CONCESSION OPERATIONS AGREEMENT (2)CONCESSION OPERATIONS AGREEMENT
THIS CONCESSION OPERATIONS AGREEMENT ( "Agreement ") entered into as of this
day of Qj,(A,c_ , 2014, between the City of Clearwater, a municipal corporation of
the State of Florid 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, the Owner desires for an Operator to provide concession services at the property;
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 July 1, 2014, and expiring on June 30. 2015 ( "Term "),
unless sooner terminated as herein provided. The Term may be extended as provided for in
paragraph 3 below. 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. Options to Renew: The Director of Parks and Recreation for the City of Clearwater, as designee
of the Owner, may, by written agreement between the Parties, extend this Agreement for up to
four (4) - one (1) year periods, on the same terms and conditions as are set forth herein without
obtaining additional approval by the Clearwater City Council. For purposes of this paragraph,
written agreement may include letter form or email notice.
4. 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 "), of Twenty -Six Thousand dollars and xx/100 ($26,000.00) per year, plus
applicable sales tax, for each year of the Term ("Operator Fee "), subject to, and pro- rated, in the
[GM14- 1801 - 103/148552/1] 1
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 or to
pay the Owner the total of Twenty Six Thousand dollars and xx /100 ($26,000.00), plus applicable
sales tax, by the end of each year of the Term 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 July 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 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.
$26,000.00
January
$2,000.00
February
$2,000.00
March
$2,500.00
April
$2,000.00
May
$2,500.00
June
$2,000.00
July
$2,000.00
August
$2,500.00
September
$2,000.00
October
$2,000.00 1
November
$2,500.00
December
$2,000.00
5. 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).
6. Independent Contractor. This License 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.
7. Operator Duties and Responsibilities:
[GM14- 1801 - 103/148552/1] 2
(a) Operator shall provide food concessions services in the concession stand at EC
Moore Softball Complex, 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.
(c) Operator shall provide the same food concession services in a portable fashion at
fields 5 -7 and 8 -9 at EC Moore Softball Complex 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
[G M 14- 1801 - 103/148552/1] 3
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
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. If for any reason, including denial of eligibility by the Florida
Department of Law Enforcement, Operator is unable to secure background checks in
accordance with the VECHS program, Operator shall secure the highest level of
background screening allowed by law.
(j) At the request of Owner, Operator will provide Owner with certified accountant
financial records reflecting its corporate activities.
8. 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.
[G M 14- 1801 - 103/148552/1] 4
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.
9. 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
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 grant of License. This provision shall survive termination
or expiration of this Agreement.
10. 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.
11. 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
[G M14-1801-103/148552/1] 5
As to Operator
Kinney's Kitchen
P.O. Box 4748
Clearwater, FL 33758 -4748
Robert. Carpenter(c�myclearwater.com
Brian.Craig(a myclearwater.com
Miscellaneous Provisions
c/o Edward Bates
1450 Carolyn Ln.
Clearwater, FL 33755
batesedward(a)hotmail.com
12. The provisions of this License 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.
13. This License 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 excepting provisions herein expressly intended to survive termination. 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.
14. 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.
15. 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.
16. 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.
17. All advertising or related communications pertaining to Owner must be pre- approved in writing by
the Owner.
18. Owner shall have the right to enter upon the Premises at all times. Owner shall not unduly
interfere with Operator's business.
19. 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.
20. 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.
[G M 14- 1801 - 103/148552/1] 6
21. Public records disclosure. In addition to all other Agreement requirements as provided by law,
the Operator 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 Owner in order to perform the service being provided by the Operator
hereunder.
(b) Provide the public with access to public records on the same terms and conditions
that the Owner 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
Owner all public records in possession of the Operator upon termination of the
Agreement 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 Owner in a format that is compatible with the
information technology systems of the Owner.
(e) The Operator hereby acknowledges and agrees that if the Operator does not comply
with a public records request, the Owner shall enforce the contract provisions in
accordance with the Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
OPERATOR:
Dated:
Si ed in the Presence of:
in the Presence of:
Countersigned:
RP' r\Cr CV 101
George N. Crete s
[GM14- 1B01- 103/148552�� Mayor y
dward Bate I idually
KINNEY'S KITCHEN
ward Bates
Owner
OWNER:
CITY OF CLEARWATER, FLORIDA
By L itNtA. - £. 'L ,�
William B. Horne II
City Manager
(Continuation of signature page of Concession Operations Agreement between the City of Clearwater
and Edward Bates, individually, d /b /a Kinney's Kitchen)
Approv -. as to form:
Laura Lipowski Mahony
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
Rosemarie Call
City Clerk
The forgoing instrument was acknowledged before me this i 1 day of
C\ 2- , 2014 by WILLIAM B. HORNE 1I, City Manager of the .City of Clearwater, who is
personally known to me.
Prinf/Type Name:
Notary Public
,.pRy SANDRA HARRIGER
iii • NOTARY PUBLIC
�' STATE OF FLORIDA
Commit EE142238
S4HCE 191° Expires 1/#ii; 01®
[GM14 -1801- 103/148552/1] 8
Exhibit "A"
Concession,
Restroom, Umpire
Buildinp
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 the Revocable License Agreement on behalf of Operator on City property have been
background screened in accordance with the background screening requirements set forth in
Revocable License Agreement and been deemed eligible by Operator to provide services as
described in Revocable License 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 7 (i) of the Concession Operations Agreement.
All individuals providing services under the Concession Operations 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
[GM14- 1801 - 103/142027/1] 9