HomeMy Public PortalAboutConcession Agreement Andy's Dog HouseCONCESSION AGREEMENT
This Agreement is made and entered into this 18th day of September, 2012, between the City of
Crestview, a Florida municipal corporation (hereafter referred to as "City") and Andrew
Mollura, DBA Andy's Dog House (hereafter referred to as "Concessionaire".)
WHEREAS, the City owns and operates the Twin Hills Park, hereafter referred to as the
"Facility", located at 100 N. Hathaway Street, Crestview, Florida 32536;
WHEREAS, a concession stand structure exists on the property of Facility possessing
some equipment necessary to provide concession services to the patrons and visitors of the City;
WHEREAS, the Crestview City Council through public input has decided that concession
services are needed at the Facility and serve a municipal purpose;
WHEREAS, Concessionaire represents that it is fully qualified, possesses the requisite
skill, knowledge, qualifications and experience to provide the service identified herein, does
offer to perform such services;
WHEREAS, the City desires to enter into an agreement with Concessionaire for
concession services at the facility;
WHEREAS, Concessionaire shall pay to the City a monthly concession percentage to
obtain those services at the facility.
WHEREAS, Concessionaire shall pay to the City an annual rental to obtain those services
at the facility.
NOW, THEREFORE, in consideration of the acts and promises contained herein, the
City and Concessionaire hereby agree to the following terms and conditions:
(1) Grant and Description of Premises. City grants to Concessionaire and Concessionaire
accepts from City the privilege of maintaining concession services at the Twin Hills Park
and other City owned Park Facilities. In addition, the Concessionaire, at the sole discretion
of the Public Services Director, may be designated to provide concessions for any City sponsored
programs at all the City owned Park Facilities and including Special Events.
W Condition of Premises. Taking possession of the concession stand by Concessionaire
shall constitute acknowledgement that the concession stand is in good condition. Concessionaire
shall accept the concession stand in its presently existing condition, and City shall not be
required to make any alterations to the concession stand.
CONCESSIONAIRE'S INITIALS (Andrew Mollura) DATE: September 18, 2012
(3) Concessi lee. Concessionaire shall pay to Cit: _.ring the term of this agreement
15% of gross revenue per month and $300 annually for the exclusive privilege of maintaining
concession services at the Facility. The payments shall be paid to City the fifteenth day of each
month for the operations of the preceding calendar month, and payments shall be to the order of
the City of Crestview and mailed or delivered to The Office of the City Clerk 198 North Wilson
Street Crestview, Florida 32536. A fee of $10.00 per day will be assessed for each business day
the payment is late.
(4) accounting and Records. Concessionaire shall keep an accurate set of books and records
reflecting the gross revenues derived under and pursuant to concession rights herein granted. For
the purpose hereof, "gross revenue" shall mean and include any and all fees, without reduction,
received by Concessionaire under and pursuant to the concession agreement. Certified copies of
the above books and record shall be furnished to the City, not less than quarterly in January,
April, July, and October. Such documentation shall include copies of the monthly sales tax
return filed with the Florida Department of Revenue. The concessionaire will track sales using a
cash register or similar device approved by the City and include tracking documentation when
submitting their monthly with their monthly payment to the City.
City may cause a semi-annual audit to be made of the books and records of Concessionaire in
order to determine whether or not the concession fees paid pursuant to Section 3 are the same as
those required thereby. The omission of the City to exercise its right to semi-annual audit at
anytime shall not constitute a waiver of such right, and notwithstanding such omission, the City
shall have such continuing right, provided that except in the event to fraud, deceit or other
extraordinary occurrence, each audit shall be made at intervals no less than six (6) months. In
the event City elects to exercise its right of audit, City shall provide to Concessionaire written
notice of such election at least forty-eight (48) hours in advance of the time of any audit. City
shall have the right to elect the auditors to make the audit and audit shall be made at
Concessionaire's expense unless the City has requested a second audit within a one year period.
In the event a second audit in a year's time is requested by the City, City shall pay the fees for
said audit. Concessionaire shall make available to the auditor such personnel and records as the
City may in its reasonable discretion request in order to complete such audit; and shall make no
charge to the City therefore.
(5) Use of Premises. The concession stand shall be used to conduct concession type services
including, but not limited to the sale of hot dogs, hamburgers, soft drinks and snacks in
accordance with any required licenses and permits. Concessionaire shall file a current menu
including product and price identification, with the City and provide a copy to the City each time
the menu is adjusted by concessionaire. The Concessionaire shall have the flexibility to change
the menu to meet the needs of patrons and visitors to the City. Tobacco products, liquor and /or
alcoholic beverages shall not be sold by Concessionaire at the Facility. Concessionaire shall
have the flexibility to sell soft goods, such as softballs, footballs, baseballs, soccer balls,
sunscreen, and can holders, subject to City approval and any contractual limitations.
(6) Equipment Required of Concessionaire. Concessionaire shall secure a portable unit for
concession services during Adult Softball at O.S.T.F. site and other activities as required.
Concessionaire shall be responsible for any fees associated with portable units and mobile
service. To ensure the safety of patrons and visitors at the Facility when utilizing an outdoor
grill, Concessionaire shall
CONCFSSIONAIRE'S INITIALS *6441/4-- (Andrew Mollura) DATE: September 18, 2012
provide a barrier bete the grill and patrons and visitors that not cosmetically detract from the
appearance of the Fat.iity. Concessionaire may at. their exp., —e, provide any minor equipment
necessary food handling services, (i.e. hot dog roasters, popcorn makers, pretzel warmer, etc),
subject to all life safety and health codes.
(7) Quality of Service. All items sold by Concessionaire shall be of first class quality, and
the service provided by Concessionaire shall be rendered courteously and efficiently. City
reserves the right to prohibit the sale of any item that it deems objectionable, and City shall have
the right to order the improvement of the quality of either the merchandise or the services
rendered.
(8) Hours of Operation. Concessionaire shall operate the concession stand, including
portable units and mobile service as required, for any scheduled games resulting in the use of
two (2) or more fields at the same time. Concessionaire shall be open and ready for operation
not less than fifteen (15) minutes prior to scheduled event or game. Concessionaire must operate
and provide concession services until the last fifteen (15) minutes of any scheduled event or
game. Additionally, Concessionaire must provide concession services for any and all scheduled
tournaments and group activity deemed necessary by the Public Services Director.
Concessionaire will not be considered the exclusive vendor during any Special Event.
(9) City Agreements. The City reserves the right to enter into Corporate Sponsorship
agreements or other beneficial agreements at any time and at its sole discretion. Concessionaire
agrees to conform to the specifications of such agreements, including but not limited to exclusive
purchase and sale of approved brand name products, regardless of when the agreement is
executed by the City.
(10) Employee of Concessionaire.
10.1 Contractual personnel are viewed by the public as an extension of the City staff
and are required to conduct themselves accordingly. Concessionaire shall at all times
employ only those persons of good moral character.
10.2 All employees of Concessionaire shall be neatly dressed at all times and easily
identifiable as "Andy's Dog House" employees. Employees shall conduct themselves
courteously in their relations to the public.
10.3 Employees shall observe strict impartiality as to rates and services in servicing the
public. Concessionaire may, subject to the approval of City, grant reduced rates to
Concessionaire's employees under such circumstances as are customary in businesses of
the character conducted under this agreement.
10.4 Nondiscrimination. Concessionaire shall not discriminate against any employee
or applicant for employment because of race, color, creed, sex, age, or national origin.
Concessionaire and Concessionaire's employees shall not discriminate against any person
because of race color, creed, sex or national origin by refusing to furnish such
CONCESSIONAIRE'S INITIAT S (Andrew Mollura) DA'1E: September 18, 2012
person any servic, privilege offered to of enjoyed by th_ oeneral public. Neither
Concessionaire nor Concessionaire's employees shall publicize the services provided under this
agreement in any manner that would directly or inferentially reflect on the acceptability of the
patronage of any person because of race, religion, color, ancestry, sex, age, or national origin.
(11) Term. The term of this agreement shall commence on the effective date, and end on
September 30th, 2015 both dates being inclusive. The term of this agreement is subject to the
option to renew in Section Twelve (12), and to sooner terminate as provided below. Initiation of
services delivery shall occur no later than October 1st, 2012.
(12) Option to Renew. Concessionaire shall have the option to renew this agreement for an
additional five (3) years after the termination of the term, provided that at a time no later than
thirty (30) days prior to the expiration of the term of this agreement Concessionaire serves a
written notice on City of Concessionaire's desire to extend the term of the agreement. The
concession fee shall be subject to revision, but all other terms of this agreement shall remain the
same unless both parties mutually agree to change any of them. The option to renew is, and
shall remain, subject to the provisions of Section Twenty-nine (29) of this agreement, conceming
termination by City.
(13) Holdover. If Concessionaire holds over after the expiration of the term of this
agreement with the express or implied consent of City, the holding over shall be deemed to be
month -to -month tenancy at the concession fee stated in this agreement and otherwise subject to
the terms of this agreement. This section is subject to the option to renew in Section Twelve
(12).
(14) Repair and Maintenance of Stand. Concessionaire shall maintain the concession stand
in good order and repair at concessionaire's own expense during the entire term of this
agreement as it was accepted at the time of possession pursuant to Section Two (2). If
concessionaire neglects or refuses to do so, City shall have the right to perform maintenance or
repairs for the account of Concessionaire, and the City shall first give Concessionaire fifteen (15)
days' written notice of its intention to perform maintenance or repairs to enable Concessionaire to
perform maintenance or repairs at Concessionaire's own expense.
(15) Structural Maintenance. Structural maintenance to the concession stand, including
plumbing, HVAC, electrical, painting and decoration, whether interior or exterior, shall be done
by the City.
(16) Approval for Alterations Required. No alterations or additions of any character shall be
made on or to the concession stand by Concessionaire without obtaining the prior written consent
of City. If alterations or additions are made, they shall be made they shall agree to hold City
harmless for such alterations or additions.
(17) Improvements as Property of City. All alterations and additions to the concession stand
shall remain on the concession stand and become the property of City on the termination of this
agreement.
CONCFSSIONAME'S INITIALS (Andrew Mollura) DA 1'h: September 18, 2012
(18) Maintena . of Equipment: Cbncessi,onaire shal intain all equipment in good
working condition at all times, at Concessionaire's own expense, for the operation of the
concession stand. Concessionaire shall be responsible for replacing, with the exception of
reasonable wear and tear, any equipment or built-in furnishings of City that becomes missing,
damaged beyond repair, or too unsanitary for use; Concessionaire shall replace all equipment or
built-in furnishings that Concessionaire is required to provide under Section Fourteen(14) of this
agreement, if it becomes unfit for use.
(19) Premises to be Kept Clean. Concessionaire shall keep the concession premises in a clean
and sanitary condition at all times. Concessionaire shall store all trash in the containers provided
for that purpose, and shall provide for the removal and proper disposal of all trash from the
concession premises to the designated dumpster at the close of each day the concession premises
are open for business. Additionally, it is the responsibility of Concessionaire to remove all trash
and debris found on the Facility premises that is directly associated with sales from the
Concessionaire.
(20) Right of access. City shall have access to the concession stand, and to each part of the
concession stand, during the hours of operation of Concessionaire for the purpose of inspecting
and making repairs on the concession stand and to provide Pest Control and Extermination Services
for the Facility as deemed necessary by the Public Services Director.
(21) Partial Destruction of Concession Stand. If at any time during the term of this
agreement the concession stand is damaged by fire, act of nature, or other cause beyond the
control of Concessionaire, to the extent that continued use of the concession stand is unfeasible,
Concessionaire may, on written notice to City delivered within thirty (30) days after the damage
has occurred, suspend or terminate this agreement without any liability of Concessionaire to City
except for the payment of concession fees accrued to the date of termination. If Concessionaire
does not elect to terminate this agreement, City shall, with due diligence, restore the concession
stand to operative condition, but City shall not be obligated under this provision to expend on
such restoration more that the proceeds of any insurance received by it on account of damage.
City shall not be responsible for any profits lost by Concessionaire due to the partial destruction
of the concession stand.
(22) Signs: Advertising: Name. Concessionaire shall not erect any sign on the concession
stand without obtaining the advance written approval of the City. Concessionaire may enter into
advertising relative to the concession stand that is consonant with the dignified approach
necessitated by the reputation of the facility.
(23) Licenses and Permits. Concessionaire shall obtain and pay for all permits or licenses that
may be required for the operation of the concession stand.
CONCFSSIONAIRE'S INTITIAIS (Andrew Mollura) DATE: September 18, 2012
(24) Compliance with State and Local Laws. Concessionaire shall comply with applicable
state and local laws governing the operation of the concession stand. Violation of state laws or
the ordinances of the City of Crestview or County of Okaloosa may be considered as cause for
termination of this agreement.
(25) Taxes. Concessionaire shall pay all taxes on personal property belonging to
Concessionaire, and Concessionaire shall pay all sales and other taxes levied against the
operation of the business. The City at their discretion may request copies of any quarterly sales
tax reports.
(26) Liability and Fire Insurance.
26.1 Throughout the term of this agreement, Concessionaire shall maintain
comprehensive general liability insurance coverage, naming the City as an additional insured
party, with minimum liability limits of One Hundred Thousand Dollars ($100,000) per
occurrence.
26.2 Certified copies of the above -described insurance policies and all certificates of
such policies shall be furnished to the City effective as of the date of this agreement.
26.3 The above insurance policies shall contain clauses substantially in the following
words:
(a) "Not withstanding any other provision in this policy, the insurance afforded under this
policy to City shall be primary as to any other insurance or reinsurance covering City, and such
other insurance or reinsurance shall not be required to contribute to any liability until the
appropriate limit of liability afforded under this policy has been exhausted."
(b) "This policy may not be canceled or materially changed until 30 days after receipt by
City of a written notice of cancellation or change in coverage, as evidenced by receipt of a
certified letter."
(27) Indemnification. Concessionaire covenants and agrees that he will indemnify and
hold harmless the City and all of its officers, agents, and employees from any and all claims,
losses, damages, costs, charges or expenses arising out of any act, action, neglect, or omission by
Concessionaire during the performance of the agreement, whether direct or indirect, and whether
to any person or property to which the City or said parties may be subject.
(28) Deposit to Secure Performance. Prior to the commencement of operations under the
terms of this agreement, Concessionaire shall at Concessionaire's own expense obtain and
deliver to the City a deposit fee of $500.00 to guarantee payment of the concession fee called for
in this agreement as well as the faithful performance of all the other terms of this agreement by
Concessionaire. City shall retain the deposit in the event of a breach of any of the terms of this
agreement by Concessionaire. The deposit shall be returned to Concessionaire on or before
CONCFSSIONAIRE'S INITIALS (Andrew Mollura) DATE: September 18, 2012.
October 1, 2015, i _ ncessionaire shall have fully perform _ _11 of the terms of this agreement
to that date regardless the fact that the agreement may be renewed.
(29) Termination by City. If in the judgment of City the manner of operation of the
concession stand or the quality of merchandise or services does not meet the requirements of this
agreement, or if Concessionaire is in default of any other term of this agreement, City shall give
Concessionaire a written notice specifying the particulars of the unsatisfactory performance or
default within thirty (30) days after receipt by Concessionaire of the notice, city may terminate
this agreement. The decision of City on any such matter shall be final.
(30) Termination by Concessionaire. Concessionaire may terminate this agreement at any
time after October 1, 2013, by giving thirty (30) days notice to City of Concessionaire's
intention to terminate. If Concessionaire terminates this agreement prior to September 30th
2013, Concessionaire shall forfeit the deposit that secures Concessionaire's performance as
described in Section Twenty -Eight (28).
(31) Concession Stand on Terminadon. On the termination of this agreement for any reason,
City shall have full authority to re-enter and take full possession of the concession stand without
the necessity of obtaining legal process. Concessionaire stipulates that City shall not be liable to
prosecution or for damages for resuming possession of concession stand.
(32) Sole Purpose. The concession stand may be used only by Concessionaire for the sole
purpose of providing concession services to patrons and visitors of the Facility.
(33) Assignment Prohibited. Concessionaire may not assign any right, privilege, or license
conferred by this agreement; nor may Concessionaire sublet or encumber any part of the
concession stand without first obtaining the written consent of City.
(34) Waiver of Breach. The waiver by City of any term contained in this agreement shall
not be deemed to be a waiver of such term for any subsequent breach of the same or any other
term. The subsequent acceptance of a concession fee payment by City shall not be deemed to be
a waiver of any prior occurring breach by Concessionaire of any term contained in this
agreement regardless of the knowledge of City of the prior existing breach at the time of the
acceptance of the concession fee payment.
(35) Time of Essence. Time is of the essence of this agreement.
(36) Each Provision Material Condition. Each term of this agreement is material. A breach
by Concessionaire of any one of the terms of this agreement shall be considered to be a material
breach of the entire agreement and shall be grounds for the termination of the entire agreement
by City.
CONCFSSIONAIRE'S INTI IAI S 50A- (Andrew Mollura) DATE: May 19, 2011
f
(37) Governing Law. All applicable local and'state laws, rules, and regulations shall
govern both the City and Concessionaire. The parties intend that this agreement and the
relationship of the parties shall be governed by the laws of the State of Florida. Venue for any
action arising out of this agreement shall lie in Okaloosa County.
(38) Severability. If any section, subsection, term or provision of this agreement or the
application thereof to any party or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of said section, subsection, term or provision of this agreement or the application
of same to parties or circumstances other than those to which it was held invalid or
unenforceable, shall not be affected thereby and each remaining section, subsection, term or
provision of this agreement shall be valid or enforceable to the fullest extent permitted by law.
(39) Sovereign Immunity. Nothing in this agreement shall be deemed a waiver by the City of
its sovereign immunity, nor shall any provision of this agreement be interpreted to affect the
City's sovereign immunity.
(40) Construction. The Parties have participated jointly in the negotiation and drafting of this
agreement. In the event an ambiguity or question of intent or interpretation arises, this
agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the
provision of this agreement.
(41) Attorney's Fees. In any dispute relating to this agreement each party shall be responsible
for their respective attorney's fees and costs.
(42) Notices. All notices under the agreement shall be in writing and shall be effective
when mailed by certified mail, return receipt requested, or when delivered personally, as
provided hereafter, or to such other addresses as may be designated by notice:
As to the City: As to the Concessionaire:
City of Crestview Andrew Mollura
Wayne Steele DBA: Andy's Dog House
715 N. Ferdon Blvd. 3251 Airport Road
Crestview, Fl. 32536 Crestview, FL 32539
(43) Entire Agreement. This agreement represents the entire and integrated agreement
between the City of Crestview and Concessionaire and supersedes all prior negotiations,
representations or agreements, either written or oral. Provisions of this agreement may be
amended only by written instrument approved and signed by City and Concessionaire.
(44) Binding Successors. This agreement shall bind the successors, assigns, and legal
representative of Concessionaire and of any legal entity that succeeds to the obligations of the
City.
CONCESSIONAIRE'S INITIALS Mollura) DATE: September 18, 2012
IN VUTINF__.SS WHERE OF, the City hereunto caused these presents to be subscribed and the Concessionaire
has affixed their name and seal, as of the day and year first written above.
CITY OF CRESTVIEW
BY:
David Cadle / Mayor City of Crestview
ATTEST:
42-17r Elizabeth Roy / City Clerk
(Seal)
A ` k _ PROVED TO LEGAL FORM:
me Miller / City Attorney
(Seal)
CONCESSIONAIRE
BY:
COY
Andrew NIo lura / Owner
(Printed Name)
l97 —3Y-
(EIN or SS#)
(Witness Signature) (Witness Signature)
(Printed Name) (Printed Name)
(Title) (Title)