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HomeMy WebLinkAbout2005-011 Pacific Harvest CI i Y QF ATASOADEBO CONTRACT4tACao 5-Ol1 City Of Atascadero 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 partnership, 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: 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 8% (eight 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 (10h) day of each month. Payments are required to be submitted to the City of Atascadero, Department of Community Services, 6905 El Camino Real, Suite 6, Atascadero California (Attention Pavilion). City of Atascadero Payments received from the tenth (10) 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 (25th) 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 caf6 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. PAVILION ON THE LAKE 2 PACIFIC HARVEST CATERING AGREEMENT City of Atascadero 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. 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 comer 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 PREAUSES: 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 AIMSDIUM 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 PERNMS: 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 TADS: 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 EOUIP NT: Contractor, at his own expense, shall completely equip the Pavilion cafd 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 rates and prices of all items in such places as designated by the City. 2.08 SECURITY/CONBIMCATIONS: 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 BE, 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 Damaye 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 occurence; (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 Iamps 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. 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 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 parry; (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 (b) 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 Ply PAVILION ON THE LAKE 7 PACIFIC HARVEST CATERING AGREEMENT City of Ataseadero 4.04 TERMINATION: This Agreement shall terminate on June 30. 2008, 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. 4.04 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 NUSCELLANEOUS 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. 5.05 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. PAVILION ON THE LAKE 8 PACIFIC HARVEST CATERING AGREEMENT City of Atascadero 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 6905 El Camino Real,Suite 6 Department of Atascadero,CA 93422 Community Services (805)461-5000 CONTRACTOR Pacific Harvest Catering 4 La Entrada Ave. (805)550-4463 San Luis Obispo,CA 93405 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 E + +CT: 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 AGREEMCNT: 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 TEVM: 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. PAVILION ON THE LAKE 9 PACIFIC HARVEST CATERING AGREEMENT City of Atascadero 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 Cuh I ,2005 at Atascadero,California. Attest: CITY OF ATASCADERO L��U,2jfi-7 By: Marcia M. Torgerson Wade McKinney City Clerk City Manager Approve as;. 'fo / By: A CONTRACTOR City Attorn y By: CONTRACTO PAVILION ON THE LAKE 10 PACIFIC HARVEST CATERING AGREEMENT i City of Ataseadero 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 cafd 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 TBE LAKE 11 PACIFIC HARVEST CATERING AGREEMENT City of Atascadero EXI:IIBIT B CONTRACTOR PAYMENT SCHEDULE Contractor will pay the City during the terms of the agreement,June 1, 2005 until June 30, 2008: MONTLY FLAT FEE: $ 150.00 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: 8% (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