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HomeMy WebLinkAboutCONCESSION AGREEMENT CONCESSION AGREEMENT This Concession Agreement is made on the a a day of Nlot.r C&_ , 2018, between the City of Jeffersonville, by and through the Jeffersonville Parks Authority("JPA") and Paul Byrnes and Bud Seiden Faden, d/b/a In/Ken Concessions("Concessionaire"). WHEREAS, A. JPA, is an Indiana municipal entity, which owns and operates parks property located within the City of Jeffersonville. B. JPA seeks the temporary professional services of a skilled independent contractor capable of working without direct supervision to provide concession services to the general public at the following park properties: Vissing Park and Aquatic Center; and C. The Concessionaire has the requisite skill and experience necessary to provide such services. NOW,THEREFORE,the parties agree as follows: That JPA gives and grants to the Concessionaire the license and privilege to operate the concession stands at the above mentioned facilities on the following terms and conditions: 1. Services. Concessionaire shall provide services as set forth in Exhibit "A" attached hereto and incorporated by this reference, at concession stand located at Vissing Park(2728 Vissing Park Road,Jeffersonville, Indiana) and the Aquatic Center(2107 Middle Rd.,Jeffersonville, Indiana), in a manner consistent with the accepted practices for other similar services performed to the JPA's satisfaction,within the time period prescribed by the JPA and pursuant to the direction of the responsible officer of the JPA or his or her designee. 1.1 Customer Service.Concessionaire and all of its employees, agents, or representatives shall provide the highest quality of customer service and shall treat all customers with courtesy and respect. Concessionaire shall honor all reasonable requests for refunds including requests from customers that are dissatisfied with the services or the product sold by Concessionaire or from customers who have lost money in any vending machine owned by Concessionaire. 1.2 Employee Appearance. All of Concessionaire's employees, agents, representatives or licensees shall have neat, clean and sanitary appearance and those who come in direct contact with the public shall wear clothing or identification,which distinguishes them as employees of Concessionaire. 1.3 Employee Training. Concessionaire shall provide a training program for its employees, agents or representatives for the development of the skills and techniques necessary to perform its obligations under this Agreement including but not limited to promoting customer service, produce and service presentation, cleanliness, positive attitude and promoting JPA's philosophy and policy. 1.4 Staffing.The Concession Stands shall be property and adequately staffed in order to prevent undue delay to the public. Concessionaire shall plan its staffing in advance and anticipate to the best of its ability any events, such as holidays or special events, which may require additional staffing. In the event JPA determines in its sole discretion that Concessionaire is not adequately staffing the Concession Stands, it may notify the Concessionaire of that fact and the Page 1 of 10 Concessionaire shall endeavor to immediately increase its staffing to meet JPA's recommendation. 1.5 Hours of Operation. The Concession Stands shall remain open as set forth in Exhibit "B" attached hereto and incorporated by this reference unless JPA notifies the Concessionaire of other hours of operation. 1.6 Pricing. All pricing of any services or goods as set forth in Exhibit "C" attached hereto and incorporated by this reference, must be competitive and must be approved in writing by the JPA. Concessionaire may not change any pricing without the JPA's written consent, which consent may not be unreasonably withheld. 1.7 Products. All services or products offered for sale by the Concessionaire to the public shall be approved in writing by the JPA prior to distribution or sale of any such products. Concessionaire shall comply with any reasonable requests made by JPA to either add or eliminate certain types of food, beverage or other products. 2. Concession Equipment. 2.1 Delivery. Concessionaire agrees to deliver and/or install prior to the opening day of the pool at the Aquatic Center at its sole costs and expense, the concession facilities machines and equipment referred to as "Concession Equipment" that is over and above the equipment that is provided by the JPA. 2.2 Alterations. Concessionaire shall not make any alteration, additions or improvements to the Concession Stands or to the Concession Equipment without JPA's prior written consent, which consent may not be unreasonably withheld. In the event JPA consents to the making of any alterations, additions or improvements to the Concession Stands and/or Concession Equipment, the same shall be made in coordination with the JPA maintenance personnel and in the event of such alterations, additions or improvements are made to a structure, building or other improvement attached to the real property,the same will become part of the real property and be surrendered to JPA upon the termination of this Agreement. JPA has no obligation to alter, remodel, improve, repair, decorate or paint the Concession Stands. 2.3 Temporary Removal of Equipment. In the event JPA notifies Concessionaire that it desires the removal of the Concession Equipment at any time, Concessionaire will work with JPA to remove the Concession Equipment and repair any damage to the real property cause by such removal prior to opening day. 2.4 Maintenance. JPA shall, at its sole cost and expense, maintain the Concession Stands and Concession Equipment(owned by JPA) and the surrounding real property in good condition and repair. Concessionaire shall be responsible for maintain the Concession Stands in a neat, clean and sanitary condition and removing all garbage, trash or other debris on a regular basis pursuant to JPA's instructions and standards. 2.5 Damage to Concession Stands. If the Concession Stands or any part thereof are damaged by any cause other than the sole negligence of JPA, its employees or agents, Concessionaire shall, Page 2 of 10 at its sole cost and expense, restore the Concession Stands to a condition equivalent to or better that their condition immediately prior to such damage. 2.6 JPA's Reimbursement. In the event Concessionaire fails to remove the Concession Equipment pursuant to paragraph 2.3, maintain the Concession Stands or Equipment pursuant to paragraph 2.4 or repair the Concession Stands pursuant to paragraph 2.5,JPA may remove the Concession Equipment or perform maintenance or repair and the Concessionaire shall, upon demand, immediately pay JPA for the costs and expenses of such removal, maintenance or repair. In the event Concessionaire fails to comply with the terms of this paragraph,JPA may confiscate the Concession Equipment or any part thereof and sell the same, proceeds of which sale may be credited against any costs or expenses incurred by JPA. The sale of the Concession Equipment shall not constitute an election of remedies by JPA but will be in addition to any remedies available to JPA at law, in equity, by statute or under this Agreement. 2.7 Utilities,Taxes and Expenses. Concessionaire shall pay all costs and expenses associated with the operation of the Concession Stand other than utility expenses for water,sewer and power, which will be paid by JPA. 3. Term. The term of this Agreement shall commence upon the effective date of this Agreement and shall continue for a period of One (1)year and any extension of the period will be at JPA's sole discretion ("Term"). This Agreement may be extended for additional periods of time upon the mutual written agreement of both parties. 4. Termination. Prior to the expiration of the Term, either party may terminate this Agreement immediately, with or without cause and with a thirty(30) days notice. 5. Compensation. 5.1 Total Compensation. The Concessionaire agrees to pay an amount equal to 15%of the Concessionaire's gross monthly revenue plus the applicable taxes referenced in section 5.6 ("Percentage Payment"). The term "Gross Monthly Revenue" shall mean the total amount charged by the Concessionaire, its employees, agents or licensees,for all goods and merchandise sold or services performed,whether for cash or for consideration or on credit,and regardless of collections, including but not limited to orders taken at the Concession Stand but filled elsewhere and orders taken elsewhere but filled at the Concession Stands. 5.2 Payment Due. Concessionaire shall deliver the Percentage Payment to the JPA on or before the first day of each month for Gross Monthly Revenue received during the preceding month ("Due Date"). 5.3 Access to Records. Concessionaire shall provide a written statement to JPA on the Due Date showing the total Gross Monthly Revenue for the preceding month ("Statement"). Concessionaire will provide JPA or its agents or representatives reasonable access to the books and records of the Concessionaire for the purposes of auditing and inspecting the same to verify Page 3 of 10 the Statement. The records shall include documents from which the original transaction entry was made, including sales slips, cash register tapes, and/or purchase invoices. 5.4 Cash Registers. All sales, other than sales from vending machines, shall be recorded by cash registers,which display to the customer the amount of the sale and automatically issue receipts certifying the transaction amount. The cash registers shall be equipped with devices which lock in sales totals,transaction records, produce duplicate audit tape,contain counters which cannot be reset and which record the transaction numbers and sale details on such tape. Any errors shall be noted by the Concessionaire on the audit tape with an explanation. Cash register readings shall be recorded by Concessionaire beginning and the end of each business day. 5.5 Late Fee. Concessionaire acknowledges that late payment to JPA of the Percentage Payment will cause JPA to incur costs not contemplated by this Agreement,the exact amount of which will be difficult to ascertain. Accordingly, if the Percentage Payment is not received by JPA on the Due Date, Concessionaire agrees to pay a late fee of$100 per day. 5.6 Concessionaire Responsible for Taxes. The Concessionaire shall be solely responsible for the payment of any taxes imposed by any lawful jurisdiction as a result of the performance and payment of this Agreement. 6. Compliance with Laws. Concessionaire shall comply with and perform services in accordance with all applicable federal, state, and City laws including,without limitation, all City codes, ordinances, resolutions, standards and policies, as now existing or hereafter adopted or amended, including but not limited to the following: (i) Federal, state and local health, safety and licensing laws relating to the sale of concession goods; and (ii) City code provisions, if applicable, requiring any person or entity doing business in the City to obtain a business registration. 7. Warranty. The Concessionaire warrants that it has the requisite training, skill and experience necessary to provide the Services and is appropriately accredited and licensed by all applicable agencies and governmental entities, including but not limited to being registered to do business. 8. Independent Contract/Conflict of Interest. It is the intention and understanding of the Parties that the Concessionaire shall be an independent contractor and that JPA shall not be liable or obligated to pay Concessionaire sick leave,vacation pay or any other benefits of employment, nor to pay any social security or other tax which may arise as an incident of employment. The Concessionaire shall pay all income and other taxes as due. Page 4 of 10 9. Indemnification. 9.1 Concessionaire Indemnification. The Concessionaire agrees to indemnify, defend, and hold JPA, its elected officials„ officers,employees,agents and volunteers harmless from and all claims, demands, losses,actions or liabilities(including costs and all attorney fees)to or by any and all persons or entities, including without limitation,their respective agents, licensees,or representatives, arising from,or connected with this Agreement to the extent caused by the negligence, errors or omissions of the Concessionaire, its partners, shareholders,agents, employees or by the Concessionaire's breach of this Agreement. Concessionaire's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under worker's compensation acts, disability benefit acts or any other benefits acts or programs. 9.2 JPA's Indemnification. JPA agrees to indemnify,defend, and hold JPA, its elected officials„ officers, employees, agents and volunteers harmless from and all claims,demands, losses, actions or liabilities (including costs and all attorney fees)to or by any and all persons or entities, including without limitation,their respective agents, licensees,or representatives, arising from, or connected with this Agreement to the extent caused by the negligence, errors or omissions of the JPA, its partners, shareholders, agents, employees or by the JPA's breach of this Agreement. 9.3 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 10. Confidentiality. All information regarding JPA obtained by Concessionaire in performance of this Agreement shall be considered confidential. Breach of confidentiality by Concessionaire will be grounds for immediate termination. 11. Insurance. The Concessionaire agrees to carry as a minimum,Workers' Compensation and employee's liability insurance in amounts sufficient pursuant to the laws of the State,Automobile liability insurance and Workers' Compensation and employer's liability insurance in such forms and with such carriers who have a rating, which is satisfactory to JPA. JPA shall be named as additional insured on all such insurance policies,with the exception of worker's compensation coverage. Concessionaire shall provide certificates of insurance concurrent with the execution of this Agreement,evidencing such coverage and at JPA's request,furnish JPA with copies of all insurance policies and with evidence of payment of premiums or fees of such policies. All insurance policies shall contain a clause of endorsement providing that they may not be terminated or materially amended during the Term of this Agreement, except after prior written notice to the JPA. Concessionaire's failure to maintain such insurance policies shall be grounds for immediate termination of this Agreement. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. Page 5 of 10 12. Non-Exclusive Right. This Agreement does not grant Concessionaire an exclusive right to distribute its products. JPA reserves the right to grant to other persons or entities any of the rights contained herein or otherwise. 13. Signs. Concessionaire shall be limited to placing a sign on the concession stand only. Concessionaire shall not place any sign, notice or advertising matter in or about JPA's property, without its prior written consent, which consent may be withheld for any reason. If required by City code, Concessionaire shall obtain all necessary permits in connections with such signs. 14. Exclusive Third-Party Vendor Rights. Concessionaire acknowledges that JPA has separate written agreements with certain third-party vendors whereby JPA is legally obligated to offer only those vendors' products at JPA properties. This Agreement is subject to those written agreement and Concessionaire agrees to honor those written agreements including but not limited to Coca-Cola beverage and Papa Johns Pizza. 15. General Provisions. 15.1 Entire Agreement. This Agreement contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior agreements shall be effective for any purpose. 15.2 Modification. No provision of this Agreement, including this provision, may be amended or modified except by written agreement signed by the Parties. 15.3 Full Force and Effect. Any provision of this Agreement,which is declared invalid or illegal shall in no way, affect or invalidate any other provision hereof and such other provisions shall remain in full force and effect. 15.4 Assignment. Neither Party shall have the right to transfer or assign, in whole or in part, any or all of its obligation and rights hereunder without the prior written consent of the other Party. 15.5 Successors in Interest. Subject to the foregoing Subsection,the rights and obligations of the Parties shall insure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. 15.6 Attorney Fees. In the event either of the Parties defaults on the performance of any terms of this Agreement or either party place the enforcement of this Agreement in the hands of an attorney or files a lawsuit, each Party shall pay all its own attorney fees, costs and expenses. 15.7 Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Indiana. 15.8 Authority. Each individual executing this Agreement on behalf of the Parties, represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the respective Party. Page 6 of 10 15.9 Notices. Any notices required to be given by the Parties shall be delivered at the addresses set forth below. Any notices may be delivered personally to the addressee of the notice or may be deposited in the U.S. mail, postage prepaid, to the address of the parties. Any notice so posted in the U.S. mail shall be deemed received three (3) days after the mailing date. JPA: CONCESSIONAIRE: Parks Director Jeffersonville Parks Department 500 Quartermaster Ct. Jeffersonville, IN 47130 15.10 Captions. The respective captions of the Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect any of the provisions of this Agreement. 15.11 Performance. Time is of the essence of this Agreement and each and all of its provisions in which performance is factor. Adherence to completion dates set forth in the description of the Services is essential to the Concessionaire's performance of this Agreement. 15.12 Remedies Cumulative. Any remedies provided for under this Agreement are not intended to be exclusive, but shall be cumulative with all other remedies available to the JPA at law, in equity or by statute. 15.13 Equal Opportunity to Draft. The Parties have participated and had an equal opportunity to participate in the drafting of this Agreement and the Exhibits, if any, attached. No ambiguity shall be construed against any party upon a claim that that party drafted the ambiguous language. 15.14 Signatures. .7ei ienTo ' au* d CONCESSIONAIRE: i3yne 5 / 41. By: c //tom By: )) Title: (FvE-„ Title: U QviN/` Date: 3 `7 -( V Date: 31221 t Y f -� 1x)-� f Page 7 of 10 EXHIBIT"A" SERVICES PROVIDED Page 8 of 10 EXHIBIT"B" HOURS OF OPERATION Page 9 of 10 EXHIBIT"C" PRICING Page 10 of 10