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HomeMy WebLinkAbout2013 08 12 Consent 201 Concessions Agreement COMMISSION AGENDA Informational Consent X ITEM 201 public Hearings g Regular August 12, 2013 KS CC Regular Meeting City Manager Department REQUEST: The Parks and Recreation Department is requesting the City Commission to authorize the City Manager to execute the attached agreement, as prepared by the City Attorney, between the City of Winter Springs and Brian Susa, ILPA Distribution Concessions, regarding concession operations at Central Winds Park. SYNOPSIS: The Parks and Recreation Department is requesting the City Commission to authorize the concessions agreement between the City of Winter Springs and Brian Susa, regarding concession operations at Central Winds Park. Brian has been a contracted vendor by our soccer partnership for the past 3 years and has done a very good job. With the merger of the Soccer groups, concession operations were given back to the City. Our recommendation is to have Brian operate both concessions operations at Central Winds Park. CONSIDERATIONS: • In 2009, CFK Soccer (via Brian Susa) took over operations of the soccer concessions at Central Winds Park. Brian Susa has successfully operated that concession stand for the last 3 years. • In 2011, Brian Susa took over operation of the softball/baseball concession stand and is currently under contract. • In 2012, the soccer merger between CFK & OCYC was established and in Feb 2013, the merger was dissolved along with the concessions agreement with CFK/OCYS. • City residents and park guests have appreciated the value of concession operations open during league play in both soccer and baseball areas of the park. • Although not a high revenue source, Brian is the first concessionaire under contract to Consent 201 PAGE 1 OF 2-August 12,2013 regularly make a profit in operations. . Brian and his team do an excellent job managing the concession operations and providing very good customer service to our guests. FISCAL IMPACT: No City funding required. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney/Staff, and is available on the City's Website, LaserFiche, and the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas/Agenda Item information, Homeowner's Associations/Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at five (5) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: The Parks and Recreation Department recommends the City Commission authorize the City Manager to execute the attached agreement, as prepared by the City Attorney, between the City of Winter Springs and Brian Susa, ILPA Distribution Concessions, regarding concession operations at Central Winds Park. ATTACHMENTS: Attachment A - Concession Stand Operations Agreement Consent 201 PAGE 2 OF 2-August 12,2013 CITY OF WINTER SPRINGS CONCESSION STANDS OPERATION AGREEMENT THIS CONCESSION STANDS OPERATION AGREEMENT("Agreement"),is entered into this day of , 2013 by and between the City of Winter Springs, a Florida municipal corporation ("City"), and ILPA Concessions LLC, a Florida limited liability company ("Contractor"). WITNESSETH: WHEREAS, the City currently owns two (2) concession stands at Central Winds Park for the purpose of providing food and beverages to individuals attending organized sporting events occurring at Central Winds Park; and WHEREAS, the City and the Contractor desire to enter into a mutually beneficial arrangement whereby the Contractor shall operate the City's concession stands at Central Winds Park and the City shall retain a percentage of the profits derived from the concession stand sales;and WHEREAS,the parties hereto desire to set forth their mutual understanding regarding the Contractor's operation of the City's concession stand pursuant to the terms and conditions set forth in this Agreement; and NOW THEREFORE, in exchange for the mutual promises and consideration set forth herein, the parties agree as follows: 1.0 Recitals. The foregoing recitals are deemed true and correct and are hereby incorporated herein by this reference as a material part of this Agreement. 2.0 Term. The term of this Agreement shall commence on September 1,2013 and shall remain effective until midnight on August 31, 2015. The parties may mutually agree to extend the term of this Agreement for additional one-year terms. Any such extension shall be by written agreement executed by both parties hereto. 3.0 Lease of Concession Stands and Equipment. In exchange for the compensation arrangement set forth in Section 5.0 herein, the City hereby agrees to lease its two (2) concession stands(the`Baseball/Softball Concession Stand"and the"Soccer Concession Stand,"both located within Central Winds Park) (collectively referred to herein as the "Concession Stands") and all concession-related equipment contained therein, identified on the Concession Stands Inventory attached hereto as Exhibit"A," and fully incorporated herein by this reference("the Equipment"), to the Contractor, subject to the terms and conditions set forth in this Agreement. 4.0 Engagement; Operation of Concession Stands. The City hereby engages the Contractor CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs/IL,PA Concessions LLC Page 1 of 8 and the Contractor hereby agrees to staff, operate and maintain the Concession Stands for the compensation arrangement and pursuant to the terms and conditions set forth in this Agreement. No prior or present agreements or representations shall be binding upon the parties hereto unless expressly incorporated into this Agreement. The parties agree to the following: 4.1 General Operation of Concession Stands. The Contractor,at it sole discretion,shall be responsible for the purchase of sufficient inventory of food, beverage, paper products, utensils and any other items reasonably necessary in furtherance of the operation of the Concession Stands. The Contractor shall be responsible for the management and staffing of the Concession Stands during set up, operation, and clean up; collection and deposit of cash revenue;and set up,break down and clean up of Concession Stands. The responsibilities set forth in this subsection 4.1 shall not represent an exhaustive list of the Contractor's responsibilities under the terms of this Agreement and the Contractor shall undertake any reasonable action in furtherance of the efficient operation of the Concession Stands not inconsistent with any provision of this Agreement. 4.2 Maintenance, Repair or Replacement of Concession Stands and Equipment. The Contractor shall be responsible for the maintenance,repair and replacement of the Equipment not to exceed One Thousand Dollars($1,000.00)for any one(1)item of repair,replacement or maintenance. All other repairs,replacements and maintenance of the Equipment in excess of this threshold shall be the responsibility of the City. The Contractor shall confer with the City regarding the maintenance, repair or replacement of the Equipment and any such maintenance,repair or replacement shall be mutually agreed to by both parties hereto. Any expense of the Contractor or the City directly related to maintenance,repair or replacement of the Equipment shall be recorded in detail as an expenditure in the concession accounting records. The City shall remain responsible for any exterior maintenance and repair to the Concession Stands and surrounding areas not necessitated by the operation of the Concession Stands, and for any necessary maintenance and repairs to the restroom facilities. 4.3 Hours of Operation. 4.3.1 The Contractor shall operate the Baseball/Softball Concession Stand: 4.3.1.1 Anytime two (2) or more baseball/softball fields are scheduled for three (3) or more continuous hours of play or anytime one (1) baseball/softball field is scheduled for six (6) or more continuous hours of play. The time periods set forth in this subsection 4.3.1.1 shall not include the time between the end of one game and the beginning of the next game. The City shall provide the Contractor with at least 14 days notice of games scheduled for play which would invoke the Contractor's obligation under this subsection 4.3.1.1 to operate the Baseball/Softball Concession Stand. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs/IL,PA Concessions LLC Page 2 of 8 4.3.1.2 Anytime the Contractor receives notice from the City that a City- sanctioned special event is scheduled to take place at Central Winds Park that is at least three (3) hours long and is anticipated to generate attendance in excess of 200 people. The City shall provide the Contractor with at least 14 days notice of any such event. 4.3.1.3 Such other times as may be determined by the Contractor. The Contractor shall provide at least seven (7) days prior, written notice to the City of its intent to operate the Baseball/Softball Concession Stand under this subsection. 4.1.2 The Contractor shall operate the Soccer Concession Stand: 4.1.2.1 Anytime two (2) or more soccer fields are scheduled for three (3) or more continuous hours of play or anytime one(1)soccer field is scheduled for six (6) or more continuous hours of play. The time periods set forth in this subsection 4.3.2.1 shall not include the time between the end of one game and the beginning of the next game. The City shall provide the Contractor with at least 14 days notice of any non-League games scheduled for play which would invoke the Contractor's obligation under this subsection 4.3.2.1 to operate the Soccer Concession Stand. 4.1.2.2 Such other times as may be determined by the Contractor. The Contractor shall provide at least seven (7) days prior, written notice to the City of its intent to operate the Soccer Concession Stand under this subsection. 4.4 Licenses and Certification. The Contractor shall obtain permanent food service licenses from the Florida Department of Business and Professional Regulation, Division of Hotels and Restaurants("the Division"). The City and Contractor shall share equally in the annual renewal costs of these licenses. Further, at least one (1) Contractor representative shall be trained and certified by the Division as a certified food protection manager. The Contractor shall ensure that at least one (1) certified food protection manager is present anytime four(4) or more Contractor volunteers/representatives are engaged in the storage, preparation or serving of food in the Concession Stands. The Contractor shall be responsible for complying with any applicable state laws and regulations related to operating a public food service establishment. 4.5 Keys to Concession Stand. The City shall provide the Contractor with the requisite key(s) to the Concession Stands. The Parks & Recreation Department Director shall maintain a copy of the Concession Stand key(s) and shall be permitted to maintain all reasonable access to the Concession Stands. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs/IL,PA Concessions LLC Page 3 of 8 4.6 Utility Bill. The Contractor shall be responsible for paying the City's electric bill for the Concession Stands. Electric service for the Concession Stands is maintained on a separate meter apart from other City buildings. Upon receipt of the electric bills for the Concession Stands,the City shall immediately forward same to the Contractor for payment. The Contractor shall remit payment directly to the electric utility provider and shall be responsible for any fees that may be assessed for late payment of the electric bill. 4.7 Air Conditioning Maintenance, Repair and Replacement. The Contractor shall be responsible for the maintenance and repair of the air conditioning units servicing the Concession Stands and shall replace the air conditioning filters for same semiannually. In the event the air conditioning unit requires replacement during the term of this Agreement or any extension hereto,the City, at its sole discretion, shall be responsible for the selection and purchase of a replacement air conditioning unit. 4.8 Pest Control. The Contractor shall be responsible for ensuring that monthly pest control services and maintenance are performed on the Concession Stand. 4.9 Sales Tax. The Contractor shall be responsible for the payment of any applicable sales tax required by law. 5.0 Compensation; Accounting & Reporting. The City and the Contractor hereby agree as follows: 5.1 The City shall receive Fifteen Percent(15%) and the Contractor shall receive Eighty- Five Percent (85%) of the net revenues generated from the Contractor's operation of the Concession Stands. For purposes of this subsection 5.1,"net revenue"shall be the difference between gross revenue and total expenditures directly related to the Contractor's operation of the Concession Stands and consistent with the terms of this Agreement. 5.2 During each year of this Agreement,the Contractor shall submit payment to the City semiannually,on February 15 and September 15. The February 15 payment shall include the City's share of net revenue generated from the operation of the Concession Stands between the previous September 1 and January 31, including operation during any tournament play occurring during this period. The September 15 payment shall include the City's share of net revenue generated from the operation of the Concession Stands between February 1 and August 31, including operation during any tournament play occurring during this period. 5.3 The Contractor shall be responsible for maintaining detailed and accurate accounting records related to its operation of the Concession Stands. The Contractor shall utilize generally accepted accounting practices during all times relevant to this Agreement and shall submit monthly reports to the City's Parks and Recreation Director detailing the Contractor's gross revenue and expenditures, as well as any records related to state licensing and/or CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs/IL,PA Concessions LLC Page 4 of 8 inspections related to the Concession Stands. 5.4 At the written request of the City, the Contractor agrees that the City shall have the right to audit the Contractor's books to get a full accounting of all revenue generated and expenses incurred with respect its performance under this Agreement. The Contractor agrees that all of its records with respect to any matter covered by this Agreement shall be made available to the City, at any time during normal business hours, as often as the City deems necessary,to audit,examine,and make excerpts or transcripts of the Contractor's books and accounting records. Failure to comply with the requirements of this subparagraph will constitute a material breach of this Agreement and irreparable harm to the City,entitling the City for legal and equitable relief including, but not limited to, specific performance and injunctive relief. This subparagraph shall survive termination of this Agreement. 6.0 Termination. Either party may terminate this Agreement upon 60 days written notice to the other party. Within ten (10) days of termination, the Contractor shall forward to the City a final accounting of the Concession Stands operations, along with a final payment of the City's share of net revenues. The Contractor shall remain responsible for a pro-rata share of the electric bill for the Concession Stands through the date of termination. Further, the Contractor shall remove any equipment which is not the property of the City from the Concession Stand within ten(10)days of termination. 7.0 General Liability Insurance. For the services performed under this Agreement, the Contractor shall purchase and maintain,at its own expense,such general liability insurance to cover claims for damages because of bodily injury or death of any person or property damage arising in any way out of the services performed by the Contractor under this Agreement. The insurance shall have minimum limits of coverage of$1,000,000.00 per occurrence combined single limit for bodily injury liability and property damage liability. All insurance coverage shall be with insurer(s) approved by the City and licensed by the State of Florida to engage in the business of writing of insurance. The City shall be named on the foregoing insurance policies as"additional insured." The Contractor shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage in effect pursuant hereto,the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty(30) days prior written notice to the City in compliance with other provisions of this Agreement. If the City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by the Contractor in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify the Contractor in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. The Contractor shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. 8.0 Indemnification and Hold Harmless. Each party to this Agreement shall indemnify and hold the other harmless, from and against any and all claims, damages, losses, and expenses CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs/IL,PA Concessions LLC Page 5 of 8 including, but not limited to, attorneys' fees, arising out of or resulting from the performance or provision of services required under this Agreement, including damage to persons or property, provided that same is caused in whole or in part by the error, omission,negligent act, failure to act, malfeasance, misfeasance, conduct, or misconduct of the indemnifying party, its agents, servants, officers, officials, employees, or subcontractors. 9.0 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable,the remaining provisions shall nevertheless remain in full force and effect,unless the absence of the invalid,void or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. 10.0 Assignment. The Contractor shall not assign any of its duties and responsibilities under this Agreement to any other party without the prior written consent of the City. 11.0 Modification. Any modifications to the terms of the Agreement shall be evidenced in writing and executed by both parties hereto. 12.0 Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf of any third parties. 13.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunityunder section 768.28,Florida Statutes,or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further,the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00). This paragraph shall survive termination of this Agreement. 14.0 Public Records. It is hereby specifically agreed that any record, document, computerized information and program,audio or video tape,photograph,or other writing of the Contractor related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Contractor. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Contractor is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City,the Contractor shall promptly supply copies of said public records to the City. All books, cards,registers,receipts, documents,and other papers in connection with this Agreement shall at any and all reasonable times during normal business hours be open and freely exhibited to the City for the purpose of examination and/or audit. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs/IL,PA Concessions LLC Page 6 of 8 15.0 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the courts located in Seminole County, Florida for any state court action and Orlando, Florida for any federal court action, any objections as to jurisdiction or venue in such courts being expressly waived. 16.0 Notices. Any notice, request, instruction, or other document to be given as part of this Agreement shall be in writing and shall be deemed given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepaid, certified or registered; or the next business day after being deposited with a recognized overnight mail or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): TO THE CITY: TO CONTRACTOR: Chris Caldwell, Parks & Recreation Director ILPA Concessions LLC City of Winter Springs Attn: Brian Susa 1126 E. State Road 434 2344 Sebastian Street Winter Springs, Florida 32708 Mount Dora, Florida 32757 (407) 327-6590 (407) 484-6128 or(407) 702-4401 17.0 Interpretation. The parties have participated in the drafting of all parts of this Agreement, and have each had an opportunity to review this Agreement with legal counsel. As a result,it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 18.0 Independent Contractor. The Contractor shall each be considered an independent contractor under this Agreement. 19.0 Attorney's Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto,the prevailing party in such litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post judgment collection proceedings. 20.0 Further Assurances. From and after the execution of this Agreement, each of the parties hereto shall fully cooperate with each other and perform any further act(s) and execute and deliver any further documents,which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs/IL,PA Concessions LLC Page 7 of 8 IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the day and year first written above. CONTRACTOR: THE CITY: ILPA Concessions LLC, City of Winter Springs, a Florida limited liability company. a Florida municipal corporation. Brian Susa, Managing Member Kevin L. Smith, City Manager CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs/IL,PA Concessions LLC Page 8 of 8 2013 City of Winter Springs EXHIBIT A Concession Stands Inventory EQU MENT INVENTORY;_ CONCESSION BASEBAU./SOffT ALL'C N( ESS1ON SOCCER Pepsi Refrigerator glass front doors(Pepsi) X Hot dog machine and bun warmer(Asset#5768/Tag#301134) X 2 Microwave Ovens X Deep Freezer(Asset#4883/Tag#301128)(Upright) X 3-CO2 tanks and tank holder X Cash Register X New Large Manitowoc ice Machine X Deep Freezer(Floor) X Refrigerator regular large(Asset#4884/Tag#301129) X Can opener heavy duty X Three signage boards X Popcorn Machine X Lemon Slush Machines(2) X Hot dog machine and bun warmer X Coffee maker X Information Draw Boards(3) X Toaster X Cash Registers(2) X Additional Toasters(2) X Metal Storage Containers(2) X AC Air Handler X 2 sinks small hand wash and large plate wash station X Hot water heater X Mop Bucket X Food heating lamps X Can Opener,Heavy Duty X Filter for Ice Machine X Buns&Hot Dog Machine/Hot Dog Trays X Refrigerator Large(Asset#5765/Tag#301135) X Manitowoc Ice Machine(Asset#862/Tag#301307) X Deep Freezer(asset 5767) X Crock Pots(3) X 8/5/2013