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HomeMy WebLinkAbout158752 WILCOX INC - CONTRACT - RFP - P552 CONCESSIONAIRE COLLINDALE GOLF COURSEjp rD SNACK HOUSE CONCESSION AGREEMENT FED 112002 COLLINDALE GOLF COURSE FORT COLLINS COLORADO February 8, 2002 sewerage system, fire protection system, sprinkler system, alarm system and fire hydrants and hoses, if any, installed or located at Collindale Golf Course. 4.7 Taxes. Concessionaire agrees to pay all local, state and federal social security, unemployment insurance, sales, use, personal property 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 Collindale 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 Collindale 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. 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 three -point -two percent (3.2%) on/off premise beer license, a City business license and/or occupation license. 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 three -point -two percent (3.2%) on/off premise beer license, the "premises" shall be defined to include the Concession Space or any other designated temporary facility during construction of a new clubhouse building, and the entire golf course grounds of Collindale 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) or more beverage/food carts in order to provide food and beverage services on the grounds of the golf course. 3 ARTICLE 5 Term 5.1 Period. The term of this Agreement shall commence on March 1, 2002, and unless terminated sooner, shall expire on February 28, 2003. 5.2 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 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 a total Concession Fee of Four Thousand Eight Hundred Dollars ($4,800.00) , except that Concessionaire agrees to provide, in lieu of a portion of the above fee, additional services at the Golf Course as set forth in Sections 6.1.1 below. 6.1.1 During the term of the Agreement, Concessionaire shall provide two (2) beverage/food carts in order to provide food and beverage service on the grounds of Collindale Golf Course for the months of April, May, June, July, August, and September 2002, and at least one (1) beverage/food cart during the months of March, October, November, December 2002 and January and February 2003. Concessionaire shall lease said food/beverage carts with the amount of the Concessionaire's lease payments to be deducted from the Concession Fee payment for the purpose of this Article 6. 6.2 Time of payment. The Concessionaire shall pay any cash amounts due under the Agreement under Article 6, above, on or before September 30, 2002 for the period of March 1, 2002 through September 30, 2002. The Concessionaire shall pay any remaining cash amounts due, if any, on a monthly basis on the last business day of each remaining month, for the period of October 1, 2002 through February 28, 2003. 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. ARTICLE 7 Utilities, Maintenance and Janitorial Duties 7.1 Utilities. The City shall pay all charges for water, stone water, sewer, gas, trash collection, telephone and electric services to the Concession Space; except, however, that the Concessionaire shall reimburse the City on a monthly basis for all long distance and local telephone charges accruing as a result of calls attributable to the telephone line located in the Concession Space or otherwise made by Concessionaire, its agents and employees. 7.2 Maintenance and Repair. The City shall maintain and repair the 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, at least once prior to, once during; and once after the close of the April through September golf season, and one additional time prior to February 28, 2003. 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 outdoor tables, chaos, benches, patio, any designated temporary facility, and for removing all food and beverage trash accumulations to designated trash containers. ARTICLE 8 Acceptance and Trade Fixtures 8.1 Concession Space. City ui ment and Fixtures. In addition to the Concession Space, the City shall provide the following: 8.1.1 Existing equipment as listed on Exhibit D, attached hereto and made apart hereof; 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 any City building 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 thirty (30) 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 in accordance with Section 6.1.1, 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 terns 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 Concession Space, or to City's property, equipment and fixtures (defined in Article 8) caused by Concessionaire, its board z 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. 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. 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, Golf Course or any principal part of any one of them shall be destroyed or shall be so damaged by fire 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, or Golf Course excluding haprovements 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 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 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 Collindale Golf Course, however the necessity may occur. ARTICLE 11 Indemnification and Insurance 11.1 Citv'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 Collindale Golf Course 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. 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 F, which is attached hereto and incorporated herein by this reference. 11.5 Precautions Against Inj_urv. The Concessionaire shall take all necessary precautions in performing the operations hereunder to prevent injury to persons and property. 11 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; 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. 12 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 above. 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 cure, provided that cure is commenced within the initial seven [7) days) after notice from the 13 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 Citv 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 any and all merchandise and equipment located in 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. 14 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 may have pursuant to this Agreement or to applicable law to seek judicial enforcement, damages or any other lawful remedy. 15.4 Early Termination by City. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to Concessionaire. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. 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, or Collindale 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. 15 1. Concession Space 1.1 Definition of Concession Space 1.2 Use of Concession Space 2. Concessionaire's Use of Clubhouse and the Concession Space 2.1 In General 2.2 Designation of Smoking Areas 2.3 Restriction on Items Offered for Sale 2.4 Compliance With Applicable Law 3. Rights of Ingress and Egress 3.1 In General 3.2 Closures 4. Undertakings of Concessionaire 4.1 Service 4.2 Hours of Operation 4.3 Special Events Option 4.4 Concessionaire Personnel 4.5 Statements, Recordkeeping and Audits 4.6 Physical Interference 4.7 Taxes 4.8 Licenses 4.9 Vending Machines/Beverage Carts 5. Term 5.1 Period 5.2 Holding Over 6. Fee for Conducting Business 6.1 Concession Fee 6.2 Time of Payment 6.3 Interest on Past Due Amounts 6.4 Method of Payment 7. Utilities, Maintenance and Janitorial Duties 7.1 Utilities 7.2 Maintenance and Repair 7.3 Cleaning and Janitorial 1 1 1 1 1 2 2 2 2 2 2 2 2 3 3 3 5 5 6 6 6 7 7 7 7 7 7 7 7 8. Acceptance and Trade Fixtures 9 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 Headingg. 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. 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 Entire Agreement. 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, including the Collindale Golf Course Snack Bar Concession Agreement dated November 30, 2000, 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 Collindale Golf Course and surrender entire possession of its rights at Collindale Golf Course to City and its improvements in accordance with Section 9 above, unless this Agreement is renewed or replaced. 16.14 City Reoresentative. 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 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: To Concessionaire: Wilcox Incorporated dba Collindale Caddy Shack C/O Kevin Wilcox 1341 East Horsetooth Road Fort Collins, CO 80525 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. 17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. THE CITY OF FORT COLLINS, COLORADO A Mu*cipal Corporation: O'Neill,11, CPPO of Purchasing and TTEST: 0� City Clerk APPRO D %T(O FORM: Assist Cit ttomey WILCOX INCORPORATED, a Colorado corporation, doing business as COLLINDALE ADDY SHACK: By: G/� Kevin L. Wilcox, President ATTEST: JUSTIN W. DAVENPORT NOTARY PUBLIC STATE OF COLORADO My CommMion F. om 01112/2005 W. EXHIBIT A City of Fort Collins Cultural, Library, and Recreational Services Golf Division Polley: Contractor Personnel Conduct and Demeanor, and Background Screening for Positions Of Trust Under the terms and conditions of each respective Contractor's Agreement with the City, all Golf Professionals and Restaurant/Snack Bar Concessionaires shall control the conduct and demeanor of their employees, volunteers, and other representatives or agents of the Contractor that will be working on behalf of the Contractor in providing services to the City. The Contractor agrees to Provide to the City at all times a current list of employees, volunteers, and other representatives or agents of Contractor that will be working on behalf of the Contractor in providing services to the City under their Agreement, and that all such employees, volunteers, and other representatives or agents of Contractor agree to adhere to the "Behavior/Standards of Personal Conduct and Performance." Contractors and the City also hereby acknowledge and agree that certain services provided by the Contractor will require that specified employees, volunteers, and other representatives or agents of the Contractor act in "positions of trust" which can include the handling of and/or accounting for funds of the City and/or of City property, or direct contact with youth and members of the general public. Accordingly, each Contractor agrees that all specified employees, volunteers, or other representatives or agents of Contractor in positions of trust shall be screened/investigated at the expense of the Contractor using the City's contracted background screening/investigation procedure as described in each respective Contractor's Agreement; and that the results of such background screening/investigation shall be provided to the City prior to any such persons participation in the provision of services, as described in each respective Contractor's Agreement. Fach Contractor shall require the completion and execution of the Disclosure/Waiver form for all specified employees, volunteers, and other representatives or agents of Contractor. The purpose of this form is to provide the necessary information about an applicant and permission to review confidential information for a complete and thorough background screeninglinvestigation. The Contractor shall provide to all said employees, volunteers, and other representatives or agents a Summary of Rights under the Fair Credit Reporting Act. The background screming/mvestigation shall include, but is not necessarily limited to, checking arrests and/or conviction records, driving records, credit history, education, previous employment and volunteer work and other records as may be appropriate, and references, including review of any records of information available to the City as a result of past employment or contractual the City. relationships the employee, volunteer, or other representative or agent has had with the Contractor al The City will provide assistance in completing the background screening/mvestigation, including providing the completed disclosure form to an outside vendor for a confidential records check. Contractor acknowledges that by providing such assistance the City assumes no responsibility for the timeliness, accuracy or completeness of the background screening/investigation, or for the direct or indirect consequences resulting from the same, and the Contractor shall hold the City harmless for any injury or loss resulting therefrom. page i of 2 The Contractor shall make job assignments and responsibility assignments based upon and in consideration of the background screening/mvestigation, and shall not permit any person to perform any position for which such person's character or suitability are reasonably in question based upon the information obtained in connection with a background screenirWinvestigation. The City may, in its discretion, object to any assignments of Contractor personnel to positions of trust, as based upon the background screening/mvestigation. In the event that information from the islized in report uti whole or in part in making an adverse decision with regard to potential employment'volunteer/representative/agent status, before making the adverse decision, the City will attempt to provide Contractor with a copy of the consumer report/criminal history. Specified employees, volunteers, and other representatives or agents of Contractors identified at this time to be in positions of trust shall include, but are not necessarily limited to, all top assistants, area or section managers, lesson providers, personnel that directly handle and/or account for City funds; and those positions that can work individually with youth or members of the general public. Contractor Process for Obtaining Background Screening/Investigation Information 1. Once an employee, volunteer, other representative or agent has been selected by the Contractor, the employee, volunteer, other representative or agent (applicant) shall complete the background screening/mvestigation form, which is titled "Disclosure to Prospective Employees, Volunteers, or Other Representatives or Agents of Contractors Regarding Procurement of a Consumer Report (including a criminal history report)." 2. When the employee, volunteer, other representative or agent (applicant) has completed and signed the form, the Contractor shall initial and date the bottom of the form, giving the bottom copy of the form to the applicant. The Contractor shall also give to the applicant at this time a ummary of his/her rights under the federal Fair Credit Reporting Act. The Fair Credit Reporting Act also imposes requirements and procedures related to any adverse decisions based upon credit information. 3. The Contractor keeps one copy of the form and forwards the original signed copy of the form to the Golf Division Administrative office. In order to expedite the processing time, the Contractor may also FAX a copy or bring the original copy of the form to the Golf Division Administrative Aide. Once the Administrative Aide enters the form information into the computer, it takes three to four days for the City's contracted background screening/investigation firm to perform their service. 4. Because of the large number of applicants being screened using this similar process, there shall be no notification to the Contractor unless an applicant receives a negative report within four days of the time that the Administrative Aide enters the information into the computer. Therefore, the applicant may begin assignment for the Contractor after four days unless the Contractor is notified otherwise. However, be aware that it is possible that we could receive a negative report after four days, and we will have to address the situation at that time. JPB 03.22.01 page 2 of 2 EXHIBIT B DISCLOSURE TO PROSPECTIVE EMPLOYEES, VOLUNTEERS, OR OTHER REPRESENTATIVES OR AGENTS OF CONTRACTORS REGARDING PROCUREMENT OF A CONSUMER REPORT (including a criminal history report) In connection with your status as a prospective employee, volunteer, or other representative or agent of the Contractor, Contractor and the City of Fort Collins may procure a consumer report/criminal history on you as part of the process of considering your candidacy for said status. The investigation conducted in conjunction with the report may include an investigation of your personal employment/volunteer history, education, financial, and credit records, public records concerning your driving record, civil and criminal court records, county, state, and Federal tax liens, notices of default and bankruptcies, and other records as may be appropriate. In the event that information from the report is utilized in whole or in part in making an adverse decision with regard to your potential employment/volunteer/representative(agent status, before making the adverse decision, the City and the Contractor will attempt to provide you and the Contractor with a copy of the consumer report(criminal history and a description in writing of your rights under the Federal Fair Credit Reporting Act. The Fair Credit Reporting Act gives you specific rights in dealing with consumer reporting agencies. A copy of A SUMMARY OF YOUR RIGIITS UNDER THE FAIR CREDIT REPORTING ACT is attached to this document. By your signature below, you hereby authorize us to obtain a consumer report and/or an investigative report about you in order to consider your status as a prospective employee, volunteer, or other representative or agent for the Contractor. Applicant's (Please Print) Middle Signature: Date of Birth: Applicant's Address: City/Statelzip: Driver's License Social Security Signature of Parent or Guardian (if applicant is under the age of 18): Other Names Used in the Last Seven (7) Years: Previous Out -of -State Address(es) in the Past Seven (7) Years: 2. Address _ City Address City Last County State Zip Please list any additional addresses on the back of this page. State . Zip Contractor's Initials: Date: City Staff Initials: Date: page 1 of 1 EXHIBIT C A Summary of Your Rights Under the Fair Credit Reporting Act The federal Fair Credit Reporting Ad (FCRA) is designed to promote accuracy, fairness, and privacy of infomration is the files of every "consumer reporting agency (CRA). Most CRAB are credit bureaus that gather and sell infoinformation about you ation — such as if you pay your bills on time or have filed banlwptcy — to creditors, employers, landlords, and other businesses. You can find the complete text of the FORA 15 U.S.C. §§1681-1681u. The FCRA gives you specific rights, as outlined below. You may have additional rights under state law. You may contact a state or local consumer protection agency or a state attorney general to learn those rights. You must be told if information in your file has been used against you. Anyone who uses information from a CRA to take action against you — such as denying an application for credit, insurance, or employment — must tell you, and give you the name, address, and phone number of the CRA that provided the consumer report. You can find out what is in your file At your request, a CRA must give you the infomration in your file and a list of everyone who has requested it recently. There is no charge for the report if a person has taken action against you because of information supplied by the CRA, if you request the report within 60 days of receiving notice of the action. You also are entitled to one free report every twelve months upon request if You certify that (1) you are unemployed and plan to seek employment within 6o days, (2) you are on welfare, or (3) your report is inaccurate due to fiauud. Otherwise, a CRA may charge you up to eight dollars. You can dispute inaccurate information with the CRA. If you tell a CRA that your file contains inaccurate information, the CRA must investigate the items (usually within 30 days) by presenting to its information source all relevant evidence you submit, unless your dispute is frivolous. The souurce must review your evidence and report its findings to the CRA. (The source also must advise national CRAB — to which it has provided the data — of any error.) The CRA must give you a written report of the investigation, and a copy of your report if the investigation results in any change. If the CRA's investigation does not resolve the dispute, you may add a brief statement to your file. The CRA must normally include a summary ofyour statement in future reports. If an item is deleted or a dispute statement is filed, you may ask that anyone who has recently received your report be notified of the change. Inaccurate information must be corrected or deleted A CRA must remove or correct inaccurate or unverified information from its files, usually within 30 days after you dispute it. However, the CRA is not required to remove accurate data from your file unless it Is outdated (as described below) or cannot be verified. If your dispute results in any change to your report the CRA cannot reinsert into your file a disputed item unless the information source verifies its accuracy and completeness. In addition, the CRA must give you a written notice telling you it has reinserted the item. The notice must include the name, address and phone number of the information source. • You can dispute inaccurate Items with the source of the information. If you tell anyone — such as a creditor who reports to a CRA — that you dispute an item, they may not then report the information to a CRA without including a notice of your dispute. In addition, once you've notified the source of the error in writing, it may not continue to report the information if it is, in fact, an error. • Outdated information may not be reported. In most cases, a CRA may not report negative information that is more than seven years old: ten years for bankruptcies. • Access to your file is limited. A CRA may provide information about you only to people with a need recognized by the FCRA —usually to consider an application with a creditor, insurer. employer, landlord or page 1 of 2 other business. • Your consent is required for reports that are provided to employers, or reports that contain medical information. A CRA may not give out information about you to your employer, or prospective t without Your written consent. A CRA may not report medical information about you to pruspinsurers, or employers without your permission, creditors, employer, You may choose to exclude your name from CRA lists for unsolicited credit and insurance offers. Creditors and insurers may use file information as the basis for sending you uosolie ted onus of credit or insurance. Such offers must include a toll -five phone number for you to call ifyou want your name and address removed from future lists. If you call, you must be kept off the lists for two years. If you request, complete, and return the CRA form provided for this purpose, you must be taken off the lists indefinitely. YOU may seek damages from violators. If a CRA, a user or (in some cases) a provider of CRA data, violates the FCRA, you may sue them in state or federal court. The FCRA gives several different federal agencies authority to enforce the FCRA: FOR QUESTIONS OR CONCERNS REGARDING PLEASE CONTACT CRAs, creditors and others not listed below Federal Trade Commission Consumer Response Center- FCRA Washington, DC 20580.202-326-3761 National banks, federal branches/agencies of foreign "National" Office of the Comptroller of the Currency banks (word or initials "NA." appear in or after bank s name) Compliance Management, Mail Stop 6-6 Washington, DC 20219 s 800-613-6743 Federal Reserve System member banks (except national Federal.Reserve Board banks, and federal branches/agencies of foreign banks) Division of Consumer & Community Affairs Washington, DC 20551 •202-452-3693 Savings assodiations and federally chartered savings Office of Thrift Supervision banks (word "Federal" or initials "F.S.B." appear in Consumer Programs federal institution's name) Washington D.C. 20552.800.842-6929 Federal credit unions (words "Federal Credit Union" National Credit Union Administration appear in institution's name) 1775 Duke Street Alexandria, VA 22314'r 703-519-6360 State -chattered banks that are not members of the Federal Reserve System Federal Deposit insurance Corporation Division of Compliance & Consumer Affairs Washington, DC 20429. 800-934-FDIC Air, surface, or rail common carriers regulated by Department of Transportation former Civil Aeronautics Board or interstate Commerce Office of Financial Management Commission Washington, DC 20590 . 202_366-1306 Activities subject to the Packers and Stockyards Act, Department of Agriculture 1921 Office of Deputy, administrator-GIPSA Washington, DC 20250.202-720-7051 page 2 of 2 EXHIBIT D CITY -OWNED INVENTORY COLLINDALE SNACK HOUSE 1. Imperial Refrigerator 2. 2 60" Sandwich Prep Table -- Stainless Steel 3. GE 2-burner Electric Range 4. Sandwich Table/16 Spot Superior Brand Bamarie 5. Grill, Fryer, Table and Hood 6. APW Steam Table 7. Butcher Block Prep Table 8. Amana Radarange Microwave Oven 9. Beer Cooler 10. Hot Dog Roller Grill and Sneeze Guard 11. Four -tier Metal Shelving 12. Perlick 3-keg System With 2 Taps 13. TEC MA-216 Cash Register 14. Ice Machine Scottsman CM' 800 lb. 15. Three Compartment Sink 16. Mop Sink 17. Univex Meat Slicer #6509 18. Safe 19. Two Whirlpool Air Conditioners 20. All Tables and Chairs in the Snack Bar/Lounge Area 21. Pinnacle Deli Case 22. Vacuum Cleaner 23. Patio Deck and Furniture 24. Sodir 1/2 Convection Oven 25. White/Blue Cabinets (2 sections) EXHIBIT E PERSONAL PROPERTY INVENTORY LIST FOR THE CADDYSHACK 1341 EAST HORSETOOTH ROAD 1. (1) Food warmer model #105E 2. (2) Adapter plates for food warmers 3. (3) Dividers for food warmers 4. (1) Emerson 21" TV #5041a121-2307717 5. (1) Kenwood Stereo Receiver #30202487 w/ (2) JBL speakers #j 1147507262 6. (1) Telephone and (1) Answering machine #00145322 7. (1) Drafting table/desk 8. (1) French Fry cutter 9. (1) Compaq computer Contura 400 #7434hjk30270 10. (1) Set of file drawers 11. (1) Yamahauler G-I I Beverage Cart #jj3200325 12. (1) Coffee Cambro 13. (All) Trash cans 14. (5) Bus tubs 15. (6) Saute' pans; (3) 1/3 pans x 6"' (2) stock pots w/lids; (3) soup turines; (all) Tupperware; (all) utensils; (3) sheet pans; (6) 1/6 pans x 6"; (1) sauce pan w/handle; (17) large white platters; (36) small platters; (36) plastic Ramikins; (3) wooden signs and all artwork 16. (1) wooden Condiment dispenser 17. (1) wooden clock 18. (1) Black airpot rack w/3 airpots 19. (1) 4' standing laminate trash receptacle 20. (3) faux plants, including fiscus tree 21. (2) sets of chaffing dishes 22. (1) Pyrex portable food warmer 23. (1) High pressure washer (sears) 24. (1) Hamilton Beach blender 25. (1) CO2 "Jockey Box" for keg dispensing 26. (4) glass serving platters 27. (150) serving plates 28. All silverware, pans/silverware 29. Metal shelving -- white 30. (2) new stainless steel portable shelving units (Seville classics) 31. Ice tea dispenser 32. Coffee maker 33. All coolers-- (Exception Deli Case) 34. Shave ice machine (hand powered) 35. Neon --lights (all) 36. All food/beverage inventory 8.1 Concession Space, City Equipment and Fixtures 8.2 Acceptance 8.3 Installation of Equipment and Trade Fixtures 8.4 Removal of Equipment, Trade Fixtures 8.5 Title to Improvements 8.6 Applicable Law 9. Damage by Concessionaire 10. Total or Partial Destruction 10.1 Concession Space or Other Major Competent Rendered Untenantabie 10.2 Concession Space Only Untenantable 10.3 Components Tenantable 10.4 Removal of Rubbish 10.5 Exception for Damage Caused by Concessionaire 10.6 No Claim by Concessionaire 11. Indemnification and Insurance 11.1 CiWs Liability 11.2 Indemnification 11.3 Patent Representation 11.4 Concessionaire Insurance 11.5 Precautions Against Injury 11.6 Failure to Insure 12. No Interest in Real Property 13. Assignment 14. Right of City to Enter, Inspect and Make Repairs 14.1 In General 14.2 Obstruction by City 14.3 Obstruction by Concessionaire 14.4 No Eviction or Abatement 15. Default, Rights of Termination 15.1 Default by Concessionaire 15.2 CiWs Remedies on Default 15.3 Rights and Remedies Reserved 15.4 Early Termination by City 16. Miscellaneous Provisions 16.1 Cumulative Rights 16.2 Non -Waiver 16.3 Non -liability of Individuals Other Than Concessionaire 16.4 Limitations on Use 3J 10 10 10 10 10 11 11 11 11 11 11 11 11 12 12 12 12 12 13 13 13 13 13 14 15 15 15 15 15 15 15 EXHIBIT F INSURANCE REQUIREMENTS The Concessionaire agrees to provide insurance coverage as provided below, from insurance companies acceptable to the City, and shall pay all costs of obtaining the same. The city, its officers, agents, and employees shall be named as additional insureds on the Concessionaire's general liability insurance policy in relation to any claims arising out of the performance of this Agreement. Certificates of Insurance reflecting the type, amount, class of operations covered, effective dates, and date of expiration of all policies, and containing the following statement, or a substantially similar statement, must be provided to the City before commencing work under this Agreement: "The insurance covered by this certificate will not be canceled or materially altered, except after ten (10) days written notice has been received by the City of Fort Collins, Colorado." Minimum Insurance Coverage Limits 1. $150,000 -- Liquor Liability 2. $500,000 -- Commercial General Liability with Combined Single Limit 3. Statutory -- Workers' Compensation Coverage A 4. $100,000/$100,000/$500,000 -- Workers' Compensation Coverage B 5. $300,000 -- Products Liability 16.5 Governing Law 16.6 Benefits 16.7 Construction 16.8 Successors and Assigns 16.9 Headings 16.10 Attorney Fees 16.11 Entire Agreement 16.12 Severability 16.13 Surrender of Possession 16.14 City Representative 16.15 Notices 16.16 Paragraph Headings 16.17 Schedules and Exhibits 16.18 Force Majeure 16.19 No Limitation on General Powers 16.20 No Relationship 16.21 Survival 15 15 16 16 16 16 16 16 16 16 16 17 17 17 17 17 17 COLLINDALE GOLF COURSE SNACK HOUSE CONCESSION AGREEMENT This Concession Agreement, hereinafter called the "Agreement," is made and entered into as of the 8th day of February 2002, by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, hereinafter called "City," and WILCOX INCORPORATED, a Colorado corporation, doing business as "Collindale Caddy Shack", hereinafter called "Concessionaire." WITNESSETH: ARTICLE 1 Concession Space 1.1 Definition of Concession Space. For the purposes of this Agreement, the "Concession Space" shall mean the following area at the Collindale Golf Course: 1.1.1 The Snack House building at the Collindale Golf Course, located at 1341 East Horsetooth Road, Fort Collins, Colorado 80525, which has been designated as the temporary concessions building during construction of the new Collindale Clubhouse building. 1.2 Use of Concession Space. The Concessionaire shall have the use of the Concession Space for storage of food, beverages and equipment, food preparation, office space, an employee break area and other reasonable uses incidental to offering food, non-alcoholic beverages, licensed alcoholic beverages, and related services to golfers using the Collindale Golf Course and other members of the public. ARTICLE 2 Concessionaire's Use of 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 grounds of the Collindale 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 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 Collindale 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 adopted by the City or any of its Boards, Service Areas, Divisions or Departments having jurisdiction over Collindale 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 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 Collindale Golf Course, presently or hereafter used as such, so long as a reasonable and safe means of ingress and egress remains available to Concessionaire. 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, dishes, silverware, napkin dispensers, salt and pepper shakers, cups and glassware, and any kitchen utensils necessary to serve the demand for such items at the Collindale Golf Course. 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 high quality food and beverages. 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 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 from the Concession Space, 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 from 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 10:30 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. 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 Collindale 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 Collindale Golf Professional may provide food and beverage services through other means. Such services shall not make use of the Concession Space. 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 for which shall be subject to prior and continuing approval of the City. 3 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, 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, and shall provide to the employee/volunteer a Summary of Rights under the Fair Credit Reporting Act included as part of Exhibit C, as attached hereto 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 direct or indirect consequences 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 4.4.5 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; 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 Collindale 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 am. and 5:00 p.m., at the offices of the City or Collindale 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,