HomeMy WebLinkAbout1996-01-23; City Council; Resolution 96-351
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0 RESOLUTIONNO. 96 - 35 e
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING THE AWARD OF THE
CONCESSION PERMIT FOR OPERATION OF A COFFEE CART
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
Carlsbad, California, as follows:
1. That the proposal to grant a concession permit for the operation of 5
cart in the Carlsbad City Library from Espresso Vienna, 7825 Fay Avenue, #200, L
CA is hereby accepted.
2. That the Concession Permit between the City of Carlsbad and E:
Vienna, 7825 Fay Avenue, #200, La Jolla, CA for the six month period beginning Ft
1 , 1996 through July 31 , 1996, be executed by the City Manager and may be rene
the City Manager for two (2) one (1) year periods, a copy of which is attac
Attachment "AI and made part hereof, is hereby approved.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of 1
, 1996, by the fc Council of the City of Carlsbad on the 23rd day of
vote, to wit:
JANUARY
AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, Hall
NOES: None
ABSENT: None
ATTEST:
P &-iBL
ALETHA L. RAUTENKRANZ, Cigerk
(SEAL)
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ATTACHMENT ’
CONCESSION PERMIT
THE CITY OF CARLSBAD
LIBRARY COFFEE CART
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CONCESSION PERMIT
Index
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1 1 . LOCATIONSAND USE ...........................................
A . CONCESSION LOCATION ................................... i
B . PERMITTED USE .......................................... 1
II . TERM OF PERMIT .............................................. 1
A . COMMENCEMENT AND TERMINATION ........................ 1
B . RENEWAL ............................................... 1
Ill . CONSIDERATION ............................................... 1
A . TIME AND PLACE OF PAYMENT ............................. 1 B . CONCESSION FEES ....................................... 2
C . DELINQUENT PAYMENT COMPENSATION ..................... 2
D . GROSS INCOME .......................................... 2
E . FINANCE RECORDS MAINTENANCE ......................... 2
IV . GENERAL PROVISIONS ......................................... 3
A . TIME IS OF THE ESSENCE .................................. 3
B . SUBLETTING AND ASSIGNMENT ............................ 3
C . ENCUMBRANCE .......................................... 4
D . DEFAULTS AND REMEDIES ................................. 4
E . WAIVER ................................................. 5
F . INDEMNITY ............................................... 5
G . INSURANCE .............................................. 6
H . CITY BUSINESS LICENSE ................................... 6
1 . IMPROVEMENTS AND ALTERATIONS ........................ 6
J . SIGNS ................................................... 6
K . TAXES AND COMPLIANCE WITH LAW ........................ 6
M . L . NONDISCRIMINATION ...................................... 7
ENTIRE UNDERSTANDING .................................. 7
N . CITY APPROVAL AND CONSENT ............................ 7
0 . ADMINISTRATION AND NOTICES ............................ 7
V . SPECIAL PROVISIONS ........................................... 8
A . SCHEDULE OF OPERATING DAYS, DATES AND HOURS ......... 8
B . RESTRICTED EVENTS ..................................... 8
C . EXCLUSIVENESS OF PERMIT AND UNAUTHORIZED VENDING .... 8
D . SALES .................................................. 8 E . MAINTENANCE OF CONCESSION AREAS ..................... 8
F . STANDARD OF EMPLOYEES ................................ 8
G . COMPETITIVE BUSINESS ................................... 9
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CONCESSION PERMIT
This concession permit is executed by and between the City of Carlsbad, a municipal
corporation, hereinafter called 'City" and ESPRESSO VIENNA , hereinafter
called "Contractor."
I. LOCATIONS AND USE
A. CONCESSION LOCATION. Contractor shall operate in the atrium at the City
Library, 1250 Carlsbad Village Drive, Carlsbad, California.
Upon mutual consent of Contractor and Facilities Superintendent of the City,
new concession areas may be added at any time, and an increase shall be
made in the amount of the minimum annual concession fee specified herein.
All operations shall be conducted by Contractor within the City Library, 1250
Carlsbad Village Drive, Carlsbad, California. Precise locations at each
concession area shall be established by Contractor and the Facilities
Super intendent.
PERNIITTED USE. This permit is granted to Contractor for the sole purpose
of allowing Contractor to operate a coffee cart concession to serve the
general public at concession areas per the proposal dated October 31,1995
and modifications from discussions on December 13, 1995 on file in the
Purch.asing Office and on the terms and conditions set forth herein.
B.
II. TERM OF PEfRMlT
A. COMMENCEMENT AND TERMINATION. The term of this permit shall be a
period of six months commencing on the first day of February, 1996 and
expiring on July 31, 1996. This permit may be terminated at any time by
either party upon sixty (60) days written notice to the other party. It is
mutually agreed that the City shall not be obligated for any loss, financial or
otherwise, which may be incurred by Contractor as a result of termination of
this permit, and, further, that Contractor expressly waives any claim for
expense or loss which Contractor might incur as a result of termination of this
permit
RENEWAL. Upon successful performance during the initial six month term,
this permit may be extended by the City Manager for two (2) additional one
(1) year option periods.
B.
111. CONSIDERATION
A. TIME AND PLACE OF PAYMENT All concession fees required herein must
be macle payable to City of Carlsbad and mailed or delivered to the Finance
Department at 1200 Carlsbad Village Drive, Carlsbad CA 92008.
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The place of payment may be changed at any time by the City upon thirty
(30) days written notice to Contractor. Mailed payments of concession fees
shall be deemed paid upon the date such payment is postmarked by the
postal authorities. If postmarks are illegible, the payment shall be deemed
paid upon actual receipt by the City's Finance Department. Contractor
assunies all risk of loss and responsibility for late payment charges if
payments are made by mail.
CONCESSION FEES. Beginning on the effective date of this permit,
Contractor shall pay to the City, monthly in arrears, on or before the last day
of the calendar month following the calendar month in which the revenue
subject to concession fees was earned, a sum of money equal to $25 per day
for each day of operation or eight percent (8%) of all gross income,
whichever is greater.
DELINQUENT PAYMENT COMPENSATION. In the event Contractor fails to
pay any applicable concession fee when due, then Contractor shall pay to the
City, in addition to the delinquent concession fee, a sum of money equivalent
to five percent (5%) of said delinquent concession fee. In the event said
delinqiJent concession fee is still unpaid after fifteen (15) days of becoming
delinquent, then Contractor shall pay to the City, in addition to the delinquent
concession fee, a sum equivalent to an additional five percent (5%) of said
delinquent concession fee [being a total of ten percent (IO%).] Such late
payment charges shall be deemed compensation to the City for loss resulting
from such delinquency, including costs to the City of servicing the delinquent
account. The City Manager may for good cause waive any such delinquency
compensation charge upon written application of Contractor. Notwithstanding
the foregoing, failure of Contractor to pay any concession fee when due shall
constitute a default which, at the option of the City Manager, shall be grounds
for termination of this permit by the City under the provisions of Section 1V.D
of the concession permit.
GROSS INCOME "Gross Income" , as used in the permit, shall include all
income derived by Contractor from its operations pursuant to this permit
whether received or to become due. Provided, however, gross income shall
not include federal, state, or municipal taxes collected from the consumer
(regardless of whether the amount thereof is stated to the consumer as a
separate charge) and paid periodically by Contractor to a governmental
agency accompanied by a tax return or statement as required by law.
Possessory interest taxes or other property taxes shall not be deducted by
Contractor in computing gross income. The amount of such taxes shall be
clearly shown on the books and records of Contractor.
FINANCE RECORDS MAINTENANCE Contractor shall keep true, accurate
and complete records in a manner and form satisfactory to the City from
which the City can at all reasonable times determine the nature and amounts
of income subject to concession fees from the operation of the concession
B.
C.
D.
E.
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areas. Such records shall show all transactions relative to the conduct of the opera tion, and such transactions shall be supported by documents of originai
entry such as sales slips and cash register tapes. All sales shall be recorded
by means of a cash register system which automatically issues a customer's
receipt or certifies the amount recorded on a sales slip. Said cash register
shall have a lock-in total which is constantly accumulating and which cannot
be reset, and, at the option of the City, a constantly accumulating lock-in
printed transaction counter which cannot be reset and/or a printed detailed
audit tape located within the register. Complete beginning and ending cash
register readings shall be made a matter of daily record, along with purchase
invoices and tickets issued, or other documentation satisfactory to the City.
If electricity is not available at the concession areas to operate a cash
register system, an alternate method, such as pre-serially numbered rental
contracts, may be used if first approved by the City Manager. Together with
each concession fee payment, Contractor shall render to the City a detailed
statement as to the source of the receipts showing all gross income of the
preceding calendar month, together with the amount payable to the City as
hereirlabove provided, and shall accompany the statement with a remittance
of the amount so shown to be due the City.
The City may audit Contractor's business records at any reasonable time.
In the event said audit discloses that the percentage concession fees paid for
the audited period is less than the amount of concession fees required for
said period, Contractor shall pay to the City the amount of such deficiency
within thirty (30) days of written notice thereof by the City along with a 10%
late payment charge on the amount of the deficiency. In the event such audit
discloses that the percentage concession fee paid for the audited period is
greater than the amount of concession fees required for said period, then the
amount of overpayment shall be credited against equal amounts of monthly
concession fees due the City during the succeeding payments until the
overpayment is fully credited. Any such overpayment occurring in the first
permit year shall be refunded by the City within thirty (30) days of said audit
find i n (3 s.
IV. GENERAL PROVISIONS
A. TIME IS OF THE ESSENCE. Time is of the essence in all of the terms,
covenants and conditions of this permit, and, except as otherwise provided
herein, all of the terms, covenants, and conditions of this permit shall apply
to, benefit, and bind the successors and assigns of the respective parties,
jointly and individually.
SUBLETTING AND ASSIGNMENT. Subletting is not allowed under this
permit. When in the opinion of the City Manager and subject to the approval
of the City Council whenever required by the City Manager, it is deemed
consistent with the best interests of the City, Contractor may assign this
permit or any interest therein to an assignee who has, in the opinion of the
B.
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City Manager, the financial capability and overall competence to successfully
operate the vending business. Consent to assignment of this permit shall be
within the sole discretion of the City Manager or City Council. This permit and
any interest therein shall not be assignable by operation of law without the
written consent of the City Manager. Assignment of this permit by Contractor
for a consideration will not be allowed.
Approval of any assignment shall be conditioned upon the assignee agreeing
in writing that it will assume the rights and obligations thereby assigned and
that it will keep and perform all covenants, conditions, and provisions of this
permii which are applicable to the rights acquired.
ENCUMBRANCE. Contractor shall not encumber this permit by deed of trust,
mortgage, chattel mortgage, or other security instrument during the term
hereoil.
C.
D. DEFAULTS AND REMEDIES
a. Default by Contractor. In the event that:
(1) Contractor shall default in the performance or fulfillment of any
covenant or condition required by this permit to be performed
or fulfilled by Contractor; or
Contractor shall voluntarily file or have involuntarily filed
against it any petition under any bankruptcy or insolvency act
or law; or
Contractor shall be adjudicated a bankrupt; or
Contractor shall make a general assignment for the benefit of
creditors;
(2)
(3)
(4)
then the City may, at its option, without further notice or demand upon
Contractor or upon any person claiming rights through Contractor,
immediately terminate this permit and all rights of Contractor and of
all persons claiming rights through Contractor to the concession areas or to possession thereof, and City may thereupon enter and take
possession of said concession areas and expel Contractor and all
persons so claiming rights thereto. Provided, however, that in the
event of any default described in Part a.(l) of this section the City may
allow Contractor to cure said default within thirty (30) days following
written notice thereof from the City or commence to cure such default
within thirty (30) days of notice and diligently pursue such cure to
completion. In any event, either party may terminate this permit
without cause by giving sixty (60) days written notice of intent to
terminate to the other party.
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b. Abandonment by Contractor. Even though Contractor has breached
the permit and abandoned the concession areas, this permit shall
continue in effect for so long as the City does not terminate this
permit, and City may enforce all its rights and remedies hereunder,
including but not limited to the right to recover the concession fee as
it becomes due, plus damages. For purposes of this section, the
following do not constitute a termination of Contractor's right to
possession or operation:
(1) Acts by City of maintenance, preservation, or efforts to
negotiate a new permit.
The appointment of a receiver upon initiative of City to protect
City's interest under this permit. (2)
c. Damages. Damages which City may recover in the event of default
under this permit include the reasonably ascertainable value of the
unpaid concession fees for the balance of the term in this permit
minus any damages mitigated by the City in negotiating a new permit.
The remedies provided by this section are not exclusive and shall be
cumulative to all other rights and remedies possessed by City, and
nothing contained herein shall be construed so as to defeat any other
rights or remedies to which City may be entitled.
E. WAIVER. The waiver by City of any breach by Contractor of any term,
covenant, or condition of this permit shall not be deemed to be a waiver of
any s'ubsequent breach of such term, covenant, or condition or any
subsequent breach of any other term, covenant, or condition herein. The
acceptance of a concession fee hereunder by the City shall not be deemed
to be a waiver of any preceding breach by Contractor of any term, covenant,
or condition of this permit, regardless of City's knowledge of such preceding
breach at the time of acceptance of such concession fee. Failure on the part
of the City to require or exact full and complete compliance with any of the
covenants, conditions or agreements of this permit shall not be construed as
in any manner changing the terms hereof and shall not prevent the City from
enforcing any provision hereof.
INDEPJlNITY. Contractor agrees that City, its agents, officers and employees
shall riot be liable for any claims, liabilities, penalties, fines or for any damage
to the goods, properties or effects of Contractor, its representatives, agents,
employees, guests, licensees, invitees, patrons, clientele or of any other
persons, whether alleged to have been caused by or resulting from any acts or omilssion of Contractor or its agents in or about the concession areas, or
any act or omission of any person or from any defect in any part of the
concession areas, or from any other cause or reason whatsoever.
Contractor agrees to indemnify against and hold the City and its authorized
F.
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agents, officers, and employees free and harmless from any of the foregoing
alleged liabilities and any costs, expenses and attorneys fees incurred by City
on account of any claim or claims therefor. Contractor shall at its own
expense upon written request by the City defend any such suit or action
brought against the City, its officers, agents or employees.
INSURANCE Contractor shall furnish policies of comprehensive general
liability insurance and a combined policy of workers compensation and
employers liability in an insurable amount of not less than one million dollars
($1,000,000) per occurrence for each policy, unless a lower amount is
approved by the City Attorney or the City Manager. Except as to workers
compensation, said policies shall name the City of Carlsbad as a co-insured
or additional insured. Insurance is to be placed with insurers that have (1) a
rating in the most recent Best's Key Rating guide of at least A-:V, and (2) are
admitted and authorized to transact the business of insurance in the State of
California by the Insurance Commissioner. Proof of all such insurance shall
be given by filing certificates of insurance with the Purchasing Officer prior
to signing of the contract by the City.
CITY BUSINESS LICENSE The contractor is required to have and maintain
a valid City of Carlsbad Business License for the duration of the concession
permit.
G.
H.
I. IMPROVEMENTS AND ALTERATIONS. Contractor shall make no
improvements or alterations to the concession areas or other City-owned
property without prior written approval of the Facilities Superintendent.
SIGNS. No signs shall be installed at any concession area without prior
written approval of the Facilities Superintendent, which approval may be
revoked at any time without liability to the City.
TAXES AND COMPLIANCE WITH LAW. Contractor agrees, at its sole cost
and expense, to comply with and secure compliance with all the requirements
now in force or which may hereafter be in force of all municipal, county, state
and federal authorities pertaining to said concession areas or the operations
conducted thereon, and to pay before delinquency all taxes, assessments,
and fees assessed or levied upon Contractor's inventory, personal property,
or interest in this permit. Contractor recognizes and understands that this
permit may create a possessory interest subject to property taxation and that
Contractor may be subject to the payment of property taxes levied on such
interest. Contractor further agrees that such tax payment shall not reduce
any concession fees due the City hereunder and that any such tax shall be
paid by Contractor before becoming delinquent. The judgment of any court
of competent jurisdiction or the admission of Contractor in any action or
proceeding against it, whether City be a party thereto or not, that Contractor
has violated any such ordinance or statute in the use of the concession areas
shall be conclusive of that fact as between City and Contractor.
J.
K.
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L. NONDISCRIMINATION. Contractor agrees not to discriminate in any manner
against any person or persons on account of race, marital status, sex,
religious creed, color, ancestry, or national origin in Contractor's use of the
concession areas, including but not limited to the providing of goods,
services, facilities, privileges, advantages and accommodations, and the
obtaining and holding of employment.
ENTIRE UNDERSTANDING. This permit contains the entire understanding
of the parties. Contractor, by signing this permit, agrees that there is no other
written or oral understanding between the parties with respect to the
concession areas. Each party has relied on its own examination of the
concession areas, advice from its own attorneys, and the warranties,
representations, and covenants of the permit itself. Each of the parties in this
permit agrees that no other party, agent, or attorney of any other party has
made any promise, representation, or warranty whatsoever which is not
contained in this permit.
The failure or refusal of any party to read the permit or other documents,
inspect the concession areas, and obtain legal or other advice relevant to this
transaction constitutes a waiver of any objection, contention, or claim that
might have been based on these actions. No modification, amendment, or
alteration of this permit will be valid unless it is in writing and signed by all
parties.
CITY APPROVAL AND CONSENT. The approval or consent of the City,
wherever required in this permit, shall mean the approval or consent of the
City Manager unless otherwise specified, without need for further resolution
by the City Council.
ADMINISTRATION AND NOTICES. Control and administration of this permit
is under the jurisdiction of the Facilities Superintendent as to City's interest
herein, and any communication relative to the terms or conditions or any
changes thereto or any notice or notices provided for by this permit or by law
to be given City may be served personally or by certified letter deposited in
the United States mail, postage prepaid, and addressed to the Facilities
Superintendent, 405 Oak Avenue, Carlsbad, California 92008. Any notice or
notices provided for by this permit or by law to be given Contractor may be
served personally or by certified letter deposited in the United States mail,
postage prepaid and addressed to Contractor at 7825 FAY AVENUE,
SUITE 200. LA JOLLA. CA 92037 . Either party may by written notice
designate a different address to which notices shall be sent.
M.
N.
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V. SPECIAL PROVISIONS
A. SCHEDULE OF OPERATING DAYS, DATES AND HOURS. Prior to
commencement of operations and on or before the first day of each year
thereafter, Contractor shall submit a schedule of days, dates and hours of
operation. The minimum acceptable schedule will consist of five days per
week, excluding holidays and inclement weather, and the minimum hours of
operation shall be 9:00 am to 500 pm Monday through Thursday and 9:00
am to 4:OO pm on Fridays and Saturdays if applicable. If extended hours are
desired, operation must cease one hour before library closing to allow
sufficient time for clean-up, etc. The Facilities Superintendent shall have the
right to approve or disapprove the proposed schedule. Contractor shall not
make any changes to said schedule without prior written approval of the
Facilities Superintendent.
RESTRICTED EVENTS. Unless otherwise authorized by the Facilities
Superintendent, Contractor shall have no rights within its concession area
during the days in which special events are scheduled by the City in said
area. City shall give Contractor advance written notice of any such special
events. All concession fees due shall be waived on a pro rata basis for the
time Contractor is not in operation due to such special events.
B.
C. EXCLUSIVENESS OF PERMIT AND UNAUTHORIZED VENDING.
Excepting special events described in Section V.B. hereof, City shall issue
no permits to other contractors during the term hereof to operate a coffee cart
concession at the concession area permitted hereunder. However, City, by
granting this permit to Contractor, makes no warranty that the permit area
shall be free of unauthorized vending or that any specific level of police
enforcement against such activities shall be maintained.
SALES. Contractor shall sell food and beverage at reasonable rates. Such
rates shall be submitted to Facilities Superintendent for prior approval.
MAINTENANCE OF CONCESSION AREAS. Contractor agrees not to
commit or allow patrons to commit any injury to City property or any public
or private nuisance; to keep the spaces occupied by the mobile vending units
clean and clear of refuse and obstructions; and to dispose of all garbage,
trash and rubbish in or about said spaces to the satisfaction of City at
Contractor's sole cost. Said spaces shall be cleaned up nightly by Contractor
or more often as required by the City.
STANDARD OF EMPLOYEES. Contractor and its employees shall at all
times conduct themselves and the operations on the concession areas in a
creditable manner. Contractor shall thoroughly train its employees in their
duties and regularly monitor them to insure that they present a neat
appearance to the public, behave in a courteous manner, and do not disturb
the quiet enjoyment of library users.
D.
E.
F.
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G. COMPETITIVE BUSINESS. Contractor will not operate or have an ownership
interest in any similar business within 200 yards of any concession area
covered by this permit which competes with the operation authorized
hereunder.
IN WITNESS WHEREOF, this permit is executed by City, acting by and through its City
Manager, and by Contractor, acting by and through its lawfully authorized officers.
CONTRACTOR CITY OF CARLSBAD
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APPROVED as to form and legality this
2 F~day of a- , 1996.
By: L 62. &.
City Attorney
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