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Current Council Agenda and Past Meeting Information

CITY COUNCIL AGENDA ITEM NO. 25

Meeting Date: December 11, 2007

Subject/Title: Adopt a Resolution authorizing the City Manager or designee to enter into a Concession Agreement with Ribeye's Market for concession services at Sunset Park Athletic Complex.

Prepared by: Sue Barry, Recreation Supervisor

Submitted by: Craig D. Bronzan, Director of Parks and Recreation

RECOMMENDATION
Adopt a Resolution authorizing the City Manager or designee to enter into a Concession Agreement with Ribeye's Market for concession services at Sunset Park Athletic Complex.

PREVIOUS ACTION
On March 8, 2005 City Council approved a Professional Services Agreement with Bay Area Vending Company for concession services at Sunset Park Athletic Complex.

BACKGROUND
The service agreement with Bay Area Vending Company, Inc. was terminated on December 31, 2006 for breach of the terms of the contract. Parks and Recreation staff operated the concession services selling pre-packaged goods as an interim service to the community from January through December 2007.

In May 2007, staff prepared and mailed 23 requests for proposal and advertised in the local newspaper. No proposals were received for this request for proposal.

In September 2007, staff prepared and mailed 27 requests for proposals, and advertised in the local newspaper. During the proposal process, staff met with potential vendors and fielded questions regarding the electrical supply and flooring. A clarification letter was mailed to all 27 interested vendors and the deadline for proposals was extended for an additional two weeks.

Two proposals were received, scored and ranked in accordance with the selection criteria by a selection committee comprised of one member from each of the following City departments: Finance, Community Development, and Parks and Recreation. Ribeye’s Market was the top proposer based on the review.

FISCAL IMPACT
The only fiscal impact at this time is the cost of utilities in the operation of concession services which are included in the 2007-08 Operating Budget. The monthly commission collected from concession sales will be deposited in the Sunset Park Athletic Complex account to offset park operation expenses.

Attachments:
Resolution
Concession Agreement
RESOLUTION NO.


ADOPT A RESOLUTION AUTHORIZING THE CITY MANAGER OR DESIGNEE TO ENTER INTO A CONCESSION AGREEMENT WITH RIBEYE'S MARKET FOR CONCESSION SERVICES AT SUNSET PARK ATHLETIC COMPLEX.


WHEREAS, it is the desire of the City to provide concession services to the users of Sunset Park Athletic Complex; and

WHEREAS, on March 8, 2005 City Council approved a Professional Services Agreement with Bay Area Vending Company, Inc. for concession services at Sunset Park Athletic Complex; and

WHEREAS, on December 31, 2006, the service agreement with Bay Area Vending Company, Inc. was terminated for breach of the terms of the contract; and

WHEREAS, Parks and Recreation staff operated the concession services as an interim service to the community from January through December 2007; and

WHEREAS, In September 2007, the City sought a Request for Proposals for a Concessionaire to operate a Food and Beverage Service at Sunset Park Athletic Complex.

WHEREAS, Ribeye’s Market was the top proposer based on the review; and

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood approve a Concession Agreement with Ribeye’s Market for Concession Services and authorize the City Manager or designee to enter into an agreement for services for operation of concessions at Sunset Park Athletic Complex.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 11th day of December 2007 by the following vote:

















CONCESSION AGREEMENT

This Agreement (“Agreement”), entered into this __ day of __________, 2007, is between the City of Brentwood, a municipal corporation (“City”) and Ribeye’s Market, (“Concessionaire”)

RECITALS

A. Concessionaire represents that it is fully licensed and qualified with all professional skills necessary to perform the services described in this Agreement and has special expertise in the operation of food and beverage services for public agencies of similar scope and complexity as the an experienced concessionaire (the “Concession”) at the City’s Sunset Park Athletic Complex (the “Complex”); and
B. City owns and operates the Complex and is willing to grant Concessionaire the right to operate the Concession in strict accordance with the terms and conditions in this Agreement;

NOW, THEREFORE, IT IS AGREED by and between City and Concessionaire as follows:

AGREEMENT

1. INCORPORATION OF RECITALS. The recitals set forth above and in the introductory paragraph preceding the recitals are hereby incorporated into this Agreement as if set forth herein in full.

2. TERM OF AGREEMENT. The term of this Agreement shall continue for the contract period of the remainder of calendar 2007 and calendar year 2008 and starts when the agreement is executed by both the City and Concessionaire. The agreement is then subject to two, two-year renewals. The City reserves the right to issue an amendment at one of the two year renewal periods that will amend the contract to include concession services at the Brentwood Family Aquatic Complex.

3. CONCESSION GRANTED. Concessionaire agrees to operate the Concession in a professional and businesslike manner and in strict compliance with the terms and conditions set forth in this Agreement and all Applicable Laws (as defined below). Concessionaire shall provide all labor, materials, equipment and services necessary to operate the Concession.

4. CONCESSION EQUIPMENT/SUPPLIES
a.) Amenities. City will provide the following amenities in each concession building, which amenities will be approved by the Contra Costa County Health Services:

• Dedicated 60 AMP electrical supply.
• Single compartment stainless steel sink with integrally installed stainless steel drain board and floor sink.
• Flooring
• Lighting


In addition, City shall:

• Make concession area available for inspection use.
• Inspect all areas for cleanliness around the concession buildings at closing time.
• Pay all electrical and water utility expenses.

Concessionaire shall:

• Provide all additional equipment and supplies required at the Concessionaire’s expense (e.g. telephone line installation and related monthly charges, additional electric equipment).
• Not alter area nor place equipment in area until equipment is approved by the City.
• Store only items to be sold at the Complex in the concession building(s).
• Only use recyclable paper/plastic supplies.
• Not provide Styrofoam or glass containers on the premises.
• Not have vehicle parked adjacent to the concession building(s) when Complex is in operation.
• Not drop off supplies/materials while the Complex is open to the public.
• Be responsible for keeping areas around concession building(s) free from litter at all times.
• Be responsible for the janitorial and maintenance of the concession building(s).
• Utilize their mobile unit with prior approval, as an additional venue when the need arises. The mobile unit is subject to all requirements, rules, and regulations, as stated in the agreement.

b.) Permits. Concessionaire shall obtain a City of Brentwood business license and obtain a Contra Costa County Health Care Services permit before commencing operations under this Agreement and shall maintain and be in compliance at all times with the health care permit regulations and the license/permit in effect throughout the term of this Agreement, including any renewal term.

c.) Signage. All signage exhibited or used at Concession buildings by Concessionaire shall receive written approval from City prior to display.

d.) City Ownership. Any “movable” equipment installed in connection with the Concession will, upon termination of the Agreement, be removed from the Complex within 30 days after termination of the Agreement. After this date, the property will be considered abandoned property and will be removed from the site by the City

5. DAYS AND HOURS OF OPERATION. Concession service shall commence operations within 90 days of issuance of signed Concession Agreement. The Complex is open year-round, but times and days of Concessionaire’s operation may vary as weather permits, as will the schedule of activities from which the concession is to be open and operating. The times and days of operation may vary as will the need for both concessions to be open at the same time. City will supply Concessionaire with a monthly schedule of activities. In addition, the concession must be open for tournaments and rentals. The City reserves the right to hold up to six (6) fundraising opportunities per year.

6. UTILITIES. City shall pay all electrical and water utility expenses. Concessionaire shall pay for and provide any additional equipment and supplies required at their expense (e.g., telephone line installation and related monthly charges, additional electrical equipment).

7. PERMITTED MERCHANDISE. Concessionaire’s merchandise may consist of food and beverage related items. Concessionaire shall not sell or otherwise provide alcoholic beverages, peanuts (in shells), cigarettes/chewing or other tobacco products, sunflower seeds, chewing gums and non-food merchandise. If Concessionaire desires to sell non-food merchandise (e.g., sunscreen, hats, seat cushions), it will only be permitted with prior written approval of the Director of Parks and Recreation Department. The Concessionaire may additionally contract with independent tournament organizers for the sale of merchandise associated with the tournament. All items sold, including but not limited to, items provided by independent tournament organizers, shall be approved by the City’s Parks and Recreation Director whose approval shall not be unreasonably withheld.

8. MAINTENANCE. Concessionaire shall maintain and clean the Concession area. Concessionaire shall provide routine daily janitorial services. In maintaining the Concession area, Concessionaire shall use biodegradable materials and cleaning supplies that are suitable for disposal into a septic system. A copy of the Material Safety Data Sheet (MSDS) for all cleaning materials shall be submitted to City for approval prior to use. A copy of the MSDS for such cleaning materials must additionally be kept on the site of each Concession stand, and at the location where such cleaning materials are stored. The City shall be responsible for routine building maintenance. “Routine building maintenance” shall include, but not be limited to, structural repairs, plumbing and electrical repairs.

9. COMPENSATION TO CITY.
a.) In consideration of the Concession granted by this Agreement, Concessionaire hereby agrees to pay to City a monthly fee (the “Monthly Fee”). The Monthly Fee shall be 7 percent of all gross receipts. Should the concession buildings require additional upgrades to meet the health department requirements, Ribeye’s Market will pay the City 6 percent of all gross sales until the cost of the upgrades has been recouped. Ribeye’s will supply the City with all upgrade expense documentation. Once the improvements, if necessary, have been recouped, Ribeye’s Market will remit 7 percent for the remainder of calendar year 2008 and starts when the agreement is executed by both the City and the Concessionaire.

b.) This agreement is then subject to two, two-year renewals. The Monthly Fee shall be subject to review and re-negotiation coinciding with each two year renewal.

c.) Concessionaire shall pay the Monthly Fee to City’s Parks and Recreation Department by the 5th day of each month for each month that Concessionaire operates the Concession. Failure to pay the Monthly Fee by the 20th day of the month in which it is due shall be grounds for termination as a violation of this Agreement pursuant to Section 10.

d.) Concessionaire shall attach a monthly statement to the Monthly Fee payment for each month the concession operates. Statement shall include days and times service occurred, goods sold, and grand total of gross revenue for the month of operation.

10. TERMINATION. Both Parties shall have the right to terminate this Agreement for any reason whatsoever at any time by serving upon the other Party sixty (60) days advance written notice of termination. This notice of termination shall be deemed served and effective for all purposes on the date it is deposited in the U.S. mail, postage prepaid, addressed to the other Party at the address indicated in Section 21. However, if Concessionaire operates the Concession in violation of this Agreement or in a manner which creates a hazard or nuisance, as determined in the City’s sole discretion, City may immediately terminate this Agreement by personally serving written notice of termination upon Concessionaire at the address in Section 21.
11. COMPENSATION FOR LOSS OF PROFITS OR GOODWILL. The Parties expressly agree that Concessionaire shall be deemed not to have acquired any goodwill in the operation of the Concession granted by this Agreement. The Parties therefore expressly agree that Concessionaire shall not be entitled to recover for the loss of any goodwill or profits upon the termination of this Agreement for any reason at any time. In addition, the Parties expressly agree that goodwill shall not be considered a factor in any agreement between Concessionaire and any subsequent concessionaire of City regarding the transfer of equipment or fixtures either during or after the term of this Agreement.

12. CITY NOT LIABLE FOR LOSS OF BUSINESS. If for any reason it becomes necessary to close the Complex or to restrict access near or around Concession, City shall not incur any liability for damages due to Concessionaire’s loss of business or any other cause.

13. ASSIGNMENT PROHIBITED. Concessionaire shall not assign or otherwise transfer this Agreement, or any interest or portion of this Agreement, without the express prior written consent of City. Any such attempt at assignment or transfer shall be null and void.

14. INDEMNITY. The Concessionaire shall be solely responsible for, and shall indemnify, defend (by counsel reasonably acceptable to the City Attorney) and hold the City, its officers, directors, agents, employees, volunteers and any other person acting for or on behalf of the City (collectively, the “Indemnified Parties”) harmless from and against any and all costs, claims, losses damages, causes of action and liability which may arise by reason of any occurrence attributable to or arising out of the Concessionaire’s use of the Concession, including but not limited to failures to observe or perform any obligation of the Concessionaire under this Agreement or the Concessionaire’s, presence, activities, equipment, property or maintenance of the Concession, including without limitation, any claim or cause of action for injury to or death of any person or damage to any property arising out of any such occurrence occurring from and after the date hereof. Concessionaire’s obligations under this Section 14 shall extend to claims arising after the termination of this Agreement for any reason.

The City shall have no liability to the Concessionaire, and the Concessionaire waives all claims against the City, arising from, or in any way related to, occurrences within the scope of the indemnity set forth in this Section 14, except to the extent caused solely by the gross negligence or willful misconduct of an Indemnified Party.

CONCESSIONAIRE waives any right of recovery against the City, its officers, employees and agents for indemnification, contribution or declaratory relief arising from or in any way connected with the concession, even if the City, its officers, employees or agents seek recovery against Concessionaire.

15. INSURANCE. The Concessionaire shall, at its sole cost and expense, obtain and keep in force during the term hereof: commercial general liability insurance insuring the Concessionaire and naming the City, its officers, agents, employees, and volunteers as additional insured’s against claims for bodily injury, personal injury and property damage, providing coverage in an amount not less than One Million Dollars ($1,000,000) per occurrence, covering the operation and maintenance of the Concession, with the general aggregate coverage limit applying separately to the City for the duration of this Agreement. If the aggregate limit does not apply separately to the City for the duration of this Agreement, the minimum general aggregate limit shall be Two Million Dollars ($2,000,000). Such insurance shall be endorsed to name the City of Brentwood, its officers, directors, agents, employees, volunteers and any other person acting for or on behalf of the City as additional insured’s.

Upon execution of this Agreement, the Concessionaire shall deliver to the City current certificates evidencing the existence and amounts of this insurance, along with the required additional insured endorsement. Each policy shall contain an endorsement providing that it cannot be cancelled or subject to non-renewal or reduction in coverage except after thirty (30) days’ prior written notice from the insurance company to the City. Proof of liability insurance in compliance with the terms and conditions of this Section 15 shall be provided to the City by the Concessionaire annually, prior to expiration of the previous insurance certification, or by January 1, whichever occurs first. Concessionaire may not conduct any activities or operations under this agreement without the required insurance. Failure to provide the required insurance shall constitute a material breach of this Agreement, and City may suspend or terminate concession operations.

16. WORKERS’ COMPENSTATION.

(a) Covenant to Provide. Concessionaire warrants that it is aware of the provisions of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that code. Concessionaire further agrees that it will comply with such provisions.


(b) Waiver of Subrogation. Concessionaire and Concessionaire’s insurance company agree to waive all rights of subrogation against CITY, its elected or appointed officials, agents, and employees for losses paid under Concessionaire’s Workers’ Compensation insurance policy.

17. AMENDMENTS. Modifications or amendments to the terms of this Agreement shall be in writing and executed by both Parties. Any purported modification or alteration which is not in writing and executed by both Parties shall have no effect on this Agreement.

18. INDEPENDENT CONTRACTOR. In the operation of the concession granted by this Agreement, Concessionaire is an independent contractor and is not an agent or employee of City. Concessionaire, its officers, employees, agents, and subcontractors, if any, shall have no power to bind or commit City to any decision or course of action, and shall not represent to any person or business that they have such power. Concessionaire has and shall retain the right to exercise full control of the supervision of the services and over the employment, direction, compensation, and discharge of all persons assisting Concessionaire in the performance of the Concession. Concessionaire shall be solely responsible for all matters relating to the payment of its employees, including compliance with social security and income tax withholding, Workers’ Compensation insurance and all other regulations governing such matters.

19. NON-DISCRIMINATION. During the term of this Agreement, Concessionaire agrees as follows:

(a) Concessionaire shall not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, age, handicap, medical condition, sexual preference, marital status, ancestry or national origin. Concessionaire shall, in all solicitations or advertisements for employees placed by or on behalf of Concessionaire , state that all qualified applicants will receive consideration for employment without regard race, color, creed, religion, sex, age, handicap, medical condition, sexual preference, marital status, ancestry or national origin.

(b) There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, handicap, medical condition, sexual preference, marital status, ancestry or national origin in the use, occupancy, tenure or enjoyment of the Concession, or any part thereof.

20. HAZARDOUS SUBSTANCES. Concessionaire and those acting by, through or under Concessionaire, shall not improperly store, handle, treat, use release, dispose of, discharge or produce any hazardous substances or hazardous waste, or any pollutant, contaminant or toxic substance as those terms are defined in or as may be regulated or governed by any federal, state or local laws or ordinances intended to protect health, safety or the environment. Concessionaire shall be responsible to remediate and clean up any and all such hazardous substances, pollutants, contaminants or toxins. Concessionaire agrees to release, to defend with counsel acceptable to City, indemnify and to hold City harmless of, from and against any and all claims, expense, loss or liability suffered by City by reason of Concessionaire’s breach of any of the provisions of this Section 20 or any claims by Concessionaire’s employees, agents, contractors, visitors or assigns, if permitted under this Agreement, caused by, related, to, or arising from such breach. The indemnity contained in this Section 20 shall survive the expiration or earlier termination of this Agreement.

The parties recognize that no adequate remedy at law may exist for Concessionaire's breach of this Section 20. Accordingly, City may obtain specific performance of any provision of this Section 20.

21. NOTICE. Any notices or other communications to be given to either Party pursuant to this Agreement shall be in writing and delivered personally or by U.S. mail, postage prepaid, addressed to the Party at the address set forth below. Either Party may change its address for notices by complying with the notice procedures in this Section 21. Notice so mailed shall be deemed effective as of the date of mailing and deemed delivered three (3) business days after deposit in the U.S. mail. Nothing shall preclude the giving of notice by facsimile machine provided, however, that notice by facsimile machine shall be followed by notice deposited in the U.S. mail as discussed above.

CITY City of Brentwood Parks & Recreation Dept.
Attn: Sue Barry, Recreation Supervisor
150 City Park Way
Brentwood, CA 94513

CONCESSIONAIRE Matt Austin
Ribeye’s Market
380 W. Country Club Dr. Ste A
Brentwood, CA 94513


22. GOVERNING LAW AND CHOICE OF FORUM. This Agreement shall be administered and interpreted under California law as if written by both Parties. Any litigation arising from this Agreement shall be brought in the Superior Court of Contra Costa County.

23. COSTS AND ATTORNEYS' FEES. If either Party commences any legal action against the other Party arising out of this Agreement or the performance thereof, the prevailing party in such action may recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.

24. CAPTIONS. The captions of this Agreement are for convenience only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions of this Agreement.

25. CONCESSIONAIRE'S LIABILITY FOR PROPERTY TAX. The Parties expressly agree that they are creating a revocable license to use property and not a possessory interest in land. If, however, the County Assessor or other taxing entity finds that this Agreement creates a possessory interest subject to property taxation, CONCESSIONAIRE expressly agrees to pay any property tax levied on the premises as a result of such finding.

26. BINDING EFFECT. The provisions of this Agreement shall inure to the benefit of and be binding upon the CITY and the CONCESSIONAIRE and their respective successors.

27. WAIVER.

(a) Effect of Waiver. Waiver by either Party of any default, breach, or condition precedent shall not be construed as a waiver of any other default, breach, or condition precedent or any other right under this Agreement.

(b) No Implied Waivers. The failure of either Party at any time to require performance by the other Party of any provision hereof shall not affect in any way the right to require such performance at a later time.

28. FORCE MAJEURE. Except as otherwise provided in this Agreement, if the performance of any act required by the Agreement to be performed by either CITY or CONCESSIONAIRE is prevented or delayed by reason of any act of God, strike, act of terrorism, lockout, labor trouble, inability to secure materials, restrictive governmental laws or regulations or any other cause (except financial inability) not the fault of the Party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay and performance of the act during the period of delay will be excused.

29. SEVERABILITY. If any court of competent jurisdiction or subsequent preemptive legislation holds or renders any of the provisions of this Agreement unenforceable or invalid, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected.

30. INTEGRATION. This Agreement, including Exhibit A, represents the entire understanding of City and Concessionaire as to those matters contained herein and supersedes all prior negotiations, representations, or agreements, both written and oral. This Agreement may not be modified or altered except in accordance with Section 17.

Executed by CITY and CONCESSIONAIRE on the date shown next to their respective signatures. The effective date of this Agreement shall be the date of execution by CITY as shown below.


CONCESSIONAIRE:




By:
Printed Name:
Title:


CITY OF BRENTWOOD


By:
Donna Landeros, City Manager


ATTEST:


By:
Margaret Wimberly, City Clerk


APPROVED AS TO FORM:


By:
Damien B. Brower, City Attorney

 
City Administration
City of Brentwood City Council
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Brentwood, CA 94513
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E-mail allcouncil@brentwoodca.gov