HomeMy WebLinkAbout16-Parks and Recreation
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Lemuel P. Randolph, Director
Subject: RESOLUTION OF THE MAYOR
AND COMMON COUNCIL OF THE CITY OF
I SAN BERNARDINO TO AUTHORIZE THE
. EXECUTION OF A CONTRACTUAL
, l..AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO AND DIAMOND CREATIONS
INC. FOR CONCESSION SERVICES AT THE
SAN BERNARDINO SOCCER COMPLEX.
Dept: Parks, Recreation and
Community Services Depl.
Date: December 23,2002
MICC Meeting Date: January 6, 2003
Synopsis of Previous Council Action:
November 4, 2002 - Mayor and Common Council approved Resolution 2002-352 to
authorize the execution of a contract between the City of San Bernardino and Penny's
Creative Concessions for Concession Services at the San Bernardino Soccer Complex.
Recommended Motion:
Adopt Resolution
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Contact person: Lemuel P. Randolph
Phone: 384-5030
Supporting data attached: Staff reccrt reso, & Contract Ward: y'h Ward
FUNDING REQUIREMENTS:
Amount: $35,000 to $40,000 (in revenue)
Source: (Accl. No.) 134-000-4861
(A~~t n,,~~rirtinn)
Finance: /:ito ,9,tii;-(V..4-
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Council Notes:
Agenda Item No.
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the
execution of a contractual agreement between the City of San Bernardino and Diamond
Creations Inc. for concession services at the San Bernardino Soccer Complex.
Background:
On November 4, 2002 the city entered into an agreement with Penny's Creative Concessions for
short-term concession services through June 2003. This agreement included a 30-day
cancellation period to allow staff flexibility in the evaluation and recommendation of a long-term
contract to affect food and beverage services at the complex.
Over the course of the last several weeks, city officials have met with representatives of (2)
concessionaires to discuss their interest in long term operation of food and beverage concessions
at the San Bernardino Soccer Complex. Penny's Creative Concessions currently provides food
and beverage services at the complex as well as other local venues including Route 66
Rendezvous and Fontana Speedway. Diamond Creations Inc. currently operates concessions at
the Arrowhead Credit Union Ball Park as well as sports facilities in Alabama, Colorado,
Montana, Oregon, Texas and Utah.
After review of the (2) proposals, staff recommends award of a contract to Diamond Creations
Inc. The agreement with Diamond Creations includes a state-of-the-art, full-service concession
and seating area. This facility will be in the range of 1,500 square feet. Costs for the project will
run $100,000-$125,000.
The agreement is for 5-year period beginning January 29, 2003 ending January 28, 2008, renewable
for an additional 5 years by mutual consent of the City and Concessionaire. The City will receive
25% of the gross sales minus sales tax in exchange for this agreement.
Your approval of this Concessionaire Contractual Agreement will allow this Department to
provide for long-term concession services to the public.
Financial Impact:
Twenty-five percent of gross sales to City estimated between $35,000 - $40,000 for the first year
potentially increasing 5% each subsequent year.
Recommendation:
Adopt Resolution.
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO TO AUTHORIZE THE EXECUTION OF A CONTRACTUAL
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DIAMOND
CREATIONS INC. FOR CONCESSION SERVICES AT THE SAN BERNARDINO
SOCCER COMPLEX.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION I. The Mayor of the City of San Bernardino or her designee is hereby authorized
and directed to execute on behalf of said City a Contractual Agreement with Diamond
Creations Inc. related to the concessions sales at the San Bernardino Soccer complex for the
period of January 29, 2003 through January 2S, 200S. renewable for an additional 5 years by
mutual consent of the City and Diamond Creations Inc., a copy of which is attached hereto,
marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length.
SECTION 2. The authorization to execute the above referenced agreement is
rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage
of this resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO TO AUTHORIZE THE EXECUTION OF A CONTRACTUAL
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DIAMOND
CREATIONS INC. FOR CONCESSION SERVICES AT THE SAN BERNARDINO
SOCCER COMPLEX.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
meeting thereof, held
and Common Council of the City of San Bernardino at a
7 on the
day of
, 2003, by the following vote, to wit:
8 Council Members:
AYES
NAYS
ABSTAIN ABSENT
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ESTRADA
LONGVILLE
MCGINNIS
DERRY
SUAREZ
ANDERSON
MCCAMMACK
Rachel G. Clark, City Clerk
The foregoing resolution is hereby approved this
day of
2003.
Judith Valles, Mayor
City of San Bernardino
Approved as to
Form and legal content:
JAMES F. PENMAN,
City Attorney
By:
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CITY OF SAN BERNARDINO
AND
DIAMOND CREATIONS, INe.
CONCESSIONAIRE CONTRACTUAL AGREEMENT
THIS AGREEMENT is entered into this _ day of ,2003, by and between the City
of San Bernardino, hereinafter referred to as "City," and Diamond Creations, Inc., hereinafter
referred to as "Concessionaire." The parties hereto agree as follows:
1. CONCESSIONAIRE:
Concessionaire represents that it is capable of providing food and refreshment services and
is granted the right and privilege to operate and maintain concession services for the sale of food
and refreshments at the City of San Bernardino Soccer Complex located at 2500 E. Pacific Avenue,
San Bernardino, California. Concessionaire shall paylor all licenses, permits, and liability insurance
necessary for the operations granted herein and will require any other vendors or entities it hires or
contracts with in assisting it for the operations granted herein to provide the same for their
operations. Concessionaire, in the conduct of the sales and services contemplated hereunder, shall
abide by all laws, ordinances of the City, and the general rules and regulations of the Parks,
Recreation and Community Services Department of the City of San Bernardino relating to activities
of the type contemplated hereby.
2. CITY
City reserves the right to permit Corporate Sponsorships for tournaments and to permit
sponsors of such tournaments to provide their products for sale as part of their sponsorship
agreement in the designated tournament areas. Such Corporate Sponsorships do not come under the
purview of this Agreement.
3. PREMISES
The premises to be licensed under this Agreement include only the two (2) concession
buildings located on the San Bernardino Soccer Complex and designated areas which will be
specified by City for additional vendor locations in order to provide convenient services to the
public. City agrees to permit use of City facilities to accomplish concession services subject to the
tenns of this Agreement.
4. AGREEMENT FOR USE OF PREMISES.
Concessionaire agrees to pay the City a flat percentage of twenty-five percent (25%) of all
Gross Sales of food and refreshments sold at or from the San Bernardino Soccer Complex by
Concessionaire, or any vendor or entity hired by or contracted by Concessionaire, minus only sales
tax, with no other deductions or arrangements (in writing or verbal) of any kind being permitted
prior to payment to City, for the right and privilege to operate and maintain concession services at
the Soccer Complex. Concessionaire shall pay to City this percentage monthly, on or before the
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City Attorney
CITY OF SAN BERNARDINO
AND
DIAMOND CREATIONS, INC.
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tenth day of the month following the calendar month for which the concession sales are made.
5. GOODS FOR SALE.-
Concessionaire will provide an array of foodstuffs, soft drinks, candies, popcorn, etc., but it
shall be limited to food and refreshments (hereinafter called "goods"). If soft drinks are dispensed
by vending machines, cups, cans, or bottles shall be used. All such goods sold or kept for sale by
Concessionaire shall conform to all Federal, State, County and Municipal laws, ordinances and
regulations in every respect and shall be subject to the approval of the Director of Parks, Recreation
and Community Services ("Director") in advance of sales; specifically, but not limited to, the quality,
availability, pricing structure and staffing levels providing such goods must be approved by said
Director in advance of any such sales. The handling of all goods is subject to State, County and local
sanitation requirements.
6. BUSINESS RECORDS:
Concessionaire shall be required to maintain a method of accounting of the receipts and
disbursements in connection with the subject concessions which shall correctly and accurately reflect
the gross sales receipts and disbursements received or made by concessionaire from the operation
and concession. The method of accounting, including bank accounts, established for the subject
concession shall be separate trom the accounting system used for any other business operated by
concessionaire for recording concessionaire's personal financial affairs. All documents, books and
accounting records shall be open for inspection and re-inspection at any reasonable time during the
term of the agreement and for a reasonable period, not to exceed one year, thereafter. In addition,
City shall cause to be conducted an annual audit and re-audit of the books and business conducted
by concessionaire and observe the operation so that accuracy of the above records can be confirmed.
The cost of such audit(s) shall be paid evenly (SO/50) between the City and the Concessionaire. All
information obtained in connection with City's inspections of records or audits shall be received and
maintained in confidence and shall not be disclosed to anyone not directly connected with the official
business of the City unless such disclosure is required by law or unless the City initiates or defends
itself in litigation based in whole or in part upon said information. Before beginning operations,
Concessionaire shall contact the City Administrator's Office and the City Finance Department to
arrange for other specific accounting records that may be required.
7. CAPITAL IMPROVEMENTS AND CONCESSION AREA DESIGN:
Concessionaire will provide the City with a state of the art, full-service concession and
seating area at the San Bernardino Soccer Complex. This facility will be in the range of 1 ,500 square
feet with an adjoining covered, air-conditioned, seating area capable of seating up to 200 people for
such functions as pizza parties, etc. The anticipated date for the opening of this facility will be
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CITY OF SAN BERNARDINO
AND
DIAMOND CREATIONS, INe.
City Attorney
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CONCESSIONAIRE CONTRACTUAL AGREEMENT
March, 2003. This facility and the adjoining covered seating area shall be the property of the City.
8. HOURSIDAYS OF OPERATION'
Concessionaire shall keep the concession open during all scheduled events at the agreed upon
location, during such hours as required by the Director to adequately serve the public demand.
Services are to be provided at times and on dates and at locations as specified by Director. An
additional purpose for specifYing dates and times shall be to coordinate the activities of
Concessionaire with other activities and similar services being offered by other contractors under
sponsorship of the City of San Bernardino.
9. MAINTt'NANCE OF EOUIPMENT:
Concessionaire shall acquire, repair and maintain at its sole cost and expense such equipment
as Concessionaire needs for the conduct of the aforesaid sales and services. Concessionaire shall
pay for and obtain all licenses and permits necessary for such equipment.
10. TERMS OF AGREEMENT.
This Agreement shall commence on January 29,2003 and shall terminate at midnight on
January 28, 2008. At any time prior to such termination, by mutual wTilten consent of both parties,
this Agreement may be extended for one additional period of time not exceeding five (5) years in
length.
11. INDEPENDENT CONCESSIONAIRE:
Both parties hereto in the performance of this Agreement will be acting in an independent
capacity and not as agents, employees, partners or joint ventures of one another. Concessionaire is
not an employee of City and is not entitled to any of the rights, benefits or privileges of City
employees including, but not limited to, medical or worker's compensation insurance, retirement,
etc.
12. INSURANCE REOUIREMENTS:
(a) Concessionaire shall procure and maintain in force during the term of this Contract
and any extension thereof, as its expense, public liability insurance in companies and
through brokers approved by City, adequate to protect against liability for damage
claims through public use of or arising out of accidents occurring in or around the
premises, in a minimum amount of$I,OOO,OOO;
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CITY OF SAN BERNARDINO
AND
DIAMOND CREA nONS, INe.
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(b) Concessionaire shall procure and maintain in force during the term of this Agreement
and any extension thereof, at its expense, comprehensive general liability and
automobile liability insurance with a combined single limit of not less than One
Million Dollars ($1,000,000.00) per occurrence;
(c) Concessionaire shall procure and maintain in force during the term ofthis Agreement
and any extension thereof, at its expense, worker's compensation insurance in
accordance with the laws of the State of California for all workers employed by
Concessionaire at the San Bernardino Soccer Complex.
The City, its elective and appointive boards, commissions, officers, elected officials,
attorneys, agents, and employees shall be named as additionally insured in each of the above-
referenced insurance policies. The concessionaire's insurance policies shall be primary to any
coverage the City of San Bernardino may have in effect. Such insurance policies shall provide
coverage for City's contingent liability on such claims or losses resulting from activities of the
Concessionaire. Appropriate certificates of insurance shall be furnished to the Director of Parks,
Recreation and Community Services Department before Concessionaire can commence its
obligations under this Agreement. The certificates of insurance must contain a requirement that they
shall not be cancelled nor materially altered without] 0 days advance notice to the City of San
Bernardino. Failure to provide and maintain insurance coverage as stated herein will be cause for
immediate termination of this Agreement.
13. INDEkfNlFICATlON, DEFENSE AND HOLD HARMLESS
Concessionaire shall indemnifY, defend (if requested by City) and hold harmless the City,
its elective and appointive boards, commissions, officers, elected officials, attorneys, agents, and
employees from any liability, claims, suits or actions at law or in equity for personal injury, including
death, as well as for property damage arising from or related to Concessionaire's operations under
this Agreement, whether such operations be by Concessionaire or by anyone or more persons
directly or indirectly employed by or acting as agent for Concessionaire.
14. NON-DISCRIMINATlON.
Concessionaire agrees that during its operations under this Agreement, no person will be
excluded from participation in, denied the benefits of, or otherwise subjected to discrimination on
the basis of race, color, religion, national origin, age, sex, disability, marital status, or any other basis
forbidden by law.
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City Attorney
CITY OF SAN BERNARDINO
AND
DIAMOND CREATIONS, INC.
DRAFT
CONCESSIONAIRE CONTRACTUAL AGREEMENT
15. DEFAULT AND BREACH BY CONCESSIONAIRE.
The occurrence of anyone or more ofthe following events shall constitute a material default
and breach ofthis Agreement by the Concessionaire:
(a) The failure by Concessionaire to make any payment required to be made by
Concessionaire hereunder as and when due, where such failure shall continue for a
period of thirty (30) days after written notice thereof from City to Concessionaire;
(b) The failure by Concessionaire to observe or perform any of the covenants, conditions
or provisions of this Agreement to be observed or performed by Concessionaire,
other than described in Paragraph (a) above, where such failure shall continue for a
period of thirty (30) days after wTitten notice thereof from City to Concessionaire.
Notwithstanding the provisions of this subsection, failure to comply with the
provisions of Paragraph 12, Insurance Requirements, will be cause for immediate
termination of this Agreement;
(c) The making by Concessionaire of any general assignment for the benefit of creditors;
the filing by or against Concessionaire ofa petition to have Concessionaire adjudged
a bankrupt or of a petition for reorganization or arrangement under any law relating
to bankruptcy (unless, in the case of a petition filed against Concessionaire, it is
dismissed within thirty (30) days of such filing); the appointment of a trustee or
receiver to take possession of any of Concessionaire's assets located at the Property
or of Concessionaire's interest in this Agreement; when possession is not restored to
Concessionaire within thirty (30) days: orthe attachment, execution, orotherjudicial
seizure of substantially all of Concessionaire's assets located at the Property or of
Concessionaire's interest in this Agreement, when that seizure is not discharged
within thirty (30) days;
(d) Failure to turn over any and all documents, books and accounting records requested
by City or its selected auditor in order to complete an inspection, reinspection, or a
full and accurate audit or re-audit as set forth in Paragraph 6, where such failure shall
continue for a period of thirty (30) days after written notice thereof from City to
Concessionaire.
16. REMEDIES OF CITY.
In the event of any such material default or breach by Concessionaire, City may at any time
thereafter, upon written notice, and without limiting City in the exercise of any right or remedy
which City may have by reason of such default or breach:
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CITY OF SAN BERNARDINO
AND
DIAMOND CREATIONS, INC.
City Attorney
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(a) Terminate this Agreement and Concessionaire shall immediately vacate the
premises to City;
(b) Maintain this Agreement in effect. In such event, City shall be entitled to
enforce all of City's rights and remedies under this Agreement, including the
right to recover an monies as they become due hereunder;
(c) Pursue any other remedy now or hereafter available to City under the laws or
judicial decisions of the State of California. Unpaid installments of monetary
obligations of Concessionaire under the terms of this Agreement shall bear
interest from the date due at the maximum rate then allowed by law.
17. HEIRS AND SUCCESSORS:
This Agreement shall be binding on and shall inure to the benefit of the heirs, executors,
administrators, successors, and assigns of City and Concessionaire, but nothing in this section shall
be construed as a consent by City to any assignment of this Agreement or any interest therein by
Concessionaire. City shall have the unilateral right to assign this Agreement at any time. Such
successor/assignee shall be afforded all rights and remedies under this Agreement as would the City
if it were still a party to said Agreement. Concessionaire shall not assign this Agreement or any
interest therein, in whole or in part, without first obtaining the City's written consent thereto.
18. WAIVERS'
No waiver by City of any provision hereof shall be deemed a waiver of any other provision
hereof or of any subsequent breach by Concessionaire of the same or any other provision. City's
consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of City's
consent to or approval of any subsequent act by Concessionaire. The acceptance of money due
hereunder by City shall not be a waiver of any preceding breach by Concessionaire of any provision
hereof, other than the failure of Concessionaire to pay the money so accepted, regardless of City's
knowledge of such preceding breach at the time of acceptance of such money.
19. LEGAL ACTION AND ATTORNEYS' FEES:
If any action is brought to enforce the terms hereof or declare rights hereunder, it shall be
brought in the Superior Court of the County of San Bernardino. The prevailing party in any such
action shall be entitled to its reasonable cost and attorneys' fees to be paid by the losing party as
fixed by the court. The costs, salary and expenses of the City Attorney and members of his office
in such action on behalf of the City shall be considered as "attorneys' fees" for fhe purposes of this
paragraph.
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City Attorney
CITY OF SAN BERNARDINO
AND
DIAMOND CREATIONS, INe.
DRAFT
CONCESSIONAIRE CONTRACTUAL AGREEMENT
20. PORTABLE AND PERMANENT EOUIPMENT AND IMPROVEMENTS.
Portable equipment, furniture, supplies and materials shall remain the property of the
Concessionaire and taxed accordingly to the Concessionaire. Such portable equipment, furniture,
supplies and materials shall remain at the concession sites during the life of this Agreement and
replaced, repaired, or restored by the Concessionaire as necessary so that it remains in good operating
order and appearance, but may be removed by the Concessionaire upon termination of this
Agreement. Permanent improvements and equipment permanently attached to the real property or
structures so that it may not be removed without damage thereto shall become the property of the
City upon installation, shall not be taxable to the Concessionaire, and shall not be removed by the
Concessionaire upon termination ofthis Agreement. The facility and covered seating area described
in Paragraph 7 shall become the property of the City.
21. SOLE AND ONLY AGREElt4ENT:
This instrument constitutes the sole and only agreement between City and Concessionaire
respecting this Agreement, and correctly sets forth the obligations of City and Concessionaire to each
other as of its date. Any agreements or representations respecting this Agreement by City to
Concessionaire not expressly set forth or referenced in this instrument arc null and void.
22. SEVERABILITY
The invalidity of any provision of this Agreement as determined by a court of competent
jurisdiction shall in no way affect the variety of other provisions hereof.
23. AkIENDMENTS.
This Agreement may be modified only in writing, signed by the parties in interest at the time
of the modification.
24. NOTICES.
Any notice required or permitted to be given hereunder shall be in writing and may be given
by personal delivery or by certified mail, and if given personally or by mail, shall be deemed
sutIiciently given if addressed to City or to Concessionaire at the address as follows:
TO CITY:
TO CONCESSIONAIRE:
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City Attorney
DRAFT
CITY OF SAN BERNARDINO
AND
DIAMOND CREATIONS, INC.
CONCESSIONAIRE CONTRACTUAL AGREEMENT
25. SCHEDULE OF EOUIPMENT AND SUPPLIES:
List of proposed concession equipment and supplies (Includes cash register and vending
machines, types offood items, etc.). This is not expected to be an inventory, but an indication of the
type and quality of refreshments to be made available to the public:
ITEM
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DESCRIPTION
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City Attorney
CITY OF SAN BERNARDINO
AND
DIAMOND CREATIONS, INe.
DRAFT
CONCESSIONAIRE CONTRACTUAL AGREEMENT
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date and
year above written.
CITY OF SAN BERNARDINO
DIAMOND CREATIONS, INC.
Judith Valles, Mayor
ATTEST:
Rachel Clark, City Clerk
Dated:
Approved as to F arm and
Legal Content:
JAMES F, PENMAN,
City Attorney
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