HomeMy WebLinkAboutMILE HIGH LOBSTER SHACK LLC - CONTRACT - RFP - 7230 DOWNTOWN CONCESSIONAIRESDowntown Concession Agreement with Mile High Lobster Shack Page 1 of 10
DOWNTOWN CONCESSION AGREEMENT
THIS AGREEMENT is made and entered into this August day of 21, 2014, by and between THE
CITY OF FORT COLLINS, COLORADO, a Municipal Corporation (City), and Mile High Lobster
Shack, LLC (Concessionaire).
WITNESSETH
WHEREAS, the City Council passed Ordinance No. 36, 1994, establishing the Downtown Plan
Area as a concession area for the sale of goods and services from outdoor locations; and
WHEREAS, the City has established various concession locations in the Downtown Plan Area;
and
WHEREAS, the City agrees to grant to the Concessionaire and the Concessionaire accepts
from the City a concession for outdoor vending at:
Site # 10 Public ROW, SE corner of Oak & College
NOW THEREFORE, in consideration of the mutual covenants and obligations herein
expressed, the parties agree as follows:
Section 1. Contract Documents
The contract documents consist of this Agreement and Exhibits A, B and C attached hereto and
incorporated herein by this reference.
Section 2. Terms of the Agreement
A. This Agreement shall be effective from August 29, 2014 until May 31, 2015, unless
sooner terminated as herein provided. The City may, at its option, renew the Agreement
for one (1) additional year term.
B. In the event that the concession location cannot be used because of improvements
being made at the concession location, this Agreement may be suspended on thirty (30)
days’ notice to the Concessionaire. The suspension shall continue until the
improvements are completed or it is determined that the location can no longer be used
as a concession site. The City will use a good faith effort to relocate the concession site
if needed.
Section 3. Concession Operations
The City hereby grants Concessionaire a concession for the use of the property described as:
Site #10 Public ROW, SE corner of Oak & College, per Exhibit A, consisting of one (1) page,
attached hereto and incorporated herein by this reference, for day use only. The
Concessionaire shall have the exclusive right to operate an outdoor vending concession within
this area in accordance with the Agreement.
A. Independent Contractor: The services to be performed by the Concessionaire are those
of an independent contractor and not as an employee of the City. The City shall not be
responsible for withholding any portion of Concessionaire's compensation hereunder for
the payment of FICA, Worker's Compensation or otherwise.
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B. Records: The Concessionaire shall keep adequate and proper business records of all
expenses and receipts of the concession operations. At the request of the City, all such
business records shall be made open and available for inspection and audit by the City
of Fort Collins Treasury Division.
C. Monetary Provision: The Concessionaire agrees to pay the City an amount equal to
One-Hundred-Twenty-Dollars ($120) per site per year, plus zero (0) percent of gross
receipts from the concession operations conducted pursuant to this Agreement. Gross
receipts shall include all revenues, excluding sales tax received by the Concessionaire
from concession operations. All such gross receipt payments shall be paid to the City on
the same day that sales and use tax payments are due. However, the payments for the
concessions must be submitted separately. The $120 annual fee is due immediately, for
the initial term, and by June 1st of any renewal term. Monthly payments shall be paid to
the City Sales Tax Office prior to the 10th of each month for every month the Agreement
is in force.
D. Licenses: The Concessionaire shall obtain and pay for all licenses needed for the
operation of the concession including, but not necessarily limited to, a County Health
Department Food Services establishment inspection and City and State sales tax
licenses. Any such licenses held specifically by the Concessionaire in connection with
this Agreement shall be surrendered by the Concessionaire at the time of termination of
this Agreement.
E. Laws, Rules & Regulations: The operation of the concession granted under this
Agreement shall, at all times, conform with all applicable Federal, State, and local laws
and with all applicable rules and regulations adopted by the City or any of its Boards or
Departments.
F. Insurance/Indemnity: The Concessionaire shall indemnify, save and hold harmless the
City from all claims and losses, including costs and reasonable attorney’s fees arising
directly or indirectly out of the Concessionaire's use of the concession area or operation
of the concession. The Concessionaire shall maintain commercial liability insurance in
the amount of $1,000,000 combined single limits naming the City as an additional
insured under this Agreement of the type and with the limits specified within Exhibit B,
consisting of one (1) page, attached hereto and incorporated herein by this reference.
The Concessionaire, before commencing services hereunder, shall deliver to the City’s
Director of Purchasing and Risk Management, P.O. Box 580, Fort Collins, CO 80522,
one (1) copy of a certificate evidencing the insurance coverage required from an
insurance company acceptable to the City.
G. Signage: All signs on the concession cart must be approved by the City Representative.
Signs may be displayed in or on the cart only unless additional signage is approved by
the City Representative.
H. Cart: The Concessionaire will be required to have a mobile cart. The cart may not
exceed the size of four (4) foot wide, ten (10) foot long and eight (8) foot high, excluding
roof overhangs and wheels. The design and appearance of the cart must conform to the
specifications described in Concessionaire’s proposal, unless otherwise agreed to in
writing by the parties before the cart may be used at the concession site. The City
reserves the right to approve any modifications, changes, or alternative cart. The cart is
subject to inspection by the City Representative. The cart must be maintained and
repaired to the City's satisfaction. The cart must be removed from the concession site
when not in use.
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I. Restrictions: Equipment such as tables, chairs, benches and displays not attached to the
cart may not be used except for items and equipment authorized, in writing, by the City
Representative. Merchandise must be restricted to the cart or appropriate storage
containers if authorized. Vendor area must not exceed ten (10) X ten (10) feet,
excepting only a tarp, or other protective medium, placed under cart to protect
underlying surface. Cart must be located on the approved site location and cannot
impede pedestrian flow on sidewalk.
J. Cleanliness: Concessionaire shall keep the concession area clean of all trash within one
hundred (100) foot radius of the site. Food Concessionaires must use a tarp under the
cart to minimize grease deposits and pay a site cleaning fee. Concessionaire shall pay
Sixty Dollars ($60.00) per month cleaning fee for power washing of the site granted. If
Concessionaire is at a site which is split between day and night operations with another
food and beverage Concessionaire, the Concessionaire shall pay a portion of above
cleaning fee as determined by the City Representative. Cleaning fee subject to change
during term of Agreement based on frequency required with at least thirty (30) days’
notice to the Concessionaire.
K. Sales Tax Returns: All sales tax returns and Concessionaire payments to the City
associated with the concession operation must be filed by their due date. No
assessment fees, penalties or interest will be waived by the City.
L. Power Source: Concessionaire shall use propane as the sole power source. Portable
generators will not be permitted due to concerns regarding compatibility and noise.
M. Stock: The Concessionaire shall maintain an adequate stock of supplies on hand for all
occasions in order to fulfil the needs of patrons.
N. Hours: The Concessionaire must keep the concession area open for business as
directed by the City Representative. Days of operation shall be agreed to by both
parties. Concessionaire has sole rights to the concession area from 6:00 AM to 6:00 PM.
Minimum days are:
Tuesday, Wednesday and Friday.
Concessionaire is not required to operate on national holidays or holidays recognized by
the City where City offices (except for emergency services offices) are closed.
O. Inclement Weather: The Concessionaire shall not be required to operate the concession
when it is raining, snowing, hailing, and abnormally windy or when the air temperature is
below 50 degrees Fahrenheit.
P. Product: The products authorized are as described in Concessionaire’s proposal and
agreed to by the City Representative. The City will not pre-authorize new products but
does reserve the right to review any new products that may be added. This is to ensure
that the new products meet the same quality as those proposed in the original Request
for Proposal.
The City recommends the Concessionaire incorporate the Dietary Guidelines for
Americans, as outlined on www.health.gov/dietaryguidelines. The Dietary Guidelines
encourage Americans to focus on eating a healthy diet, one that focuses on foods and
beverages that help achieve and maintain a healthy weight, promote health and prevent
disease.
Q. Blackout Dates: Concessionaire will not be allowed to operate in granted site during the
following special events in the downtown area: Colorado Brewers Festival, New West
Fest and the Old Town Car Show. Blackout dates for 2014 are: June 28, June 29,
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August 15, August 16, August 17, and September 6. Contact the Downtown Business
Association (DBA) at (970) 484-6500 to receive an application for a site at these events,
and event dates for subsequent years of this contract. The DBA will work with
Concessionaires regarding the location of the site and a discounted booth rate.
Section 4. General Conditions
A. The Concessionaire shall neither assign any of the rights nor delegate any of the duties
under the provisions of this Agreement without having first obtained the written
permission of the City. The Concessionaire shall not sublet any portion of the
concession area or allow any other person to take possession of any portion of the
concession areas without the written consent of the City.
B. This Agreement may not be enlarged, modified or altered except in writing, signed by the
parties as an amendment hereto.
C. No waiver of any breach of this Agreement shall be held or construed to be a waiver of
any subsequent breach thereof.
D. It is expressly understood and agreed by and between the parties hereto that in the
performance of the terms and conditions of this Agreement, time is of the essence.
E. The location assigned is not transferable to another Concessionaire.
F. Fixtures and Improvements:
1. The Concessionaire agrees that all auxiliary equipment needed to operate the
concession shall be installed at its expense. Prior to making any and all
improvements on said premises, the Concessionaire agrees to obtain the approval
of the City Representative and shall supervise the construction of said
improvements.
2. Upon the termination of this Agreement the Concessionaire shall remove any
fixtures or improvements made by it to the concession area. However, the
concession area must be restored to as good a condition as the premises were in
at the time the Concessionaire took possession thereof.
G. This Agreement shall be binding upon and inure to the benefit of the heirs, successors,
and assigns of the parties hereto.
H. If either party must resort to legal action to enforce the terms of this Agreement, the
prevailing party shall be awarded its costs and reasonable attorney's fees.
I. Any notice required or desired to be given under this Agreement will be considered
delivered to the other party upon hand delivery or upon its deposit in the United States
mail, postage prepaid, sent by registered mail and addressed to the other
party at the following address:
City: Concessionaire:
City of Fort Collins
Purchasing Division
P.O. Box 580
Fort Collins, CO 80522
Mile High Lobster Shack, LLC
Nancy Van Reeth
532 Strachan Dr.
Fort Collins, CO 80525
J. Notwithstanding the time periods contained herein, either party may terminate this
Agreement at any time without cause by providing written notice of termination to the
other party. Such notice shall be delivered at least fifteen (15) days prior to the
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termination date contained in said notice unless otherwise agreed to in writing by the
parties. All notices provided under this Agreement shall be effective when mailed,
postage prepaid and sent to the above address.
Section 5. Default
A. The Concessionaire shall be in default under the terms and conditions of this Agreement if
the Concessionaire fails to cure the default within ten (10) days after written notice setting forth
the nature of the default is delivered to the Concessionaire.
B. In the event the default is not timely cured, the City may elect to (a) terminate this
Agreement and seek damages; (b) treat the Agreement as continuing and require specific
performance measures or (c) avail itself of any other remedy at law or equity.
Section 6. Prohibition Against Employing Illegal Aliens.
Pursuant to Section 8-17.5-101, C.R.S., et. seq., Service Provider represents and agrees that:
a. As of the date of this Agreement:
1. Service Provider does not knowingly employ or contract with an illegal alien who
will perform work under this Agreement; and
2. Service Provider will participate in either the e-Verify program created in Public
Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th
Congress, as amended, administered by the United States Department of
Homeland Security (the “e-Verify Program”) or the Department Program (the
“Department Program”), an employment verification program established
pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment
eligibility of all newly hired employees to perform work under this Agreement.
b. Service Provider shall not knowingly employ or contract with an illegal alien to perform
work under this Agreement or knowingly enter into a contract with a subcontractor that
knowingly employs or contracts with an illegal alien to perform work under this
Agreement.
c. Service Provider is prohibited from using the e-Verify Program or Department Program
procedures to undertake pre-employment screening of job applicants while this
Agreement is being performed.
d. If Service Provider obtains actual knowledge that a subcontractor performing work under
this Agreement knowingly employs or contracts with an illegal alien, Service Provider
shall:
1. Notify such subcontractor and the City within three days that Service Provider
has actual knowledge that the subcontractor is employing or contracting with an
illegal alien; and
2. Terminate the subcontract with the subcontractor if within three days of receiving
the notice required pursuant to this section the subcontractor does not cease
employing or contracting with the illegal alien; except that Service Provider shall
not terminate the contract with the subcontractor if during such three days the
subcontractor provides information to establish that the subcontractor has not
knowingly employed or contracted with an illegal alien.
e. Service Provider shall comply with any reasonable request by the Colorado Department
of Labor and Employment (the “Department”) made in the course of an investigation that
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the Department undertakes or is undertaking pursuant to the authority established in
Subsection 8-17.5-102 (5), C.R.S.
f. If Service Provider violates any provision of this Agreement pertaining to the duties
imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this
Agreement is so terminated, Service Provider shall be liable for actual and consequential
damages to the City arising out of Service Provider’s violation of Subsection 8-17.5-102,
C.R.S.
g. The City will notify the Office of the Secretary of State if Service Provider violates this
provision of this Agreement and the City terminates the Agreement for such breach.
Section 7. Special Provisions.
Special provisions or conditions relating to the services to be performed pursuant to this
Agreement are set forth in Exhibit C, Affidavit Pursuant to C.R.S. 24-76.5-103, consisting of
one (1) page, attached hereto and incorporated herein by this reference.
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IN WITNESS WHEREOF, the parties here to have executed this Agreement on the day and
year written above.
THE CITY OF FORT COLLINS, COLORADO
A Municipal Corporation
By: ____________________________________
Gerry S. Paul
Director of Purchasing and Risk Management
Date: _____________________________
ATTEST:
________________________
City Clerk
APPROVED AS TO FORM:
________________________
Assistant City Attorney
CONCESSIONAIRE:
MILE HIGH LOBSTER SHACK LLC
By:________________________________
Print Name: _________________________
Title: _______________________________
Date: ________________________
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owner
8/28/2014
Nancy Van Reeth
8/29/2014
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EXHIBIT A
CONCESSION SITE MAP
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EXHIBIT B
INSURANCE REQUIREMENTS
1. The Service Provider will provide, from insurance companies acceptable to the City, the
insurance coverage designated hereinafter and pay all costs. Before commencing work
under this bid, the Service Provider shall furnish the City with certificates of insurance
showing the type, amount, class of operations covered, effective dates and date of
expiration of policies, and containing substantially the following statement:
"The insurance evidenced by this Certificate will not be cancelled or materially altered,
except after ten (10) days written notice has been received by the City of Fort Collins."
In case of the breach of any provision of the Insurance Requirements, the City, at its option,
may take out and maintain, at the expense of the Service Provider, such insurance as the
City may deem proper and may deduct the cost of such insurance from any monies which
may be due or become due the Service Provider under this Agreement. The City, its
officers, agents and employees shall be named as additional insureds on the Service
Provider's general liability and automobile liability insurance policies for any claims arising
out of work performed under this Agreement.
2. Insurance coverages shall be as follows:
A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain
during the life of this Agreement for all of the Service Provider's employees engaged in
work performed under this Agreement:
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 $1,000,000 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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New insurance
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EXHIBIT C
AFFIDAVIT PURSUANT TO C.R.S. 24-76.5-103
I, ______________ ____, swear or affirm under penalty of
perjury under the laws of the State of Colorado that (check one):
___ I am a United States citizen, or
___ I am a Permanent Resident of the United States, or
___ I am lawfully present in the United States pursuant to Federal law.
I understand that this sworn statement is required by law because I have applied for a
public benefit. I understand that state law requires me to provide proof that I am lawfully
present in the United States prior to receipt of this public benefit. I further acknowledge
that making a false, fictitious, or fraudulent statement or representation in this sworn
affidavit is punishable under the criminal laws of Colorado as perjury in the second
degree under Colorado Revised Statute 18-8-503 and it shall constitute a separate
criminal offense each time a public benefit is fraudulently received.
___________________________ _______________
Signature Date
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8/28/2014
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