HomeMy WebLinkAbout12609RESOLUTION NO. 12609
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, proposals to operate Parks and Recreation Department concession
areas have been received and examined; and
WHEREAS, the proposal of Donna’s All Seasons Catering, LLC of Pueblo,
Colorado was determined to be most responsive, NOW THEREFORE;
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
A Contract, a copy of which is attached hereto and made part hereof by
reference, after having been approved as to form by the City Attorney, by and between
the City of Pueblo, a Municipal Corporation, and Donna’s All Season’s Catering, LLC, to
operate Parks and Recreation concession areas is hereby approved.
SECTION 2.
The President of City Council is hereby authorized to execute said Contract on
behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the
seal of the City thereto and attest the same.
INTRODUCED: March 11, 2013
BY: Chris Nicoll
Background Paper for Proposed
RESOLUTION
DATE: March 11, 2013 AGENDA ITEM # M-5
DEPARTMENT: STEVEN MEIER, INTERIM DIRECTOR
PARKS AND RECREATION DEPARTMENT
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 approve a contract with Donna’s All Seasons Catering, LLC, for the
operation of the Parks and Recreation concession areas?
RECOMMENDATION:
Approval of the Resolution.
BACKGROUND:
On December 31, 2012, the park concession agreement between the City and Sagona
Enterprises, Inc., D/B/A Poppy’s expired. Per the agreement, the Concession areas include City
Park, Mineral Palace Park, Bessemer Park, and Mitchell Park Swimming pools, City Park
Playground area, all City ball fields, Stauter Fields, and other specified playing fields such as the
th
24 and High Street soccer fields.
The City issued a Request For Proposals (RFP) to accept proposals for a new contractor to
operate the park concessions in late January 2013. Two proposals were received. The
appointed selection committee has determined that the proposal received from Donna’s All
Seasons Catering, LLC, is in the best interests of the City.
FINANCIAL IMPACT:
The Contractor would be responsible for paying $500 per month ($6,000 per year) to the City to
help offset utility expenses at the various Parks and Recreation concession areas.
In accordance with the specifications as described in the RFP and the Contractor’s proposal,
the Contractor agrees to pay to the City 20% of gross commissions from the sales of food and
beverages at the various Parks and Recreation concession areas. Anticipated revenue from the
.
park concessions to the City would be approximately $15,000 to $20,000 per year
AMENDMENT TO
MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, AND DONNA'S ALL SEASONS CATERING, LLC, FOR
MANAGEMENT OF CONCESSIONS AT CERTAIN PUEBLO PARKS AND
RECREATION FACILITIES
THIS AMENDMENT is entered into on this 14 day of January, 2014 by and between
the City of Pueblo, a Municipal Corporation (the "City ") and Donna's All Season Catering, LLC
( "Donna' s ").
WHEREAS, City and Donna's entered into a Management Agreement Between the City
of Pueblo, a Municipal Corporation, and Donna's All Seasons Catering, LLC for Management of
Concessions at Certain Pueblo Parks and Recreation Facilities ( "Management Agreement ") on
March 11, 2013; and
WHEREAS, City and Donna's desire to amend the terms of the Management Agreement
as set forth herein; and
WHEREAS, this Amendment constitutes a "minor amendment" to an agreement within
the meaning of Section 1- 5- 2(2)(f) of the Pueblo Municipal Code, as amended, under which the
City Manager has authority to make minor amendments to contracts without obtaining the
approval of City Council.
NOW, THEREFORE, in consideration of the foregoing and the mutual terms and
conditions set forth herein, the parties agree as follows:
1. The City shall waive Donna's obligation to pay the Utilities Fee of five- hundred
dollars ($500.00) as set forth in Subparagraph (d) of Section 4 of the Management Agreement for
the months of October through December, 2013 and January through April, 2014. Donna's must
resume payment of the Utilities Fee of five- hundred dollars ($500.00) to the City on May 1,
2014.
2. Except as expressly modified by this Amendment, the Management Agreement
shall remain in full force and effect. Except as modified by this Amendment, the obligations of
either party to be performed under the Management Agreement are not waived nor excused in
any manner, but shall be performed in accordance with the terms and conditions of the
Management Agreement as it existed prior to this Amendment.
Page 1 of 2
IN WITNESS WHEREOF, City and Donna's have executed this Amendment to the
Management Agreement as of the date first written above.
ATTEST: CITY OF PUEBLO, a Municipal Corporation
By �~ J ' 1-�✓
Gina cher, City Clerk Sam Azad, City Manager
DONNA'S ALL SEASONS CATERING, LLC
BY OciiVj
Name: &u A� l y � C�S7S &J\'J
Title: 0 WNW
Page 2 of 2
A MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, AND DONNA'S ALL SEASONS CATERING, LLC, FOR MANAGEMENT OF
CONCESSIONS AT CERTAIN PUEBLO PARKS AND RECREATION FACILITIES
This Agreement ( "Agreement ") is made and entered into this 1 l th day of March, 2013, by and between
the City of Pueblo, a Municipal Corporation ( "City"), and Donna's All Seasons Catering, LLC ( "Concession
Manager ").
RECITALS
WHEREAS, City desires the services of a Concession Manager to manage, operate and maintain certain
concession areas within the City Parks; and
WHEREAS, Concession Manager has experience managing and operating concession areas; and
WHEREAS, City is willing to enter into this Agreement to permit Concession Manager to manage,
operate and maintain certain concession areas within the City Parks in accordance with and subject to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and the terms and conditions set forth
herein, the Parties hereby agree as follows:
TERMS AND CONDITIONS
SECTION 1. DEFINITIONS.
As used herein, the following words and phrases shall have the following meanings:
(a) "Facilities" means the areas as described in the Request For Proposal ( "RFP "), section 3,
subsections A through H, to wit: City Park Playground Area; Mineral Palace Park Pool; City Park Pool; Bessemer
Park Pool; Langoni Sports Complex; City Park Ball Field #1, #3, and #4; Stauter Field #1 and #2; and Joe Santos
Field at Bessemer Park, including the Concession Areas and all parking areas for the same.
(b) "Facility Manager" means the City employee having overall responsibility of the management of
the Facilities.
(c) "Concession Areas" means the established Concession Areas as described in the RFP, section 3,
subsections A through E.
SECTION 2. EXHIBITS TO AGREEMENT.
This Agreement consists of the following component parts and documents, all of which are fully a part of the
Agreement as if herein set out all verbatim, or if not attached, as if hereto attached:
Exhibit A: Request for Proposal
Exhibit B: Proposal for Operation of Parks & Recreation Concession Areas and Clarification to Price
Sheet
Exhibit C: Notice of Award
SECTION 3. GRANT OF RIGHT TO OPERATE; PARTIAL AND CONDITIONAL
EXCLUSIVITY; ADDITIONAL FACILITIES.
(a) City grants to Concession Manager the non - exclusive right to use, operate, and manage the
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Concession Areas.
(b) Concession Manager shall have the non - exclusive right to sell beverages, food and foodstuffs in
the Facilities, provided however, that if Concession Manager cannot provide a type of food or beverage that
Facility Manager requires, cannot provide a food or beverage in sufficient quantity or quality, cannot provide
service of the same in the manner that Facility Manager requires, cannot provide the same at a reasonable price,
cannot provide the same on the days and times Facility Manager requires, or cannot provide the same quickly
enough, all as determined by the Facility Manager in his sole and absolute discretion, then Facility Manager may
permit other persons to sell the same or different food and beverages at the Facilities and at the same time as
Concession Manager (but not utilizing the Concession Areas), and permitting other persons such right shall not
constitute a breach of this Agreement or excuse Concession Manager from its obligations under this Agreement.
(c) City reserves the right to enter the Concession Areas at any time for any reason without notice
and such entry shall not violate any grant or covenant under this Agreement.
(d) This Agreement may be extended to cover additional Concession Areas and Facilities upon the
mutual agreement of both parties in writing.
SECTION 4. CONCESSION FEE; UTILITY COSTS.
(a) Concession Manager shall pay to the City a Concession Fee in the amount of 20 percent (20 %) of
Concession Manager's monthly gross revenues from all sales at the Facilities.
(b) Concession Manager shall remit the Concession Fee along with Concession Manager's true and
accurate itemized Sales Records for the preceding month showing each item sold, the quantity of each item sold,
the day and time sold, the location of each sale, and the price of each item sold.
(c) Concession Manager shall remit the Concession Fee along with the Sales Records to City each
month by no later than the 10th day of the following month.
(d) Concession Manager shall pay to the City a Utilities Fee in the sum of five- hundred dollars
($500.00) per month. Each monthly Utilities Fee shall be remitted no later than the 10th day of the following
month.
(e) Failure to remit the Concession Fee along with the itemized Sales Records or the Utilities Fee
when due shall constitute a material breach of this Agreement.
SECTION 5. DEPOSIT.
Upon signing this Agreement, Concession Manager shall deposit with the City the sum of One Thousand Dollars
($1,000) to ensure performance of Concession Manager's obligations under this Agreement. In the event that
Concession Manager fails to pay any fee due under this Agreement or fails to perform any obligation at any time
under this Agreement, the City may draw from this deposit to remedy Concession Manager's default. In the event
that the City draws from this deposit to remedy Concession Manager's default, the City shall notify Concession
Manager in writing and require Concession Manager to replenish the deposit to the original level. Failure to
comply with this section shall constitute a material breach of this Agreement.
SECTION 6. CONCESSION MANAGER'S ADDITIONAL OBLIGATIONS.
Concession Manager shall perform and comply with the following obligations, restrictions, and limitations:
(a) Operate, staff, manage, clean, keep clean and sanitary, maintain, and promote the
Concession Areas and Facilities. Concession Manager shall perform these duties with reasonable care according
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to the highest standards in the industry.
(b) Hire, supervise, train and schedule all employees and subcontractors needed and required
for the efficient operation, maintenance, management and promotion of the Concession Areas and Facilities. It is
expressly understood and agreed that all employees hired by Concession Manager shall be the employees of
Concession Manager and no contractual obligations or relationship of employer - employee shall exist between the
City and such employees. Concession Manager shall provide all workers' compensation insurance for its
employees in accordance with the provisions of the laws of the State of Colorado and furnish Facility Manager
with satisfactory proof that such insurance is in effect.
(c) Maintain the security and inventory of, and maintain in good condition and repair, all
City equipment, fixtures and machinery used by Concession Manager or placed under Concession Manager's
custody and control by City.
(d) Keep and maintain separate, accurate and complete accounts and records of all activities
and transactions conducted by Concession Manager in each of the Concession Areas and Facilities in accordance
with generally accepted accounting principles, which accounts and records shall be available for inspection, copy
and audit by City during normal business hours. Concession Manager shall retain all such accounts and records
for a minimum period of three (3) years after termination of this Agreement.
(e) Comply strictly with all applicable federal, state and City laws, rules and regulations.
(f) Keep the Concession Areas open for business throughout all parts of the Facilities on
such days and at such times as the Facilities are open to the public and on such days and times as each Facility
Manager may require in his sole and absolute discretion, after reasonable consultation with Concession Manager.
(g) Furnish prompt, courteous and efficient food and beverage service at the Concession
Areas and catering of food and beverages throughout all parts of the Facilities at regular events and at special
events, according to a menu that the Facilities Manager shall approve, in his sole and absolute discretion, after
reasonable consultation with Concession Manager. All such products and services shall conform to the
requirements of federal, state, and city laws and regulations.
(h) Purchase, stock, carry, furnish, provide and replace as needed, at Concession Manager's
sole cost and risk, sufficient and adequate food, foodstuffs, beverages, equipment, furnishings and furniture in the
Concession Areas and Facilities, in a quality and quantity determined to be adequate by Facility
Manager /Coordinator /Supervisor in his sole and absolute discretion after reasonable consultation with Concession
Manager, including but not limited to foodstuffs and beverages for breakfast, lunch, snacks, glasses, dishes and
utensils for the Concession Areas and Facilities.
(i) Provide all food and beverage service in a polite and inoffensive manner, ensuring polite
conduct and demeanor on the part of Concession Manager's representatives, agents, employees, and
subcontractors.
(j) Meet with each Facility Manager in person at least quarterly to review the menu, prices
charged, days and times when food and beverage service must be provided at the Concession Areas, days and
times when catering must be provided throughout the Facilities, stocks of foodstuffs, beverages, equipment in the
Concession Areas and Facilities, upcoming special events, menus, brochures, and sales materials, quality of food
and beverages provided, and Sales Records.
(k) Pay at Concession Manager's sole cost, before same become delinquent, all sales, use and
property taxes on Concession Manager's property and business conducted on the Facilities. Concession Manager
shall collect and remit to City all sales taxes on the sale of food and beverages.
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(1) Operate and manage the Concession Areas and Facilities as public facilities for the use
and benefit of the public on a fair, equal and nondiscriminatory basis without preferential treatment to any
individual, group or entity. Concession Manager shall comply fully with state and federal anti - discrimination
laws, rules and regulations and specifically agrees that no person shall be denied or refused services or other full
or equal use of the Concession Areas or the Facilities, nor denied employment opportunities by Concession
Manager as a result of race, creed, color, sex, age, national origin, ancestry or disability unrelated to ability or job
performance.
(m) Obtain at Concession Manager's cost and expense all licenses required for the operation
of the Concession Areas and the activities conducted on the Facilities. All such licenses shall remain with the
Facilities and upon termination of this Agreement Concession Manager shall transfer or approve the transfer of
such licenses to City or its designee. For such purposes, Concession Manager hereby irrevocably appoints City its
agent and attorney in fact to execute all approvals and instruments required for such transfers.
(n) Comply with the rules and regulations adopted by each of the Facility Managers relating
to the use of the Concession Areas, Facilities and all roads, sidewalks and parking lots used in connection with the
Facilities.
(o) Meet and comply with the nondiscrimination and equal employment requirements of
section 1 -8 -4 of the Pueblo Municipal Code which are incorporated herein by reference.
(p) Concession Manager shall not use or allow the Concession Areas or Facilities to be used
for any improper, unlawful, immoral or objectionable purpose and shall not cause, maintain or permit any
disorderly conduct, nuisance or waste in, on or about the Concession Areas. Concession Manager shall not
conduct any activity or sell anything at or on the Concession Areas or Facilities except as specifically authorized
in this Agreement.
(q) Concession Manager shall not make any improvements of a permanent nature to the
Concession Areas of Facilities or install any fixture or sign in the Concession Areas or Facilities or make any
additions, changes, remodeling or alterations to the same without the prior written approval of each Facility
Manager and after obtaining all permits required therefore. All such approved improvements, fixtures, signs,
additions, changes, remodeling or alternations shall remain the property of the City.
(r) Surrender and deliver to the City at the expiration or termination of this Agreement the
Concession Areas and all City fixtures, machinery, supplies and equipment in good condition order and order,
reasonable wear and tear excepted.
SECTION 7. TERM AND TERMINATION.
(a) The initial term of this Agreement is three (3) years, commencing March 1, 2013 and ending
February 28, 2016, unless earlier terminated as herein provided. This Agreement may be extended for two (2)
additional terms of one (1) year each upon mutual agreement of both parties in writing.
(b) If either party is in default hereunder, the non - defaulting party may give written notice describing
the default to the defaulting party. If the defaulting party does not correct such default within twenty (20) days
after receipt of said notice, or if the default cannot be corrected within said 20 -day period and the defaulting party
fails to commence action to correct the default within said 20 -day period and thereafter diligently pursues
corrective action, the non - defaulting party may upon an additional five (5) days' notice given to the defaulting
party terminate this Agreement.
(c) Notwithstanding the foregoing, the City may terminate this Agreement without cause and for any
reason on ninety days written notice to Concession Manager.
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(d) Concession Manager may terminate this Agreement upon one (1) year prior written notice to the
City specifying the date of termination.
(e) This Agreement does not constitute a lease or create any tenancy or possessory interest in
Concession Manager. Concession Manager's rights hereunder may be terminated in the manner provided in this
Agreement without proceeding as required in the Forcible Entry and Detainer Act.
SECTION 8. INSURANCE, INDEMNITY, AND RELEASE.
(a) Concession Manager shall, within ten (10) days after this Agreement is executed by both parties,
provide to the City the following Certificates of Insurance showing that Concession Manager has obtained the
following insurance coverages. Concession Manager shall maintain all such insurance coverages at all times
during the term of this Agreement:
(1 Workers' Compensation Insurance complying with statutory requirements in Colorado
and in any other state or states where the work is performed. The Workers' Compensation Insurance
policy shall contain an endorsement waiving subrogation against the City.
(2) Commercial General Liability ( "CGL ") Insurance issued to and covering the liability of
Concession Manager, and naming the City of Pueblo and its officers and employees as additional insureds
with respect to all work performed by Concession Manager and its subcontractors under this Agreement,
to be written on a Commercial General Liability policy form CG 00 01, with coverage limits of not less
than Six Hundred Thousand and No /100 Dollars ($600,000.00) per person and occurrence for personal
injury, including but not limited to death and bodily injury, and Six Hundred Thousand and No /100
Dollars ($600,000.00) per occurrence for property damage. This CGL policy shall also provide coverage
for contractual liability assumed by Concession Manager under the provisions of this Agreement.
(3) Comprehensive Automobile Liability Insurance effective during the period of the Agreement,
covering the liability of Concession Manager, and naming the City of Pueblo and its officers and
employees as additional insureds with limits of liability for injury to one person in any single occurrence
of not less than $150,000 and for any injury to two or more persons in any single occurrence of not less
than $600,000. This insurance shall include uninsured /underinsured motorist coverage and shall protect the
Concession Manager from any and all claims arising from the use both on and off the Facilities site of
motor vehicles, including any automobiles, trucks, tractors, backhoes and similar equipment whether
owned, leased, hired or used by Concession Manager.
(4) The Concession Manager shall not commence work under this Agreement until obtaining,
at Concession Manager's own expense and without cost to the City, all insurance required under this
subsection (a) and such insurance has been approved by the City Attorney,
(b) Every insurance policy and certificate of insurance specified in subsection (a) of this Section shall
contain a provision requiring that Insuror shall notify the City in writing, in the manner provided in this
Agreement, in the event that any such policy or coverage is revoked, terminated, rescinded, or lapses.
(c) Concession Manager forever releases and waives any and all claims, known and unknown,
presently existing or arising in the future, and any suit or action in law or equity against City and its officers,
employees, agents and independent contractors ( "Released Parties ") in any court or tribunal, based on tort,
statute, violation of civil rights, or any other legal theory, for any physical injury, psychological injury, death, or
property damage or loss that Concession Manager may suffer, related to or caused by the Released Parties which
are in any way related to any of the activities under this Agreement, or any vehicle, object, thing, or activity in
any building or facility owned, leased, operated or controlled by the Released Parties.
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(d) Concession Manager shall indemnify, defend and hold harmless the Released Parties against any
liability for any damages, attorneys fees, and restitution that may be imposed by any court or tribunal in any suit,
action or proceeding in law or equity filed by any person or entity based on tort, statute, violation of civil rights,
or any other legal theory, for any physical injury, psychological injury, death, or property damage or loss that
Concession Manager, or his employees or subcontractors may suffer, related to or caused by the Released Parties
which are in any way related to any of the activities under this Agreement, or any vehicle, object, thing, or activity
in any building or facility owned, leased, operated or controlled by the Released Parties.
(e) Concession Manager shall be responsible for any and all damage or injury to persons or property,
public or private, that may be caused or result from Concession Manager's operations or in the performance of
this Agreement, and the Concession Manager shall defend any claim or suit that may be brought against
Concession Manager or the Released Parties on account of damage or injury resulting from Concession
Manager's operations, and shall pay any judgments awarded to cover such damage or injury. Concession
Manager shall indemnify, defend and hold harmless the Released Parties from any act of commission or omission
for which the Concession Manager is liable or which arises out of the Concession Manager's operations
hereunder, and will reimburse Released Parties for any claims, losses, damages, judgments, and expenses
(including attorney fees) which Released Parties may incur under such circumstances.
(f) The City maintains fire and extended coverage on the Concession Areas, but not on Concession
Manager's contents within the Concession Areas. At Concession Manager's own expense, Concession Manager
must purchase insurance of such amounts and types desired to protect Concession Manager's equipment and
inventory.
SECTION 9. SUBCONTRACTS.
(a) City acknowledges that Concession Manager is the prime contractor and the only party with
whom City has a contract under this Agreement. To the extent Concession Manager performs any services under
this Agreement through subcontractors, Concession Manager shall contractually bind each of its subcontractors
by subcontract to all of the terms of this Agreement which are for the benefit of City, and City shall be a third
party beneficiary of those subcontracts.
(b) Concession Manager shall indemnify and defend City from all claims and demands for payment
for services provided by subcontractors of Concession Manager.
(c) Concession Manager acknowledges that, due to the nature of the services to be provided under
this Agreement, the City has a substantial interest in the personnel and subcontractors to whom Concession
Manager assigns any responsibility for services performed under this Agreement. Consequently, Concession
Manager represents that in order to induce City to enter this Agreement, it has selected and intends to employ or
assign the key personnel and subcontractors identified in its proposal submitted to City prior to execution of this
Agreement. Concession Manager shall not change such subcontractors or key personnel unless and until it gives
notice of the proposed change to City and receives written consent thereto from the City. Concession Manager
shall not assign or reassign any work required under this Agreement to any person to whom City has reasonable
objection.
SECTION 10. STATE - IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS
FROM PERFORMING WORK
(a) At or prior to the time this Agreement is executed, Concession Manager shall submit to the
Purchasing Agent of City its certification that it does not knowingly employ or contract with an illegal alien who
will perform work under this Agreement and that the Concession Manager will participate in either the "E- Verify
Program" created in Public Law 208, 104` Congress, as amended and expanded in Public Law 156, 108'''
Congress, as amended, that is administered by the United States Department of Homeland Security or the
"Department Program" established pursuant to §8- 17.5- 102(5)(c) C.R.S. that is administered by the Colorado
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Department of Labor and Employment in order to confirm the employment eligibility of all employees who are
newly hired for employment to perform work under this Agreement.
(b) Concession Manager shall not:
(1) Knowingly employ or contract with an illegal alien to perform work under this
Agreement;
(2) Enter into an Agreement with a subcontractor that fails to certify to Concession Manager
that the subcontractor shall not knowingly employ or Agreement with an illegal alien to perform work
under this Agreement.
(c) The following state - imposed requirements apply to this Agreement:
(1) The Concession Manager shall confirm the employment eligibility of all employees who
are newly hired for employment to perform work under this Agreement through participation in either the
E- Verify Program or Department Program.
(2) The Concession Manager is prohibited from using either the E- Verify Program or
Department Program procedures to undertake pre - employment screening of job applicants while this
Agreement is being performed.
(3) If the Concession Manager obtains actual knowledge that a subcontractor performing
work under this Agreement knowingly employs or contracts with an illegal alien, the Concession
Manager shall:
A. Notify the subcontractor and the City's Purchasing Agent within three (3) days
that the Concession Manager has actual knowledge that the subcontractor is employing or
contracting with an illegal alien; and
B. Terminate the subcontract with the subcontractor if within three (3) days of
receiving the notice required pursuant to subparagraph (c)(III)A. above the subcontractor does not
stop employing or contracting with the illegal alien; except that the Concession Manager shall not
terminate the Agreement with the subcontractor if, during such three (3) days, the subcontractor
provides information to establish that the subcontractor has not knowingly employed or
contracted with an illegal alien.
(4) Concession Manager is required to comply with any reasonable request by the Colorado
Department of Labor and Employment (hereinafter referred to as "CDLE ") made in the course of an
investigation that CDLE is undertaking pursuant to its authority under §8- 17.5- 102(5), C.R.S.
(d) Violation of this Section by the Concession Manager shall constitute a breach of Agreement and
grounds for termination. In the event of such termination, the Concession Manager shall be liable
for City's actual and consequential damages.
(e) As used in this Section, the terms "subcontractor" and "subcontractor" shall mean any
subcontractor or subcontractor of Concession Manager rendering services within the scope of this Agreement.
SECTION 11. NOTICES.
(a) Any notice required or permitted by this Agreement shall be in writing and shall be deemed to
have been sufficiently given for all purposes if sent by certified mail or registered mail, postage and fees prepaid,
addressed to the party to whom such notice is to be given at the following address or at such other address as may
be subsequently furnished in writing to the other party:
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If to City:
City Manager
City of Pueblo
200 S. Main St.
Pueblo, CO 81003
With additional copies to:
City Attorney Director of Parks and Recreation
City of Pueblo City of Pueblo
503 N. Main St. Suite 203 800 Goodnight Ave.
Pueblo, CO 81003 Pueblo, CO 81005
If to Concession Manager:
Donna's All Seasons Catering, LLC
Donna Hart
2800 North Elizabeth
Pueblo, CO 81003
(b) Such notices shall be deemed to have been given when deposited in the regular United States
mail.
SECTION 12. PERA LIABILITY.
Concession Manager shall reimburse the City for the full amount of any employer contribution required to be paid
by the City of Pueblo to the Public Employees' Retirement Association ( "PERA ") for salary or other
compensation paid to a PERA retiree performing contracted services for the City under this Agreement. The
completed PERA form shall be attached as part of the signed Agreement pursuant to Section 23 of the Request for
Proposal.
SECTION 13. 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
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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., C.R.S.
(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 Club'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.
(j) Relationship. Nothing in this Agreement is intended to, or shall be deemed to constitute, a
partnership or joint venture between the Parties, or to create any agency or partner relationship between the
Parties. Neither Party shall hold itself out as a partner, joint venture, agent, or representative of the other under
this Agreement. This Agreement does not constitute a lease or create any tenancy or possessory interest in
Concession Manager. Concession Manager's rights hereunder may be terminated in the manner provided in this
Agreement without proceeding as required in the Forcible Entry and Detainer Act.
(k) Assignment. This Agreement shall not be assigned by Concession Manager without the prior
written consent of the City, which consent may be granted, denied, or conditioned in City's sole and absolute
discretion.
(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) Certain Provisions Survive Expiration of Term and Termination. The provisions of this
Agreement pertaining to indemnification, releases, covenants not to sue, providing draft and completed work
product to the City, and liability, shall survive both the expiration of the term of this Agreement and termination
of this Agreement, and such terms shall 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.
(n) No Multi - Fiscal Year 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 2013, 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
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failure shall not constitute a default or breach of this Agreement, including any sub - agreement, attachment,
schedule, or exhibit thereto, by the City.
DATED this 11th day of March, 2013.
CITY OF PUEBLO, CONCESSION MANAGER
A MUNICIPAL CORPO: • : . DONNA'S ALL SEASON CATERING, LLC
By e BY ,J
� 4' V '� V
President o ity Cou 'cil Ma ger /Managing ember
Attest:_ e.__ Attest:
City rk Secretary
Approved as to Form:
CiyA..t .� .��
City Attorney
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