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HomeMy WebLinkAboutRFP - 8750 TENNIS CONCESSIONAIRERFP 8750 Tennis Concessionaire Page 1 of 34 REQUEST FOR PROPOSAL 8750 TENNIS CONCESSIONAIRE The City of Fort Collins is requesting proposals for a concessionaire to operate tennis programs including the Rolland Moore Park Tennis Pro Shop. As part of the City’s commitment to Sustainable Purchasing, proposals submission via email is preferred. Proposals shall be submitted in a single Microsoft Word or PDF file under 20MB and e-mailed to: purchasing@fcgov.com. If electing to submit a hard copy proposal instead, one (1) hard copy and one (1) electronic copy on a jump drive, will be received at the City of Fort Collins' Purchasing Division, 215 North Mason St., 2nd floor, Fort Collins, Colorado 80524. Proposals must be received before 3:00 p.m. (our clock) on August 15, 2018 and referenced as Proposal No. 8750. If delivered, they are to be sent to 215 North Mason Street, 2nd Floor, Fort Collins, Colorado 80524. If mailed, the address is P.O. Box 580, Fort Collins, 80522-0580. Please note, additional time is required for bids mailed to the PO Box to be received at the Purchasing Office. The City encourages all Disadvantaged Business Enterprises (DBEs) to submit proposals in response to all requests for proposals. No individual or business will be discriminated against on the grounds of race, color, sex, or national origin. It is the City’s policy to create a level playing field on which DBEs can compete fairly and to ensure nondiscrimination in the award and administration of all contracts. All questions should be submitted, preferably in writing via email, to Beth Diven, Buyer at (970) 221-6216 or bdiven@fcgov.com, with a copy to Project Manager, Marc Rademacher, at mrademacher@fcgov.com, no later than 5:00 PM MST (our clock) on August 3, 2018. Please format your e-mail to include: RFP 8750 Tennis Concessionaire in the subject line. Questions received after this deadline may not be answered. Responses to all questions submitted before the deadline will be addressed in an addendum and posted on the Rocky Mountain E-Purchasing System webpage. Rocky Mountain E-Purchasing System hosted by Bidnet A copy of the RFP may be obtained at http://www.bidnetdirect.com/colorado/city-of-fort-collins. This RFP has been posted utilizing the following Commodity Code(s): 805-51 Sporting Goods, Athletic Equipment and Athletic Facility Equipment. Games: Croquet, Dart Boards, Shuffleboards, Table Tennis Tetherball, etc. Public Viewing Copy: 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. All provisions of any contract resulting from this request for proposal will be public information. Firms are allowed to submit one (1) additional complete proposal clearly marked “FOR PUBLIC VIEWING.” In this version of the proposal, the firm will redact all text and/or data that it wishes to be considered confidential and denote the information as “proprietary” or “confidential”. Information considered proprietary is Financial Services Purchasing Division 215 N. Mason St. 2nd Floor PO Box 580 Fort Collins, CO 80522 970.221.6775 970.221.6707 fcgov.com/purchasing RFP 8750 Tennis Concessionaire Page 2 of 34 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. New Vendors: The City requires new vendors receiving awards from the City to fill out and submit an IRS form W-9 and to register for Direct Deposit (Electronic) payment. If needed, the W-9 form and the Vendor Direct Deposit Authorization Form can be found on the City’s Purchasing website at www.fcgov.com/purchasing under Vendor Reference Documents. Please do not submit with your proposal. 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. Utilization of Award by Other Agencies: The City of Fort Collins reserves the right to allow other state and local governmental agencies, political subdivisions, and/or school districts to utilize the resulting award under all terms and conditions specified and upon agreement by all parties. Usage by any other entity shall not have a negative impact on the City of Fort Collins in the current term or in any future terms. The selected vendor shall be expected to sign the City’s standard Agreement without revision prior to commencing Services (see sample attached to this Proposal). Sincerely, Gerry Paul Purchasing Director RFP 8750 Tennis Concessionaire Page 3 of 34 I. BACKGROUND & OBJECTIVE / OVERVIEW A. Objective The City of Fort Collins is requesting proposals for a concessionaire to operate tennis programs including the Rolland Moore Park Tennis Pro Shop. The selected Vendor will sell merchandice; provide pro-shop services; conduct lessons, tournaments and other tennis programs; and rent equipment from the pro-shop building.. B. Background The City of Fort Collins, Recreation Division, has operated the Rolland Moore Racquet Center since 1984 with an outside vendor running the operation since approximately 1998. The Vendor should be able to provide a complete package of services and merchandise to the citizens of Fort Collins. • The Racquet Center has eight (8) hard surface tennis courts, two (2) Quick start Courts, and three (3) outdoor racquetball courts. The Vendor will have exclusive rights to give private, semi-private and group lessons on all the above courts. • The Vendor will also have priority access to the thirty-five (35) additional City- owned tennis courts and will be responsible for all scheduling and collection of fees. II. SCOPE OF PROPOSAL A. Scope of Work City expectations of the Vendor: • 3 years of full-time experience running a tennis facility, preferably a public facility • 5 years of overall tennis programming experience • Ability and knowledge to both run pro-shop operations and program tennis activities. • Certified USPTA Elite pro • Other USPTA Pros on staff recommended At a minimum, the selected Vendor must provide: • Racquet stringing services • Ball machine rentals (Vendor must supply machine and tennis balls) • Tennis lessons and other tennis activities on City-owned tennis courts • Instructors, payment to instructors and equipment for any tennis programs • Sale of tennis related items in the pro-shop • Distribution of Recreation Division literature in the pro-shop • Registration for all tennis activities including on-line registration • A price list for all products and services, updated annually at the time of Agreement renewal. RFP 8750 Tennis Concessionaire Page 4 of 34 • Scheduling for all City-owned courts • Rental fee collection from court rentals using fees set by the City Recreation Division • Tennis program marketing for the growth of tennis in Fort Collins • Quarterly and monthly reports that detail total program participation and court usage • A schedule of courts for the public to access, both at the courts and online. The Vendor shall have exclusive rights to: • Pro Shop for sales of goods and services. • Providing private, semi-private, and group lessons; clinics, tournaments, and other tennis activities at the Rolland Moore Racquet Center and other City-owned courts. • Priority use of all City-owned courts. The Vendor shall have the use of the following City-owned equipment. Maintenance of such equipment shall be the responsibility of the Vendor. • Four (4) interior steel company lockers • Misc. Office furniture: Desk and table • Merchandise displays, including wall mounts B. Key Areas of Responsibility The Vendor will be responsible for: • Scheduling and collection of fees for all City-owned courts • Care, cleaning and minor maintenance of the Pro-Shop building • Care and cleaning of the storage shed northwest of the pro shop • General cleaning of the area around the pro shop • Payment of telephone and data line expenses related to the Pro Shop operation • Care of any City property used in the Pro Shop • Providing registration materials to the Recreation Communications office • Reporting maintenance concerns to the proper park crew chief. • Payment to City on a (monthly) basis. • Informing Outdoor Sports Facility Scheduler of tennis court schedules • Providing tennis programs (lessons, leagues, tournaments etc..) to the citizens of Fort Collins • Running background checks on all staff that will work with the public • Providing Roll-Dris or other court drying devices • Providing the public a schedule of court usage RFP 8750 Tennis Concessionaire Page 5 of 34 • Providing customer service to the tennis community • Provide website with pro-shop hours, court availability/schedules, online registration and other information about the tennis program The City will be responsible for: • Maintenance of the courts, buildings and surrounding areas • Providing marketing assistance for new activities offered by the Vendor, space for general tennis information in each issue of the recreation program brochures, assistance in targeting new tennis audiences in the community, and assistance with solicitation of interns form area universities. • Landscaping care and maintenance. Trash removal from City trash containers. • Establishing rental court fees • Entering large events and other Tennis Court schedules into the City’s Event Management System (EMS). C. Anticipated Schedule The following represents the City’s the target schedule for the RFP. The City reserves the right to amend the target schedule at any time. • Question deadline: 5:00 PM MST on August 3, 2018 • Proposal due date: 3:00 MST (our clock) on August 15, 2018 • Interviews (tentative): Week of August 27, 2018 D. Interviews In addition to submitting a written proposal, the top rated vendors may be interviewed by the City of Fort Collins and asked to do an oral presentation about their company and approach to the project. The evaluation criteria for the oral interviews will be the same as the criteria for the written evaluations and is included in Section IV. E. Proposal Format Please limit the total length of the proposal to a maximum of twenty-five double sided or fifty single sided 8 ½ x 11” pages (excluding cover pages, table of contents, dividers and Vendor Statement form). Font shall be a minimum of 10pt Arial and margins are limited to no less than .5” for sides and top/bottom. Extended page sizes, such as 11” x 17”, count as a single page. Please, no embedded documents. Proposals that do not conform to these requirements may be rejected. F. Fees, Licenses, Permits The successful Vendor shall be responsible for obtaining any necessary licenses, fees or permits without additional expense to the City. All equipment shall be properly licensed and insured, carry the appropriate permits and be placarded as required by law. G. Laws and Regulations The Vendor agrees to comply fully with all applicable State of Colorado and Federal laws and regulations and municipal ordinances. The Vendor further agrees to comply fully with RFP 8750 Tennis Concessionaire Page 6 of 34 the Occupational Safety and Health Act, all regulations issued there under and all state laws and regulations enacted and adopted pursuant thereto. III. PROPOSAL SUBMITTAL For this section, Vendors are required to provide detailed written responses to the following items in the order outlined below. The responses shall be considered technical offers of what the Vendor proposes to provide and shall be incorporated in the contract award as deemed appropriate by the City. A proposal that does not include all the information required may be deemed non-responsive and subject to rejection. Responses must include all the items in the order listed below. It is suggested that the Vendor includes each of the City’s questions with their response immediately following the question. The City of Fort Collins shall not reimburse any vendor for costs incurred in the preparation and presentation of their proposal. A. Cover Letter / Executive Summary The Executive Summary should highlight the content of the proposal and features of the program offered. Also include a description of the Vendor’s philosophy in providing pro- shop services to the Fort Collins tennis community and a statement of your company philosophy concerning customer service. Indicate your availability to participate in the interviews/demonstrations on the proposed dates as stated in the Schedule section. B. Vendor Information 1. Describe the Vendor’s history and experience in pro-shop and public tennis operations. 2. Number of years in the business. 3. Details about ownership. 4. An overview of qualifications. 5. Primary contact information including contact name(s) and title(s), mailing address(s), phone number(s), and email address(s). Complete Section VI, Vendor Statement. C. Scope of Proposal 1. Provide a detailed narrative of the proposed programs and required services. The narrative should include any options that may be beneficial for the City to consider. 2. A schedule of planned operational days and hours for the Pro Shop. Such schedule should cover an entire year of operations. 3. Describe how the program would be managed and who would have primary responsibility for its timely and professional implementation. 4. Describe the methods and timeline of communication your firm will use with the City’s Project Manager and other parties. 5. Identify what portion of work, if any, may be subcontracted. 6. Complete and include Section V, Pricing & Payment Schedule RFP 8750 Tennis Concessionaire Page 7 of 34 D. Firm Capability Provide relevant information regarding previous experience related to this or similar Projects, to include the following: 1. A list of qualifications for your firm and qualifications and experience of the specific staff members proposed. 2. References (current contact name, current telephone number and email address) from at least three individuals or firms with whom you have worked within the past five (5) years and that have knowledge of the staff proposed to work on this project. Provide a description of the work performed. The Vendor authorizes City to verify any and all information contained in the Vendor’s submittal from references contained herein and hereby releases all those concerned providing information as a reference from any liability in connection with any information they give. E. Assigned Personnel 1. List of Project Personnel: This list should include the identification of the contact person with primary responsibility for this Agreement, the personnel proposed for this Agreement, and any supervisory personnel, including partners and/or sub consultants, and their individual areas of responsibility. 2. A resume for each person assigned to the Agreement, including partners and/or sub consultants, shall be submitted. Please limit resumes to one page. 3. Some functions of this project may require the use of sub-consultants. If you intend to utilize sub-consultants you must list each and provide resumes. F. Sustainability/TBL Methodology In concise terms (no more than two pages), please describe how your organization strives to be sustainable. Address how your firm incorporates Triple Bottom Line (TBL) into the workplace. See Section IV: Review and Assessment for additional information. If possible, please highlight areas of opportunity in the project where sustainability could be applied and/or improved. G. Additional Information Provide any information that distinguishes vendor from its competition and any additional information applicable to this RFP that might be valuable in assessing vendor’s proposal. Explain any concerns vendor may have in maintaining objectivity in recommending the best solution. All potential conflicts of interest must be disclosed. Exceptions to the Scope of Services and City Agreement (a sample of which is attached in Section VII) shall be documented. IV. REVIEW AND ASSESSMENT CRITERIA A. Proposal and Interview Criteria Vendors will be evaluated on the following criteria. These criteria will be the basis for review and assessment of the written proposals and optional interview session. At the discretion of the City, interviews of the top-rated vendors may be conducted. RFP 8750 Tennis Concessionaire Page 8 of 34 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 address all elements of the RFP? Does the proposal show an understanding of the project objectives, methodology to be used and results/outcomes required by the project? Are there any exceptions to the specifications, Scope of Work, or agreement? 2.0 Assigned Personnel Do the persons who will be working on the project have the necessary skills and qualifications? Are sufficient people of the requisite skills and qualifications assigned to the project? 1.0 Availability Do the Vendor’s proposed operating hours meet our minimum requirements. 1.0 Sustainability/TBL Methodology Does the firm demonstrate a commitment to Sustainability and incorporate Triple Bottom Line methodology in both their Scope of Work for the project, and their day-to-day business operating processes and procedures? 2.0 Cost Are the proposed payments and costs reasonable? 2.0 Firm Capability Does the Vendor have the resources, financial strength, capacity and support capabilities required to successfully operate the concession? Definitions Sustainable Purchasing is a process for selecting products or services that have a lesser or reduced negative effect on human health and the environment when compared with competing products or services that serve the same purpose. This process is also known as “Environmentally Preferable Purchasing” (EPP), or “Green Purchasing”. The Triple Bottom Line (TBL) is an accounting framework that incorporates three dimensions of performance: economic, or financial; environmental, and social. The generally accepted definition of Andrew Savitz for TBL is that it “captures the essence of sustainability by measuring the impact of an organization’s activities on the world…including both its profitability and shareholders values and its social, human, and environmental capital.” RFP 8750 Tennis Concessionaire Page 9 of 34 B. Reference Evaluation Criteria Prior to award, the Project Manager will check references using the following criteria. The evaluation rankings will be labeled Satisfactory/Unsatisfactory. QUALIFICATION STANDARD Overall Performance Would you hire this vendor again? Did they show the skills required by this project? Timetable Was the original Scope of Work completed within the specified time? Were interim deadlines met in a timely manner? Completeness Was the vendor responsive to client needs; did the vendor anticipate problems? Were problems solved quickly and effectively? Budget Was the original Scope of Work completed within the project budget? Job Knowledge If a study, did it meet the Scope of Work? If vendor administered a construction contract, was the project functional upon completion and did it operate properly? Were problems corrected quickly and effectively? RFP 8750 Tennis Concessionaire Page 10 of 34 V. PAYMENT & PRICING SCHEDULE Provide payment amounts and pricing to cover the following items: Payment amounts of gross income to City for the following: Percentage a. Pro Shop Concession Sales and Service proceeds % b. Lessons (private, semi-private and group), Clinics and Tournaments % c. Any other Vendor organized events and programs held on City tennis courts or at other City facilities % d. Racquet Stringing Services % e. Ball Machine Rentals % f. Court Scheduling/Rental % g. Clinics % h. Tournaments % Cost to the Public for the following services: Per Hour a. Ball Machine Rental $ b. Private Lessons $ c. Semi-Private Lessons $ d. Group Lessons $ e. Racquet Stringing (per racquet) $ Other Services (optional): Please describe any additional services to be offered and the associated costs in the space bellow. RFP 8750 Tennis Concessionaire Page 11 of 34 VI. VENDOR STATEMENT Vendor hereby acknowledges receipt of the City of Fort Collins Request for Proposal and acknowledges that it has read and agrees to be fully bound by all of the terms, conditions and other provisions set forth in the RFP. Additionally, Vendor hereby makes the following representations to City: a. All of the statements and representations made in this proposal are true to the best of the Vendor’s knowledge and belief. b. Vendor commits that it is able to meet the terms provided in this proposal. c. This proposal is a firm and binding offer, for a period of 90 days from the date hereof. d. Vendor further agrees that the method of award is acceptable. e. Vendor also agrees to complete the proposed Agreement with the City of Fort Collins within 30 days of notice of award. If contract is not completed and signed within 30 days, City reserves the right to cancel and award to the next highest rated firm. f. Vendor acknowledge receipt of addenda. Firm Name: Physical Address: Remit to Address: Phone: Authorized Agent of Firm Name: Signature of Authorized Agent: Primary Contact for Project: Title: Email Address: Phone: Cell Phone: NOTE: VENDOR STATEMENT IS TO BE SIGNED & RETURNED WITH YOUR PROPOSAL. RFP 8750 Tennis Concessionaire Page 12 of 34 VII. SAMPLE CONCESSION AGREEMENT (FOR REFERENCE ONLY – DO NOT SIGN ) TENNIS CONCESSION AGREEMENT This Tennis 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, whose principal offices are at 300 LaPorte Avenue, Fort Collins, Colorado 80521, hereinafter called "City," and , whose principal offices are at , hereinafter called "Contractor", regarding certain services to be provided at Rolland Moore Park, 2201 S. Shields Street, Fort Collins, Colorado, 80526 (the "Park"). WITNESETH: ARTICLE 1 Golf Services Contractor agrees to provide pro shop services in accordance with the Scope of Services description, attached as Exhibit "A" and incorporated herein by this reference, such services to be provided primarily by the Contractor. ARTICLE 2 Grant of Pro Shop Concession The City grants and Contractor accepts the responsibility of operating a Tennis Pro Concession in accordance with the Scope of Services description attached as Exhibit "B" and incorporated herein by this reference. ARTICLE 3 Concession Space For the purposes of this Agreement, the "Concession Space" shall mean any and all parts of the pro shop building at the Park. ARTICLE 4 Contractor's Use of the Concession Space 4.1 In General. Subject to other limitations expressed in this Agreement, the City grants to Contractor the right to exclusive use of the Concession Space and the right to use in common with others the public areas of the Park, in conjunction with its operations under this Agreement, in such spaces and manner as may be prescribed by the City. 4.2 Smoking Prohibited. Pursuant to the Fort Collins City Code, smoking is prohibited in the Concession Space, and no person shall smoke outside within twenty (20) feet from any entrance, passageway, operable window or ventilation system of the Concession Space, including outdoor patios unless such person is passing through the area, without stopping, en route to another destination. The Contractor shall inform persons violating this provision of the applicable law and request their compliance. 4.3 Restriction on Items Offered for Sale. In no event shall Contractor offer for sale or otherwise supply smoking instruments or tobacco at the Park. RFP 8750 Tennis Concessionaire Page 13 of 34 4.4 Compliance with Applicable Law. The Contractor agrees to comply fully with all applicable state and federal laws and regulations and municipal ordinances, as well as all rules, regulations, policies, and procedures adopted by the City. ARTICLE 5 Rights of Ingress and Egress 5.1 In General. The Contractor shall have the right of ingress and egress to and from the Concession Space for Contractor's employees, agents and invitees to the extent reasonably necessary in connection with the conduct of Contractor's business under this Agreement. Areas designated as restricted areas by the City shall be excluded. 5.2 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 the Park, presently or hereafter used as such, so long as reasonable and safe means of ingress and egress remains available to Contractor. ARTICLE 6 Undertakings of Contractor 6.1 Service. Contractor agrees: 6.1.1 The Contractor shall furnish and pay for all equipment, except as otherwise provided by the City pursuant to Article 10, all goods, labor, transportation, supervision and services necessary to provide services in accordance with this Agreement. 6.1.2 Contractor acknowledges the desire and obligation of the City to provide a high level of service to the public. Therefore, Contractor agrees to offer for sale from the Concession Space only high quality merchandise and products. If, in the opinion of the City, the selection of items offered is inadequate or not of high quality or if any of the items are found to be objectionable for display and/or sale in a public facility, the items shall be removed or replaced as required by the City. The City Representative shall meet and confer with Contractor regarding such matters. However, Contractor acknowledges that the City's determination as to the same shall be conclusive. Failure of Contractor to correct, rectify or modify its quality within five (5) days of being advised in writing to do so shall be cause for default. 6.1.3 Contractor warrants that all Services and related responsibilities performed under this Agreement shall be performed with the highest degree of competence and care and in accordance with the highest professional and management standards. 6.1.4 Personal Services. It is understood that the City enters into this Agreement based on the special abilities of the Contractor and that this Agreement shall be considered as an agreement for his/her personal services. Accordingly, the Contractor shall neither assign any responsibilities nor delegate any duties designated to the Contractor under this Agreement to any other person without the prior written consent of the City, and as otherwise set forth in Article 15. 6.2 Hours of Operation. Subject to the exception for inclement weather expressed below, the Contractor will be required to provide services under this Agreement as follows: A. During the months of , from to ; RFP 8750 Tennis Concessionaire Page 14 of 34 B. During the months of , from to ; C. Exceptions to the schedule may be made, subject to the consent of the City, if closing is dictated by weather. 6.3 Contractor Personnel. Contractor shall control the conduct and demeanor of its agents and employees. Contractor 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. 6.3.1 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 this Agreement. The Contractor shall keep a written record of all hours worked by volunteers and provide this information to the City on a monthly basis or upon request. The Contractor and the City acknowledge and agree that certain services provided by Contractor will require that employees, volunteers, and other representatives or agents of the Contractor 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 members of the general public. Accordingly, Contractor agrees to perform, prior to acceptance of employment, background screening of all employees, volunteers, and other representatives or agents of the Contractor at Contractor’s expense. 6.3.2 In the event that a background check, or any other information available to the Contractor or the City, raises questions about the trustworthiness, fitness for provision of services under this Agreement, competency 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. 6.3.3 In the event the City has concerns regarding the 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 Contractor, the Contractor 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. 6.3.4 The following constitute unacceptable personal conduct that the parties acknowledge and agree shall be subject to reasonable objection by the City. The parties acknowledge this list is not meant to be exhaustive, and other conduct not listed in this Section may be determined by the City to reasonably impair Contractor's ability to provide satisfactory services under this Agreement, and may also give rise to a reasonable objection by the City to which Contractor shall be expected to respond as set forth herein. In the event the Contractor, or anyone providing services for the Contractor 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 Contractor hereunder, the City may give Contractor notice of violation and proceed in the manner as set forth in Section 17.1.9. RFP 8750 Tennis Concessionaire Page 15 of 34 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, including any breach of the terms set forth in Exhibit C, attached hereto; D. Falsification, unauthorized use or destruction of City records, reports or other data or information belonging to the City; E. Abusive or threatening treatment of any person, including, but not limited to physical or verbal confrontation; F. Using, consuming, possessing, having in the body or distributing alcohol (except in the normal performance of concession services) or controlled substances during working time; G. Destruction, loss or abuse of City property; H. Unauthorized use of City equipment or property for personal use; or I. Possessing or maintaining sexually explicit materials on City property; J. Failure to meet the City’s performance expectations. 6.4. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Contractor represents and agrees that: 6.4.1. As of the date of this Agreement: A. Contractor does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and B. Contractor 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. 6.4.2. Contractor 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. 6.4.3. Contractor 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. RFP 8750 Tennis Concessionaire Page 16 of 34 6.4.4. If Contractor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Contractor shall: A. Notify such subcontractor and the City within three days that Contractor 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 Contractor 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. 6.4.5. Contractor 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. 6.4.6. If Contractor 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, Contractor shall be liable for actual and consequential damages to the City arising out of Contractor’s violation of Subsection 8-17.5-102, C.R.S. 6.4.7. The City will notify the Office of the Secretary of State if Contractor violates this provision of this Agreement and the City terminates the Agreement for such breach. 6.5 Statements, Recordkeeping and Audits. Contractor 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 Contractor hereby grants to the City the right to audit Contractor's books and records for its operation at the Golf Course 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 the Park, at the City's election, all records, books and relevant related information as may be required for audit purposes. 6.6.1 Annual financial statements are required to be filed with the City representative on or before April 15th for the prior year. 6.6 Physical Interference. Contractor 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 in the Concession Area or elsewhere at the Park. 6.7 Taxes. Contractor agrees to pay all local, state and federal social security, unemployment insurance, sales, use, personal property, possessory interest, and other taxes, assessments and payments-in-lieu which, during the term of this Agreement or any extension hereof, may become a lien of which may be levied or charged by the State, County, City of Fort Collins or other tax-levying body upon or with respect to the Concession Space or the Golf Course, upon any taxable interest acquired by the Contractor in this Agreement, or any taxable RFP 8750 Tennis Concessionaire Page 17 of 34 possessory right which Contractor may have in or to the Concession Space or facilities or the improvements thereon, by reason of Contractor's occupancy or use thereof, or otherwise, as well as all taxes on taxable property, real or personal, owned by Contractor or taxes on Contractor's operations or activities in or about the Concession Space or elsewhere at the Park. However, except as otherwise permitted by this Agreement, no charges, fees or taxes of any nature shall be imposed by the City solely upon Contractor for exercising any right or privilege granted by the City to Contractor in this Agreement with respect to the use of the Concession Space. Nothing herein shall prevent Contractor from protesting, through due process, any taxes levied. 6.8 Licenses. Contractor agrees to obtain and pay for all licenses necessary in connection with its operation. 6.8.1 Any such licenses held by the Contractor in connection with this Agreement shall be surrendered by the Contractor upon termination of this Agreement. 6.8.2 Upon Contractor's surrender of all licenses and acquisition of new licenses by such replacement Contractor as the City may select, the City shall reimburse Contractor 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 Contractor's surrender to license expiration. ARTICLE 7 Term 7.1 Period. The term of this Agreement shall commence on and unless terminated sooner, shall expire on . This Agreement shall be automatically renewed for up to four (4) additional one (1) year terms unless the Contractor is in default beyond any applicable cure period or unless one party serves written notice to the other party of its intention to terminate the Agreement, provided such written notice must be served at least ninety (90) days prior to the anniversary date of the Agreement. 7.2 Holding Over. In the event that the Contractor, 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 8 Fee For Services/Fee For Conducting Business 8.1 Concession Fee. For the privilege of conducting the concession operations hereunder, the Concessionaire shall pay to the City an amount equal to ( ) percent of gross pro shop sales and service proceeds; private, semi-private and group lesson fees; clinic and tournament fees; other court/equipment rental fees; and fees charged for any other Concessionaire-organized events and programs held on City tennis courts or at other City facilities. 8.2 Time of Payment. The Concessionaire shall pay the Concession Fee to the City, on a monthly basis, in no event, later than the twentieth day of the month for concession fees due from the previous month RFP 8750 Tennis Concessionaire Page 18 of 34 8.3 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. 8.4 Method of Payment. Payment for all fees under Article 6 shall be by check or money order payable to the order of "City of Fort Collins" and shall be mailed or personally delivered to the Recreation Supervisor of Sports, 413 S. Bryan, Fort Collins, CO 80521. ARTICLE 9 Utilities, Maintenance and Janitorial Duties 9.1 Utilities. The City shall pay all charges for water, storm water, sewer, gas, trash collection, recycling, basic clubhouse security system services, telephone, and electric services to the Concession Space. The Contractor shall pay for any Pro Shop televisions, cable or satellite services, or expanded security services. Contractor is responsible for any cable/satellite TV charges. 9.2 Maintenance and Repair. The City shall maintain and repair the Concession Space and City equipment and fixtures (defined in Article 10). Contractor 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 Contractor for failure to make repairs as herein specifically required of it unless the Contractor 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 Contractor's written notification. 9.2.1 The Contractor 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, whether said breakage or stoppage results from freezing or otherwise. 9.3 Cleaning and Janitorial. The Contractor shall keep the Concession Space and its fixtures clean and in good sanitary condition as required by the ordinances, resolutions, policies, statutes, and health, sanitary and police regulations of the City of Fort Collins, County of Larimer, and State of Colorado. 9.3.1 Contractor shall thoroughly clean the entire Concession Space, including all equipment and fixtures, whether provided by the City or Contractor, and the windows, floors, counters, at a minimum of three times per year. Contactor shall schedule inspections with the City representative after scheduled cleaning and provide all receipts associated with cleaning work. 9.3.2 Contractor is responsible for the ongoing cleanliness of the Concession Space in order to provide a clean and orderly appearance for golfers and the public, including but not limited to, chairs, patio, floor areas and removing trash accumulations to designated trash containers. 9.3.3 Contractor shall maintain clean and orderly restrooms in the Concession Space throughout operating hours. 9.3.4 Contractor shall be responsible for the daily cleaning of all outside entrances to the concession space. RFP 8750 Tennis Concessionaire Page 19 of 34 9.3.5 Contractor is responsible for snow removal from pathways leading to the Concession Space when the course is open. ARTICLE 10 Acceptance and Trade Fixtures 10.1 Concession Space, City Equipment and Fixtures. In addition to the Concession Space, the City shall provide the following: 10.1.1 Existing equipment as listed on Exhibit "D", attached hereto and made a part hereof; 10.1.2 Lighting fixtures for general area illumination; 10.1.3 Heat and air conditioning; 10.1.4 Pro shop counters, storage units and safe; and 10.1.5 One cash register and/or computerized system, and credit card machine for use by Contractor in connection with performance of services and sales under this Agreement. 10.1.6 Pro Shop Carpeting. 10.2 Acceptance. On the date of commencement of this Agreement, Contractor shall acknowledge that it accepts the Concession Space as well as any City equipment and fixtures "as is." 10.3 Installation of Equipment and Trade Fixtures. Except for the items listed on Exhibit "E", attached hereto and made a part hereof, no equipment, trade fixtures, signs or other personal property used by Contractor in its business, whether or not attached to the Concession Space or any Improvements thereon, shall be installed without the prior written approval of the City. 10.4 Removal of Equipment, Trade Fixtures. Contractor shall have the right at any time during the term of this Agreement or upon termination and within thirty (30) days thereafter, to remove all trade fixtures, equipment and other personal property owned by Contractor, subject to any valid lien the City may have thereon. Any property not so removed by Contractor upon termination shall become a part of the realty on which it is located and title thereto shall vest in the City. 10.5 Title to Improvements. Upon installation or erection of Improvements by Contractor, such Improvements (but excluding any of Contractor'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. 10.6 Applicable Law. All Improvements and all trade fixtures, equipment or other personal property installed by Contractor shall be subject to and conform in all respects to the applicable statutes, ordinances, building codes, sign codes, rules and regulations of all governmental agencies which have jurisdiction over such matters. RFP 8750 Tennis Concessionaire Page 20 of 34 ARTICLE 11 Damage by Contractor Contractor shall be liable for and shall repair, replace or cause to be repaired or replaced within fifteen (15) days after occurrence, any damage to the Concession Space, or to City's property, equipment and fixtures (defined in Article 10) caused by Contractor, its board members, 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. ARTICLE 12 Total or Partial Destruction 12.1 Concession Space or Other Major Component Rendered Untenantable. In case, during the term of this Agreement, the Concession Space, Golf Course 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: 12.1.1 Then, in such event, at the option of the City or Contractor, the term hereby created shall cease; and this Agreement shall become null and void from the date of such damage or destruction; and Contractor shall immediately surrender the Concession Space and its interest therein to the City; provided, however, that the City or Contractor 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. 12.1.2 In the event neither the City nor Contractor shall elect to terminate this Agreement, this Agreement shall continue in full force and effect; and the City shall repair the Concession Space, Clubhouse, or Golf Course excluding improvements or equipment, signs, trade fixtures or other personal property installed by Contractor, with all reasonable speed, placing the same in as good a condition as it was at the time of the damage or destruction. 12.2 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 Contractor's use. 12.3 Components Tenantable. If the Concession Space or Golf Course shall be only injured by fire, flood, 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. 12.4 Removal of Rubbish. In any event, upon the occurrence of damage or destruction, Contractor 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. 12.5 Exception for Damage Caused by Contractor. In the event of damage caused by Contractor as more specifically addressed in Article 11 of this Agreement, the provisions of Article 11 shall govern in any conflict between Article 11 and Article 12. 12.6 No Claim by Contractor. No compensation or claim shall be made by or allowed to Contractor by reason of any inconvenience or annoyance arising from the necessity of RFP 8750 Tennis Concessionaire Page 21 of 34 repairing any portion of the Concession Space or Collindale Golf Course, however the necessity may occur. ARTICLE 13 Indemnification and Insurance 13.1 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 Concession Space by Contractor, its agents, employees or contractors unless caused or contributed to by the negligence or willful misconduct of the City, its employees, agents or contractors. 13.2 Indemnification. Contractor covenants that it will indemnify and hold the City harmless from all claims, demands, judgments, costs and expenses, 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 Contractor. As used herein, the term "Contractor" and "City" includes the respective directors, officers, agents, employees and contractors of Contractor and City. 13.3 Patent Representation. Contractor 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. 13.4 Contractor Insurance. Without limiting any of the Contractor's obligations hereunder, the Contractor shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement with limits specified in Exhibit "F", which is attached hereto and incorporated herein by this reference. 13.5 Precautions Against Injury. The Contractor shall take all necessary precautions in performing the operations hereunder to prevent injury to persons and property. 13.6 Failure to Insure. Failure of Contractor to take out and/or maintain, or the taking out and/or maintenance of any required insurance shall not relieve Contractor from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with the obligations on Contractor concerning indemnification. ARTICLE 14 No Interest in Real Property Contractor 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 Contractor any interest in real property. ARTICLE 15 Assignment The Contractor 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 Contractor's interest created hereby, other than by merger or consolidation unless approved by City. RFP 8750 Tennis Concessionaire Page 22 of 34 ARTICLE 16 Right of City to Enter, Inspect and Make Repairs 16.1 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 Contractor's operation as is reasonably practicable) to enter upon any part of the Concession Space for the following purposes: 16.1.1 To inspect such premises at reasonable intervals during regular business hours (or at any time in case of emergency) to determine whether Contractor has complied with and is complying with the terms and conditions of this Agreement with respect to such premises; 16.1.2 To perform or cause to be performed maintenance and make repairs and replacements: and 16.1.3 To make structural additions and alterations. 16.2 Obstruction by City. All entries made for the purposes enumerated above shall, except as otherwise provided in Article 12, Total or Partial Destruction, be without abatement of damage for inconvenience. 16.3 Obstruction by Contractor. In the event that any personal property of Contractor 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, Contractor 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 Contractor 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. 16.4 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 Contractor, nor be made the grounds for any abatement of 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 17 Default, Rights of Termination 17.1 Default by Contractor. Time is of the essence in the performance of services and payments of any amounts due under this Agreement. Contractor shall be in default under this Agreement upon the occurrence of any one or more of the following events: 17.1.1 Contractor's failure to pay any fee or other charge when due, or provide acceptable financial reports if requested by the City within five (5) workings days after notice from City of such nonpayment or request. 17.1.2 Contractor's failure to maintain the insurance required in Section 13.4. 17.1.3 Contractor's assignment of any right hereunder in violation of Article 15. RFP 8750 Tennis Concessionaire Page 23 of 34 17.1.4 Contractor'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. 17.1.5 The filing by Contractor of a voluntary petition in bankruptcy, the filing of an involuntary petition in bankruptcy against Contractor, the taking of possession of all or substantially all of Contractor'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 Contractor's assets and the failure of Contractor to secure the return of such assets and/or the dismissal of such proceeding within thirty (30) days after the filing. 17.1.6 The abandonment for a period of (7) calendar days by Contractor of the conduct of its services and operations. 17.1.7 The assignment by Contractor of its assets for the benefit of creditors. 17.1.8 The death of the Contractor or his/her inability to provide services under this Agreement for an aggregate period of 45 days or more during any annual term of this Agreement. 17.1.9 After written notice to the Contractor of any violation of the personal conduct or performance standards set forth in Section 6, above, and a hearing of the matter before the City's Director of Purchasing, if such a hearing has been requested in writing received by the Director of Purchasing 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 Contractor'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. 17.2 City's Remedies on Default. 17.2.1 In the event of a default by Contractor, the City may terminate this Agreement effective immediately upon provision of written notice of such termination to Contractor. In the alternative, the City may elect to keep the Agreement in force and work with Contractor to cure the default. If this Agreement is terminated, Contractor shall refund to the City that portion of the Golf Services Fee paid by the City pursuant to Section 8.2 proportional to the time remaining in the calendar month at the time of the Contractor's default, and the City shall have the right to take possession of the Concession Space at the time of default. Contractor's liability to City for damages 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. RFP 8750 Tennis Concessionaire Page 24 of 34 17.2.2 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. 17.3 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. 17.4 Termination Notice. Notwithstanding the time periods contained herein, in the event the City elects to renew this agreement beyond the term in paragraph 7.1, either party may terminate this Agreement effective December 31st of the respective contract year without cause by providing written notice to the other party. Such notice shall be delivered at least ninety (90) days prior to December 31st. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the addresses provided in Section 18.15, below. ARTICLE 18 Miscellaneous Provisions 18.1 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 Contractor, 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. 18.2 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. 18.3 Non-liability of Individuals Other than Contractor. With the exception of Contractor, 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. 18.4 Limitations on Use. Contractor shall not use, or permit the use of the Concession Space, or any part thereof, for any purpose or use other than those authorized by this Agreement. Neither shall Contractor permit nor suffer any disorderly noise or nuisance whatsoever about the Concession Space. 18.5 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. 18.6 Benefits. This Agreement is made for the sole and exclusive benefit of the City and Contractor, their successors and assigns, and is not made for the benefit of any third party. 18.7 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. RFP 8750 Tennis Concessionaire Page 25 of 34 18.8 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. 18.9 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. 18.10 Attorney 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 attorneys' fees and costs to be allowed in such action or proceeding and in any appeal therefrom. 18.11 Contract Documents, Entire Agreement. This writing, together with the exhibits hereto constitutes the entire agreement between the parties, their officers, employees, agents and assigns and supersedes all prior agreements, understandings, warranties or promises between the parties hereto, whether written, spoken or implied from the conduct of the parties hereto. 18.12 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 City or Contractor in his/her or its respective rights and obligations under the valid covenants, conditions or provisions of this Agreement. 18.13 Surrender of Possession. Upon the expiration of this Agreement or its earlier termination as herein provided, Contractor shall remove all of its property from the Park and surrender entire possession of its rights at the Park to City and its improvements in accordance with Section 11 above, unless this Agreement is renewed or replaced. 18.14 City Representative. The City designates the Director of Parks, 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. 18.15 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: Contractor: City: Copy to: Attn: City of Fort Collins Attn: PO Box 580 Fort Collins, CO 80522 City of Fort Collins Attn: Purchasing Dept PO Box 580 RFP 8750 Tennis Concessionaire Page 26 of 34 Fort Collins, CO 80522 18.16 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. 18.17 Force Majeure. However, neither the City nor the Contractor 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. 18.18 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. 18.19 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. It is agreed that in the performance of the golf services and concession operation hereunder, the Contractor is an independent contractor responsible to the City only as to the results to be obtained and to the extent that the services and operation shall be done in accordance with the terms of this Agreement. 18.20 Survival. To the extent necessary to carry out all of the terms and provisions hereof, the said terms, obligations and rights set forth herein required shall survive and shall not be affected by the expiration or termination of this Agreement. RFP 8750 Tennis Concessionaire Page 27 of 34 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation By:_________________________________ Gerry Paul Purchasing Director Date:_______________________________ ATTEST: ________________________ APPROVED AS TO FORM: ________________________ CONTRACTOR'S NAME By: Printed: Date: RFP 8750 Tennis Concessionaire Page 28 of 34 EXHIBIT A SCOPE OF SERVICES RFP 8750 Tennis Concessionaire Page 29 of 34 EXHIBIT B SCOPE OF PRO SHOP SERVICES I. Pro Shop. A. The Contractor shall operate a pro shop which shall stock a variety of tennis equipment (for sale and rent), supplies and related merchandise in sufficient quantity to meet the demands of customers. B. The Contractor shall provide all merchandise and display fixtures, stock, supplies and inventory for the shop. II. Merchandise Quality, Price Control. Contractor acknowledges the desire and obligation of City to provide the public high quality merchandise and a high level of public service. Therefore, Contractor agrees to offer for sale from the pro shop only high quality merchandise at prices not to exceed the prices customarily charged for similar merchandise in high quality Fort Collins area operations. If, in the opinion of the City, the selection of items offered is inadequate, if the merchandise is not of high quality, if any of the prices, charges and rates are excessive, or if any of the items are found to be objectionable for display and/or sale in a public facility, a representative of the City shall meet and confer with Contractor regarding such matters, but Contractor acknowledges that the City's determination as to same shall be conclusive. Failure of Contractor 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. Contractor shall not offer for sale gift certificates, vouchers, punch cards, or other similar services, except to the extent the same are restricted and limited in duration to one year or less. III. Use of the Pro Shop. The Contractor shall use any and all parts of the pro shop for the purpose of operating the concessions and for other incidental purposes only. The pro shop shall not be used for any other purpose without the prior written consent of City. IV. Maintenance and Repairs. A. The City shall be responsible to maintain and repair the interior and exterior of the pro shop. The City shall not in any way be liable to the Contractor for failure to make repairs unless the Contractor 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 notification. B. The Contractor shall be liable for and shall reimburse the City for the cost of any repairs or damage caused by any act or negligence of the Contractor or its agents or employees. C. The Contractor shall secure the retail pro shop area and shall provide janitorial services to that area, keeping it clean and in good sanitary condition as required by the ordinances, regulations and statutes of the City of Fort Collins, County of Larimer and State of Colorado and this Agreement. D. The Contractor shall neither hold nor attempt to hold the City liable for any injury or damage, either proximate or remote, occasioned through or caused by defective electrical wiring or the breaking or stoppage of plumbing or sewage in or upon the clubhouse, whether said breakage or stoppage results from freezing or otherwise. RFP 8750 Tennis Concessionaire Page 30 of 34 E. The Contractor shall not permit nor suffer the pro shop or the walls thereof to be endangered by overloading nor permit it to be used for any purpose which would render the insurance thereon void or insurance risks more hazardous without prior written consent of the City, which consent may be conditioned upon the Contractor obtaining additional specific insurance coverage for such more hazardous risks. V. Alterations and Improvements. A. All alterations, additions, improvements or changes to the pro shop by the Contractor subsequent to the commencement of the term shall be subject to the prior written approval of the City. B. The City reserves the right, from time to time (without invalidating or modifying this Agreement), to make alterations, changes and additions to the land and improvements of which the pro shop forms a part. C. The Contractor hereby indemnifies and agrees to hold the City harmless from all liens, claims or charges on account of any alterations, additions, improvements or changes to the pro shop by Contractor. D. At the end of the term of this Agreement, all fixtures, equipment, additions and alterations, except trade fixtures installed by the Contractor, shall be and remain the property of the City. Provided, however, the City shall have the option to require the Contractor to remove any or all such fixtures, equipment, additions and alterations and restore the pro shop to the condition that existed immediately prior to such change and installation, normal wear and tear excepted, all at the Contractor's cost and expense. All such work shall be done in a good and workmanlike manner and shall consist of new materials unless otherwise agreed to by the City. RFP 8750 Tennis Concessionaire Page 31 of 34 EXHIBIT C DISCRIMINATION PROHIBITED (A) Contractor agrees to comply with Title VI of the Civil Rights Act of 1964 as amended, Title VIII of the Civil Rights Act of 1968 as amended, Section 104(b) and Section 109 of Title I of the Housing and Community Development Act of 1974 as amended, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063, and Executive Order 11246 as amended by Executive Orders 11375, 11478 and 12086. Contractor shall not, on the grounds of race, color, sex, religion, national origin, creed, marital status, or age: (1) Deny a qualified individual any facilities, financial aid, services or other benefits provided under this Agreement; (2) Provide any facilities, services, financial aid, or other benefits which are different, or are provided in a different manner, from those provided to others under this Agreement; (3) Subject an individual to segregated or separate treatment in any facility in, or in any matter if process related to receipt of any service or benefit under this Agreement; (4) Restrict an individual in any way in access to, or in the enjoyment of any advantage or privilege enjoyed by others in connection with any service or benefit under this Agreement; (5) Treat anyone differently from others in determining if they satisfy any admission, enrollment, eligibility, membership or other requirement or condition which the individual must meet to be provided a service or benefit under this Agreement; (6) Deny anyone an opportunity to participate in any program or activity as an employee that is different from that afforded others under this Agreement. Contractor shall: (1) Utilize the City’s third-party translation service provider as required to provide meaningful language access to persons with limited English proficiency; and (2) Post written notices of non-discrimination in its facilities and make available to its clients a Title VI complaint form, in a form reasonably acceptable to the City. (B) Contractor shall abide by all applicable provisions of Section 504 of the HEW Rehabilitation Act of 1973 as amended (implemented in 24 CFR part 8) prohibiting discrimination against handicapped individuals, and the Age Discrimination Act of 1975 (implemented in 24 CFR part 146) prohibiting discrimination on the basis of age, either through purpose or intent. RFP 8750 Tennis Concessionaire Page 32 of 34 EXHIBIT D CITY-OWNED INVENTORY Provided: Desk and other city owned furniture Mounted Wall inventory rack RFP 8750 Tennis Concessionaire Page 33 of 34 EXHIBIT E CONTRACTOR-PROVIDED PERSONAL PROPERTY RFP 8750 Tennis Concessionaire Page 34 of 34 EXHIBIT F INSURANCE REQUIREMENTS 1. The Contractor 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 Contractor shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies. The City, its officers, agents and employees shall be named as additional insureds on the Service Provider 's general liability insurance policy 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 Liability. The Service Provider shall maintain during the life of this Agreement such commercial general 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 coverage, Commercial General, shall not be less than: • $1,000,000 combined single limits for bodily injury and property damage • $2,000,000 for General Aggregate • $1,000,000 for Products Liability