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HomeMy WebLinkAbout2014-0897/0/ CONCESSIONAIRE LICENSE AGREEMENT a 0 1 THIS AGREEMENT, entered into this 1 s t day of July ,2014, by and between the BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA through its Parks Division, a political subdivision of the State of Florida (the "County") and TREASURE COAST CONSULTING INC. d/b/a TREASURE COAST CONCESSIONS ("Concessionaire"). WITNESSETH: WHEREAS, the County is the owner of certain real property located in Indian River County, Florida, commonly known as the North County Aquatic Center, the Indian River County Public Shooting Range, and Golden Sands Park and such other real property that may be designated in the County's sole discretion (collectively, the "Parks"); and WHEREAS, the Concessionaire desires to utilize certain facilities located at the Parks for purposes hereinafter set forth; and WHEREAS, operation of said concession will mutually benefit the parties hereto and the residents of Indian River County, Florida; and NOW, THEREFORE, in consideration of the covenants herein contained, it is mutually agreed between the parties as follows: 1. Term. The Concessionaire is hereby granted a license to operate a food concession consisting of a mobile cart and a tent set up adjacent to the cart ("Concession") to be located at the Parks from the date of execution of this Agreement and shall continue for two years (the "Initial Term"). The Concessionaire may request two additional renewals of the Agreement, each for an additional year ("Renewal Term") by submitting written notice to the County at least ninety (90) days prior to the commencement of a Renewal Term. The County may grant a Renewal Term in its sole discretion. The parties may agree to alter time periods and locations at which food service 1 will be provided at one or more of the Parks during those times of year when park attendance is low or minimal. The County shall make the ultimate determination in its sole discretion as to whether Concessionaire is permitted to provide concession services on any County owned property. 2. Payments. Concessionaire shall pay to the County, twenty percent (20%) of the cumulative gross receipts for the Term of this Agreement in monthly installments (the "License Fee"). The License Fee shall be due at the close of business by the 10th each applicable month (the "Due Date"). For the purpose of computing the License Fee, cumulative gross receipts shall exclude local, state and federal sales tax License Fee payments will be made by business check and will be mailed or given directly to the Indian River County Recreation Department, 1800 27th Street, Vero Beach, Florida 32960-0310, on the Due Date. An accurate accounting of the gross receipts from each day for each of the Parks shall be recorded in substantially the same form as shown in Exhibit "A" and such form shall accompany the License Fee. 3. Accounting Procedure. Concessionaire shall maintain complete and accurate financial and performance records for concession services performed in connection with this Agreement in accordance with good and accepted accounting procedures, which records shall be available for inspection upon request by the County or any duly authorized representative thereof. Concessionaire hereby agrees to maintain financial records and to adopt accounting procedures requested by the County. Concessionaire shall cooperate with and provide to the County or its duly authorized representative any additional information or reports concerning its activities, income, revenues, expenses, and disbursements when so requested. All transactions, activities and records of the Concessionaire shall be subject to audit at any time by the auditors of the County with the cost to be paid by the Concessionaire should such an audit reveal that the Concessionaire is in violation of this Agreement. Such books 2 and records shall be maintained by the Concessionaire for a period of three (3) years from the date of termination of this Agreement unless a shorter period is otherwise authorized in writing. 4. Use of Premises. Concessionaire shall operate the Concession, which Concession shall be limited solely to the sale of menu items approved by the Indian River County Parks and Recreation Director, or his designee. No other goods or services shall be offered or sold by the Concessionaire without the prior written approval of the Indian River County Parks and Recreation Director, or his designee. County reserves the exclusive right to operate "Slushy Machine" out of the Concession stand at the North County Aquatic Center and retain all profits. County also reserves the exclusive right to sell non-perishable items out of the Concession stand at any time when the North County Aquatic Center pool is open but the concessionaire is not on site. It is specifically agreed and understood that the use herein set forth shall be the only use allowable under the Agreement and that any variance in such use shall require the written consent of the County. The location of the Concession at each of the Parks shall be determined by the County in its sole discretion. The Concession may not operate after the general hours of operation of the Parks unless the County provides otherwise. Periodically, the North County Aquatic Center closes for swim meets, private functions and those County sponsored events not open to the general public, and Concessionaire agrees that Concession will not be open during those times, unless otherwise agreed by the parties. 5. Duties of Concessionaire. Concessionaire agrees as follows: a. To maintain an inventory sufficient to satisfy the demands and needs of the public. 3 b. To secure and maintain all licenses and permits required and to pay when due all taxes and assessments which shall be imposed or assessed by governmental units in connection with the business or operation conducted pursuant to the provisions of this Agreement and to otherwise comply with all applicable laws, ordinances, rules, regulations, or policies established by the County or local, state and federal governmental unit or authority. c. To provide service to the public in accordance with an operating schedule approved by the Indian River County Parks and Recreation Director, or his designee, for the period of the Initial Term or Renewal Term, as applicable, of this Agreement. Said schedule shall not be modified or altered without written approval of the Indian River County Parks and Recreations Director, or his designee. The cost of purchasing the food items shall be posted and in full view of the public. d. To maintain equipment in good working condition and appearance of equipment must meet standards that will not conflict with the overall decorum of the Parks. e. To establish rules regarding customer service if and when required, subject to approval of the Indian River County Parks and Recreation Director, or his designee. f. To maintain good public relations, to conduct said Concession in a manner which is courteous and fair to the public and to be responsive to customer's requests and complaints. g. To cooperate fully with County officials in all matters relating to the Concession and the recreation complex of which they are a part. h. To purchase and install any equipment required for operation of the Concession. i. To notify the County immediately in writing of any potentially hazardous condition existing on or about the Concession or the Parks. 4 6. Duties of the County. The County agrees as follows: a. To make available to Concessionaire water and electricity connections for operation of the Concession. b. To provide adequate collection and disposal of garbage by a dumpster located on site. c. To provide access to the Parks during normal operating hours to the best of its ability, subject to the right of the County or any other governmental authority to temporarily restrict or deny access to said facility for the purpose of constructing, installing, operating or maintaining any public facility, including, but not limited to, public works and public utilities, or for the purpose of performing any other governmental function. The Indian River County Parks and Recreation Director, or his designee, shall administer the County's interest in said Concession. d. To make its best efforts, while Concessionaire is operating the Concession, to prohibit the general public from bringing soft side bags and coolers, except for those individuals who have health reasons to the North County Aquatic Center, the Indian River County Public Shooting Range or for those individuals who are participating in a County scheduled athletic event or competition. 7. Improvements. Concessionaire agrees that improvements made by him/her shall be at his/her expense and shall have the prior written approval of the Indian River County Parks and Recreation Director, or his designee, and all regulatory agencies where applicable. 8. Indemnification and Insurance. Concessionaire shall defend, indemnify and hold harmless the County and its commissioners, officers, employees and agents, from any and all losses, damages, expenses (including reasonable attorneys fees) and other liabilities of any type whatsoever, arising out of or relating to any negligence, intentional tort, breach of contract, or 5 breach of applicable law by the Concessionaire, or its employees, agents, subcontractors, or other persons or entities performing work under this Agreement. The Concessionaire agrees to provide and maintain at all times during the term of this Agreement, without cost or expense to the County, policies of insurance generally known as comprehensive general liability policies insuring the Concessionaire against any and all claims, demands, or clauses of action whatsoever for the injuries received and damage to property incurred in connection with the use, occupation and management or control of the property and any improvements thereon by Concessionaire. Such policies of insurance shall insure the Concessionaire in the amount not less than $1,000,000.00 to cover any and all liability claims arising in connection with any particular accident or occurrence. Such liability policies shall provide that the County is an additional insured. The County shall be notified in writing of any reduction, cancellation or substantial change of policy or policies at least thirty (30) days prior to the effective date of such action. The Concessionaire shall provide the described insurance on policies and with insurers acceptable to the County and licensed and authorized under the laws of the State of Florida. These insurance requirements shall not relieve or limit the liability of the Concessionaire. The County does not in any way represent that these types or amounts of insurance are sufficient or adequate to protect the Concessionaire's interest or liabilities, but are merely minimums. A certificate of insurance indicating that the Concessionaire has coverage in accordance with the requirements of the Agreement shall be furnished by the Concessionaire to the Indian River County Parks and Recreation, prior to commencement of operations in the Parks. All personal property housed or placed at the Parks shall be at the risk of Concessionaire, and the County shall have no liability for any damage or loss to any personal property located thereon for any cause whatsoever. The Concessionaire agrees and understands 6 that the County does not and shall not carry liability, fire, or theft insurance on the operation of these facilities to cover the Concessionaire's interest therein. 9. Covenants Against Assignment and Subletting. The Concessionaire shall not assign any portion of the Agreement nor allow same to be assigned by operation of law without the express written approval of the County. 10. Independent Contractor. The Concessionaire shall perform the conditions of this Agreement as an independent contractor and nothing herein shall be construed to be inconsistent with this relationship or status. Nothing in the Agreement shall be in any way construed to constitute the Concessionaire or any of his agents or employees as the agent, employee, or representative of the County. 11. Termination. This Agreement may be terminated by the County in its sole discretion and shall be effective immediately upon written notice to Concessionaire. Upon termination of this Agreement, the Concessionaire shall immediately remove any personal property. Any property not removed within five (5) days after termination shall become the property of the County. 12. Additional Locations. Upon written agreement by the parties, this Agreement may include additional concession locations at various other county parks. The terms of this Agreement shall form the basis of any future written document, notwithstanding that a different term, location, and hours of operation would apply. 13. Notice. Notice under this Agreement shall be given to the County by mailing written notice to the Indian River County Recreation Department, Attention: Mike Redstone, 1800 27th Street, Vero Beach, Florida 32960. Notice shall be given to the Concessionaire by mailing written notice, to Thomas "Tom" Burger, 2585 Little Eagle Lane, Vero Beach, Florida 32962. 7 14. Attorney's Fees. In the event of any legal action to enforce the terms of this Agreement each party shall bear its own attorney's fees and costs. 15. Unauthorized Alien Workers. Indian River County will not intentionally award publicly-funded contracts to any contractor who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions in 8 U.S.C. Section 1324a(e) (Section 274A(e) of the Immigration and Nationality Act (INA)). The County shall consider the employment by the contractor of unauthorized aliens a violation of Section 274A(e) of the INA. Such violation of the employment provisions contained in Section 274A(e) of the INA shall be ground for unilateral cancellation of the Agreement by the County. 16. Governing Law. This Agreement shall be deemed to have been executed and entered into in the State of Florida and this Agreement, and any dispute arising hereunder, shall be governed, interpreted and construed according to the laws of the State of Florida. 17. Venue. Venue for any legal action brought by any party to this Agreement to interpret, construe or enforce this Agreement shall be in a court of competent jurisdiction in and for Indian River County, Florida, and any trial shall be non fury. 18. Public Entity Crimes. A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with a public entity, and may not transact business with any public entity in excess of Category Two for a period of thirty-six (36) month from the date of being placed on the convicted vendor list. Concessionaire represents and warrants that no fact or circumstance exists which constitutes a violation of the above prohibitions. 8 19. Modification. No modification of this Agreement shall be binding on the County or the Concessionaire unless reduced to writing and signed by a duly authorized representative of the County and the Concessionaire. 20. Emergencies In the case of a declared emergency in Indian River County by the Board of County Commissioners, the County retains the right to immediately resume occupation, management, and maintenance of the facility, to use the facility to meet any emergency needs of the citizens of Indian River County for the period of that emergency and a reasonable period of time thereafter as deemed necessary by the County. 21. Public Record. All records, books, and accounts related to the performance of this agreement shall be subject to the applicable provisions of the Florida Public Records Act, Chapter 119, Florida Statutes. 22. Force Majeure Neither the County nor the Concessionaire shall be considered in breach of this Agreement to the extent that performance of their respective obligations (excluding payment obligations) is prevented by an Event of Force Majeure that arises after the effective date of this Agreement. An "Event of Force Majeure" shall include, but not be limited to an act of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods); war, hostilities (whether declared or not), invasion, act of foreign enemies, mobilization, requisition, or embargo; rebellions, revolution, insurrection, or military or usurped power, or civil war; contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly; riot, commotion, strikes, go slows, lock outs or disorder, unless solely restricted to employees of any supplier or of its subcontractors; or acts or threats of terrorism. 9 IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals on the day and year first above written. Attest: Jeffrey R. Smith, Clerk of Court and Comptroller B Approved: °sep h A. Baird, County Administrator BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA ( `County") ,,............. f���g$IONERS..� By: ‘..b Id? trV. •••• •s lam•1 •;gyp. Z'. t� SI Peter D. O'Bryan, Chairman APPROVED by BCC: July 1H R.EA: Approved as to form and legal sufficiency: Reingold, County Attorney TREASURE COAST CONSULTING INC., d/b/a TREASURE COAST CONCESSIONS ("Concessionaire") By: Thomas J. Burger, Dated this day of June, 2014. EXHIBIT "A" RECORDS OF CASH RECEIPTS CONCESSION NAME: MONTH DAY OF GROSS MONTH RECEIPTS 1 $ 2 $ 3 $ 4 $ 5 $ 6 $ 7 $ 8 $ 9 $ 10 $ 11 $ 12 $ 13 $ 14 $ 15 $ 16 $ 17 $ 18 $ 19 $ 20 $ 21 $ 22 $ 23 $ 24 $ 25 $ 26 $ 27 $ 28 $ 29 $ 30 $ 31 $ TOTAL $ SIGNATURE TOTAL CHECK NO. EXHIBIT "B" CONCESSION MENU AND PRICING CONCESSION NAME: