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HomeMy WebLinkAboutConcession Services Agreement with Idaho Five Star Funnel Cakes for Concession ServicesAGREEMENT FOR CONCESSION SERVICES 2011 Idaho Five Star Funnel Cakes THIS AGREEMENT FOR CONCESSION SERVICES is made this day of 2011, and entered into by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho, hereinafter referred to as "CITY", 33 East Broadway Avenue, Meridian, Idaho 83642, and Idaho Five Star Funnel Cakes, hereinafter referred to as "CONCESSIONAIRE", whose business address is 8145 E Sun River St, Namr)a, ID 83687. INTRODUCTION Whereas, the City has a need for services involving Concession Services; and WHEREAS, the Concessionaire is specially trained, experienced, licensed and competent to perform and has agreed to provide such services; NOW, THEREFORE, in consideration of the mutual promises, covenants, terms and conditions hereinafter contained, the parties agree as follows: TERMS AND CONDITIONS Scope of Services: 1.1 CONCESSIONAIRE shall perform and furnish to the City upon execution of this Agreement and receipt of the City's written notice to proceed, all services, and comply in all respects, as specified in the document titled "Scope of Services" a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference, together with any amendments that may be agreed to in writing by the parties. 1.2 The Concessionaire shall provide services and work under this Agreement consistent with the requirements and standards established by applicable federal, state, city and health department laws, ordinances, regulations and resolutions. The Concessionaire represents and warrants that it will perform it's work in accordance with generally accepted industry standards and practices for the profession or professions that are used in performance of this Agreement and that are in effect at the time of performance of this Agreement. Except for that representation and any representations made or contained in any proposal submitted by the Concessionaire and any reports or opinions prepared or issued as part of the work performed by the Concessionaire under this Agreement, Concessionaire makes no other warranties, either express or implied, as part of this Agreement. CONCESSION SVC'S AGREEMENT 2011 - IDAHO FIVE STAR FUNNEL CAKES page 1 of 8 1.3 Services and work provide by the Concessionaire at the City's request under this Agreement will be performed in a timely manner in accordance with a Schedule of Work, which the parties hereto shall agree to. The Schedule of Work may be revised from time to time upon mutual written consent of the parties. 2. Consideration The City shall be compensated monthly as provided in Exhibit B "Payment Schedule" attached hereto and by reference made a part hereof. 3. Time of Performance: This agreement shall become effective upon execution by both parties, and shall expire upon completion of the agreed upon services, September 30, 2011 or unless sooner terminated as provided below or unless some other method or time of termination is listed in Exhibit A. This Agreement shall terminate automatically on the occurrence of (a) bankruptcy or insolvency of either party, or (b) sale of Concessionaires business. 4. Independent Contractor: 4.1 In all matters pertaining to this agreement, CONCESSIONAIRE shall be acting as an independent contractor, and neither CONCESSIONAIRE nor any officer, employee or agent of CONCESSIONAIRE will be deemed an employee of CITY. Except as expressly provided in Exhibit A, Concessionaire has no authority or responsibility to exercise any rights or power vested in the City. The selection and designation of the personnel of the CITY in the performance of this agreement shall be made by the CITY. 4.2 Concessionaire shall determine the method, details and means of performing the work and services to be provided by Concessionaire under this Agreement. Concessionaire shall be responsible to City only for the requirements and results specified in this Agreement and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of Concessionaire in fulfillment of this Agreement. 5. Indemnification and Insurance: CONCESSIONAIRE shall indemnify and save and hold harmless CITY from and for any and all losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses and other costs including litigation costs and attorney's fees, arising out of, resulting from, or in connection with the performance of this Agreement by the CONCESSION SVC'S AGREEMENT 2011 - IDAHO FIVE STAR FUNNEL CAKES page 2 of 8 CONCESSIONAIRE, its servants, agents, officers, employees, guests, and business invitees, and not caused by or arising out of the tortuous conduct of CITY or its employees. CONCESSIONAIRE shall maintain, and specifically agrees that it will maintain, throughout the term of this Agreement, liability insurance, in which the CITY shall be named an additional insured in the minimum amounts as follow: General Liability One Million Dollars ($1,000,000) per incident or occurrence, Automobile Liability Insurance One Million Dollars ($1,000,000) per incident or occurrence and Workers' Compensation Insurance , in the statutory limits as required by law.. The limits of insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless CITY; and if CITY becomes liable for an amount in excess of the insurance limits, herein provided, CONCESSIONAIRE covenants and agrees to indemnify and save and hold harmless CITY from and for all such losses, claims, actions, or judgments for damages or injury to persons or property and other costs, including litigation costs and attorneys' fees, arising out of, resulting from , or in connection with the performance of this Agreement by the Concessionaire or Concessionaire's officers, employs, agents, representatives or subcontractors and resulting in or attributable to personal injury, death, or damage or destruction to tangible or intangible property, including use of. CONCESSIONAIRE shall provide CITY with a Certificate of Insurance, or other proof of insurance evidencing CONCESSIONAIRE'S compliance with the requirements of this paragraph and file such proof of insurance with the CITY at least ten (10) days prior to the date Concessionaire begins performance of it's obligations under this Agreement. In the event the insurance minimums are changed, CONCESSIONAIRE shall immediately submit proof of compliance with the changed limits. A copy of the CONCESSIONAIRE'S Health Department license shall be submitted to the City prior to commencing services. Evidence of all insurance and licenses shall be submitted to the City Purchasing Agent with a copy to Meridian City Accounting, 33 East Broadway Avenue, Meridian, Idaho 83642. 6. Notices: Any and all notices required to be given by either of the parties hereto, unless otherwise stated in this agreement, shall be in writing and be deemed communicated when mailed in the United States mail, certified, return receipt requested, addressed as follows: City of Meridian Purchasing Manager 33 E. Broadway Avenue Meridian, Idaho 83642 Idaho Five Star Funnel Cakes Attn: Bill Loverde 8145 E. Sunriver St Nampa, ID 83687 208-249-8627 Bill126787@aol.com CONCESSION SVC'S AGREEMENT 2011 - IDAHO FIVE STAR FUNNEL CAKES page 3 of 8 Either party may change their address for the purpose of this paragraph by giving written notice of such change to the other in the manner herein provided. 7. Attorney Fees: Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be granted, to court costs and reasonable attorneys' fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 8. Time is of the Essence: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to timely perform any of the obligations hereunder shall constitute a breach of, and a default under, this Agreement by the party so failing to perform. 9. Assignment: It is expressly agreed and understood by the parties hereto, that CONCESSIONAIRE shall not have the right to assign, transfer, hypothecate or sell any of its rights under this Agreement except upon the prior express written consent of CITY. 10. Discrimination Prohibited: In performing the Services required herein, CONCESSIONAIRE shall not unlawfully discriminate in violation of any federal, state or local law, rule or regulation against any person on the basis of race, color, religion, sex, national origin or ancestry, age or disability. 11. Reports and Information: 11.1 At such times and in such forms as the CITY may require, there shall be furnished to the CITY such statements, records, reports, sales receipts, cash register tapes, data and information as the CITY may request pertaining to matters covered by this Agreement. 11.2 Concessionaire shall maintain all writings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of four (4) years from the termination or completion of this or Agreement. This includes any handwriting, typewriting, printing, photo static, photographic and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof. 12. Audits and Inspections: At any time during normal business hours and as often as the CITY may deem necessary, there shall be made available to the CITY for examination all of CONCESSIONAIRE'S records with respect to all matters covered by this Agreement. CONCESSIONAIRE shall permit the CONCESSION SVC'S AGREEMENT 2011 - IDAHO FIVE STAR FUNNEL CAKES page 4 of 8 CITY to audit, examine, and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, sales receipts, cash register tapes, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. 13. Publication, Reproduction and Use of Material: No material produced in whole or in part under this Agreement shall be subject to copyright in the United States or in any other country. The CITY shall have unrestricted authority to publish, disclose and otherwise use, in whole or in part, any reports, data or other materials prepared under this Agreement. 14. Compliance with Laws: In performing the scope of services required hereunder, CONCESSIONAIRE shall comply with all applicable laws, ordinances, and codes of Federal, State, and local governments. 15. Changes: The CITY may, from time to time, request changes in the Scope of Services to be performed hereunder. Such changes, including any increase or decrease in the amount of CONCESSIONAIRE'S compensation, which are mutually agreed upon by and between the CITY and CONCESSIONAIRE, shall be incorporated in written amendments to this Agreement. 16. Termination: If, through any cause, CONCESSIONAIRE, its officers, employees, or agents fails to fulfill in a timely and proper manner its obligations under this Agreement, violates any of the covenants, agreements, or stipulations of this Agreement, falsifies any record or document required to be prepared under this agreement, engages in fraud, dishonesty, or any other act of misconduct in the performance of this contract, or if the City Council determines that termination of this Agreement is in the best interest of CITY, the CITY shall thereupon have the right to terminate this Agreement by giving written notice to CONCESSIONAIRE of such termination and specifying the effective date thereof at least fifteen (15) days before the effective date of such termination. CONCESSIONAIRE may terminate this agreement at any time by giving at least sixty (60) days notice to CITY. Notwithstanding the above, CONCESSIONAIRE shall not be relieved of liability to the CITY for damages sustained by the CITY by virtue of any breach of this Agreement by CONCESSIONAIRE, and the CITY may withhold any payments to CONCESSIONAIRE for the purposes of set-off until such time as the exact amount of damages due the CITY from CONCESSIONAIRE is determined. This provision shall survive the termination of this agreement and shall not relieve CONCESSIONAIRE of its liability to the CITY for damages. 17. Construction and Severability: If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. CONCESSION SVC'S AGREEMENT 2011 - IDAHO FIVE STAR FUNNEL CAKES page 5 of 8 18. Advice of Attorney: Each parry warrants and represents that in executing this Agreement. It has received independent legal advice from it's attorney's or the opportunity to seek such advice. 19. Entire Agreement: This Agreement contains the entire agreement of the parties and supersedes any and all other agreements or understandings, oral of written, whether previous to the execution hereof or contemporaneous herewith. 20. Applicable Law: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Idaho, and the ordinances of the City of Meridian. 21. Approval Required: This Agreement shall not become effective or binding until approved by the City of Meridian. CITY OF MERIDIAN BY: Keith Watts, Purchasin anager BY: Dated: /-/ " 2 d 1 r Approved as to Form CITY ATTORNEY IDAHO FIVE STAR FUNNEL CAKES Bill Loverde Dated: q �/ /% Parks Depart t Ap roval BY: M NAME: �� l c / { �S 5 TITLE: fi 6Crda a� Lego rdr#j o Dated: q/ I111 CONCESSION SVC'S AGREEMENT 2011 - IDAHO FIVE STAR FUNNEL CAKES page 6 of 8 rs1 i, Exhibit A SCOPE OF SERVICES e of July Storey Park Trailer Concessions: 1. Provide and operate one concession trailer with services per proposal received March 4, 2011 between the hours of 3:00 p.m. to 10:30 p.m. on July 4, 2011. Concessionaire may not enter park prior to 1:00 p.m. on July 4t'. 2. Menu items that have been approved for sale are listed below. If vendor would like to add any additional items to their menu, those items must first be approved in writing by the Meridian Parks and Recreation Department. a) Approved Menu Items: Idaho Five Star Funnel Cakes Menu Funnel Cakes Small $5.00 Medium $6.00 Large $7.00 Jumbo Hand dipped Corndogs $4.00 Canned soda or Bottled Water $1.00 Additional requirements 1. Must have or obtain all necessary Central District Health Department permits, if required. 2. Must Complete a Fire Inspection through the Meridian Fire Department if cooking on-site. 3. Must provide a valid Idaho State Tax Resale number. 4. Concessionaire must provide City with gross sales totals for each movie night. Totals may be reported periodically through the summer or all at once after the conclusion of the program. CONCESSION SVC'S AGREEMENT 2011 - IDAHO FIVE STAR FUNNEL CAKES page 7 of 8 Exhibit B PAYMENT SCHEDULE A. Fees for the above listed trailer concession services will be paid to the City in advance of the events on a monthly basis. TASK DESCRIPTION AMOUNT B• Independence Day Celebration $100.00 CONCESSION SVC'S AGREEMENT 2011 - IDAHO FIVE STAR FUNNEL CAKES page 8 of 8