HomeMy WebLinkAboutAgreement A-16-701 with El Taconazo Courthouse Park.pdf Agreement No. 16-701
16-1454
MFS-16
1 Courthouse
2 LICENSE AGREEMENT
3 THIS LICENSE AGREEMENT, made and entered into this 131h day of December,
4 2016, by and between the COUNTY OF FRESNO, a political subdivision of the State of
5 California, 2220 Tulare Street, 6th Floor, Fresno, California, 93721-2120, hereinafter referred to
6 as "LICENSOR," and Daisy Faola Garcia, a sole proprietor doing business as El Taconazo
7 Catering, the address of which is 807 Lemieux Lane, Clovis, CA 93619, hereinafter referred to
8 as "LICENSEE." LICENSOR and LICENSEE are hereinafter together referred to as the
9 "Parties, " and singularly as a "Party."
10 WHEREAS, LICENSOR owns the property known as "Courthouse Park" located at
11 Tulare and "M" Street in Fresno, CA, hereinafter referred to as "Premises;" and
12 WHEREAS, LICENSOR and LICENSEE mutually desire to allow LICENSEE to use
13 the Premises for the operation of mobile/portable food service unit(s); and
14 WHEREAS, LICENSOR finds that LICENSEE'S operation of said mobile/portable food
15 service unit(s) is in the public interest and that the LICENSEE'S operating on the Premises will
16 not substantially conflict or interfere with the use of the Premises by LICENSOR.
17 NOW, THEREFORE, in consideration of the mutual promises, covenants and
18 conditions herein contained, the Parties and each of them do agree as follows:
19 1. GRANT OF LICENSE: LICENSOR grants to LICENSEE an exclusive license to
20 operate mobile/portable food service unit(s)on the Premises for the benefit of employees,
21 guests, and patrons of LICENSOR. LICENSEE must have LICENSEE'S business name
22 printed legibly on both sides of all mobile/portable food service unit(s) operating on the
23 Premises. Failure to do so may result in not being allowed access to the Premises.
24 2. LOCATION: LICENSOR shall designate areas within Courthouse Park identified
25 as Area 1, 2 and 3 as shown in Exhibit'A" attached hereto and by this reference incorporated
26 herein as the locations for LICENSEE'S portable food service equipment. LICENSEE shall
27 operate solely from these designated locations. Said locations may be changed upon mutual
28 written agreement between the Parties. The food service carts and mobile/portable food
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1 service facilities, and all ancillary equipment, shall be removed at the end of each day of
2 operation. No equipment shall be left at the Premises overnight. LICENSEE'S setup shall not
3 interfere with pedestrian traffic traveling to the various County offices. Ample travel ways shall
4 be maintained at all times by LICENSEE.
5 3. TERM: This Agreement shall be for a term commencing on or about January 1,
6 2017 and ending December 31, 2021.
7 4. TERMINATION.
8 A. Breach of Contract-The LICENSOR may immediately suspend or terminate
9 this Agreement in whole or in part, where in the determination of the LICENSOR there is:
10 1) A failure to comply with any term of this Agreement;
11 2) Improperly performed service.
12 In the event of breach of this Agreement by LICENSEE, LICENSOR may immediately
13 terminate this Agreement. If LICENSEE terminates any time after execution, LICENSOR
14 reserves the right, at its sole discretion, to award the Agreement to the next highest bidder, or
15 re-bid the Agreement and LICENSEE will not be eligible to bid at that bid opening but will be
16 eligible at any successive bid opening for the subject Agreement.
17 B. Without Cause - Under circumstances other than those set forth above, this
18 Agreement may be terminated by LICENSOR upon the giving of thirty (30) days advance
19 written notice of an intention to terminate to LICENSEE. This Agreement may also be
20 terminated without cause by LICENSEE giving thirty(30) days advanced notice in writing to
21 LICENSOR.
22 5. COMPENSATION: In consideration for granting this exclusive License,
23 LICENSEE shall pay to LICENSOR the sum of$12,000.00 per year for the use of the Premises
24 payable in equal monthly installments of$1,000.00 on or about the first day of each month
25 beginning February 1, 2017. LICENSEE's bid deposit in the amount of$1,000.00 will be
26 credited to the initial installment(s). If payment is not made by the 7t" of each month, a 10%
27 late penalty charge will be due and payable with said payment. If payment is not made within
28 three (3)weeks of the first of each month, this Agreement may terminate as of the last day of
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1 said month. Payment shall ba made &]the County of Fresno, Department of Public Works and
2 P|annin0, ATTN: P@[hG and Grounds yW8O8g8r- 2220 Tulare Street, nm Floor, Fresno, CA
3 93721-2120. Should LICENSEE terminate this Agreement 8G provided herain, no refund of
4 any prepaid fee shall be rnade, regardless of whether LICENSEE shall have exercised its
5 privileges under this Agreement for less than a full month to which such payment applies.
0 8. INDEPENDENT CONTRACTOR: In performance of the vv0dk, duties and
7 obligations assumed by LICENSEE under this Agreement, it is mutually understood and
8 agreed that LICENSEE, including any and all of the LICENSEE'S officers, agents, and
8 employees will at all times be acting and performing as an independent CONTRACTOR, and
10 shall act inan independent capacity and not aoon officer, agent, servant, employee, joint
11 wentuner, padnar, or associate of the LICENSOR. Furtherrnore, LICENSOR 8h8U have no right
12 tV control or supervise ordirect the manner or method by which LICENSEE shall perform its
13 work and function. Hovvever. LICENSOR shall retain the right to administer this Agreement so
14 as to verify that LICENSEE is performing its obligations in accordance with the terms and
15 conditions thereof.
10 LICENSEE and LICENSOR shall comply with all applicable provisions of law and the
17 rules and regulations, if any, of governmental authorities having jurisdiction over matters the
18 subject thereof.
19 Because of its status as an independent CC)NTFb4CT[>R. LICENSEE shall have
20 absolutely no right to employment rights and benefits available to LICENSOR employees.
21 LICENSEE ohe|| be solely liable and responsible for providing to, Or On behalf of, its employees
22 all legally required employee benefits. In addition, LICENSEE shall be solely responsible and
23 save LICENSOR harmless from all matters relating 0J payment Of LICENSEE'S employees,
34 including compliance with Social Security withholding and all other regulations governing such
25 matters. It is acknowledged that during the 1arrn of this Aonggrnant. LICENSEE may be
26 providing services to others unrelated to the LICENSOR ortothis Agreement.
27 7. : Any matters of this Agreement may be modified from time to
28 time by the written consent of all the parties without, in any way, affecting the remainder.
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1 8. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this
2 Agreement nor its respective rights or duties hereunder, without the prior written consent of the
3 other party. Such consent may be given on LICENSOR's behalf by the Fresno County Director
4 of Public Works and Planning or designee.
5 9. HOLD HARMLESS: LICENSEE agrees to indemnify, save and hold harmless,
6 and at LICENSOR'S request, defend LICENSOR, its officers, agents, and employees from any
7 and all costs and expenses including attorney fees and litigation costs, damages, liabilities,
8 claims and losses which shall be caused by or may arise from the exercise by LICENSEE of
9 any rights herein granted, and from all costs and expenses, attorney fees, claims, demands
10 and causes of action that my be incurred by or brought against LICENSOR, its successors or
11 assignees, caused by, arising out of, or in any way connected with the exercise by LICENSEE
12 of any rights herein granted.
13 10. INSURANCE: Without limiting the LICENSOR'S right to obtain indemnification
14 from LICENSEE or any third parties, LICENSEE, at its sole expense, shall procure and
15 maintain in full force the following insurance policies throughout the term of this Agreement:
16 A. Commercial General Liability Commercial General Liability Insurance with
17 limits of not less than One Million Dollars ($1,000,000.00) per occurrence and an annual
18 aggregate of Two Million Dollars ($2,000,000.00). This policy shall be issued on a per
19 occurrence basis. LICENSOR may require specific coverage including completed operations,
20 products liability, contractual liability, Explosion-Collapse-Underground, fire legal liability or any
21 other liability insurance deemed necessary because of the nature of this contract.
22 B. Automobile Liability Comprehensive Automobile Liability Insurance with limits
23 for bodily injury of not less than Two Hundred Fifty Thousand Dollars ($250,000.00) per
24 person, Five Hundred Thousand Dollars ($500,000.00) per accident and for property damages
25 of not less than Fifty Thousand Dollars ($50,000.00), or such coverage with a combined single
26 limit of Five Hundred Thousand Dollars ($500,000.00). Coverage should include owned and
27 non-owned vehicles used in connection with this Agreement.
28 C. Worker's Compensation A policy of Worker's Compensation insurance as may
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1 be required by the California Labor Code.
2 LICENSEE shall obtain endorsements to the Commercial General Liability insurance
3 naming the County of Fresno, its officers, agents, and employees, individually and collectively,
4 as additional insured, but only insofar as the operations under this Agreement are concerned.
5 Such coverage for additional insured shall apply as primary insurance and any other insurance,
6 or self-insurance, maintained by LICENSOR, its officers, agents and employees shall be
7 excess only and not contributing with insurance provided under LICENSEE'S policies herein.
8 This insurance shall not be cancelled or changed without a minimum of thirty(30) days
9 advance written notice given to LICENSOR.
10 Within ten (10) days from the date LICENSEE executes this Agreement, LICENSEE
11 shall provide certificates of insurance and endorsement as stated above for all of the foregoing
12 policies, as required herein, to the County of Fresno, Department of Public Works and
13 Planning, Attn: Parks and Grounds Manager, 2220 Tulare Street, 6th Floor, Fresno, CA 93721-
14 2120, stating that all such insurance policies have been obtained and the coverage provided
15 thereunder is in full force; that the County of Fresno, its officers, agents and employees will not
16 be responsible for any premiums on the policies; that such Commercial General Liability
17 insurance names the County of Fresno, its officers, agents, and employees, individually and
18 collectively, as additional insured, but only insofar as the operations under this Agreement are
19 concerned. Such coverage for additional insured shall apply as primary insurance and any
20 other insurance, or self-insurance maintained by LICENSOR, its officers, agents and
21 employees shall be excess only and not contributing with insurance provided under
22 LICENSEE'S policies herein; and that this insurance shall not be cancelled or changed without
23 a minimum of thirty (30) days advance, written notice given to LICENSOR.
24 In the event LICENSEE fails to keep in effect at all times insurance coverage as
25 herein provided, the LICENSOR may, in addition to other remedies it may have, suspend or
26 terminate this Agreement upon the occurrence of such event.
27 All policies shall be with admitted insurers licensed to do business in the State of
28 California. Insurance purchased shall be purchased from companies possessing a current
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1 A.M. Best, Inc. rating of A FSC Vill or better.
2 11. PERMITS: LICENSEE shall provide to the foregoing address a copy of a valid
3 Permit To Operate (Permit) issued by the County of Fresno, Department of Community Health,
4 Environmental Health Division not later than fourteen (14) days following the beginning of the
5 Term of this Agreement. LICENSEE understands that said Permit must be obtained on an
6 annual basis and LICENSEE shall provide a copy of any new annual Permit to the
7 aforementioned address within fourteen (14) days of obtaining the Permit. LICENSEE
8 understands that Permits are not transferable or refundable and said Permits become void
9 upon change of ownership. LICENSEE also understands that any new owner(s) and/or
10 operator(s), (if approved by LICENSOR as required in Section 8 above) must obtain a new
11 Permit prior to beginning operation.
12 12. AUDITS AND INSPECTIONS: The LICENSEE shall at any time during business
13 hours, and as often as the LICENSOR may deem necessary, make available to the LICENSOR
14 for examination all of its records and data with respect to the matters covered by this
15 Agreement. The LICENSEE shall, upon request by the LICENSOR, permit the LICENSOR to
16 audit and inspect all of such records and data necessary to ensure LICENSEE'S compliance
17 with the terms of this Agreement.
18 If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be
19 subject to the examination and audit of the Auditor General for a period of three (3) years after
20 final payment under contract(Government Code Section 8546.7).
21 13. LITTER AND CLEANUP: LICENSEE shall provide adequate trash disposal units
22 adjacent to the mobile/portable food service facility and shall be responsible for trash removal
23 and area cleanup, including raking or wet mopping on an as needed basis, but no less often
24 than daily. LICENSEE shall prevent staining of any grass, cement walkway or asphalt parking
25 area by insuring that no residue from the unit or food preparation will drip on the grass,
26 concrete or asphalt. Trash containers are to be removed when the mobile/portable food
27 service facility is removed.
28 14. SPECIFICATIONS: LICENSEE shall only sell food and food related products
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1 from mobile/portable food service unit(s) and no tables, stands or other methods of vending will
2 be allowed. No general merchandise shall be sold other than those items specifically approved
3 by LICENSOR. LICENSEE shall comply with all of the following:
4 A. The California Retail Food Code (Part 7 of Division 104 of the California Health
5 and Safety Code, commencing with Section 113700, hereinafter"CRFC")and regulations
6 promulgated thereunder, including but not limited to any future laws and regulations
7 enacted/promulgated to replace or supplement CRFC.
8 B. All County of Fresno Ordinances, including all regulations, policies and
9 requirements of the County of Fresno's Department of Community Health.
10 C. Any other laws, regulations or ordinances as they relate to mobile/portable food
11 concession units.
12 15. ELECTRICAL POWER: Electrical power is available from two (2) 110 volt, 20 amp
13 electrical outlets located at Areas 1 and 2 at no additional cost to LICENSEE.
14 16. DAYS OF OPERATION: LICENSEE shall provide food service Monday through
15 Friday, except County observed holidays, during hours mutually agreed upon between
16 LICENSOR and LICENSEE. LICENSEE shall not be required to provide service on such days
17 where inclement weather makes operation uneconomical.
18 17. ACCESS TO DESIGNATED AREAS 1 2 AND 3: LICENSEE shall have access to
19 food service location Areas 1 and 3 from Tulare Street and to location 2 from Fresno Street.
20 LICENSEE shall have access to the area of operation by truck (no larger than '/2 ton) or
21 automobile to setup and take down equipment. No access shall be allowed by such vehicle on
22 the remaining walkways directly surrounding the Courthouse or the adjoining grass areas.
23 Said access is only to be used for delivery of LICENSEE'S equipment in the morning and
24 pickup in the afternoon.
25 18. GOVERNING LAW: Venue for any action arising out of or relating to this License
26 Agreement shall only be in Fresno County, California. The rights and obligations of the parties
27 and all interpretation and performance of this License Agreement shall be governed in all
28 respects by the laws of the State of California.
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1 19. NOTICES: Any and all notices between either party under the terms of this
2 Agreement or by law shall be in writing and shall be deemed to be duly given if served when
3 personally delivered or deposited into the United States mail, with postage prepaid, registered,
4 and addressed to the respective addresses stated as follows:
5
County of Fresno El Taconazo Catering
6 Dept. of Public Works and Planning Daisy Faola Garcia
Parks and Grounds Manager 807 Lemieux Lane
7 2220 Tulare Street, 6th Floor Clovis, CA 93619
Fresno, CA 93721-2120 Office - (559) 307-8651
8 (559) 600-3004 Cell - (559) 790-0961
9 For all claims arising out of or related to this Agreement, nothing in this Section 19.
10 establishes, waives, or modifies any claims presentation requirements or procedures provided
11 by law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the
12
Government Code, beginning with section 810).
13
14 20. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement
15 between the LICENSEE and LICENSOR with respect to the subject matter thereof and
16 supersedes all previous Agreement negotiations, proposals, commitments, writings,
17 advertisements, publications, and understandings of any nature whatsoever unless expressly
18 included in this Agreement.
19
20
21
22
23 Ill
24 Ill
25
26
27
28 111
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1 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
2 executed as of the day and year first above written.
3 LICENSEE COUNTY OF FRESNO
4
5 By By:�_,...�
D isy Faol Garcia, Owner Ernest Buddy Me es, Chairman
6 Board of Supervisors
El Taconazo Catering
7 807 Lemieux Lane ATTEST:
Clovis, CA 93619 Bernice E, Seidel, Clerk
8 Board of Supervisors
9 Date: \,G—Z 1.-\So
By.
10 Deputy
11
REVIEWED AND RECOM NDED
12 FOR APPROVAL:
13
By:
14 Steven E. White, Dire or
15 Department of Public Works and Planning
16 APPROVED AS TO LEGAL FORM:
17 Daniel C. Cederborg, County Counsel
18 By.
e 19 uty
20 APPROVED AS TO ACCOUNTING FORM:
Oscar J. Garcia, CPA
21 Auditor-Controller/Treasurer-Tax Collector
22
By:
23 Deputy
24
25
26 FOR ACCOUNTING USE ONLY:
Budget Unit No.: 7910
27 Fund No.: 0001
28 Account No.: 3400
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Exhibit A
FRESN0 STREET
QArea 2 —.._._.._. J
604 605
Sheriff Jail
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X � O S 602
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FTI 71
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C7 a = n/
Area 3 0
TULARE STREET
Perms tied Entry and Trave( Routes
Area 1 = Enter off Tulare Street by Area 3
Area R = Enter off Fresno Street parking dot
Area 3 = Enter oFF Tulare Street parking lot