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CONCESSION OPERATIONS AGREEMENTCONCESSION OPERATIONS AGREEMENT THIS CONCESSION OPERATIONS AGREEMENT ( "Agreement ") entered into as of this I C -34 day of O —rc.'-( , 2014, between the City of Clearwater, a municipal corporation of the State of Florida, whose mailing address is P.O. Box 4748, Clearwater, Florida 33758 -4748 ( "Owner ") and Edward Bates, individually, d /b /a Kinney's Kitchen, whose mailing address is 1450 Carolyn Lane, Clearwater Florida 33755 ( "Operator ") (individually referred to herein as "Party" or collectively as the "Parties "). WHEREAS, Owner is the owner of certain real property improved with various athletic facilities located in Pinellas County, Florida ( "Property "); and, WHEREAS, for the past several years, Operator has successfully exercised certain license rights and privileges within the concession facilities within the Property in the form of providing concession services; and WHEREAS, the Owner and Operator wish to formalize the terms of Operator's use, occupation and provision of concession services at Owner's Facilities ( "Concession Operations "): NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and other good and valuable consideration, the receipt of which are hereby acknowledged, the Parties agree as follows: 1. Facilities Premises and Term: Owner hereby grants to Operator the non - exclusive right to occupy and use Owner's property as more particularly described in Exhibit "A ", attached hereto and made a part hereof, (the "Premises" or "Facilities Premises "), subject to the terms and conditions herein set forth, commencing on March 1, 2014, and expiring on June 30, 2014 ( "Term "), unless sooner terminated as herein provided. The Facilities Premises shall be used for the sole purpose of providing food concession services for programs and activities held at the EC Moore Softball Complex, and additional areas at other athletic facilities, as may be added under this agreement by consent and approval of the Parks and Recreation Director, as designee of the City Council. 2. No Interest in Land: The rights granted to Operator under this Agreement are not coupled with an interest in land. It is expressly understood that this Agreement does not in any way whatsoever grant or convey any permanent easement, lease, fee or other real property interest in the Facility Premises to the Operator. The City specifically reserves the right to grant other rights of entry in regard to the Property as long as the same do not interfere with the rights granted to Operator herein. 3. Operator fee: That for and in consideration of the foregoing rights and privileges, Operator shall pay a flat fee to Owner, as provided for in the payment schedule below, during the Term ( "Operator Fee "), plus applicable sales tax, for each month of the Term ( "Operator Fee "), subject to, and pro- rated, in the event of operation interruption due to a Force Majeure. For these purposes, defined as any delays or failure to perform any obligation under this Agreement due to acts of God, strikes, or other disturbances, including, without limitation, terrorist acts, war, insurrection, embargoes, governmental restrictions, acts of governments or governmental authorities, and any other cause beyond the control of such party. Failure by the Operator to pay the monthly Operator Fee, plus applicable sales tax, by the beginning of each month of the Term [G M 14- 1801 - 103/144055/1] 1 shall be deemed a material default of this Agreement and the Owner may, at its discretion, terminate the Agreement immediately. The Operator Fee shall be paid on the 1st day of each month, first payment to be paid March 1, 2014. Subject to any applicable usury law, a late payment fee of five percent (5 %) will become due and payable if Operator fails to pay the monthly Operator's Fee within five (5) business days of the due date (due date inclusive). Upon termination by the Owner, Operator shall vacate the Premises immediately, but in no event later than 48 hours from receipt of notification of termination. Operator Fee March $2,500.00 April $2,000.00 May $2,500.00 June $2,000.00 4. Costs of Operations: Operator shall pay all costs of its operations, with the exception of water and electric costs, and any costs resulting from facility /amenity upgrades, which must be authorized by the Owner in writing (i.e. High Speed Internet Wi -Fi). 5. Independent Contractor. This Agreement does not create a partnership, joint venture, or any affiliation other than Owner and Operator. The Operator agrees that persons employed by Operator for purposes related to the installation, operation or other purposes under this Agreement are not employees of the Owner for any purpose whatsoever, including unemployment tax, social security contributions, income tax withholding or workers compensation, whether state or federal. Operator agrees to pay and be solely responsible for all applicable taxes, both state and federal, in connection with its operations and the Operator's Fee paid by Operator to Owner. 6. Operator Duties and Responsibilities: (a) Operator shall provide food concessions services in the concession stand at Eddie C. Moore Softball Facility, fields 1-4 for all city sponsored league games. a. Concession service may consist of, but is not necessarily limited to; soda, sports drinks, water, snacks, hotdogs and other sports related concession food items normally sold at sporting events. Operator must provide a menu and pricing structure to Owner prior to implementing said menu. b. Operator agrees to honor and comply with all requirements of third party City contracts referring to product choice and purchasing (at the inception of this Agreement the only such contract existing is with Coca -Cola Refreshments USA, Inc.). (b) The City is responsible for all capital maintenance items within the Facilities Premises. The Operator is responsible for the maintenance; repair and replacement of the concession equipment existing within the Premises at the inception of this Agreement as reflected in Exhibit "B" attached hereto and incorporated herein. [GM 14- 1801 - 103/144055/1] 2 (c) Operator shall provide the same food concession services in a portable fashion at fields 5 -7 and 8 -9 at Eddie C. Moore for special events and tournaments. (d) Operator shall also be available to provide portable concession services at other athletic sites and facilities throughout the city for major tournaments and events, as determined and noticed by the Parks and Recreation Director. (e) Where no separate concession stand is available, Operator shall setup the site in a manner to be safe and easily accessible to the public. (f) Operator shall operate in or on the Facilities Premises, as designated by Owner. Hours of operation shall be according to a schedule produced on a weekly basis by the Parks and Recreation Athletic Division and submitted to the Operator one week in advance in order to schedule staff and supplies. Operator must keep concessions open except during inclement weather as determined by an Owner - sponsored athletic field monitor. The City reserves the right to shut down the operation of the concessions if, in its sole discretion, it is in the best interest of the City, or to protect the safety and welfare of the public. (g) Operator will ensure that the portable concessions are a structure that can be broken down and removed within 24 hours if needed. (h) Operator shall maintain a valid certificate with the Health Department, as applicable and immediately correct any and all violations noticed by the Health Department. Operator will ensure that the concessions are run and operated by properly trained employees and that Operator has provided any necessary and appropriate technical, safety and operational training for its employees to carry out operations in a safe manner. It is additionally encouraged that employees obtain CPR & First Aid Certifications. By entering into this Agreement, Operator represents that each employee has specific food service, safety, and operational training. (i) Operator acknowledges that it, it's applicants for employment, employees, or volunteers, work or will work with children, the elderly, or the disabled. Therefore, if not otherwise required to conduct background checks by law, Operator voluntarily agrees to register with the Florida Department of Law Enforcement ( "FDLE ") to participate in the Volunteer & Employee Criminal History System ( "VECHS ") for background checks, as authorized by the National Child Protection Act ( "NCPA "), as amended, and Florida Statute 943.0542 (1999), as may be amended from time to time. Operator agrees to secure the highest level of background screening available under VECHS, and that this level of background screening is necessary to effectively screen out those not suitable for contact with children, the elderly or the disabled. Operator voluntarily agrees to require such screenings in accordance with the processes and procedures set forth by the FDLE and the FBI in order to secure criminal history information on its employees, volunteers and applicants. The Operator acknowledges that the VECHS program is not available to entities currently mandated to obtain background checks by statute or other law. Operator shall pay all costs associated with such background checks and will submit an Affidavit of Criminal Background Screening in substantially the form attached hereto, and incorporated herein, as "Exhibit C ". Operator shall secure releases from screened [G M 14- 1801 - 103/144055/1] 3 parties, use said criminal history information only as permitted by law, and shall unilaterally make the determination of a screened parties' fitness and suitability for working with children, the elderly or the disabled. Owner shall not be required to make such a determination under any circumstance. Operator shall submit the Affidavit of Criminal Background Screening to Owner prior to beginning its operations under this agreement. (j) At the request of Owner, Operator will provide Owner with certified accountant financial records reflecting its activities. 7. Insurance. Operator agrees to acquire and maintain at its own cost and expense the following types and minimums of insurance, with a carrier having an AM Best Rating of A -VII or better, on an occurrence basis, or in the case of coverage that cannot be obtained on an occurrence basis, then coverage on a claim -made basis with a minimum three (3) year tail following the termination or expiration of this Agreement: (a) Commercial General Liability coverage for the activities identified under this agreement in the amount of $1,000,000 per occurrence and $2,000,000 general aggregate; (b) Commercial Automobile Liability coverage for any owned, non - owned, hired or borrowed automobile in the minimum amount of $1,000,000 combined single limit; (c) Statutory Workers' Compensation and Employer's Liability coverage per the State of Florida. Coverage should include Voluntary Compensation and U.S. Longshoremen's and Harbor Worker's Act coverage where applicable. Coverage must be applicable to employees, contractors, and subcontractors, if any; and (d) Property Insurance coverage on Operator's own property in connection with their performance under this agreement. The City of Clearwater is to be specifically named as an "Additional Insured" on the Commercial General Liability and Commercial Automobile Liability policies and as a "Loss Payee" on the Property Insurance policy. Prior to the execution of the Agreement, and then annually upon the anniversary date of the insurance policy's renewal date, the Operator will furnish the City with a Certificate of Insurance evidencing the coverage's set forth above. Operator shall provide thirty (30) days written notice of any cancellation, non - renewal, termination, material change or reduction in coverage. Operator's insurance as outlined above shall be primary and non- contributory coverage for Operator's negligence. Operator understands that the City of Clearwater is not representing that the above types or amounts of insurance are sufficient or adequate to protect the Operator's interests or liabilities, but are merely minimums, and the City's failure to request evidence of this insurance shall not be construed as a waiver of Operator's obligation to provide the insurance coverage specified. 8. Liability /Indemnification. Owner will not accept and explicitly renounces any liability of any nature for use of the Property or Facilities Premises by the Operator, its employees, agents, contractors and invitees. Operator shall save and hold harmless the Owner, its successors and /or assigns, from any and all liability arising from injury to person or property during the term [GM 14- 1801 - 103/144055/1] 4 hereof. Nothing contained herein shall be construed to waive or modify the provisions of Florida Statute 768.28 or the doctrine of sovereign immunity. In addition, nothing contained herein shall be construed as creating third party beneficiaries or as consent by the Owner to be sued by third parties in any manner arising from this Agreement. This provision shall survive termination or expiration of this Agreement. 9. Maintenance and Operations. Operator shall at its sole cost and expense (a) Maintain the Premises in a safe, clean and proper manner; (b) Secure any and all licenses or permits required by any governmental agency or authority with respect to Operator's operation of the concessions, occupancy and use of the Premises, including any and all rights or licenses required under applicable copyright or trademark law; (c) Secure and be responsible for the security of the concessions at close of business each day and during hours of operation; (d) Not make or permit to be made any alterations, additions or improvements in the Premises without the prior written consent of Owner; (e) Not permit any mechanic's lien to be filed against the Premises by reason of any work, labor, service or materials performed at or furnished to the Premises; and (f) Abide by all rules and regulations established by Owner, from time to time, with respect to the use and occupancy of the Premises. All signs used at the Premises shall be subject to Owner's prior approval and applicable law. 10. All notices to either party must be sent by either U.S. Mail or e-mail to the addresses below: As Owner City of Clearwater P.O. Box 4748 Clearwater, FL 33758 -4748 Robert. Carpenter(a)myclearwater.com Brian. Craiogamyclearwater.com Miscellaneous Provisions As to Operator Kinney's Kitchen c/o Edward Bates 1450 Carolyn Ln. Clearwater, FL 33755 batesedwardr@hotmaii.com 11. The provisions of this Agreement shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and assigns of the parties, as permitted herein. Any provision hereof which imposes upon Owner or Operator, any obligations after termination or expiration of this Agreement, shall survive termination or expiration hereof and be binding upon Owner or Operator. 12. This Agreement is personal to Operator. It is not assignable, and any attempt to assign this Agreement or any rights and privileges hereof, shall immediately terminate such privileges and this Agreement in total. In addition, Operator shall not sell, mortgage, pledge or in any manner transfer this Agreement or any interest therein, not sublet all of any part of the Premises. Operator shall notify Owner of any name change made in accordance with applicable law. [GM14- 1801 - 103/144055/1] 5 13. Owner may terminate this Agreement immediately, at will, in Owner's sole discretion, with or without cause. This Agreement may also be terminated at any time upon the mutual written agreement of Owner and Operator. 14. Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto it being understood that nothing contained herein, or any acts of the parities hereto, shall be deemed to create any relationship between the parties hereto other than the relationship of Owner and Operator. 15. Operator agrees to comply with all local, state, and federal statutes and ordinances, and is responsible for obtaining all necessary state and local permits prior to setting up and operating the concessions. 16. All advertising or related communications pertaining to Owner must be pre- approved in writing by the Owner. 17. Owner shall have the right to enter upon the Premises at all times. Owner shall not unduly interfere with Operator's business. 18. If this Agreement, or its operation, shall create any ad valorem or other tax obligations, it shall be incumbent solely upon Operator to timely discharge same. 19. This Agreement contains all of the terms, conditions and covenants binding the parties hereto. There are no other terms, conditions, covenants or understandings, either written or oral, binding upon the parties unless expressed herein in writing or subsequently addended hereto by mutual agreement of the parties. 20. Public records disclosure. In addition to all other contract requirements as provided by law, the contractor executing this agreement agrees to comply with public records law specifically to: (a) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service being provided by the contractor hereunder. (b) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided for in Chapter 119, Florida Statutes, as may be amended from time to time, or as otherwise provided by law. (c) Ensure that the public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the public agency in a format that is compatible with the information technology systems of the public agency. [GM14- 1801 - 103/144055/1] 6 (e) The contractor hereby acknowledges and agrees that if the contractor does not comply with a public records request, the public agency shall enforce the contract provisions in accordance with the contract. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. OPERATOR: Dated: "`'Y '21 l Signed in the Presence of: Signed in the Presence of: Countersigned: CtesOrVACrAtICOJ George N. Cretekos Mayor Approved as to form: Laura Lipowski Mahony Assistant City Attorney STATE OF FLORIDA COUNTY OF PINELLAS and Bates, Individ KINNEY'S KI CH Dated: By: .._ -rir1i '� „_ E. a d Bates Owner OWNER: CITY OF CLEARWATER, FLORIDA By: t J�l.� ; , �"�,s'i,�n,'� -1-% William B. Horne II City Manager Attest: Rosemarie Call City Clerk The forgoing instrument was acknowledged before me this day of MG.Pjt,'` , 2014 by WILLIAM B. HORNE II, City Manager of the City of Clearwater, who is personally known to me. Print/Type Name: Scer��+ Notary Public [G M 14- 1801 - 103/144055/1] Y� SANDRA HARRIGER NOTARY PUBLIC STATE OF FLORIDA Comm# EE142238 Expires 1/4/2016 7 Exhibit "A" Concession, Restroom, Umpire Building EC Moore Softball Complex 3050 Drew Street, Clearwater, FL 33759 Exhibit B Equipment List for the Eddie C. Moore Complex (1) Ice -O -Matic ice machining machine, ECJ series 600Ibs (1) Stainless Steel Grill, Star Brand, 1.5' x 2.5' (1) GE single door stand up freezer (1) 2 x3 reach in freezer (1) Pretzel warmer small (1) Nacho cheese warmer (1) Westbend coffee urn (1) Kemore microwave (1) Fedders wall unit air conditioner (1) 2 door reach in Coke cooler (supplied and maintained by Coke) EXHIBIT "C" AFFIDAVIT OF CRIMINAL BACKGROUND SCREENING OPERATOR NAME: DATE: By signing this form, I am swearing or affirming that all individuals employed by (Operator) or providing services to City under thisAgreement on behalf of Operator on City property have been background screened in accordance with the background screening requirements set forth in the Agreement and been deemed eligible by Operator to provide services as described in the Agreement. The information contained in this Affidavit is up to date as of the date this Affidavit is furnished to City Parks and Recreation Department per the requirements of Section 6 (i) of the Agreement. All individuals providing services under the Agreement on City property are listed below. Each individual shall be identified by name, birth date and date deemed eligible. (List of Individuals) Signature of Affiant Sworn to and subscribed before me this day of , 20 Notary Public My Commission Expires: My signature, as Notary Public, verifies the Affiant's identification has been validated by [G M14-1801-103/144055/1] 8