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HomeMy WebLinkAboutTHE RHYTHM COMPANY OLD TOWN PEDICAB COMPANY - CONTRACT - RFP - P890 DOWNTOWN CONCESSIONAIREDOWNTOWN CONCESSION AGREEMENT THIS AGREEMENT is made and entered into this 30th day of March, 2004, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation (City), and The Rhythm Company, Inc., doing business as OLD TOWN PEDICAB COMPANY (Concessionaire). WITNESSETH WHEREAS, the City Council passed Ordinance No. 36, 1994, establishing the Downtown Plan Area as a concession area for the sale of goods and services from outdoor locations; and WHEREAS, the City has established various concession locations in the Downtown Plan Area; and WHEREAS, the City agrees to grant to the Concessionaire and the Concessionaire accepts from the City a concession for outdoor vending at: Site # 12 — Loading Zone, Mountain Avenue entrance to Old Town Square. For Day and Night use. NOW THEREFORE, in consideration of the mutual covenants and obligations herein expressed, the parties agree as follows: Section 1. Contract Documents The contract documents consist of this Agreement and Exhibits A & B which are incorporated herein by this reference. These form the contract, and are incorporated herein by this reference. Section 2. Terms of the Agreement A. This Agreement shall be effective from the date of the Agreement as entered above, until May 31, 2004, unless sooner terminated as herein provided. The City may, at its option, renew the Agreement for additional one (1) year terms, to a maximum of three (3) additional one year terms. However, either party may terminate this Agreement without cause, by providing written notice to the other party of its intention to terminate at least thirty (30) days prior to the end of the then existing term. B. In the event that the concession location can not be used because of improvements being made at the concession location, this Agreement may be suspended on 30 days notice to the Concessionaire. The suspension shall continue until the improvements are completed or it is determined that the location can no longer be used as a concession site. The City will use a good faith effort to relocate the concession site if needed. Section 3. Concession Operations The City hereby grants Concessionaire a concession for the use of the property described as: Site # 12 — Loadina Zone, Mountain Avenue entrance to Old Town Square concession area (per Exhibit A) for Day and Night use outdoor vending. The Concessionaire shall have the exclusive right to operate an outdoor vending concession within this area in accordance with the agreement. A. Independent Contractor: The services to be performed by the Concessionaire are those of an independent contractor and not as an employee of the City. The City shall not be responsible for withholding any portion of Concessionaire's compensation hereunder for the payment of FICA, Worker's Compensation or otherwise. B. Records: The Concessionaire shall keep adequate and proper business records of all expenses and receipts of the concession operations. At the request of the City, all such business records shall be made open and available for inspection and audit by the City of Fort Collins Treasury Division. C. Monetary Provision: The Concessionaire agrees to pay the City an amount equal to One Hundred and Twenty Dollars ($120.00) per year, plus zero (0) percent of gross receipts from the concession operations conducted pursuant to this Agreement. Gross receipts shall include all revenues, excluding sales tax received by the concessionaire from concession operations. All such gross receipt payments shall be paid to the City on the same day that sales and use tax payments are due. However, the payments for the concessions must be submitted separately. D. Licenses: The Concessionaire shall obtain and pay for all licenses needed for the operation of the concession including, but not necessarily limited to, a County Health Department Food Services establishment inspection, City and State sales tax licenses. Any such licenses held specifically by the Concessionaire in connection with this Agreement shall be surrendered by the Concessionaire at the time of termination of this Agreement. E. Laws, Rules & Regulations: The operation of the concession granted under this Agreement shall, at all times, conform with all applicable Federal, State, and local laws and with all applicable rules and regulations adopted by the City or any of its Boards or Departments. F. Insurance/indemnity: The Concessionaire shall indemnify, save and hold harmless the City from all claims and losses, including costs and reasonable attorneys fees arising directly or indirectly out of the Concessionaire's use of the concession area or operation of the concession. The Concessionaire shall maintain commercial liability insurance in the amount of $500,000 combined single limits naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit B. The Concessionaire before commencing services hereunder, shall deliver to the City's Director of Purchasing and Risk Management, PO Box 580, Fort Collins, CO 80522 one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. G. Signage: All signs on the concessionaire pedicab must be approved by the City. Signs may be displayed in or on the pedicab only unless additional signage is approved by City staff. H. Pedicab: The design and appearance of the pedicab must conform to the specifications described in Concessionaire's proposal, unless otherwise agreed to in writing by the parties before the pedicab may be used at the concession area. The City reserves the right to approve any modifications, changes, or alternative pedicab. The pedicab is subject to inspection by City. The pedicab must be maintained and repaired to the City's satisfaction. The pedicab must be removed from the right-of-way when not in use. I. Restrictions: Equipment such as tables, chairs, benches and displays may not be used except for items & equipment authorized, in writing, by the City Representative. J. Cleanliness: Concessionaire shall keep the concession area clean of all trash. Food vendors must use a tarp under cart to minimize grease deposits. Food and beverage vendors shall pay $500 annually or $45 per month for power washing of their assigned vending site. The annual payment shall be due prior to June 1 in the initial term or any renewal term. Monthly payments shall be paid to the City Sales Tax Office prior to the 10`h of each month for every month the agreement is in force. Vendors at sites which are split between day and night operations shall pay $250 each, annually, or $22.50 per month. K. Sales Tax Returns: All sales tax returns and concessionaire payments to the City associated with the concession operation must be filed by their due date. No assessment fees, penalties or interest will be waived by the City. L. Power Source: If the Concessionaire needs electrical power the Concessionaire must provide for such power through the City Light & Power Department at the Concessionaire's expense. Arrangements to supply power to the concession area must be reviewed with the appropriate City departments. Portable generators will not be permitted due to concerns regarding compatibility and noise. M. Stock: The Concessionaire shall maintain an adequate stock of supplies on hand for all occasions in order to supply the need of parties desiring to patronize the concession area. N. Hours: The Concessionaire must keep the concession area open for business as directed by the City. Days of operation shall be agreed to by both parties and the minimum hours of operation must be maintained. Minimum hours are: Two (2) to four (4) hours between 12:OOp.m. and 2:30a.m. per day (Thursday — Sunday). Concessionaire is not required to operate on national holidays or holidays recognized by the City where City offices (except for emergency services offices) are closed. O. Inclement Weather: The Concessionaire shall not be required to operate the concession when it is raining, snowing, hailing, and abnormally windy or when the air temperature is below 50 degrees Fahrenheit. P. Product/Service: The products/services authorized are those described in Concessionaire's proposal and agreed to by the City. The City will not pre -authorize new products/services but does reserve the right to review any new products/services that may be added. This is to ensure that the new products/services meet the same quality as those proposed in the original Request for Proposal. Section 4. General Conditions A. The Concessionaire shall neither assign any of the rights nor delegate any of the duties under the provisions of this Agreement without having first obtained the written permission of the City. The Concessionaire shall not sublet any portion of the concession area or allow any other person to take possession of any portion of the concession areas without the written consent of the City. B. Vacant sites resulting from either no -bid or termination may be filled at anytime for the duration of the current one (1) year period. Responsible parties will be awarded vacant sites as acceptable proposals are received. The city may, at its option, renew the Agreement for the formerly vacant sites for additional one (1) year periods not to exceed the balance of the four (4) additional periods remaining for this Agreement. C. This Agreement may not be enlarged, modified or altered except in writing, signed by the parties as an amendment hereto. D. No waiver of any breach of this Agreement shall be held or construed to be a waiver of any subsequent breach thereof. E. It is expressly understood and agreed by and between the parties hereto that in the performance of the terms and conditions of this Agreement, time is of the essence. F. The location assigned is not transferable to another vendor or concessionaire. G. Fixtures and Improvements: 1. The Concessionaire agrees that all auxiliary equipment needed to operate the Concession shall be installed at its expense. Prior to making any and all improvements on said premises, the Concessionaire agrees to obtain the approval of the appropriate City Department and shall supervise the construction of said improvements. 2. Upon the termination of this Agreement the Concessionaire shall remove any fixtures or improvements made by it to the concession area. However, the concession area must be restored to as good a condition as the premises were in at the time the Concessionaire took possession thereof. H. This Agreement shall be binding upon and inure to the benefit of the heirs, successors, and assigns of the parties hereto. I. If either party must resort to legal action to enforce the terms of this Agreement, the prevailing party shall be awarded its costs and reasonable attorney's fees J. Any notice required or desired to be given under this Agreement will be considered delivered to the other party upon hand delivery or upon its deposit in the United States mail, postage prepaid, sent by registered mail, addressed to the other party at the following address: City: City of Fort Collins Treasury Division of Finance PO Box 580 Fort Collins, CO 80522 Concessionaire: The Rhythm Company, Inc. dba Old Town Pedicab Company 320 Smith St. Fort Collins, CO 80524 Section 5. Default A. The Concessionaire shall be in default under the terms and conditions of this Agreement, if the Concessionaire fails to cure the default within ten (10) days after written notice setting forth the nature of the default is delivered to the Concessionaire. B. In the event the default is not timely cured, the City may elect to (a) terminate this Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or (c) avail itself of any other remedy at law or equity. City: Concessionaire: By: By:_ James B. O'Neill II, CPPO, FNIGP Director of Purchasing and Risk Management Title: Date: Date: k= ri-i • I P, 0 ANUME"T., i s NOSVW IS 341 IRIN IM I IS NOSVW N EXHIBIT B INSURANCE REQUIREMENTS 1. The Concessionaire will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Concessionaire shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: "The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10) days written notice has been received by the City of Fort Collins." In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Concessionaire, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Concessionaire under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on the Concessionaire's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Concessionaire shall maintain during the life of this Agreement for all of the Concessionaire's employees engaged in work performed under this agreement: 1. Workers' Compensation insurance with statutory limits as required by Colorado law 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General & Vehicle Liability. The Concessionaire shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $500,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Concessionaire shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance.