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HomeMy WebLinkAboutBRAUNS - CONTRACT - RFP - P869 COLLINDALE CONCESSIONAIRERESTAURANT/SNACK BAR CONCESSION AGREEMENT COLLINDALE GOLF COURSE FORT COLLINS COLORADO January 17, 2003 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 possessery 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 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, Hotel -Restaurant Liquor License with Optional Premises, a City business license and/or occupation license. Failure to qualify for a liquor license or 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 purposes of the Hotel -Restaurant Liquor License with Optional premises, the "premises" shall be defined to include the Collindale Clubhouse building and adjacent outdoor patio, 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) 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 carts 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 on January 1, 2003, or on such later date as this Agreement is executed by the parties and, unless terminated sooner, shall expire on December 31, 2003. 5.2 Renewal--2004. This agreement shall be automatically renewed for a period from January 1, 2004, until December 31, 2004, 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, 2003. 5.3 Renewal-2005. This Agreement shall be automatically renewed for a period from January 1, 2005, until December 31, 2005, 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, 2004. 5.4 Renewal-2006. This Agreement shall be automatically renewed for a period from January 1, 2006, until December 31, 2006, 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, 2005. 5.5 Renewal--2007. This Agreement shall be automatically renewed for a period from January 1, 2007, until December 31, 2007, 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, 2006. 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. 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 Annual Concession Fee of $18,000 (Eighteen Thousand Dollars), or 10% (Ten Percent) of Net Sales less $12,000 (Twelve Thousand Dollars), whichever is greater, in 2003; $17,500 (Seventeen Thousand Five Hundred Dollars), or 10% (Ten Percent) of Net Sales less $12,500 (Twelve Thousand Five Hundred Dollars), whichever is greater, in 2004; $17,000 (Seventeen Thousand Dollars), or 10% (Ten Percent) of Net Sales less $13,000 (Thirteen 7 Thousand Dollars), whichever is greater, in 2005; $16,500 (Sixteen Thousand Five Hundred Dollars), or 10% (Ten Percent) of Net Sales less $13,500 (Thirteen Thousand Five Hundred Dollars), whichever is greater, in 2006; and $16,000 (Sixteen Thousand Dollars), or 10% (Ten Percent) of Net Sales less $14,000 (Fourteen Thousand Dollars), whichever is greater, in 2007. Net Sales is defined as Gross Sales minus Sales Taxes and Voids. 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. 6.2 Time of payment. The Concessionaire shall pay the annual guaranteed fixed Concession Fee amounts due under the Agreement as described in Section 6.1 above, in four (4) equal quarterly payments, no later than on March 31, June 30, September 30, and December 31 of each calendar year; and shall pay the variable percentage amount differential due for the calendar year (if any) no later than January 15 of the following calendar year. 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 electricity, water, storm water, sewer, gas, trash collection, recycling, basic telephone, and the Clubhouse Security System services to the Clubhouse and 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 lines 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 Clubhouse building, including 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. 12 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 during the October to March off-season. 7.3.2 Concessionaire is responsible for the ongoing cleanliness of the Concession Space and other designated locations in the Clubhouse in order to provide a clean and orderly appearance for golfers and the public, including, but not limited to, busing and cleaning tables, chairs, finniture, benches, floor areas and common areas/hallways, and for removing all food and beverage trash accumulations to designated trash containers; and the on -going daily janitorial and cleaning the main floor restrooms located in the Clubhouse. 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: 8.1.1 Existing equipment as listed on Exhibit D, attached hereto and made a part 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 tens 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 0 temvnation 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 Improvement, 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 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. 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 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. we, 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 Concession Space, Clubhouse, 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 Collindale Golf Course, however the necessity may occur. ARTICLE 11 Indemnification and Insurance 11.1 City's Liabili . 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 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 11 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 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 12 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 repairsand 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 maldng 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. 13 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 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 disolving of the LLC. 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. 14 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 refimrbish 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 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 15 1 1. Concession Space 1.1 Definition of Concession Space 1.2 Use for Snack House 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 MachinesA3everage Carts 5. Term 5.1 Period 5.2 Renewal - 2004 5.3 Renewal - 2005 5.4 Renewal - 2006 5.5 Renewal - 2007 5.6 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 1 1 1 1 1 1 2 2 2 2 2 2 2 3 3 3 5 5 5 6 6 6 7 7 7 7 7 7 i ii Agreement. Neither shall Concessionaire permit nor suffer any disorderly noise or nuisance whatsoever about the Concession Space, Clubhouse, 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 ply. 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. 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-869, 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 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 Representative. The City designates the Manager of the Golf Division as its representative who shall make, within the scope of his/her authority, all necessary and proper decisions with reference to this Agreement. All requests for contract interpretations, amendments and other clarifications or instructions shall be directed to the City Representative. 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: Brauns Bar & Grill at Collindale, LLC 204 Walnut Street, Suite C Fort Collins, Colorado 80524 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. 17 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 terns 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation: �,�� By: 0/&.c.1cX fam9i B. ONeill, II, CPPO, FNIGP for of Purchasing and Risk Management ///G/03 TTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney BRAUNS BAR & GRILL AT COLLINDALE, LLC By: L-� ' t l Pl Ken Deline, Member ATTEST: Steve Deline, Member IU EXHIBIT A City of Fort Collins Cultural, I[Abrary, and Recreational .Sexy M GolfDivisien PoTrcy: COntadur Personnel Conchxd and Demeanor, and Background Smcmug for positions Of Trust Under the tmw and conditions of each rOVOWTO Contiadot's knenjent cif the may, all Goff Professionals and Restaurant/Snaok Bar Gives shaft control tiro ccndt>ct and demeanor of fixOr employees, volunteers, and other repvs;eu at m or agents of Me Contactor that will be provide a on behaff of fhe Conitaclor in providing services m the City. The Contractor provide to the to City at all times a mat list of employees, volUntoms, and of= r� or agents ofConhactordW Will be working on belmlf of a* Coofr�or in PWViCrMg =TiDDS to die City under their Agreement, and that all such employees, vofimteas, and odw reprosentatim or agent ofCaubutor agtee to adhere to tiro "BehaviodStwxW& ofpcnond Cond► of and Petformm ee.ft Contractors and the City also hereby acknowledge and agree that OMWO services inner by Ste ContecbOr will require $at specified employem volmmiaen; and other rcpr or agents of � Conhamw act in 'positieau of frost" which can include the halx T of and/or accounting for finds . am rdi anw*, a of City ley, or direct contact wIM you% and members of fire general bhe ecordmgly, each Caatador agrees flirt all specified employeM re does or agents of Contader in taut shall positions of tvohunteers, or eapease of the Corrhactor US g the City's contracted seremmVr_ ab at So as descubed in each respective Contractor's Agcocnen and that is o � soreenWI vestigafion shall be provided to fire City prior to any such persons m in the provision of semce , as descx?bed in each regmtm C or"s Each Contactor shall require the conpldioa and execution of the Disclosm/Waiva fcrm for all specified employees, volanees, and other'repr l,, or agents of Corrtcaotor. The purpose of flris fo>nr is to de Nre necessary information about an applicant and permission to W&W Confidential information for a complete and fhorouO background sweeningrmyeftTam The Contiador shall grovile to all said employees, volunteers, and other representatives or agents a SMMW of Rights under. the Fair Ctedrt Reporting Act. '"' b"kg"nd serecOWInveStiPtion shall includq but is not necossamy limited to, crmearg anests and/or conviction records, driving rmords, credit history, education, preyious employment and volunteer work and otiuer records as may be appropriate, and >s, including review of any records of information availablo to the City as a result of past unployment or contactual relationships the employee, volunteer, or other represertatiye or agent has had with the Contractor or the City. The City will provide assistance in completing the badWound gimvestigation, including Cure completed disclosure foam to an outside vendor for a confidential records chodL Contractorackaowlodges brat by pvviding such a` nee am City assomes no rrsponsib lity forihe timeliness, aommay or completeness of the background smvcn g/mr esggabon, or for the diced or indirect consequences resulting from the some., and the Contactor shall hold the City hamrless for any injury or loss resulting thomfiom. Page 1 of 2 sonsidOnkan of Hie iI make job �'8�ents and responsibility assignments based upOR and. r°gation, and shall riot M any position for whirl such person's character. or suitability are Masonably m question based title information obtained in COM M60D with a background mv�stigation She � its di9M604, Object to any assignments of Contractor Personnel to positions of tract, �', in »«1 Mvestigation. In the event Hiai in€ed upon omiation from the report is utifrced in 'Whole or 'a Fwt M Malang an advrase decision with employm�tivolanteea�rep tale e7ageat status, Mgald to potential before _t attempt to provide Comraetor wih a copy of the consumer repow history. will Speciflod oPloyces, vohmteers, and other wwfives or agents of Contractors identifwd at H is time to ben positions of trust shall inchuie, but are not or section ananagers, lesson pnmdm p that neces hen an to, afl top assistants, area and those positions tbat can work directy lie and/or account for t�ty funds; Mdividuallywi8lyouthorMembersofam ge=Wpub]ic 1. Once an eMpaoyee, vohtntear, other rive of age has been selected by the Contractor, 90 OUIP 0YON vohmteer, other repr� or agent (apply)" mycomplete the bac�giound on for.., which is titled "Discloscue to PwSpectift gmployms, Vohmteers, OrOlmRWOftatWM or Agents ofConitactoreRega dnighocurannatofaCo wnwReport CMcluding a crinaw history report) " 2. When the employee, volunteer, other representative Of agent (applicant) has COMpleLEd a6d signed the foam, the Contractor shall initial and date the bottom of the tone, eying the bottom VON f the fosrn to the applicant. The Contractor. Shall also giro to Ere applicant at Hus time a smrnmy OfUs&wrights =KW the federal Fair Ciedit RCIMtingAct The Fair lkeclit Reporting Arrirt &DD, requirement, and pmcedares related to any adyerse decisions based ornud 3. lire Contractor keqps one Copy of the form and forwards the original signed cW of the form to the Golf Division Admini*n ive office. In otder to expedite tie pmovsdqg tW^ tie Contractor May also FAX a Copy or bring the original Copy of ffie form to the Golf Division Administrative Aide. Once the Administrative Aide enters the fixm information into the conprrtea, it takes three to four days for the CWs. contracted background Mccuingr service.Sation San to perform their 4. Because of the imp n mber of applica * being Mcened using tiffs rocess, thore shall be no notification to tie Contractor unless an applicant ieceires a negative report wiHrin four days of the time that tie Administrative Aide craters the wfo "Ou into the ooMp *r. more' the applies uw begin assign MW for tie Contractor utter faar days unless dre Color is notified otherwise. however, be aware that it is possrblc tot we MWd receive a negative report after four days, and we win have to address tie situation at gist Hone. JPB 03.22.01 page 2 of 2 EXHIBIT B DISCLOSURE TO PROSPECrWE EMpLOYEESP VOLUNTEERS, OR OTHER REPRESENTATWM OR AGENn OF CONtRACTORS REGARDING PROCUREMENT OF A CONSUMER REPORT Goring a criminal history report) In won with your states as a prospective employee, volunim, or ofher eve or agent of the Contractor, CWkactor and the of Fort repon1caiminal history on you as part of the process of Comm way i a consumer status• investigation conducted in conjunction with the made antmve�g�nn of our oynteaNvoluatees history, education, financial, and credit records,. public Federal tags mW You driving mocr d, cM and imco inal al:records, may, and ens, whom of default and bankruptcies, and other records as nW be In the decision event ntthat information from the report is utilized in whole or in part making anwherse regard to your potential employsneant/volantce�ti�ageW ��, before making the adverse decision the CY and the Contractor will attempt to lade you ami the Contractor with a copy of the consumer Your rights Under the Federal Fair Credit history and a description in writ gof You c in dealing with consumer Act, The Fair coedit RReporting Act gives YOUR R10M UM13R THE FAIR CREDIT REPOR11M ACT is attr ow to Y OR By your =gam below, you hereby authorize US to obtain a consumer report and/or an es volo Fort you in order to considcr your status as a pmspegive employee; Of agent for the Contractor. Applicaufs (Ne=e Print) Ssgpature: Date ofBirth: Driver's Incense Social Sawrity S. Signatue ofparent or Guardian Offfl licantis *KW dW8V Of 18): Other Names Used in the Last Seven (7) Years: Previous Oat -of -State Addross(es) in do Past Seven (7) Yeas: 2. County City sty State Zip Please list any additional addresses on the back ofthis page. Contractots Initials: Date: City Staff Initrals: Date: page 1 of 1 EXHIBIT "C A Summary of Your Rights Under the Fair Credit Reporting Act The federal Fair Credit Reporft Act QUU) is designed topromotC Y, mess, and m (CM). Most CRAB the files ofevW "consunterrepotwg agency" are credit privacy of mf�ion " about you — sucL as ifyou PBYYoutbtTls on time or have filed brims that gather anti sell information other 6asigesses you can find the camande tetR ofdhe —to S landlords, and as outlined below. you FRA.15U.S.C§§1681-1681u.TheFCRAgi=yen c ptoteaYasoutenedbelo . na'�arthbWderttatelawYOU mayeontactastateorloeal . �6otneygCnCW to ICBM those rights. You most be told if information is Yost file has been used 29alust iaf You. Anyotte who uses otMOM from a CRA to take action againstYou — such as deayi g an application for credit, losumoce, orempioymeat —mastteDYou. and gtveyou thry mgaddress,andphonenumberof&eCRAthatprovided&per MpOlt you eau find outrrhat is in your file. Atyour request a CRA austg�� the �b*ff= iou tmyotQgq act'onaPbmofereryoWwlwhasregn�dittecead.7hmisnodopfortboiepottifapawMyourf Ycubccwze ofbdb supplied byfl a piq, Vyw rtqu st the dt*a reaiviag aotico ofthe anion You ako are eatitiod to one fire reportvra4io 60 You ON* that(1) YOU am aneagrloyed and plan to seek employ em Widl 6 700� �04raqaest tf or (3) Your report is ihiaocurate due to fraud. Othetwis% a CRA � ' �y0° are on whdfarq nnYcfiazgeYon Wr iDeightdollats. You can dispute inaccurate ioforrmtiun with the CRA. IfYou tell a CRA &&your fik ccomms inaa=ft information, the CRA mast iuvesfgate the items (nsoallywidda.30 dam) by ft b its information source er OR relevant evr kr=you submit, on,= Year dispute is frirobm The source must redewyour provided report its findiogs to the CRA. (The source alsomost adrisenationalC,RAs—tow]ticbkLas Prootanyemor)TheCRAmuggiveyou awriumreport ofihehmsttwioo,and a you report+fthe iavestgation rMft m BUY dwgcw Ifthe CRA's inv oo does not rt5dveme Hof is You may add a briefstMtteatto YoMW& The CRA most ' fatarethpota.Ifaaitem isdeletedora ououellYmc�deasurnmatyor oarstatea in moved Your report be notified oftbe change.statemerrt tt fi1od, you may ask tLat aayoaC who 4as notudy Iaseearate information mast be corrected or dekted. A CRA trust remove or owed Bamoetu to or taaverified infoma" film its files, usually within 30 days atteryou dispute h. However, the CRA is not required to remove accurate data from your file unless it is outdated (as described below) or cannot bs Mir" ICr dispttte resohs is mrychag•e to yourteport, the CRA cannot miasert into Your Me a disputed itemM the amRionsoace verities its ecomaay and compkkaess• In WAM the CRA mast give You a wriliW notioe'" tgyou it has reinserted the item. The notice must include the name, address and phone number of the information source, • You cox dispute iaaecutate Items•wRb the sourecof thecre— �fortmaGon Ifyoe test anyone such as a withoutwboreportstoaCRA--thatyoadisputeMitem,d ymaytro dMreport dwi MEMMimWaCRA without including aaotioe ofYtna dtsprtbe.In'Miaoa, omyou've 4oafied ihesource oftheatormwr && it may trot Continue to report the information ifit is, in fact an error. • Outdated information may not be reported. In most eases, a CRA may not repot negative irdormBgou chat is more than seven }oars of k tea years for banlaapwies. • access to .your Me is limited. A CRA may provide aformation about you only to people with a need tecoPized by the FORA — astudt_v to consider an application with a creditor, insurer. employer, laudloixL or Page I of 2 ed Your atimt is ►e9 mynal � ad imormatiwn abort to Paleemlo Mer ra that eoatai l medical information, A CRA _ wllt6DutyOur canton cooswt. A CRA maynot repwtrgeyI mformatioa abort. or tP.• employes WjdM*yourpamission you to a' ShmmmMor You may choose to esdsdeyour same from CRA"for unsolicited credit and kmu=oe oifya Creditors and asmas jy use fr7e iofam Lion as thebasis for stadugym u®wLcited offers afa+editor insurance, sea offasmustincladeaftMomemmaber-foryoatoCONifyonwantYoorsameand address removed fiomfuaae Iists.Ifyou call, you must bekept offdw lists fortmyears ifyou P e, and rEdun me CRA h m provided fOr this pmpose, Yon nmabe taken off&o is icin y, Yon may seek damages from viOlat m MR CRA, a useror(m some cam) aprovidcrOfCRA data, vieiatrs the FCRA, you may sue mem in state orfedeW court The FORA gifts several dill4vat fedmal agenc[a 0WhOr$y to enforce the FCRA: FOR QPMONS OR CONCERNS REGARDING pIEASH CONTACT CRAB, creditors and Others am lisp below Federal Trade Commission der 0MI -FORA Washia� DC 20536.202-3263761 National banks, federal brandws69cuciesOffaeign banks (word "National" or in" appear in or itials :ALA. Office ofdwcognpaoilrof6e Cmrevr Complimux Maw Mad Stop 6-6 after beaks name) Washington, DC20219 s M413.6743 Federal Reserve System member banks (eaceptmbmd Fedaal-Reserw Board bads, and federal kmch&ageacies offomp banks) Division ofComrmr& Commmmity Affim Weston, DC 205514 202-452-303 SMW assodaatiOns and federally chartemd avop Otiioe oflbnft,,S,,%Xrvi banks (word'FedaaPOrmmals"F.S.B.•appeaa m Cons_• gra. Waal insl iftdWs kame) Washington D C. 20532' 8W E42-6929 Federal credit maiam (wads Tedmal Gediz Union" National UCO Union Adu gist appear a iastitn6Oa`s name) mon 1775 Duke Sheet Alexandria, VA22314.703-51i-6360 State-dwkred banks that are not members ofdw FedaalResermSvstem FWUW Deposit Insurance Corp . Division of Compliance& ConsmaaAflbirs Wasi'agmu,1x20429' 800A34-FDIC Air, smiace, OF MR common carriers rgnlatedbj DepartmentotTrargVeration fwmerCiAAaemmticsBoard orlaterst*cammaee OftweofiinanaalM auVement Cow Washmgtou,DC?0D0.201i 366-1306 Actividm subject to dre packers and Stockyards Act Dgmwcat OfAgicalmre 1921 Office of Deputy Admioisfimr-uM Washingt0n,D62i1250• 02-720-7051 page 2 of 2 EXHIBIT D CITY -OWNED INVENTORY COLLINDALE RESTAURANT/SNACK BAR EQUIPMENT 01 Underbar equipment from left to right: 90 degree corner section 12" hand sink section 84" 3-compartment glass washing sink section 42" flat glass storage/staging section 36" ice bin/coctail section 18" blender and dump sink section 18" flat top glass storage unit 02 Bar front & back millwork and cooler face 03 Step-in bar cooler with double 36" hinged glass doors & Bar drainer (beer taps/system by vendors) 04 Expresso deleted 05 Pass window shelf/ledge 06 Work top with storage abovelbelow 07 Storage cabinet (s/s top by KEC, base by GC) 08 Storage cabinet (s/s top by KEC, base by GC) 09 Hand sink 10 Linen drop 11 Spare number 12 Ice maker & soda system 13 Coffee maker & tea dispenser 14 Warmers 15 Beverage counter 16 Cash & POS system 17 Storage cabinets (s/s top by KEC, base by GC) 18 Spare number 19 Ice machine and bin 20 China/utensil storage rack 21 Soiled dish landing table 22 Waste disposal with spray rinse 23 High temp dishwasher 24 Condensate hood 25 Booster heater 26 Clean dish table 27 3-compartment utensil wash sinks 28 Hand sink 29 Spare number 30 Pass through salad & dessert refrigerator 31 Microwave oven 32 Mega -refrigerated condiment table 33 Double overhead pass -over shelves 33.1 Utility chase from serving line to ceiling 34 Chefs plate landing table 35 Wait staff tray shelf & dish storage below 36 3-opening water bath baine marie hot food table 37 Hot food lamp 38 Undercounter refrigerator drawer unit 39 Pantry shelving units 40 Exhaust hood, s/s wall panel & fire suppression 41 Fryers 42 Char grill with open base 43 Flat top grill with over base & salamander over 44 4-open burner top range with oven 45 Convection oven 46 Exhaust hood & fire suppression 47 Food mixer on stand w/tree 48 Work table 49 Convection steamer 50 Hand sink 51 2-compartment vegetable prep sinks 52 Food slicer 53 Work table 54 Freezer shelving 55 Cooler shelving 56 Walk-in cooler & freezer 57 Office equipment 58 Dry storage shelving 59 Snack cart storage rack 60 Lavatory 61 Mop sink 62 Chemical storage shelving 63 Cash/POS 64 Pass -through "turn" window sill (slider by GQ 65 "Turn" window work table 66 Work table 67 Ice maker & soda system 68 Reach -in refrigerator 69 Work table 70 Hand sink 71 Cook-n-hold hot food unit 72 Spare number 73 Spare number 74 Deliver, set, assemble, start & calibrate rF) 7.3 Cleaning and Janitorial 8 8. Acceptance and Trade Fixtures 8.1 Concession Space, City Equipment and Fixtures 9 9 8.2 Acceptance 8.3 Installation of Equipment and Trade Fixtures 9 9 8.4 Removal of Equipment, Trade Fixtures 9 8.5 Title to Improvements 9 8.6 Applicable Law 9 9. Damage by Concessionaire 10 10. Total or Partial Destruction 10 10.1 Concession Space or Other Major Competent Rendered Untenantable 10 10.2 Concession Space Only Untenantable 10 10.3 Components Tenantable 11 10.4 Removal of Rubbish 11 10.5 Exception for Damage Caused by Concessionaire 11 10.6 No Claim by Concessionaire 11 11. Indemnification and Insurance 11 11.1 City's Liability 11 11.2 Indemnification 11 11.3 Patent Representation 12 11.4 Concessionaire Insurance 12 11.5 Precautions Against Injury 12 11.6 Failure to Insure 12 12. No Interest in Real Property 12 13. Assignment 12 14. Right of City to Enter, Inspect and Make Repairs 12 14.1 In General 13 14.2 Obstruction by City 13 14.3 Obstruction by Concessionaire 13 14.4 No Eviction or Abatement 13 15. Default, Rights of Termination 13 15.1 Default by Concessionaire 13 15.2 City's Remedies on Default 14 15.3 Rights and Remedies Reserved 15 16. Miscellaneous Provisions 15 16.1 Cumulative Rights 15 16.2 Non -Waiver 15 iii L a v to C� s ' Ii �lI V OOZEi= i 3 .�. �I � EXIIIBIT E PERSONAL PROPERTY INVENTORY LIST FOR THE CONCESSIONAIRE (LIST TO BE COMPLETED NO LATER THAN APRIL 1, 2003) ._ f , �o 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." 1. 2. 3. 4. 5. Minimum Insurance Coverage Limits $150,000 -- Liquor Liability $1,000,000 -- Commercial General Liability with Combined Single Limit $2,000,000 -- Aggregate Statutory -- Workers' Compensation Coverage A $100,000/$500,000/$100,000 -- Workers' Compensation Coverage B $1,000,000 -- Products Liability 16.3 Non -liability of Individuals Other Than Concessionaire 16.4 Limitations on Use 16.5 Governing Law 16.6 Benefits 16.7 Construction 16.8 Successors and Assigns 16.9 Headings 16.10 Attorney Fees 16.11 Incorporation of Request for Proposals/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 15 16 16 16 16 16 16 16 17 17 17 17 17 17 17' 17 18 iv COLLINDALE GOLF COURSE RESTAURANT/SNACK CONCESSION AGREEMENT This Concession Agreement, hereinafter called the "Agreement," is made and entered into as of the 171b day of January 2003, 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 BRAUNS BAR & GRILL AT COLLMDALE, LLC, whose principal offices are at 204 Walnut Street, Suite C, Fort Collins, Colorado 80524, 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, 1441 East Horsetooth Road, Fort Collins, Colorado 80525: 1.1.1 The kitchen, bar, and wait area on the main floor of the Collindale Clubhouse building. 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 Collindale Golf Course and, incidentally, to the public. ARTICLE 2 Concessionaire's Use of 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 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, Clubhouse, and the grounds of the Collindale 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 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 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 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 fiunish 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 the necessary to serve the demand for such items at the Collindale Golf Course, as well as paying for all cable 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 sate from the Concession Space only high quality food and PJ 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 high 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 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 cause for default. or modify its prices or quality within five (5) days of being advised in writing to do so shall be 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, 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 for 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. 3 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 Concessionaire's 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, 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. 4.4.5 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 0 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 busmess, 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 a.m. 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, 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, possessery interest, and other taxes, 5