HomeMy WebLinkAbout2008-017 Lake Pavilion Catering Agreement - Pacific Harvest 7CO�W. RACT#0' ATASCAD�SC
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City of Atascadero
1970 Department of Community Services
AGREEMENT FOR SERVICES BY CONTRACTOR
PAVILION ON THE LAKE CATERING OPERATION
This agreement is made upon the date of execution, as set forth below, by and between Pacific
Harvest Catering, a sole proprietorship, hereinafter referred to a "Contractor", and the City of
Atascadero, California, a Municipal Corporation, hereinafter referred to as "City". The parties
hereto, in consideration of the mutual covenants contained herein,hereby agree to the following
terns and conditions:
1.0 GENERAL PROVISIONS
1.01 TERM: This agreement will become effective on the date of execution set forth
below,and will continue in effect until terminated as provided herein.
1.02 SERVICES TO BE PERFORMED BY CONTRACTOR: Contractor agrees
to perform or provide services specified in "Description of Services" attached
hereto as"Exhibit A"hereby incorporated herein.
Contractor shall determine the method, details and means of performing the
above-referenced services.
Contractor may, at Contractor's own expense, employ such assistants as
Contractor deems necessary to perform the services required of Contractor by this
agreement. City may not control, direct or supervise Contractor's assistants or
employees in the performance of those services.
1.03 RENT AND GROSS SALES RECEIPTS: In consideration for the terms of this
agreement, the Contractor will pay the total gross earnings monthly of all monies
from sales received by the Contractor from any use of the premises described in
Schedule B of this contract, except from the sale of beer and wine. Monies
received by the contractor from food and beverage sales and catering opportunities
on City premises are also subject to the 16% (sixteen percent) of total gross
earnings. Monies received by the Contractor from catering opportunities not
located on City premises will be subject to 10% (ten percent) of total gross
earnings. Gross earning shall not include any sales or excise taxes imposed by any
governmental entity.
Payment to the City of Atascadero of the monthly rent and the percentage of gross
earnings received shall be the tenth (W) day of each month. Payments are
required to be submitted to the City of Atascadero, ATTN: Pavilion, 6907 El
Camino Real,Atascadero California.
City of Atascadero
Payments received from the tenth (10") of each month to the twenty-fifth (25th)
of each month shall be considered delinquent and assessed a ten percent (10%)
penalty. Payments received after the twenty-fifth (25�) of each month shall be
assessed an additional ten percent(10%)penalty.
Failure by the Contractor to tender payment to the City within thirty(30) days of
any payment so due, shall be sufficient cause for the City to terminate this
agreement.
1.04 LOCATION: Premises of operation is the Pavilion on the Lake cafe facility
located at Atascadero's Pavilion on the Lake, 9315 Pismo Avenue, Atascadero,
California.
1.05 SUBLEASE: Contractor shall not sublease or otherwise convey any interest of
any sort granted by this agreement to any person or persons whatsoever without
prior written consent and approval by the City.
1.06 RECORDS AND ACCOUNTS: Contractor shall keep true and accurate books
and records showing all of its business transactions in separate records of account
for the catering operation, in a manner acceptable to the City. The City shall have
the right, through its representatives, and at all reasonable times, to inspect such
books and records,including State of California sales tax records.
The City may require Contractor, at his expense,to have his records and accounts
audited by an auditor acceptable to the City and shall present said audit to the
Director of Community Services within thirty (30) days after the completion of
the audit. If Contractor fails to provide the required audit,the City shall contract to
have an audit performed at the Contractor's expense.
1.07 CONDITIONS OF PREMISES: The taking of possession of the subject
premises by Contractor shall, in itself, constitute acknowledgment that the
premises are in good and tenable condition. Contractor agrees to accept said
premises in the present existing condition,"as is"and the additions,or betterments
thereto.
Contractor may construct or modify the said premises with prior written approval
by the Director of Community Services (or designee). Any plans for such
construction, if applicable, shall be submitted to the City for approval. Such
construction or modification shall be without cost to the City.
1.08 SIGNS: All signs, names or placards shall be approved by the Director of
Community Services (or designee) prior to installation. All signs must meet all
requirements and specifications as set forth by the City.
a. An 8' x 3' banner may be placed on the City's Highway 41 banner holder. City
sponsored events and events with prior City approval take precedence to
catering business banners. The Pavilion staff will hang and remove banners as
necessary.
PAVILION ON THE LAKE 2
PACIFIC HARVEST CATERING AGREEMENT
City of Atascadero
b. The City has two(2)pre-approved signage locations on the Pavilion. Any other
locations must have prior written approval from the Director of Community
Services(or designee).
1) The northeast corner wall of the building near the kitchen and barbecue.
2) The southeast corner wall of the building near the cafe window and the
patio.
1.09 DAMAGE TO/DESTRUCTION OF PREMISES: Should the subject premises
or the building and other improvements in which the subject premises are situated
be totally or partially damaged or destroyed, the City shall promptly repair the
same, except that the City shall have the option to terminate this Agreement if(a)
the subject premises or the building improvements in which the premises are
situated cannot reasonably be expected to be restored under existing law to
substantially the same condition as existed prior to such damage or destruction
with ninety (90) days from the date that the insurance proceeds become available
to the City; or (b) if the costs of such restoration would exceed one-half(1/2) of
the full insured value of the building and other improvements in which the subject
premises are situated; or (c) if the damage or destruction results from a casualty
not customarily insured against by a policy of standard fire and extended coverage
insurance having vandalism and malicious mischief endorsements. Any notice of
termination given here shall be given to Contractor within fifteen (15) days after
City determines the period of time required for and the estimated cost of such
repair or restoration.
2.0 OBLIGATIONS OF CONTRACTOR
2.01 MINIMUM AMOUNT OF SERVICE BY CONTRACTOR: Contractor
agrees to devote the hours necessary to perform the services set forth in this
agreement in an efficient and effective manner. Contractor may represent,
perform services for and be employed by additional individuals or entities, at
Contractor's sole discretion, as long as the performance of these extra-contractual
services does not interfere with or presents a conflict with City's business.
2.02 HOURS OF OPERATION: Hours of operation to be established by Contractor
upon mutual agreement with the Director of Community Services(or designee).
2.03 PERMITS: Contractor is required to provide City, prior to commencement of
operation of catering business, a copy of a City Business License, a San Luis
Obispo County Health Department permit for food sales, and a Board of
Equalization Certificate.
2.04 TAXES: Contractor agrees to pay all lawful taxes, assessments or charges which
may be levied by government entities.
PAVILION ON THE LAKE 3
PACIFIC HARVEST CATERING AGREEMENT
City of Atascadero
2.05 EQUIPMENT: Contractor, at his own expense, shall completely equip the
Pavilion cafe and keep all equipment in a first class manner to the satisfaction of
the Director of Community Services (or designee) throughout the term of this
agreement. The City is not responsible for damage or theft to equipment owned
by the Contractor.
Request to use the Pavilion's rental equipment must be made to the Pavilion
Coordinator in advance.
2.06 FACILITIES:
a. Kitchen: Contractor shall have a right to use the Pavilion kitchen and all City
owned appliances and equipment within the kitchen area providing the kitchen
has not been reserved for use by the City of Atascadero and/or rented to
another party or company for use.
The City shall supply the Contractor, in writing, seven (7) days prior notice
when it has rented the kitchen to others and for how long.
Contractor shall notify the Pavilion as soon as possible when they need to
reserve the kitchen. Contractor accepts that when they reserve the kitchen and
the Pavilion has a potential renter,the Contractor must be able to cater for said
renter(as the renter will not be allowed to rent the kitchen due to Contractor's
prior reservation).NO kitchen reservations may be made by the Contractor on
Saturdays.
2.07 QUALITY OF SERVICE/CONTROLLED RATES AND CHARGES: The
City has the right to inspect and schedule the prices and rates of goods sold upon
the subject premises. The City reserves the right to prohibit the sale of any item
which it deems objectionable or beyond the scope of merchandise deemed
necessary for proper service to the public. Contractor shall post razes and prices of
all items in such places as designated by the City.
2.08 SECURITY/CON dUNICATIONS: The Contractor agrees to provide
telephone services to the Pavilion cafe throughout the duration of this contract at
Contractor's expense. Optional Security Alarm services are to be provided by the
Contractor.
2.09 TOOLS AND INSTRUMENTALITIES: Contractor shall provide all tools and
instrumentalities to perform the services under this agreement.
PAVILION ON THE LAKE 4
PACIFIC HARVEST CATERING AGREEMENT
City of Atascadero
2.10 WORKER'S COMPENSATION AND OTHER EMPLOYEE BENEFITS:
City and Contractor intend and agree that Contractor is an independent contractor
of City and agrees that Contractor and Contractor's employees and agents have no
right to Worker's Compensation and other employee benefits. If any worker
insurance protection is desired, Contractor agrees to provide Worker's
Compensation and other employee benefits, where required by law, for
Contractor's employees and agents. Contractor agrees to hold harmless and
indemnify City for any and all claims arising out of any claim for injury,disability,
or death of and any of Contractor's employees or agents.
2.11 INDEMNIFICATION: Contractor hereby agrees to, and shall, hold City, its
elective and appointive boards, officers, agents and employees,harmless and shall
defend the same from any liability for damage or claims for damage, or suits or
actions at law or in equity which may allegedly arise from Contractor's or any of
Contractor's employees' or agents' operations under this agreement, whether such
operations by Contractor or by any one or more persons directly or indirectly
employed by,or acting as an agent for,Contractor;provided as follows:
a. That the City does not, and shall not, waive any rights against Contractor
which it may have by reason of the aforesaid hold-harmless agreement,
because of the acceptance by City, or the deposit with City by hereinafter
described.
b. That the aforesaid hold-harmless agreement by Contractor shall apply to all
damages and claims for damages of every kind suffered, or alleged to have
been suffered, by reason of any of the aforesaid operations of Contractor or
any agent or employee of Contractor regardless of whether or not such
insurance policies shall have been determined to be applicable to any of such
damages or claims for damages.
2.12 INSURANCE: Contractor shall not commence work under this contract until
he/she has obtained all insurance required under this section and such insurance
shall have been approved by City as to form,amount and carrier:
a. Public Liability and Property Damage Insurance. Contractor shall take out
and maintain during the life of this contract such public liability and property
damage insurance as shall protect City, its elective and appointive boards,
officers, agents and employees, and Contractor and any agents and employees
performing work covered by this agreement from claims for damages for
personal injury, including death, as well as from claims for property damage
which may arise from Contractor's or any subcontractor's operations under
this agreement, whether such operations be by Contractor or by anyone
directly or indirectly employed by Contractor, the amounts of such insurance
shall be as follows:
PAVILION ON THE LAKE 5
PACIFIC HARVEST CATERING AGREEMENT
City of Atascadero
(1) Public Liability Insurance.
In an amount not less than$500,000 per injury, including, but not limited
to death to any one person and, subject to the same limit for each person,
in an amount not less than$1,000,000 on account of any one occurrence;
(2) Property Damage Insurance.
In an amount of not less than $50,000 for damage to the property of each
person on account of any one occurrence.
(3) Comprehensive Automobile Liability.
Bodily injury liability coverage of$500,000 for each person in any one
accident and $1,000,000 for injuries sustained by two or more persons in
any one accident. Property damage liability of$50,000 for each accident.
(4) Worker's Compensation Insurance.
In the amounts required by law,if applicable.
b. Proof of Insurance. Contractor shall furnish City, concurrently with the
execution hereof, with satisfactory proof of carriage of the insurance required,
and adequate legal assurance that each carrier will give City at least thirty(30)
days' prior notice of the cancellation of any policy during the effective period
of this contract. The certificate or policy of liability of insurance shall name
City as an additional insured with the Contractor.
2.13 CONTRACTOR'S MAINTENANCE: Except as otherwise provided in this
agreement,Contractor,at its own cost and expense agrees:
a. To maintain throughout the agreement term in good sanitary order, condition,
and repair,all portions of the leased premises,including,without limitation,(a)
the interior of the subject premises, including flooring, exposed plumbing,
lighting lamps and wiring, paint and finish; (b) any windows; (c) the outside
deck area; (d) any personal property of the Contractor situated in or upon the
subject premises; (e) all City-owned kitchen appliances, including but not
limited to the stove,grill,dishwasher, ice machine,refrigerator and freezer; (f)
any heating, ventilating or air conditioning equipment installed by Contractor
in or upon the subject premises.
The City releases the Contractor of responsibility for the kitchen area, the
appliances or equipment at such times as the City rents or loans the kitchen to
anyone other than the Contractor.
b. To notify the City promptly of any damage to the subject premises or the
building in which they are situated resulting from or attributed to the acts or
omissions of the Contractor, its invitees or its authorized representatives, and
thereafter promptly to repair all such damage at Contractor's sole cost and
expense.
c. To provide janitorial services for the interior of the subject premises.
PAVILION ON THE LAKE 6
PACIFIC HARVEST CATERING AGREEMENT
City of Atascadero
2.14 UTILITIES: The City shall pay the reasonable costs for the actual utilities,
including water, gas, heat, light and power supplied to the subject premises.
Contractor shall make arrangements for and pay the charges when due for
telephone and alarm services.
The suspension or interruption in utility service to the leased premises for reasons
beyond the ability or control of the City shall not constitute a default by City or
entitle Contractor to any reduction or abatement of the monthly payment due to the
City.
3.0 OBLIGATIONS OF CITY
3.01 COOPERATION: City agrees to comply with all reasonable requests of
Contractor necessary to the performance of Contractor's duties under this
agreement.
3.02 PLACE OF WORK: City agrees to provide exclusive use and access to
Atascadero's Pavilion on the Lake cafe for use by the Contractor while performing
the services described within this agreement.
3.03 EXCLUSIVITY: City deems Contractor as exclusive caterer for hire of all
events on the premises. No other catering business may be hired for a fee by a
renter using the facility. This excludes renters who choose to cook and serve food
themselves.
4.0 TERNIINATION OF AGREEMENT
4.01 TERNIINATION ON NOTICE: Notwithstanding any other provision of this
agreement, any party hereto may terminate this agreement, at any time, without
cause by giving at least thirty (30) days prior written notice to the other parties to
this agreement.
4.02 TERMINATION ON OCCURRENCE OF STATED EVENTS: This
agreement shall terminated automatically on the occurrence of any of the
following events:
(1) Bankruptcy or insolvency of any party;
(2) Sale of the business of any party;
(3) Death of any party;
(4) The end of the thirty(30)days as set forth in this agreement;
(5) End of the agreement to which Contractor's services were necessary;or
(6) Assignment of this agreement by Contractor without consent of the City.
PAVILION ON THE LAKE 7
PACIFIC HARVEST CATERING AGREEMENT
City of Atascadero
4.03 TERMINATION BY ANY PARTY FOR DEFAULT OF AGREEMENT:
Should any party default in the performance of this agreement or materially breach
any of its provisions, a non-breaching parry, at their option, may terminate this
agreement, immediately, by giving written notice of termination to the breaching
part'.
4.04 TERMINATION: This Agreement shall terminate on June 30, 2013, unless
extended as set forth in this section. City grants to the Tenant the option to extend
this Lease for one (1) one (1) year period, following the above ending date.
Tenant must notify city of its intent to exercise the extension no later than 30 days
before the expiration date or before the expiration of any extension period.
4.05 REMOVAL OF ALTERATIONS: City, by giving written notice to Contractor
within thirty(30)days before the expiration or termination of the agreement, may
elect to require Contractor, at its sole cost and expense, to remove the alterations
specified by City in its notice, and shall make such repairs necessitated by the
removal of said alterations, and any damage resulting therefrom, as may be
necessary to restore the subject premises to good condition the last day of the lease
term or within thirty(30) days of the City's notice. This stipulation will not affect
any improvements agreed to by the Director of Community Services, as described
in Section 1.07 of this agreement.
5.0 MISCELLANEOUS
5.01 REMEDIES: The remedies set forth in this agreement shall not be exclusive but
shall be cumulative with,and in addition to,all remedies now or hereafter allowed
by law or equity.
5.02 NO WAIVER: The waiver of any breach by any party of any provision of this
agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of this agreement.
5.03 ASSIGNMENT: This agreement is specifically not assignable by Contractor to
any person or entity. Any assignment or attempt to assign by Contractor, whether
it be voluntary or involuntary, by operation of law or otherwise, is void and is a
material breach of this agreement giving rise to a right to terminate as set forth in
Section 4.03.
5.04 ATTORNEY FEES: In the event of any controversy, claim or dispute between
the parties hereto,arising out of or relating to this agreement,or the breach thereof,
the prevailing party shall be entitled, in addition to other such relief as may be
granted,to a reasonable sum as and for attorney fees.
PAVILION ON THE LAKE 8
PACIFIC HARVEST CATERING AGREEMENT
City of Atascadero
5.05 TIlVIE FOR PERFORMANCE: Except as otherwise expressly provided for in
this agreement, should the performance of any required by this agreement to be
performed by either parry be prevented or delayed by reason by any act of God,
strike, lockout, labor trouble, inability to secure materials, or any other cause
except financial inability not the fault of the parry required to perform the act, the
time for performance of the act will be extended for a period of time equivalent to
the period of delay will be excused; provided, however, that nothing contained in
this section shall exclude the prompt payment by either party as required by this
agreement or the performance of any act rendered difficult or impossible solely
because of the financial condition of the parry required to perform the act.
5.06 NOTICES: Except as otherwise expressly provided by law,any and all notices or
other communications required or permitted by this agreement or by law to be
served on or given to any party to this agreement shall be in writing and shall be
deemed duly served and given when personally delivered or in lieu of such
personal service when deposited in the United States mail, first-class postage
prepaid to the following address for each respective party:
PARTY ADDRESS
CITY OF ATASCADERO 6907 El Camino Real
Department of Atascadero,CA 93422
Community Services (805)461-5000
CONTRACTOR
Pacific Harvest Catering 480 La Jolla
(805)234-6629 Morro Bay,CA 93442
5.07 GOVERNING LAW: This agreement and all matters relating to this agreement
shall be governed by the laws of the State of California in force at the time any
need for the interpretation of this agreement or any decision or holding concerning
this agreement arises.
5.08 BINDING EFFECT: This agreement shall be binding on and shall inure to the
benefit of the heirs, executors,administrators, successors and assigns of the parties
hereto, but nothing in this section shall be construed as a consent by City to any
assignment of this agreement or any interest in this agreement.
5.09 SEVERABILITY: Should any provision of this agreement be held by a court of
competent jurisdiction or by a legislative or rule-making act to be either invalid,
void or unenforceable, the remaining provisions of this agreement shall remain in
full force and effect,unimpaired by the holding,legislation or rule.
5.10 SOLE AND ENTIRE AGREEMENT: This agreement constitutes the sole and
entire agreement between the parties with respect to the subject matter hereof.
This agreement correctly sets forth the obligations of the parties hereto to each
other as of the date of this agreement. All agreements or representations respecting
the subject matter of this agreement not expressly set forth or referred to in this
agreement are null and void.
PAVILION ON THE LAKE 9
PACIFIC HARVEST CATERING AGREEMENT
City of Atascadero
5.11 TIME: Time is expressly declared to be of the essence of this agreement.
5.12 DUE AUTHORITY: The parties hereby represent that the individuals executing
this agreement are expressly authorized to do so on and in behalf of the parties.
5.13 CONSTRUCTION: The parties agree that each has had an opportunity to have
their counsel review this agreement and that any rule to the effect that ambiguities
are to be resolved against the drafting shall not apply in the interpretation of this
agreement or any amendments or exhibits thereto. The captions of the sections are
for convenience and reference only, and are not intended to be construed to define
or limit the provisions to which they relate.
5.14 AMENDMENTS: Amendments to this agreement shall be made only with the
mutual written consent of all of the parties to this agreement.
Executed on �tc.Y� �, i 1969 ,2008 at Atascadero,California.
Attest: CITY OF ATASCAD RO
y:
Marcia M. Torgerson W e McKinney
City Clerk City Manager
Approv to form:
By: 9
TBA, CONTRACTOR
City Attorney
PAVILION ON THE LAKE 10
PACIFIC HARVEST CATERING AGREEMENT
City of Atascadero
EXHIBIT A
PROFESSIONAL SERVICES TO BE PERFORMED BY CONTRACTOR
Contractor shall provide consultation and professional management services to City as follows:
The Contractor shall utilize said premises for the following purposes:
A. Premises shall be used for the purpose of preparing and catering food for both public
and private events,both on and off-site.
B. Furnish and install at his/her own expense, all necessary equipment required for
proper service to the general public.
C. The storage and service thereof shall be in an area approved by the Director of
Community Services (or designee). Kitchen storage to be determined by Pavilion
Coordinator based on availability. City not responsible for lost or stolen items in
cafe or kitchen. Contractor responsible to return all items to their respective place
after catering events. City and/or Pavilion Staff not responsible for items left after
events.
D. Furnish and maintain proper facilities, equipment and devices for the cafe as herein
provided.
E. Operate the facility in a business-like manner to the satisfaction of the Department
of Community Services, and maintain said areas in conformance with the highest
standards of health and safety for patrons of said operation.
F. All items to be sold shall be agreed upon through mutual consent between the
Contractor and the City.
G. Beer and wine may be sold,providing that all state and local laws regulating the sale
of alcoholic beverages are strictly adhered to. Procedures must be established and
maintained to ensure that alcohol is not served or sold to minors. The City may
revoke the privilege to sell alcohol if alcohol related problems occur related to sales
from the premises.
H. An Ice Cream/Food Cart may be used in the Atascadero Lake Park, weather
permitting.
PAVILION ON THE LAKE 11
PACIFIC HARVEST CATERING AGREEMENT
City ofAtascadero
EXHIBIT B
CONTRACTOR PAYMENT SCHEDULE
Contractor will pay the City during the terms of the agreement, June 1,2008 until June 30,
2013:
MONTLY FLAT FEE: $200.00 per month
%OF GROSS OF ALL ON-SITE CAFE AND CATERING SALES: 16%
(On-site catering will be defined for the purposes of this agreement as any City-owned and
operated facility.)
%OF GROSS OFF-SITE CATERING SALES: 10%
(Off-site catering will be defined for the purposes of this agreement as any catering
function served at any facility that is not City-owned or operated.)
PAVILION ON THE LAKE 12
PACIFIC HARVEST CATERING AGREEMENT
.4ATIONWIDE MUTUAL INSURANCE COMPANY 07624
1100 LOCUST ST DEPT 1100 RENEWAL
DES MOINES, IA 50391-2000
COMMERCIAL GENERAL LIABILITY DECLARATIONS
Policy Number: ACP GLO 7831844953
Named Insured: WHITE, SETH - DBA
PACIFIC HARVEST CATERING & CAFE
Address: 480 LA JOLLA ST
MORRO BAY CA 93442-1659
Agent: MACKEY & MACKEY INSURANCE 84-07624
Address: HANFORD CA 93230
Policy Period: From 06/11/08 to 06/11/09 12:01 A.M. standard time at the address of the named insured as stated
herein.
In return for the payment of the premium, and subject to all the terms of this policy, we agree with you to provide the
insurance as stated in this policy.
LIMITS OF INSURANCE
GENERAL AGGREGATE LIMIT(other than products-completed operations) $ 2,000,000
PRODUCTS-COMPLETED OPERATIONS AGGREGATE LIMIT $ 2,000,000
PERSONAL AND ADVERTISING INJURY LIMIT $ 11000,000
EACH OCCURRENCE LIMIT $ 11000,000
DAMAGE TO PREMISES RENTED TO YOU LIMIT(any one premises) $ 100,000
MEDICAL EXPENSE LIMIT(any one person) $ 51000
Retroactive Date (CG0002 only)
The Named Insured is: INDIVIDUAL
Business of the Named Insured is: CATERING
Audit Period: ANNUAL
ENDORSEMENTS ATTACHED TO THIS POLICY
SEE COMMERCIAL GENERAL LIABILITY FORMS AND ENDORSEMENTS SCHEDULE
TOTAL ADVANCE PREMIUM $ 411.00
Replacement or
Renewal Number ACP GLO 7821844953
A PACKAGE MODIFICATION FACTOR HAS BEEN APPLIED
Countersigned By
Authorized Representative
GL-D (10-98)
DIRECT BILL MACH 08112 INSURED COPY ACP GLO 7831844953 943443520 78 0049021