No preview available
HomeMy WebLinkAboutLARRY LEWIS TENNIS - CONTRACT - RFP - P965 ROLLAND MOORE TENNIS PROSHOP CONCESSIONi ROLLAND MOORE PARK RACQUET CENTER CONCESSION AGREEMENT TABLE OF CONTENTS ARTICLE....................................................................................PAGE 1. Concession Space............................................................................1 1.1 Definition of Concession Space............................................1 2. Concessionaire's Use of the Concession Space ............................1 2.1 In General.............................................................................1 3. Rights of Ingress and Egress...........................................................1 3.1 In General............................................................................1 3.2 Closures...............................................................................1. 4. Undertakings of the Concessionaire...............................................2 4.1 Pro Shop Services...............................................................2 4.2 Hours of Operation...............................................................2 4.3 Concessionaire Personnel....................................................2 4.4 Physical Interference...........................................................2 4.5 Taxes...................................................................................2 5. Term.............................................................................................3. 5.1 Period...................................................................................3 5.2 Holding Over........................................................................3 6. Fee for Conducting Business...........................................................3 6.1 Concession Fee...................................................................3 6.2 Time of Payment..................................................................3 6.3 Interest on Past Due Amounts..............................................3 6.4 Method of Payment..............................................................3 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 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 Park Use Concessionaire shall not use, or permit the use of Rolland Moore Park, or any part thereof, for any purpose or use other than those authorized by this Agreement. 16.5 Governing Law This Agreement shall be performable and enforceable in Larimer County, Colorado, and shall be construed in accordance with the laws of the State of Colorado. 16.6 Benefits This Agreement is made for the sole and exclusive benefit of the City and Concessionaire, their successors and assigns, and is not made for the benefit of any third party. 16.7 Construction In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 16.8 Successors and Assigns All covenants, stipulations and agreements .in this Agreement shall extend to and bind each party hereto, its legal representatives, successors and assigns. 16.9 Headings The paragraph headings and titles of the several articles of this Agreement are inserted herein for convenience and reference 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. 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 City or Concessionaire in their 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 Concessionaire shall remove all of its property the City and its improvements in accordance renewed or replaced. its earlier termination as herein provided, and surrender entire possession of its rights to dith Section 9 above, unless this Agreement is 16.14 City Representative The City designates Terry Keith, Program Administrator, as its representative who shall make, within the scope of his or 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: Concessionaire: Lewis Tennis, Inc. 764 Vanderbilt Beach Rd Naples, Florida 34108 941-598-3025 City: James B. O'Neill II, CPPO Director of Purchasing and Risk Management City of Fort Collins P.O. Box 580 Fort Collins, Colorado 80522 16.16 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 the reference incorporated in this Agreement. 16.17 Force Majeure 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 for which it is not responsible or that are not within its control. 16.18 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. 10 16.19 No Relationship Nothing contained herein shall be deemed or construed by the parties hereto nor by any third party as creating the relationship of principal and agent or a partnership or a joint venture between the parties hereto. 16.20 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. LEWIS TENNIS, INC By:_ Larry Lewis Corporate Presid nt Date: THE CITY OF FORT COLLINS, COLORADO JamO'Neill II, CPPO Dire of Purchasing & Risk Management Date: 5 6 20so (Corporate Seal) 11 EXHIBIT A Section 3.0: Scope of Work 3.1 At a minimum, the selected concessionaire must provide: a. Racquet stringing services. b. Ball machine rentals (concessionaire must supply tennis balls for the machine). C. Tennis lessons at any City -owned tennis courts. d. Instructors, payment to instructors, and equipment for private and semi -private lessons, Youth and Adult group lessons, and for other concessionaire programs. e. Sale of tennis related items. f. Distribution of Recreation Division literature to the public. g. Information about City registration procedures. h. Registration services and updated accounting records for all activities conducted as part of this Agreement. i. A price list for all products and services, updated monthly. j. A schedule of court use and other Concessionaire activities. 3.2 The Concessionaire will be responsible for: a. Scheduling and collection of fees for all City -owned courts, except for events scheduled by the City for Poudre School District or other public entities (including the City). b. Advising City staff of schedule additions and changes on a daily basis. C. Care, cleaning, and minor maintenance of the Pro Shop building. d. Care and cleaning of the storage shed northwest of the Pro Shop. e. General cleaning of the area around the Pro Shop. f. Payment of telephone and data line expenses related to the Pro Shop operation. g. Care of any City property used in the Pro Shop concession. 3.3 The City will be responsible for: a. Maintenance of the courts, buildings, and surrounding areas. b. Providing marketing assistance for new activities offered by the Concessionaire, space for general tennis information in each issue of the recreation program brochures, assistance in targeting new tennis audiences in the community, and assistance with solicitation of interns from area universities. C. Landscaping: care and maintenance. Trash removal from City trash containers. d. Establishing court rental fees. e. Entering court schedules into the City's Event Management System (EMS). f. Scheduling of courts and collection of fees for Poudre School District (PSD) events. The Concessionaire will not share in fees for these events. 3.4 The concessionaire shall have exclusive rights to: a. Pro Shop sales for goods and services. b. Providing private, semi -private lessons, group lessons, camps, and other programs at the Rolland Moore Racquet Center and other City -owned courts. C. Priority use of all City -owned tennis courts. 12 3.5 The Concessionaire shall have the use of the following City -owned equipment. Maintenance of such equipment shall be the responsibility of the Concessionaire. a. Alpha Ultra Edge III automatic stringing machine. b. Sentry Valuguard 1310 safe. C. Four interior steel company lockers. d. Playmate ACE BP ball machine with remote control. e. Misc. office furniture: desk, table, round table, cabinet, and display rack. f. Merchandise displays, including one clothes rack and wall mounts. 13 EXHIBIT B BACKGROUND CHECKS FOR POSITIONS OF TRUST Certain positions to be utilized by Concessionaire in providinc Agreement have been designated by the City as "positions of ti are not limited to, jobs where the employee or volunteer regi members of the general public, enters private homes or accounting duties or management and control of City property background investigation of persons to provide services to t investigation shall include, but is not limited to, checking ai driving records, credit history, previous employment and including review of any records or information available b employment or contractual relationships the employee 1- Concessionaire shall make job assignment and responsibility consideration of the background investigation, and shall not p ;.;—, 4,— ... 1,;,k c,, ti ncrenn'c rharnntpr nr Ruitahility are re; services to the City under this List." Such positions include, but larly works with youths or other property, or is responsible for . Concessionaire will conduct a ie City in such positions. The rests and/or conviction records, olunteer work, and references, the City as a result of past as had with the City. The assignments based upon and in armit any person to perform any isonably in cuestion based upon the information obtained in connection with a background investigation. The City may, in its discretion, object to any assignments of personnel to positions of trust by Concessionaire, based on the background investigation. The City may provide assistance in completing the background investigation, including providing the completed disclosure form to an outside vendor for a confidential records check. Concessionaire acknowledges that by providing such assistance 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. Process for Obtaining Background Check Information The Concessionaire shall use the following procedure: Once an employee or volunteer selection or assignment for work under the Concessionaire Agreement with the City is made, the employee or volunteer shall complete the background check form attached to the Agreement as Exhibit "C", which is titled "Disclosure to EmployeeNoiunteer Regarding Procurement of a Consumer Report (Including Criminal History Report and Employment History Review)." The purpose of this form is to provide the necessary information about an applicant and permission to review confidential information, so that the Concessionaire can complete a thorough background check. 2. If the Concessionaire anticipates that the employee or volunteer will operate any vehicles or City equipment in providing services to the City, a driving record check shall be conducted in addition to a criminal check. The driving record check will be completed at the same time as the background check. 3. When the employee/volunteer has shall initial and date the top of the one to be retained by Concessionai completed and signed the form, the Concessionaire form, and make two copies of the completed form, re and one to be provided to the City. in Exhibit B, page 2 4. The Concessionaire is required to give each person undergoing a background check a summary of his/her rights under the federal Fair Credit Reporting Act. This summary is attached to the original form (see Exhibit C). The Concessionaire shall give theori inal Disclosure form with its attachment (the summary) to the employee/volunteer. 5. The Concessionaire shall also require the employee or volunteer to complete the Request, Authorization and Waiver form, attached to the Agreement as Exhibit "D". The purpose of this form is to authorize the City to release information regarding previous employment with the City. This form must be notarized, and the original executed form provided to the City prior to initiation of the background and employment history investigation. 15 EXHIBIT C DISCLOSURE TO EMPLOYEENOLUNTEER REGARDING PROCUREMENT OF A CONSUMER REPORT (INCLUDING A CRIMINAL HISTORY REPORT AND EMPLOYMENT HISTORY REVIEM In connection with your employment/volunteer status in connection with sensitive contractual services being provided by your employer, Lewis Tennis, Inc., to the City of Fort Collins, your employer may procure a consumer report/criminal history on you as part of the process of considering your role as an employee/volunteer, and may obtain information from and share the resulting information with the City of Fort Collins for that purpose. 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, effort will be made to provide you with a copy of the consumer reporL/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 RIGHTS UNDER THE FAIR CREDIT REPORTING ACT is attached to this document. By your signature below, you hereby authorize Lewis Tennis, Inc., and/or the City of Fort Collins to obtain a consumer report and/or an investigative report about you in order to consider you for employment/volunteer status, including any records related to previous employment or contractual relationships you have had with the City of Fort Collins. Applicant's Name: Date of Birth: (Please Print) Applicant's Address: City/State/Zip: Signature: Social Security Signature of Parent or Guardian (if applicant is under age 1 S): Other Names Used in the Last Seven (7) Years: Previous Out -of -State Address(es) in the Past Seven (7) Years: 1. Address: City County State Zip Code 2. Address: City County State Zip Code Please list any additional addresses on the back of this page. Give this disclosure with a copy of Summary of Rights Under the Fair Credit Reporting Act to applicant. Retain a copy of the release for your records, and provide a copy of the release to the City of Fort Collins. T A Summary of Your Rights Under the Fair Credit Reporting Act The federal Fair Credit Reporting Act (FCRA) is designed to promote accuracy, fairness, and privacy of information in the files of every "consumer reporting agency" (CRA). Most CRAs are credit bureaus that gather and sell information about you -- such as if you pay your bills on time or have filed bankruptcy -- to creditors, employers, landlords, and other businesses. You can find the complete text of the FCRA, 15 U.S.C. 1681-1681u, at the Federal Trade Commission's web site (http://www.ftc.gov). 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 information 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 60 days, (2) you are on welfare, or (3) your report is inaccurate due to fraud. 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 source must review your evidence and report its findings to the CRA. (The source also must advise national CRAs -- 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 of your 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 17 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 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 employer, without your written consent. A CRA may not report medical information about you to creditors, insurers, or employers without your permission. 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 unsolicited offers of credit or insurance. Such offers must include a toll -free phone number for you to call if you 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. iU ii TABLE OF CONTENTS ARTICLE.................................................................................... PAGE 7. Services to be Provided by the City................................................3 7.1 The City Will be Responsible................................................3 8. Acceptance and Trade Fixtures.......................................................4 8.1 Acceptance..........................................................................4 8.2 Installation of Equipment and Trade Fixtures .......................4 8.3 Removal of Equipment, Trade Fixtures.................................4 8.4 Applicable Law.....................................................................4 9. Damage to Parks by Concessionaire..............................................4 10. Total or Partial Destruction..............................................................4 10.1 Concession Space Rendered Untenantable .........................4 10.2 Concession Space Tenantable.............................................5 10.3 Exception for Damage Caused by Concessionaire..............5 10.4 No Claim by Concessionaire................................................5 11. Indemnification and Insurance.........................................................5 11.1 City's Liability.......................................................................5 11.2 Indemnification.....................................................................5 11.3 Patent Representation..........................................................5 11.4 Concessionaire Insurance....................................................5 11.5 Precautions Against Injury ....................................................5 11.6 Failure to Insure...................................................................6 12. No Interest in Real Property............................................................6 13. Assignment.......................................................................................6 14. Right of City to Enter, Inspect and Make Repairs ...........................6 14.1 In General............................................................................6 14.2 Obstruction by City...............................................................6 14.3 Obstruction by Concessionaire.............................................6 14.4 No Eviction or Abatement.....................................................7 15. Default of Rights of Termination......................................................7 15.1 Default by Concessionaire....................................................7 15.2 City's Remedies on Default..................................................8 15.3 Rights and Remedies Reserved...........................................8 The FCRA gives several different federal agencies authority to enforce the FCRA: FOR QUESTIONS OR CONCERNS REGARDING: PLEASE CONTACT: CRAB, 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 banks (word "National" or initials "N.A." appear in or after bank's name) Office of the Comptroller of the Currency Compliance Management, Mail Stop 6-6 Washington, DC 20219 800-613-6743 Federal Reserve System member banks (except national banks, and federal branches/agencies of foreign banks) Federal Reserve Board Division of Consumer & Community Affairs Washington, DC 20551 202-452-3693 Savings associations and federally chartered savings banks (word "Federal" or initials "F.S.B." appear in federal institution's name) Office of Thrift Supervision Consumer Programs Washington, DC 20552 800-842-6929 Federal credit unions (words "Federal Credit Union" appear in institution's name) National Credit Union Administration 1775 Duke Street Alexandria, VA 22314 703-518-6360 State -chartered 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 former Civil Aeronautics Board or Interstate Commerce Commission Department of Transportation Office of Financial Management Washington, DC 20590 202-366-1306 Activities subject to the Packers and Stockyards Act, 1921 Department of Agriculture Office of Deputy Administrator - GIPSA Washington, DC 20250 202-720-7051 19 Exhibit D REQUEST, AUTHORIZATION AND WAIVER I hereby request and authorize the City of Fort Collins, its officers, employees, and agents (collectively referred to as the "City"), at anytime within one year of the date of this request, to provide reference information, whether written or verbal to Lewis Tennis, Inc., concerning my employment with the City of Fort Collins. Such reference information may include, but is not limited to, my personnel files, objective and subjective evaluations of my employment performance, attendance records, and any other information of any kind, written or verbal, concerning my employment with the City of Fort Collins. I hereby fully waive any rights, claims, and damages I have or may have against the City that may directly or indirectly result from the use, disclosure or release of any information by the City, whether such information is favorable or unfavorable to me. Signature Printed Name Address Telephone Number State of Colorado County of Larimer ) Date Subscribed and sworn to before me this day of 20_ by My commission expires SEAL Notary Public 20 TABLE OF CONTENTS ARTICLE.................................................................................... PAGE 16. Miscellaneous Provisions................................................................8 16.1 Cumulative Rights................................................................8 16.2 Non-Waiver..........................................................................8 16.3 Non -liability of Individuals.....................................................8 16.4 Limitations on Park Use........................................................8 16.5 Governing Law.....................................................................9 16.6 Benefits................................................................................9 16.7 Construction.........................................................................9 16.8 Successors and Assigns.......................................................9 16.9 Headings..............................................................................9 16.10 Attorney Fees.......................................................................9 16.11 Entire Agreement.................................................................9 16.12 Severability...........................................................................9 16.13 Surrender of Possession......................................................9 16.14 City Representative.............................................................10 16.15 Notices...............................................................................1.0 16.16 Paragraph Headings...........................................................10 16.17 Schedules and Exhibits......................................................10 16.18 Force Majeure.....................................................................10 16.19 No Limitation on General Powers........................................10 16.20 No Relationship...................................................................10 16.21 Survival..............................................................................1.0 ROLLAND MOORE PARK RACQUET CENTER PRO -SHOP CONCESSION AGREEMENT This Concession Agreement, hereinafter called the "Agreement", made and entered into as of the 15th day of March, 2000, by and between The City of Fort Collins, Colorado, a municipal corporation, hereinafter called "City", and Lewis Tennis, Inc., hereinafter called "Concessionaire." WITNESSETH: GENERAL SCOPE OF SERVICES The Concessionaire agrees to provide Pro Shop and tennis related services in accordance with the following articles and the Scope of Work attached hereto as Exhibit A, consisting of one (1) page, and incorporated herein by this reference. ARTICLE 1 - Concession Space 1.1 Definition of Concession Space For the purposes of this Agreement, the "Concession Space" shall mean the Tennis Pro Shop located in Rolland Moore Park and the storage shed located northwest of the Pro Shop. ARTICLE 2 - Concessionaire's Use of Concession Space 2.1 In General The City grants to Concessionaire the following rights and privileges: 2.1.1 Subject to other limitations expressed in this Agreement, the right to exclusive use of the Concession Space for Pro Shop operations.(and for no other purpose) in such spaces and manner as may be prescribed by the City. ARTICLE 3 - Rights of Ingress and Egress 3.1 In General Concessionaire shall have the right of ingress and egress to and from the Concession Space and Parks 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 Rolland Moore Park, presently or hereafter used as such, so long a reasonable and safe means of ingress and egress as provided above remains available to Concessionaire. ARTICLE 4 - Undertakings of Concessionaire 4.1 Pro Shop Services 4.1.1 See Exhibit A, Scope of Work 4.1.2 Concessionaire acknowledges the desire and obligation of the City to provide the public with quality merchandise and a high level of service. Therefore, Concessionaire agrees to offer for sale from the Concession Space only merchandise and services at prices not to exceed the prices customarily charged for similar items in Fort Collins area privately -owned Pro Shop operations. If, in the opinion of the City, the selection of items offered is inadequate or not of acceptable quality, if any of the prices are excessive or if any of the items are found to be objectionable for display and/or sale in a public facility, the City 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 seven (7) days of being advised in writing to do so shall be cause for default. 4.1.5 Concessionaire may not add, remove or otherwise vary its services listed in Section 4.1.1 without the prior written authorization of the City Representative. 4.2 Hours of Operation To be determined by Concessionaire with approval of the City Representative. 4.3 Concessionaire Personnel Concessionaire shall control the conduct and demeanor of its agents and employees. 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 and volunteers 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 B, consisting of two (2) pages, attached hereto and incorporated herein by this reference, shall be screened using the background screening procedure described on Exhibit B, 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 form attached hereto as Exhibit C, consisting of three (3) pages and incorporated herein by this reference, and the Request, Authorization and Waiver form, attached hereto as Exhibit D, consisting of one (1) page and incorporated herein by this reference, and shall provide to the employee/volunteer of the Summary of Rights under the Fair Credit Reporting Act included as part of Exhibit C. 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. 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. Upon 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 the cause of the objection or to remove such individual from the performance of any services provided hereunder. 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 Physical Interference Concessionaire shall not do, nor permit to be done, anything which may interfere with the effectiveness or accessibility of the drainage system, sewerage system, fire protection system, sprinkler system, alarm system and fire hydrants and hoses, if any, installed or located in Rolland Moore Park. 4.5 Taxes Concessionaire agrees to pay all lawful taxes, assessments and payments -in -lieu which, during the term of this Agreement or any extension hereof become due or which, may become a lien or 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, 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 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 Rolland Moore Park. Nothing shall prevent Concessionaire from protesting, through due process, any taxes levied. ARTICLE 5 - Term 5.1 Period. The term of this Agreement shall commence on March 15, 2000, and, unless terminated sooner, expire on March 14, 2001. In addition, at the option of the City, the Agreement may be extended for additional annual periods, not to exceed three (3) such renewal periods. Changes in the Concession Agreement shall be negotiated by and agreed to by both parties. 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 ARTICLE 6 - Fee For Conducting Business 6.1 Concession Fee For the privilege of conducting the concession operations hereunder, the Concessionaire shall pay to the City an amount equal to five percent (5%) of gross pro -shop sales and service proceeds, private and semi -private lesson fees, tournament and other court rental fees, and fees charged for any other Concessionaire -organized events and programs held on City tennis courts or at other City facilities. 6.2 Time of Payment The Concessionaire shall pay the Concession Fee to the City, on a monthly basis, in no event, later than the twentieth day of the month for concession fees due from the previous month 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" and shall be mailed or personally delivered to the Recreation Administrator of Sports, 413 S. Bryan, Fort Collins, CO, 80521. ARTICLE 7 - Services to be Provided by the City 7.1 See Exhibit A, Scope of Work ARTICLE 8 - Acceptance and Trade Fixtures 8.1 Acceptance Concessionaire accepts the Concession Space "as is." 8.2 Installation of Equipment and Trade Fixtures No equipment or trade fixtures and other personal property used by Concessionaire in its business, whether or not attached to the concession space at Rolland Moore Park or any Improvements thereon, shall be installed without the prior written approval of the City. 8.3 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 and equipment subject to any valid lien the City may have thereon for unpaid rents. 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. 8.4 Applicable Law All trade fixtures or equipment installed by Concessionaire pursuant to this Section shall be subject to and conform in all respects to the applicable statutes, ordinances, building codes, 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: 14.1.3 To make structural additions and alterations. 14.1.4 For any other lawful purpose. 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 part of the Concession Space housing the vending machines 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, their officers, employees, agent or Concessionaires, 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 ten (10) working days after notice from City of such nonpayment. 15.1.2 Concessionaire's failure to maintain the insurance required above. 7 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 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 taking of possession of the Concession Space, or any portion thereof, or all or substantially all of the assets of Concessionaire by virtue of any attachment, execution or levy of any judicial process in any action instituted against Concessionaire in any court of competent jurisdiction and the failure of Concessionaire to secure the release of such attachment, execution or levy within sixty (60) days from the date of the taking of such possession. 15.1.7 The assignment by Concessionaire of its assets for the benefit of creditors. 15.2 City's Remedies on Default. 15.2.1 In the event of a default by Concessionaire, the City may terminate this Agreement by notice in writing to Concessionaire. In the alternative, the City may elect to keep the Agreement in force and work with Concessionaire to cure the default. If this Agreement is terminated, Concessionaire's liability to City for damages and rent shall survive the termination, and the City may re-enter, take possession of the Concession Space and remove any persons or property by legal action or by self-help with the use of reasonable force and without liability for damages. 15.2.2 Following re-entry or abandonment, City may make arrangements for use of the Concession Space by others and in that connection may make any suitable alterations or refurbish the Concession Space, but City shall not be required to make such arrangement for any use or purpose 15.3 Rights and Remedies Reserved. It is understood and agreed that any rights and remedies reserved pursuant to this Article are in addition to any other rights or remedies the City 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.