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Home My WebLink AboutMULTI - CONTRACT - RFP - 7423 OUTDOOR MOBILE VENDING SERVICES - DOWNTOWN ZO (3)OUTDOOR MOBILE VENDING SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 24th day of September, 2012, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation (City), and Primal Echo LLC (Concessionaire). WITNESSETH WHEREAS, the City Council passed Ordinance No. 058,2012, establishing the Downtown Zone District 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 Zone District including approved public parking lots-, and WHEREAS, the City agrees to grant to the Concessionaire and the Concessionaire accepts from the City a concession for outdoor vending at: Lot # 4 - Creamery Lot, 222 LaPorte Avenue 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, and C 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 September 24, 2012 until September 5, 2013, 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 Outdoor Mobile Vending Services Agreement Page 1 of 13 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 of Fort Collins James B. O'Neill II, CPPO, FNIGP Director of Purchasing &Risk Management Date: Z 5 112� Outdoor Mobile Vending Services Agreement Concessionaire: Primal Echo LLC By. Print Name: O N Rk� Title: � N&A- Date: 01 L Page 10 of 13 EXHIBIT "A" SITE MAP Downtown Concession Agreement Vending Locations Off-street Sites r K LOW lR3'-`�� obi' - Maple St f a N PIN i�scw 4 [ dl;i v-.E S LaPorte Ave �6..p c�''ti�fE �I •�'' t..t'w� 4 h'�i �a�r ��*i"�y.':` 11 � � � ,, s'� 1. +') ��:_ °x ti�4 ti". y'� ♦ ! i R` '.., hk to M > E f �'. N ' `, v1 r `4I I � � 0 N Z PAnfj f { 4'F " y 1 y + s' rr Q c 47 Outdoor Mobile Food Vendor Locations Public Lots (1 Mobile Food Truck/Pushcart per Lot) 1 - City Hall South Lot 3 - Olive and Mathews Lot 2 - 215 North Mason St City -owned Lot (173 Mobile Food Trucks/Pushcarts) 4 - Creamery Lot Existing Pushcart Sidewalk Sites Outdoor Mobile Vending Services Agreement E Mountain Ave / E Oak St M Downtown Zoning District `rtof Collins July 25, 2012 Page 11 of 13 EXHIBIT "B" INSURANCE REQUIREMENTS 1. The Service Provider 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 Service Provider 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 Service Provider, 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 Service Provider under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on the Service Provider'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 Service Provider shall maintain during the life of this Agreement for all of the Service Provider's employees engaged in work performed under this agreement: 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 Service Provider 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 Service Provider 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. Outdoor Mobile Vending Services Agreement Page 12 of 13 EXHIBIT "B" INSURANCE REQUIREMENTS 1. The Service Provider 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 Service Provider 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 Service Provider, 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 Service Providerunder this Agreement. The City, its officers, agents and employees shall be named as additional 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 Service Provider shall maintain during the life of this Agreement for all of the Service Provider's employees engaged in work performed under this agreement: 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 Service Provider 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 Service Provider 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. Outdoor Mobile Vending Services Agreement Page 12 of 13 EXHIBIT C AFFIDAVIT PURSUANT TO C.R.S. 24-76.5-103 I, Wh ftk AJ , swear or affirm under penalty of perjury under the laws of the State Colorado that (check one): I aml,a United States citizen, or am a Permanent Resident of the United States, or I am lawfully present in the United States pursuant to Federal law. I understand that this sworn statement is required by law because I have applied for a public benefit. I understand that state law requires me to provide proof that I am lawfully present in the United State I prior to receipt of this public benefit. I further acknowledge that making a false, fictitious, or fraudulent statement or representation in this sworn affidavit is punishable under the criminal laws' of Colorado as perjury in the second degree under Colorado Revised Statute 18- 8-503 and it shall constitute a separate criminal offense each time a public benefit is fraudulently received. Signature Outdoor Mobile Vending Services Agreement R -Lo .0 Date Page 13 of 13 Client#: 51254 PRIEC ACORD. CERTIFICATE OF LIABILITY INSURANCE D06/o6zo12 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Flood & Peterson Ins., Inc. P. O. Box 578 Greeley, CO 80632 970 356-0123 CONTACT NAME: Nicole Koehn PHONE 970 506.3286 FAX N Elt AIC, No : 9703301867 tAIC, ADDRESs: nicole.koehn@floodandpeterson.com PRODUCER CUSTOMER ID #: INSURER(S) AFFORDING COVERAGE NAIC # INSURED Primal Echo, LLC 305 W. Magnolia, #285 Fort Collins, CO 80521 INSURER A: Auto -Owners Insurance Group INSURER B: INSURERC: INSURER D : INSURER E : INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW 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. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. R LT TYPE OF INSURANCE N DL VD POLICY NUMBER POLICY EFF MWDD/YYYY) POLICY EXP (MMIDWOOM LIMITS A GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS-MADEOCCUR 1023327463697411 11/19/2011 11/19/2012 EACHOCCURRENCE $1000000 DAMAGE TO RENTED PREMISES Ea occurrence s300,000 MED EXP (Any one person) $10,000 PERSONAL &ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- LOC PRODUCTS-COMP/OP AGG $2,000,000 $ AUTOMOBILE LIABILITY ANY AUTO ALLOWNEDAUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS COMBINED SINGLE LIMIT (Ea accident) $ BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ MBRELLA LIAR XCESS LIAB OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ I EDUCTIBLE ETENTION $ $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y I N ANY PROPMETOR/PARTNER/EXECUTNE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below NIA WC STATU- OTH- E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space Is required) Certificate holder is included as Additional Insured as required by written contract with respects to liability arising out of work performed by the named insured. City of Fort Collins Purchasing Division P O Box 580 Fort Collins, CO 80522 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE .G�dlly .t7 0 e2oGae� ACORD 25 (2009/09) 1 of 1 #S700190/M653663 01988-2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD NCK 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 cannot 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 for outdoor mobile vending services in the Downtown Zone District (per attached Exhibit A) described as: Lot # 4 - Creamery Lot, 222 LaPorte Avenue, The Concessionaire shall have the 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 Finance Department. 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 Outdoor Mobile Vending Services Agreement Page 2 of 13 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 immediately, in the initial term, and 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 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 attached 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 Outdoor Mobile Vending Services Agreement Page 3 of 13 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. Mobile Food Truck or Pushcart: The Concessionaire will be required to have a mobile food truck or pushcart as defined in the Outdoor Vendor Ordinance, 058,2012, effective July 27, 2012. The design and appearance of the mobile food truck or pushcart 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 mobile food truck or pushcart. The mobile food truck or pushcart is subject to inspection by City. The mobile food truck or pushcart must be maintained and repaired to the City's satisfaction. The mobile food truck or pushcart must be removed from the site 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 mobile food truck or pushcart. A tarp or other protective medium must be placed to protect underlying surface. Mobile food truck or pushcart must be located in approved location on site and cannot impede vehicular or pedestrian flow. J. Cleanliness: Concessionaire shall keep the concession area clean of all trash within 100 foot radius of lot site. Food concessionaires must use a tarp under the pushcart or if a mobile food truck, under the serving area to minimize grease deposits and spillage. Concessionaire shall pay a clean-up fee of Twenty -Dollars ($20.00) per month for their assigned lot site. Clean-up fee subject to change during term of agreement based on frequency required with at least thirty (30) days' notice to the Concessionaire. Outdoor Mobile Vending Services Agreement Page 4 of 13 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: Portable generators will be permitted. 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: 10:00 a.m. to 2:00 p.m., Monday - Wednesday. 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 special events in the Downtown Zone District in which the public parking lot would be utilized as part of the event venue. Contact the Fort Collins Downtown Business Association (DBA) at (970) 484-6500 or the event promoter with inquires for a site at their event. Outdoor Mobile Vending Services Agreement Page 5 of 13 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 any time 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 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 Outdoor Mobile Vending Services Agreement Page 6 of 13 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: Concessionaire: City of Fort Collins Primal Echo LLC Purchasing Division Attn: Anna Arias P.O. Box 580 305 W Magnolia Street #285 Fort Collins, CO 80522 Fort Collins, CO 80521 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. Outdoor Mobile Vending Services Agreement Page 7 of 13 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 a -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 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. Outdoor Mobile Vending Services Agreement Page 8 of 13 C. 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: 1. 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. F. 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. Outdoor Mobile Vending Services Agreement Page 9 of 13