HomeMy WebLinkAboutRFP - 7605 SNACK BAR CONCESSIONAIRE - SOUTH TRANSIT CENTERREQUEST FOR PROPOSAL
7605 SNACK BAR CONCESSIONAIRE - SOUTH TRANSIT CENTER
The City of Fort Collins is requesting proposals from qualified firms for a food, coffee
and non-alcoholic beverage concessionaire to manage and operate at the designated
concession area in the new South Transit Center (STC), located at 4915 Fossil Blvd,
Fort Collins.
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), March 14,
2014 and referenced as Proposal No. 7605. 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, CO 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, national origin for all proposals for negotiated agreements.
A Pre-Proposal Meeting will be held at the Transfort Maintenance Facility at 6570
Portner Road, Fort Collins, Colorado 80525 on Wednesday, March 5th, 2014 at
10:00 a.m., and will then proceed to the STC facility. The City will allow you to examine
the snack bar area at that time and answer any questions pertaining to the proposal.
The meeting is not mandatory, but attendance is strongly suggested. If you plan on
attending, you must R.S.V.P. no later than 5:00 p.m. on Friday February 28th, 2014
to Jill Wilson, Buyer, at (970) 221-6216 or jwilson@fcgov.com.
Note: The project site is under construction; the City of Fort Collins Construction
Contractor will have crews actively working on site and may be working in the areas
being visited during the pre-proposal meeting.
Questions concerning the scope of the project should be directed to Project Manager,
Kaley Zeisel at (970) 224-6067 or kzeisel@fcgov.com.
Questions regarding bid submittal or process should be directed to Jill Wilson, Buyer at
(970) 221-6216 or jwilson@fcgov.com.
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
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The City of Fort Collins is subject to public information laws, which permit access to
most records and documents. Proprietary information in your response must be clearly
identified and will be protected to the extent legally permissible. Proposals may not be
marked ‘Proprietary’ in their entirety. Information considered proprietary is limited to
material treated as confidential in the normal conduct of business, trade secrets,
discount information, and individual product or service pricing. Summary price
information may not be designated as proprietary as such information may be carried
forward into other public documents. All provisions of any contract resulting from this
request for proposal will be public information.
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
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REQUEST FOR PROPOSAL
7605 SNACK BAR CONCESSIONAIRE – SOUTH TRANSIT CENTER
BACKGROUND INFORMATION
The City of Fort Collins (City) is the owner and operator of the South Transit Center
(STC) at 4915 Fossil Blvd, Fort Collins, CO 80525. The STC is under construction and
scheduled to open for operation in May of 2014 to support the MAX Bus Rapid Transit
(BRT) service. The STC will also support existing local and regional transit operations
managed by Transfort. The facility will have an indoor customer service area located
near the concession area. Along with public access, City staff; including transit bus
operators, supervisors and customer service representatives, will routinely be assigned
or pass through the STC throughout each operational day. The STC parking lot will
have 171 parking spaces, as well as 76 bike parking spaces that are anticipated for
park-and-ride use. The bike trail runs behind the STC.
In connection with the operation of this facility, the City has established a snack bar
concession area within the STC. The premises are defined as the concession area in
the STC facility and a floor plan can be found on drawing A1.3, noted as Exhibit G. The
Transfort Department administers the transportation facility for the City, and desires to
grant to a food and beverage Concessionaire the use of the defined concession area for
the purpose of offering food, coffee and non-alcoholic beverage services primarily to the
transit passengers using the STC facility. An estimated 1,250 individuals will pass
through the STC daily.
This project involves Federal Transit Administrative (FTA) funding.
CONCESSION
The vision of Transfort Management, as well as the designers and other stakeholders
that planned the STC project, is to provide a coffee and snack bar area to be managed
and operated by a private Concessionaire. The selected Concessionaire will provide all
staffing, supplies, and non-City supplied equipment necessary to operate the snack bar
concession area. The concession area will be expected to be open during normal STC
operating days and hours. The City would like to provide menu options including but
not limited to coffee, tea, iced tea, juices, soft drinks, energy and power drinks, bottled
water and vitamin water. Additional drink items such as fruit smoothies and bubble tea
would be desirable. Menu food options should at a minimum include prepared food
items and quick-heat food items using commercial kitchen appliances such as a
microwave oven, toaster oven or “greaseless fryer”. However, a different philosophy
on menu items or the concession theme can be submitted and will be considered. The
operation will be under Larimer County Health Department permit.
Proposals 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.
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The City encourages the use of disposable cups, plates, napkins and eating utensils
that are either compostable or recyclable. The City also encourages the use of coffee
that is grown and marketed sustainably.
The City recommends the Concessionaire incorporate, as practical elements, the
Dietary Guidelines for Americans. The Dietary Guidelines encourage Americans to
focus on eating a healthful diet — one that focuses on foods and beverages that help
achieve and maintain a healthy weight, promote health, and prevent disease.
The Concessionaire must also assume and perform all janitorial/busing duties and
functions in the concession area. Duties will include breaking down and recycling all
cardboard boxes in the recycle bins and removing trash to the dumpsters located on the
STC premises.
In the event that the STC is open and the concession area is closed, the
Concessionaire will be responsible for securing the concession area.
SPECIFICATIONS
Included in the “Request for Proposal” package is a copy of the City’s Concession
Agreement (see RFP Attachment “A”) that the Concessionaire and the City will sign
upon award. All of the elements of the agreement are considered a part of the
specifications for the proposals requested. This specification sheet lists the major
provisions of the STC operations, as well as defines and provides clarification of several
specific points.
1. The Successful Concessionaire and the City shall sign a Concession Agreement,
which will grant to the Concessionaire the operation of the STC Concessions.
Included in the Agreement are federally required Federal Transit Authority (FTA)
contract clauses.
The Agreement shall commence upon the date of execution shown on the
signature page of the Agreement and shall continue for a period of one (1) year
with up to four (4) additional one (1) year extensions.
2. The concession area must be opened for business Monday through Saturday
from 7:30 a.m. to 5:30 p.m., but may vary due to special events and operations.
The STC will be staffed with City Customer Service Representatives Monday
through Friday. The STC will be open to the public on Saturday, but will not be
staffed by City employees. The STC is currently not scheduled to be open to the
public on Sundays. Additionally, the STC will not be open to the public on the
following holidays: New Year’s Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, and Christmas Day. The Concessionaire shall not
operate the concession area when the STC facility is closed to the public. These
closures include weather-related closures. Any other hours of operation will be
mutually agreed upon between the Concessionaire and the Project Manager.
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3. The ideal Concessionaire should have previous experience operating a similar
concession, or demonstrate sufficient skills and experience to satisfy the
judgment of the City to meet this requirement.
5. 4.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 on
May 10th, 2014.
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.
Tangible proof of financial ability to operate this concession will be required if
chosen for an interview. This proof may include financial documents which
demonstrate the Concessionaire’s ability to operate.
PERMITS, LICENSES, FEES, AND TAXES
It shall be the responsibility of the Concessionaire to make application for the necessary
permits and licenses, and to pay for all fees and taxes in order to operate this
concession.
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. 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, can result in immediate or early termination of the
Agreement, as also defined.
Although it is impossible to predict every possible type of misconduct, the
following are some of the types of conduct which could be considered
inappropriate:
Theft or misuse of money or property;
Commission or conviction of a felony or of any crime involving moral
turpitude;
Harassment of, or discrimination against, any individual based on race,
religion, national origin, age, sex, sexual orientation or disability;
Falsification, unauthorized use or destruction of City property;
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Abusive or threatening treatment of any person, including, but not limited
to physical or verbal confrontation;
Insubordination or refusal to comply with directives or assignments;
Using, consuming, possessing, having in the body, or distributing alcohol
or controlled substances during working time;
Incompetence, inattention to duties or wastefulness while on the job;
Failure to meet performance expectations of job or not performing duties
or functions assigned;
Engaging in personal business while on the job or engaging in outside
employment which interferes with job performance;
Repeated tardiness, absenteeism;
Job Abandonment (unreported absences of three days or more)
2. The Concessionaire acknowledges and agrees that certain services provided by
the Concessionaire will require that employees, agents, and volunteers 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, volunteers, 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 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, Concessionaire agrees to consult with legal counsel at their
sole expense.
4. The Concessionaire must maintain an adequate stock of supplies on hand for all
occasions as needed to supply the customers’ needs. The primary purpose of
the concession area is to provide a service to the patrons. Creative thinking
people who will be there, be open, and be ready are important to the success of
this operation. Also, cooperation with the Project Manager is an essential
element of this operation.
5. 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 concession operator must
submit to the City monthly complete operation records, as well as at the end of
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each calendar year provide an income statement to the City including all
expenses and gross income.
6. “Gross Sales” includes all revenues received by the Concessionaire for
performing the concession service, except Sales Tax. Sales Tax Payments for
the previous month must be submitted monthly by the 15th of each month.
7. Concessionaires are encouraged to propose arrangements for exclusive use of
the concession area which may include a flat monthly fee, profit sharing and/or
other creative arrangements to help offset operational costs incurred by the
City. The City will include the financial merits of each proposal as a part of the
evaluation process.
8. The City will pay for all trash and recycling removal services and utilities. The
Concessionaire shall pay for all telephones, cash registers, POS Systems, credit
card machines and any additional security systems that the Concessionaire may
wish to add to the concession area.
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 products offered
for sale may be changed periodically, but any and all changes must be reviewed
and approved by the Project Manager.
10. Smoking instruments, tobacco and alcohol products of any kind will not be sold.
Smoking is not permitted in any areas of the STC or within 20 feet of entrances.
11. The operation of the concession 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 the City of Fort Collins, or any of its Boards, Services Areas,
Service Units Departments.
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 and maintain all other equipment/inventory in order to successfully operate the
concessions area. The Concessionaire must obtain approval from the Project Manager
prior to adding or removing any proposed Concessionaire equipment.
A. City Owned Equipment Inventory List
Equipment: QTY
Refrigerator 1
Refrigerated Display Case 1
Under Counter Refrigerator 1
Under Counter Freezer 1
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Hand Sink 1
Dishwasher 1
3 Compartment Sink 1
Ice Maker 1
CONCESSION AREA FLOOR PLAN
Please see Exhibit H for the concession area floor plan and layout.
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:
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
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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.
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. Proposed Concessionaire equipment list.
e. Contact person and assigned personnel information.
f. How soon after award could Concessionaire be operational.
g. Financial ability for providing services and products.
2. Also, Concessionaire finalists will need to provide the Project Manager with at
least three (3) written references prior to the interview that the City may contact
regarding qualifications.
3. The City will also conduct a background screening procedure and selected
Concessionaire will need to provide a signed authorization form to allow the
screening to proceed.
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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 vendor based on the written proposals or select the top
rated vendors for oral 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 STC 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?
Does it 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?
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REFERENCE EVALUATION (TOP RANKED FIRM)
The project manager will check references using the following criteria.
The evaluation rankings will be labeled Outstanding/Satisfactory/Unsatisfactory.
If the references and background screening 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 and 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 upheld?
Other What problems (if any) did you encounter with this
firm/individual?
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ATTACHMENT “A” TO REQUEST FOR PROPOSAL
(For informational purposes, do not fill in or submit with proposal)
CONCESSION AGREEMENT
This Concession Agreement, hereinafter called the "Agreement," is made and entered into as of
the day of , 20 , 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 the following area at South Transit Center (STC),
4915 Fossil Blvd, Fort Collins, CO 80525
1.1.1 The designated concession space located in STC.
1.2 Use of Concession Space. The Concessionaire shall have the use of the
Concession Space for the purpose of offering food, coffee and non-alcoholic
beverages, and related services to STC patrons.
ARTICLE 2 Concessionaire's Use of STC 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.
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 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 and 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 applicable 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 STC.
ARTICLE 3 Rights of Ingress and Egress
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3.1 In General. The Concessionaire shall have the right of ingress and egress to and
from the STC and Concession Space for Concessionaire's employees, agents and
invitees 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 STC, presently
or hereafter used as such, so long as a reasonable and safe means of ingress and
egress remains available to Concessionaire.
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 STC.
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, 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 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.
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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 area at STC year round.
4.2.1 The parties agree that the hours of operation will conform to the hours
listed in #2 under Specifications. However, the Concessionaire shall not
be required to operate the concession when the STC 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, 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, volunteers, 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, volunteers, 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,
volunteers, 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
Concessionaires 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/volunteers 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.
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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.
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 or allowed to volunteer 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 or volunteer of 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 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.
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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 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.
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 STC 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 STC, 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 STC.
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 area at STC, upon any taxable interest acquired by
the Concessionaire in this Agreement, or any taxable possessory right which
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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 STC. However, except as otherwise permitted by this
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 STC. 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
5.1 Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101,
C.R.S., et. seq., Concessionaire represents and agrees that:
5.1.1 As of the date of this Agreement:
a. Concessionaire does not knowingly employ or contract with an
illegal alien who will perform work under this Agreement; and
b. 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
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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.
5.1.2 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.
5.1.3 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.
5.1.4 If Concessionaire obtains actual knowledge that a subcontractor
performing work under this Agreement knowingly employs or contracts
with an illegal alien, Concessionaire shall:
a. 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
b. 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.
5.1.5 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.
5.1.6 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.
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5.1.7 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
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 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.
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 - STC 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.
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8.2 Maintenance and Repair. The City shall maintain and repair the Concession Space
and City provided 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,
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, the grills and exhaust, ovens, floors, sinks counters,
refrigerators and all coils, a minimum of (4) times per year (quarterly).
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 of 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."
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9.3 Installation of Equipment and Trade Fixtures. No equipment, trade fixtures, signs or
other personal property used by Concessionaire in its business 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
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 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, STC 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
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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 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 STC 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 the STC, however the necessity may
occur.
ARTICLE 12 Indemnification and Insurance
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 STC by Concessionaire, its agents,
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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 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
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.
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ARTICLE 14 Assignment
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 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 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.
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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.
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 (7) days by Concessionaire of the
conduct of its services and operations at STC.
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.
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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 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, 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 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 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.
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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 about the Concession Space, STC.
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.
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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
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
STC and surrender entire possession of its rights at STC to 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 Project 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 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: Craig Dubin
6570 Portner Rd.
Fort Collins, CO 80525
Concessionaire:
Attn:
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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, act of public enemy, 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.
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.
17.22 Federal Transit Clauses. Special provisions or conditions relating to the services to
be performed pursuant to this Agreement are set forth in Exhibit F, FEDERAL
TRANSIT ADMINISTRATION CONTRACT CLAUSES consisting of eight (8) pages,
attached hereto and incorporated herein by this reference. This is for unincorporated
concessionaires.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year
written above.
City:
CITY OF FORT COLLINS
Concessionaire:
By:________________________________
Gerry S. Paul
Director of Purchasing& Risk Management
Date:_______________________
By:________________________________
Print Name: _________________________
Title:_______________________________
Date:________________________
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EXHIBIT A
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
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
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.
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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 Transfort 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 Transfort
Administrative Assistant. Once the Administrative Assistant 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 Assistant 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.
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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:
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EXHIBIT C
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Exhibit D
CITY PROVIDED EQUIPMENT INVENTORY
Equipment: QTY
Refrigerator 1
Refrigerated Display Case 1
Under Counter Refrigerator 1
Under Counter Freezer 1
Hand Sink 1
Dishwasher 1
3 Compartment Sink 1
Ice Maker 1
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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
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:
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.
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EXHIBIT F
FEDERAL TRANSIT ADMINISTRATION CONTRACT CLAUSES
In addition to the City of Fort Collins Concession Agreement Terms and Conditions, the
following Federal clauses apply.
TABLE OF CONTENTS
Federally Required and Other Model Contract Clauses
1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES
2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS
3. ACCESS TO RECORDS AND REPORTS
4. FEDERAL CHANGES
5. TERMINATION
6. CIVIL RIGHTS REQUIREMENTS
7. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
8. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
9. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
10. CHARTER BUS REQUIREMENTS
11. SCHOOL BUS REQUIREMENTS
12. ENERGY CONSERVATION REQUIREMENTS
13. ADA ACCESS
14. CITY OF FORT COLLINS BID PROTEST PROCEDURES
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1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES
No Obligation by the Federal Government.
(1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of
the underlying contract, absent the express written consent by the Federal
Government, the Federal Government is not a party to this contract and shall not be
subject to any obligations or liabilities to the Purchaser, Contractor, or any other party
(whether or not a party to that contract) pertaining to any matter resulting from the
underlying contract.
(2) The Contractor agrees to include the above clause in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the
clause shall not be modified, except to identify the subcontractor who will be subject to
its provisions.
2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations,
"Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to
this Project. Upon execution of the underlying contract, the Contractor certifies or
affirms the truthfulness and accuracy of any statement it has made, it makes, it may
make, or causes to be made, pertaining to the underlying contract or the FTA assisted
project for which this contract work is being performed. In addition to other penalties
that may be applicable, the Contractor further acknowledges that if it makes, or causes
to be made, a false, fictitious, or fraudulent claim, statement, submission, or
certification, the Federal Government reserves the right to impose the penalties of the
Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal
Government deems appropriate.
(2) The Contractor also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in
part with Federal assistance originally awarded by FTA under the authority of 49
U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C.
§ 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal
Government deems appropriate.
(3) The Contractor agrees to include the above two clauses in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed that
the clauses shall not be modified, except to identify the subcontractor who will be
subject to the provisions.
3. ACCESS TO RECORDS AND REPORTS
Access to Records - The following access to records requirements apply to this Contract:
A. Where the Purchaser is not a State but a local government and is the FTA Recipient
or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the
Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller
7605 Snack Bar Concessionaire - South Transit Center Page 39 of 48
General of the United States or any of their authorized representatives access to any
books, documents, papers and records of the Contractor which are directly pertinent
to this contract for the purposes of making audits, examinations, excerpts and
transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the
FTA Administrator or his authorized representatives including any PMO Contractor
access to Contractor's records and construction sites pertaining to a major capital
project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance
through the programs described at 49 U.S.C. 5307, 5309 or 5311.
B. The Contractor agrees to permit any of the foregoing parties to reproduce by any
means whatsoever or to copy excerpts and transcriptions as reasonably needed.
C. The Contractor agrees to maintain all books, records, accounts and reports required
under this contract for a period of not less than three years after the date of
termination or expiration of this contract, except in the event of litigation or settlement
of claims arising from the performance of this contract, in which case Contractor
agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller
General, or any of their duly authorized representatives, have disposed of all such
litigation, appeals, claims or exceptions related thereto. Reference 49 CFR
18.39(i)(11).
D. FTA does not require the inclusion of these requirements in subcontracts.
Requirements for Access to Records and Reports by Types of Contract
Contract
Characteristics
Operational
Service
Contract
Turnkey Construction Architectural
Engineering
Acquisition
of Rolling
Stock
Professional
Services
I State Grantees
a. Contracts below
SAT ($100,000)
b. Contracts above
$100,000/Capital
Projects
None
None
unless1 non-
competitive
award
Those
imposed
on state
pass thru
to
Contractor
None
Yes, if non-
competitive
award or if
funded thru2
5307/5309/5
311
None
None unless
non-
competitive
4. FEDERAL CHANGES
Federal Changes - Contractor shall at all times comply with all applicable FTA
regulations, policies, procedures and directives, including without limitation those listed
directly or by reference in the Master Agreement between Purchaser and FTA, as they
may be amended or promulgated from time to time during the term of this contract.
Contractor's failure to so comply shall constitute a material breach of this contract.
5. TERMINATION
A. Termination for Convenience (General Provision) The (Recipient) may terminate
this contract, in whole or in part, at any time by written notice to the Contractor when it
is in the Government's best interest. The Contractor shall be paid its costs, including
contract close-out costs, and profit on work performed up to the time of termination.
The Contractor shall promptly submit its termination claim to (Recipient) to be paid the
Contractor. If the Contractor has any property in its possession belonging to the
(Recipient), the Contractor will account for the same, and dispose of it in the manner
the (Recipient) directs.
B. Termination for Default [Breach or Cause] (General Provision) If the Contractor
does not deliver supplies in accordance with the contract delivery schedule, or, if the
contract is for services, the Contractor fails to perform in the manner called for in the
contract, or if the Contractor fails to comply with any other provisions of the contract,
the (Recipient) may terminate this contract for default. Termination shall be effected
by serving a notice of termination on the contractor setting forth the manner in which
the Contractor is in default. The contractor will only be paid the contract price for
supplies delivered and accepted, or services performed in accordance with the manner
of performance set forth in the contract.
If it is later determined by the (Recipient) that the Contractor had an excusable reason
for not performing, such as a strike, fire, or flood, events which are not the fault of or
are beyond the control of the Contractor, the (Recipient), after setting up a new
delivery of performance schedule, may allow the Contractor to continue work, or treat
the termination as a termination for convenience.
C. Opportunity to Cure (General Provision) The (Recipient) in its sole discretion may,
in the case of a termination for breach or default, allow the Contractor [an appropriately
short period of time] in which to cure the defect. In such case, the notice of termination
will state the time period in which cure is permitted and other appropriate conditions
If Contractor fails to remedy to (Recipient)'s satisfaction the breach or default of any of
the terms, covenants, or conditions of this Contract within [ten (10) days] after receipt
by Contractor of written notice from (Recipient) setting forth the nature of said breach
or default, (Recipient) shall have the right to terminate the Contract without any further
obligation to Contractor. Any such termination for default shall not in any way operate
to preclude (Recipient) from also pursuing all available remedies against Contractor
and its sureties for said breach or default.
6. CIVIL RIGHTS REQUIREMENTS
Civil Rights - The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42
U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42
U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. §
7605 Snack Bar Concessionaire - South Transit Center Page 41 of 48
12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will
not discriminate against any employee or applicant for employment because of race,
color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees
to comply with applicable Federal implementing regulations and other implementing
requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C.
§ 5332, the Contractor agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations,
"Office of Federal Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive
Order No. 11246, "Equal Employment Opportunity," as amended by Executive
Order No. 11375, "Amending Executive Order 11246 Relating to Equal
Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable
Federal statutes, executive orders, regulations, and Federal policies that may in
the future affect construction activities undertaken in the course of the Project. The
Contractor agrees to take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without regard to
their race, color, creed, national origin, sex, or age. Such action shall include, but
not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship. In
addition, the Contractor agrees to comply with any implementing requirements FTA
may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332,
the Contractor agrees to refrain from discrimination against present and
prospective employees for reason of age. In addition, the Contractor agrees to
comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act,
as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the
requirements of U.S. Equal Employment Opportunity Commission, "Regulations to
Implement the Equal Employment Provisions of the Americans with Disabilities
Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In
addition, the Contractor agrees to comply with any implementing requirements FTA
may issue.
(3) The Contractor also agrees to include these requirements in each subcontract financed
in whole or in part with Federal assistance provided by FTA, modified only if necessary
to identify the affected parties.
7. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
a. This contract is subject to the requirements of Title 49, Code of Federal Regulations,
Part 26, Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs. The national goal for participation of
Disadvantaged Business Enterprises (DBE) is 10%. The agency’s overall goal for
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DBE participation is 9.9 %. A separate contract goal has not been established for this
procurement.
b. The contractor shall not discriminate on the basis of race, color, national origin, or sex
in the performance of this contract. The contractor shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted
contract. Failure by the contractor to carry out these requirements is a material breach
of this contract, which may result in the termination of this contract or such other
remedy as City of Fort Collins deems appropriate. Each subcontract the contractor
signs with a subcontractor must include the assurance in this paragraph (see 49 CFR
26.13(b)).
c. The successful bidder/offeror will be required to report its DBE participation obtained
through race-neutral means throughout the period of performance.
d. The contractor is required to pay its subcontractors performing work related to this
contract for satisfactory performance of that work no later than 30 days after the
contractor’s receipt of payment for that work from the City of Fort Collins. In addition,
the contractor may not hold retainage from its subcontractors. e. The contractor
must promptly notify City of Fort Collins whenever a DBE subcontractor performing
work related to this contract is terminated or fails to complete its work, and must make
good faith efforts to engage another DBE subcontractor to perform at least the same
amount of work. The contractor may not terminate any DBE subcontractor and
perform that work through its own forces or those of an affiliate without prior written
consent of City of Fort Collins.
8. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions
include, in part, certain Standard Terms and Conditions required by DOT, whether or not
expressly set forth in the preceding contract provisions. All contractual provisions required
by DOT, as set forth in FTA Circular 4220.1E, are hereby incorporated by reference.
Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed
to control in the event of a conflict with other provisions contained in this Agreement. The
Contractor shall not perform any act, fail to perform any act, or refuse to comply with any
(name of grantee) requests which would cause (name of grantee) to be in violation of the
FTA terms and conditions.
9. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Background and Applicability
In conjunction with the Office of Management and Budget and other affected Federal
agencies, DOT published an update to 49 CFR Part 29 on November 26, 2003. This
government-wide regulation implements Executive Order 12549, Debarment and
Suspension, Executive Order 12689, Debarment and Suspension, and 31 U.S.C. 6101
note (Section 2455, Public Law 103-355, 108 Stat. 3327).
The provisions of Part 29 apply to all grantee contracts and subcontracts at any level
expected to equal or exceed $25,000 as well as any contract or subcontract (at any level)
for Federally required auditing services. 49 CFR 29.220(b). This represents a change
from prior practice in that the dollar threshold for application of these rules has been
lowered from $100,000 to $25,000. These are contracts and subcontracts referred to in
the regulation as “covered transactions.”
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Grantees, contractors, and subcontractors (at any level) that enter into covered
transactions are required to verify that the entity (as well as its principals and affiliates)
they propose to contract or subcontract with is not excluded or disqualified. They do this
by (a) Checking the Excluded Parties List System, (b) Collecting a certification from that
person, or (c) Adding a clause or condition to the contract or subcontract. This represents
a change from prior practice in that certification is still acceptable but is no longer required.
49 CFR 29.300.
Grantees, contractors, and subcontractors who enter into covered transactions also must
require the entities they contract with to comply with 49 CFR 29, subpart C and include
this requirement in their own subsequent covered transactions (i.e., the requirement flows
down to subcontracts at all levels).
Clause Language
The following clause language is suggested, not mandatory. It incorporates the optional
method of verifying that contractors are not excluded or disqualified by certification.
Suspension and Debarment
This contract is a covered transaction for purposes of 49 CFR Part 29. As such,
the contractor is required to verify that none of the contractor, its principals, as
defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded
or disqualified as defined at 49 CFR 29.940 and 29.945.
The contractor is required to comply with 49 CFR 29, Subpart C and must include
the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered
transaction it enters into.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by {insert
agency name}. If it is later determined that the bidder or proposer knowingly rendered an
erroneous certification, in addition to remedies available to {insert agency name}, the
Federal Government may pursue available remedies, including but not limited to
suspension and/or debarment. The bidder or proposer agrees to comply with the
requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of
any contract that may arise from this offer. The bidder or proposer further agrees to
include a provision requiring such compliance in its lower tier covered transactions.
10. CHARTER BUS REQUIREMENTS
Charter Service Operations - The contractor agrees to comply with 49 U.S.C. 5323(d)
and 49 CFR Part 604, which provides that recipients and subrecipients of FTA assistance
are prohibited from providing charter service using federally funded equipment or facilities
if there is at least one private charter operator willing and able to provide the service,
except under one of the exceptions at 49 CFR 604.9. Any charter service provided under
one of the exceptions must be "incidental," i.e., it must not interfere with or detract from the
provision of mass transportation.
11. SCHOOL BUS REQUIREMENTS
School Bus Operations - Pursuant to 69 U.S.C. 5323(f) and 49 CFR Part 605, recipients
and subrecipients of FTA assistance may not engage in school bus operations exclusively
for the transportation of students and school personnel in competition with private school
bus operators unless qualified under specified exemptions. When operating exclusive
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school bus service under an allowable exemption, recipients and subrecipients may not
use federally funded equipment, vehicles, or facilities.
12. ENERGY CONSERVATION REQUIREMENTS
Energy Conservation - The contractor agrees to comply with mandatory standards and
policies relating to energy efficiency which are contained in the state energy conservation
plan issued in compliance with the Energy Policy and Conservation Act.
13. ADA Access
Accessibility. Facilities to be used in public transportation service must comply with 42
U.S.C. Sections 12101 et seq. and DOT regulations, “Transportation Services for
Individuals with Disabilities (ADA),” 49 CFR Part 37; and Joint ATBCB/DOT regulations,
“Americans with Disabilities (ADA) Accessibility Specifications for Transportation
Vehicles,” 36 CFR Part 1192 and 49 CFR Part 38. Notably, DOT incorporated by
reference the ATBCB’s “Americans with Disabilities Act Accessibility Guidelines”
(ADAAG), revised July 2004, which include accessibility guidelines for buildings and
facilities, and are incorporated into Appendix A to 49 CFR Part 37. DOT also added
specific provisions to Appendix A modifying the ADAAG, with the result that buildings and
facilities must comply with both the ADAAG and amendments thereto in Appendix A to 49
CFR Part 37.
14. CITY OF FORT COLLINS BID PROTEST PROCEDURES
The City of Fort Collins has a protest procedure, covering any phase of solicitation or
award, including but not limited to specification or award. The protest procedures are
available from the Purchasing Department, City of Fort Collins, 215 N. Mason, Street, 2nd
Floor, P. O. Box 580, Fort Collins, CO. 80522. You may also request a copy of the
procedures by emailing: Purchasing@fcgov.com or calling 970-221-6775.
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award
None
None unless
non-
competitive
award
None
None unless
non-
competitive
award
II Non State
Grantees
a. Contracts below
SAT ($100,000)
b. Contracts above
$100,000/Capital
Projects
Yes3
Yes3
Those
imposed
on non-
state
Grantee
pass thru
to
Contractor
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Sources of Authority: 1 49 USC 5325 (a) 2 49 CFR 633.17 3 18 CFR 18.36 (i)
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