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HomeMy WebLinkAbout10699RESOLUTION NO. 10699 A RESOLUTION AWARDING AND APPROVING A CONTRACT FOR THE OPERATION OF PARKS AND RECREATION DEPARTMENT CONCESSION AREAS AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE THE SAME WHEREAS, no responsive proposals for the operation of the Parks and Recreation Department concession areas were received; and WHEREAS, in order to serve the public interest, City Administration negotiated a new agreement with the current operator, Sagona Enterprises, Inc. dba Poppy's, NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 A contract for the operation of the Parks and Recreation Department concession areas be, and same is hereby awarded to Sagona Enterprises, Inc. dba Poppy's. The awarding of the contract set forth herein shall be subject to the filing of sufficient performance bond to be approved by the Purchasing Agent of said City. SECTION 2. The Contract dated April 24, 2006 between the City and Sagona Enterprises, Inc. dba Poppy's, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 3 The President of the City Council is authorized to execute the Contract on behalf of Pueblo, a Municipal Corporation, and the City Clark shall affix the seal of the City thereto and attest the same. INTRODUCED April 24, 2006 BY Gilbert Ortiz Councilperson /�� "�" APPROVED: �C UJtx VICE FFRESIDLINTof City Council ATTESTED BY: CITY CLERK Background Paper for Proposed RESOLUTION AGENDA ITEM # 7 (April 21, 2006) DATE: April 24, 2006 DEPARTMENT: CITY MANAGER'S OFFICE TOM MARTINEZ, ASSISTANT CITY MANAGER FOR CONTRACT SERVICES RICH ZAJAC, DIRECTOR OF PARKS AND RECREATION TITLE A RESOLUTION AWARDING AND APPROVING A CONTRACT FOR THE OPERATION OF PARKS AND RECREATION DEPARTMENT CONCESSION AREAS AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE THE SAME ISSUE Should City Council award a contract for the operation of the Parks and Recreation Department concession areas to Sagona Enterprises, Inc. dba Poppy's of Pueblo, Colorado? RECOMMENDATION Approval of the Resolution. BACKGROUND The current contract for the operation of the Parks and Recreation Department concession areas expired on April 15, 2006. This contract was extended in November 2000 for five years and has no provision for renewal. Advertisement for bids for the operation of the concession areas was on February 16, 2006 with bids opened on March 3, 2006. No responsive proposals were received, and therefore, City Administration negotiated a new agreement with the current operator to continue to provide the park concession service to the public. In general, the work consists of the operation of the concession areas at Mineral Palace Park, City Park, Minnequa Park, and Mitchell Park swimming pools, City Park Playground, the ball fields at City Park and Stauter Field and other specified playing fields as needed. The term of the contract is for a period of five (5) years from April 24, 2006 to April 24, 2011. The concessionaire will have an exclusive concession agreement for the park concessions and parks in which such concessions are located and fumish all labor, inventory, supplies, products, tools, equipment, material and improvements, and pay for all such items needed to set up and operate the concession areas. The concession areas are open during the swimming pool and playing field seasons. FINANCIAL IMPACT The concessionaire will pay the City the greater of a minimum amount guarantee of $3,000 or three (3) percent of the gross sales up to $150,000 annually plus ten (10) percent of the gross sales in excess of this amount through the agreement. Pg. 1 CONTRACT AGREEMENT THIS CONTRACT made and entered into this 24th day of April, 2006, by and between the City of Pueblo, a Municipal Corporation, hereinafter referred to in the Contract Documents as the " City ", and Sagona Enterprises Inc dba Poppy's referred to in the Contract Documents as "Concessionaire ". WITNESSETH : In consideration of the sum to be paid by the Concessionaire to the City at the time and in the manner hereinafter provided, the City agreed to license the Concessionaire and the said Concessionaire has agreed, and does hereby agree, to famish all labor, inventory, supplies, products, tools, equipment and material and to pay for all such items, and to set up and operate complete in every detail, Project No. 06 -019, Operation of Parks and Recreation Concession Areas, at the prices bid on the Quotation Record, in accordance with all Contract Documents for this operation which are on file and available for inspection in the office of the City's Purchasing Agent, all to the satisfaction and under the general supervision of the City Manager for the City of Pueblo, Colorado. And, for said consideration, it is further particularly agreed between the parties to this Contract as follows: This contract consists of the following component parts and documents, all of which are fully a part of the Contract as if herein set out all verbatim, or if not attached, as if hereto attached: Contract (This Instrument) Performance Bond Notice of Award Notice to Proceed Request for Proposal: Section I: General Information Section II: Quotation Record Section III: Experience Record Section IV: General Provisions Section V: Special Provisions All of the covenants and agreements set forth in the Contract Documents shall inure to the benefit of and be binding upon City and Concessionaire and their respective heirs, legal successors and assigns and shall be governed by the laws of the State of Colorado. Pg. 2 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed in four (4) original counterparts as of the day and year first above written. By f :: . - - f f)Py m ATTEST of the City Council City Clerk BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE: D irector APPROVED AS TO FORM: C y Attorney SECTION IV GENERAL PROVISIONS OPERATION OF PARKS AND RECREATION DEPARTMENT CONCESSION AREAS The provisions of this portion of the Contract Document are of a general nature and are intended to apply to all concession areas described in Section V. - Special Provisions. Whenever any of these provisions do not apply to specific Concession Area operations, the exceptions are noted in the Special Provisions. In case of any conflict between the General Provisions and the Special Provisions, the Special Provisions shall govern. The following terms, as used in these contract documents, are respectively defined as follows: a. "City" City of Pueblo, Colorado b. "Closing Time" The scheduled closing time for the receipt of proposals, and the opening thereof. c. "Concessionaire" The person, persons, firm or corporation to whom the Contract is awarded by the City and who is subject to the terms of said Contract. Also the agents, employees, workmen or assignees of said Concessionaire. d. "Director" The Director of Parks and Recreation for Pueblo, Colorado, or his authorized agents. e. "Concession" All work including materials, inventory, supplies, products, labor, supervision, and equipment necessary to serve the public in full compliance with the terms of the Contract. f. "Notice" Where any section of the Contract Document contains any provision in respect to the giving of any notice, such notice shall be deemed to have been given: (as to City) written notice shall be delivered to the Director of Parks and Recreation at the place where the bids or proposals for the contract were opened; (as to the Concessionaire) when a written notice shall have been placed in the United States Mail addressed to the Concessionaire at the place stated in the papers prepared by him to accompany his proposal as the address of his permanent place of business; (as to the Surety) on the Performance Bond when a written notice is placed in the United States Mail addressed to the Surety at the home office of such Surety. Such address may be changed at any time by filing such change of address, in writing, with the City Clerk and with the Purchasing Department. Page 9 g. "Concession Area" The buildings or premises more frilly described in the Special Provisions. The Concessionaire is restricted to the Concession Area, except as otherwise set forth in the Contract Documents. Concession Areas do not not include Elwood Golf Course Restaurant, or Walking Stick Golf Course Restaurant, or the City Park Zoo area, or the Pueblo Mountain Park. h. "Active Occupancy" That period of the year when the Concession is open to the public for the sale of foods and goods, and opposed to inactive occupancy when the Concessionaire is technically in possession the premises under this agreement, but is not open for business. is "Surety" The person, firm or corporation that has executed, as Surety, the Contractor's Performance Bond. 2. INTERPRETATION In interpreting the Contract Documents, words describing materials or work which have well known technical or trade meaning, unless otherwise specifically defined in the Contract Documents, shall be construed in accordance with such well -known meanings recognized by the trade. If any person contemplating submitting a proposal for this contract is in doubt as to the true meaning of any part of the Contract Documents, he may submit to the Director of Purchasing of the City of Pueblo, Colorado, a written request for an interpretation thereof. The person submitting the request will be responsible for its prompt delivery. Any interpretation of the Documents will be made only prior to closing time and by the written addendum duly issued or delivered to each person receiving a set of such Documents. The City will not be responsible for any other explanations or interpretations of the Documents after proposal closing time. 3. GENERAL DESCRIPTION AND SCOPE The scope of the work to be performed under this agreement is providing top quality concession operation for the furnishing of foodstuffs and novelties to the public (and particularly those patrons of the public facility of which the Concession Area is a part) at reasonable prices based on prevailing prices for like commodities elsewhere in the City of Pueblo and under such standards of operation as to assure prompt and courteous service to the patrons and at the same time assure a fair return to the Concessionaire. The privilege granted under this agreement gives the Concessionaire the right to sell small novelties, swimming accessories, popcorn, nuts, hot dogs, sandwiches, candies, confections, soft drinks, coffee, hot chocolate, cocoa, crackers, cookies, fried cakes, dough nuts, cupcakes, tea, milk, nonalcoholic beverages, ice cream and fruit and for no other purpose except as may be specifically set forth in the Special Provisions. The privilege granted by this agreement shall be deemed to be an exclusive right or franchise within the public facility or park wherein such Concession Area is located. The Director shall designate the number and location of any machine or equipment providing snack and refreshment. The proposer shall inform himself of the conditions in existence at the Concession Area before submitting his proposal and no allowances shall be made by reason of any matter or thing concerning which he might not have fully informed himself prior to the bidding. No proposer will be heard after the opening of proposals to assert that there was any misunderstanding as to the nature of the operation expected in the Concession Areas. Page 10 4. The Concessionaire is expected to base his proposal on operating the concessions upon the conditions set forth in the Contract Documents, and in the event he contemplates an operation not specifically permitted herein, he will be required to revise his operation to fully conform at no change in his proposal price. Before submitting a proposal, each Concessionaire shall read the complete Contract Documents, all of which contain provisions applicable to the operation of the concessions. 5. REQUIRED INFORMATION Each proposer shall submit the following data: a. Address of proposer's permanent place of business. b. Statement listing operations of a similar nature which proposer operated or in which proposer is engaged in a responsible capacity (Section II — Experience Record). c. Any additional information the City may require in order to be assured the proposer is able and prepared to operate the concession. 6. SIGNING OF BIDS a. Bids which are not signed by individuals making them shall have attached hereto a power of attorney evidencing authority to sign the proposal in the name of the person or by whom it is signed. b. Bids which are signed for a co- partnership shall be signed by all of the co- partners or by an attorney -in- fact. If signed by any attorney -in -fact, there should be attached to the proposal a power of attorney evidencing authority to sign the proposal. c. Bids which are signed for a corporation should have the correct corporation name thereof signed in hand writing or in typewriting and the signature of the President or other authorized officer of the corporation should be manually written below the written or typewritten corporate name following the word `By Title d. If proposals are signed for any other legal entity, the authority of the person signing for such legal entity should be attached to the proposal. 7. MODIFICATION, WITHDRAWAL, DUPLICATE a. Modification of proposals already submitted will be permitted, provided such modification be in writing and transmitted to the City's Purchasing Department prior to Closing Time. Such modification shall not reveal the amounts in the original or revised proposal. b. Any proposer may withdraw his proposal prior to the Closing Time, but no proposal shall be withdrawn for a period of thirty (30) days after Closing Time. Negligence or mistake on the part of the proposer shall not constitute a right to withdraw after Closing Time. Any proposal received after Closing Time will be returned unopened. c. If more than one proposal is offered by one parry, all such proposals shall be returned unopened. If duplicate proposals are not discovered until after opening, such duplication shall be cause for immediate rejection of such proposals. A party who has quoted prices to a proposer is not thereby disqualified from quoting prices to other proposers or from submitting a direct proposal on his own behalf. Page 11 8. AWARD OF CONTRACT a. The Contract shall be awarded to the highest and the best, reliable and responsible proposer within thirty (30) days from the date of Closing Time. The best proposal will produce the greatest revenue to the City. b. The Contract shall be deemed to have been awarded when formal Notice of Award shall have been duly given to the intended awardee (i.e., the proposer to whom the City contemplates awarding the Contract) by the Director of Purchasing of the City. 9. EXECUTION OF CONTRACTS AND BONDS a. The successful proposer shall enter into a written Contract with the City on the form attached hereto as Exhibit A. Such Contract shall be subject to the Charter of Pueblo and the Code of Ordinances, City of Pueblo. b. Each Contract must be executed in four (4) original counterparts and there shall be executed original counterparts of the Contractor's Performance Bond in equal number to the executed original counterparts of the Contract. The successful Concessionaire must provide insurance as outlined herein. The costs of executing the Bonds, Contract, and insurance, including all notarial fees and expense, are to be paid by the Concessionaire. 10. CONTRACT SECURITY The Concessionaire shall furnish a good and sufficient Performance Bond on the form attached hereto as Exhibit B m an amount equal to the Minimum Annual Guarantee, as security for the faithful performance of the contract and for the payment of all persons performing labor and furnishing equipment and provisions in connection with the Concession and the return of all City-Owned buildings in good condition at the termination of the contract for any reason whosoever. If, at any time during the continuance of the Contract, the Performance Bond is cancelled or no longer remains enforceable in the sole opinion of the City including the inability of the Surety to perform the bond, the City shall have the right to require, substitute, additional and sufficient, Performance Bond or sureties which the Concessionaire shall furnish within ten (10) days of written notice to do so. 11. VERBAL AGREEMENTS No verbal agreements or conversation with any officer, agent or employee of the City either before or after execution of the Contract shall affect or modify any of the terms, or obligations contained m any of the documents compromising this Contract. 12. ASSIGNMENT The Concessionaire shall not sign or sublet this Contract, or any right, privilege or interest thereunder, including the sale or transfer of stock in any corporation, directly or indirectly, without the written permission of the City Council of the City. 13. OTHER OPERATIONS The Concessionaire shall conduct the privilege granted to him without infringement upon the rights of others; he shall not engage in any business or sell any commodity upon, in or around the Concession Area other than as expressly stipulated in this Contract; and he shall confine all operations to the Concession Area herein specified. At all times the Concessionaire shall cooperate so as not to interfere in the holding or carrying on Page 12 of any event within the park or public facility, where the Concession Area is located, and shall not permit unnecessary noise or annoyance to those participating in or attending any such event. 14. The Concessionaire releases the City, its representatives, employees and agents from any and all liability for loss and/or damage to the property and the merchandise of the Concessionaire, not withstanding the cause of such loss or damage. Risk from fire, theft, or otherwise, of Concessionaire's property rests within the Concessionaire. Concessionaire agrees to indemnify, defend and save harmless the City, its agents, representatives and employees from any act of commission or omission for which the Concessionaire is liable or which arising out of the Concessionaire's operations, hereunder and will reimburse the said City, its agents, representative and employees for any claims, losses, damages, judgments, and expenses (including reasonable attorney fees) which the said City, its agents, representatives and employees may incur under such circumstances. 15. INSURANCE — PUBLIC LIABILITY AND PRODUCTS The Concessionaire shall be responsible for any and all damage or injury to persons or property, public or private, that may be caused or result from his operations or in the performance of this Contract, and the Concessionaire shall defend any claim or suit that may be brought against himself or the City on account of damage or injury resulting from his operations, and shall pay any judgments awarded to cover such damage or injury. The Concessionaire shall carry, at his own expense, comprehensive public liability and product liability insurance in the amount of $1,000,000 for each occurrence and aggregate for property damage and necessary and sufficient worker's compensation insurance to cover his employees, and to protect all parties to this agreement and which insurance policies are to be approved by the City Attorney. The Concessionaire shall file certificates of said policies with the City's Contract Administrator and office of the Purchasing Agent. 16. INSURANCE —FIRE, ETC. The City maintains fire and extended coverage on the buildings, but not on other contents of the Concession Areas. At his own expense, Concessionaire must purchase insuran of such amounts and types desired to protect his equipment and inventory. 17. PERMITS AND LICENSES The Concessionaire shall procure, supply, and post, at his own cost and expenses, in places designated by the City, all the permits and license necessary to be procured for the carrying on of the concessions and shall pay, at his own expense, before the same become delinquent, all taxes assessed or levied against or arising out his business or merchandise, including sales and use tax. 18. STANDARDS FOR SERVICE a. The Concessionaire shall serve only recognized standard beverages, delivered in cans or dispensed through machines in the Concession Area. b. The Concessionaire shall serve only good, pure, wholesome food and drinks; and at reasonable prices based on prevailing prices for like commodities elsewhere in the City of Pueblo. The Concessionaire shall cause to be posted in a conspicuous manner in front of the serving counter a neatly printed or painted sign, plainly readable at a distance of twenty -five (25) feet, showing the price of all articles of food and drink to be sold under this Contract. The size, design, color, location, and all matters pertaining Page 13 to such sign shall be first approved by the Director, and no other display signs, menu or advertising matter of any kind shall be used in the Concession Areas except with written permission of the Director. 19. EMPLOYEES The Concessionaire shall employ and compensate his own help and employees, and each of said employees, while employed upon the premises, shall wear a suitable uniform provided at the expense of the Concessionaire or his employee, and shall at all times be clean, neat and pressed, and all concession representatives and employees shall comply with all the rules of the Director for the cleanliness of persons and courtesy towards the patrons, the public and other employees. All employees of the Concessionaire shall be of proper working age, and the Concessionaire shall comply with all the laws, nrles and regulations as an employer and particularly, but not limited to, the labor laws and the workman's compensation law. The Concessionaire at all times shall enforce strict discipline and good order among his employees. The Director shall have the authority, but not the obligation, to order the removal from the premises of any Concessionaire's employees who refuses or neglects to observe any of the provisions of this Contract, or who is incompetent, unfaithful, abusive, threatening, or disorderly in his conduct, and any such persons shall not again by employed without permission of the Director. 20. AUTHORITY OF DIRECTOR a. The Director shall generally supervise all work included in this Contract. He shall decide all questions that may arise as to the fulfillment of the Contract on the part of the Concessionaire and his decisions thereon shall be final and conclusive. He shall have the authority to reject all foodstuffs and commodities that do not meet the standard required by this Contract, and to decide questions that arise in the performance of the Contract. b. If, in the opinion of the Director, the services being performed by the Concessionaire is in violation in any way with the terms of the Contract, he shall forthwith cause the Concessionaire to cease said violation. c. The Director shall, upon presentation to him, make prompt decisions in writing on all requests of the Concessionaire on all other matters relating to the performance of the Contract or the interpretation of the Contract Documents. All such decisions of the Director shall be final. 21 The D at all times shall have access to the Concession Areas. The Director shall have the authority but not the obligation to condemn and remove all substandard or contaminated foodstuffs or commodities stored or displayed by the Concessionaire. Such rejected items shall be removed from the premises without charge to the City. If the Concessionaire does not remove such items forthwith, the City may remove and dispose of such items, upon giving written notice of its intention to do so, and charge the expense of such removal and disposal to the Concessionaire. 22. USE OF SITE AND EQUIPMENT All storage of materials and equipment shall be within the Concession Areas described in the Special Provisions. No empty bottles, crates or containers shall be stored outside the Concession Areas. 23. CLEAN -UP AND MAINTENANCE a. The Concessionaire shall keep the Concession Areas used or occupied by him clear of trash, refuse, debris, and garbage, and shall remove the same daily at his expense, and make his own arrangements for the disposal of all trash and refuse. The Concessionaire shall not throw any trash or refuse or empty any water or other fluids in the streets and gutters adjacent to the Concession Areas. Page 14 b. The Concessionaire shall be responsible for the maintenance of all plumbing in the Concession Areas. All water valves shall be kept in repair to avoid waste of water. All sanitary sewers from the Concession Areas to the main shall be kept clean and rodded and free from leaks and an accumulation of grease or wastes. All plumbing, heating and electrical systems within the Concession Area shall be kept in good working condition at all times and shall be used in compliance with manufacturer's instructions. In the event replacement or repair of water and sewer lines and appliances or attachments shall be necessary, the Concessionaire shall be responsible for such necessary replacements or repairs within the outer walls of the Concession Areas and the City shall be responsible for such repairs or replacements outside the outer walls of the Concession Areas. Broken glass shall be replaced by the Concessionaire without expense to the City. 24. PAYMENTS a. Concessionaire shall pay to the City the amounts set forth in his proposal in monthly installments equal to the greater of (i) one - twelfth (1 /12) of the Minimum Annual Guarantee, or (ii) the specified percentage of gross sales for each month. Monthly installments shall be paid to the City's Director of Finance at his office in City Hall on or before the tenth (10) day of each calendar month starting with the tenth of May, 2006. The first and last calendar month shall be prorated. Final settlement and accounting of annual amounts payable to the City shall be made and paid on or before the first day of May each year starting May 1, 2007. b. The Concessionaire agrees to furnish the City with monthly statements showing the daily receipts from sales or otherwise of said Concessionaire during the prior calendar month. In the event the Concessionaire should fail to furnish the monthly returns by the 15th day of the following month, then the City, at its option, may terminate and cancel this agreement without further notice. The Concessionaire agrees to keep adequate books and records of accounts and agrees to permit the City or any designated representative of the City to examine and inspect said books or records upon request, made either orally . and in writing, when so made upon the Concessionaire. In the event said inspection is refused or denied, the City at its option may terminate or cancel this agreement without notice and without relieving the Concessionaire from his liabilities incurred to the date of cancellation. In the event of litigation arising out of this Contract, the court shall award to the prevailing party, its cost and expenses, including reasonable attorney fees. 25. TERMINATION FOR CAUSE In the event of the bankruptcy or insolvency of the Concessionaire, or in the event of violation or default in the performance of any of the covenants or agreements herein to be performed by the Concessionaire, it shall be lawful for the City, at its election, upon ten (10) days prior written notice addressed to the Concessionaire at the address given by him on these Contract Documents to declare this Contract terminated and to re-enter in the possession of the Concession Areas or any part thereof with or without further demand or process of law, and to remove and expel therefrom the Concessionaire or any person or persons occupying the same together with Concessionaire's property, and to have the use and enjoyment of said Concession Areas as in its first and former estate. If at any time this Contract shall be terminated in the manner aforesaid or in any other manner, the Concessionaire covenants and agrees immediately to surrender and deliver up the possession of the Concession Areas peaceably to the City, provided, however, that in the event said default or violation is of a minor nature and is cured by the Concessionaire to the satisfaction of the City within seven (7) days from the receipt of said notice, then this Contract shall not be terminated. 26. CONCESSIONAIRE'S RIGHT TO TERMINATE CONTRACT If the Concessionaire should be prevented from doing business under an order from any court, or other public authority, for a period of three (3) months, through no act or fault of the Concessionaire or of anyone employed by him, then the Concessionaire may, upon ten (10) days written notice to the City, terminate the Contract and recover from the City any payments made by the Concessionaire toward the guaranteed annual minimum to cover the period of the otherwise Active Occupancy during which he was prevented from doing business. Page 15 SECTION V SPECIAL PROVISIONS OPERATION OF PARKS AND RECREATION DEPARTMENT CONCESSION AREAS It is the declared and acknowledged intent of these documents to provide for the Operation of Parks and Recreation Department Concession Areas. All products sold by the Concessionaire shall be of the best quality and at reasonable prices based on the prevailing prices for like commodities elsewhere in the City of Pueblo. The Concession Areas, together with all equipment therein, and personnel shall be kept absolutely clean and presentable in dress and person. The Concessionaire shall provide such standards of operation as to insure prompt and courteous service to the patrons, quality products, and at the same time assure a fair return to the Concessionaire. 2. The Concessionaire will keep himself fully informed of all laws, ordinances, rules and regulations in any manner affecting his operations under the Contract and of all orders and decrees of bodies or tribunals having jurisdiction or authority over the same. He will at all times observe and comply with all such existing and future laws, ordinances, regulations, orders and decrees of bodies and tribunals and will protect the City against any claim or liability arising from or based on the violation of any such law, ordinance, regulation, orders, and decree whether by the Concessionaire or by his employees. He will procure all permits and licenses, pay all charges, taxes and fees and give all notices necessary and incident of the proper and lawful operation of this business under this license. 3. In the event of conflict between these Special Provisions and the General Provisions, the Special Provisions will govem. 4. The term of this contract shall be for a period of five (5) years. The contract shall commence at 12:01 AM, April 24, 2006, through Midnight, April 24, 2011. 5. Concessionaire understands and agrees that schedule changes for programs conducted by the Parks and Recreation Department may differ from the present operation and revision in hours of operation of the Concession Areas required by such changes shall be mutually agreed upon. 6. Concessionaire understands and agrees that special events will occur in the public parks or buildings in which the Concession Areas are located and the Concessionaire will be expected to cooperate with the Parks and Recreation Department and sponsors of such special events. The City shall approve the Concessionaire's sponsorship of any promotion or special event. 7. The Director of Parks and Recreation must approve all advertising signs of any type. 8. All products and food or drink for consumption shall be subject to prior approval by the Director as to type and method of service, specifically, greasy foods, dressings, popcorn, paper napkins and tissue shall not be served inside any swimming pool facility. Products or food or drink that create problems of excessive clean up or control within any public facility or on the adjacent areas are prohibited. 9. The Concessionaire shall make no alterations, changes or revamping, moving, or remodeling of any Concession Area, without a permit in writing therefore signed by the Director and in addition thereto, shall obtain all permits required for such work under the ordinances of the City of Pueblo or Laws of the State of Colorado. The Concessionaire shall not load or permit any part of the Concession Area to be loading or Page 16 stored with a weight that will endanger its safety. The Concessionaire shall not overload any utility line, receptacle, valve or outlet in such a manner that will endanger the safety of any building or facility or of any person. Equipment shall be located as not to disturb or alter the appearance of the Concession Area. 10. The City will provide the Concession Areas and utility connections as detailed under specific location information. The Concessionaire shall furnish all necessary equipment for his own use and shall confine the same to the specific Concession Area where the equipment will be used. 11. The location of the Concession Areas is described below. The Concessionaire shall be limited to the specific Concession Area designated below and shall not peddle or hawk his wares in any other portion of the public park or facility wherein the Concession Area is located. On special occasions, the Director may permit the Concessionaire to accommodate large crowds and additional patronage by setting up tables and/or dispensers outside the specified Concession Area but in close proximity thereto. The permission of the Director for such expanded operation should be obtained at least ten (10) days in advance whenever possible. 12. Physical Facilities and Equipment Examination a. Concessionaire shall inform himself of the conditions in existence of the Concession Areas before submitting his proposal and no allowances shall be made by any reason of any matter or thing concerning which he might have fully informed himself prior to the bidding. b. The Concession Areas shall be utilized to serve the patrons of the facility and not as a supply source for other concessions. C. The Concessionaire shall provide for the trash receptacles and the removal services for daily removal of all waste, garbage, trash or refuse associated with his operation. The Concessionaire shall keep the Concession Areas clean within a hundred foot (100 ft.) radius of the Concession Area and deposit the debris in his receptacles and remove same at this expense. At no time will he be permitted to utilize the Parks and Recreation dumpsters or removal service. 13. Operating Periods Concessionaire shall open and operate the Concession Areas to adequately accommodate and serve the public during the times activities are conducted at the public swimming pools and facilities wherein the Concession Areas are located. The dates and times of Concessionaire's operations at each Concession Area shall be designated by the Director after consultation with the Concessionaire. If the Concessionaire does not agree with such dates and times designated by the Direction, the Concessionaire may submit such dispute to the City Manager for resolution. The decision of the City Manager shall be final and binding on the Concessionaire and the Director. The City may for any reason and for any period, close the public facility within which a Concession Area is located. The Concessionaire will not be required to remain open when the public facility is closed, but may remain open if he so desires. No reduction in amounts payable to the City under the Contract will be allowed for such closing. 14. SPECIFIC LOCATION INFORMATION FOR CONCESSION AREAS 1. City Park Swim Pool Concession Area a. Comprises approximately 260 square feet of usable floor space at ground level for service to patrons, both inside and outside of the pool enclosure. The remainder of the swim pool building Page 17 and grounds are not available for storage or other use by the Concessionaire. No adjustment will be made for minor variations in available space. b. The Concessionaire will be expected to provide all necessary equipment needed to perform the functions set forth in the said Concession Contract. c. The hot and cold water, natural gas, and electrical utilities are to be provided by the City of Pueblo. The Concessionaire will provide telephone. d. This Concession Area also serves City Park's three (3) playing fields. 2. Mineral Palace Park Swim Pool Concession Area a. Comprises approximately 280 square feet of usable floor space at ground level for service to patrons, both inside and outside of the pool closure. The remainder of the swim pool building and grounds are available for storage or other use by the Concessionaire. No adjustments will be made for minor variations in available floor space. b. The Concessionaire will be expected to provide all necessary equipment needed to perform the functions set forth in said Concession Contract. c. Hot water, natural gas and electrical utilities are to be provided by the City of Pueblo. Concessionaire will provide water service and telephone. Minneaua Park Swim Pool Concession Area a. Comprises approximately 114 square feet of usable floor space at ground level for service to patrons, both inside and outside of the pool enclosure. The remainder of the swim pool building and grounds are not available for storage or other use by the Concessionaire. No adjustments will be made for minor variations in available floor space. b. The Concessionaire will be expected to provide all necessary equipment needed to perform the function set forth in said Concession Contract. d. Hot water, natural gas and electrical utilities are to he provided by the City of Pueblo. Concessionaire will provide water service and telephone. 4. Mitchell Park Swim Pool Concession Area a. Comprises approximately 100 square feet of usable floor space at ground level for service to patrons, both inside and outside of the pool enclosure. b. The Concessionaire will be expected to provide necessary equipment needed to perform the function set forth in the said Concession Contract. e. Hot water, natural gas and electrical utilities are to be provided by the City of Pueblo. Concessionaire will provide water service and telephone. Stauter Field Concession a Concession Area comprises the area approved by the Director and needed to service the participants and observers of sports activities being conducted on the fields at various seasons of play. Page 18 b. The Concessionaire will be expected to provide all necessary equipment needed to perform the function set forth in the said Concession Contract. c. The Concessionaire will provide portable utility sources. 6. Other Playine Field Concession Areas a. Concession Area comprises the area approved by the Director and needed to service the participants and observers of sports activities being conducted on the fields at various seasons of play. b. The Concessionaire will be expected to provide all necessary equipment needed to perform the function set forth in the said Concession Contract. c. The City of Pueblo playing fields are to be serviced by the Concessionaire; the Director will specify the dates and times. City Park Playground Concession Area a. Concession Area is the area commonly known as the Playground Area and comprises approximately 520 square feet of usable floor space at ground level for service to patrons. This Concession Area does not include any other portion of the City Park. b. The Concessionaire will be expected to provide all necessary equipment needed to perform the function set forth in the said Concession Contract. c. The Concessionaire shall provide all water, electricity, natural gas, and telephone for the operation without expense to the City. Page 19 AN AMENDMENT TO A CONTRACT AGREEMENT BETWEEN THE CITY OF PUEBLO AND SAGONA ENTERPRISES, INC. This Amendment ( "Amendment ") is between the City of Pueblo, a Municipal Corporation ( "City "), and Sagona Enterprises, Inc , dba Poppy's ( "Sagona ") RECITALS WHEREAS, the Parties wish to amend their former Agreement. NOW THEREFORE, in consideration of the foregoing recitals, and the terms and conditions set forth herein, the Parties agree as follows TERMS AND CONDITIONS SECTION 1 GENERAL. 1 1 The Parties entered into a certain Contract Agreement dated April 24, 2006, a copy of which is attached as Exhibit A ( "Contract Agreement ") 1.2 The Parties hereby amend the Contract Agreement as provided in this Amendment. 13 Any provision of the Contract Amendment not amended in this Amendment shall remain in effect. 14 In the event of any conflict between the Contract Agreement and this Amendment, this Amendment shall control. SECTION 2. EXTENSION OF TERM. 21 The Parties acknowledge that the original five year term of the Contract Agreement expires on April 24, 2011 2.2 Any right that Sagona had or may have to renew the Contract Agreement under any provision of the Contract Agreement, particularly the Request for Proposals, Section V, Special Provisions, paragraph 4, page 16, is hereby deleted, revoked, and superseded by this Amendment. 2.3 Any right that the City, through the Director of Parks and Recreation, had or may have under any provision of the Contract Agreement to grant or withhold its recommendation for a renewal of the Contract Agreement, particularly the Request for Proposals, Section V, Special Provisions, paragraph 4, page 16, is hereby deleted, revoked, and superseded by this Amendment. 2.3 The Parties hereby extend the Contract Agreement on the same terms and conditions as described in the Contract Agreement from April 24, 2011 to April 24, 2013 2.4 Sagona shall have a conditional right to renew this Agreement, upon the same terms and conditions as this Agreement, for three separate additional terms of one year each, each such additional separate term consecutive with and immediately following the preceding term of this Agreement, provided that. (1) Sagona gives the City separate written notice of its intention to renew for each separate additional one year term at least 90 days, but no more than 120 days before the end of the each separate preceding term of this Agreement; and (2) the City, after receiving each such separate written notice, separately consents to each separate one year renewal in writing at least 90 days before the end of the preceding term. SECTION 3. MISCELLANEOUS. (a) Additional Documents. The Parties agree to execute any additional documents or take any additional action that may be necessary to carry out this Agreement. (b) Force majeure Any delays in or failure of performance by any party of its obligations under this Agreement shall be excused if such delays or failure are a result of acts of God, fires, floods, storms, lightning strikes, labor strikes, labor disputes, accidents, regulations or orders of civil or military authorities, shortages of labor or materials, or other causes, similar or dissimilar, which are beyond the control of such party (c) Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the Parties, their respective legal representatives, successors, and assigns, provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. (d) Section Captions. The captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. (e) Integrations, Severability, Amendment, and Counterparts. This Agreement represents the entire agreement between the Parties and supersedes all prior discussions and written agreements or understandings. This Agreement may be amended only by an instrument in writing signed by the Parties. If any provision of this Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together constitute one and the same agreement. (f) No Third Party Beneficiaries, No Waiver of Immunities. Nothing in this Agreement is intended, nor should it be construed, to create any rights, claims, or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations conferred under federal or state law, including but not limited to the Colorado Governmental Immunity Act, § 24 -10 -101 et seq., CKS (g) Waiver of Breach. A waiver by any party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party (h) Authority of Signers. Each person signing this Agreement on behalf of a party represents and warrants that he or she has the requisite power and authority to enter into, execute, and deliver this Agreement on behalf of such party and that this Agreement is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. (i) Attorney's Fees and Costs of Collections. In the event that it becomes necessary for the City to bring any action or proceeding to collect unpaid utilities, damages, janitorial fees, costs, or other sums due under this Agreement, to enforce any provision of this Agreement, to recover damages for Sagona's breach of this Agreement, or to seek specific performance of this Agreement, the City shall be entitled to collect its reasonable attorneys fees, costs of suit, and costs of collection as part of the judgment in such action or proceeding. 0) No Multi -year Fiscal Obligation on City This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor deemed to constitute, the creation of a debt or multi -year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, § 20 Colorado Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any other provision of this Agreement, with respect to any financial obligation of the City which may arise under this Agreement in any fiscal year after 2011, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation, such failure shall not constitute a default or breach of this Agreement, including any sub - agreement, attachment, schedule, or exhibit thereto, by the City (k) Certain Provisions Survive Expiration and Termination. The provisions of this Agreement pertaining to insurance, indemnification, payments to the City, and liability shall survive the expiration of the term of this Agreement and termination of this Agreement and continue in effect for a period of five years following the termination of this Agreement and for such further time as it may take to completely and finally negotiate, settle, or litigate any claim or suit concerning the same. (1) Governing Law and Venue This Agreement shall be governed by the laws of the State of Colorado Venue for any action arising under this Agreement or for the enforcement of this Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado (m) Assignment. This Agreement shall not be assigned by Sagona without the prior written consent of the City, which consent may be granted, denied, or conditioned in City's sole and absolute discretion. 3 DATED this day of , 2011 ATTEST City Ve rk ATTEST B R C APPROVED,AS TO City Assistant SAGONA ENTERPRISES, INC., D/B /A POPPY'S Signature 4