4.9. SR 05-04-2015
Request for Action
To Item Number
Mayor and City Council 4.9
Agenda Section Meeting Date Prepared by
ConsentMay 4, 2015Steve Benoit, Recreation Manager
Item Description Reviewed by
Youth Athletic Complex Concession Agreement Michael Hecker, Parks and Recreation Director
Reviewed by
Cal Portner, City Administrator
Action Requested
Approve, by motion, an agreement with Mark Humphry to provide concession services at the Youth
Athletic Complex.
Background/Discussion
Mark Humphry has requested to provide concession services at the Youth Athletic Complex for the 2015
season.
The Youth Athletic Complex is primarily used by the Elk River Youth Baseball and Northwest
Diamonds youth athletic associations. Both associations offer concessions during weekend tournaments,
but have agreed to allow Mark Humphry to sell concessions during times that they are not.
This contract is similar to the contract formerly utilized at the Dave Anderson Athletic Complex.
Financial Impact
A fee of $12 will be charged for each week the concession stand is used.
Attachments
Youth Athletic Complex Concession Agreement
AGREEMENT
THIS AGREEMENT
(“Agreement”) made this 4th day of May, 2015, by and
CITY OF ELK RIVER,
between the a Minnesota municipal corporation (“City”), and Mark
Humphry (“Contractor”).
RECITALS
th
A. The City owns and operates the Youth Athletic Complex located at 9850 165
Avenue, Elk River, Minnesota (“YAC”).
B. The Contractor agrees to operate a concession stand at the YAC.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. TERM.
The term of this Agreement shall be in effect during the year 2015,
commencing May 4, 2015, but may be terminated by either party with or without cause upon
sixty (60) days advance written notice. Contractor will pay a fee of $12 per week for the right to
operate within the YAC. Payment is due monthly. Contractor will only pay for weeks they
operate the concession stand. Upon expiration or termination of this agreement, Contractor shall
remove all of its equipment from the YAC within ten (10) days.
2. CONSTRUCTION AND INSTALLATION.
The City must approve any capital
improvements changes to structure or existing equipment, service to existing equipment, or
addition of new equipment. At the end of this Agreement any work becomes City property
Contractor shall obtain and pay for all necessary building, electrical, and plumbing permits. The
construction shall be made on lien free basis and the Contractor shall notify all construction
contractors that they cannot file mechanics liens or other liens against the YAC. Contractor shall
promptly cause any mechanics lien or other lien filed against the YAC to be removed at its sole
cost and expense. The City shall have the right to notify all construction contractors that no liens
may be filed against the YAC and that the City shall not be liable for any of the cost related to
the construction.
3. OPERATION OF THE CONCESSION STAND.
Contractor shall operate the
concession stand, retain all revenue for the stand, and shall:
Obtain all necessary permits from the Department of Health and operate the
concession stand in accordance with the regulations of the Health Department.
Provide staffing for the concession stand and ensure that the staff is properly trained.
Be solely responsible for security of the concession stand including the inventory and
any loss, damage, or destruction.
Clean the concession stand and all accompanying equipment and serving areas.
Comply with all procedures and policies set by the City pertaining to the operation of
the concession stand.
Provide any food preparation equipment.
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Not sell alcohol or tobacco products.
4. UTILITIES.
The City shall provide and pay for water and electricity at the
Concession stand.
5. INSURANCE.
Contractor shall obtain and keep in force the following insurance:
Minimum Limits – Commercial General Liability
Bodily Injury $1,000,000 each occurrence or aggregate
Property Damage $1,000,000 each occurrence or aggregate
Worker’s Compensation Insurance Statutory
Prior to commencing construction or operating the concession stand, Contractor shall file with
the City a certificate of insurance satisfactory to the City evidencing the required insurance
coverage.
The City shall be named as an additional insured on the commercial general liability policy on a
primary and noncontributory basis.
6. INDEMNITY.
Contractor shall indemnify and hold harmless the City from any
and all demands, claims, causes of action, fines, penalties, damages (including consequential
damages), losses, liabilities, judgments, and expenses (including, without limitation, attorneys’
fees and court costs) incurred in connection with or arising from:
the use or occupancy of the YAC by Contractor or any person claiming under
Contractor;
any activity, work, or thing, done or permitted or suffered by Contractor in or about
the YAC;
any acts, omissions, or negligence of Contractor or any person claiming under
Contractor or the Contractor’s, agents, employees, volunteers, invitees, or visitors of
Contractor, or of any such person;
any breach, violation, or nonperformance by Contractor or any person claiming under
Contractor or the employees, volunteers, agents, Contractors, invitees, or visitors of
Contractor, or of any such person of any term, covenant, or provision of this
Agreement or any law, ordinance, or governmental requirement of any kind; or
any injury or damage to the person, property, or business of Contractor, its
employees, volunteers, agents, Contractors, invitees, visitors, or any other person
entering upon the YAC premises under the express or implied invitation of
Contractor.
If any action or proceeding is brought against the City by reason of any such claim, Contractor
shall upon notice from City, defend the claim at Contractor’s expense with counsel reasonably
satisfactory to the City.
7. INDEPENDENT CONTRACTOR.
This Agreement calls for the performance
of concession services by Contractor as an independent contractor and Contractor, its volunteer
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employees, agents, or representatives will not be considered employees of the City for any
purposes.
8. ASSIGNMENT.
Contractor may not assign or sublet the concession stand.
9. CONTROLLING LAW/VENUE.
This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota. In the event of litigation, the
exclusive venue shall be in the District Court of the State of Minnesota for Sherburne County
10. MINNESOTA GOVERNMENT DATA PRACTICES ACT.
Contractor must
comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it
applies to (1) all data provided by the City pursuant to this Agreement, and (2) all data, created,
collected, received, stored, used, maintained, or disseminated by Contractor pursuant to this
Agreement. Contractor is subject to all the provisions of the Minnesota Government Data Practices
Act, including but not limited to the civil remedies of Minnesota Statutes Section 13.08, as if it were
a government entity. In the event Contractor receives a request to release data, Contractor must
immediately notify City. City will give Contractor instructions concerning the release of the data to
the requesting party before the data is released. Contractor agrees to defend, indemnify, and hold
City, its officials, officers, agents, employees, and volunteers harmless from any claims resulting
from Contractor’s officers’, agents’, city’s, partners’, employees’, volunteers’, assignees’ or
subcontractors’ unlawful disclosure or use of protected data. The terms of this paragraph shall
survive the cancellation or termination of this Agreement.
11. MISCELLANEOUS.
A. City vending machines are located in the YAC. These vending machines will stay
in place and are not part of this Agreement.
B. Advertising. Contractor has non-exclusive right to advertise concession products
at the YAC. The Contractor assumes all cost for any advertising efforts undertaken. The City
must approve the size and location of any Contractor signage and product signage.
C. The City may at any time during the active period of this Agreement require an
audit of Contractor’s financial records related to the concessions operations; including receipt
and expense reports.
D. Sales Tax. The Contractor will be solely responsible for collecting all applicable
sales tax and distributing the tax to the proper taxing authorities.
E. The City is not responsible for monitoring, restricting, or enforcing any limits on
non-concession food or drink items being brought into park areas unless determined by City
ordnance.
F. The City may provide some existing equipment for the use of the Contractor for
the term of the Agreement. Maintenance of equipment and expenses for maintenance will be
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shared between the City, the Contractor, and Youth Athletic Associations. Any work must be
approved by the City before being performed. The City will be the owner of the equipment.
G. The City must approve any advertising or signage that will be displayed, mailed,
or used to promote services at the YAC.
H. The Contractor assumes responsibility for purchasing of all cleaning supplies,
product, approved signage, and any other operational items necessary for the operation of
awarded concession locations.
I. The Contractor must provide adequate trained staff for the operation. The
Contractor assumes responsibility for all payroll obligations and must obey all local, state, and
federal employment laws that are applicable.
J. The Contractor must maintain the YAC in a clean and safe manner. The City
reserves the right to inspect operations any anytime, without notice, and ask for corrective
actions to be implemented immediately for any sub-standard items found.
K. The Contractor must coordinate and receive any necessary health inspections and
maintain the health license under the Contractor’s name. In addition, any food-handling or other
certifications necessary for operations become the responsibility of the Contractor.
L. The Contractor must also remove all Contractor products and supplies by a City
specified date at the end of each concession season, or for weekend use of the facility by other
user groups such as Youth Athletic Associations.
M. Site Specific Specifications:
(1) Operating hours are generally weekday afternoons and evenings Monday through
Thursdays as determined by the needs of the City’s Parks and Recreation
Department. Approved Youth Athletic Associations shall have first priority to
offer concessions during weekend tournaments.
(2) The City has the right to make adjustments or changes to menus or prices.
CITY OF ELK RIVER
Dated:_______________, 2015.
BY: ___________________________________
John J. Dietz, Mayor
AND __________________________________
Tina Allard, City Clerk
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Dated:_______________, 2015. CONTRACTOR:
__________________________________
BY: ___________________________________
Name:___________________________
Title:__________________________
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