HomeMy WebLinkAboutFORT COLLINS WATER ICE - CONTRACT - RFP - P890 DOWNTOWN CONCESSIONAIREDOWNTOWN CONCESSION AGREEMENT
THIS AGREEMENT is made and entered into this 28th day of May, 2004, by and between THE
CITY OF FORT COLLINS, COLORADO, a Municipal Corporation (City), and Fort Collins Water
Ice (Concessionaire).
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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 # 7 — Public ROW, NW Corner of Mountain Ave. and Mason St. Intersection, For Dav
& 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 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, 2005, 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 # 7 — Public ROW, NW Corner of Mountain Ave. and Mason St. Intersection,
concession area (per Exhibit A) For Day and Night 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 one (1) 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 (1) copy of
a certificate evidencing the insurance coverage required from an insurance company
acceptable to the City.
G. Signage: All signs on the concession cart must be approved by the City. Signs may
be displayed in or on the cart only unless additional signage is approved by City staff.
H. Cart : The Concessionaire will be required to have a mobile cart. The cart may not
exceed the size of four (4) foot wide, ten (10) foot long and eight (8) foot high, excluding
roof overhangs and wheels. The design and appearance of the cart must conform to the
specifications described in Concessionaire's proposal, unless otherwise agreed to in writing
by the parties before the cart may be used at the concession area. The City reserves the
right to approve any modifications, changes, or alternative cart. The cart is subject to
inspection by City. The cart must be maintained and repaired to the City's satisfaction.
The cart must be removed from the right-of-way when not in use.
I. Restrictions: Equipment such as tables, chairs, benches and displays not attached to
the cart may not be used except for items & equipment authorized, in writing, by the City
Representative. Merchandise must be restricted to the cart or appropriate storage
containers if authorized. Vendor area must not exceed 10 X 10 feet, excepting only a tarp
or other protective medium placed to protect underlying surface. Cart must be located in
approved location on site and cannot impede pedestrian flow on the sidewalk.
J. Cleanliness: Concessionaire shall supply a trash receptacle and keep the
concession area clean of all trash within 100 foot radius of site. Food vendors must use a
tarp under cart to minimize grease deposits. Food and beverage vendors shall pay $720
annually or $65 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 $360 each, annually, or $32.50 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
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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:
Day - Two (2) to four (4) hours between 10am and 10pm, Monday thru 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. The products authorized are as described in Concessionaire's proposal and
agreed to by the City. The City will not pre -authorize new products but does reserve the
right to review any new products that may be added. This is to ensure that the new
products meet the same quality as those proposed in the original Request for Proposal.
Q. Blackout Dates. Concessionaire will not be allowed to operate in granted site during
the following special events in the downtown area: Old Town Car Show, Colorado Brewers
Festival and New West Fest. Dates for 2004 are June 5", June 26th, June 27`h, August 215`
and August 22"d. Contact the Downtown Business Association (DBA) at (970) 484-6500 to
receive an application for a site at these events, and event dates for subsequent years of
this contract. The DBA will work with concessionaires regarding the location of the site and
a discounted booth rate.
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.
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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 three (3) 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:
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City: Concessionaire:
City of Fort Collins Fort Collins Water Ice
Treasury Division of Finance Attn: Stephen J. Grant
PO Box 580 605 S. Meldrum #A2
Fort Collins, CO 80522 Fort Collins, CO 8051
K. Notwithstanding the time periods contained herein, the City may terminate this
Agreement at any time without cause by providing written notice of termination to the
Concessionaire. Such notice shall be delivered at least fifteen (15) days prior to the
termination date contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid
and sent to the above address.
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:
Ja es . O'Neill II, CPPO, FNIGP
Dir or of Purchasing and Risk Management
Date: 2-7
Concessionaire:
Fort Collins Water Ice
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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.
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