clubhouse security system, basic bunker house security system, and
electric services to the Concession Space.
7.2 Maintenance and Repair. The City shall maintain and repair the Clubhouse building,
Concession Space and City equipment and fixtures (defined in Article 8). 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.
7.2.1 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.
7.3 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, statutes
and health, sanitary and police regulations of the City of Fort Collins, County of Larimer and
State of Colorado.
7.3.1 Concessionaire shall thoroughly clean the entire Concession Space, including all
equipment and fixtures, whether provided by the City or Concessionaire, the grill and exhaust,
floors, counters, refrigerators and all coils at least once prior to, once during; and once after the
close of the April through September golf season, and one additional time during the October to
March off-season.
7.3.2 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, busing and cleaning tables, chairs, patio deck, floor areas and common
areas/hallways, removing trash accumulations to designated trash containers, and cleaning
restrooms located in the clubhouse, bunker house, and patio deck.
ARTICLE 8
Acceptance and Trade Fixtures
8.1 Concession Space, City Equipment and Fixtures. In addition to the Concession Space,
the City shall provide the following:
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8.1.1 Existing equipment as listed on Exhibit AD@, attached hereto and made a part
hereof;
8.1.2 Lighting fixtures for general area illumination; and
8.1.3 Heat and air conditioning.
8.2 Acceptance. On the date of commencement of this Agreement, Concessionaire shall
acknowledge that it accepts the Concession Space as well as any City equipment and fixtures "as
is."
8.3 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 Clubhouse or any
Improvements thereon, shall be installed without the prior written approval of the City.
8.4 Removal of Equipment, Trade Fixtures. Concessionaire shall have the right at any
time during the term of this Agreement or upon termination and within ten (10) days thereafter,
to remove all trade fixtures, equipment and other personal property subject to any valid lien the
City may have thereon for unpaid rents or installation of equipment in lieu of Concession Fee
pursuant to Article 6. 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 City.
8.5 Title to Improvements. Upon installation or erection of Improvements, 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 Concession Space within this
Agreement.
8.6 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, rules and regulations of all governmental
agencies which have jurisdiction over such matters.
ARTICLE 9
Damage by Concessionaire
The 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 Clubhouse, including the
Concession Space, or to City's property, equipment and fixtures (defined in Article 8) caused by
Concessionaire, its 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. If the damage for
which Concessionaire is liable is to the Concession Space, Concessionaire shall continue to be
liable for all rent owed for the Concession Space, even if it has been rendered untenantable.
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ARTICLE 10
Total or Partial Destruction
10.1 Concession Space or Other Major Component Rendered Untenantable. In case,
during the term of this Agreement, the Concession Space, Clubhouse, 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:
10.1.1 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.
10.1.2 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.
10.2 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 substitute
premises available for Concessionaire's use. During any period of use by Concessionaire of such
substitute Concession Space, the City may direct that the Concessionaire's Fee shall be abated
proportionately.
10.3 Components Tenantable. If the Clubhouse, Concession Space or Golf Course shall be
only injured by fire 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.
10.4 Removal 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.
10.5 Exception for Damage Caused by Concessionaire. In the event of damage caused by
Concessionaire as more specifically addressed in Article 9 of this Agreement, the provisions of
Article 9 shall govern in any conflict between Article 9 and Article 10.
10.6 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 Clubhouse or SouthRidge Golf Course, however the necessity may
occur.
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ARTICLE 11
Indemnification and Insurance
11.1 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 SouthRidge Golf Course and Clubhouse by Concessionaire, its agents,
employees or contractors unless caused by the negligence or willful misconduct of the City, its
employees, agents or contractors.
11.2 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" includes the
respective directors, officers, agents, employees, contractors and subcontractors of
Concessionaire. In the event any work under this Agreement is performed by a subcontractor,
the Concessionaire shall be responsible for any liability directly or indirectly arising out of the
work performed by such subcontractor.
11.3 Patent 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.
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11.4 Concessionaire Insurance. Without limiting any of the Concessionaire's obligations
hereunder, the Concessionaire shall provide and maintain insurance coverage naming the City as
an additional insured under this Agreement as specified in Exhibit AF@, which is attached hereto
and incorporated herein by this reference.
11.5 Precautions Against Injury. The Concessionaire shall take all necessary precautions in
performing the operations hereunder to prevent injury to persons and property.
11.6 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 of 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 12
No Interest in Real Property
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 13
Assignment
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 nor permit any transfer by operation of law of Concessionaire's interest created hereby,
other than by merger or consolidation unless approved by City.
ARTICLE 14
Right of City to Enter, Inspect and Make Repairs
14.1 In General. City and its authorized employees, agents, contractors 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:
14.1.1 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
complying with the terms and conditions of this Agreement with respect to such premises;
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14.1.2 To perform or cause to be performed maintenance and make repairs and
replacements: and
14.1.3 To make structural additions and alterations.
14.2 Obstruction by City. All entries made for the purposes enumerated above shall,
except as otherwise provided in Article 10, Total or Partial Destruction, be without abatement of
rent or damage for inconvenience. However, in the event any entry by City in the Concession
Space for the purpose of making repairs or alterations as provided for in Section 14.1.2 above
(other than repairs necessitated as a result of damage by Concessionaire under Article 9)
constitutes a substantial obstruction to and impairment of Concessionaire's right of use of such
Concession Space, then Concessionaire shall be entitled to a fair and just abatement of the rent
for such premises during the period required by City to make such repairs.
14.3 Obstruction 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.
14.4 No 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 rental nor 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 15
Default, Rights of Termination
15.1 Default by Concessionaire. Time of payment and performance is of the essence of
this Agreement. Concessionaire shall be in default under this Agreement upon the occurrence of
any one or more of the following events:
15.1.1 Concessionaire's failure to pay any fee or other charge when due and within five (5)
workings days after notice from City of such nonpayment.
15.1.2 Concessionaire's failure to maintain the insurance required in Section 11.4.
15.1.3 Concessionaire’s assignment of any right hereunder in violation of Article 13.
15.1.4 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
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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.
15.1.5 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 Concessionaire to secure the return of such assets
and/or the dismissal of such proceeding within ninety (90) days after the filing.
15.1.6 The abandonment for a period of (7) days by Concessionaire of the conduct of its
services and operations during the season from the beginning of April through the end of
September, or for a period of fourteen (14) days during the October through March off-season.
15.1.7 The assignment by Concessionaire of its assets for the benefit of creditors.
15.1.8 The death of the Concessionaire.
15.1.9 After written notice to the Concessionaire of any violation of the personal conduct
standards set forth in Section 4.4, above, and a hearing of the matter before the City's Director of
Purchasing and Risk Management, if such a hearing has been requested in a writing received by
the Director of Purchasing and Risk Management 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.
15.2 City's Remedies on Default.
15.2.1 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, 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 and rent 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.
15.2.2 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.
15.3 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
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may have pursuant to this Agreement or to applicable law to seek judicial enforcement, damages
or any other lawful remedy.
ARTICLE 16
Miscellaneous Provisions
16.1 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.
16.2 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.
16.3 Non-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.
16.4 Limitations on Use. 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, Clubhouse or SouthRidge Golf Course.
16.5 Governing Law. This Agreement shall be performable and enforceable in Larimer
County, Colorado, and shall be construed in accordance with the laws of the State of Colorado.
16.6 Benefits. This Agreement is made for the sole and exclusive benefit of the City and
Concessionaire, their successors and assigns, and is not made for the benefit of any third party.
16.7 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.
16.8 Successors and Assigns. All covenants, stipulations and agreements in this
Agreement shall extend to and bind each party hereto, its legal representatives, successors and
assigns.
16.9 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.
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16.10 Attorney 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.
16.11 Incorporation of Request for Proposals/Entire Agreement. Request for Proposal
Number P-1037, and all specifications included therein, and the Proposal submitted and
interview responses by the Concessionaire in response thereto, are incorporated and made a part
of this Agreement by this reference, except that in the event of a conflict between such
documents and the express terms of this Agreement, the terms of this Agreement shall prevail.
This Agreement, which is the entire agreement between the parties hereto, supersedes all prior
agreements, understandings, warranties or promises between the parties hereto, whether written,
spoken or implied from the conduct of the parties hereto, except as expressly incorporated
herein.
16.12 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 the City or the Concessionaire in his
or its respective rights and obligations under the valid covenants, conditions or provisions of this
Agreement.
16.13 Surrender of Possession. Upon the expiration of this Agreement or its earlier
termination as herein provided, Concessionaire shall remove all of its property from SouthRidge
Golf Course and surrender entire possession of its rights at SouthRidge Golf Course to City and
its improvements in accordance with Section 9 above, unless this Agreement is renewed or
replaced.
16.14 City Representative. The City designates the Manager of the Golf Division as its
representative who shall make, within the scope of his 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.
16.15 Notices. Notices permitted or required to be given under this Agreement shall be in
writing and shall be deemed given upon personal delivery or upon deposit in the United States
Mail, certified, return receipt requested, postage fully prepaid, addressed as follows or to such
other address as the parties may designate from time to time by notice given in accordance with
this Section:
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To Concessionaire:
To the City: Manager of the Golf Division
City of Fort Collins
300 LaPorte Avenue
P.O. Box 580
Fort Collins, Colorado 80522
16.16 Paragraph Headings. Paragraph headings contained herein are for convenience and
reference, and are not intended to define or limit the scope of any provisions of this Agreement.
16.17 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.
16.18 Force Majeure. However, neither the City nor the Concessionaire shall be deemed in
violation of this Agreement if prevented from performing any of its obligations hereunder by
reason of strikes, boycotts, labor disputes, embargoes, shortage of energy or materials, acts of
God, act of public enemy, acts of superior governmental authority, weather conditions, rights,
rebellion, sabotage or any other circumstances that are not within its control.
16.19 No 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.
16.20 No 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.
16.21 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year written above.
THE CITY OF FORT COLLINS, COLORADO
ATTEST: A Municipal Corporation
________________________ By:____________________________________
City Clerk James B. O'Neill, II, CPPO, FNIGP
Director of Purchasing and Risk Management
APPROVED AS TO FORM:
________________________
Ingrid Decker
Assistant City Attorney
By:____________________________________
ATTEST:
_______________________
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