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HomeMy WebLinkAbout2010-019 Chuffin & Reeves aka Atascadero Kayak & Sail AGREEMENT FOR SERVICES BY CONTRACTOR PADDLE BOAT, WATERCRAFT AND RECREATION EQUIPMENT CONCESSION OPERATION AT ATASCADERO LAKE PARK This agreement is made upon the date of execution, as set forth below, by and between Chaffin & Reeves, Inc., a California Corporation, 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 terms and conditions. 10 GENERAL PROVISIONS 101 TERM. This agreement will continue to be effective on the date of execution set forth below, and will continue in effect until terminated as provided herein. 102 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. 103 RENT AND GROSS SALES RECEIPTS In consideration for the terms of this agreement, the Contractor will pay the City an annual flat fee and percent of the total gross earnings monthly of all monies from sales received by the Contractor from the use of the equipment and premises described in this contract. The annual flat fee and percentage will be paid according to the"Exhibit B"Gross earning shall not include any sales or excise taxes imposed by any governmental entity Payment to the City of Atascadero of the monthly flat fee payment and the percentage of gross earnings received shall be received by the tenth (10th) day of each month. Payments are required to be submitted to the City of Atascadero, Department of Community Services, 6907 El Camino Real, Atascadero California (Attention. Brady Cherry Community Services Director) Payments received from the tenth (10t) of each month to the twenty-fifth (25t) of each month shall be considered delinquent and assessed a ten percent (10%) penalty Payments received after the twenty-fifth (25t) 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. 104 LOCATION Premises of operation is the boat docks located adjacent to Atascadero Lake in Atascadero Lake Park,9315 Pismo Avenue,Atascadero,California. 105 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 106 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 concession 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. 107 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 tenantable 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 108 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 109 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 miscluef 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 concession, a copy of a City Business License 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. 2.05 EQUIPMENT Contractor, at his own expense, shall completely equip the concession and keep all equipment in a good repair and in safe operating condition to the satisfaction of the Director of Community Services (or designee)throughout the term of this agreement. Daily inspections of the contractors equipment must be maintained and available for review upon request of the City of Atascadero Contractor shall have the right to use the City owned floating dock area. In addition, the Contractor shall have the right to use a fenced cemented area directly in front of the floating dock area 2.06 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 rates and prices of all items in such places as designated by the City 2.07 SECURITY/COMMUNICATIONS The Contractor agrees to provide telephone and security alarm services to concession throughout the duration of this contract at Contractor's expense. 2.08 TOOLS AND INSTRUMENTALITIES Contractor shall provide all tools and instrumentalities to perform the services under this agreement. 2.09 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 ansmg out of any claim for injury,disability, or death of and any of Contractor's employees or agents. 2.10 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 anse 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. 2.11 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 camer- 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 arse 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. Per Exhibit C 2.12 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 City —owned floating dock area and the fenced, cemented area directly in front of the floating dock (b) any personal property of the Contractor situated in or upon the subject premises, To notify the City promptly of any damage to the subject premises situated resulting from or attributed to the acts or omissions of the Contractor, its mvitees or its authorized representatives, and thereafter promptly to repair all such damage at Contractor's sole cost and expense. b Contractor waives the provisions of Section 1941 and 1942 of the California Civil Code with respect to Contractor's right to make repairs and to deduct the expenses thereof from monthly payment payable by the Contractor 2.13 UTILITIES The City shall pay the reasonable costs for the actual utilities, including water, gas, heat, light and power supplied to the subject premises. There are customary and reasonable charges one would expect to pay for these services. The contractor agrees to pay their fair share of al utilities including water, gas heat, light and power supplied to subject premises based on the percentage of square feet of subject premises compared with the utility charges for the entire building site,up to a maximum charge of $200 00 per month. The charges will be billed to the Contractor monthly and payable to the City of Atascadero Contractor shall make all arrangements for and pay the charges when due for the telephone service. 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 furnish use of the floating docks located in Atascadero Lake Park use by the Contractor while performing the services described within this agreement. 4 0 TERMINATION OF AGREEMENT 4 01 TERMINATION 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 terminate 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 4 03 TERMINATION BY ANY PARTY FOR DEFAULT OF AGREEMENT Should any parry 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 party 4 04 TERMINATION This Agreement shall terminate on October 12, 2012, unless extended as set forth in this section. The City, with the agreement of the Contractor, is authorized to extend the term of this agreement beyond the termination date, as needed, under the same terms and conditions set forth in this agreement. Any such extension shall be in writing and be an amendment to this agreement. 404 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 there from, 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 107 of this agreement. 50 MISCELLANEOUS 501 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 502 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. 503 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 nse to a right to terminate as set forth in Section 4 03 504 ATTORNEY FEES In the event of any controversy, claim or dispute between the parties hereto, ansing 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. 505 TIME 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 party 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 party 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 party required to perform the act. 506 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 flus 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 ADDRESS Chaffin&Reeves, Inc. 11552 nd Street Los Osos, CA 93402 (805)441-7463 507 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. 508 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. 509 SEVERABILITY Should any provision of tlus 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. 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 it 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 October 12,2010 at Atascadero,California. Attest: CITY OF ATASCADERO �- By. Marcia McClure Torgerson, NC Wade G McKinney City Clerk City Manager Approv to fo a ( s By- Brian A. Pnerik Lloyd Reeves,Contractor City Attorney EYJHBIT A PROFESSIONAL SERVICES TO BE PERFORMED BY CONTRACTOR Contractor shall provide concession and rental 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 renting paddle boats,appropriate watercraft, bicycles and other mutually agreed upon recreational equipment. 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 Community Services(or designee) D Furnish and maintain proper facilities,equipment and devices for the concession 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 Any items to be sold, such as watercraft and equipment, shall be subject to approval by the Department of Community Services, and shall be subject to payment of 9% of the sales price. EXHIBIT B CONTRACTOR PAYMENT SCHEDULE Contractor will pay the City Annually• YEAR FLAT FEE PERCENTAGE OF GROSS RECEIPTS 2010 $2,50000 9% 2111 $2,50000 9% 2012 $2,50000 9% INSURANCE REQUIREMENTS FOR CONTRACTORS Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors. Minimum Scope of Insurance Coverage shall be at least as broad as 1 Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001) 2 Insurance Services Office Form Number CA 0001 covering Automobile Liability, code 1 (any auto) 3 Workers' Compensation insurance as required by the State of California and Employer's Liability insurance (for lessees with employees) Minimum Limits of Insurance Lessee shall maintain limits no less than. 1 General Liability- $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability $1,000,000 per accident for bodily injury and property damage 3 Employer's Liability $1,000,000 per accident for bodily injury or disease Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City At the option of the City, either- the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers, or the Lessee shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions The general liability and automobile policies are to contain, or be endorsed to contain, the following provisions 1 The City, its officers, officials, employees and volunteers are to be covered as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed on behalf of the contractor; and with respect toliability arising out of work or operations performed by on on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance or as a separate owner's policy (CG 20 10 11 85) 2 For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3 Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City 4 Coverage shall not extend to any mdemimty coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision(b) of Section 2782 of the Civil Code Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A.VII. Verification of Coverage Contractor shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by the City or on other than the City's forms, provided those endorsements or policies conform to the requirements All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time Subcontractors Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor All coverages for subcontractors shall be subject to all of the requirements stated herein.