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HomeMy WebLinkAbout1996-01-23; City Council; 13489; AWARD OF CONCESSION PERMIT FOR OPERATION OF A COFFEE CART.i Cw OF CARLSBAD - AGEWA BILL 6-/ ,*7 /3Y&Y i;i AB #*y c ~"- TITLE: AWARD OF A CONCESSION PERMIT DEPl MTG. ku- 96 CITY FOR OPERATION OF A COFFEE CART IDEPT. PCH I I CITY I I I RECOMMENDED ACTION: Staff recommends Council adopt Resolution No. 96 -3 5 , awarding the cc period February 1 , 1996 through July 31, 1996, with the option to renew for two (2) one (1 ) year periods. ITEM EXPLANATION permif for Operation of a e~ff@ cart in the Carlsbad Gity Library to Es~T~sSQ Viep E 9 At the 1993 League of California Cities Conference, the Library Director was introdu concept of operating a coffee cart in a public library. A successful operation established in the San Leandro Public Library that provided a service for the F generated revenue for the library. After gathering information and discussing the co other libraries, staff decided to pursue the idea. On October 3, 1995, City Council ; staff to proceed with plans to establish a coffee cart in the main library. In accordance with Section 3.28.140 of the Municipal Code, Requests for Prop published and sent to 20 vendors. Five proposals were submitted on November 1 November 14, 1995, staff from the Library, Purchasing and Facilities Maintenance and rated the proposals in six areas: 1) method of operation, 2) physical unit and E 3) types and prices for beverages and food, 4) experience, 5) hours of operation, 6) benefits. Each area was weighted in accordance to its importance to the City. The proposals from Espresso Vienna and Lee Collver-Richards received tl evaluations and were considered of equally high merit, necessitating a second eva December 13, 1995 staff met with representatives from Espresso Vienna and LC Richards. The interviews included questions regarding knowledge of pertinenf regulations for business operations, procedures for staffing, experience, and detail: the food and beverages to be served. Based on the information from these inter recommends awarding the contract to Espresso Vienna, 7825 Fay Avenue, Suite 20 CA FISCAL IMPACT ItlElli. a a Based on the requirements of the Concession Permit, the coffee cart will generate of $3000 in the first six month contract period. Funds from the concession will be del the general fund. The City will provide electricity and water for the cart at a negl Z 2 1. Resolution No. 96 -35 f EXHIBITS G 8 8 z 3 a RESOLUTION NO. 96105 1 2 3 4 A RESOLUTION OF THE CITY COUNCIL OF THE CI; CONCESSION PERMIT FOR OPERATION OF A COFFEE C CARLSBAD, CALIFORNIA, APPROVING THE AWARD 0, NOW, THEREFORE, BE IT RESOLVED by the City Council 5 6 Carlsbad, California, as follows: 7 8 1. That the proposal to grant a concession permit for the operati cart in the Carlsbad City Library from Espresso Vienna, 7825 Fay Avenue, # CA is hereby accepted. 0 10 2. That the Concession Permit between the City of Carlsbad i 11 Vienna, 7825 Fay Avenue, #200, La Jolla, CA for the six month period begin1 12 1,1996 through July 31,1996, be executed by the City Manager and may b 13 the City Manager for two (2) one (1) year periods, a copy of which is 14 Attachment "A' and made part hereof, is hereby approved. 15 II PASSED, APPROVED AND ADOPTED at a Regular Meetil 16 17 18 19 Council of the City of Carlsbad on the 23rd day of JANUARY , 1996, by vote, to wit: AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, HZ 20 23. 22 23 NOES: None ABSENT: None 24 j/ ATTEST: 25 .. - 26 27 &R& c__ ALETHA L. RAUTENKRANZ, City Clerk '' (SEAL) e 0 I ATTACHMEN1 CONCESSION PERMIT THE CITY OF CARLSBAD LIBRARY COFFEE CART CONCESSION PERMIT 0 Index 1. LOCATIONS AND USE .......................................... A. CONCESSION LOCATION.. ................................ B. PERMITTED USE ......................................... II. TERM OF PERMIT ............................................. A. COMMENCEMENT AND TERMINATION ....................... B. RENEWAL .............................................. 111. CONSIDERATION .............................................. A. TIME AND PLACE OF PAYMENT ............................ B. CONCESSION FEES ...................................... C. DELINQUENT PAYMENT COMPENSATION. ................... D. GROSS INCOME ......................................... E. FINANCE RECORDS MAINTENANCE ........................ IV. GENERAL PROVISIONS ........................................ A. TIME IS OF THE ESSENCE ................................. B. SUBLETTING AND ASSIGNMENT ........................... C. ENCUMBRANCE ......................................... D. DEFAULTS AND REMEDIES ................................ E. WAIVER ................................................ F. INDEMNITY .............................................. G. INSURANCE ............................................. H. CITY BUSINESS LICENSE.. ................................ 1. IMPROVEMENTS AND ALTERATIONS ....................... J. SIGNS .................................................. K. TAXES AND COMPLIANCE WITH LAW ....................... L. NONDISCRIMINATION ..................................... M. ENTIRE UNDERSTANDING ................................. N. CITY APPROVAL AND CONSENT ........................... 0. ADMINISTRATION AND NOTICES ........................... V. SPECIAL PROVISIONS. ......................................... A. SCHEDULE OF OPERATING DAYS, DATES AND HOURS ........ B. RESTRICTED EVENTS .................................... C. EXCLUSIVENESS OF PERMIT AND UNAUTHORIZED VENDING.. . D. SALES ................................................. E. MAINTENANCE OF CONCESSION AREAS .................... F. STANDARD OF EMPLOYEES ............................... G. COMPETITIVE BUSINESS .................................. 0 0 CONCESSION PERMIT This concession permit is executed by and between the City of Carlsbad, a munic corporation, hereinafter called "City" and ESPRESSO VIENNA , hereim called "Contractor." I. LOCATIONS AND USE A. CONCESSION LOCATION. Contractor shall operate in the atrium at the 1 Library, 1250 Carlsbad Village Drive, Carlsbad, California. Upon mutual consent of Contractor and Facilities Superintendent of the C new concession areas may be added at any time, and an increase shal made in the amount of the minimum annual concession fee specified her All operations shall be conducted by Contractor within the City Library, 1 Carlsbad Village Drive, Carlsbad, California. Precise locations at e concession area shall be established by Contractor and the Facili Superintendent. B. PERMllTED USE. This permit is granted to Contractor for the sole purp of allowing Contractor to operate a coffee cart concession to serve general public at concession areas per the proposal dated October 31 ,I and modifications from discussions on December 13, 1995 on file in Purchasing Office and on the terms and conditions set forth herein. 11. TERM OF PERMIT A. COMMENCEMENT AND TERMINATION. The term of this permit shall t period of six months commencing on the first day of February, 1996 expiring on July 31 , 1996. This permit may be terminated at any timc either party upon sixty (60) days written notice to the other party. mutually agreed that the City shall not be obligated for any loss, financi: otherwise, which may be incurred by Contractor as a result of terminatia this permit, and, further, that Contractor expressly waives any claim expense or loss which Contractor might incur as a result of termination of permit. B. RENEWAL. Upon successful performance during the initial six month tc this permit may be extended by the City Manager for two (2) additional (I) year option periods. 111. CONSIDERATION A. TIME AND PLACE OF PAYMENT All concession fees required herein r be made payable to City of Carlsbad and mailed or delivered to the Fin: Department at 1200 Carlsbad Village Drive, Carlsbad CA 92008. 1 0 0 The place of payment may be changed at any time by the City upon tk (30) days written notice to Contractor. Mailed payments of concession f shall be deemed paid upon the date such payment is postmarked by postal authorities. If postmarks are illegible, the payment shall be deer paid upon actual receipt by the City's Finance Department. Contra assumes all risk of loss and responsibility for late payment charge payments are made by mail. B. CONCESSION FEES. Beginning on the effective date of this per Contractor shall pay to the City, monthly in arrears, on or before the last of the calendar month following the calendar month in which the reve subject to concession fees was earned, a sum of money equal to $25 per for each day of operation or eight percent (8%) of all gross incc whichever is greater. C. DELINQUENT PAYMENT COMPENSATION. In the event Contractor fail pay any applicable concession fee when due, then Contractor shall pay tc City, in addition to the delinquent concession fee, a sum of money equiva to five percent (5%) of said delinquent concession fee. In the event 1 delinquent concession fee is still unpaid after fifteen (15) days of becor delinquent, then Contractor shall pay to the City, in addition to the delinqt concession fee, a sum equivalent to an additional five percent (5%) of delinquent concession fee [being a total of ten percent (IO%).] Such payment charges shall be deemed compensation to the City for loss resul from such delinquency, including costs to the City of servicing the delinql account. The City Manager may for good cause waive any such delinquc compensation charge upon written application of Contractor. Notwithstanc the foregoing, failure of Contractor to pay any concession fee when due I constitute a default which, at the option of the City Manager, shall be groL for termination of this permit by the City under the provisions of Section I of the concession permit. D. GROSS INCOME "Gross Income" , as used in the permit, shall includ income derived by Contractor from its operations pursuant to this pc whether received or to become due. Provided, however, gross income : not include federal, state, or municipal taxes collected from the corm (regardless of whether the amount thereof is stated to the consumer separate charge) and paid periodically by Contractor to a governmc agency accompanied by a tax return or statement as required by Possessory interest taxes or other property taxes shall not be deducte Contractor in computing gross income. The amount of such taxes sha clearly shown on the books and records of Contractor. E. FINANCE RECORDS MAINTENANCE Contractor shall keep true, accL and complete records in a manner and form satisfactory to the City ' which the City can at all reasonable times determine the nature and amo of income subject to concession fees from the operation of the conces 2 e e areas. Such records shall show all transactions relative to the conduct of 1 operation, and such transactions shall be supported by documents of origi entry such as sales slips and cash register tapes. All sales shall be recorc by means of a cash register system which automatically issues a customc receipt or certifies the amount recorded on a sales slip. Said cash regis shall have a lock-in total which is constantly accumulating and which can be reset, and, at the option of the City, a constantly accumulating lock printed transaction counter which cannot be reset and/or a printed detai audit tape located within the register. Complete beginning and ending ci register readings shall be made a matter of daily record, along with purch: If electricity is not available at the concession areas to operate a ci register system, an alternate method, such as pre-serially numbered rer contracts, may be used if first approved by the City Manager. Together v each concession fee payment, Contractor shall render to the City a deta' statement as to the source of the receipts showing all gross income of preceding calendar month, together with the amount payable to the Cit) hereinabove provided, and shall accompany the statement with a remitta' of the amount so shown to be due the City. The City may audit Contractor's business records at any reasonable til In the event said audit discloses that the percentage concession fees paid the audited period is less than the amount of concession fees required said period, Contractor shall pay to the City the amount of such deficie within thirty (30) days of written notice thereof by the City along with a I late payment charge on the amount of the deficiency. In the event such a1 greater than the amount of concession fees required for said period, then amount of overpayment shall be credited against equal amounts of mon' concession fees due the City during the succeeding payments until overpayment is fully credited. Any such overpayment occurring in the i permit year shall be refunded by the City within thirty (30) days of said ai findings. invoices and tickets issued, or other documentation satisfactory to the C discloses that the percentage concession fee paid for the audited perio IV. GENERAL PROVISIONS A. TIME IS OF THE ESSENCE. Time is of the essence in all of the tel covenants and conditions of this permit, and, except as otherwise provi herein, all of the terms, covenants, and conditions of this permit shall a1 to, benefit, and bind the successors and assigns of the respective par jointly and individually. B. SUBLETTING AND ASSIGNMENT. Subletting is not allowed under permit. When in the opinion of the City Manager and subject to the apprl of the City Council whenever required by the City Manager, it is deel consistent with the best interests of the City, Contractor may assign permit or any interest therein to an assignee who has, in the opinion oi 3 e e City Manager, th,e financial capability and overall competence to successfu operate the vending business. Consent to assignment of this permit shall within the sole discretion of the City Manager or City Council. This permit a any interest therein shall not be assignable by operation of law without t written consent of the City Manager. Assignment of this permit by Contrac for a consideration will not be allowed. Approval of any assignment shall be conditioned upon the assignee agree in writing that it will assume the rights and obligations thereby assigned E that it will keep and perform all covenants, conditions, and provisions oft permit which are applicable to the rights acquired. C. ENCUMBRANCE. Contractor shall not encumber this permit by deed of tn mortgage, chattel mortgage, or other security instrument during the tc hereof. D. DEFAULTS AND REMEDIES a. Default by Contractor. In the event that: (1) Contractor shall default in the performance or fulfillment of covenant or condition required by this permit to be perforr or fulfilled by Contractor; or (2) Contractor shall voluntarily file or have involuntarily f against it any petition under any bankruptcy or insolvency or law; or (3) Contractor shall be adjudicated a bankrupt; or (4) Contractor shall make a general assignment for the bene1 creditors; then the City may, at its option, without further notice or demand L Contractor or upon any person claiming rights through Contra1 immediately terminate this permit and all rights of Contractor ar all persons claiming rights through Contractor to the concession a or to possession thereof, and City may thereupon enter and possession of said concession areas and expel Contractor an persons so claiming rights thereto. Provided, however, that ir event of any default described in Part a.(l) of this section the City allow Contractor to cure said default within thirty (30) days follo written notice thereof from the City or commence to cure such de within thirty (30) days of notice and diligently pursue such CUI completion. In any event, either party may terminate this p without cause by giving sixty (60) days written notice of inte terminate to the other party. 4 0 0 \ b. Abandonment by Contractor. Even though Contractor has breach the permit and abandoned the concession areas, this permit sh continue in effect for so long as the City does not terminate ti permit, and City may enforce all its rights and remedies hereund including but not limited to the right to recover the concession fee it becomes due, plus damages. For purposes of this section, ; following do not constitute a termination of Contractor's right possession or operation: (I) Acts by City of maintenance, preservation, or efforts negotiate a new permit. (2) The appointment of a receiver upon initiative of City to pro City's interest under this permit. c. Damages. Damages which City may recover in the event of def< under this permit include the reasonably ascertainable value of unpaid concession fees for the balance of the term in this pel minus any damages mitigated by the City in negotiating a new per The remedies provided by this section are not exclusive and shal cumulative to all other rights and remedies possessed by City, nothing contained herein.shall be construed so as to defeat any o rights or remedies to which City may be entitled. E. WAIVER. The waiver by City of any breach by Contractor of any tc covenant, or condition of this permit shall not be deemed to be a waivf any subsequent breach of such term, covenant, or condition or subsequent breach of any other term, covenant, or condition herein. acceptance of a concession fee hereunder by the City shall not be dee to be a waiver of any preceding breach by Contractor of any term, cover or condition of this permit, regardless of City's knowledge of such prece breach at the time of acceptance of such concession fee. Failure on the of the City to require or exact full and complete compliance with any o covenants, conditions or agreements of this permit shall not be construe in any manner changing the terms hereof and shall not prevent the City ' enforcing any provision hereof. F. INDEMNITY. Contractor agrees that City, its agents, officers and emplo shall not be liable for any claims, liabilities, penalties, fines or for any dar to the goods, properties or effects of Contractor, its representatives, ag employees, guests, licensees, invitees, patrons, clientele or of any ( persons, whether alleged to have been caused by or resulting from any or omission of Contractor or its agents in or about the concession are; any act or omission of any person or from any defect in any part c concession areas, or from any other cause or reason whatsc Contractor agrees to indemnify against and hold the City and its authc 5 0 0 agents, officers, and employees free and harmless from any of the foregoi alleged liabilities and any costs, expenses and attorneys fees incurred by C on account of any claim or claims therefor. Contractor shall at its o\ expense upon written request by the City defend any such suit or acti brought against the City, its officers, agents or employees. G. INSURANCE contractor shall furnish policies of comprehensive gene liability insurance and a combined policy of workers compensation E employers liability in an insurable amount of not less than one million doll, ($1,000,000) per occurrence for each policy, unless a lower amouni approved by the City Attorney or the City Manager. Except as to work compensation, said policies shall name the City of Carlsbad as a co-insul or additional insured. Insurance is to be placed with insurers that have (' rating in the most recent Best's Key Rating guide of at least A-:V, and (2) admitted and authorized to transact the business of insurance in the Statc California by the insurance Commissioner. Proof of all such insurance SI be given by filing certificates of insurance with the Purchasing Officer p to signing of the contract by the City. H. CITY BUSINESS LICENSE The contractor is required to have and main1 a valid City of Carlsbad Business License for the duration of the conces: permit. 1. IMPROVEMENTS AND ALTERATIONS. Contractor shall make improvements or alterations to the concession areas or other City-ow property without prior written approval of the Facilities Superintendent. J. SIGNS. No signs shall be installed at any concession area without F written approval of the Facilities Superintendent, which approval ma: revoked at any time without liability to the City. K. TAXES AND COMPLIANCE WITH LAW. Contractor agrees, at its sole and expense, to comply with and secure compliance with all the requirem now in force or which may hereafter be in force of all municipal, county, : and federal authorities pertaining to said concession areas or the operat conducted thereon, and to pay before delinquency all taxes, assessmG and fees assessed or levied upon Contractor's inventory, personal prop or interest in this permit. Contractor recognizes and understands thal permit may create a possessory interest subject to property taxation and Contractor may be subject to the payment of property taxes levied on interest. Contractor further agrees that such tax payment shall not rei any concession fees due the City hereunder and that any such tax sh2 paid by Contractor before becoming delinquent. The judgment of any ( of competent jurisdiction or the admission of Contractor in any actir proceeding against it, whether City be a party thereto or not, that Contr has violated any such ordinance or statute in the use of the concession i shall be conclusive of that fact as between City and Contractor. 6 0 0 L. NONDISCRIMINATION. Contractor agrees not to discriminate in any manr against any person or persons on account of race, marital status, sc religious creed, color, ancestry, or national origin in Contractor's use of 1 concession areas, including but not limited to the providing of gooc services, facilities, privileges, advantages and accommodations, and 1 obtaining and holding of employment. M. ENTIRE UNDERSTANDING. This permit contains the entire understand of the parties. Contractor, by signing this permit, agrees that there is no ot written or oral understanding between the parties with respect to concession areas. Each party has relied on its own examination of concession areas, advice from its own attorneys, and the warranti representations, and covenants of the permit itself. Each of the parties in 1 permit agrees that no other party, agent, or attorney of any other party I made any promise, representation, or warranty whatsoever which is contained in this permit. The failure or refusal of any party to read the permit or other docume inspect the concession areas, and obtain legal or other advice relevant to transaction constitutes a waiver of any objection, contention, or claim might have been based on these actions. No modification, amendmeni alteration of this permit will be valid unless it is in writing and signed b! parties. N. CITY APPROVAL AND CONSENT. The approval or consent of the C wherever required in this permit, shall mean the approval or consent 01 City Manager unless otherwise specified, without need for further resok by the City Council. 0. ADMINISTRATION AND NOTICES. Control and administration of this PC is under the jurisdiction of the Facilities Superintendent as to City's inte herein, and any communication relative to the terms or conditions or changes thereto or any notice or notices provided for by this permit or by to be given City may be served personally or by certified letter deposite the United States mail, postage prepaid, and addressed to the Facil Superintendent, 405 Oak Avenue, Carlsbad, California 92008. Any notic notices provided for by this permit or by law to be given Contractor ma served personally or by certified letter deposited in the United States I postage prepaid and addressed to Contractor at 7825 FAY AVEP SUITE 200. LA JOLLA, CA 92037 . Either party may by written nc designate a different address to which notices shall be sent. 7 0 0 V. SPECIAL PROVISIONS A: SCHEDULE OF OPERATING DAYS, DATES AND HOURS. Prior commencement of operations and on or before the first day of each yc operation. The minimum acceptable schedule will consist of five days week, excluding holidays and inclement weather, and the minimum hour operation shall be 9:00 am to 300 pm Monday through Thursday and S am to 4:OO pm on Fridays and Saturdays if applicable. If extended hours desired, operation must cease one hour before library closing to al sufficient time for clean-up, etc. The Facilities Superintendent shall have right to approve or disapprove the proposed schedule. Contractor shall make any changes to said schedule without prior written approval of Facilities Superintendent. thereafter, Contractor shall submit a schedule of days, dates and hour: 6. RESTRICTED EVENTS. Unless otherwise authorized by the Facili Superintendent, Contractor shall have no rights within its concession z during the days in which special events are scheduled by the City in : area. City shall give Contractor advance written notice of any such spe events. All concession fees due shall be waived on a pro rata basis for time Contractor is not in operation due to such special events. C. EXCLUSIVENESS OF PERMIT AND UNAUTHORIZED VENDI1 Excepting special events described in Section V.B. hereof, City shall is no permits to other contractors during the term hereof to operate a coffee concession at the concession area permitted hereunder. However, Cit) granting this permit to Contractor, makes no warranty that the permit i shall be free of unauthorized vending or that any specific level of pc enforcement against such activities shall be maintained. D. SALES. contractor shall sell food and beverage at reasonable rates. $ rates shall be submitted to Facilities Superintendent for prior approval E. MAINTENANCE OF CONCESSION AREAS. Contractor agrees nr commit or allow patrons to commit any injury to City property or any p clean and clear of refuse and obstructions; and to dispose of all garb trash and rubbish in or about said spaces to the satisfaction of Ci Contractor's sole cost. Said spaces shall be cleaned up nightly by Contr: or more often as required by the City. or private nuisance; to keep the spaces occupied by the mobile vending F. STANDARD OF EMPLOYEES. Contractor and its employees shall i times conduct themselves and the operations on the concession areas creditable manner. Contractor shall thoroughly train its employees in duties and regularly monitor them to insure that they present a appearance to the public, behave in a courteous manner, and do not di the quiet enjoyment of library users. 8 * b e * G. COMPETITIVE BUSINESS. Contractor will not operate or have an ownersh interest in any similar business within 200 yards of any concession arc covered by this permit which competes with the operation authorize hereunder. IN WITNESS WHEREOF, this permit is executed by City, acting by and through its Ci Manager, and by Contractor, acting by and through its lawfully authorized officers. CONTRACTOR CITY OF CARLSBAD / APPROVED as to form and legality this 2 mday of 7- ,1996. n By: L Q- L. City Attorney 9