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HomeMy WebLinkAboutJORDAN POPOVICH DBA PROFOUND GROUNDS - CONTRACT - RFP - 7407 DOWNTOWN CONCESSIONAIRESDowntown Concessionaires- Jordan Popovich Page 1 of 12 DOWNTOWN CONCESSION AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation (City), and Jordan Popovich dba Profound Grounds (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 # 4 Public Row, SE corner of Mountain and College Avenue intersection, for daytime use only. 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 incorporated herein. These form the contract, and are incorporated herein by this reference. Section 2. Terms of the Agreement A. This Agreement shall be effective upon signing until May 31, 2016, unless sooner terminated as herein provided. Either party may terminate this Agreement without cause, by providing written notice to the other party of its intention to terminate at least thirty (30) days prior to the end of the then existing term. B. In the event that the concession location can not 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 # 4 concession area (per Exhibit “A” - Site Map) for day use only outdoor vending. The DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 Downtown Concessionaires- Jordan Popovich Page 2 of 12 Concessionaire shall have the exclusive right to operate an outdoor vending concession with this area in accordance with the Agreement. A. Independent Contractor: The services to be performed by the Concessionaire are those of an independent contractor and not as an employee of the City. The City shall not be responsible for withholding any portion of Concessionaire's compensation hereunder for the payment of FICA, Worker's Compensation or otherwise. B. Records: The Concessionaire shall keep adequate and proper business records of all expenses and receipts of the concession operations. At the request of the City, all such business records shall be made open and available for inspection and audit by the City of Fort Collins 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. 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 upon contract execution. D. Licenses: The Concessionaire shall obtain and pay for all licenses needed for the operation of the concession including, but not necessarily limited to, a County Health Department Food Services establishment inspection, City and State sales tax licenses. Any such licenses held specifically by the Concessionaire in connection with this Agreement shall be surrendered by the Concessionaire at the time of termination of this Agreement. E. Laws, Rules & Regulations: The operation of the concession granted under this Agreement shall, at all times, conform with all applicable Federal, State, and local laws and with all applicable rules and regulations adopted by the City or any of its Boards or Departments. F. Insurance/Indemnity: The Concessionaire shall indemnify, save and hold harmless the City from all claims and losses, including costs and reasonable attorney’s fees arising directly or indirectly out of the Concessionaire's use of the concession area or operation of the concession. The Concessionaire shall maintain insurance as specified within Exhibit “B”, consisting of one (1) page and incorporated herein by this reference. The Concessionaire, before commencing services hereunder, shall submit to the City’s Purchasing Department, one (1) copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 Downtown Concessionaires- Jordan Popovich Page 3 of 12 G. Signage: All signs on the concession cart must be approved by the City. Signs may be displayed in or on the cart only unless additional signage is approved by City staff. H. 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 area. The City reserves the right to approve any modifications, changes, or alternative cart. The cart is subject to inspection by City. The cart must be maintained and repaired to the City's satisfaction. The cart must be removed from the site when not in use. I. Restrictions: Equipment such as tents, 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 10 X 10 feet, excepting only a tarp or other protective medium placed to protect underlying surface. Cart must be located in approved location on site and cannot impede pedestrian flow on the sidewalk. J. Cleanliness: Concessionaire shall keep the concession area clean of all trash within 100 foot radius of site. Food concessionaires must use a tarp under cart to minimize grease deposits and pay site cleaning fee. Concessionaire shall pay sixty Dollars ($60) per month cleaning fee for power washing of the site granted. The monthly cleaning fee for power washing of the site granted will be waived for the months of December, January and February. 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: Propane shall be the only power source used for mobile cart operations. 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 supply the need of parties desiring to patronize the concession area. DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 Downtown Concessionaires- Jordan Popovich Page 4 of 12 N. Hours: The Concessionaire must keep the concession area open for business as directed by the City. Days of operation shall be agreed to by both parties and the minimum hours of operation must be maintained. Concessionaire has sole rights to the concession area from 6:00 AM to 6:00 PM. Minimum days are: Monday, Tuesday, Wednesday and Thursday. Concessionaire is not required to operate on national holidays or holidays recognized by the City where City offices (except for emergency services offices) are closed. O. Inclement Weather: The Concessionaire shall not be required to operate the concession when it is raining, snowing, hailing, and abnormally windy or when the air temperature is below 50 degrees Fahrenheit. P. Product. The products authorized are as described in Concessionaire’s proposal and agreed to by the City. The City will not pre-authorize new products but does reserve the right to review any new products that may be added. This is to ensure that the new products meet the same quality and pricing as those proposed. Q. Blackout Dates. Concessionaire will not be allowed to operate on granted site during the following special events in the downtown area: Old Town Car Show, Colorado Brewers Festival and New West Fest. Dates for the 2015 season are: May 30th, June 27th, June 28th, August 14th, August 15th and August 16th. Contact the Downtown Business Association (DBA) at (970) 484-6500 to receive an application for a site at these events. 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. Vacant sites resulting from either no-bid or termination may be filled at anytime or remain vacant for the duration of the current contract term, as solely determined by the City. C. This Agreement may not be enlarged, modified or altered except in writing, signed by the parties as an amendment hereto. DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 Downtown Concessionaires- Jordan Popovich Page 5 of 12 D. No waiver of any breach of this Agreement shall be held or construed to be a waiver of any subsequent breach thereof. E. It is expressly understood and agreed by and between the parties hereto that in the performance of the terms and conditions of this Agreement, time is of the essence. F. The location assigned is not transferable to another vendor or Concessionaire. G. Fixtures and Improvements: 1. The Concessionaire agrees that all auxiliary equipment needed to operate the Concession shall be installed at its expense. Prior to making any and all improvements on said premises, the Concessionaire agrees to obtain the approval of the appropriate City Department and shall supervise the construction of said improvements. 2. Upon the termination of this Agreement the Concessionaire shall remove any fixtures or improvements made by it to the concession area. However, the concession area must be restored to as good a condition as the premises were in at the time the Concessionaire took possession thereof. H. This Agreement shall be binding upon and inure to the benefit of the heirs, successors, and assigns of the parties hereto. I. If either party must resort to legal action to enforce the terms of this Agreement, the prevailing party shall be awarded its costs and reasonable attorney's fees. J. Any notice required or desired to be given under this Agreement will be considered delivered to the other party upon hand delivery or upon its deposit in the United States mail, postage prepaid, sent by registered mail, addressed to the other party at the following address: City: Concessionaire: City of Fort Collins Purchasing Division P.O. Box 580 Fort Collins, CO 80522 Jordan Popovich dba Profound Grounds 1218 Country Acres Court Johnstown, CO 80534 K. Notwithstanding the time periods contained herein, either party may terminate this Agreement at any time without cause by providing written notice of termination to the other party. Such notice shall be delivered at least thirty (30) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 Downtown Concessionaires- Jordan Popovich Page 6 of 12 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 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., Concessionaire represents and agrees that: A. As of the date of this Agreement: 1. Concessionaire does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. Concessionaire will participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the “e-Verify Program”) or the Department Program (the “Department Program”), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. B. Concessionaire shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. C. Concessionaire is prohibited from using the e-Verify Program or Department Program procedures to undertake pre-employment screening of job applicants while this Agreement is being performed. DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 Downtown Concessionaires- Jordan Popovich Page 7 of 12 D. If Concessionaire obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Concessionaire shall: 1. Notify such subcontractor and the City within three days that Concessionaire has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Concessionaire shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. E. Concessionaire shall comply with any reasonable request by the Colorado Department of Labor and Employment (the “Department”) made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. F. If Concessionaire violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Concessionaire shall be liable for actual and consequential damages to the City arising out of Concessionaire’s violation of Subsection 8-17.5-102, C.R.S. G. The City will notify the Office of the Secretary of State if Concessionaire violates this provision of this Agreement and the City terminates the Agreement for such breach. 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. DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 Downtown Concessionaires- Jordan Popovich Page 8 of 12 CITY OF FORT COLLINS, COLORADO a municipal corporation By:_______________________________ Gerry Paul Director of Purchasing and Risk Management Date:_____________________________ ATTEST: _________________________________ City Clerk APPROVED AS TO FORM: ________________________________ Assistant City Attorney JORDAN POPOVICH DBA PROFOUND GROUNDS By:_______________________________ __________________________________ PRINT NAME __________________________________ CORPORATE PRESIDENT OR VICE PRESIDENT Date:_____________________________ DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 10/26/2015 owner Jordan Popovich 10/27/2015 Downtown Concessionaires- Jordan Popovich Page 9 of 12 EXHIBIT A SITE MAP DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 Downtown Concessionaires- Jordan Popovich Page 10 of 12 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. DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 Downtown Concessionaires- Jordan Popovich Page 11 of 12 DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0 Downtown Concessionaires- Jordan Popovich Page 12 of 12 DocuSign Envelope ID: C37972B9-7AC3-4498-986C-70706C400EE0