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HomeMy WebLinkAboutEASTER SEALS COLORADO - CONTRACT - RFP - 8343 ON-SITE CONCESSIONS - SOUTH TRANSIT CENTERCONCESSION AGREEMENT This Concession Agreement, hereinafter called the "Agreement," is made and entered into as of the day and year set forth below, by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, hereinafter called "City," and, EASTER SEALS COLORADO, a Colorado Nonprofit Corporation, hereinafter called "Concessionaire." ARTICLE 1 Concession Space 1.1 Definition of Concession Space. For the purposes of this Agreement, the "Concession Space" shall mean the following area at South Transit Center (STC), 4915 Fossil Blvd, Fort Collins, CO 80525. 1.1.1 The designated Concession Space located in STC. 1.2 Use of Concession Space. The Concessionaire shall have the use of the Concession Space for the purpose of offering food, coffee and non-alcoholic beverages, and related services, to STC patrons. ARTICLE 2 Concessionaire's Use of STC and the Concession Space 2.1 In General. Subject to other limitations expressed in this Agreement, the City grants to Concessionaire the right to exclusive use of the Concession Space and the right to use in common with others the public areas of the Concession Space facilities in conjunction with its food and beverage operations (and for no other purpose) in such spaces and manner as may be prescribed by the City. 2.2 Smoking. Smoking instruments and tobacco products of any kind will not be sold or otherwise supplied by Concessionaire at Concession Space facilities. Smoking is not permitted in any areas within 20 feet of facility entrances. Concessionaire shall comply with any other requirements of applicable Fort Collins City ordinances and Colorado state law regarding smoking and tobacco products. 2.3 Restriction on Items Offered for Sale. Concessionaire may offer such non-food or non-beverage items as are incidental to its food and beverage service, except for chewing gum and smoking instruments and tobacco products, pursuant to section 2.2 herein. 2.4 Compliance with Applicable Law. The Concessionaire agrees to comply fully with all applicable state and federal laws and regulations and municipal ordinances, as well as all applicable rules and regulations, policies, and procedures adopted by the City or any of its Boards, Service Areas, Service Units, Divisions or Departments having jurisdiction over STC. ARTICLE 3 Rights of Ingress and Egress 3.1 In General. The Concessionaire shall have the right of ingress and egress to and from the STC and Concession Space for Concessionaire's employees, agents and invitees to the extent reasonably necessary in connection with the conduct of Concessionaire's business under this Agreement. Areas designated as restricted areas by the City shall be excluded. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 1 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D 3.2 Closures. The City may, at any time, temporarily or permanently, close or consent to or request the closing of any roadway or any other way at, in, or near STC, presently or hereafter used as such, so long as a reasonable and safe means of ingress and egress remains available to the Concessionaire. ARTICLE 4 Undertakings of Concessionaire 4.1 Service. Concessionaire agrees as follows: 4.1.1 The Concessionaire shall furnish and pay for all equipment, except as otherwise provided by the City pursuant to Article 9, all goods, labor, transportation, supervision and services necessary to provide food and beverage services in accordance with this Agreement. 4.1.2 Services provided by the Concessionaire shall include the maintenance of an adequate stock of food and beverage supplies, condiments, eating utensils, napkins, plates, cups, and any kitchen utensils necessary to serve the demand for such items at STC. 4.1.3 Concessionaire acknowledges the desire and obligation of the City to provide the public high quality food and beverages and a high level of public service. Therefore, Concessionaire agrees to offer for sale from the Concession Space only good quality food and beverages at fair and competitive pricing, relative to comparable restaurant facilities in Fort Collins. If, in the opinion of the City, the pricing is not comparable, or the selection of items offered is inadequate or not of good quality, or if any of the items are found to be objectionable for display and/or sale in a public facility, then the pricing shall change or the items shall be removed or replaced as required by the City. The City Representative shall meet and confer with Concessionaire regarding such matters. However, Concessionaire acknowledges that the City's determination as to the same shall be conclusive. Failure of Concessionaire to correct, rectify or modify its prices or quality within five (5) days of being advised in writing to do so shall be cause for default. 4.1.4 Concessionaire shall submit to the City for review a list of all items to be sold in the concession area, and proposed prices for all such items. The Concessionaire shall submit to the City in writing all subsequent item and price changes for review. 4.2 Hours of Operation. Subject to the exception for inclement weather, expressed in 4.2.1 below, the Concessionaire will be required to provide daily food and beverage services in the concession area at STC year round. 4.2.1 The Concession Area will be open for business from 8am to 4pm Monday through Friday and Saturday from 9am to 3pm, but may vary due to special events and operations. The STC will be staffed with City Customer Service Representatives Monday through Friday. The STC will be open to the public on Saturday, but will not be staffed by City Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 2 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D employees. The STC is currently not scheduled to be open to the public on Sundays. Additionally, the STC will not be open to the public on the following holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. The Concessionaire shall not operate the concession when the STC facility is closed to the public. These closures include weather-related closures. Any other hours of operation will be mutually agreed upon between the Concessionaire and the Project Manager. 4.3 Concessionaire Personnel. Concessionaire shall control the conduct and demeanor of its agents and employees. If the City so requests, Concessionaire agrees to supply and require its employees to wear suitable attire and to wear or carry badges or other suitable means of identification, the form of which shall be subject to prior and continuing approval of the City. 4.3.1 The Concessionaire agrees to provide to the City at all times a current list of employees, volunteers, and other representatives or agents of Concessionaire that will be working on behalf of Concessionaire in providing services to the City under this Agreement. The Concessionaire and the City acknowledge and agree that certain services provided by Concessionaire will require that employees, volunteers, and other representatives or agents of Concessionaire act in positions of trust which will entail the handling of and accounting for funds of the City and City property, or direct contact with youth and other members of the general public. Accordingly, Concessionaire agrees that all employees, volunteers, and other representatives or agents of the Concessionaire in positions of trust shall be background screened, at Concessionaire’s expense. The City reserves the right to review background screenings with reasonable notice to the Concessionaire. 4.3.2 In the event that a background check, or any other information available to the Concessionaire or the City, raises questions about the trustworthiness, fitness for provision of services under this Agreement, competence or suitability of any individual for a position of trust of any kind, including handling of funds, City equipment or property, or working with youths or other members of the general public, such individual shall not be employed or allowed to volunteer in connection with the services or activities required or permitted under this Agreement, or in a manner that would permit contact by that person with the funds, equipment, property associated with the provision of services hereunder, or persons participating in programs or services provided under this Agreement. 4.3.3 Upon receipt of written notice from the City of any reasonable objection from the City concerning trustworthiness, fitness for provision of services Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 3 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D under this Agreement, competence or suitability of any individual for a position of trust of any kind, or concerning conduct, demeanor or competence of any employee or volunteer of Concessionaire, the Concessionaire shall immediately take all lawful steps to remove or otherwise address to the City's reasonable satisfaction the cause of the objection or to remove such individual from the performance of any services provided hereunder. 4.3.4 The following constitute unacceptable personal conduct that the parties acknowledge and agree shall be subject to reasonable objection by the City. The parties acknowledge that other conduct not listed in this Section may be determined by the City to be reasonably expected to impair Concessionaire's ability to provide satisfactory services under this Agreement, and may also give rise to a reasonable objection by the City to which Concessionaire shall be expected to respond as set forth herein. In the event that Concessionaire, or the individual site manager, if different from Concessionaire, commits any of the following examples of unacceptable conduct, or fails or refuses to take reasonable action to correct such conduct by any person providing services for or on behalf of Concessionaire hereunder, the City may give Concessionaire notice of violation and proceed in the manner as set forth in Section 16.1.9. a) Theft or misuse of money or property; b) Commission or conviction of a felony or of any crime involving moral turpitude; c) Harassment of, or discrimination against, any individual based on race, religion, national origin, age, sex, sexual orientation or disability; d) Falsification, unauthorized use or destruction of City property; e) Abusive or threatening treatment of any person, including, but not limited to physical or verbal confrontation; f) Insubordination or refusal to comply with directives or assignments; g) Using, consuming, possessing, having in the body, or distributing alcohol or controlled substances during working time; h) Incompetence, inattention to duties or wastefulness while on the job; i) Failure to meet performance expectations of job or not performing duties or functions assigned; j) Engaging in personal business while on the job or engaging in outside employment which interferes with job performance; k) Repeated tardiness, absenteeism; and l) Job Abandonment (unreported absences of three days or more) 4.4 Statements, Recordkeeping and Audits. The Concessionaire shall keep and maintain proper business records concerning every aspect of the concession Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 4 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D operation, and employee management, including expenses and receipts. All records, including Income Tax Records, are to be open for inspection and audit by the City with reasonable notice to Concessionaire. 4.5 Physical Interference. Concessionaire shall not do, nor permit to be done, anything which may interfere with the effectiveness or accessibility of the drainage system, sewerage system, fire protection system, sprinkler system, alarm system and fire hydrants and hoses, if any, installed or located at STC. 4.6 Taxes. Concessionaire agrees to pay all local, state and federal social security, unemployment insurance, sales, use, personal property, possessory interest, and other taxes, assessments and payments-in-lieu which, during the term of this Agreement or any extension hereof, may become a lien of which may be levied or charged by the State, County, City of Fort Collins or other tax-levying body upon or with respect to the Concession Space at STC, upon any taxable interest acquired by the Concessionaire in this Agreement, or any taxable possessory right which Concessionaire may have in or to the Concession Space or facilities or the improvements thereon, by reason of Concessionaire's occupancy or use thereof, or otherwise, as well as all taxes on taxable property, real or personal, owned by Concessionaire or taxes on Concessionaire's operations or activities in or about the Concession Space at STC. However, except as otherwise permitted by this Agreement, no charges, fees or taxes of any nature shall be imposed by the City solely upon Concessionaire for exercising any right or privilege granted by the City to Concessionaire in this Agreement with respect to the use of the Concession Space at STC. Nothing herein shall prevent Concessionaire from protesting, through due process, any taxes levied. 4.7 Licenses. Concessionaire agrees to obtain and pay for all licenses necessary in connection with its operation, including but not limited to, a County Health Department Food Services Establishment inspection, and a City business license and/or occupation license. Failure to qualify for a required license, or failure to obtain any such license within thirty (30) days of execution of this Agreement shall constitute a default hereunder. 4.7.1 Any such licenses held by the Concessionaire in connection with this Agreement shall be surrendered by the Concessionaire upon termination of this Agreement. 4.7.2 Upon Concessionaire's surrender of all licenses and acquisition of new licenses by such replacement concessionaire as the City may select, the City shall reimburse Concessionaire for such proportional amount of the cost of the license as may be attributable to any remaining period which may exist from the date of Concessionaire's surrender to license expiration. 4.8 Vending Machines. This Agreement does not include Concessionaire's use of vending machines in the supplying of food, beverages or incidental items. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 5 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D ARTICLE 5 Employing Illegal Aliens 5.1 Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Concessionaire represents and agrees that: 5.1.1 As of the date of this Agreement: a. Concessionaire does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and b. Concessionaire will participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the “e-Verify Program”) or the Department Program (the “Department Program”), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. 5.1.2 Concessionaire shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. 5.1.3 Concessionaire is prohibited from using the e-Verify Program or Department Program procedures to undertake pre-employment screening of job applicants while this Agreement is being performed. 5.1.4 If Concessionaire obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Concessionaire shall: a. Notify such subcontractor and the City within three days that Concessionaire has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and b. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Concessionaire shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. 5.1.5 Concessionaire shall comply with any reasonable request by the Colorado Department of Labor and Employment (the “Department”) made in the course of an investigation that the Department undertakes or is Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 6 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D undertaking pursuant to the authority established in Subsection 8-17.5- 102 (5), C.R.S. 5.1.6 If Concessionaire violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Concessionaire shall be liable for actual and consequential damages to the City arising out of Concessionaire’s violation of Subsection 8-17.5- 102, C.R.S. 5.1.7 The City will notify the Office of the Secretary of State if Concessionaire violates this provision of this Agreement and the City terminates the Agreement for such breach. ARTICLE 6 Term 6.1 Period. The Agreement shall commence upon the date of execution shown on the signature page of the Agreement and shall continue in full force and effect for one (1) year. In addition, the Agreement may be extended for an additional one year period not to exceed four (4) additional one year periods. However, either party may terminate this Agreement without cause, by providing written notice to the other party of its intention to terminate at least thirty (30) days prior to the end of the then existing term. 6.2 Holding Over. In the event that the Concessionaire, or its successor in interest, if any, shall remain beyond the term set forth herein, although no right to remain is given by this Article, it is the intention of the parties and it is hereby agreed that a right of use from month-to-month shall then arise subject to all provisions and conditions of this Agreement in connection with such right, except that the City shall have the sole right to determine reasonable fees for any holdover period. ARTICLE 7 Fee For Conducting Business 7.1 Concession Fee. Pursuant to the concession operations hereunder, and the exclusive use of the Concession Space, no funds, profit sharing or fees shall be exchanged by the parties. 7.1.1 During the term of the Agreement, Concessionaire shall provide busing and janitorial services described in Section 8.3, at the Concession Space/Area. ARTICLE 8 Utilities, Maintenance and Janitorial Duties 8.1 Utilities. The City shall pay all charges for water, storm water, sewer, gas, trash collection, recycling, basic facility security system, natural gas and electric services to the Concession Space. 8.2 Maintenance and Repair. The City shall maintain and repair the Concession Space and City provided equipment and fixtures (defined in Article 9). Concessionaire shall submit all requests for repairs or maintenance to the City Representative. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 7 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D Notwithstanding anything to the contrary contained herein, the City shall not in any way be liable to the Concessionaire for failure to make repairs as herein specifically required of it unless the Concessionaire has previously notified the City in writing of a need for such repairs, and the City has failed to commence and complete said repairs within a reasonable period of time following receipt of the Concessionaire's written notification. 8.2.1 The Concessionaire shall neither hold nor attempt to hold the City liable for any injury or damage, either approximate or remote, occasioned through or caused by defective electrical wiring or the breaking or stoppage of plumbing or sewage upon the Concession Space, whether said breakage or stoppage results from freezing or otherwise. 8.3 Cleaning and Janitorial. The Concessionaire shall keep the Concession Space and its fixtures clean and in good sanitary condition as required by the ordinances, resolutions, statutes and health, sanitary and police regulations of the City of Fort Collins, County of Larimer and State of Colorado. 8.3.1 Concessionaire shall thoroughly clean the entire Concession Space, including all equipment and fixtures, whether provided by the City or Concessionaire, the grills and exhaust, ovens, floors, sinks counters, refrigerators and all coils, a minimum of (4) times per year (quarterly). 8.3.2 Concessionaire is responsible for the ongoing cleanliness of the Concession Space in order to provide a clean and orderly appearance for patrons, including but not limited to, removing trash accumulations to designated trash and recycling containers. ARTICLE 9 Acceptance and Trade Fixtures 9.1 Concession Space, City Equipment and Fixtures. In addition to the Concession Space, the City shall provide the following: 9.1.1 Existing equipment as listed below: Equipment QTY Refrigerator 1 Refrigerated Display Case 1 Under Counter Refrigerator 1 Under Counter Freezer 1 Hand Sink 1 Dishwasher 1 3 Compartment Sink 1 Ice Maker 1 9.1.2 Lighting fixtures for general area illumination; and 9.1.3 Heat and air conditioning. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 8 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D 9.2 Acceptance. On the date of commencement of this Agreement, Concessionaire shall acknowledge that it accepts the Concession Space as well as any City equipment and fixtures "as is." 9.3 Installation of Equipment and Trade Fixtures. No equipment, trade fixtures, signs or other personal property used by Concessionaire in its business shall be installed without the prior written approval of the City. 9.4 Removal of Equipment, Trade Fixtures. Concessionaire shall have the right at any time during the term of this Agreement or upon termination and within ten (10) days thereafter, to remove all trade fixtures, equipment and other personal property subject to any valid lien the City may have thereon for unpaid rents or installation of equipment in lieu of Concession Fee pursuant to Article 7. Any property not so removed by Concessionaire upon termination shall become a part of the realty on which it is located and title thereto shall vest in the City. 9.5 Title to Improvements. Upon installation or erection of Improvements, such improvements (but excluding any of Concessionaire's personal property and trade fixtures which are attached or affixed thereto) shall become a part of the realty upon which they are erected and title thereto shall vest in the City. Upon vesting, the Improvements become part of the Concession Space and are subject to the terms applicable to the Concession Space within this Agreement. 9.6 Applicable Law. All Improvements and all trade fixtures, equipment or other personal property installed by Concessionaire shall be subject to and conform in all respects to the applicable statutes, ordinances, building codes, rules and regulations of all governmental agencies which have jurisdiction over such matters. ARTICLE 10 Damage by Concessionaire The Concessionaire shall be liable for and shall repair, replace or cause to be repaired or replaced within fifteen (15) days after occurrence, any damage, including the Concession Space, or to City's property, equipment and fixtures (defined in Article 9) caused by Concessionaire, its officers, agents, employees or anyone acting under its direction and control, ordinary wear and tear excepted. All repairs or replacements shall be made promptly and when necessary and shall be in a quality and of a class at least equal to the original. If the damage for which Concessionaire is liable is to the Concession Space, Concessionaire shall continue to be liable for all rent/fees owed for the Concession Space, even if it has been rendered untenantable. ARTICLE 11 Total or Partial Destruction 11.1 Concession Space or Other Major Component Rendered Untenantable. In case, during the term of this Agreement, the Concession Space, STC or any principal part of any one of them shall be destroyed or shall be so damaged by fire, flood or other casualty so as to be rendered untenantable or unusable as determined by the City: 11.1.1 Then, in such event, at the option of the City or Concessionaire, the term hereby created shall cease; and this Agreement shall become null and Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 9 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D void from the date of such damage or destruction; and Concessionaire shall immediately surrender the Concession Space and its interest therein to the City; provided, however, that the City or Concessionaire shall exercise such option to so terminate this Agreement by notice, in writing, delivered to the other party within thirty (30) days after the City's determination of untenantability or unusability. 11.1.2 In the event neither the City nor Concessionaire shall elect to terminate this Agreement, this Agreement shall continue in full force and effect; and the City shall repair the Concession Space, or facility excluding Improvements or equipment, signs, trade fixtures or other personal property installed by Concessionaire, with all reasonable speed, placing the same in as good a condition as it was at the time of the damage or destruction. 11.2 Concession Space Only Untenantable. In the event of destruction rendering only the Concession Space untenantable, the City shall endeavor, but not be obligated to make substitute premises available for Concessionaire's use. During any period of use by Concessionaire of such substitute Concession Space, the City may direct that the Concessionaire's Fee shall be abated proportionately. 11.3 Components Tenantable. If the STC Concession Space shall be only injured by fire or the elements to such extent so as not to render the same untenantable and unfit for use and occupancy, the City shall repair the same with all reasonable speed. 11.4 Removal of Rubbish. In any event, upon the occurrence of damage or destruction, Concessionaire shall remove all rubbish, debris, merchandise, furniture, furnishings, equipment and other items of its personal property within five (5) days after request being made by the City. 11.5 Exception for Damage Caused by Concessionaire. In the event of damage caused by Concessionaire as more specifically addressed in Article 10 of this Agreement, the provisions of Article 10 shall govern in any conflict between Article 10 and Article 11. 11.6 No Claim by Concessionaire. No compensation or claim shall be made by or allowed to Concessionaire by reason of any inconvenience or annoyance arising from the necessity of repairing any portion of the STC, however the necessity may occur. ARTICLE 12 Indemnification and Insurance 12.1 City's Liability. The City shall not in any way be liable for any cost, liability, damage or injury, including cost of suit and reasonable expenses of legal services, claimed or recovered by any person whomsoever or whatsoever as a result of any operations, works, acts or omissions performed within STC by Concessionaire, its agents, employees or contractors unless caused by the negligence or willful misconduct of the City, its employees, agents or contractors. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 10 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D 12.2 Indemnification. Concessionaire covenants that it will indemnify and hold the City harmless from all claims, demands, judgments, costs and expenses, and legal fees including attorneys' fees, claimed or recovered (whether justly, unjustly, falsely, fraudulently or frivolously) by any person by reason of injury to or death of any individual person or persons, or by reason of damage to, destruction or loss of use of any property, including City's personnel and City's property, directly or indirectly arising out of, resulting from or occurring in connection with any operations, works, acts or omissions of Concessionaire. As used herein, the term "Concessionaire" includes the respective directors, officers, agents, employees, contractors and subcontractors of Concessionaire. In the event a subcontractor performs any work under this Agreement, the Concessionaire shall be responsible for any liability directly or indirectly arising out of the work performed by such subcontractor. 12.3 Intellectual Property Representation. Concessionaire represents that it is the owner of or is fully authorized to use any and all services, processes, machines, articles, makes, names or slogans used by it in its operation or in any way connected with this Agreement. 12.4 Concessionaire Insurance. Without limiting any of the Concessionaire's obligations hereunder, the Concessionaire shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement as specified in Exhibit “A” consisting of one (1) page, which is attached hereto and incorporated herein by this reference. 12.5 Precautions Against Injury. The Concessionaire shall take all necessary precautions in performing the operations hereunder to prevent injury to persons and property. 12.6 Failure to Insure. Neither the failure of Concessionaire to take out and/or maintain, nor the taking out and/or maintenance of any required insurance shall relieve Concessionaire from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with the obligations of Concessionaire concerning indemnification. In the event the Concessionaire fails to maintain insurance required hereunder, the City may, at its option, take out and maintain at the expense of the Concessionaire such insurance as the City may deem proper. The City may offset the cost of any such insurance from any monies that may be due or become due to the Concessionaire under this Agreement. ARTICLE 13 No Interest in Real Property Concessionaire agrees that this Agreement constitutes merely a right to use and occupy the Concession Space for a limited purpose and does not create or convey to Concessionaire any interest in real property. ARTICLE 14 Assignment The Concessionaire shall not assign this Agreement, sublet or otherwise allow any person to take possession of all or any portion of the Concession Space without prior written consent of the City nor permit any transfer by operation of law of Concessionaire's interest created hereby, other than by merger or consolidation unless approved in writing by the City. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 11 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D ARTICLE 15 Right of City to Enter, Inspect and Make Repairs 15.1 In General. City and its authorized employees, agents, contractors and other representatives shall have the right (at such times as may be reasonable under the circumstances and with as little interruption to Concessionaire's operation as is reasonably practicable) to enter upon any part of the Concession Space for the following purposes: 15.1.1 To inspect such premises at reasonable intervals during regular business hours (or at any time in case of emergency) to determine whether Concessionaire has complied with and is complying with the terms and conditions of this Agreement with respect to such premises; 15.1.2 To perform or cause to be performed maintenance and make repairs and replacements; and 15.1.3 To make structural additions and/or alterations. 15.2 Obstruction by City. All entries made for the purposes enumerated above shall, except as otherwise provided in Article 11, Total or Partial Destruction, be without abatement of rent for damage for inconvenience. However, in the event any entry by City in the Concession Space for the purpose of making repairs or alterations as provided for in Section 15.1.2 above (other than repairs necessitated as a result of damage by Concessionaire under Article 10) constitutes a substantial obstruction to and impairment of Concessionaire's right of use of such Concession Space, then Concessionaire shall be entitled to a fair and just abatement of the rent/fees for such premises during the period required by the City to make such repairs. 15.3 Obstruction by Concessionaire. In the event that any personal property of Concessionaire shall obstruct the access of the City, its officers, employees, agents or contractors, or a utility company furnishing utility service to any of the existing utility, mechanical, electrical and other systems, and thus shall interfere with the inspection, maintenance or repair of any such system, Concessionaire shall move such property, as directed by the City or said utility company, in order that access may be had to the system or part thereof for inspection, maintenance or repair. If Concessionaire shall fail to so move such property after direction from the City or said utility company to do so, the City or the utility company may move it without liability for damage sustained in moving. 15.4 No Eviction or Abatement. Exercise of any or all of the foregoing rights in this Article, by the City, or others under right of the City, shall not be, nor be construed to be, an eviction of Concessionaire, nor be made the grounds for any abatement of rental nor any claim or demand for damages against the City, consequential or otherwise, except claims for damages to person or property caused solely by the negligence of the City. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 12 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D ARTICLE 16 Default, Rights of Termination 16.1 Default by Concessionaire. Time of payment and performance is of the essence of this Agreement. Concessionaire shall be in default under this Agreement upon the occurrence of any one or more of the following events: 16.1.1 Concessionaire's failure to pay any fee or other charge when due and within five (5) workings days after notice from City of such nonpayment. 16.1.2 Concessionaire's failure to maintain the insurance required in Section 12.4. 16.1.3 Concessionaire’s assignment of any right hereunder in violation of Article 14. 16.1.4 Concessionaire's failure to perform, keep or observe any of the terms, covenants or conditions of this Agreement within seven (7) days (or such longer time as may be necessary to cure, provided that cure is commenced within the initial seven [7] days) after notice from the City specifying the nature of the deficiency with reasonable particularity and the corrective action that is to be taken within such period to cure the deficiency. 16.1.5 The filing by Concessionaire of a voluntary petition in bankruptcy, the filing of an involuntary petition in bankruptcy against Concessionaire, the taking of possession of all or substantially all of Concessionaire's assets pursuant to proceedings brought under the provisions of any federal reorganization act or the appointment of a receiver of all or substantially all of Concessionaire's assets and the failure of Concessionaire to secure the return of such assets and/or the dismissal of such proceeding within ninety (90) days after the filing. 16.1.6 The abandonment for a period of (7) days by Concessionaire of the conduct of its services and operations at STC. 16.1.7 The assignment by Concessionaire of its assets for the benefit of creditors. 16.1.8 The death of the Concessionaire or dissolving of the Corporation. 16.1.9 After written notice to the Concessionaire of any violation of the personal conduct standards set forth in Section 4.3, 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 that the alleged violation has, in fact, occurred, and that such violation materially interferes with Concessionaire's ability to perform its services hereunder in a manner satisfactory to the City or otherwise impairs the benefits to be derived from the City by this Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 13 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D Agreement, including the good will, satisfaction, health and safety of the general public. 16.2 City's Remedies on Default. 16.2.1 In the event of a default by Concessionaire, the City may terminate this Agreement effective immediately upon provision of written notice of such termination to Concessionaire. In the alternative, the City may elect to keep the Agreement in force and work with Concessionaire to cure the default. If this Agreement is terminated, the City shall have the right to take possession of the Concession Space at the time of default. Concessionaire's liability to City for damages and rent shall survive the termination, and the City may re-enter, take possession of the Concession Space and remove any persons or property by legal action or by self-help with the use of reasonable force and without liability for damages. 16.2.2 Following re-entry or abandonment, the City may make arrangements for use of the Concession Space by others and in that connection may make any suitable alterations or refurbish the Concession Space, but the City shall not be required to make such arrangement for any use or purpose. 16.3 Rights and Remedies Reserved. It is understood and agreed that any rights and remedies reserved pursuant to this Article are in addition to any other rights or remedies the City may have pursuant to this Agreement or to applicable law to seek judicial enforcement, damages or any other lawful remedy. ARTICLE 17 Miscellaneous Provisions 17.1 Cumulative Rights. All remedies provided in this Agreement shall be deemed cumulative and additional and not in lieu of, or exclusive of, each other or of any other remedy available to the City, or Concessionaire, at law or in equity, and the exercise of any remedy, or the existence herein of other remedies or indemnities shall not prevent the exercise of any other remedy. 17.2 Non-Waiver. The failure by either party to exercise any right or rights accruing to it by virtue of the breach of any covenant, condition or agreement herein by the other party shall not operate as a waiver of the exercise of such right or rights in the event of any subsequent breach by such other party, nor shall such other party be relieved thereby from its obligations under the terms hereof. 17.3 Non-liability of Individuals Other than Concessionaire. With the exception of Concessionaire, no director, officer, agent or employee of either party hereto shall be charged personally or held contractually liable by or to the other party under any term or provision of this Agreement or of any supplement, modification or amendment to this Agreement because of any breach thereof, or because of its or their execution or attempted execution of the same. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 14 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D 17.4 Limitations on Use. Concessionaire 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 Concessionaire permit nor suffer any disorderly noise or nuisance whatsoever about or around the Concession Space. 17.5 Governing Law. This Agreement shall be performable and enforceable in Larimer County, Colorado, and shall be construed in accordance with the laws of the State of Colorado. 17.6 Benefits. This Agreement is made for the sole and exclusive benefit of the City and Concessionaire, their successors and assigns, and is not made for the benefit of any third party. 17.7 Construction. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 17.8 Successors and Assigns. All covenants, stipulations and agreements in this Agreement shall extend to and bind each party hereto, its legal representatives, successors and assigns. 17.9 Headings. The titles of the several articles of this Agreement are inserted herein for convenience only, and are not intended and shall not be construed to affect in any manner the terms and provisions hereof, or the interpretation or construction thereof. 17.10 Legal Fees. In the event any legal action or proceeding is brought to collect sums due or to become due hereunder or any portion thereof or to enforce compliance with this Agreement for failure to observe any of the covenants of this Agreement, the losing party agrees to pay to the prevailing party such sums as the Court may judge reasonable for legal fees, including attorneys' fees and costs, in such action or proceeding and in any appeal there from. 17.11 Incorporation of Request for Proposals/Entire Agreement. Request for Proposal Document, and all specifications included therein, and the Proposal submitted by the Concessionaire in response thereto, are incorporated and made a part of this Agreement by this reference, except that in the event of a conflict between such documents and the express terms of this Agreement, the terms of this Agreement shall prevail. This Agreement, which is the entire agreement between the parties hereto, supersedes all prior agreements, understandings, warranties or promises between the parties hereto, whether written, spoken or implied from the conduct of the parties hereto, except as expressly incorporated herein. 17.12 Severability. In the event any covenant, condition or provision of this Agreement is held to be invalid by final judgment of any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall not in any way affect any of the other covenants, conditions or provisions of this Agreement, provided that the invalidity of any such covenant, condition or provision does not materially prejudice either the City or the Concessionaire in its respective rights and obligations under the valid covenants, conditions or provisions of this Agreement. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 15 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D 17.13 Surrender of Possession. Upon the expiration of this Agreement or its earlier termination as herein provided, Concessionaire shall remove all of its property from STC and surrender entire possession of its rights at STC to the City and its improvements in accordance with Section 10 above, unless this Agreement is renewed or replaced. 17.14 City Representative. The City designates the Project Manager as its representative who shall make, within the scope of his/her authority, all necessary and proper decisions with reference to this Agreement. All requests for contract interpretations, amendments and other clarifications or instructions shall be directed to the City Representative. 17.15 Notices. Notices permitted or required to be given under this Agreement shall be in writing and shall be deemed given upon personal delivery or upon deposit in the United States Mail, certified, return receipt requested, postage fully prepaid, addressed as follows or to such other address as the parties may designate from time to time by notice given in accordance with this Section: City: City of Fort Collins Attn: Purchasing PO Box 580 Fort Collins, CO 80522 Copy to: City of Fort Collins Attn: Kaley Zeisel 6570 Portner Rd. Fort Collins, CO 80525 Concessionaire: Easter Seals Colorado Attn: Katie Dockery 1648 Topaz Drive Loveland, CO 80537 17.16 Paragraph Headings. Paragraph headings contained herein are for convenience and reference, and are not intended to define or limit the scope of any provisions of this Agreement. 17.17 Schedules and Exhibits. Whenever reference is made in this Agreement to a Schedule or an Exhibit, unless otherwise specifically expressed to the contrary, such Schedule or Exhibit shall be deemed attached to and by this reference incorporated in this Agreement. 17.18 Force Majeure. Neither the City nor the Concessionaire shall be deemed in violation of this Agreement if prevented from performing any of its obligations hereunder by reason of strikes, boycotts, labor disputes, embargoes, shortage of energy or materials, acts of God, act of public enemy, acts of superior governmental authority, weather conditions, rights, rebellion, sabotage or any other circumstances that are not within its control. 17.19 No Limitation on General Powers. Nothing in this Agreement shall be construed as in any way limiting the general powers of the City to fully exercise their governmental functions or their obligations under any bond covenants or federal, state or local laws, rules or regulations. 17.20 No Relationship. Nothing contained herein shall be deemed or construed by the parties hereto nor by any third party as creating the relationship of employer and employee, principal and agent or a partnership or a joint venture between the parties hereto. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 16 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D Assistant City Attorney 5/23/2017 City Clerk EXHIBIT A 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 Commercial General shall not be less than $1,000,000 combined single limits for bodily injury and property damage and $300,000 for automotive. 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. Concession Agreement for 8343 On-Site Concessions – South Transit Center Page 18 of 18 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) AUTHORIZED REPRESENTATIVE CANCELLATION CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) JECT LOC POLICY PRO- GEN'L AGGREGATE LIMIT APPLIES PER: CLAIMS-MADE OCCUR COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence) $ DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ DED RETENTION $ CLAIMS-MADE OCCUR $ AGGREGATE $ UMBRELLA LIAB EACH OCCURRENCE $ EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSR LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) LIMITS PER STATUTE OTH- ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNED AUTOS AUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: INSURED PHONE (A/C, No, Ext): PRODUCER ADDRESS: E-MAIL FAX (A/C, No): CONTACT NAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 5/18/2017 AssuredPartners Colorado, LLC 1873 S Bellaire St Ste 600 Denver CO 80222 Easter Seals Colorado 5755 W. Alameda Ave. Lakewood CO 80226 Philadelphia Indemnity Ins Co PINNACOL ASSURANCE 18058 41190 Bethany Haight 303-863-7788 303-861-7502 bhaight@assuredptrco.com EASTE-1 119018752 A Y PHPK1559888 10/1/2016 10/1/2017 1,000,000 100,000 1,000,000 3,000,000 3,000,000 X X A Y X X X PHPK1559888 10/1/2016 10/1/2017 1,000,000 A X X X 10,000 PHUB558863 10/1/2016 10/1/2017 2,000,000 2,000,000 B N 276112 10/1/2016 10/1/2017 X 100,000 100,000 500,000 A A Network Security & Privacy Liab Professional Liability PHSD1040013 PHPK1559888 5/30/2016 10/1/2016 5/30/2017 10/1/2017 Occurrence Aggregate Each Incident Limit 1,000,000 1,000,000 1,000,000 The City of Fort Collins is included as Additional Insured with regard to General Liability and Auto Liability as required by written contract. The City of Fort Collins Purchasing Department PO Box 580 Fort Collins CO 80522 DocuSign Envelope ID: 2625ACFF-B68F-438D-93A7-EFA678D34A6D