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HomeMy WebLinkAbout2008 08 25 Consent 202 Concession Stands Operation Agreement with Winter Springs Youth Sports (Babe Ruth) COMMISSION AGENDA ITEM 202 Consent X Informational Public Hearing Regular August 25,2008 Regular Meeting IV j Mgr. / Dept. Authorization C7.cy REQUEST: The Parks and Recreation Department is requesting the City Commission to authorize the City Manager to execute the Concession Stands Operation Agreement with Winter Springs Youth Sports (Babe Ruth) to operate the Central Winds Park Concession Stands. PURPOSE: The purpose of this item is to obtain City Commission approval to execute the agreement necessary for the Winter Springs Youth Sports (Babe Ruth) to assume operation of the Central Winds Park Concessions. CONSIDERATIONS: . On July 28,2008, the City Commission approved the preparation of an agreement with Winter Springs Youth Sports (Babe Ruth) regarding the operation of the Central Winds Park Concessions. . The agreement commences on October 1, 2008 and is a one (1) year agreement with two (2) options to renew for one (1) year terms. . The city will also lease to the league the city equipment. . The Babe Ruth League will provide concessions for most games at Central Winds Park with a licensed manager and volunteers. . The League will be responsible for paying the cities utility bill for the concession monthly. . The League will also be responsible for AlC maintenance, pest control, paying the state sales tax, submitting monthly financial reports, liability insurance and submitting payment to the city based on net revenue generated twice a year. FUNDING: Elimination of concession budget and loss of $25,000 in FY 08/09. Agenda Item Consent 202 August 25, 2008 Page 2 RECOMMENDATIONS: The Parks and Recreation Department recommends that the City Commission authorize the City Manager to execute the concession stands operation agreement with Winter Springs Youth Sports (Babe Ruth) to operate the Central Winds Park Concessions. ATTACHMENTS: Attachment # 1: Concession Stands Operation Agreement COMMISSION ACTION: ATTACHMENT #1 CONCESSION STANDS OPERATION AGREEMENT THIS CONCESSION STANDS OPERATIONS AGREEMENT ("Agreement"), is entered into this _ day of ,2008 by and between the City of Winter Springs, a Florida municipal corporation ("City"), and Winter Springs Youth Sports, Inc., a Florida non profit corporation ("League"). WITNESSETH: WHEREAS, the City currently maintains and operates 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 League desire to enter into a mutually beneficial arrangement whereby the League 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 League's operation ofthe City's concession stands 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 October 1,2008 and shall remain effective until midnight on September 30,2009. The parties shall have two (2) options to renew the term of this Agreement for additional one-year terms. Any such option shall be evidenced in a written addendum to this Agreement and shall be approved and 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 Concession Stands and all concession-related equipment itemized in Exhibit "A," attached hereto and fully incorporated herein by this reference ("the Equipment"), to the League, subject to the terms and conditions set forth in this Agreement. 4.0 En2a2ement; Operation of Concession Stands. The City hereby engages the League and the League hereby agrees to staff, operate and maintain the two (2) Central Winds Park concession stands ("Concession Stands") for the compensation arrangement and pursuant to the terms and CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs / Winter Springs Youth Sports, Inc. Page 10f8 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 League 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; 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 ofthe League's responsibilities under the terms ofthis Agreement and the League shall undertake any reasonable action in furtherance of the efficient operation ofthe Concession Stands not inconsistent with any provision of this Agreement. 4.2 Maintenance, Repair or Replacement of Concession Stands and Equipment. The League shall be responsible for the maintenance and repair of the Concession Stands and shall replace the Equipment that is beyond repair. The League shall confer with the City regarding the maintenance, repair or replacement of the Concession Stands and the Equipment and any such maintenance, repair or replacement shall be mutually agreed to by both parties hereto. Any expense directly related to maintenance, repair or replacement of the Concession Stands or the Equipment shall be recorded in detail as expenditures in the League's accounting records. The City shall remain responsible for any exterior maintenance and repair to the Concession Stand buildings unrelated to the operation of the Concession Stands and for any necessary maintenance and repairs to the restroom facilities. 4.3 Hours of Operation. The League shall operate the Concession Stands: 4.3.1 Anytime two (2) or more fields are scheduled for three (3) or more continuous hours of play or anytime one (1) field is scheduled for six (6) or more continuous hours of play. The time periods set forth in this subsection 4.3.1 shall include both League and non-League play, but shall not include the time between the end of one game and the beginning of the next game. The City shall provide the League with at least 14 days notice of any non-League games scheduled for play which would invoke the League's obligation under this subsection 4.3.1 to operate the Concession Stands. 4.3.2 Anytime the League 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 League with at least 14 days notice of any such event. 4.4 Licenses and Certification. The League shall obtain permanent food service licenses CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs I Winter Springs Youth Sports, Inc. Page 2 of8 from the Florida Department of Business and Professional Regulation, Division of Hotels and Restaurants ("the Division"). Further, at least one (1) League representative shall be trained and certified by the Division as a certified food protection manager. The League shall ensure that at least one (1) certified food protection manager is present anytime four (4) or more League volunteers/representatives are engaged in the storage, preparation or serving offood in the Concession Stands. The League 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 Stands. Upon the effective date ofthis Agreement, the City shall change the locks on the doors of the Concession Stands and provide the League with the requisite key(s). The Parks & Recreation Department Director shall maintain a copy ofthe Concession Stands key(s) and shall be permitted to maintain all reasonable access to the Concession Stands. 4.6 Utility Bills. The League 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 bill for the Concession Stands, the City shall immediately forward same to the League for payment. The League 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. The League shall replace the air conditioning filters in the Concession Stands semiannually. 4.8 Pest Control. The League shall be responsible for ensuring that monthly pest control services and maintenance are performed on the Concession Stands. 4.9 Turnover of City 's Existing Inventory. On the effective date ofthis Agreement, the City shall turn over any existing inventory directly related to the Concession Stands to the League. The League shall pay the City at cost for the inventory, and said cost shall be reflected as a League expenditure. 4.10 Sales Tax. The League shall be responsible for the payment of any applicable sales tax required by law. 5.0 Compensation: Accounting & Reporting. The City and the League hereby agree as follows: 5.1 The City and the League shall each receive one-half(Y2) ofthe net revenues generated from the League's operation ofthe Concession Stands. For purposes ofthis subsection 5.1, "net revenue" shall be the difference between gross revenue and total expenditures directly related to the League's operation ofthe Concession Stands and consistent with the terms of CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs / Winter Springs Youth Sports, Inc. Page 3 of8 this Agreement. 5.2 The League shall submit payment to the City semiannually, on December 15 and June 15. The December 15 payment shall include the City's share of net revenue generated from the operation of the Concession Stands between October 1 and November 30, including operation during any tournament play occurring during this period. The June 15 payment shall include the City's share of net revenue generated from the operation ofthe Concession Stands between December 1 and May 31, including operation during any tournament play occurring during this period. In the event the term ofthis Agreement is not renewed for an additional term, the League shall make its final payment to the City on or before October 15, 2009 for the City's share of net revenue generated from the operation of the Concession Stands, including operation during tournament play, between June 1,2009 and September 30,2009. If the term ofthis Agreement is renewed for an additional term, the League shall make its regularly scheduled payments to the City on December 15 and June 15 during any subsequent term. 5.3 The League shall be responsible for maintaining detailed and accurate accounting records related to its operation of the Concession Stands. The League 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 League's gross revenue and expenditures, as well as any records related to state licensing and/or inspections related to the Concession Stands. 5.4 At the written request of the City, the League agrees that the City shall have the right to audit the League's books to get a full accounting of all revenue generated and expenses incurred with respect its performance under this Agreement. The League 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 League'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 League shall forward to the City a final accounting ofthe Concession Stands operations, along with a final payment of the City's share of net revenues. The League shall remain responsible for a pro-rata share of the electric bill for the Concession Stands through the date oftermination. Further, the League shall remove any equipment which is not the property of the City from the Concession Stands within ten (10) days oftermination. 7.0 General Liability Insurance. For the services performed under this Agreement, the League CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs / Winter Springs Youth Sports, Inc. Page 4 of 8 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 League 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 League 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 ofthis 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 League in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notifY the League in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. The League shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. 8.0 Indemnification and Hold Harmless. The League shall indemnifY and hold harmless the City, from and against any and all claims, damages, losses, and expenses 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 League, its agents, servants, officers, officials, employees, or subcontractors. The indemnification provided above shall obligate the League to defend at its own expense or to provide for such defense, at the sole option ofthe City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees, officers, and attorneys which may result from the services under this Agreement whether the services be performed by the League or anyone directly or indirectly employed or hired by them. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be subject to and included with this indemnification provided herein, as long as said fees are reasonable. This paragraph shall survive termination of this Agreement. 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 Assig:nment. The League shall not assign any of its duties and responsibilities under this Agreement to any other party without the prior written consent of the City. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs / Winter Springs Youth Sports, Inc. Page 5 of8 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 ofthe City's right to sovereign immunity under 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 anyone person for more than one hundred thousand dollars ($100,000.00), 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 ofthe same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). 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 League related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control ofthe City or the League. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the League 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 League 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. 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): CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs / Winter Springs Youth Sports, Inc. Page 6 of8 TO THE CITY: TO THE LEAGUE: Chuck Pula, Director Parks & Recreation Department Director City of Winter Springs 1126 E. State Road 434 Winter Springs, Florida 32708 (407) 327-6590 Bill Manooch, President Winter Springs Youth Sports, Inc. 1515 S. Greenleaf Court Winter Springs, Florida 32708 (407)_- 17.0 Interpretation. The parties have participated in the drafting of all parts ofthis 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 ofthis Agreement shall be interpreted more harshly against either ofthe parties as the drafter. 18.0 Independent Contractor. The League 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 ofthis Agreement, each ofthe 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. [EXECUTION PAGES FOLLOW] CONCESSION STANDS OPERA nON AGREEMENT City of Winter Springs / Winter Springs Youth Sports, Inc. Page 7 of8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. THE CITY: City of Winter Springs, a Florida municipal corporation. Ron McLemore, City Manager THE LEAGUE: Winter Springs Youth Sports, Inc., a Florida non profit corporation. Bill Manooch, President CONCESSION STANDS OPERA nON AGREEMENT City of Winter Springs / Winter Springs Youth Sports, Inc. Page 8 of8 City of Winter Springs Concession Stands Inventory Exhibit A Equipment Inventory Concession Baseball/SOftbaJlf- Concession Soccer ---I Pepsi refrigerator glass front doors --.-------..-------.--.----- Hot dog machine and bun warmer (Asset #5768/ Tag #301134) --"'---"'---'-"--- --'- 2 microwave ovens x X --.'0______- X X X --..-.---.-----.-- X -....- X --..._- X ---....---.--.- X X X --....---- X X X -- --- X --"-- X X X --"'--- X ---....-- X -.'-----.--..-- X X X Slush puppy dispensor ---.-----,.-------- Pop corn maker ----.---..-.--....- ----- ----,---- Old fashion lemonade machine .__m.__.___,.__.___..___.____ .._ Deep Freezer (Asset #4883/ Tag #301128) --.-------...--.-----.---.. --- -------- Coffee maker - ---,- --"----... ....-- --... ---.---- 3 tank and tank holder ~---.- Cash register ____.__n__..___ Pepsi dispensor -------------._---- ----,---- ---- ----- ---- Large ice maker (Asset #5361 / Tag #301130) -~----- --.--1 Deep refri~erator___ .______ _.__ Coffee and Hot chocalate machine -.--.---------..---..--- ---"-- Refrigerator regular large (Asset #4884 / Tag #301129) -------..--...-...----......- ----.._---- ...- Capachino dispensor --'-'----'---'___ _..__. .n_.. ....____ ____ ..._... ..__ Compressor to make soda product ----..--.,,--. "--'.-.--... ....- Can opener heavy duty ---..-.-.------..--. .----..----- Soda syrup storage rake with product -----.-.-...-....- ..---.----... --'--- in~erts for the capachino machine/battery back ~_ Butter machine for popcorn with stool in background -..--.------..----.---..----.-.---....- -..-- Refrigerator regular large #3 -.-...---..- three signage board --..-----.---..--.----- Popcorn Machine ---'-'-.- ---- --...- .---- "--'.--.--. .--. ---.- Lemon slush Machine -----..---------..---.-. '---'-- -. .-.--. ..--- ---.- --- -. .---.. ..--. .------.. -.--- --- Slushy machine all flavors --.,,-----~----_.._-_.._._--- .---. .---- Pepsi fountain machine -....-..~--.-......-.. -- ----..._._.__ __n _____ Co2 container and storage box metal ---.-~-...-.___..___n__.___ _ ______ Compressor to make soda product .-..._-_...~-_.--.__._----- - -'-- Hot dog machine --------.----.------ -'---'.- -- .- Coffee maker --"'-.--.-- Information draw board3 ----.-.- ---- ---- --.. .-- ---. ...-.. .---- Toaster Tn X - --l-- .- -- . X 1----- X ---...-.---- X --......- X _n_..__n....__ X ~_.._-.- X --..---......--- X ----._- X X i X -. ---. .---- .-- ~.._-_. --..._- X ----......- X ----- X X X X X X -+- --- - .- - Deep Freezer (Asset #4883/ Tag #301128) --- -'.--- ---"'-'---"-'--"'- - ..- Cash register ---.- -'.-- --- --'---'--. --.--- -.. ...- ---- -- Additional toaster ---,,- -'-"--"--'..- -..-..---.----- .--... .-- Two storage metal containers large --.----- --..--..--.--.-....--- --. .---- AC air handler -----. -- - .--.....-----.--- --- --- Two sinks small hand wash and large plate wash station --.. ..---.. .--. --- --'-.- --._--.._--------- Hot water heater ."----.--.--. .--.- --- -- -- -. .---...---- 2 mop buckets --- Food heating lamps City of Winter Springs Concession Stands Inventory Exhibit A EQuipment Inventory I I - - --~l. Concession Baseball/softbaill ConceSSion-Soccer X X X X X _ ==L-=..x I X X X X -i-- I I 1 ! Electric hot plate Connection box from the refrigerator -_.--... -.-.. Pump up hot liquid dispensor Can opener heavey duty Pump up hot liquid dispensor Filter for ice machine , --.~ ----- I Greaseless Fryer I Warmer (Asset #5753 & #5754 I Tag #302..~~~~O~ 133)! Buns and hot dog machinel hot dog trays _____.._ _n. Side by Side refrigerater large (Asset #57651 Tag #301135) Manitowoc Ice Machine (Asset #8621 Tag #301307) •' ~ CONCESSION STANDS OPERATION AGREEMENT THIS CONCESSION STANDS OPERATIONS AGREEMENT ("Agreement"), is entered into this~~ day of ~ ~~. ~ ` , 2008 by and between the City of Winter Springs, a Florida municipal corporation ("City"), and Winter Springs Youth Sports, Inc., a Florida non profit corporation ("League"). WITNESSETH: WHEREAS, the City currently maintains and operates 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 League desire to enter into a mutually beneficial arrangement whereby the League 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 League's operation of the City's concession stands 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 October 1, 2008 and shall remain effective until midnight on September 30, 2009. The parties shall have two (2) options to renew the term of this Agreement for additional one-year terms. Any such option shall be evidenced in a written addendum to this Agreement and shall be approved and 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 Concession Stands and all concession-related equipment itemized in Exhibit "A," attached hereto and fully incorporated herein by this reference ("the Equipment"), to the League, subject to the terms and conditions set forth in this Agreement. 4.0 Engagement; Operation of Concession Stands. The City hereby engages the League and the League hereby agrees to staff, operate and maintain the two (2) Central Winds Park concession stands ("Concession Stands") for the compensation arrangement and pursuant to the terms and CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 1 of 8 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 League 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; 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 League's responsibilities under the terms of this Agreement and the League 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 League shall be responsible for the maintenance and repair of the Concession Stands and shall replace the Equipment that is beyond repair. The League shall confer with the City regarding the maintenance, repair or replacement of the Concession Stands and the Equipment and any such maintenance, repair or replacement shall be mutually agreed to by both parties hereto. Any expense directly related to maintenance, repair or replacement of the Concession Stands or the Equipment shall be recorded in detail as expenditures in the League's accounting records. The City shall remain responsible for any exterior maintenance and repair to the Concession Stand buildings unrelated to the operation of the Concession Stands and for any necessary maintenance and repairs to the restroom facilities. 4.3 Hours of Operation. The League shall operate the Concession Stands: 4.3.1 Anytime two (2) or more fields are scheduled for three (3) or more continuous hours of play or anytime one (1) field is scheduled for six (6) or more continuous hours of play. The time periods set forth in this subsection 4.3.1 shall include both League and non-League play, but shall not include the time between the end of one game and the beginning of the next game. The City shall provide the League with at least 14 days notice of any non-League games scheduled for play which would invoke the League's obligation under this subsection 4.3.1 to operate the Concession Stands. 4.3.2 Anytime the League receives notice from the City that aCity-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 League with at least 14 days notice of any such event. 4.4 Licenses and Certification. The League shall obtain permanent food service licenses CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 2 of 8 from the Florida Department of Business and Professional Regulation, Division of Hotels and Restaurants ("the Division"). Further, at least one (1) League representative shall be trained and certified by the Division as a certified food protection manager. The League shall ensure that at least one (1) certified food protection manager is present anytime four (4) or more League volunteers/representatives are engaged in the storage, preparation or serving of food in the Concession Stands. The League 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 Stands. Upon the effective date ofthis Agreement, the City shall change the locks on the doors of the Concession Stands and provide the League with the requisite key(s). The Parks & Recreation Department Director shall maintain a copy of the Concession Stands key(s) and shall be permitted to maintain all reasonable access to the Concession Stands. 4.6 Utility Bills. The League 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 bill for the Concession Stands, the City shall immediately forward same to the League for payment. The League shalt remit payment directly to the electric utility provider and shall be responsible for any fees that maybe assessed for late payment of the electric bill. 4.7 Air Conditioning Maintenance. The League shall replace the air conditioning filters in the Concession Stands semiannually. 4.8 Pest Control. The League shall be responsible for ensuring that monthly pest control services and maintenance are performed on the Concession Stands. 4.9 Turnover of City's Existing Inventory. On the effective date ofthis Agreement, the City shall turn over any existing inventory directly related to the Concession Stands to the League. The League shall pay the City at cost for the inventory, and said cost shall be reflected as a League expenditure. 4.10 Sales Tax. The League shall be responsible for the payment of any applicable sales tax required by law. 5.0 Compensation; Accounting & Reporting. The City and the League hereby agree as follows: 5.1 The City and the League shall each receive one-half (''/z) ofthe net revenues generated from the League's operation of the Concession Stands. For purposes ofthis subsection 5.1, "net revenue" shall be the difference between gross revenue and total expenditures directly related to the League's operation of the Concession Stands and consistent with the terms of CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 3 of 8 this Agreement. 5.2 The League shall submit payment to the City semiannually, on December 15 and June 15. The December 15 payment shall include the City's share of net revenue generated from the operation of the Concession Stands between October 1 and November 30, including operation during any tournament play occurring during this period. The June 15 payment shall include the City's share of net revenue generated from the operation of the Concession Stands between December 1 and May 31, including operation during any tournament play occurring during this period. In the event the term of this Agreement is not renewed for an additional term, the League shall make its final payment to the City on or before October 15, 2009 for the City's share of net revenue generated from the operation of the Concession Stands, including operation during tournament play, between June 1, 2009 and September 30, 2009. If the term of this Agreement is renewed for an additional term, the League shall make its regularly scheduled payments to the City on December 15 and June 15 during any subsequent term. 5.3 The League shall be responsible for maintaining detailed and accurate accounting records related to its operation of the Concession Stands. The League 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 League's gross revenue and expenditures, as well as any records related to state licensing and/or inspections related to the Concession Stands. 5.4 At the written request of the City, the League agrees that the City shall have the right to audit the League's books to get a full accounting of all revenue generated and expenses incurred with respect its performance under this Agreement. The League 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 League'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 League 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 League shall remain responsible for apro-rata share of the electric bill for the Concession Stands through the date of termination. Further, the League shall remove any equipment which is not the property of the City from the Concession Stands within ten (10) days of termination. 7.0 General Liability Insurance. For the services performed under this Agreement, the League CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 4 of 8 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 League 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 League 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 League in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify the League in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. The League shall continuously maintain such insurance in the amounts, type, and quality as required by this paragraph. 8.0 Indemnification and Hold Harmless. The League shall indemnify and hold harmless the City, from and against any and all claims, damages, losses, and expenses 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 properly, 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 League, its agents, servants, officers, officials, employees, or subcontractors. The indemnification provided above shall obligate the League to defend at its own expense or to provide for such defense, at the sole option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees, officers, and attorneys which may result from the services under this Agreement whether the services be performed by the League or anyone directly or indirectly employed or hired by them. In all events the. City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be subject to and included with this indemnification provided herein, as long as said fees are reasonable. This paragraph shall survive termination of this Agreement. 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 League shall not assign any of its duties and responsibilities under this Agreement to any other party without the prior written consent of the City. CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 5 of 8 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 immunity under 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 one hundred thousand dollars ($100,000.00), 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 two hundred thousand dollars ($200,000.00). 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 League 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 League. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the League 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 League 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. 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): CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 6 of 8 TO THE CITY: Chuck Pula, Director Parks & Recreation Department Director City of Winter Springs 1126 E. State Road 434 Winter Springs, Florida 32708 (407) 327-6590 TO THE LEAGUE: Bill Manooch, President Winter Springs Youth Sports, Inc. 1515 S. Greenleaf Court Winter Springs, Florida 32708 (407) ~%~l3 - ~~G 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 League 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 maybe necessary or desirable in order to carry out the purposes and intentions of this Agreement. [EXECUTION PAGES FOLLOW] CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 7 of 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. THE CITY: City of Winter Springs, a Florida municipal corporation. Ron McLemore, CEiy 1N..anager THE LEAGUE: Winter Springs Youth Sports, Inc., a Florida non profit corporation. '~ ;%~ ~'/ZtZ~ Bill Manooch, President CONCESSION STANDS OPERATION AGREEMENT City of Winter Springs /Winter Springs Youth Sports, Inc. Page 8 of 8 City of Winter Springs Concession Stands Inventory Exhibit A Equipment Inventory Concession Baseball/Softball Concession Soccer Pepsi refrigerator glass front doors X Hot dog machine and bun warmer (Asset #5768 /Tag #301134) X 2 microwave ovens X Slush puppy dispensor X Pop corn maker X Old fashion lemonade machine X Deep Freezer (Asset #4883 /Tag #301128) X Coffee maker X 3 tank and tank holder X Cash register X Pepsi dispensor X Large ice maker (Asset #5361 /Tag #301130) X Deep refrigerator X Coffee and Hot chocalate machine X Refrigerator regular large (Asset #4884 /Tag #301129) X Capachino dispensor X Compressor to make soda product X Can opener heavy duty X Soda syrup storage rake with product X inserts for the capachino machine/battery back up X Butter machine for popcorn with stool in background X Refrigerator regular large #3 X three signage board X Popcorn Machine X Lemon slush Machine X Slushy machine all flavors X Pepsi fountain machine X Cot container and storage box metal X Compressor to make soda product X Hot dog machine X Coffee maker X Information draw board3 X Toaster X Deep Freezer (Asset#4883 /Tag #301128) X Cash register X Additional toaster X Two storage metal containers large X AC air handler X Two sinks small hand wash and large plate wash station X Hot water heater X 2 mop buckets - X Food heating lamps X City of Winter Springs Concession Stands Inventory Exhibit A Equipment Inventory Concession Baseball/Softball Concession Soccer Electric hot plate _ X Connection box from the refrigerator X Pump up hot liquid dispensor X Can opener heavey duty X Pump up hot liquid dispensor X Filter for ice machine X Greaseless Fryer /Warmer (Asset #5753 & #5754 /Tag #301131 & 301133) X Buns and hot dog machine/ hot dog trays X Side by Side refrigerater large (Asset #5765 /Tag #301135) X Manitowoc Ice Machine (Asset #862 /Tag #301307) X