HomeMy WebLinkAboutPATTI LLC - CONTRACT - RFP - 7608 SNACK BAR CONCESSIONAIRE - CITY PARK POOLAgreement- 7608 Snack Bar Concessionaire – City Park Pool Page 1 of 21
CONCESSION AGREEMENT
This Concession Agreement, hereinafter called the "Agreement," is made and entered into the
day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a
municipal corporation, hereinafter called "City," and, PATTI LLC DBA CITY PARK POOL
CONCESSIONS, a Colorado Limited Liability Company, hereinafter called "Concessionaire."
ARTICLE 1
Concession Space
1.1 Definition of Concession Space. For the purposes of this Agreement, the "Concession
Space" shall mean City Park Pool (CPP), 1599 West City Park Drive, Fort Collins, CO
80521; more specifically the designated concession area located in City Park Pool.
1.2 Use of Concession Space. The Concessionaire shall have the use of the Concession
Space for the purpose of offering food and non-alcoholic beverages, and related
services, primarily to swimmers and patrons at CPP.
ARTICLE 2
Concessionaire's Use of City Park Pool 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 shall not be sold or
otherwise supplied by Concessionaire in the Concession Space. Smoking is not
permitted on or in any City-owned building or property. 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 smoking
instruments, tobacco products and gum.
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 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
City Park Pool.
ARTICLE 3
Rights of Ingress and Egress
3.1 In General. The Concessionaire shall have the right of ingress and egress to and from
City Park Pool and the Concession Space for Concessionaire's employees and agents
to the extent reasonably necessary in connection with the conduct of Concessionaire's
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business under this Agreement. Areas designated as restricted areas by the City shall
be excluded.
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 City Park Pool,
presently or hereafter used as such, so long as a reasonable and safe means of ingress
and egress remains available to 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 City Park Pool. The City encourages the use of
disposable cups, plates, napkins and eating utensils that are either
compostable or recyclable.
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, the 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 more detailed list of all
items to be sold in the Concession Space and proposed prices for all such
items as generally listed on EXHIBIT A – City Park Pool Menu, consisting of
one (1) page and attached and incorporated herein by reference. The
Concessionaire shall submit to the City, in writing, all subsequent item and
price changes.
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4.1.5 The City recommends the Concessionaire incorporate the Dietary Guidelines
for Americans, as outlined on www.health.gov/dietaryguidelines. The Dietary
Guidelines encourage Americans to focus on eating a healthy diet, one that
focuses on foods and beverages that help achieve and maintain a healthy
weight, promote health and prevent disease.
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 Space at City Park Pool.
4.2.1 The parties agree that the hours of operation will conform to the hours listed
hereunder. Any change in concession hours must be approved by the City’s
Recreation Manager. However, the Concessionaire shall not be required to
operate the concession when City Park Pool is closed due to bad weather or
other reasons as approved by the City.
City Park Pool Hours
Monday – Friday 11:00 a.m. – 7:00 p.m.
Saturday – Sunday 10:00 a.m. – 5:30 p.m.
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
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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
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;
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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. Concessionaire shall keep books and records
of the business, including an accounting of all revenue and expenses of the concession
operation, in accordance with good accounting practice and in such form as is
satisfactory to the City. The Concessionaire hereby grants to the City the right to audit
Concessionaire's books and records for its operation at City Park Pool and agrees to
make available to the City, or its authorized representative, with reasonable notice to the
Concessionaire, all records, books and relevant related information as may be required
for audit purposes.
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 City Park Pool.
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 City Park Pool, 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 City Park Pool. 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
City Park Pool. 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
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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 permit Concessionaire's use of vending
machines at the City Park Pool in the supplying of food, beverages or incidental items.
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:
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.
d. If Concessionaire obtains actual knowledge that a subcontractor performing work
under this Agreement knowingly employs or contracts with an illegal alien,
Concessionaire shall:
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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.
ARTICLE 6
Term
6.1 Period. The Agreement shall commence May 19, 2017 and shall continue in full force
and effect for one (1) year. In addition, the Agreement may be extended for an additional
one (1) year period. However, either party may terminate this Agreement without cause,
by providing written notice to the other party of its intention to terminate at least ninety
(90) 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. For the privilege of conducting the concession operations hereunder,
and the exclusive use of the Concession Space, the Concessionaire shall pay to the City
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$800.00/month as the Concession Fee for a three (3) month season; July, August and
September. Vendor will pay by the 15th of each month of July, August and September.
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.
7.2 Time of Payment. The Concessionaire shall pay the Concession Fee monthly no later
than fifteen (15) days after the first day of the next month.
7.3 Interest on Past Due Amounts. Concessionaire shall pay interest on all past due
amounts at the rate of eighteen percent (18%) per annum from the due date, until paid.
7.4 Method of Payment. Payment for all fees under Article 7 shall be by check or money
order payable to the order of “City of Fort Collins— City Park Pool Concessions” and
shall be mailed or personally delivered to the City Representative.
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 equipment and fixtures (defined in Article 9). Concessionaire shall submit all
requests for repairs or maintenance to the City Representative. Notwithstanding
anything to the contrary contained herein, the City shall not in any way be liable to the
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 at least three (3) times annually; once prior to, once during,
and once after the close of the May through August City Park Pool swim
season.
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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
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 on Exhibit B, consisting if one (1) page,
attached hereto and incorporated herein by this reference;
9.1.2 Lighting fixtures for general area illumination; and
9.1.3 Air conditioning.
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. Except for the items listed on Exhibit B,
no equipment, trade fixtures, signs or other personal property used by the
Concessionaire in its business, whether or not attached to the concession area or any
improvements thereon, 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 in or on the
Concession Space, 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
(“Improvements”). 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
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10.1 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, City Park Pool 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 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 City Park Pool or 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,
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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 City Park Pool, 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 City Park Pool by Concessionaire, its agents,
employees or contractors unless caused by the negligence or willful misconduct of the
City, its employees, agents or contractors.
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 C,
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.
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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
13.1 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
14.1 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 by City. Any such assignment or transfer without the City’s prior written
consent shall be deemed null and void and of no effect.
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 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
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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 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.
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
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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 seven (7) days by Concessionaire of the
conduct of its services and operations at City Park Pool.
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 4.4, above, and a hearing of the matter
before the City's Director of Purchasing and Risk Management, if such a
hearing has been requested in writing received by the Director of Purchasing
and Risk Management within ten (10) days after mailing of written notice of
violation, a determination by the Director of Purchasing and Risk
Management that the alleged violation has, in fact, occurred, and that such
violation materially interferes with 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 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
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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.
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 around the Concession Space at City Park Pool.
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
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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 and
interview responses 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 his or its respective rights and obligations under the valid covenants,
conditions or provisions of this Agreement.
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 City
Park Pool and surrender entire possession of its rights at City Park Pool 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 City’s Recreation 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: Recreation Mgr.
PO Box 580
Fort Collins, CO 80522
Concessionaire:
Patti LLC dba City Park Pool
Concessions
Attn: Chris Patti
1001 Whedbee Street
Fort Collins, CO 80524
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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, acts of public enemies, 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.
17.21 Survival. To the extent necessary to carry out all of the terms and provisions hereof, the
said terms, obligations and rights set forth herein required shall survive and shall not be
affected by the expiration or termination of this Agreement.
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CITY OF FORT COLLINS, COLORADO
a municipal corporation
By:_______________________________
Gerry Paul
Director of Purchasing and Risk Management
Date:_____________________________
ATTEST:
_________________________________
APPROVED AS TO FORM:
________________________________
PATTI LLC DBA CITY PARK POOL CONCESSIONS
By:_______________________________
__________________________________
PRINT NAME
__________________________________
TITLE
Date:_____________________________
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6/18/2017
Chris Patti
Owner
Assistant City Attorney
7/3/2017
City Clerk
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EXHIBIT A
City Park Pool Concessions Menu
Food Items:
- Nachos $3.00
w/Small drink $4.00
- 1/4 All Beef Nathan’s hot dog $3.00
w/Chips and small drink $5.00
- Whole kosher pickle $1.00
- Chips $1.00
- Fruit cups $1.00
- 2oz Bag of nuts. 3 choices $1.50
Candy:
- Variety of candy options $1.00/each
Drinks:
- Fountain drinks
- Small $2.00
- Large $3.00
- Coconut water $3.00
- Bottle water $1.50
- Monster energy $3.00
Frozen Treats:
- Snickers ice cream $2.00
- Drumstick ice cream $2.00
- Ice cream sandwich $2.00
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EXHIBIT B
EQUIPMENT INVENTORY- CITY PARK POOL
City Owned Items QTY
True Freezer 1
Convection Oven 1
Hot Dog Roller 2
Nacho Chip Dispenser 1
Popcorn Popper 1
Artic Air Freezer 1
Electric Buffet Server 1
Artic Air Refrigerator 1
Leased or on Loan Items QTY Owner
Double Door Reach- In
Refrigerator 1 Coca- Cola
Cheese Dispenser, Hot
Top 1
Gehl's and
Sysco Foods
Six (6) Head Coca- Cola
Fountain Dispenser 1 Coca- Cola
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EXHIBIT C
INSURANCE REQUIREMENTS
1. The Concessionaire 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 Concessionaire 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 reduce coverage or limits and
will not be cancelled, except after thirty (30) 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 Concessionaire, 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 Concessionaire under this Agreement. The City, its
officers, agents and employees shall be named as additional insureds on the
Concessionaire’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 Concessionaire shall maintain
during the life of this Agreement for all of the Concessionaire'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 Concessionaire 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 vehicle.
In the event any work is performed by a subcontractor, the Concessionaire 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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