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HomeMy WebLinkAbout25I - AGMT FOOD SA ZOOREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JANUARY 16, 2018 TITLE: APPROVE AN AGREEMENT AMENDMENT WITH KNOWLWOOD ENTERPRISES, INC. FOR PROVIDING FOOD CONCESSION SERVICES AT THE SANTA ANA ZOO (STRATEGIC PLAN NO. 6, 1B) CIA,MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 16' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement amendment with Knowlwood Enterprises, Inc., to extend the term of the agreement on a month-to-month basis for a period not to exceed six months, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION On October 26, 2017 the Parks, Recreation and Community Services Agency (PRCSA) issued a Request for Proposal (RFP) to solicit firms for concessionaire services at the Santa Ana Zoo at Prentice Park. PRCSA is working on completing the RFP process, but will require additional time before a firm can be awarded an agreement. Since the current concessionaire agreement is set to expire on January 31, 2018, PRCSA is requesting an extension of the existing agreement on a month-to-month basis for a period not to exceed six months to allow city staff time to complete RFP process and award an agreement at a future City Council Meeting. All other terms and conditions of the agreement will remain the same. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (Support neighborhood vitality and livability.), Strategy B (Improve neighborhood quality by locating or providing access to complementary services and public facilities, including access to healthy food options (community gardens, farmers' markets, corner markets, etc.) in neighborhoods.). FISCAL IMPACT Revenue received for the additional period of this agreement will be deposited in the Zoo Food Sale Concession revenue account (no.01113002 53313). 251-1 Agreement Amendment with Knowlwood Enterprises, Inc. January 16, 2018 Page 2 TG� o Mouet Executive Director Parks, Recreation and Community Services Agency APPROVED AS TO FUNDS AND ACCOUNT: ' FranciscoGutierrez Executive Director Finance and Management Services Agency EXHIBIT: 1. Agreement Amendment — Knowlwood Enterprises, Inc. 251-2 FOOD SERVICE CONCESSIONS AGREEMENT WITH KNOWLWOOD ENTERPRISES THIS AGREEMENT is made and entered into this 16th day of January, 2017 by and between Kiiowlwood Enterprises, Inc., a California Corporation ("Concessionaire"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a Concessionaire having special skill and knowledge in the field of foods service concessions for the Santa Ana Zoo comparable with "high level" industry practice. B. Concessionaire has provided said services to the City since January 2011 and represents that it is able and willing to provide such services to the City. C. City and Concessionaire agree to a limited term agreement for said services similar to the prior Agreement and extensions exercised under Agreement No. A-2010-039. C. In undertaking the performance of this Agreement, Concessionaire represents that it is knowledgeable in its field and that any services performed by Concessionaire under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Concessionaire shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully aiid�dt�ly�b�iplete thefood concession services at the an a Anaoo escn'bed an set forth in the attached Scope of Services identified as Exhibit A, attached hereto and incorporated by reference. 2. COMPENSATION In consideration for the concession rights granted by this Agreement, Concessionaire agrees to pay the city a monthly concession fee of $2,800 per month, in advance. The payment is due on the 0 of each month. For the initial month only, services for a partial month shall be prorated on a daily basis. A 3% late fee will be added if payment is not received by the 10th of the month. Page 1 of 9 3. TERM This Agreement shall commence on the date first written above on a month-to-month basis, not to exceed six (6) months, unless terminated earlier in accordance with Section 13, below. 4. INDEPENDENT CONTRACTOR Concessionaire shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Concessionaire performs the services which are the subject matter of this Agreement; however, the services to be provided by Concessionaire shall be provided in a manner consistent with all applicable standards and regulations governing such services. Concessionaire shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Concessionaire shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Concessionaire shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Concessionaire's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and propert}--damage,—in—the—total—amount of--$-1;000;000—per—oecur ence—with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Concessionaire, if Concessionaire has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Concessionaire agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. Page 2 of 9 d. If Concessionaire is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit ofnot less than $1,000,000 per claim with $2,000,000 in the aggregate. C. The following requirements apply to the insurance to be provided by Concessionaire pursuant to this section: i. Concessionaire shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. iv. Concessionaire shall supply City with a fully executed additional insured endorsement. f. If Concessionaire fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Concessionaire's right to be paid for its time and materials expended prior to notification of termination. Concessionaire waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Concessionaire agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operafions of the Concessionaire, its-suhcontractors agents employeesror—other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Concessionaire further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Page 3 of 9 y 7. RECORDS Concessionaire shall keep records and invoices in connection with the work to be performed under this Agreement. Concessionaire shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Concessionaire under this Agreement. All such records and invoices shall be clearly identifiable. Concessionaire shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Concessionaire shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Concessionaire under this Agreement. 8. CONFIDENTIALITY If Concessionaire receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Concessionaire agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Concessionaire disclosed in a publicly available source; (c) is in rightful possession of the Concessionaire without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Concessionaire without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Concessionaire covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. DISCREVIINATION Concessionaire shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Concessionaire affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. Page 4 of 9 E32LSP ' 1 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Concessionaire, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Concessionaire. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Concessionaire or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Concessionaire, Concessionaire may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Concessionaires retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Concessionaire shall be entitled to receive and the City shall pay Concessionaire compensation for all services performed by Concessionaire prior to receipt of such notice of termination, subject to the following conditions: a cunuitiono suc payment, Hie Executive Director of the Parks, Recreation and Community Services Agency may require Concessionaire to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Concessionaire consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not Page 5 of 9 similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies 15. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Concessionaire shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Concessionaire shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 18. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this .1 .. V. 111 W11L111 ,' MLU ,llau UG uccuicu w oe propeny given a aeuverea in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 �M Page 6 of 9 With courtesy copies to: Executive Director, Parks, Recreation and Community Services Agency City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 Fax: 714-647-4211 To Concessionaire: Knowlwood Enterprises, Inc. 17654 Newhope Street, Ste. H Fountain Valley, CA 92708 Fax: 714-729-9214 Sonia R. Carvalho City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax: 714- 647-6515 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. IN WITNESSWHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA Maria D. Huizar Raul Godinez II Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: OLS 4 _ Laura A. Rossini Senior Assistant City Attorney KNOWLWOOD ENTERPRISES, INC.: By: Title: Page 7 of 9 RECOMMENDED FOR APPROVAL: GERARDO MOUET Executive Director, Parks, Recreation and Community Services Agency 1 Page 8 of 9 I AA1117 �1 SCOPE OF SERVICES y,L EXHIBIT "A" I. SCOPE A. PROJECT DESCRIPTION This specification outlines the service expectations for the food concessionaire that operates the Santa Ana Zoo at Prentice Park concession building. The concession building totals 2,488 sq. ft. of which 704 sq. Ft. is provided for food preparation and sales. Friends of Santa Ana Zoo (FOSAZ) operates the gift shop and has exclusive rights for the gift shop and souvenir items; however, the food service concessionaire may sell souvenir drink cups and other items approved by the Zoo Manager. The Zoo concession facility is a full service food operation that is capable of providing a variety of hot and cold meals, beverages, and snack food items. It is equipped with a large grill, The successful vendor will be responsible for providing a deep fat fryer, ice machine, refrigerator and freezer, soft drink dispensers, Icee machines, ice cream freezer, microwave, coffee maker, popcorn machine, or churro warmer and any other equipment needed. The Zoo has a large private picnic area and 150 -seat amphitheater that is available to the City and FOSAZ for special events. The City and/or FOSAZ reserve the right to hire another caterer for special events at the Zoo. Private parties are under no obligation to use the Zoo concessionaire. Concessionaire may be given the opportunity to bid on food service for those events and will be given a 10 -day notice of such events. Annual attendance at the Zoo ranges from 250,000 to 275,000 with the busiest months being March through August. The Zoo is open every day of the year except Christmas Day and New Year's Day. The Zoo is open to the public from 10:00 a.m. to 5:00 p.m. daily except for Saturdays and Sundays from Memorial Day through Labor Day when hours are 10:00 a.m. to 6:00 p.m. B. SATELLITE CARTS Satellite food/beverage stations are possible at the following locations: 1. Carrousel plaza — between the carousel line and the train rides. 2. Elephant ring — food stand and carts next to the elephant ride. Any other satellite stations will have to be pre -approved by the Zoo Manager.. C. OBJECTIVES I.Provide excellent food service at reasonable prices. 2.Conduct a clean and efficient operation. 3.The food concession operation should be consistent with and enhance the Zoo image. 4 -The operating hours shall be consistent with those of the Zoo. Any exceptions to these hours must be approved by Zoo Manager. 5.Upon Zoo Manager's approval the concessionaire may also sell beyond Zoo hours to patrons through outside service window. D. CITY RESPONSIBILITIES I. City will maintain the exterior of the structure and landscaping except for trash and debris around eating area tables and chairs. 2. City will provide paid utilities including water, trash, electricity, and gas. 3. City will communicate with the concessionaire regarding events organized by the Zoo or Friends of Santa Ana Zoo. 4. City will provide staff contact as liaison for communication and problem resolution. 5. City reserves the right for independent audit of concession operations. E. CONCESSIONAIRE RESPONSIBILITIES 1. Provide food service to Zoo visitors that meet standards of quality and service as mutually agreed by concessionaire and Zoo Manager. Fast food menu is acceptable providing there are varieties of "healthier" menu alternatives. 2. The Zoo Manager must approve all menu items, pricing and marketing material. Some food items may be restricted due to possible problems related to excessive litter or potential animal health issues. 3. Provide on-site manager who has current food service handler's certification from the Orange County Health Department. 4. Meet sanitation and food preparation standards as established by the Orange County Health Department. 5. Have and maintain Santa Ana City business license. 6. Secure an ABC License for the sale of beer and wine and maintain requirements for same. q%6 of t,POP .-A .. r. r.0 -ill --i- L _11___ . _ -- -•-•-••••• ••yp•�••.al ay -1c "GUMM: 1JIre0[Or 01 Parks, Recreation &Community Services. 7. Concessionaire is responsible for hiring and compensating employees, including all applicable payroll taxes and deductions. Concession employees are not considered City employees. 8. Provide adequate staff to meet visitor demands, which vary with season and day. 9. Maintain a regular schedule of cleaning and sanitation of interior of food service facility and equipment, and proper recycling of deep fat fryer cooking oil. The concessionaire is responsible for repairs to interior of food service area subject to City approval. The concessionaire is also responsible for any repairs to any equipment and facilities damaged due to concessionaire's negligence. r 10. Tenant improvements and move in to be done by concessionaire in conjunction with the OC Health approval. 11. Continually maintain front of concession stand clean which includes cleaning tables and chairs, picking up all trash and empting trash cans. In addition, all trash cans must be emptied at the end of each business day. Trash from inside the facility may be enclosed in proper containers behind the facility in the service area but must be removed to the Zoo's dumpsters on a daily basis before closing. No plastic bags of trash or cardboard boxes are to be stacked in the service area. This is necessary for vermin control. 12. Provide such equipment as necessary for food service operation that is not part of the permanent fixtures of the facility. 13. Provide supplies for food preparation, cleaning and sanitation, and trash containment. 14 -Provide theme based marketing such as graphics, menus, and operational materials. F. CONCESSION FEE In consideration for the rights obtained hereunder, Concessionaire shall pay $2,800 per month, payable on the first day of each month for the following month. For example: rent for October is due on October I at. A 3% late fee will be added if payment is not received by the 10th of the month. G. SPECIAL CONSIDERATIONS AT A ZOO FACILITY Because of special requirements and considerations for Zoo animal safety, special restrictions may be necessary asfaras items sold; food packaging, location of portable carts, etc. The Zoo Manager must approve all menu items, packaging and cart locations (or changes to above). H. VISITOR SERVICES Customer satisfaction and visitor service is of utmost importance. It is mandatory that our food concessions be run in an efficient, courteous manner by staff that is clean and neatly dressed, presenting a Positive imaaeJorshe_7_nn_Rnna�.--.-...,:,._ _._ x __ ... . uniform" approved by Zoo Manager, 1. TENANTIMPROVEMENTS Concessionaire shall provide detailed plans of all tenant improvements to be completed and submitted to City by 90 days after the commencement of the agreement. All non-structural tenant improvements shall be completed by six months after the commencement of the agreement. All structural tenant improvements shall be completed by one year after commencement of the agreement. Concessionaire shall work with City on a more detailed timeline once details of tenant improvements are available.