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HomeMy WebLinkAbout08-City Manager CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Charles McNeely, City Manager Subject: Resolution of the Mayor and Common Council authorizing a License Agreement by and between the City of San Bernardino and William R. Gallagher, LLC, for the placement and operation of a Food and Beverage Cart in the lobby of City Hall. Prepared by: Catherine Pritchett, Management Analyst II Dept: City Manager's Office Date April 12, 2010 Meeting Date: April 19, 20 I 0 Synopsis of Previous Council Action None Recommended Motion: I) Adopt Resolution (t4/w ~~!~ Signat e Contact Person: Catherine Pritchett, Management Analyst II Phone: 384-5122 Supporting Data Attached: Staff Report, Resolution, Agreement Ward: I FUNDING REQUIREMENTS: AMOUNT and SOURCE: Less than 1% of the City's normal electricity operating costs Finance: CouncilNotes: Agenda Item No. 8 4~{'f~ltJ STAFF REPORT Subiect: Resolution of the Mayor and Common Council authorizing a License Agreement by and between the City of San Bernardino and William R. Gallagher, LLC, for the placement and operation of a Food and Beverage Cart in the lobby of City Hall. Backl!:round: In May of 2009, staff was approached by William Gallagher ("vendor") with a proposal to place an open food and beverage cart in the lobby of City Hall to offer City Hall employees, and visitors, an assortment of hot and cold beverages and pre-rewrapped food items at reasonable price (Attachment A). The cart will be open for business, during regular City Hall operating hours, Monday - Friday with extended hours for Council Meetings. A schedule of operation dates and times will be submitted to the City Manager's Office on a monthly basis. Although the vendor has prior experience with operating carts of this nature, new, and more severe, California Retail Food Code requirements, have resulted in it taking nearly 12 months for the original cart to be modified to meet State Code standards. On March 22, the County Department of Health Services confirmed that Mr. Gallagher had met all California Retail Food Code requirements. After the cart is positioned in the lobby, a final inspection will be done and a final health permit will be authorized. The attached License Agreement, allows the vendor to utilize a designated space in the lobby for up to one year at no cost. To assist the vendor with his start up costs, the City has agreed to subsidize the electricity for the cart; the cost to the City is less than I % of the currently monthly electricity expense. After one year, the terms of the agreement will be renegotiated. Based upon annual receipts submitted by the vendor to the City, the City will receive either a) a percentage of the gross sales or b) a flat monthly rate. Staff from Facilities Management, Development Services and the City Manager's Office has been working with Mr. Gallagher to ensure that nominal structural modifications are made to the lobby to accommodate the cart. Any structural changes are being pre-approved to ensure that the integrity of the lobby is maintained. If and when the vendor does vacate the lobby, there will be no permanent remnants of the cart. Once operational, this cart will be the only one of its kind in San Bernardino County. The County intends to use the plans submitted by Mr. Gallagher as a template for future purveyors wishing to place mobile food carts in public areas within the County. The City Attorney's Office was consulted during the drafting of this Agreement. Neither the Charter nor the Municipal Code addresses the leasing or licensing of City Property. Based upon their interpretation of existing Charter provisions, a Lease Agreement would limit the control that the City has on the space leased by the vendor, and would require a bidding process and public hearing. Coffee Cart License Agreement 2010 An alternative to the Lease Agreement is to grant Mr. Gallagher a License Agreement, allowing him to utilize a pre-determined section of the lobby; while the City retains all ownership rights of the premise. The proposed License Agreement also allows the City and Mr. Gallagher to terminate the agreement at any time and expel the food and beverage cart from the property in accordance to the provisions of the agreement. Additionally, there is no language in the Charter or the Municipal Code requiring this License Agreement to be referred for Council action. However, to ensure that we do not encounter any additional setbacks with this project, staff is requesting that the Mayor and Common Council permit the City Manager to execute the proposed License Agreement with William Gallagher so Mr. Gallagher can install his cart and begin providing services to City Employees and residents. Recommendation: Adopt resolution. Coffee Cart License Agreement 2010 2 RESOLUTION NO. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING A LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND WILLIAM R. GALLAGHER, LLC, FOR THE PLACEMENT AND OPERATION OF A FOOD AND BEVERAGE CART IN THE LOBBY OF CITY HALL. WHEREAS, in the City was approached by William R. Gallagher ("Licensee") with an offer to place and operate a food and beverage cart in the lobby of City Hall; and WHEREAS, it has been determined that the plans for the food and beverage cart are in compliance with the California Retail Food Code; and WHEREAS, it has been determined that plans for the food and beverage cart have been approved by the Environmental Health and Safety Department of the County of San Bernardino;; and WHEREAS, this food and beverage cart has been built to comply with very stringent State and County Code requirements and is the only one of its kind to be approved for operation in County of San Bernardino; and WHEREAS, the placement of a food and beverage cart does not violate the terms of any current agreements with other beverage providers; and WHEREAS, City Staff has been working with Licensee to ensure that the food and beverage cart will be placed in a location that will be esthetically, and operationally, suitable for the facility; and WHEREAS, it is the finding of the Mayor and Common Council that it is in the best interest of the employees and visitors of City Hall to authorize a License Agreement for the placement and operation of a food and beverage cart in the lobby of City Hall. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City a License Agreement with William R. Gallagher, LLC, 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. This resolution is rescinded if the parties to the License Agreement fail to execute it within 60 days ofthe passage of this resolution. III 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING A LICESNSE AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND WILLIAM R. GALLAGHER, LLC, FOR THE PLACEMENT AND OPERATION OF A FOOD AND BEVERAGAE CART IN THE LOBBY OF CITY HALL. 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 on the day of ,2010, by the following vote to-wit: Council Members: AYES NAYS ABSTAIN ABSENT MARQUEZ DESJARDINS BRINKER SHORETT KELLEY JOHNSON MCCAMMACK City Clerk The foregoing resolution is hereby approved this day of 2010. Patrick J. Morris, Mayor City of San Bernardino Approved as to form: JAMES F. PENMAN, c~rney ~ B . ~~~ la~ 2 CITY OF SAN BERNARDINO LICENSE AGREEMENT FOR COFFEE/FOOD CART EXHIBIT A This AGREEMENT ("Agreement") is made and entered into as of , 2010 by and between the City of San Bernardino ("CITY"), a public body, corporate and politic, and William R. Gallagher, LLC, a California corporation ("LICENSEE"). NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: 1. AGREEMENT TO OPERATE A MOBILE COFFEE/FOOD CART A. The CITY agrees to allow LICENSEE to operate a mobile coffee/food cart upon the premises of the CITY at City Hall, 300 North "D" Street, San Bernardino, California. The location of the mobile coffee/food cart within the CITY (owned) "premises" will be determined solely by the CITY. B. Subject to the terms of this Agreement, the LICENSEE must, without cost to the CITY, install a mobile coffee/food cart and must keep the mobile coffee/food cart supplied so as to adequately provide, the CITY's employees and visitors with sufficient amounts offood and beverages of good quality, prepared and dispensed in conformity with all applicable state, federal, and other health and sanitation standards. C. Said food and beverages shall be available for purchase at reasonable prices and sizes per portion Monday thru Friday, during regular City Hall operating hours. Licensee shall provide to the City Manager's Office a monthly calendar of operating hours, stating any additional dates and times the cart may be operational to accommodate meetings or events held in the City Council Chambers. The City Manager retains the right to deny LICENSEE the right to operate upon notice to LICENSEE of such denial delivered within 48 hours prior to any scheduled date. 2. SERVICE CONNECTIONS: The CITY will furnish electrical and phone service connections for the operation of said mobile coffee/food cart at no cost, during the term of this Agreement. CITY shall not be liable for the failure, for any reason, including CITY's negligence, of the necessary electrical and phone service connections. The provision of said utilities does not alter Licensee's status or bestow any rights under this Agreement. 3. ACCOUNTING: The LICENSEE must submit, by the tenth (lOth) day of each quarter (July, October, January, May) following the execution of this Agreement, a statement covering the sales through the mobile coffee/food cart for the preceding quarter. This statement will include a detailed profit and loss statement for the specified period, hours of operation, and the quantities of products sold. Reports shall be submitted to: City of San Bernardino City Manager's Office 300 North "D" Street, 6th Floor San Bernardino, CA 92418 4. TITLE TO MOBILE COFFEE/FOOD CART: The mobile coffee/food cart pursuant to and included in the Agreement are and remain the property of the LICENSEE. The LICENSEE has the right, as the LICENSEE deems necessary, at any reasonable time to City Manager's Office - Coffee Cart Page 1 .-1----.-- _._u__ CITY OF SAN BERNARDINO LICENSE AGREEMENT FOR COFFEEIFOOD CART EXHIBIT A replace any of the equipment so installed without affecting any of the other provisions of this Agreement. Replaced equipment shall be in compliance with all State, County and City codes. Replacements may be subject to inspection at any time. 5. MAINTENANCE: The LICENSEE must maintain, service, and keep the mobile coffee/food cart in good working order at all times. The LICENSEE must keep the mobile coffee/food cart sanitary throughout, and assumes all responsibility for the mechanical operation of the mobile coffee/food cart. 6. RECORDS: The LICENSEE must, at all times, maintain accurate records of all merchandise, collections, sales and inventories necessary in connection with the proper operation of the mobile coffee/food cart installed pursuant to this Lease Agreement. The CITY is hereby authorized to inspect said records for the purpose of clarifying accounts at all reasonable times. 7. LICENSES: LICENSEE shall exercise all due diligence to ascertain and comply with all laws and regulations related to the license granted herein. All required state, county, and city or other licenses must be obtained by LICENSEE. LICENSEE Agrees to reimburse the CITY for any penalties or necessary expenses incurred due to the LICENSEE's failure to obtain any of the required licenses. 8. INSURANCE SPECIFICATIONS: The LICENSEE agrees to provide insurance set forth in accordance with the requirements herein. If the LICENSEE uses existing coverage to comply with these requirements and that coverage does not meet the specified requirements, the LICENSEE agrees to amend, supplement or endorse the existing coverage to do so. The type(s) of insurance required is determined by the scope of the license hereunder. Without in anyway affecting the indemnity herein provided and in addition thereto, the LICENSEE shall secure and maintain throughout the contract term the following types of insurance with limits as shown. A. Workers' Compensation/Employers Liability - A program of Workers' Compensation insurance or a state-approved, self-insurance program in an amount and form to meet all applicable requirements of the labor Code of the State of California, including Employer's Liability with $250,000 limits covering all persons including volunteers providing services on behalf of the LICENSEE and all risks to such persons under this Agreement. If LICENSEE has no employees, it may certify or warrant to the CITY that it does not currently have any employees or individuals who are defined as "employees" under the Labor Code and the requirement for Workers' Compensation coverage will be waived by the CITY's Risk Management Division. City Manager's Office - Coffee Cart Page 2 CITY OF SAN BERNARDINO LICENSE AGREEMENT FOR COFFEE/FOOD CART EXHIBIT A If LICENSEE is a noon-profit corporation, organized under California or Federal law, volunteers for LICENSEE are required to be covered by Workers' Compensation insurance. B. Commercial/General Liabilitv Insurance - The LICENSEE shall carry General Liability Insurance covering all operations performed by or on behalf of the LICENSEE providing coverage for bodily injury and property damage with a combined single limit of not less than one million dollars ($1,000,000), per occurrence. The policy coverage shall include: (a) Premises operations and mobile equipment. (b) Products and completed operations. (c) Broad form property damage (including completed operations). (d) Explosion, collapse and underground hazards. (e) Personal injury (f) Contractual liability. (g) $2,000,000 general aggregate limit. C. Umbrella Liability Insurance - An umbrella (over primary) or excess policy may be used to comply with limits or other primary coverage requirements. When used, the umbrella policy shall apply to bodily injury/property damage, personal injury/advertising injury and shall include a "dropdown" provision providing primary coverage for any liability not covered by the primary policy. 9. INDEMNIFICATION: The LICENSEE agrees to indemnify, defend (with counsel reasonably approved by CITY) and hold harmless the CITY and its officers, employees, agents and volunteers from any and all claims, actions, losses, damages, and/or liability arising out of the use under this license or from any cause whatsoever, including the acts, errors or omissions of any person and for any costs or expenses incurred by the CITY on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities'. The LICENSEE's indemnification obligation applies to the CITY's "active" as well as "passive" negligence but does not apply to the CITY's "sole negligence" or "willful misconduct" within the meaning of Civil Code Section 2782. Waiver of Subrogation Rights - The LICENSEE shall require the carriers of required coverage's to waive all rights of subrogation against the CITY, their officers, employees, agents, volunteers, contractors and subcontractors. All general or auto liability insurance coverage provided shall not prohibit the LICENSEE and LICENSEE's employees or agents from waiving the right of subrogation prior to a loss or claim. The LICENSEE hereby waives all rights of subrogation against the CITY. City Manager's Office ~ Coffee Cart Page 3 CITY OF SAN BERNARDINO LICENSE AGREEMENT FOR COFFEEIFOOD CART EXHIBIT A Policies Primary and Non-Contributorv - All policies required herein are to be primary and non-contributory with any insurance or self-insurance programs carried or administered by the CITY. Severabilitv of Interests - The LICENSEE agrees to ensure that coverage provided to meet these requirements is applicable separately to each insured and there will be no cross liability exclusions that preclude coverage for suits between the LICENSEE and the CITY or between the CITY and any other insured or additional insured under the policy. Proof of Coverage - The LICENSEE shall furnish Certificates of Insurance to the CITY Manager's Office administering the license evidencing the insurance coverage, including endorsements, as required, prior to the commencement of performance of services hereunder, said certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to CITY Manager's Office, and LICENSEE shall maintain such insurance from the time LICENSEE commences use under the license hereunder until the end of the term of the license. Within fifteen (15) days of the commencement of this contract, the LICENSEE shall furnish a copy of the Declaration page for all applicable policies and will provide complete certified copies of the policies and endorsements immediately upon request. Acceptabilitv of Insurance Carrier - Unless otherwise approved by the CITY Risk Management Division, insurance shall be written by insurers authorized to do business in the State of California. Insurance Review - Insurance requirements are subject to periodic review by the CITY. The City Manager's Office, or designee, is authorized, but not required, to reduce, waive or suspend any insurance requirements whenever the City Manager's Office determines that any of the required insurance is not available, is unreasonably priced, or is not needed to protect the interest of the CITY. In addition, the City Manager's Office, or designee is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the CITY, inflation, or any other item reasonably related to the CITY's risk. Any change which requires additional types of insurance coverage or higher coverage limits must be made by amendment to this license. LICENSEE agrees to execute any such amendment within thirty (30) days of receipt. Any failure, actual or alleged, on the part of the CITY'S Risk Management Division or CITY to monitor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of the CITY'S Risk Management Division or the CITY. Failure to Procure Insurance - all insurance required must be maintained in force at all times by LICENSEE. Failure to maintain said insurance, due to expiration, cancellation, etc., shall be cause for the CITY to give notice to immediately suspend all LICENSEE's business activities. Failure to reinstate said insurance within the (10) days of notice to do so shall be City Manager's Office - Coffee Cart Page 4 CITY OF SAN BERNARDINO LICENSE AGREEMENT FOR COFFEEIFOOD CART EXHIBIT A cause for termination and for forfeiture of this agreement, and/or CITY, at its discretion, may procure or renew such insurance and pay any and all premiums in connection therewith, and all monies so paid by CITY shall be repaid by LICENSEE to CITY upon demand but only for the pro rata period of non-compliance. CITY shall have no liability for any premiums charged for such coverage(s). The inclusion of CITY as additional named insured is not intended to and shall not make a partner or joint venture with LICENSEE in LICENSEE's operations. The LICENSEE agrees to require all parties or subcontractors, or others it hires or contracts with related to the use of this license and/or LICENSEE's equipment installation, to provide insurance covering such use with the basic requirements and naming the CITY as additional insured. LICENSEE agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided as required herein. 10. TERM OF LICENSE: This License Agreement will become effective on _' 2010, and shall continue thereafter for a period of one year, subject to earlier termination at the will of the City Manager. It may be terminated without cause, by either party hereto giving thirty (30) days written notice to the other party at the address set forth in Paragraph 12, NOTICES, at the end of which, all of LICENSEE's equipment shall have been removed from the premises. II. SALES AND EXCISE TAXES: The LICENSEE must pay all sales and excise taxes associated with the sales from the concession operated under this Agreement. The cost of said sales or excise taxes may be stated in the statements submitted to the CITY under Paragraph 4, ACCOUNTING. The LICENSEE must reimburse CITY for any penalties or costs necessarily resulting from the LICENSEE's failure to promptly pay said taxes. 12. NOTICES: Any notice, demand, request consent, approval, or communication that either party desires or is required to give to the other party or any other person must be in writing and either served personally or sent prepaid, first-class mail. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other party must be addressed to the other party at the address set forth below. Either party may change its address by notifying the other party of the change of address. Notice will be deemed communicated two (2) CITY working days from the time of mailing if mailed as provided in this paragraph. LICENSEE'S ADDRESS: William R. Gallagher, LLC William R. Gallagher P.O. Box 7410 2356 Reservoir Drive Norco, CA 92860 (909) 289-3728 City Manager's Office - Coffee Cart Page 5 CITY OF SAN BERNARDINO LICENSE AGREEMENT FOR COFFEE/FOOD CART EXHIBIT A CITY'S ADDRESS: City of San Bernardino City Managers Office 300 North "D" Street, 6th Floor San Bernardino, CA 92418 (909) 384-5122 14. ASSIGNMENT: This Agreement is not assignable by the LICENSEE. IS. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties. No modifications or waivers will be binding unless made in writing and signed by both parties. 16. ATTORNEYS' FEES AND COSTS: If any legal action is instituted to enforce or declare any party's rights hereunder, each party including the prevailing party, must bear its own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees directly arising from any third party legal action against a party hereto and payable under Paragraph 9, INDEMNIFICATION. 17. VENUE: The parties acknowledge and agree that this Agreement was entered into and intended to be performed in whole or substantial part in San Bernardino County, California. The parties agree that the venue for any action or claim brought by any party to this Agreement will be the San Bernardino District of San Bernardino County. Each party hereby waives any law or rule of court that would allow them to request or demand a change of venue. If any third party brings any action or claim concerning this Agreement, the parties hereto agree to use their best efforts to obtain a change of venue to the San Bernardino District of San Bernardino of San Bernardino County. 18. MATERIAL MISREPRESENTATIONS: If during the course of the administration of this Agreement, the CITY determines that the LICENSEE has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the CITY, this Agreement shall be immediately terminated. If this License Agreement is terminated according to this provision, the CITY is entitled to pursue any available legal remedies. 19. AUTHORIZED SIGNATORS: Both parties to this Agreement represent that the signators executing this document are fully authorized to enter into this Agreement. City Manager's Office - Coffee Cart Page 6 CITY OF SAN BERNARDINO LICENSE AGREEMENT FOR COFFEEIFOOD CART IN WITNESS WHEREOF, the parties have caused this License Agreement to be executed at San Bernardino, California. CITY OF SAN BERNARDINO LICENSEE Charles McNeely, CITY Manager William R. Gallagher, Owner Dated: Dated: Approved as to Legal Form: ,,~,~k"M"'&\~ Counsel Dated: H. l'S:" . \ 0 City Manager's Office - Coffee Cart Page 7