Town of Holly Springs Town Council Meeting Agenda Cover Sheet

Transcription

1 Town of Holly Springs Town Council Meeting Agenda Cover Sheet Meeting Date: March 19, 2019 Consent Agenda Title: License Agreement for Concessions (Parks and Recreation) Staff Resource(s): Chris Champion ) Agenda Item #: 8e Presenter: Adam Huffman Action(s): Request Town Council approval for the Parks and Recreation Department to enter into a licensing agreement with Fuquay-Varina Concessions, LLC. Explanation: As a cost effective means of operation, the P&R Athletics Division requests to contract with an outside vendor to provide concession services during department sponsored athletic events. Partnering with a contracted vendor will provide the same level of service to patrons with no deficit for the Town. Background: In the past, the Athletics Division has operated the concessions stands at Womble Park with Town funded resources. The costs to operate the concession stands, including part-time staff and the purchase of inventory, exceed the revenue collected. Funding Source(s): Associated Goals/Initiatives Agenda Topic Cover Sheet / last modified March 1, 2019

2 STATE OF NORTH CAROLINA ) License Agreement for COUNTY OF WAKE ) Concessions This License Agreement for Concessions ("Agreement"), made this day of, 2019, between the Town of Holly Springs, a North Carolina Municipal Corporation ( Town or Licensor ), and Fuquay-Varina Concessions, LLC, a North Carolina Limited Liability Company, whose address is 703 Natural Springs Ct., Fuquay-Varina, NC ("Licensee"): WITNESS: WHEREAS, the Town operates a Parks and Recreation Department pursuant to Article 18 of Chapter 160A of the North Carolina General Statues to allow for the establishment and creation of adequate recreation programs and facilities that are diversionary in character and aid in promoting entertainment, pleasure, relation, instruction and other physical, mental, and cultural development and leisure time experiences, for the benefit of the citizens of Holly Springs, and; WHEREAS, the Town, in order to fulfill that mission, utilizes independent contractors pursuant to the forgoing Agreement, in lieu of statutory employees, in a cost sharing arrangement as outlined herein, and; WHEREAS, the undersigned Licensee desires to enter into this Agreement and to be bound by the terms thereof, as well as the terms of the Parks and Recreation policies and procedures, as amended from time to time. ARTICLE I Access to Premises. The Town, in consideration of the compensation and the covenants and agreements set forth herein and to be kept and performed by the Licensee, for the purposes set forth herein does grant access to the Licensee the following areas in the Town of Holly Springs (hereinafter premises ), all of which the Licensee accepts, for the purposes set forth herein: 1. Inside and directly adjacent to Womble Park soccer concession stand. 2. Inside and directly adjacent to Womble Park baseball concession stand. 3. Inside and directly adjacent to other Town owned or controlled athletic facilities with the express written consent of the Athletics Program Manager. Access to this or any other area or premises to which Licensee is permitted may be terminated by the Town as specified in Article XVII. ARTICLE II

3 Term. The initial term of this Agreement shall be from March 20, 2019 to June 30, This Agreement shall automatically renew for successive six month terms unless notice and termination is provided in accordance with Article XVII and Article XX. Payment. ARTICLE III A. During the initial term of this Agreement, Licensee agrees to pay the Town three hundred and fifty ($350) dollars, and shall be paid on or before March 25, B. During any six month extension of this Agreement, the Licensee shall pay the Town, one week in advance any successive Term, five hundred ($500) dollars for each six month term. C. Interest for Late Payment. Without waiving any other right of action available to Licensor in the event of delinquency by Licensee in its payment to Licensor for a period of one (1) day or more from the date as specified in Article III and without waiving the interest specified here upon acceptance of that payment. Licensee shall pay to Licensor interest on the payment at the rate of 1.5% per month from the date such payment was due and payable until paid. Such interest shall not accrue with respect to disputed items being contested in good faith by Licensee in which event the legal rate of interest shall prevail if money is determined to be owed. ARTICLE IV Merchandise and Operation. Licensee shall have the right to operate any type of food concessions in the locations provided in Article I, shall have the right to sell such food items subject to the prior approval of the Athletics Program Manager, and shall be subject to the limitations set forth below. Licensee shall: 1. Engage in no other business activities on Town premises and shall not sell items other than those approved by the Athletics Program Manager. All approved food items and operating conditions shall meet all State health codes and inspection laws. 2. Licensee shall maintain all local, state, and federal licensing associated with the operation of a concession business and must display all certifications at any location where business is allowed under Article I. 3. Licensee shall secure all inventory to be stored at concession stands using Town locks and any other security device that may be provided by the Athletics Program Manager. Licensee is prohibited from using its own locks or security devices to secure inventory stored at any concession stand. Violation of this prohibition shall be cause for default under the provisions of Article XVII. 4. In addition to dates and times Licensee desires to operate concessions under Article VI, Licensee shall be obligated to operate concessions at such times and

4 places as determined by the Athletics Program Manager so long as seven (7) days-notice is provided to the Licensee. The Town shall provide power, water, and trash collection services without operating cost to the Licensee. ARTICLE V A. Licensee Personal Property. Licensee shall identify, by marking or other acceptable identification to the Athletics Program Manager, all personal property owned or otherwise required by concession operations. Additionally, personal property must be identified on a control sheet which is to be submitted to the Athletics Program Manager. B. Town Provided Personal Property. Town shall provide popcorn machine, snow cone machine, refrigeration unit, freezer unit, ice making machine, and limited cabinet storage space for any applicable premises listed in Article I. Additionally, Town shall provide keys for facility access to applicable areas listed in Article I. No EXPRESS OR IMPLIED WARRANTEES are hereby given to the condition of any Town owned property located in or around the permitted premises. Any Town property which is not functional as a result of Town employee actions may be repaired at the Town s discretion. ARTICLE VI Days and Hours of Operation. The Town Parks and Recreation department will provide to the Licensee dates and times in which concession stands are permitted to be operable at least seven (7) days in advance. Licensee shall provide the Town at least seven (7) days written notice of its intent to provide concession services at an applicable location under Article I. Operational Standards. ARTICLE VII A. Quality and Cleanliness. Licensee shall operate the concession stand in accordance with the highest standards for this type of operation are other major athletic facilities. Products offered shall be top quality, dispensed in compliance with all applicable federal, state and local laws, ordinances and regulations. The service shall at all times be prompt, clean, courteous and efficient. Licensee shall at all times keep the shelves and display cases fully stocked and filled and all window and other displays visually attractive. Licensee shall conduct, at a minimum, a cursory cleaning following each day of operation to ensure concession facilities are kept clean and free of debris. B. Personnel. The Licensee's employees shall be clean, courteous, efficient and neat in appearance. Employees of Licensee while on duty shall be identified

5 as such by uniform or name badge. The Licensee shall not employ any person or persons in or about the granted premises who shall use improper language or act in a loud or boisterous or otherwise improper manner. Licensee agrees to dispense with the services of any employee whose conduct the Athletic Program Manager reasonably feels is detrimental to the best interest of the Licensor. Licensee shall conduct a background check on any prospective employees that shall be engaged in the provision of concession services under this Agreement. Licensee shall not hire any prospective employee that (i) is a convicted felon or (ii) has been convicted for any crime involving dishonesty or breach of trust including but not limited: theft, robbery, embezzlement, shoplifting, larceny, identity theft, forgery, or is on the sex offense registry. C. Laws, Ordinances, etc. The Licensee shall observe and obey all the laws, ordinances, regulations, and rules of the federal, state, and municipal governments which may be applicable to its operations at any operable location in Town limits D. Merchandise Prices. Licensee acknowledges the desire and obligation of the Town to provide the public high quality merchandise and a high level of public service. Therefore, Licensee covenants and agrees to offer for sale from the granted premises only high quality merchandise at prices not to exceed the prices customarily charged for similar merchandise in other local high quality municipal area operations. Licensee's initial schedule of merchandise items to be offered for sale from the granted premises, and the respective prices to be charged, shall be delivered to the Athletics Program Manager prior to commencement of this Agreement. Thereafter, prices may be decreased or increased as mutually agreed by Licensee and Licensor. In the event that Licensee adds merchandise items, Licensee shall submit to Athletics Program Manager a list of added merchandise items and the respective prices to be charged not less than seven (7) days before such new merchandise items are to be offered for sale on the granted premises; prices for such new items may be decreased or increased in the same manner as mentioned above. It is specifically understood and agreed that, where a suggested retail price is printed on any item, the price charged by Licensee for that item shall not exceed the printed price. If in the opinion of the Athletics Program Manager, the selection of items offered is inadequate in general or at any particular concession location, if the merchandise is not of high quality, if any of the prices, charges and rates are excessive or if any of the items or its advertisements are found to be objectionable for display and/or sale in a public facility, the Athletics Program Manager shall meet and confer with Licensee regarding such matters but Licensee acknowledges that Licensor's determination as to same shall be conclusive. Failure on the part of Licensee to correct, rectify or modify its prices or quality within five (5) days of being advised in writing by the Athletics Program Manager shall be cause for default by Licensor, under the provisions of Article XVII. ARTICLE VIII

6 Damage to Facilities. Any portion of the premises partially damaged by fire or other casualty as a result of Licensee s actions but which do not render the premises inoperable, such premises shall be repaired by Licensee at its expense as quickly as practicable. In the event, however, that such damage from such fire or other casualty as a result of Licensee s actions is so extensive as to render any portion of the granted premises inoperable, the damage shall be repaired by Licensee at its expense as quickly as practicable and shall pay a fee of $500 per month until such time as the premises shall again be operable. In the event the Town in its discretion makes repairs to damage caused to the premises or concession stand as a result of Licensee s actions, Licensee shall pay the Town any fees accessed with the cost to repair or replace any such structure or equipment. Should any portion of the granted premises be either partially, extensively or totally damaged by fire or other casualty caused in part or totally by the actions of the Licensee, the Athletics Program Manager may in his/her sole discretion deem Licensee in default under Article XVII here. Provided, however, that nothing here contained shall in any way be construed as to limit any rights the Town may have in law or equity against Licensee. ARTICLE IX Insurance. Licensee shall procure and maintain at all times during the term of this Agreement the following insurance: 1. Commercial General Liability with limits of no less than $1,000,000 each occurrence and $2,000,000 aggregate. 2. Shall name as an additional insured the Town and its officers, agents, and employees. 3. Certificates of insurance evidencing all coverages and endorsements above shall be furnished to the Town before commencing any operations under this Agreement. ARTICLE X Indemnification. The Licensee does here covenant and agree to indemnify, save harmless from and defend the Town against all fines, suits, claims, demands and actions of any kind and nature including but not limited to antitrust claims, (including reasonable attorney fees) arising by reason of any and/or all of its operations under this Agreement and does here agree to assume all the risk in the operation of its business under this Agreement and shall be solely responsible and answerable in damages for any and all accidents or injuries to persons or property arising by reason of any and/or all of its operations under this Agreement. ARTICLE XI Town Representative Access. The Licensee shall allow the Town's authorized representatives access to the granted premises at all reasonable hours, for the purpose of examining and inspecting the premises, for purposes necessary, incidental to or connected with the performance of its obligations under this Agreement, or in the exercise of Town's governmental functions. ARTICLE XII

7 Licensee Ingress and Egress. Subject to rules and regulations governing the use of the granted premises, the Licensee, his/her agents and servants, patrons and invitees, and his/her suppliers of service and furnishers of materials shall have the right of reasonable ingress to and egress from the granted premises, provided, however, that the suppliers of services, furnishings, materials, or stock shall do so in such reasonable manner and at such times so as not to interfere with normal Town operations. ARTICLE XIII Non-assignability. The Licensee shall not assign, transfer, pledge, surrender or otherwise encumber or dispose of this Agreement or any rights and privileges created by it, or any interest in any portion of it, and shall not permit any other person or persons, company or corporation to occupy the premises, without the consent of the Town Manager being first obtained. Any substantial change in ownership or proprietorship of Licensee, which has not received the prior written approval of the Town Parks and Recreation Director and which in the opinion of the Town Parks and Recreation Director is not in the best interest of the Town or the public, shall be subjected to the remedies available in Article XVII of this Agreement. ARTICLE XIV Advertisement. Licensee shall not erect, install, operate nor cause or permit to be erected, installed or operated in or upon the granted premises, the concession stands, or any equipment in operation, any signs or other similar advertising device without first having obtained the Parks and Recreation Director's written consent. ARTICLE XV Prohibited Use of Premises. Licensee will make no unlawful or offensive use of the granted premises and will at the expiration of this Agreement, through the passage of time or otherwise or upon any sooner termination without notice, quit and deliver up the premises to the Licensor and those having its estate in the premises, peaceably, quietly and in as good order and condition, reasonable use and wear excepted, as the premises now are or may later be placed by the Licensee or the Licensor. Licensee shall not make any lawful or non-offensive additions, adjustments, alterations, changes or modifications to the premises without first obtaining the express written consent of the Parks and Recreation Director. ARTICLE XVI Waiver. Any waiver of any breach of covenants herein contained to be kept and performed by the Licensee shall not be deemed or considered as a continuing waiver and shall not operate to bar or prevent the Licensor from declaring a forfeiture for any succeeding breach either of the same conditions or covenants or otherwise. ARTICLE XVII

8 Default and Termination. The entire Agreement is made upon condition that if the Licensee shall be in arrears in the payment of any of the license fee for a period of seven (7) days, or if Licensee shall fail to operate the facilities in this Agreement as required or if the Licensee shall fail or neglect to do or perform or observe any of the covenants contained in this Agreement on its part to be kept and performed and such failures or neglect shall continue for a period of seven (7) days after the Town has notified Licensee in writing of Licensee's default and Licensee has failed to correct such defaults within the seven (7) days (such day notification period shall not be construed to apply if Licensee shall be declared to be bankrupt or insolvent according to law, or if any assignment of its property shall be made for the benefit of creditors), then in any of those cases or events, the Licensor, lawfully may, at its option, immediately or any time later without demand or notice, enter into, and upon the granted premises or any part of them and in the name of the whole, and repossess the premises and expel the Licensee and those claiming by, through, or under it, and remove its effects, if any, forcibly if necessary, without being deemed guilty of trespass and without prejudice to any remedy that otherwise might be used, for arrearages of license fees or preceding breach of covenant. On such reentry, the Agreement shall terminate. Additionally, the Town reserves the right to terminate this Agreement upon thirty (30) days written notice. Notwithstanding any other remedies available to the Town, the Town reserves the right to terminate access to any premises granted under Article I upon seven (7) days-notice. ARTICLE XVIII It is understood and agreed that nothing contained in this Agreement is intended or should be construed as in any way creating or establishing the relationship of copartners or joint venturer s between the Licensor and Licensee, or as constituting the Licensee or any officer, owner, employee or agent of Licensee as agent, representative or employee of the Licensor for any purpose or in any manner whatsoever. The Licensee is to be and shall remain an independent contractor with respect to all services performed under this Agreement. ARTICLE XIX Town Rules and Regulations. The Licensor shall have the right to and shall adopt and enforce reasonable rules and regulations with respect to the use of the parks, concession stands, and related facilities, which Licensee agrees to observe and obey. The Licensee shall observe and obey all the laws, ordinances, regulations and rules of the federal, state and county and municipal governments which may be applicable to its operations at the premises and shall obtain and maintain all permits and licenses necessary for its operations of concessions. Licensee further agrees to pay all taxes imposed by law on the property or operation. ARTICLE XX Notices shall be sufficient if sent by registered mail, postage prepaid, addressed to: If to the Town: If to Licensee:

9 Town of Holly Springs Fuquay-Varina Concessions, LLC Attn: Parks and Recreation Director Attn: Galen Durant, Member PO Box Natural Springs Ct. Holly Springs, NC Fuquay-Varina, NC ARTICLE XXI Headings. The paragraph headings contained here are for convenience of reference and are not intended to define or limit the scope of any provision of this Agreement. ARTICLE XXII Severability. In the event any covenant, condition or provision contained here is held to be invalid by any court of competent jurisdiction, the invalidity or any such covenant, condition or provision shall in no way affect any other covenant, condition or provision here contained, provided that the invalidity of such covenant, condition or provision does not materially prejudice either Licensor or Licensee in its respective rights and obligations contained in the valid covenants, conditions or provisions of this Agreement. ARTICLE XXIII Non-published. This Agreement shall not and will not, nor shall any copy of it, or any statement, paper or affidavit, in any way or manner referring to it, be filed in the Office of the Register of Deeds of Wake County, North Carolina, or in any other public office, by Licensee or anyone acting for Licensee and that if the same be so filed, this Agreement and each and every provision of it shall, at the option of the Licensor, be and become absolutely null and void and Licensor may declare such filing a breach of this Agreement. ARTICLE XXIV Venue. This agreement shall be construed in accordance with the laws of the state of North Carolina and the courts of Wake County shall have jurisdiction of any dispute. IN WITNESS, the parties here have caused this Agreement to be executed under their respective seals on the day and year first written above. [Signature Page Follows]

10 TOWN OF HOLLY SPRINGS, NORTH CAROLINA This instrument has been preaudited in the manner required by The Local Government Budget and Fiscal Control Act By: Randy Harrington Town Manager ATTEST: [Town Seal] Mary Hogan Financial Officer Town of Holly Springs, North Carolina This instrument is approved as to form and legal sufficiency. By: Linda McKinney, Town Clerk John Schifano, Town Attorney FUQUAY-VARINA CONCESSIONS, LLC By and though its officer, Galen Durant, Member Fuquay-Varina Concessions, LLC

11 STATE OF NORTH CAROLINA COUNTY OF WAKE I,, a Notary Public in and for the County and State aforesaid, do hereby certify that personally appeared before me this day and acknowledged the due execution of the foregoing instrument for the purposes therein expressed. Witness my hand and official seal, this the day of, Notary Public My Commission Expires: (Seal)