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ORIGINAL
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
SAN BERNARDINO TO AUTHORIZE THE
EXECUTION OF A CONCESSIONAIRE
CONTRACTUAL AGREEMENT BETWEEN
THE CITY OF SAN BERNARDINO AND
DIAMOND CREATIONS, INC. FOR
CONCESSION SERVICES AT THE SAN
BERNARDINO SOCCER COMPLEX FOR THE
PERIOD OF DECEMBER 21, 2004 THROUGH
DECEMBER 20, 2006.
MICC Meeting Date: December 20, 2004
Dept: Parks, Recreation and
Community Services Dept.
Date: December 9, 2004
Synopsis of Previous Council Action:
August 18, 2003 - Mayor and Common Council approved Resolution 2003-237 to authorize the execution of a
contract between the City of San Bernardino and Diamond Creations, Inc. for Concession Services at the San
Bernardino Soccer Complex.
September 2, 2003 -Mayor and Common Council approved Resolution No. 2003-250 authorizing the execution of
Amendment No. I to the Concessionaire Contractual Agreement between the City of San Bernardino and Diamond
Creations, Inc. to extend concession services at the San Bernardino Soccer Complex through November 19, 2003.
December I, 2003 - Mayor and Common Council approved Resolution No. 2003-336 ratifying the execution of
Amendment No. 2 to the Concessionaire Contractual Agreement between the City of San Bernardino and
Diamond Creations, Inc. to extend concession services at the San Bernardino Soccer Complex through November
19,2004.
November 15, 2004-Mayor and Common Council approved Resolution No. 2004-359 authorizing the execution of
Amendment No. 3 Concessionaire Contractural Agreement between the City of San Bernardino and Diamond
Creations, Inc. to extend concession services at the San Bernardino Soccer Complex from November 19, 2004
through December 20,2004.
Recommended Motion:
Adopt Resolution.
Contact person: Lemuel P. Randolph
Phone: 384-5030
Ward: 7th Ward
Supporting data attached: Staff report reso & Contract
FUNDING REQUIREMENTS:
Amount: $136600
Source: (Acct. No.) 134-000-4861
(Acct. Description)Program/Facility Use Revenue
Finance:
C~il Notes: 3Q L/
.~J. ocdl-I
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 to authorize the
execution of a Concessionaire Contractual Agreement between the City of San Bernardino and
Diamond Creations, Inc. for concession services at the San Bernardino Soccer Complex for the
period of December 21,2004 through December 20, 2006.
Background:
The Parks, Recreation and Community Services Department (PRCSD) originally contracted with
Diamond Creations, Inc. through the bid process with the City's Purchasing Department. This
first contract (Resolution 2003-237 - 8/18/03) was from August through October 19,2004 and
Amendment No.1 (Resolution No. 2003-250 - 9/2/03) extended the contract until November 19,
2003. The contract was extended again with Amendment No.2 (Resolution No. 2003 -336 -
12/1/03) until November 19,2004. At the time, the PRCSD was still in the process of recruiting
for a long-term comprehensive management services contract; therefore, this interim step was
necessary to provide sufficient time to evaluate proposals from management services companies.
The PRCSD has now contracted with Bruce Daniels as the new contract General Manager of the
San Bernardino Soccer Complex. Mr. Daniels has been the General Manager at the soccer
complex for approximately 5 months, which has allowed him to evaluate Diamond Creations,
Inc. as the concessionaire for the soccer complex. Mr. Daniels has recommended to PRCSD
staff that we continue to use Diamond Creations, Inc. as the concessionaire for the San
Bernardino Soccer Complex with the changes that have been included in the proposed
Concessionaire Contractual Agreement (attached). These changes were requested due to
concerns expressed from the (2) largest clients of the soccer complex regarding the variety and
quality of food concessions, cleanliness of concession service areas and the city's interests in
securing a major facility sponsor. Major changes are as follows:
(1) Diamond Creations, Inc. does not have an exclusive right to sell food & beverage. City
may contract with other vendors for specialty items during some events, based on
tournament official or city preference.
(2) Agreement strengthens pest control and cleanliness expectations of contractor.
(3) Allows city to determine food/beverage distributors, which provides the city leverage for
future sponsorship opportunities.
Diamond Creations, Inc. currently operates concessions at the San Bernardino Soccer Complex,
Arrowhead Credit Union Ball Park, as well as sports facilities in Alabama, Colorado, Montana,
Oregon, Texas and Utah.
The agreement is for the period beginning December 21, 2004 ending December 20, 2006,
renewable for an optional one- (1) I-year extension by mutual consent of the City and
Concessionaire. The City will receive 25% of the l!ross profits (minus onlv sales tax) for all
sales at the San Bernardino Soccer Complex in exchange for this agreement.
Financial Impact:
Revenue from November 19, 2003 to date is $73,756.35.
to be received in revenues from this Agreement.
For FY 04-05, $136,600 Wi
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Recommendation:
Adopt Resolution.
(C~rY
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RESOLUTION NO.
RESOLUTION OF THE !\IA YOR AND COMMON COVNCIL OF THE CITY
OF SAN BERj~ARDINO TO AUTHORIZE THE EXECUTION OF A
CONCESSIONAIRE CONTRACTUAL AGREEl\IENT BETWEEN THE CITY OF SAN
BERNARDINO AND DIAMOND CREATIONS, INC. FOR CONCESSION SERVICES
A T THE SAN BERNARDINO SOCCER COi\IPLEX FOR THE PERIOD OF
DECEMBER 21, 2004 THROUGH DECEMBER 20, 2006.
BE IT RESOLVED BY THE l\IA YOR A:\'D COl\I:\'ION COUNCIL OF THE
CITY OF SAN BERl\'ARDINO AS FOLLOWS:
SECTION 1. The ~1ayor of the City of San Bemardino or her designee is hereby authorized
and directed to execute on behalf of said City a Concessionaire Contractual Agreement with
Diamond Creations. Inc. related to the concessions sales at the San Bemardino Soccer complex
for the period of December 2 I, 2004 through December 20. 2006, renewable for an option of
one (I) I-year renewal by mutual written 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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REsoLt'nON OF THE MAYOR AND COMMON COlNCIL OF THE CITY
OF SAN BERNARDINO TO AUTHORIZE THE EXECUTION OF A
CONCESSIONAIRE CONTRACTllAL AGREEMENT BETWEEN THE CITY OF SAl\
BER:\'ARDINO AND DIAMOND CREA nONS, INC. FOR CONCESSION SERVICES
A T THE SAN BERNARDINO SOCCER CO;\IPLEX FOR THE PERIOD OF
DECEMBER 21, 2004 THROUGH DECEMBER 20, 2006.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a
meeting thereof. held
day of
. 2004. by the following Yote. to wit:
on the
AYES
NAYS
ABSTAIN ABSEi'iT
Council Members:
ESTRADA
LONGVILLE
1\1 CG 1:\'1\ IS
DERRY
KELLEY
.I OI-I1\ SON
MCCA:vEvlACK
Rachel G, Clark. City Clerk
The foregoing resolution is hereby apprO\ed this
day of
20 2004,
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Judith Valles. Mayor
(';':" \,C San 8~rnardino
Appro\'ed as to
Form and legal content:
.lAtvlES F, PEN~lAN.
City Attorney
.~
CITY OF SAN BERNARDINO
ORIGINAl
CONCESSIONAIRE CONTR~CTUAL AGREEMENT
SAN BERNARDINO SOCCER COMPLEX
TERMS AND CONDITIONS
Section 1. AGREEMENT. This AGREEMENT is entered into this day of ,
- -
2004, hy the Director of Parks, Recreation and Community Services Department on
behalf of the City of San Bernardino, hereinafter referred to as "CITY" and Diamond
Concessions of CA, Inc, dba Diamond Creations, hereinafter referred to as
"CONTRACTOR".
Section 2. LOCATION OF CONCESSIONS. CONTRACTOR shall have use of the
north concession building and adjacent storage area as defined herein. Upon prior written
direction by CITY of specific dates for specific events and specific locations,
CONTRA"CTOR may operate the north concession stand buildings, and/or south
concession stand buildings, and/or satellite, and/or mobile concessions within the San
Bernardino Soccer Complex. CONTRACTOR shall maintain all improvements and
premises to be rented for CONTRACTOR's use, to the standards of repair, orderliness,
neatness, sanitation and safety acceptable of the Parks, Recreation & Community
Services Department. Proof of insurance and a Business and Registration Certificate
from the CITY shall be required prior to commencement of business operations.
Section 3. SCOPE OF CONCESSIONS. Said concession shall involve the sale and
dispensing of food and beverages as approved by the Department of Parks, Recreation &
Community Services. CITY reserves the right to select the brand and/or distributor of
food and beverage products that to the maximum extent feasible commit as sponsors of
the complex. All products from these sponsors need to be competitively priced and of
comparable quality or better to what is being utilized by CONTRACTOR. CITY AND
CONTRACTOR will make reasonable efforts when requested to utilize tournament
sponsors that do not conflict with existing complex sponsors, and make every reasonable
effort to approve the use of their product through mutual AGREEMENT.
CITY reserves the right to contract directly with other food vendors/concessionaires for
facility events not to exceed thirty (30) days per year. CITY will make reasonable efforts
to require that each tournament or event utilize the CONTRACTOR'S services to the
extent that doing so will not result in loss of the tournament or event. The first sentence
in this paragraph authorizing the CITY to contract with other food
vendors/concessionaires will be removed, as a performance bonus. after one year if
CONTRACTOR meets the performance requirements of this contract to the satisfaction
of the CITY, in its unfettered judgement, except in those instances where a specific event
requires special food concession arrangements or by mutual consent of both parties to
this AGREEMENT.
Page 1 of 11
In the event that the CITY contracts directly with another food vendor/concessionaire for
a facility event, CITY agrees that the CONTRACTOR'S food service locations and
storage areas will not be utilized by the food vendor/concessionaire. Any outside food
vendor/concessionaire that is contracted with shall be required to utilize their own self-
contained operation. This includes the North and South stand, the North and South
warehouse/storage area, ice storage containers. Power connections installed by Diamond
Creations are considered general improvements to the Complex. As such, the CITY may
exercise its prerogative by assigning these connections in specific cases to other vendors.
Diamond Creations will receive priority consideration in those instances where a conflict
may arise. The CITY will consult Diamond Creations iT' every instance where it may
affect Diamond Creations food service for a particular event day. The cost of any energy
consumption will not be borne by Diamond Creations. Any damage to power
connections caused by other vendors shall be deemed the responsibility of the CITY,
including the expense and prompt repair of these connections.
CITY shall notify CONTRACTOR at least 30 days in advance of the scheduled event
CITY may permit CONTRACTOR to sub-contract with other selected food vendors
subject to prior review and written approval of CITY. Any subcontractor arrangements
established by the CITY shall receive prior review and recommendation by
CONTRACTOR and shall to the maximum extent feasible minimize any adverse
financial impact on CONTRACTOR based on past average sales at the Complex.
Menu shall be designed to serve the particular client and shall be adjusted accordingly
with the prior approval of CITY. The intent of menu and prices is to be competitive with
other soccer venues by providing the highest quality and variety of food and promoting
nutrition, all at the lowest reasonable cost.
Section 4. Consideration. As consideration fo be paid by CONTRACTOR to CITY for
the rendering of services pursuant to this Concession AGREEMENT, CONTRACTOR
shall pay to CITY twenty-five percent (25%) of gross profits for all sales at the San
Bernardino Soccer Complex on all CONTRACTOR, including CONTRACTOR'S
subcontractor, sales.
"Gross profits for all sales at the San Bernardino Soccer Complex" is defined as "the total
dollar amount for all gross sales of food, beverages, wares and merchandise sold at or
from the San Bernardino Soccer Complex by CONTRACTOR or any vendor or entity
hired by or contracted by CONTRACTOR, minus only sales tax, with no other
deductions or arrangements (in writing or verbal) of any kind being pern1itted prior to
payment to CITY, for the right and privilege to operate and maintain concession services
at the Soccer Complex." CONTRACTOR agrees to pay this amount by the following
Wednesday for the previous weeks sales ending on the Sunday of the previous week. For
each calendar day payment is late, CONTRACTOR agrees to pay a S I 00 surcharge to
CITY. CONTRACTOR will audit their sales at the end of each calendar month. Any
shortages or overages in commission payments must be settled with the CITY within 30
days from the end of the calendar month. No late charge will be accessed for shortages
under S I ,250.
Page 2 of 11
At the time of execution of this AGREEMENT. CONTRACTOR shall deliver a
Performance Bond, Letter of Credit or security deposit in the sum of the minimum annual
rental to be paid by CONTRACTOR to CITY. The type and form of such security shall
be reviewed and approved for sufficiency by the Risk Management Division of the CITY.
Section 5. Term of AGREEMENT and Effective Dates. The term of this Concession
AGREEMENT shall be November 20, 2004 through November 19, 2006 with an option
to extend for one (I) additional year upon written AGREEMENT of the CONTRACTOR
and CITY.
Section 6. Operatinl! Expenses. CONTRACTOR shall bear responsibility for all
operational expenses of those concession area(s) assigned, including storage areas and
affected adjacent areas, including but not limited to costs of insurance, licenses, vector
and vern1in control (including but not limited to rats, mice, cockroaches, etc.), security
sef\ice personnel, if deemed necessary, and other expenses in connection with the use
and operation of those concessions under its ownership and/or management control as
specified in this AGREEMENT or by AMENDMENT.
Section 7. Storal!e. CONTRACTOR shall be permitted to store any and all property
directly associated with the terms and conditions of this AGREEMENT only in: I) one-
half of the large storage room of the North Concession Building segregated and secured
by CONTRA.CTOR at CONTRACTOR'S expense and its adjacent smaller storage room
immediately north of the large storage room as approved by CITY; and, 2) within the
enclosed area designated for food concessions in the South Concession Building. All
food commodities shall be properly secured within appropriate containers and/or a closed
area accessible exclusively to CONTRACTOR.
Section 8. Licensinl!. CONTRACTOR shall obtain a Business and Registration
Certificate from CITY prior to commencement of business operations pursuant to this
AGREEMENT. Further, CONTRACTOR shall obtain any required permits or licenses
which may be required from the CITY, and/or County of San Bernardino Health
Department pertaining to the food and beverage concession located at the San Bernardino
Soccer Complex or any other venue designated as part of this AGREEMENT, and/or any
other permits or approvals required by any governmental agency having jurisdiction
therefore. An active County Health Department permit for CONTRACTOR services
u rendered under this AGREEMENT shall be prominently displayed in a conspicuous place
at the location(s) of food service.
Section 9. Non-assil!nabilitv/Sublease. CONTRACTOR shall not sublease or otherwise
assign any rights or obligations assumed pursuant to entry into this AGREEMENT
without the prior written consent of the Parks, Recreation and Community Services
Department of the CITY. In the event such consent is ultimately sought and granted,
CONTRACTOR shall, in any case, continue to bear responsibility for compliance with
all conditions of this AGREEMENT by approved parties to whom such premises may be
sublet or otherwise assigned. .
Page 3 of 11
Section 10. Records Maintenance. CONTRACTOR shJIl maintain an inventory of any
and all equipment and submit a copy to CITY for its records upon execution of this
AGREEMENT. City of San Bernardino Parks, Recreation & Community Services
Department shall review and approve inventory.
CONTRACTOR is 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
CONTRACTOR from the operation and concession. The method of accounting,
including bank accounts, established for the subject concession shall be separate from the
accounting system used for any other business operated by CONTRACTOR for
recording CONTRACTOR personal financial affairs. All documents, books, and
accounting records shall be open for inspection and re-inspection at any reasonable time
during the tern1 of the AGREEMENT and for a reasonable period, not to exceed three
years, thereafter. CONTRACTOR understands that a full audit may take place at any
time during this AGREEMENT and at any time for a period of three years after the end
of said AGREEMENT. The cost of any audit(s) shall be paid evenly (50/50) between the
CITY and the CONTRACTOR.
Section 11. Access. CONTRACTOR and all its agents, employees and representatives
shall have reasonable access to service locations provided CONTRACTOR provides
CITY with proper notification and complies with desib'11ated access routes as determined
by CITY. CONTRACTOR is responsible for providing its own transportation on and
off-site, but may use CITY carts subject to availability and payment of a fee in
accordance with established CITY fee schedule.
Section 12. Facilities Maintenance. CONTRACTOR shall maintain all improvements
and premises to be rented for CONTRACTOR'S use, to standards of repair, orderliness,
neatness, sanitation and safety acceptable to the Parks, Recreation & Community
Services Department of CITY. Such maintenance shall include daily and continuous
cleaning and maintenance of the concession area, daily removal of trash and refuse from
the premises and areas \vithin thirty (30) feet of both concession facilities, including
satellite facilities; when the concession facilities are in operation. Cleaning shall include
the affected areas within thirty (30) feet of concession sales and storage area, with a
general washing of external counters and walls and hard surfaces at the end of each day
of the event. Pressure wat~ring of hard surfaces within this space will be completed on a
monthly basis or as necessary.
CITY shall bear responsibility for routine and deferred maintenance or repairs to CITY-
owned facilities; however, CONTRACTOR shall bear responsibility for any repair of
facilities caused by CONTRACTOR neglect. CONTRACTOR shall immediately notify
the Parks. Recreation & Community Services Department of CITY of any necessary
repairs or any unsafe condition.
Page 4 of I 1
CONTRACTOR shall not contract with any outside maintenance personnel to effect any
repairs on any property owned by CITY without prior express written consent by CITY.
CONTRACTOR shall not construct any new improvements or make any modifications to
the existing premises and improvements thereon.
CONTRACTOR, his agents and employees, shall exercise due diligence in protecting the
land and property of CITY covered by and used in connection with the Concession, and
shall pay for any damages, not deemed to be ordinary wear and tear, directly resulting
from the negligence of CONTRACTOR, including but not limited to violation of the
terms of this AGREEMENT.
Section 13. Hold Harmless. CONTRI\.CTOR hereby agrees to and shall, hold CITY, its
elected and appointed officials, attorneys, boards, officers, agents and employees,
harmless from any liability for damage or claims for damage 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 any subcontractors, or by anyone or more
persons directly or indirectly employed by, or acting as agent for, CONTRACTOR or any
subcontractor.
That 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 CONTRACTOR, of any of the
insurance policies hereinafter described herein; and 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 subcontractor, regardless of whether or not such
insurance policies shall have been determined to be applicable to any of such damages or
claims for damages.
CONTRACTOR shall indemnify, defend (if requested by CITY) and hold CITY, its
elected and appointed officials, attorneys, boards, officers, agents and employees,
harmless from any claim, demand, liability, suit, judgment or expense (including, without
limitation, reasonable costs of attorney's fees) arising out of or related to Contractor's
performance of this AGREEMENT, except that such duty to indemnify, defend and hold
harmless shall not apply where injury to person or property is caused by CITY'S willful
misconduct or sole negligence. The costs, salary and expenses of the City Attorney and
members of his office in enforcing this AGREEMENT on behalf of the CITY shall be
considered as "attorney's fees" for the purposes of this paragraph.
Section 14. Insurance: CONTRACTOR shall not commence work under this
AGREEMENT until it shall have obtained all insurance required under this section and
such insurance shall have been approved by the CITY as to form, amount and carrier, nor
shall CONTRACTOR allow any subcontractor to commence work on his subcontract
until all similar insurance required of the subcontractor shall have been so obtained and
approved.
Page 5 of 11
I. Workers' Compensation Insurance.
CONTRA.CTOR shall take out and maintain during the life of this AGREEMENT,
workers' compensation insurance for concessionaire's employees employed at the
site of improvements and if any work is sublet, CONTRACTOR shall require
subcontractor similarly to provide workers' compensation insurance for all of the
latter employees, unless such employees are covered by the protection afforded by
concessionaire. If any class of employees engaged in work under this AGREEMENT
at the site of the project is not protected under any workers" compensation insurance,
CONTRACTOR shall provide, and shall cause each subcontractor to provide,
adequate workers' compensation insurance for the protection of employees not
otherwise protected. CONTRACTOR shall indemnify CITY for any damage resulting
to it from failure of either CONTRACTOR or any subcontractor to take out or
maintain such insurance.
2. Public Liability and Property Damage Insurance.
CONTRA.CTOR shall take out and maintain during the life of this AGREEMENT
such public liability and property damage insurance as shall protect CITY, its elected
and appointed officials, attorneys, boards, officers, agents and employees, and
CONTRACTOR from any claims for damages for personal injury, including death, as
well as from claims for property damages which may arise from CONTRACTOR's or
any subcontractor's operations under this AGREEMENT, whether such operation be
by CONTRACTOR or by any subcontractor, or by anyone directly or indirectly
employed by either CONTRACTOR or any subcontractor, and the amounts of such
insurance shall be as follows:
While not restricting or limiting the foregoing, during the term of this AGREEMENT,
Contractor shall maintain in effect policies of comprehensive public, general, and
automobile liability insurance, in the amount of $1,000,000 combined single limit,
and statutory workers' compensation coverage, and shall file copies of said policies
with the CITY'S Risk Manager prior to undertaking any work under this
AGREEMENT.
The insurance policy shall include an ENDORSEMENT naming CITY, its elected
and appointed officials, attorneys, boards, officers, agents and employees, as
additional insured with respect to liability arising out of CONTRACTOR's negligent
acts, errors or omissions or willful misconduct in its performance of any work under
this AGREEMENT, and also providing that such insurance is primary insurance with
respect to CITY and that any other insurance maintained by CITY is excess
insurance. Said insurance policy ENDORSEMENT shall also include the requirement
that the insurance company provide ten (l0) days written notification to the CITY
prior to material alteration or cancellation of said policy. CONTRACTOR shall
provide to the City of San Bernardino Parks, Recreation and Community Services
Department, within the ten days of CONTRACTOR signing this AGREEMENT, a
certificate of insurance and an additional insured endorsement.
Page 6 of 11
Section 15. Operation of Facilities. CONTRACTOR shall k.:ep the facilities open and
available for business, during all of the actual hours of all scheduled event activities on
those dates when contracted to provide specific services, during dates of usage. CITY
will make reasonable efforts to permit CONTRACTOR to close locations except those
located closest to the final tournament/event activities towards the end of the event or at a
mutually agreed upon closing time. For each hour that food concessions are not open in
accordance with the above, CONTRACTOR ab'Tees to pay a $100 per hour surcharge to
CITY. CITY agrees to give monthly schedules to CONTRACTOR denoting all
activity/programs occurring at the San Bernardino Soccer Complex.
The Parks, Recreation & Community Services Department of CITY shall have
discretionary authority to establish reasonable regulations pertammg to
CONTRACTOR's operations, as may be required. Any such changes shall be
communicated to CONTRACTOR in writing a minimum of three (3) days prior to
implementation.
Section 16. Non-Discrimination. CONTRACTOR shall not discriminate against any
employee or applicant for employment based upon race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, or sexual orientation of any person, in connection with the performance of work
under this AGREEMENT. The aforesaid provisions shall include, but not be limited to,
the employment, upgrading, demotion, transfer, recommitment or recruitment,
advertising, layoff or termination, rates of payor other terms of compensation.
CONTRACTOR and his/her employees shall not discriminate against any patron or user
of the concession facilities based upon gender, race, religion, color or national origin by
refusing to furnish services or accommodation under the control of CONTRACTOR by
vIrtue of this AGREEMENT.
Section 17. Advertisinl!,. No advertising material, price lists, signs, billboards, etc. shall
be distributed or displayed without the prior written approval of the Parks, Recreation &
Community Services Department of CITY.
Section 18. CONTRACTOR Not Deemed Emplovee/Al!,ent of CITY. All
compensation to be paid employees of CONTRACTOR shall be the sole responsibility of
CONTRACTOR, and said employees shall not be deemed officers, employees or agents
of CITY.
Section 19. Termination of AGREEMENT In the event of the termination of the
contract AGREEMENT, either in whole or in part, by reason of default or breach thereof
by the vendor, any loss or damage sustained by the CITY in procuring any service which
the vendor therein agreed to supply, shall be borne and paid for by the vendor.
1. For Cause. CITY may terminate this AGREEMENT for cause in the event
CONTRACTOR fails to operate the Concession in accordance with the terms and
conditions stated herein, including, but not limited to the "reasonable regulations
as may be required" by the Parks, Recreation and Community Services
Page 7 of 11
Department to Concessionaire in writing pursuant to the "OPERATION OF
FACILITIES" section herein. In the event of such failure by CONTRACTOR to
perform, CITY shall provide written notice to CONTRACTOR of specific
deficiencies and shall provide CONTRACTOR five (5) calendar days from the
date of such notification to correct deficiencies, and to demonstrate to the
satisfaction of the Parks, Recreation & Community Services Department of CITY
that any correction will be ongoing. In the event the terms of this AGREEMENT
continue to be violated after the period within which corrections must be made, a
hearing shall be set within five (5) working days to consider termination of this
AGREEMENT for cause. Said hearing shall be conducted by the Director of the
Parks, Recreation & Community Services Department of CITY or his designee. In
the event either party is dissatisfied with the decision of the Director, the matter
may be appealed to the City Council of CITY, whose decision shall be final and
binding.
In the event CONTRACTOR files a petition for bankruptcy, makes a general
assignment for the benefit of CONTRACTOR's creditors, or if a receiver is'
appointed in the event of CONTRACTOR's insolvency, CITY may immediately
terminate this AGREEMENT.
Termination by CITY for cause as set forth herein shall not constitute an election
of remedies and CITY shall have the right to pursue any and all legal remedies
available at law or in equity. Termination by CITY for cause will not result in an
equitable adjustment of price of AGREEMENT.
2. For Convenience. The CITY for its convenience may terminate this
AGREEMENT in whole or in part upon thirty (30) calendar day's written notice
transmitted. If such ternlination is effected, an equitable adjustment in the price
provided for in this AGREEMENT shall be made. Such adjustment shall provide
payment to the CITY of 25% of gross profits for all sales at San Bernardino
Soccer Complex, not yet remitted by the CONTRACTOR to CITY. Upon receipt
oftennination notice, CONTRi\CTOR shall promptly discontinue services unless
the notice directs othenvise. CONTRACTOR shall deliver promptly to CITY and
transfer title (if necessary) all completed work, and \\iork in progress, including
drafts, documents, plans, forms, data, products, graphics, computer programs and
reports.
3. Le!!:al Action and Attornev's Fees. The venue of any action or claim brought
by any party to this AGREEMENT will be the Superior Court for the State of
California for the County of San Bernardino, San Bernardino District. Each party
hereby waives any law or rule of the court, which would allow them to request or
demand a change of venue. If any action or claim concerning this AGREEMENT
is brought by any third party and filed in another venue, the parties hereto agree to
use their best efforts to obtain a change of venue to San Bernardino County, State
of California. The prevailing party in any such action shall be entitled to its
reasonable cost and attorney's 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
Page 8 of 11
office in such action on behalf of the CITY shall be considered as "attorney's
fees'" for the purposes of this section.
Section 20. Conclusion of AGREEMENT. Upon conclusion or termination of this
AGREEMENT, CONTRACTOR shall, within thirty (30) days of such conclusion,
remove all property belonging to CONTRACTOR, and after such removal, shall restore.
the area to its original condition to the satisfaction of the Parks, Recreation & Community
Services Department Director of CITY. In the event CONTRACTOR fails to remove
such property. CITY shall have the right to remove and dispose of such property and
shall seek payment of all costs of such removal and disposal from CONTRACTOR.
Section 21. Compliance with All Applicable Laws. In all operations under this
AGREEMENT, CONTRACTOR shall comply with all applicable federal, state and local
regulations. including but not limited to non-discrimination.
Section 22. Ri2ht of Entrv. Officers, agents and employees of CITY shall at all times
have the right to enter the Concession building and surrounding grounds for any lawful
purpose. including but not limited to inspection for adherence by CONTRACTOR to
terms and conditions of this AGREEMENT.
Section 23. Dispute Resolution. In the event a dispute arises between the parties as to
any of the terms of this AGREEMENT. the matter shall be submitted for decision to the
Director of the Parks, Recreation and Community Services Department of CITY. The
decision of the Director may be appealed to the City Council of CITY. whose decision
shall be final and binding.
Section 24. Entire AGREEMENT/Subsequent Modification. This AGREEMENT is
intended to. and does. contain the entire AGREEMENT of the parties regarding the
Concession AGREEMENT created herein and is intended to, and does, supersede all
previous written and oral AGREEMENTS between the parties hereto.
This AGREEMENT may not be modified orally and any modification of this
AGREEMENT must be entered into in writing by the CITY and CONTRACTOR. under
the same formalities as are required for the execution of this AGREEMENT. The
provisions of this paragraph do not apply to second paragraph of the "OPERATION OF
FACILITIES'" section herein. whereby the "Parks. Recreation & Community Services
Department of CITY shall have discretionary authority to establish reasonable regulations
pertaining to CONTRACTOR's operations. as may be required.'"
Section 25. Assi2nment of AGREEMENT bv CITY. The CITY reserves the right to
unilaterally assign this AGREEMENT to a third party to take over the AGREEMENT as
outlined in the terms and conditions of the AGREEMENT.
Section 26. Portable Equipment. Any portable equipment. furniture, supplies and
materials provided by the CONTRACTOR shall remain the property of the
CONTRACTOR and taxed accordingly to the CONTRACTOR. Such portable
equipment. furniture, supplies and materials shall remain at the concession sites during
Page 9 of 11
the life of this AGREEMENT and replaced, repaired, or restored by the CONTRACTOR
as necessary so that it remains in good operating order and appearance, but may be
removed by the CONTRA.CTOR upon termination of this AGREEMENT. Further,
CONTRACTOR hereby acknowledges that this AGREEMENT may create a possessory
interest subject to property taxation pursuant to the California Revenue and Taxation
Code. and that CONTRACTOR is subject to payment of said taxes if so levied on such
interest.
Section 27. 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 sufficiently given if addressed to CITY or CO~TRl\CTOR at the
address as follows:
TO CITY:
Lemuel P. Randolph, Director
Parks, Recreation and Community Services Dept.
547 N. Sierra Way
San Bernardino, CA 92410-4816
TO CONTRACTOR:
Diamond Concessions of CA. Inc.
%Arrowhead Credit Union Stadium
280 South 'E' Street
San Bernardino. CA 92410
Section 28. Merchandise: CONTRACTOR will provide an array of foodstuffs, soft
drinks, candies, popcorn, etc (See Appendix "1"). If soft drinks are dispensed by vending
machines cups. cans, or bottles shall be used'. All merchandise. including but not limited
to food, drinks, beverages, confections. refreshments, etc., sold or kept for sale by
CONTRACTOR shall conform to all Federal. State and Municipal laws, ordinances and
regulation in every respect and shall be approved by the Director of Parks, Recreation
and Community Services in advance of sales. The handling of all edible merchandise is
subject to County. State and local sanitation requirements.
In Witness Whereof, the parties hereto have executed this AGREEMENT as of the date
and year above written.
CONTRACTOR:
Federal Tax ID No.
Address:
City. State. and Zip:
PagelOofl1
By:
Date:
Printed Name & Title
City of San Bernardino
By:
Date:
Printed Name & Title
Page 11 of 11
A
)11 : I
,', '-", ( ,'I' I
./ / i "t / .
, .
MEATS: HAMBURGERS $4.00
CHEESEBURGERS $4.00
JUMBO DOGS $2.50
CffiCKEN $4.00
TIll-TIP $5.75
SNACKS: CIDCKEN TENDERS &. FRIES $4.75
FRENCH FRIES $2.50
CHEESE FRIES $3.00
BREAKFAST BURRITO $5.00
BAGELS $2.00
FRUIT S1.50
DONUTS $1.00
SANDWICHES $4.50
PRETZELS $2.50
CHURROS $2.00
SUPER. NACHOS $3.75
CANDY S1.50- $2.00
ICE CREAM $2.00
SHA VFD ICE $3.00
CHIPS 51.00
COMBOS: ROT DOG COMBO $4.50
HAMBURGER COMBO $6.00
DRINKS: W ATER(240Z) $2.00
8M SODA(220Z) S2.00
LG. SODA(320Z) 52.50
JUICES(APPLE. ORANGE, GRAPE) $2.00
GATORADE(20 OZ) $2.50
HOT CHOCOLATE(20 OZ) 52.00
FRESH BREWED COFFEE $2.00
MJ:XICAN: TACOS 51.75
BURRITOS 55.00
3 TACO SPECIAL WI SODA $5.00
BURlUTO D~ PLATE $6.00
TACO DINNER PLATE 55.00
2005 SUBCONTRACfOR MENUS
SOPRIAS ROASTED CORN: ROASTED CORN: $3.00
CARAMEL APPLES WI NUTS $2.50
FUNNEL CAKES $4.00
POPCORN $2.00
FRESH 1'1uJlT SI.oo
TROPICAL ISLANDS:
BACON WRAP HOT DOG $4.00
HOT DOG WI PEPPERS. ONIONS $4.00
PINEAPPLE SMOOTIUES $5.00
FRUIT ruICES 53.00
twO GUYS PIZZA:
PIZZA
PASTRAMI SUB
MEAmALL SUB
$5.00
S5.S0
S5.S0
..
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): .oV Item # ~ 3
Vote: Ayes 1,1 Nays
Resolution #
~O()~ - 3qlj
Abstain
Absent
Change to motion to amend original documents 0 Companion Resolutions
-~
0)
Null/Void After: ~ 0 days /
Resolution # On Attachments: 0
ote on Resolution of attachment stored separately: 0
PUBLISH 0
POST 0
RECORD W/COUNTY 0
By:
Date Sent to Mayor:
Date of Mayor's Signature:
Date ofClerk/CDC Signature:
Reso. Log Updated:
Seal Impressed:
o
o
Date Memo/Letter Sent for Signature:
151 Reminder Letter Sent:
Date Returned:
2nd Reminder Letter Sent:
Not Returned: 0
Request for Council Action & Staff Report Attached: Yes No By_
Updated Prior Resolutions (Other Than Below): Yes No By_
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634): Yes No By_
Updated CDC Personnel Folders (5557): Yes No By_
Updated Traffic Folders (3985, 8234, 655, 92-389): Yes No By_
Copies Distributed to:
Animal Control 0 EDA 0
City Administrator ~ Facilities 0
City Attorney Finance 0
Code Compliance 0 Fire Department 0
Development Services 0 Human Resources 0
Others:
Information Services
Parks & Recreation
Police Department
Public Services
Water Department
~.
o
o
o
Notes:
/
/
Ready to File: V
D'I,7Iy~
!
Revised 12/18/03
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE REe! I.!' C: l"
Records and Information Management (RIM) Program
'04 DEe 29 ~,11 :30
DATE:
December 28, 2004
TO:
Lemuel P. Randolph, Parks, Recreation & Community Services Department
FROM:
Eileen Gomez, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2004-394
At the Mayor and Common Council meeting of December 20, 2004, the City of San Bernardino
adopted Resolution No. 2004-394 - Resolution authorizing the execution of a Concessionaire
Contractual Agreement between the City of San Bernardino and Diamond Creations, Inc., for
concession services at the San Bernardino Soccer Complex for the period of December 21, 2004,
through December 20, 2006.
Attached is one (1) original agreement with two (2) duplicate original agreements. Please obtain
signatures in the appropriate location and return the ORIGINAL agreement to the City Clerk's
Office as soon as possible, to my attention. Please keep the fully executed copies for your
records and for the other party.
Please be advised that the resolution and contract will be null and void if not executed
within 60 days, or by February 7, 2005.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Eileen Gomez
Senior Secretary
I hereby ackno edge receipt of the above mentioned documents.
,? ..<>.---,
Signed:
---...-",,,,-.co:... .
.--.::>>
Date: /Z- -..J y-O Y
Please sign and return