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HomeMy WebLinkAboutWINEKREP LLC DBA I RELISH U - CONTRACT - RFP - P1020 DOWNTOWN CONCESSIONAIREDOWNTOWN CONCESSION AGREEMENT THIS AGREEMENT is made and entered into this 15` day of May, 2009, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation (City), Winekrep, LLC dba I Relish U of Colorado (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 #1- Mountain & College intersection, southeast of Beau Jo's on East Mountain by newspaper stands. For day 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, 2010, 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 two (2) additional one year terms. 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. 1 Section 3. Concession Operations The City hereby grants Concessionaire a concession for the use of the property described as: Site #1- Mountain & College intersection, southeast of Beau Jo's on East Mountain by newspaper stands concession area (per Exhibit A) for day use only outdoor vending. The Concessionaire shall have the exclusive right to operate an outdoor vending concession with 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 -Twenty -Dollars ($120) per site per year, plus three (3) 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. The $120 annual fee is due June 6, 2008, in the initial term, and June 1s' any renewal term. Monthly payments shall be paid to the City Sales Tax Office prior to the 10th of each month for every month the agreement is in force. 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 attorney's 2 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, P.O. 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 keep the concession area clean of all trash within 100 foot radius of site. Food concessionaires must use a tarp under cart to minimize grease deposits and pay site cleaning fee. Concessionaire shall pay Eighty -Five Dollars ($85.00) per month cleaning fee for power washing of the site granted. If concessionaire is at site which is split between day and night operations with another food and beverage concessionaire, the concessionaire shall pay '/2 of above cleaning fee 42.50 . Cleaning fee subject to change during term of agreement based on frequency required with at least thirty (30) days notice to the Concessionaire. 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. 3 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 11:00am and 6:OOpm Tuesday thru Saturday. 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 2009 are June 13tn, June 27tn and June 28tn and August 15tn and 16tn. 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. 1 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 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. 5 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: Concessionaire: City of Fort Collins Winekrep, LLC dba I Relish U of Colorado Purchasing Division Attn: William C. Bagnuolo P.O. Box 580 415 Buckeye Street Fort Collins, CO 80522 Fort Collins, CO 80524 K. Notwithstanding the time periods contained herein, either party may terminate this Agreement at any time without cause by providing written notice of termination to the other party. 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. Section 6. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Service Provider represents and agrees that: a. As of the date of this Agreement: 1. Service Provider does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. Service Provider will participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the "e-Verify Program") or the Department Program (the "Department Program"), an employment verification program 0 established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. b. Service Provider shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. C. Service Provider is prohibited from using the e-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. d. If Service Provider obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Service Provider shall: Notify such subcontractor and the City within three days that Service Provider has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Service Provider shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e. Service Provider shall comply with any reasonable request by the Colorado Department of Labor and Employment (the "Department") made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. If Service Provider violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Service Provider shall be liable for actual and consequential damages to the City arising out of Service Provider's violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Service Provider violates this provision of this Agreement and the City terminates the Agreement for such breach. Section 7. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit "C" Affidavit Pursuant to C.R.S. 24-76.5-103, consisting of one (1) page, attached hereto and incorporated herein by this reference. This is for unincorporated concessionaires. City: Concessionaire: City of Fort Collins Winekrep, LLC By: C. By: J Jame B O'Neill II, PPO, FNIGP Dire t of Purchasing and Risk Management Print Name ILL c. �11GNu0 0/ Date: Z 7 Title: Date: r% It 7/6/2009 2:18 PM FROM: Faa Welsh In.s. PVIS, Inc. TO: 2216707 PAGE: f01 OF 001 CERTIFICATE OF LIABILITY INSURANCE DATE PRODUCER Welsh Insurance Agency, Inc. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION 4033 Boardwalk Drive, Suite #200 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Fort Collins, CO 80525 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Phone (970)206-1810 Fax (970)206-1808 INSURERS AFFORDING COVERAGE NAIC it INSURER A: AUTO -OWNERS INS. CO. INSURED Winekrep, LLC DBA I Relish U of Colorado 415 Buckeye St. Fort Collins. CO 80524- INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADD'L INSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MMIDDIYYYY) POLICY EXPIRATION DATE (MMIDDIYYYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE 1,000,000 © COMMERCIAL GENERAL LIABILITY PENDING 07/06/2009 07/06/2010 PREMISES Ea occurrence 300,000 A ❑ ❑ ❑ CLAIMS MADE ❑� OCCUR ❑ MED EXP (Any one person) 10,000 PERSONAL & ADV INJURY 1,000,000 GENERAL AGGREGATE 2,000,000 ❑ PRODUCTS - COMP/OP AGG 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: © POLICY [:]PROJECT ❑ LOC AUTOMOBILE LIABILITY ❑ ANY AUTO COMBINED SINGLE LIMIT (Ea accident) ❑ ❑ ALL OWNED AUTOS ❑ SCHEDULED AUTOS ❑ HIREDAUTOS ❑ NON OWNED AUTOS BODILY INJURY (Per person) BODILY INJURY (Per accident) ❑ PROPERTY DAMAGE (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT ❑ ❑ ANYAUTO ❑ OTHER THAN EAACC AUTO ONLY: AGG EXCESS I UMBRELLA LIABILITY EACH OCCURRENCE ❑ ❑ OCCUR ❑ CLAIMS MADE AGGREGATE ❑ DEDUCTIBLE ❑ RETENTION $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR / PARTNER / EXECUTIVE Y/N OFFICER/MEMBER EXCLUDED? WC STATU OTH- ElTORY LIMITS ❑ ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE (Mandatory in NH) Ifyes, describe under SPECIAL PROVISIONS below E.L. DISEASE- POLICY LIMIT OTHER DESCRIPTION OF OPERATIONS 1 LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS CONCESSIONAIRES CITY OF FORT COLLINS IS AN ADDITIONAL INSURED AS RESPECTS THE GENERAL LIABILITY ON AUTO -OWNERS ADDITIONAL INSURED ENDORSEMENT 55202. _' I-- """'"` t:ANt:tLLA I IVN City of Fort Collins - PURCHASING DEPARTMENT PO Box 580 Fort Collins, CO 80522 fax 221.6707 -...v..v �.r i I SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE U 1999-2009 ACORD CORPORATION. All tights reserved. 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