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HomeMy WebLinkAboutRFP - 7608 SNACK BAR CONCESSIONAIRE - CITY PARK POOLRFP 7608 Snack Bar Concessionaire – City Park Pool Page 1 of 47 REQUEST FOR PROPOSAL 7608 SNACK BAR CONCESSIONAIRE- CITY PARK POOL The City of Fort Collins is hereby requesting proposals from qualified firms or individuals to manage and operate the City Park Pool snack bar concession located at 1599 West City Park Drive, Fort Collins, CO 80521. Proposals submission via email is preferred. Proposals shall be submitted in Microsoft Word or PDF format and e-mailed to: purchasing@fcgov.com. If electing to submit hard copy proposals instead, five (5) copies, will be received at the City of Fort Collins' Purchasing Division, 215 North Mason St., 2nd floor, Fort Collins, Colorado 80524. Proposals will be received before 3:00 p.m. (our clock), April 4, 2014. Mark with Proposal 7608. If delivered, they are to be sent to 215 North Mason Street, 2nd Floor, Fort Collins, Colorado 80524. If mailed, the address is P.O. Box 580, Fort Collins, 80522-0580. The City encourages all disadvantaged business enterprises to submit proposals in response to all requests for proposals and will not be discriminated against on the grounds of race, color or national origin. A Pre-Proposal Meeting will be held at the City Park Pool facility on March 24, 2014 at 10:00 a.m. The City will allow you to examine the snack bar premises at that time and answer any questions pertaining to the proposal. The meeting is not mandatory, but strongly suggested. If you plan on attending, you must R.S.V.P. no later than 5:00 p.m. on March 20, 2014 to Jill Wilson, Buyer, at (970) 221-6216 or jwilson@fcgov.com. Questions concerning the scope of the project should be directed to the Project Manager, Mike McDonnell, Recreation Manager, phone (970) 221-6337, email: mmcdonnell@fcgov.com. Questions regarding proposal submittal or process should be directed to Jill Wilson, Buyer, phone (970) 221-6216, email: jwilson@fcgov.com. The deadline for submitting questions is on March 28, 2014. Please submit your questions via email to the Project Manager, Mike McDonnell, with a copy to Jill Wilson. A copy of the Proposal may be downloaded from the BuySpeed Webpage at: www.fcgov.com/eprocurement Financial Services Purchasing Division 215 N. Mason St. 2nd Floor PO Box 580 Fort Collins, CO 80522 970.221.6775 970.221.6707 fcgov.com/purchasing RFP 7608 Snack Bar Concessionaire – City Park Pool Page 2 of 47 Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall have a financial interest in the sale to the City of any real or personal property, equipment, material, supplies or services where such officer or employee exercises directly or indirectly any decision-making authority concerning such sale or any supervisory authority over the services to be rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift, gratuity favor, entertainment, kickback or any items of monetary value from any person who has or is seeking to do business with the City of Fort Collins is prohibited. Collusive or sham proposals: Any proposal deemed to be collusive or a sham proposal will be rejected and reported to authorities as such. Your authorized signature of this proposal assures that such proposal is genuine and is not a collusive or sham proposal. The City of Fort Collins reserves the right to reject any and all proposals and to waive any irregularities or informalities. Sincerely, Gerry S. Paul Director of Purchasing & Risk Management RFP 7608 Snack Bar Concessionaire – City Park Pool Page 3 of 47 REQUEST FOR PROPOSAL 7608 SNACK BAR CONCESSIONAIRE- CITY PARK POOL I. Scope of Services Background information The City of Fort Collins (City) is the owner and operator of the City Park Pool (CPP) located at 1599 West City Park Drive, Fort Collins, CO 80521. The premises are defined as the concession area at City Park Pool. In connection with the operation of this facility, the City has established a snack bar area. The Recreation Department manages the facility for the City, and desires to grant to a food and beverage Concessionaire the use of the concession area for the purpose of offering quality food and non-alcoholic beverage services primarily to the swimmers using the CPP for the 2014 season. The selected Concessionaire will provide all employees necessary to facilitate the full and efficient use and management of the concession operations as described; and the Concessionaire owns and sells the food and beverages, as well as related merchandise and services. The City Park Pool concession area is a seasonal operation that commences Memorial Day weekend and concludes Labor Day weekend. The History City Park Pool (CPP), the only outdoor public pool in Fort Collins, is also the only water park facility in the City. The pool boasts a 77-foot speed slide and a 228-foot leisure slide (both structures added in 2006), as well as a lazy river, separate wading pool, zero-depth entry, water play structures and geysers and sprays. The Concession Historically, the CPP concessions menu included items that you would find at a typical concession stand at a sporting event. The menu includes but is not limited to: popcorn, hot dogs, corn dogs, pizza, pretzels, nachos, burgers, chicken sandwiches and chicken fingers, ice cream products, bagels, soups, power and/or granola bars. The City would like to expand on healthier options, including products like yogurt, fruit cups and vegetables. Beverages can include coffee, ice tea, juices, soft drinks, energy and/or power drinks, bottled water, and vitamin water. However, a new philosophy on menu items, or the concession theme, can be submitted and will be considered. The City recommends the Concessionaire incorporate the Dietary Guidelines for Americans, as outlined on www.health.gov/dietaryguidelines. The Dietary Guidelines encourage Americans to focus on eating a healthy diet — one that focuses on foods and beverages that help achieve and maintain a healthy weight, promote health, and prevent disease. The City encourages the use of disposable cups, plates, napkins and eating utensils that are either compostable or recyclable. The proposal must include a description of the products for sale and estimated prices. Quality comparisons, statements, pictures and/or brochures are requested to review the quality and suitability of the products. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 4 of 47 The Concessionaire must also assume and perform all janitorial/busing duties and functions in, and around, the concession area. This would include breaking down and recycling all cardboard boxes in the recycle bins and taking trash to the dumpsters located on the west side of City Park Pool. Specifications Included in the “Request for Proposals” package is a draft copy of the Agreement that the Concessionaire and the City will sign upon award. All of the elements of the Agreement are considered as part of the specifications for the proposals requested. The following specifications outline the major provisions of the City Park Pool concession area, as well as defines and provides clarification of several specific points. 1. The Concessionaire and the City shall sign an agreement which will grant to the Concessionaire the operation of City Park Pool Concessions. The Agreement shall commence upon the date of execution shown on the signature page of the Agreement and shall continue in full force and effect for one (1) year. In addition, the Agreement may be extended for an additional one (1) year period with up to four (4) additional one (1) year extensions. 2. The concession area must be opened for business the following hours, but may vary at the City’s sole discretion due to special events: City Park Pool Concessions Monday -Friday 10:00 a.m. - 8:00 p.m. Saturday/Sunday 10:00 a.m. - 5:30 p.m. 3. The Concessionaire shall not be required to operate the concession area when the City Park facility is closed due to bad weather or other reasons. Any other hours of operation will be mutually agreed upon between the Concessionaire and the Recreation Manager. 4. The ideal Concessionaire should have previous experience operating a similar concession operation or demonstrate sufficient skills and experience to satisfy in the judgment of the City to meet this requirement. 5. The financial condition of the Concessionaire must be of such standing that adequate staffing, supplies and appropriate operational permits as necessary can be purchased/obtained in order to open the concession area for full business no later than May 24, 2014. Tangible proof of financial ability to operate this concession will be required if you are interviewed. 6. The Concessionaire must obtain and pay for all licenses and taxes necessary for the operation. The Concessionaire shall also provide and pay for liability insurance, Worker’s Compensation, payroll taxes including Social Security, sales taxes, and/or any other taxes that might be required by government authorities. Permits, Licenses, Fees, and Taxes It shall be the responsibility of the Concessionaire to apply for the necessary permits and licenses, and to pay for all fees and taxes in order to operate this concession. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 5 of 47 II. Additional Requirements 1. The Concessionaire shall control the conduct and demeanor of its agents and employees. Upon objection from the City concerning conduct or demeanor of any such person, the Concessionaire shall immediately take all lawful steps to address or remove the cause of the objection. Also, if the City so requests, the 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. 2. The Concessionaire acknowledges and agrees that certain services provided by the Concessionaire will require that employees and agents of the 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, the Concessionaire agrees that all employees and other representatives or agents of the Concessionaire in positions of trust, as defined, shall be screened using the City’s contractual background screening procedure, with such costs associated with said screenings to be fully paid by the Concessionaire. 3. The personal conduct of the Concessionaire and its staff has a direct impact on the quality of performance. Unacceptable personal conduct/behavior by the Concessionaire, as defined, may result in immediate or early termination of the Agreement, as also defined. 4. The Colorado Legislature passed legislation which has been signed into law by the Governor requiring compliance regarding employment of undocumented aliens. The Concessionaire acknowledges and agrees that those statutory provisions that apply will be followed. If there are any questions about these legal requirements, the Concessionaire agrees to consult with legal counsel. 5. The Concessionaire must maintain an adequate stock of supplies for concession, for all occasions, to supply patrons’ needs. The primary purpose of the concession area is to provide a service to the patrons. Creative thinking people who will be there and be ready and open for business are important to the success of this operation. Also, cooperation with the Recreation Manager is an essential element to the success of this operation. 6. The Concessionaire shall keep and maintain proper business records concerning every aspect of the concession operation and employee management, including expenses and receipts. All records, including Income Tax Records, are to be open for inspection and audit by the City. Also, the Concessionaire must submit to the City monthly complete operation records, as well as at the close of each operating season showing all expenses and gross income. 7. “Gross Sales” includes all revenues received by the Concessionaire for performing the concession service, except Sales Tax. Payments must be submitted monthly by the 15th of each month. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 6 of 47 8. The City pays for all trash and recycling services and utilities. The Concessionaire shall pay for all telephones, cash registers, POS Systems, credit card machines and expanded security systems. 9. The Concessionaire shall submit to the City for review a list of all prices and items which are to be sold at the concession area. Prices and items may be changed periodically, but any and all changes must be reviewed and approved by the Recreation Manager. 10. Smoking instruments, tobacco and alcohol products and glass containers of any kind will not be sold. Smoking is not permitted in any areas of the CPP, or within twenty (20) feet of entrances. 11. The Concessionaire agrees to indemnify and save harmless the City, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, result from or occurring in connection with the performance of any service hereunder. a. The Concessionaire shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. b. Without limiting any of the Concessionaire’s obligations hereunder, the Concessionaire shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit E, consisting of one (1) page, attached hereto and incorporated herein by this reference. The Concessionaire, before commencing services hereunder, shall deliver to the City's Director of Purchasing and Risk Management, P.O. Box 580 Fort Collins, Colorado 80522, one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. 12. The operation of the concession area granted under the agreement shall, at all times, conform with all applicable State and Federal laws and regulations and municipal ordinances, as well as all rules, regulations, policies and procedures, as adopted by City of Fort Collins or any of its Boards, Services Areas, Service Units or Departments. III. Concession Fee The Concessionaire will pay to the City a monthly concession fee of Eight-Hundred Dollars ($800.00) for exclusive use of the concession area. The City will consider other proposals which may include profit sharing and/or other creative financial arrangements to help offset operational costs incurred by the City. IV. Concession Revenue History Average annual gross revenue from years 2003 - 2009, when the City ran the concessions at CPP, was approximately $52,597.00. The approximate annual gross revenue for 2011 was $36,989. Previous revenues are no guarantee for future concession operation performance. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 7 of 47 V. Equipment Inventory As part of the concession site, the City currently owns and is responsible for the maintenance of certain equipment as described below. The Concessionaire must provide all other equipment/inventory and maintenance in order to successfully operate the concession area. 1. Equipment Inventory Lists - See Exhibit D. VI. Proposal Requirements 1. The following must be included in the proposal: a. Concessionaire experience and skills. b. Proposed Menu and Prices. c. Payments to the City. d. Contact person and assigned personnel information. e. How soon after award could Concessionaire be operational. f. Financial ability for providing services and products. 2. Also, Concessionaire finalists will need to provide the Recreation Manager with at least three (3) written references prior to the interview that the City may contact regarding qualifications. 3. The City will conduct a background screening procedure and the selected Concessionaire will need to provide signed authorization forms to allow the screening to proceed. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 8 of 47 VII. Review and Assessment Potential concessionaires will be evaluated on the following criteria. These criteria will be the basis for review of the written proposals and interview session. The City may, at its option, choose the highest ranked Concessionaire based on the written proposals or invite the top rated Concessionaires to interview. The rating scale shall be from 1 to 5, with 1 being a poor rating, 3 being an average rating, and 5 being an outstanding rating. WEIGHTING FACTOR QUALIFICATION STANDARD 2.0 Scope of Proposal Does the proposal show an understanding of the project objective? Address background and experience of the Concessionaire? The ability of the Concessionaire to operate as per the scope of the proposal? Assessment of food and beverage service needs at City Park Pool and how needs will be met? 1.0 Assigned Personnel Concessionaire’s qualifications to perform the services and qualifications required of staff on site? Ability to provide sufficient staff? 2.0 Quality and Suitability of Product, Menu Prices Does the proposal include a description of the products for sale and estimated prices? Include quality comparisons, statements, pictures and/or brochures? 1.0 Motivation Is the Concessionaire interested and are they capable of doing the work in the required time frame? 2.0 Payments to the City Include payment package to the City? Provide financial ability for providing services and products? 2.0 Firm Capability Does the Concessionaire have the support capabilities the assigned personnel require? Has the Concessionaire done previous verifiable projects of this type and scope? RFP 7608 Snack Bar Concessionaire – City Park Pool Page 9 of 47 VIII. Reference Evaluation (Top Ranked Firm) The Recreation Manager will check references using the following criteria. The evaluation rankings will be labeled Outstanding/Satisfactory/Unsatisfactory. If the references and background screenings are acceptable, an agreement will be awarded to the highest ranked firm/individual, subject to suitable contract negotiations. QUALIFICATION STANDARD Overall Performance Would you hire this firm/individual again? Did they show the skills required for this project? Did they show flexibility and willingness to “go the extra mile” to ensure that concession customers were given the appropriate amount and level of service? Timing Did the firm/individual fulfill hours of operation with sufficient products and staff? Were requests for information met in a timely manner? Completeness Was the firm/individual responsive to client needs; did they anticipate problems? Were problems solved quickly and effectively? Financial Did this firm/individual consistently demonstrate the financial ability to perform and make full payments to the agency on time? Job Knowledge Did this firm/individual possess the appropriate knowledge, skills and abilities, staff and resources to effectively operate a concession operation? Was the contract operated smoothly? Other What problems (if any) did you encounter with this firm/individual? RFP 7608 Snack Bar Concessionaire – City Park Pool Page 10 of 47 IX. Timetable The following is a proposed timetable developed for this project. You will be notified of any significant change: ITEM Pre- Proposal Meeting DATE March 24, 2014 Written follow-up questions due to the City March 28, 2014 Proposals due to the City April 4, 2014 Finalist Vendors notified Week of April 7, 2014 Finalist interviews (if required) Week of April 14, 2014 Selection of Successful Vendor Week of April 14, 2014 City Park Pool Opening Date May 24, 2014 RFP 7608 Snack Bar Concessionaire – City Park Pool Page 11 of 47 SNACK BAR CONCESSION AGREEMENT- CITY PARK POOL (For informational purposes, do not fill in or submit with proposal) This Concession Agreement, hereinafter called the "Agreement," is made and entered into as of the __ day of __, 2014 by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, hereinafter called "City," and, _________, hereinafter called "Concessionaire." ARTICLE 1 Concession Space 1.1 Definition of Concession Space. For the purposes of this Agreement, the "Concession Space" shall mean City Park Pool (CPP), 1599 West City Park Drive, Fort Collins, CO 80521. 1.1.1 The designated concession area located in City Park Pool. 1.2 Use of Concession Space. The Concessionaire shall have the use of the Concession Space for the purpose of offering food and non-alcoholic beverages, and related services primarily to swimmers and patrons at CPP. ARTICLE 2 Concessionaire's Use of City Park Pool and the Concession Space 2.1 In General. Subject to other limitations expressed in this Agreement, the City grants to Concessionaire the right to exclusive use of the Concession Space and the right to use in common with others the public areas of the Concession Space facilities in conjunction with its food and beverage operations (and for no other purpose) in such spaces and manner as may be prescribed by the City. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 12 of 47 2.2 Smoking. Smoking instruments and tobacco products of any kind will not be sold or otherwise supplied by Concessionaire at Concession Space facilities. Smoking is not permitted in any areas within twenty (20) feet of facility entrances. Concessionaire shall comply with any other requirements of applicable Fort Collins City ordinances and Colorado state law regarding smoking and tobacco products. 2.3 Restriction on Items Offered for Sale. Concessionaire may offer such non-food or non- beverage items as are incidental to its food and beverage service, except for smoking instruments, tobacco products and gum, pursuant to section 2.2. 2.4 Compliance with Applicable Law. The Concessionaire agrees to comply fully with all applicable state and federal laws and regulations and municipal ordinances, as well as all rules and regulations, policies, and procedures adopted by the City or any of its Boards, Service Areas, Service Units, Divisions or Departments having jurisdiction over City Park Pool. ARTICLE 3 Rights of Ingress and Egress 3.1 In General. The Concessionaire shall have the right of ingress and egress to and from City Park Pool and the Concession Space for Concessionaire's employees and agents 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 City Park Pool, presently or hereafter used as such, so long as a reasonable and safe means of ingress and egress remains available to Concessionaire. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 13 of 47 ARTICLE 4 Undertakings of Concessionaire 4.1 Service. Concessionaire agrees as follows: 4.1.1 The Concessionaire shall furnish and pay for all equipment, except as otherwise provided by the City pursuant to Article 9, all goods, labor, transportation, supervision and services necessary to provide food and beverage services in accordance with this Agreement. 4.1.2 Services provided by the Concessionaire shall include the maintenance of an adequate stock of food and beverage supplies, condiments, eating utensils, napkins, plates, cups, and any kitchen utensils necessary to serve the demand for such items at City Park Pool. The City encourages the use of disposable cups, plates, napkins and eating utensils that are either compostable or recyclable. 4.1.3 Concessionaire acknowledges the desire and obligation of the City to provide the public high quality food and beverages and a high level of public service. Therefore, the Concessionaire agrees to offer for sale from the Concession Space only good quality food and beverages at fair and competitive pricing, relative to comparable restaurant facilities in Fort Collins. If, in the opinion of the City, the pricing is not comparable, or the selection of items offered is inadequate or not of good quality, or if any of the items are found to be objectionable for display and/or sale in a public facility, then the pricing shall change or the items shall be removed or replaced as required by the City. The City Representative shall meet and confer with Concessionaire regarding such matters. However, Concessionaire acknowledges that the City's RFP 7608 Snack Bar Concessionaire – City Park Pool Page 14 of 47 determination as to the same shall be conclusive. Failure of Concessionaire to correct, rectify or modify its prices or quality within five (5) days of being advised in writing to do so shall be cause for default. 4.1.4 Concessionaire shall submit to the City for review a list of all items to be sold in the concession area, and proposed prices for all such items. The Concessionaire shall submit to the City in writing all subsequent item and price changes. 4.2 Hours of Operation. Subject to the exception for inclement weather, expressed in 4.2.1 below, the Concessionaire will be required to provide daily food and beverage services in the Concession Space at City Park Pool. 4.2.1 The parties agree that the hours of operation will conform to the hours listed under Specifications, item number two (2). However, the Concessionaire shall not be required to operate the concession when City Park Pool is closed due to bad weather or other reason as approved by the City. 4.3 Concessionaire Personnel. Concessionaire shall control the conduct and demeanor of its agents and employees. If the City so requests, the 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 of which shall be subject to prior and continuing approval of the City. 4.3.1 The Concessionaire agrees to provide to the City at all times a current list of employees 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 RFP 7608 Snack Bar Concessionaire – City Park Pool Page 15 of 47 and other representatives or agents 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, and other representatives or agents of the Concessionaire in positions of trust, as described in Exhibit A, consisting of two (2) pages and incorporated herein by this reference, shall be screened using the background screening procedure described on Exhibit A, at Concessionaire’s expense, 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/Request, Authorization, and Waiver form attached hereto as Exhibit B, consisting of one (1) page and incorporated herein by this reference. Concessionaire shall also provide to their employees a copy of the Summary of Rights under the Fair Credit Reporting Act attached hereto as Exhibit C, consisting of two (2) pages and incorporated herein by this reference. 4.3.2 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. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 16 of 47 4.3.3 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 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. 4.3.4 Upon receipt of written notice from the City of any reasonable 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 of the Concessionaire, the Concessionaire shall immediately take all lawful steps to remove or otherwise address to the City's reasonable satisfaction the cause of the objection or to remove such individual from the performance of any services provided hereunder. 4.3.5 The following constitute unacceptable personal conduct that the parties acknowledge and agree shall be subject to reasonable objection by the City. The parties acknowledge that other conduct not listed in this Section may be determined by the City to be reasonably expected to impair Concessionaire's ability to provide satisfactory services under this Agreement, and may also give rise to a reasonable objection by the City to which Concessionaire shall RFP 7608 Snack Bar Concessionaire – City Park Pool Page 17 of 47 be expected to respond as set forth herein. In the event that Concessionaire, or the individual site manager, if different from Concessionaire, commits any of the following examples of unacceptable conduct, or fails or refuses to take reasonable action to correct such conduct by any person providing services for or on behalf of Concessionaire hereunder, the City may give Concessionaire notice of violation and proceed in the manner as set forth in Section 16.1.9. A. Commission or conviction of a felony, or of any crime involving moral turpitude; B. Theft or misuse of City money or property; C. Harassment of, or discrimination against, any individual based on race, religion, national origin, age, sex, sexual orientation or disability; D. Falsification, unauthorized use or destruction of City records, reports or other data or information belonging to the City; E. Abusive or threatening treatment of any person, including, but not limited to physical or verbal confrontation; F. Using, consuming, possessing, having in the body or distributing alcohol (except in the normal performance of concession services) or controlled substances during working time; G. Destruction, loss or abuse of City property; H. Unauthorized use of City equipment or property for personal use; or I. Possessing or maintaining sexually explicit materials on City property. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 18 of 47 4.4 Statements, Recordkeeping and Audits. Concessionaire shall keep books and records of the business, including an accounting of all revenue and expenses of the concession operation, in accordance with good accounting practice and in such form as is satisfactory to the City. The Concessionaire hereby grants to the City the right to audit Concessionaire's books and records for its operation at City Park Pool and agrees to make available to the City, or its authorized representative, at any time, Monday through Friday inclusive, between the hours of 9:00 a.m. and 5:00 p.m., at the offices of the City or CPP, at the City's election, all records, books and relevant related information as may be required for audit purposes. 4.5 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 at City Park Pool. 4.6 Taxes. Concessionaire agrees to pay all local, state and federal social security, unemployment insurance, sales, use, personal property, possessory interest, and other taxes, assessments and payments-in-lieu which, during the term of this Agreement or any extension hereof, may become a lien of 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 at City Park Pool, 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 or use 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 at City Park Pool. However, except as otherwise permitted by this RFP 7608 Snack Bar Concessionaire – City Park Pool Page 19 of 47 Agreement, no charges, fees or taxes of any nature shall be imposed by the City solely upon Concessionaire for exercising any right or privilege granted by the City to Concessionaire in this Agreement with respect to the use of the Concession Space at City Park Pool. Nothing herein shall prevent Concessionaire from protesting, through due process, any taxes levied. 4.7 Licenses. Concessionaire agrees to obtain and pay for all licenses necessary in connection with its operation, including but not limited to, a County Health Department Food Services Establishment inspection, and a City business license and/or occupation license. Failure to qualify for a required license or failure to obtain any such license within thirty (30) days of execution of this Agreement shall constitute a default hereunder. 4.7.1 Any such licenses held by the Concessionaire in connection with this Agreement shall be surrendered by the Concessionaire upon termination of this Agreement. 4.7.2 Upon Concessionaire's surrender of all licenses and acquisition of new licenses by such replacement concessionaire as the City may select, the City shall reimburse Concessionaire for such proportional amount of the cost of the license as may be attributable to any remaining period which may exist from the date of Concessionaire's surrender to license expiration. 4.8 Vending Machines This Agreement does not include Concessionaire's use of vending machines in the supplying of food, beverages or incidental items. ARTICLE 5 Employing Illegal Aliens RFP 7608 Snack Bar Concessionaire – City Park Pool Page 20 of 47 5.1 Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Concessionaire represents and agrees that: a. As of the date of this Agreement: 1. Concessionaire does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. Concessionaire 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 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. Concessionaire 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. Concessionaire 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 Concessionaire obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Concessionaire shall: RFP 7608 Snack Bar Concessionaire – City Park Pool Page 21 of 47 1. Notify such subcontractor and the City within three days that Concessionaire 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 Concessionaire 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. Concessionaire 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 Concessionaire 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, Concessionaire shall be liable for actual and consequential damages to the City arising out of Concessionaire’s violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Concessionaire violates this provision of this Agreement and the City terminates the Agreement for such breach. ARTICLE 6 Term RFP 7608 Snack Bar Concessionaire – City Park Pool Page 22 of 47 6.1 Period. The Agreement shall commence upon the date of execution shown on the signature page of the Agreement and shall continue in full force and effect for one (1) year. In addition, the Agreement may be extended for an additional one year period, not to exceed four (4) additional one (1) year periods. However, either party may terminate this Agreement without cause, by providing written notice to the other party of its intention to terminate at least ninety (90) days prior to the end of the then existing term. 6.2 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 to all provisions and conditions of this Agreement in connection with such right, except that the City shall have the sole right to determine reasonable fees for any holdover period. ARTICLE 7 Fee For Conducting Business 7.1 Concession Fee. For the privilege of conducting the concession operations hereunder, and the exclusive use of the Concession Space, the Concessionaire shall pay to the City ______ as the Concession Fee. 7.1.1 During the term of the Agreement, Concessionaire shall provide busing and janitorial services described in Section 8.3, at the Concession Space/Area. 7.2 Time of Payment. The Concessionaire shall pay the Concession Fee monthly no later than fifteen (15) days after the first day of the next month. 7.3 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. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 23 of 47 7.4 Method of Payment. Payment for all fees under Article 7 shall be by check or money order payable to the order of City of Fort Collins— City Park Pool Concessions and shall be mailed or personally delivered to the City Representative. ARTICLE 8 Utilities, Maintenance and Janitorial Duties 8.1 Utilities. The City shall pay all charges for water, storm water, sewer, gas, trash collection, recycling, basic facility security system, natural gas and electric services to the Concession Space. 8.2 Maintenance and Repair. The City shall maintain and repair the Concession Space and City equipment and fixtures (defined in Article 9). Concessionaire shall submit all requests for repairs or maintenance to the City Representative. Notwithstanding anything to the contrary contained herein, the City shall not in any way be liable to the Concessionaire for failure to make repairs as herein specifically required of it unless the Concessionaire has previously notified the City in writing of a need for such repairs, and the City has failed to commence and complete said repairs within a reasonable period of time following receipt of the Concessionaire's written notification. 8.2.1 The Concessionaire shall neither hold nor attempt to hold the City liable for any injury or damage, either approximate or remote, occasioned through or caused by defective electrical wiring or the breaking or stoppage of plumbing or sewage upon the Concession Space/Area, whether said breakage or stoppage results from freezing or otherwise. 8.3 Cleaning and Janitorial. The Concessionaire shall keep the Concession Space/Area and its fixtures clean and in good sanitary condition as required by the ordinances, RFP 7608 Snack Bar Concessionaire – City Park Pool Page 24 of 47 resolutions, statutes and health, sanitary and police regulations of the City of Fort Collins, County of Larimer and State of Colorado. 8.3.1 Concessionaire shall thoroughly clean the entire Concession Space/Area, including all equipment and fixtures, whether provided by the City or Concessionaire at least three (3) times; once prior to, once during, and once after the close of the May through August City Park Pool swim season. 8.3.2 Concessionaire is responsible for the ongoing cleanliness of the Concession Space/Area in order to provide a clean and orderly appearance for patrons, including but not limited to, removing trash accumulations to designated trash containers. ARTICLE 9 Acceptance and Trade Fixtures 9.1 Concession Space, City Equipment and Fixtures. In addition to the Concession Space, the City shall provide the following: 9.1.1 Existing equipment as listed on Exhibit D, consisting if one (1) page, attached hereto and made a part hereof; 9.1.2 Lighting fixtures for general area illumination; and 9.1.3 Heat and air conditioning. 9.2 Acceptance. On the date of commencement of this Agreement, Concessionaire shall acknowledge that it accepts the Concession Space as well as any City equipment and fixtures "as is." 9.3 Installation of Equipment and Trade Fixtures. Except for the items listed on Exhibit D, no equipment, trade fixtures, signs or other personal property used by the RFP 7608 Snack Bar Concessionaire – City Park Pool Page 25 of 47 Concessionaire in its business, whether or not attached to the concession area or any improvements thereon, shall be installed without the prior written approval of the City. 9.4 Removal of Equipment, Trade Fixtures. Concessionaire shall have the right at any time during the term of this Agreement or upon termination and within ten (10) days thereafter, to remove all trade fixtures, equipment and other personal property subject to any valid lien the City may have thereon for unpaid rents or installation of equipment in lieu of Concession Fee pursuant to Article 7. 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. 9.5 Title to Improvements. Upon installation or erection of Improvements, such improvements (but excluding any of Concessionaire's personal property and trade fixtures which are attached or affixed thereto) shall become a part of the realty upon which they are erected and title thereto shall vest in the City. Upon vesting, the Improvements become part of the Concession Space and are subject to the terms applicable to the Concession Space within this Agreement. 9.6 Applicable Law. All Improvements and all trade fixtures, equipment or other personal property installed by Concessionaire shall be subject to and conform in all respects to the applicable statutes, ordinances, building codes, rules and regulations of all governmental agencies which have jurisdiction over such matters. ARTICLE 10 Damage by Concessionaire 10.1 The Concessionaire shall be liable for and shall repair, replace or cause to be repaired or replaced within fifteen (15) days after occurrence, any damage, including the Concession Space/Area, or to City's property, equipment and fixtures (defined in Article RFP 7608 Snack Bar Concessionaire – City Park Pool Page 26 of 47 9) caused by Concessionaire, its officers, agents, employees or anyone acting under its direction and control, ordinary wear and tear excepted. All repairs or replacements shall be made promptly and when necessary and shall be in a quality and of a class at least equal to the original. If the damage for which Concessionaire is liable is to the Concession Space/Area, Concessionaire shall continue to be liable for all rent/fees owed for the Concession Space, even if it has been rendered untenantable. ARTICLE 11 Total or Partial Destruction 11.1 Concession Space or Other Major Component Rendered Untenantable. In case, during the term of this Agreement, the Concession Space, City Park Pool or any principal part of any one of them shall be destroyed or shall be so damaged by fire, flood or other casualty so as to be rendered untenantable or unusable as determined by the City: 11.1.1 Then, in such event, at the option of the City or Concessionaire, the term hereby created shall cease; and this Agreement shall become null and void from the date of such damage or destruction; and Concessionaire shall immediately surrender the Concession Space and its interest therein to the City; provided, however, that the City or Concessionaire shall exercise such option to so terminate this Agreement by notice, in writing, delivered to the other party within thirty (30) days after the City's determination of untenantability or unusability. 11.1.2 In the event neither the City nor Concessionaire shall elect to terminate this Agreement, this Agreement shall continue in full force and effect; and the City shall repair the Concession Space, or facility excluding Improvements or equipment, signs, trade fixtures or other personal property installed by RFP 7608 Snack Bar Concessionaire – City Park Pool Page 27 of 47 Concessionaire, with all reasonable speed, placing the same in as good a condition as it was at the time of the damage or destruction. 11.2 Concession Space Only Untenantable. In the event of destruction rendering only the Concession Space untenantable, the City shall endeavor, but not be obligated to make substitute premises available for Concessionaire's use. During any period of use by Concessionaire of such substitute Concession Space, the City may direct that the Concessionaire's Fee shall be abated proportionately. 11.3 Components Tenantable. If the City Park Pool or Concession Space shall be only injured by fire or the elements to such extent so as not to render the same untenantable and unfit for use and occupancy, the City shall repair the same with all reasonable speed. 11.4 Removal of Rubbish. In any event, upon the occurrence of damage or destruction, Concessionaire shall remove all rubbish, debris, merchandise, furniture, furnishings, equipment and other items of its personal property within five (5) days after request being made by the City. 11.5 Exception for Damage Caused by Concessionaire. In the event of damage caused by Concessionaire as more specifically addressed in Article 10 of this Agreement, the provisions of Article 10 shall govern in any conflict between Article 10 and Article 11. 11.6 No Claim by Concessionaire. No compensation or claim shall be made by or allowed to Concessionaire by reason of any inconvenience or annoyance arising from the necessity of repairing any portion of City Park Pool, however the necessity may occur. ARTICLE 12 Indemnification and Insurance RFP 7608 Snack Bar Concessionaire – City Park Pool Page 28 of 47 12.1 City's Liability. The City shall not in any way be liable for any cost, liability, damage or injury, including cost of suit and reasonable expenses of legal services, claimed or recovered by any person whomsoever or whatsoever as a result of any operations, works, acts or omissions performed within City Park Pool by Concessionaire, its agents, employees or contractors unless caused by the negligence or willful misconduct of the City, its employees, agents or contractors. 12.2 Indemnification. Concessionaire covenants that it will indemnify and hold the City harmless from all claims, demands, judgments, costs and expenses, and legal fees including attorneys' fees, claimed or recovered (whether justly, unjustly, falsely, fraudulently or frivolously) by any person by reason of injury to or death of any individual person or persons, or by reason of damage to, destruction or loss of use of any property, including City's personnel and City's property, directly or indirectly arising out of, resulting from or occurring in connection with any operations, works, acts or omissions of Concessionaire. As used herein, the term "Concessionaire" includes the respective directors, officers, agents, employees, contractors and subcontractors of Concessionaire. In the event a subcontractor performs any work under this Agreement, the Concessionaire shall be responsible for any liability directly or indirectly arising out of the work performed by such subcontractor. 12.3 Intellectual Property Representation. Concessionaire represents that it is the owner of or is fully authorized to use any and all services, processes, machines, articles, makes, names or slogans used by it in its operation or in any way connected with this Agreement. 12.4 Concessionaire Insurance. Without limiting any of the Concessionaire's obligations hereunder, the Concessionaire shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement as specified in Exhibit E, RFP 7608 Snack Bar Concessionaire – City Park Pool Page 29 of 47 consisting of one (1) page, which is attached hereto and incorporated herein by this reference. 12.5 Precautions Against Injury. The Concessionaire shall take all necessary precautions in performing the operations hereunder to prevent injury to persons and property. 12.6 Failure to Insure. Neither the failure of Concessionaire to take out and/or maintain, nor the taking out and/or maintenance of any required insurance shall relieve Concessionaire from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with the obligations of Concessionaire concerning indemnification. In the event the Concessionaire fails to maintain insurance required hereunder, the City may, at its option, take out and maintain at the expense of the Concessionaire such insurance as the City may deem proper. The City may offset the cost of any such insurance from any monies that may be due or become due to the Concessionaire under this Agreement. ARTICLE 13 No Interest in Real Property 13.1 Concessionaire agrees that this Agreement constitutes merely a right to use and occupy the Concession Space for a limited purpose and does not create or convey to Concessionaire any interest in real property. ARTICLE 14 Assignment 14.1 The Concessionaire shall not assign this Agreement, sublet or otherwise allow any person to take possession of all or any portion of the Concession Space without prior written consent of the City nor permit any transfer by operation of law of RFP 7608 Snack Bar Concessionaire – City Park Pool Page 30 of 47 Concessionaire's interest created hereby, other than by merger or consolidation unless approved by City. ARTICLE 15 Right of City to Enter, Inspect and Make Repairs 15.1 In General. City and its authorized employees, agents, contractors and other representatives shall have the right (at such times as may be reasonable under the circumstances and with as little interruption to Concessionaire's operation as is reasonably practicable) to enter upon any part of the Concession Space for the following purposes: 15.1.1 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; 15.1.2 To perform or cause to be performed maintenance and make repairs and replacements: and 15.1.3 To make structural additions and alterations. 15.2 Obstruction by City. All entries made for the purposes enumerated above shall, except as otherwise provided in Article 11, Total or Partial Destruction, be without abatement of rent for damage for inconvenience. However, in the event any entry by City in the Concession Space for the purpose of making repairs or alterations as provided for in Section 15.1.2 above (other than repairs necessitated as a result of damage by Concessionaire under Article 10) constitutes a substantial obstruction to and impairment of Concessionaire's right of use of such Concession Space, then Concessionaire shall RFP 7608 Snack Bar Concessionaire – City Park Pool Page 31 of 47 be entitled to a fair and just abatement of the rent/fees for such premises during the period required by City to make such repairs. 15.3 Obstruction by Concessionaire. In the event that any personal property of Concessionaire shall obstruct the access of the City, its officers, employees, agents or contractors, 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. 15.4 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 16 Default, Rights of Termination 16.1 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: 16.1.1 Concessionaire's failure to pay any fee or other charge when due and within five (5) workings days after notice from City of such nonpayment. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 32 of 47 16.1.2 Concessionaire's failure to maintain the insurance required in Section 12.4. 16.1.3 Concessionaire’s assignment of any right hereunder in violation of Article 14. 16.1.4 Concessionaire's failure to perform, keep or observe any of the terms, covenants or conditions of this Agreement 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. 16.1.5 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. 16.1.6 The abandonment for a period of seven (7) days by Concessionaire of the conduct of its services and operations at City Park Pool. 16.1.7 The assignment by Concessionaire of its assets for the benefit of creditors. 16.1.8 The death of the Concessionaire or dissolving of the Corporation. 16.1.9 After written notice to the Concessionaire of any violation of the personal conduct standards set forth in Section 4.4, above, and a hearing of the matter before the City's Director of Purchasing and Risk Management, if such a hearing has been requested in writing received by the Director of Purchasing RFP 7608 Snack Bar Concessionaire – City Park Pool Page 33 of 47 and Risk Management within ten (10) days after mailing of written notice of violation, a determination by the Director of Purchasing and Risk Management that the alleged violation has, in fact, occurred, and that such violation materially interferes with Concessionaire's ability to perform its services hereunder in a manner satisfactory to the City or otherwise impairs the benefits to be derived from the City by this Agreement, including the good will, satisfaction, health and safety of the general public. 16.2 City's Remedies on Default. 16.2.1 In the event of a default by Concessionaire, the City may terminate this Agreement effective immediately upon provision of written notice of such termination 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, the City shall have the right to take possession of the Concession Space at the time of default. 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. 16.2.2 Following re-entry or abandonment, the 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 the City shall not be required to make such arrangement for any use or purpose. 16.3 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 RFP 7608 Snack Bar Concessionaire – City Park Pool Page 34 of 47 the City may have pursuant to this Agreement or to applicable law to seek judicial enforcement, damages or any other lawful remedy. ARTICLE 17 Miscellaneous Provisions 17.1 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. 17.2 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. 17.3 Non-liability of Individuals Other than Concessionaire. With the exception of Concessionaire, 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. 17.4 Limitations on Use. Concessionaire shall not use, or permit the use of the Concession Space/Area, or any part thereof, for any purpose or use other than those authorized by this Agreement. Neither shall Concessionaire permit nor suffer any disorderly noise or nuisance whatsoever around the Concession Space at City Park Pool. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 35 of 47 17.5 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. 17.6 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. 17.7 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. 17.8 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. 17.9 Headings. The titles of the several articles of this Agreement are inserted herein for convenience 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. 17.10 Legal 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 for legal fees, including attorneys' fees and costs, in such action or proceeding and in any appeal there from. 17.11 Incorporation of Request for Proposals/Entire Agreement. Request for Proposal Document, and all specifications included therein, and the Proposal submitted and interview responses by the Concessionaire in response thereto, are incorporated and RFP 7608 Snack Bar Concessionaire – City Park Pool Page 36 of 47 made a part of this Agreement by this reference, except that in the event of a conflict between such documents and the express terms of this Agreement, the terms of this Agreement shall prevail. 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, except as expressly incorporated herein. 17.12 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 the City or the Concessionaire in his or its respective rights and obligations under the valid covenants, conditions or provisions of this Agreement. 17.13 Surrender of Possession. Upon the expiration of this Agreement or its earlier termination as herein provided, Concessionaire shall remove all of its property from City Park Pool and surrender entire possession of its rights at City Park Pool to the City and its improvements in accordance with Section 10 above, unless this Agreement is renewed or replaced. 17.14 City Representative. The City designates the Recreation Manager as its representative who shall make, within the scope of his/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. 17.15 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 RFP 7608 Snack Bar Concessionaire – City Park Pool Page 37 of 47 follows or to such other address as the parties may designate from time to time by notice given in accordance with this Section: City: City of Fort Collins Attn: Purchasing PO Box 580 Fort Collins, CO 80522 Copy to: City of Fort Collins Attn: Recreation Mgr. PO Box 580 Fort Collins, CO 80522 Concessionaire: Attn: 17.16 Paragraph Headings. Paragraph headings contained herein are for convenience and reference, and are not intended to define or limit the scope of any provisions of this Agreement. 17.17 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 this reference incorporated in this Agreement. 17.18 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, acts of public enemies, acts of superior governmental authority, weather conditions, rights, rebellion, sabotage or any other circumstances that are not within its control. 17.19 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. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 38 of 47 17.20 No Relationship. Nothing contained herein shall be deemed or construed by the parties hereto nor by any third party as creating the relationship of employer and employee, principal and agent or a partnership or a joint venture between the parties hereto. 17.21 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. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 39 of 47 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation By: ____________________________________ Gerry S. Paul Director of Purchasing and Risk Management Date: _____________________________ ATTEST: ________________________ City Clerk APPROVED AS TO FORM: ________________________ Assistant City Attorney Concessionaire: By:________________________________ Print Name: _________________________ Title: _______________________________ Date: ________________________ RFP 7608 Snack Bar Concessionaire – City Park Pool Page 40 of 47 EXHIBIT A SNACK BAR CONCESSIONAIRE- CITY PARK POOL Policy: Contractor Personnel Conduct and Demeanor and Background Screening for Positions of Trust. Under the terms and conditions of each respective Contractor’s Agreement with the City, all Recreation Professionals and Snack Bar Concessionaires shall control the conduct and demeanor of their employees, volunteers, and other representatives or agents of the Contractor that will be working on behalf of the Contractor in providing services to the City. The Contractor agrees to provide to the City at all times a current list of employees, volunteers, and other representatives or agents of Contractor that will be working on behalf of the Contractor in providing services to the City under their Agreement, and that all such employees, volunteers, and other representatives or agents of Contractor agree to adhere to the “Behavior/Standards of Personal Conduct and Performance.” Contractors and the City also hereby acknowledge and agree that certain services provided by the Contractor will require that specified employees, volunteers, and other representatives or agents of the Contractor act in “positions of trust” which can include the handling of and/or accounting for funds of the City and/or of City property, or direct contact with youth and members of the general public. Accordingly, each Contractor agrees that all specified employees, volunteers, or other representatives or agents of Contractor in positions of trust shall be screened/investigated at the expense of the Contractor using the City’s contracted background screening/investigation procedure as described in each respective contractor’s Agreement; and that the results of such background screening/investigation shall be provided to the City prior to any such persons participation in the provision of services, as described in each respective contractor’s Agreement. Each Contractor shall require the completion and execution of the Disclosure/Waiver form for all specified employees, volunteers, and other representatives or agents of Contractor. The purpose of this form is to provide the necessary information about an applicant and permission to review confidential information for a complete and thorough background screening/investigation. The Contractor shall provide to all said employees, volunteers, and other representatives or agents a Summary of Rights under the Fair Credit Reporting Act.. The background screening/investigation shall include, but is not necessarily limited to, checking arrests and/or conviction records, driving records, credit history, education, previous employment and volunteer work and other records as may be appropriate, and references, including review of any records of information available to the City as a result of past employment or contractual relationships the employee, volunteer, or other representative or agent has had with the Contractor or the City. The City will provide assistance in completing the background screening/investigation, including providing the completed disclosure form to an outside vendor for a confidential records check. Contractor acknowledges that by providing such assistance the City assumes no responsibility for the timeliness, accuracy or completeness of the background screening/investigation, or for the direct or indirect consequences resulting from the same, and the Contractor shall hold the City harmless for any injury or loss resulting therefrom. The Contractor shall make job assignments and responsibility assignments based upon and in consideration of the background screening/investigation, and shall not permit any person to RFP 7608 Snack Bar Concessionaire – City Park Pool Page 41 of 47 perform any position for which such person’s character or suitability are reasonably in question based upon the information obtained in connection with a background screening/investigation. The City may, in its discretion, object to any assignments of Contractor Personnel to positions of trust, as based upon the background screening/investigation. In the event that information from the report is utilized in whole or in part in making an adverse decision with regard to potential employment/volunteer/representative/agent status, before making the adverse decision, the City will attempt to provide Contractor with a copy of the consumer report/criminal history. Specified employees, volunteers, and other representatives or agents of Contractors identified at this time to be in positions of trust shall include, but are not necessarily limited to, all top assistants, area or section managers, lesson providers, personnel that directly handle and/or account for City funds; and those positions that can work individually with youth or members of the general public. Contractor Process for Obtaining Background Screening/Investigation Information 1. Once an employee, volunteer, other representative or agent has been selected by the Contractor, the employee, volunteer, other representative or agent (applicant) shall complete the background screening/investigation form, which is titled “Disclosure to Prospective Employees, Volunteers, or Other Representatives or Agents of Contractors Regarding Procurement of a Consumer Report (including a criminal history report).” 2. When the employee, volunteer, other representative or agent (applicant) has completed and signed the form, the Contractor shall initial and date the bottom of the form, giving the bottom copy of the form to the applicant. The Contractor shall also give to the applicant at this time a summary of his/her rights under the Federal Fair Credit Reporting Act. The Fair Credit Reporting Act also imposes requirements and procedures related to any adverse decisions based upon credit information. 3. The Contractor keeps one copy of the form and forwards the original signed copy of the form to the Golf Division Administrative office?. In order to expedite the processing time, the Contractor may also FAX a copy or bring the original copy of the form to the golf Division Administrative Aide. Once the Administrative Aide enters the form information into the computer, it takes three to four days for the City’s contracted background screening/investigation firm to perform their service. 4. Because of the large number of applicants being screened using this similar process, there shall be no notification to the Contractor unless an applicant receives a negative report within four days of the time that the Administrative Aide enters the information into the computer. Therefore, the applicant may begin assignment for the Contractor after four days unless the Contractor is notified otherwise. However, be aware that it is possible that we could receive a negative report after four days, and we will have to address the situation at that time. RFP 7608 Snack Bar Concessionaire – City Park Pool Page 42 of 47 EXHIBIT B DISCLOSURE TO PROSPECTIVE EMPLOYEES, VOLUNTEERS, OR OTHER REPRESENTATIVES OR AGENTS OF CONTRACTORS REGARDING PROCUREMENT OF A CONSUMER REPORT (including a criminal history report) In connection with your status as a prospective employee, volunteer, or other representative or agent of the Contractor, Contractor and the City of Fort Collins may procure a consumer report/criminal history on you as part of the process of considering your candidacy for said status. 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 with regard to your potential employment/volunteer/representative/agent status, before making the adverse decision, the City and the Contractor will attempt to provide you and the Contractor with a copy of the consumer report/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 us to obtain a consumer report and/or an investigative report about you in order to consider your status as a prospective employee, volunteer, or other representative or agent for the Contractor. Applicant’s Name: (Please Print) First Middle Last Signature: Date of Birth: Applicant’ Address: City/State/Zip: Driver’s License #: Social Security #: Signature of Parent or Guardian: (if Applicant is under the age of 18): 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 2. Address City County State Zip Please list any additional addresses on the back of this page. Contractor’s Initials: Date: City Staff Initials: Date: RFP 7608 Snack Bar Concessionaire – City Park Pool Page 43 of 47 EXHIBIT C RFP 7608 Snack Bar Concessionaire – City Park Pool Page 44 of 47 RFP 7608 Snack Bar Concessionaire – City Park Pool Page 45 of 47 RFP 7608 Snack Bar Concessionaire – City Park Pool Page 46 of 47 EXHIBIT D EQUIPMENT INVENTORY- CITY PARK POOL City Owned Items QTY True Freezer 1 Ice Maker 1 Convection Oven 1 Hot Dog Roller 2 Nacho Chip Dispenser 1 Popcorn Popper 1 Artic Air Freezer 1 Electric Buffet Server 1 Artic Air Refrigerator 1 Leased or on Loan Items QTY Owner Double Door Reach- In Refrigerator 1 Coca- Cola Cheese Dispenser, Hot Top 1 Gehl's and Sysco Foods Six (6) Head Coca- Cola Fountain Dispenser 1 Coca- Cola RFP 7608 Snack Bar Concessionaire – City Park Pool Page 47 of 47 EXHIBIT E 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 insured 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 coverage 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: 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 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.