HomeMy WebLinkAboutILPA Concessions LLC - 2013 09 01 CITY OF WINTER SPRINGS CONCESSION STANDS
OPERATION AGREEMENT
THIS CONCESSION STANDS OPERATION AGREEMENT("Agreement"),is entered
into this 2.0 day of M I/u 5+ , 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
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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.
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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.
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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
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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
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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
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 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. In accordance with section 119.0701, Florida Statutes, Contractor agrees
that all documents,transactions,writings,papers,letters,tapes,photographs,sound recordings,data
processing software, or other material, regardless of the physical form, characteristics, or means of
transmission,made or received pursuant to this Agreement or in connection with any funds provided
by the City pursuant to this Agreement may be considered public records pursuant to Chapter 119,
Florida Statutes. Contractor agrees to keep and maintain any and all public records that ordinarily
and necessarily would be required by the City in order to perform the services required by this
Agreement. Contractor also agrees to provide the public with access to public records on the same
terms and conditions that the City would provide the records and at a cost that does not exceed the
cost provided by Chapter 119, Florida Statutes or as otherwise provided by law. Contractor shall
also ensure that public records that are exempt or confidential and exempt from public records
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disclosure requirements are not disclosed except as authorized by law. In addition,Contractor shall
meet all requirements for retaining public records and transfer, at no cost, to the City all public
records in possession of the Contractor upon termination of this Agreement and destroy any
duplicate public records that are exempt or confidential and exempt from public records disclosure
requirements. All records stored electronically must be provided to the City in a format that is
compatible with the information technology systems of the City. If Contractor does not comply with
a public records request,the City shall have the right to enforce the provisions of this Paragraph. In
the event that Contractor fails to comply with the provisions of this Paragraph, and the City is
required to enforce the provisions of this Paragraph, or the City suffers a third party award of
attorney's fees and/or damages for violating the provisions of Chapter 119, Florida Statutes due to
Contractor's failure to comply with the provisions of this Paragraph, the City shall be entitled to
collect from Contractor prevailing party attorney's fees and costs, and any damages incurred by the
City, for enforcing this Paragraph against Contractor. And, if applicable, the City shall also be
entitled to reimbursement of any and all attorney's fees and damages which the City was required
to pay a third party because of Contractor's failure to comply with the provisions of this Paragraph.
This Paragraph shall survive the termination of this Agreement.
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
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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.
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 corps _tion.
,. r s-
Brian Susa, Managing Member Key' L. Smi , City Manager
CONCESSION STANDS OPERATION AGREEMENT
City of Winter Springs/ILPA Concessions LLC
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2013 City of Winter Springs EXHIBIT A
Concession Stands Inventory
EQUIPMENT INVENTORY CONCESSION BASEBALL/SOFTBALL CONCESSION SOCCER
Pepsi Refrigerator glass front doors(Pepsi) X
Hot Dog Machine and Bun Warmer(Asset#5768/Tag#301134) X
Hot Dog Rollers X
2 Microwave Ovens X
Deep Freezer(Asset#4883/Tag#301128)(Upright) X
3-CO2 tanks and tank holder X
Cash Register X
Large Manitowoc Ice Machine X
Deep Freezer(Floor) X
Refrigerator regular large(Asset#4884/Tag#301129) X
One signage board X
Pepsi Refrigerator glass front doors(Pepsi) X
Lemon Slush Machines(2) X
Hot Dog Machine and Bun Warmer X
Coffee maker X
One Information Draw Board X
Toasters(3) X
Cash Registers(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
Maytag Upright Freezer X
One Crock Pot X
8/5/2013