Loading...
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)