HomeMy WebLinkAboutMULTIPLE - CONTRACT - RFP - 8281 DOWNTOWN CONCESSIONAIRES (4)Concession Agreement- 8281 Downtown Concessionaires Page 1 of 10
DOWNTOWN CONCESSION AGREEMENT
THIS AGREEMENT is made and entered into this day and year shown below, by and between
THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation (City), and GO DEPOT,
LLC DBA DIVINE ICE CREAM, a Colorado Limited Liability Company, (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 # 2 for DAY use.
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 from June 1, 2016 until May 31, 2017, unless sooner
terminated as herein provided. In addition, at the option of the City, the Agreement may be
extended for additional one year periods not to exceed four (4) additional one year periods.
Written notice of renewal shall be provided to the Concessionaire and mailed no later than
thirty (30) days prior to contract end. 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 area for the use of the property described
as: Site # 2, as per Exhibit “A”- Site Map, for outdoor vending. The Concessionaire shall have
the exclusive right to operate an outdoor vending concession with this area in accordance with
the Agreement.
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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. The $120 annual fee is due immediately
upon contract execution and at the time of subsequent contract extensions.
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”.
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.
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, unless the site is
designated for transportation related vending. 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.
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I. Restrictions: Equipment such as tables, chairs, benches and displays not attached to the
cart may not be used except for items and equipment authorized, in writing, by the City
Representative. Merchandise must be restricted to the cart or appropriate storage
containers if authorized. Vendor area must not exceed 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: Concessionaires shall be required to supply an acceptable trash receptacle to
be removed from the concession site with all its contents and keep the designated area
clean of all trash generated by the concession within a hundred (100) foot radius of the 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 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.
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: Thursday, Friday, Saturday and Sunday.
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 as those proposed in the original Request for Proposal.
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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. Visit http://downtownfortcollins.com for event dates.
Concessionaire may 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 Concessionaire
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. At the City’s sole discretion, vacant sites resulting from either no-bid or termination may be
awarded by the City at any time or remain vacant.
C. This Agreement may not be enlarged, modified or altered except in writing, signed by the
parties as an amendment hereto.
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 his/her 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.
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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
purchasing@fcgov.com
Go Depot, LLC DBA Divine Ice Cream
David Himes
1112 Oakridge Dr. 104-307
Fort Collins, CO 80525
divineicecreamnow@gmail.com
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
provided under this Agreement shall be effective when mailed, postage prepaid and sent to
the above address.
L. The Concessionaire’s conduct reflects directly on the City’s image, therefore the
Concessionaire is required to uphold high standards of customer service, integrity and
professional conduct and address customer complaints in a prompt and courteous manner.
Concessionaire will also provide contact information to the City, updated as needed.
Unacceptable conduct/behavior by the Concessionaire or Concessionaire’s staff may result
in immediate or early termination of the Agreement.
M. The City supports product variety and free market principles for all Concessionaires.
Pursuant to this philosophy, the City may not restrict a Concessionaire’s site location and/or
menu options due to the proximity of another Concessionaire offering similar/like items.
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:
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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.
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.
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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.
THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Purchasing Director
DATE:
ATTEST:
City Clerk
APPROVED AS TO FORM:
Sr. Assistant City Attorney
GO DEPOT, LLC DBA DIVINE ICE CREAM
By:
Printed:
Date:
DocuSign Envelope ID: E3EE0BDB-0DE0-4D29-B9E3-72F5211E9CE7
5/9/2016
David Himes
insurance
5/10/2016
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EXHIBIT A
SITE MAP
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EXHIBIT B
INSURANCE REQUIREMENTS
1. The Service Provider will provide, from insurance companies acceptable to the City, the
insurance coverage designated hereinafter and pay all costs. Before commencing work under
this bid, the Service Provider shall furnish the City with certificates of insurance showing the
type, amount, class of operations covered, effective dates and date of expiration of policies, and
containing substantially the following statement:
"The insurance evidenced by this Certificate will not be cancelled or materially altered, except
after ten (10) days written notice has been received by the City of Fort Collins."
In case of the breach of any provision of the Insurance Requirements, the City, at its option,
may take out and maintain, at the expense of the Service Provider, such insurance as the City
may deem proper and may deduct the cost of such insurance from any monies which may be
due or become due the Service Provider under this Agreement. The City, its officers, agents
and employees shall be named as additional insureds on the Service Provider's general
liability and automobile liability insurance policies for any claims arising out of work
performed under this Agreement.
2. Insurance coverages shall be as follows:
A. Workers' Compensation & Employer's Liability. The Service Provider
shall maintain during the life of this Agreement for all of the Service Provider's
employees engaged in work performed under this agreement:
1. Workers' Compensation insurance with statutory limits as required
by Colorado law.
2. Employer's Liability insurance with limits of $100,000 per accident,
$500,000 disease aggregate, and $100,000 disease each
employee.
B. Commercial General & Vehicle Liability. The Service Provider shall
maintain during the life of this Agreement such commercial general liability and
automobile liability insurance as will provide coverage for damage claims of
personal injury, including accidental death, as well as for claims for property
damage, which may arise directly or indirectly from the performance of work
under this Agreement. Coverage for property damage shall be on a "broad form"
basis. The amount of insurance for each coverage, Commercial General and
Vehicle, shall not be less than $1,000,000 combined single limits for bodily
injury and property damage.
In the event any work is performed by a subcontractor, the Service Provider shall be responsible
for any liability directly or indirectly arising out of the work performed under this Agreement by a
subcontractor, which liability is not covered by the subcontractor's insurance.
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EXHIBIT C
AFFIDAVIT PURSUANT TO C.R.S. 24-76.5-103
I, __________________, swear or affirm under penalty of perjury under the laws of the
State of Colorado that (check one):
___ I am a United States citizen, or
___ I am a Permanent Resident of the United States, or
___ I am lawfully present in the United States pursuant to Federal law.
I understand that this sworn statement is required by law because I have applied for a
public benefit. I understand that state law requires me to provide proof that I am lawfully
present in the United States prior to receipt of this public benefit. I further acknowledge
that making a false, fictitious, or fraudulent statement or representation in this sworn
affidavit is punishable under the criminal laws of Colorado as perjury in the second
degree under Colorado Revised Statute 18-8-503 and it shall constitute a separate
criminal offense each time a public benefit is fraudulently received.
___________________________ _______________
Signature Date
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5/9/2016
X
David Himes
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