HomeMy WebLinkAbout2009-015 NCI Affiliates CPCC Cafe (2) Gty of Atascadero
Department of Community Services
AGREEMENT FOR SERVICES BY CONTRACTOR
COLONY PARD COMMUNITY CENTER CAFE AND
CONCESSION OPERATION
This Agreement is made upon the date of execution, as set forth below, by and between
NCI Affliates, Inc. and Achievement House, a corporation, hereinafter referred to as
"Contractor," and the City of Ataseadero, California, a Municipal Corporation, hereinafter
referred to as the "City." The parties hereto, in consideration of the mutual covenants
contained herein, hereby agree to the following terms and conditions:
1.0 GENERAL PROVISIONS
1.01. TERM: This Agreement will become effective on the date of execution by
the City, set forth below, and will continue in effect until terminated as
provided herein.
1.02 LOCATION: The premises of operation is Atascadero's Colony Park
Community Center, 5599 Traffic Way, Atascadero, California, including the
cafe, kitchen facilities, enclosed patio and any additions and improvements to
the Community Center premises (the"Premises").
1.03 SERVICES TO BE PERFORME,D BY CONTRACTOR: Contractor
agrees to perform and/or provide all food catering services at the Premises in a
business-like manner to the satisfaction of the Department of Community
Services. The City and Contractor agree that Contractor will not be the
exclusive commercial caterer for hire for all events at Atascadero's Colony
Park Community Center. In addition to catering services provided by
Contractor, other catering businesses may be hired for a .fee by a renters using
the facility. Use of the kitchen by outside caterers will be allowed in
cooperation with the Contractor, and at their discretion.
Contractor shall determine the method, details, and means of performing the
above-referenced services so long as the method, details, andmeans of
performing selected by the Contractor comply with all applicable statutes,
ordinances, and regulations.
Contractor may use the Community Center Cafe and kitchen facilities for
preparing and catering food for either public or private events, both at the
:Premises and off the Premises.
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.
1.04 RENT AND GROSS SALES RECEIPTS: In consideration for this
Agreement, Contractor will pay the City on a monthly basis as follows: (1) a
flat rental fee of$300; plus 5% of any gross revenues from on-site catering
services for the first two (2) years. In year three and four of the contract, a
flat monthly rental fee of $500, PLUS 5% of total gross earnings from
catering services on-site at the Community Center, and food prepared on-site
at the Community Center for off-site catering. Gross earnings shall not
include any sales or excise taxes imposed by any governmental entity.
Contractor shall make monthly payments to the City of Atascadero by the
tenth day of each month. Contractor must submit monthly payments to the
City of Atascadero, ATTN: Community Center, 6907 El Camino Real,
Atascadero California.
The City will consider monthly payments received from the eleventh of each
month to the twenty-fifth of each month to be delinquent and will assess a
10% penalty. Payments received after the twenty-fifth of each month will be
assessed an additional 10%penalty.
Failure by Contractor to tender payment to the City within 30 days of any
payment so due, shall be sufficient cause for the City to terminate this
Agreement.
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 its expense, to have its records and
accounts audited by an auditor acceptable to the City and shall present said
audit to the Director of Community Services within 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 Contractor's expense.
1.07 CONDITIONS OF PREMISES: Contractor's execution of and perfonnance
of services under this Agreement shall constitute Contractor's
acknowledgment that the Premises are in good and tenable condition.
Contractor agrees to accept the Premises, and any existing additions and
improvements thereto, "as is" in the present existing condition.
Contractor may modify the Premises only with prior written approval by the
Director of Community Services (or designee). Any plans for such
modification, shall be submitted to the City for approval prior to the
commencement of any modification. Any modification by Contractor shall be
without cost to the City andshall be subject to the indemnification provisions
set forth in section 2.11.
1.08 SIGNS: All signs, names or placards must be approved by the Director of
Community Developemnt (or designee) prior to installation. All signs must
meet all requirements and specifications as set forth by the City. The
locations of all signs must be approved in advance by the Director of
Community Services (or designee) and must conform to all sign regulations
set forth in City ordinances.
1.09 DAMAGE TO/DESTRUCTION OF PREMISES: Should the Premises be
totally or partially damaged or destroyed, the City shall repair the same in a
reasonable time frame depending upon the extent and cost of the damage,
except that the City is not obligated to make such repairs, and the City may
decide to terminate this Agreement. If the Premises are totally or partially
damaged or destroyed as a result of actions by Contractor and/or its
employees and agents, the Contractor shall be obligated to make such repairs.
Nothing in this section affects or diminishes Contractor's indemnification
obligations set forth in section 2.11. Any notice of termination given here
shall be given to Contractor within 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. The Contractor
shall be open a minimum of five days per week. 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 or conflict with Contractor's obligations
under this Agreement.
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 cafd 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. A request for permission to sell liquor will be
considered by the City Council, and may or may not be granted. Contractor
acknowledges that the City has discretion to grant or deny permission to sell
liquor on the Premises. Contractor does not assume that any such request will
be approved and, in executing this Agreement, is not relying on any oral or
written statements by any person regarding the sale of liquor on the Premises.
2.04 TAXES: Contractor agrees to pay all lawful taxes, assessments or charges
which may be levied by government entities.
2.05 FACILITIES:
a. Kitchen: Contractor shall have a right to use the Community Center
kitchen and all City- owned appliances and equipment within the kitchen
area so long as the kitchen has not been reserved for use by the City of
Atascadero. If Contractor wishes to use the Community Center's other
spaces (rooms), tables, chairs and other rental equipment to perform its
services, it must request permission in advance from the Community
Center supervisor, and all normal rental fees shall apply. Contractor shall
notify the Center supervisor as soon as possible when Contractor needs to
reserve the cafd for events not open to the public. Outside caterers may
use the kitchen in cooperation with the Contractor for event
serving/preparation only at the discretion of the Contractor .
b. Cafe: Contractor, at its own expense, shall completely equip the
Community Center cafe andkeep all equipment in a first class manner to
the satisfaction of the Director of Community Services (or designee)
throughout the tern of this Agreement. Any City owned equipment in the
kitchen damaged by the contractor shall be replaced byteh contract with
the same equipment or equal to be approved by the City.
c. Ice Cream/Food Cart: Contractor may use an ice cream/food cart in
Colony Park, weather permitting. Care shall be taken not to interfere with
Atascadero Girl's Softball snack bar business when open.
d. Equipment,Tools, and Instrumentalities: Contractor shall provide, at its
own expense, all equipment, tools, and instrumentalities to perform the
services under. this Agreement.
e. Storage: Contractor may only store its equipment, tools, and
instrumentalities in an area approved by the Director of Community
Services (or designee). The Director of Community Services (or designee)
may allow storage of the Contractor's equipment, tools, and
instrumentalities in the Community Center kitchen if there is available
space, as determined by the Community Center Supervisor. Contractor
is responsible for returning all equipment, tools, and instrumentalities to
their proper place after catering events and performing services under the
Agreement. Neither the City nor Community Center staff is responsible
for items left out after an event.
f. Loss and Theft: The City is not responsible for damage to, theft of, or
loss of any equipment, tools, and/or instrumentalities owned anal/or rented
by Contractor, whether by fire, theft or other cause. Contracotr must
obtain its own insurance to cover any such losses that may occur.
2.06 QUALITY OF SERVICE/CONTROLLED RATES AND CHARGES:
The City has the right to inspect and approve the prices and rates of goods
sold upon the Premises. Contractor may only sell items that have been agreed
upon through mutual consent between the Contractor and the City. 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: Contractor agrees to provide telephone
services to the Community Center cafe throughout the duration of this
Agreement at Contractor's expense. Security Alarm services are to be
provided by the City.
2.08 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, indemnify, and defend 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.
2.09 INDEMNIFICATION: Contractor agrees to indemnify, defend, protect and
hold harmless City from and against any and all liabilities, claims, actions,
causes of action, proceedings, suits, damages, judgments, liens, levies, costs
and expenses of whatever nature, including reasonable attorneys' fees and
disbursements (collectively, "Claims"), which City may suffer or incur or to
which City may become subject by reason of or arising out of the negligent or
willfully wrongful acts or omissions of Contractor, its officers, employees, or
agents committed in performing services under this Agreement. For purposes
of this section, "City" includes City's officers, officials, employees, agents,
and volunteers. The provisions of this section do not apply to Claims
occurring as a result of the City's sole negligence or willful acts or omissions.
The insurance required to be maintained by Contractor under this Agreement
is intended to ensure Contractor's obligations under this section, but the limits
of such insurance do not limit the liability of Contractor. The provisions of
this section will survive the expiration or earlier termination of, this
Agreement.
2.10 INSURANCE: Contractor shall not commence work under this contract until
he/she has obtained all insurance required andspecified in Exhibit A attached
to this Agreement. Such insurance must be approved by City as to form,
amount and carrier.
The City shall be listed as an additional insured in Contractor's insurance.
2.11 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 Colony Park Community Center
cafd and kitchen facilities, including, without limitation, (a) the interior of
the cafe and kitchen facilities, including flooring, exposed plumbing,
lighting lamps and wiring, paint and .finish; (b) any windows; (c) the
outside patio area; (d) any personal property of the Contractor situated in
or upon the Premises; (e) all City-owned kitchen appliances, including but
not limited to the stove, grill, soft serve machine, meat slicer,
coffee/espresso maker, ice machine, refrigerator and freezer; (f) any
heating, ventilating or air conditioning equipment installed by Contractor
in or upon the Premises.
b. To maintain the Colony Park Community Center cafe and.kitchen facilities
in conformance with the highest standards of health and safety.
c. To notify the City promptly of any damage to the 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.
2.12 UTILITIES: The City shall pay the reasonable costs for the actual utilities,
including water, gas, heat, trash pick- up, light and power supplied to the cafe
and kitchen facilities at the Community Center. Grease must be disposed of
separately by the Contractor. Contractor shall make arrangements for and pay
the charges when due for telephone.
The suspension or interruption in utility service to the 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
Ataseadero's Colony Park Community Center cafe for use by 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 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 30 days as set forth in section 4.01 of 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 party default in the performance of this Agreement or materially
breach any of its provisions, a non-breaching party, 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 August 1, 2011,
unless extended as set forth in this section. City grants to the Contractor the
option to extend this Agreement for two (2) single one-year periods, following
the above ending date. Contractor must notify City in writing 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 30 days before the expiration or termination of the
Agreement, may elect to require Contractor, at Contractor's sole cost and
expense, to remove the alterations specified by City in its notice and make
such repairs necessitated by the removal of said alterations, and any damage
resulting therefrom, as may be necessary to restore the Premises to good
condition the last day of the lease term or within 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 ATTORNEYS' 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 attorneys' fees.
5.05 TIME FOR PERFORMANCE: Except as otherwise expressly provided for
in this agreement, should the performance of any obligation or act required by
this Agreement to be performed by either party be prevented or delayed by
any act of God, war, terrorism, natural disaster, 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;
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.
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 andgiven 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 Atasca.dero, CA 93422
Community Services (805) 461-5000
CONTRACTOR
NCI Aff7iates Inc. 496 Linne Road
(805)238-6630 Paso Robles, CA 93466
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.
5.11 TIME: Time is expressly declared to be of the essence of this Agreement.
5.1.2 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� 14 ,2009 at Atascadero, California.
Attest: CITY 14F A ' SCADERO
Marcia McClure Torgerson Wade,.`Minney
C.M.C., City Clerk City Manager
Appro as to�or :�r
By: /I r�o
Brian Pierik ACIKfTfiJtes, Inc., CONTRACTOR
City Attorney