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Contract 2019-09A WATERFRONT PARK LICENSE AGREEMENT THIS AGREEMENT made and entered into this (74 day of February 2019,by and between the CITY OF CLERMONT,whose address is 685 West Montrose Street, Clermont, Florida, a Florida Municipal Corporation, (hereinafter referred to as "CITY") and MISTER SOFTEE STRONG OF CENTRAL FLORIDA, LLC. whose address is 15360 County Road 565A, Suite C,Groveland,FL (hereinafter referred to as "MISTER SOFTEE"), and upon the terms and conditions hereinafter stated, and in consideration of the payment hereinafter stipulated and the performance by the MISTER SOFTEE of the covenants herein contained, the parties agree as follows: 1. License of Premises CITY does hereby grant a limited non-exclusive unto MISTER SOFTEE, and MISTER SOFTEE does hereby agree to the accept upon the terms and conditions hereinafter stated, the right to use that certain portion of CITY's Waterfront Park, as more particularly described in Exhibit "A" attached hereto and incorporated herein (hereinafter referred to as the "Premises"). By entering into this Agreement,the CITY and MISTER SOFTEE recognize and agree that MISTER SOFTEE shall operate and maintain a concession operation for provision of certain food-related items as preapproved by CITY and in strict accordance and compliance with the terms, conditions specifications contained in this Agreement, the City of Clermont RFP 19-018 titled "Waterfront Park Concession Services"and MISTER SOFTEE's response thereto,the terms and conditions of the RFP, MISTER SOFTEEs response and any and all addendum and amendments thereto are hereby incorporated and made a part hereof. 2. Term of License The initial term of this License shall begin as of the date of this Agreement and shall expire on February 28, 2020, unless otherwise terminated hereunder. MISTER SOFTEE shall have the option, subject to the conditions contained herein and approval by CITY,to renew the License for three (3) additional one-year terms. To exercise the option hereunder, MISTER SOFTEE shall provide to CITY written notice of its intent to exercise the option at least thirty(30) days prior to the expiration of the initial term of the License or any renewal term thereafter. Additionally, at the time of the notice to CITY, MISTER SOFTEE shall not be in default of any of the conditions of this Agreement. The CITY shall have the right to not renew the Agreement. In the event that the MISTER SOFTEE fails to exercise the option or options as contained herein or the CITY does not consent to the renewal, the License shall terminate as of the last day of the applicable license period. 3. License and Permit Fee A. Unless otherwise agreed to by the parties in writing MISTER SOFTEE shall pay to CITY an annual non-refundable permit fee of FOUR HUNDRED TWENTY DOLLARS ($420.00). Thereafter, MISTER SOFTEE shall pay to CITY the annual permit fee within thirty (30) days of commencement date of each subsequent term hereunder or each term under any authorized renewal of this Agreement. 1 B. In addition to the annual permit fee, MISTER SOFTEE shall pay to CITY the sum of TWO HUNDRED DOLLARS ($200.00) for each month, or portion thereof, in which MISTER SOFTEE used the Premises commencing March 16th, 2019. The payment shall be made to CITY on or before the Tenth day of the month immediately following the month, or portion, thereof, where MISTER SOFTEE used the Premises. 4. Use and Care of Licensed Premises A. The Premises shall be used by MISTER SOFTEE for the operation and maintenance of the concession operation, as more specifically described and as contemplated in RFP 19-018 and MISTER SOFTEE's response thereto. The use shall be in accordance with all applicable laws and regulations. B. The MISTER SOFTEE shall use and occupy the Premises in a safe and proper manner and shall keep the Premises in a clean and safe condition. C. MISTER SOFTEE shall be permitted to sell food products,provided however, that CITY shall have the unconditional right to approve the sale of any food products. D. MISTER SOFTEE shall operate the concession facility in accordance with all applicable laws, regulations and ordinances and shall, unless otherwise agreed in writing, maintain the operating hours as set forth in RFP 19-018 or as otherwise agreed to by the parties. Nothing herein shall require the MISTER SOFTEE to open the concession facility during inclement weather, subject to approval by CITY, any unforeseen power and/or utility interruptions, and the following holidays: Thanksgiving Day, Day before Christmas (Christmas Eve) and Christmas Day. E. MISTER SOFTEE acknowledges that from time to time special events are held at Waterfront Park. The City reserves the right to block out dates, limit hours of operation, or authorize other vendors that may compete with MISTER SOFTEE as part of special events taking place at Waterfront Park. MISTER SOFTEE may be required to close or adjust its hours of operation to accommodate any of these special events. MISTER SOFTEE, however, further acknowledges that the CITY shall have the exclusive right in determining what shall be considered or defined as a "special event". Furthermore, CITY reserves the right to permit concession facilities other than such provided by MISTER SOFTEE, reasonably restrict access and parking related to the Premises or other measures as are necessary to accommodate the special events. 5. Effective Date This License shall be in full force and effect as of March 16, 2019. 6. Peaceful Occupancy by MISTER SOFTEE If MISTER SOFTEE shall fully observe and perform all of the covenants and conditions of this License on its part to be performed, the CITY hereby covenants and agrees that at all times the 2 MISTER SOFTEE shall have the peaceful possession and quiet enjoyment of the Premises during the term hereof without any manner of interference or hindrance from the CITY or any person or persons, lawfully claiming by, through or under the CITY. MISTER SOFTEE agrees to comply with conditions such as may reasonably be established by the CITY to maintain the security of the Premises and assets belonging to both the CITY and MISTER SOFTEE. 7. Payment of Taxes The MISTER SOFTEE agrees that the MISTER SOFTEE will, during the term of this License, pay all taxes levied by any governmental taxing authority on machinery or equipment used by the MISTER SOFTEE on the Premises and any sales or use tax levied or assessed against the MISTER SOFTEE by any governmental taxing authority in connection with MISTER SOFTEE's use and occupancy of the Premises, provided however, that the CITY shall reasonably cooperate to assist MISTER SOFTEE in minimizing such taxes. 8. Past Due Required Payments MISTER SOFTEE covenants and agrees that any and all arrearage in any payment required hereunder, shall bear interest from the date upon which such payment became due and payable at the then prevailing prime rate as announced in the Wall Street Journal or similar publication plus three percent (3%) per annum, not to exceed the maximum rate permitted by law (the "Default Rate"). 9. Insurance—Provided by MISTER SOFTEE A. MISTER SOFTEE covenants and agrees to provide and maintain, at all times during the term of this License,policies of insurance insuring MISTER SOFTEE and CITY against any and all claims, demands, actions and causes of action whatsoever for injuries received and damage to property in connection with the use, occupation, management and control of the Premises and the improvements thereon. Such policies of insurance shall insure CITY and MISTER SOFTEE in an amount not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000) to cover claims of any one person from any single or specific cause that may arise or to be claimed to have arisen against CITY or MISTER SOFTEE, as aforesaid. No thing herein shall be construed as a waiver, either in whole or in part of CITY's right of sovereign immunity as provided by Section 768.28, Florida Statutes, or its successor. B. Certificates of the issuance shall be delivered to CITY as evidence of the compliance by MISTER SOFTEE with the terms and provisions contained herein. Each of the said insurance policies shall be issued by a company or companies authorized to do business in the State of Florida and have an A.M. Best Company Rating of"A" or better and a Financial Size Category of"VII"or better or as otherwise approved by CITY. Should MISTER SOFTEE fail to maintain such insurance in force, the CITY may,but shall not be obligated to, procure the same and advance funds for the payment of the cost thereof for and on behalf of MISTER SOFTEE and all such payments shall be considered as rent 3 immediately due, upon written demand therefore and shall be included in any lien for rent due and unpaid. C. If during the period which an insurance company is providing the coverage required by this License, an insurance company shall: 1) lose its Certificate of Authority, 2) no longer satisfy the minimum requirements for operating in Florida,or 3)fail to maintain the Best Rating and Financial Size Category, MISTER SOFTEE shall, as soon as MISTER SOFTEE has knowledge of any such circumstance,promptly notify the CITY and promptly replace the insurance coverage provided by the insurance company with a different insurer meeting the requirements of this License. Unless MISTER SOFTEE replaces the unacceptable insurer with an insurer that satisfies the requirements of the above, within fifteen (15) days after receiving actual notice of the shortcomings concerning the unacceptable insurer, MISTER SOFTEE shall be deemed in default of this License. D. The CITY may review the aforementioned liability coverage at any applicable renewal period to verify the average market or industry standard for liability insurance related to the operation of a concession facility to see if there is sufficient liability coverage. If the CITY, after review of the surveys, acting reasonably, deems the liability coverage is inadequate, MISTER SOFTEE shall supply the coverage CITY, acting reasonably, deems to be adequate at that period in time. At no time shall liability coverage ever decrease below what is stipulated in the preceding paragraphs. 10. Rules—Compliance by MISTER SOFTEE The MISTER SOFTEE shall, in all material respects, promptly execute and comply with, at its sole expense,all present and future statutes,ordinances,rules,orders,regulations and requirements of the federal,county,city and state governments and of any and all their departments and bureaus, which may be applicable to the Premises or MISTER SOFTEE's use thereof. 11. Hold Harmless A. The MISTER SOFTEE covenants and agrees that MISTER SOFTEE will indemnify and save harmless the CITY from and against any and all liability,liens,claims, demands, damages, expenses, fees, fines, penalties, suits, proceedings, actions and causes of action of any kind, whether actual or alleged, arising from or related to, the use, occupation , management or control by MISTER SOFTEE of the Premises and the improvements thereon, or which result from any actual or alleged breach, violation or nonperformance of any covenant, condition or agreement herein contained on the part of the MISTER SOFTEE except for claims based on the willful or negligent acts or inactions of CITY. To include,but not specifically limited to,any claim,demand,or damages related to any personal injury or property damage resulting either directly or indirectly from the use or rental of any equipment of any kind by MISTER SOFTEE. The MISTER SOFTEE covenants and agrees that the MISTER SOFTEE will, at the MISTER SOFTEE's expense, defend any and all such actions, suits or proceedings which may be brought against the CITY or in which the CITY may be named as a party with others in any such action or proceedings, at all levels, including appeal,to which the CITY may be a party. In the event 4 of joint negligence on the part of the CITY and MISTER SOFTEE,any loss and costs shall be apportioned in accordance with the provisions of Section 768.31, Florida Statutes, the Uniform Contribution Among Tortfeasors Act, as it exists on the effective date of this License, subject to the recovery limits set forth in Section 768.28, Florida Statutes. B. In the Event the MISTER SOFTEE fails to perform under the provisions of this Section, within ten (10) days after due notice, the CITY may at its option, take whatever reasonable action the CITY reasonably deems necessary to cure the MISTER SOFTEE's failure to perform, and the MISTER SOFTEE agrees to pay the CITY for all damages, costs, fees, expenses, judgments, charges and reasonable attorneys' fees incurred by the CITY in exercising it rights under this License. 12. Default The following events shall constitute defaults hereunder by the MISTER SOFTEE: A. Monetary Default. Failure to pay any amount or other charges required under the provisions of this License promptly when due. B. Non-Monetary Default. Failure to fully and promptly perform and comply with each and every term, provision, covenant and condition of this License except for a Monetary Default as defined above. C. An Event of Default shall have occurred in the event of a Monetary Default by MISTER SOFTEE and, unless otherwise provided herein, the continuance of such default for a period of fifteen (15) days after receipt of written notice thereof, or in the event of a Non-Monetary Default and the continuation of such Default for a period of thirty(30)days after written notice thereof, the CITY may, at the CITY's option and sole discretion, and in addition to any other remedy or right given hereunder or by law,without further demand or notice, terminate this License on the date specified in said notice and retake possession of the Premises, including all improvements thereon. D. The remedies set forth above, shall be deemed to be cumulative, and shall not preclude the CITY from enforcing any other remedy or right provided to the CITY hereunder or by law. In all events, the MISTER SOFTEE shall remain liable for the payment of any and all sums due under this License until paid in full, including, without limitation, all rents, all expenses for physical damage, reasonable attorneys' fees, and all costs incurred in enforcing any remedy set forth herein or provided by law or otherwise. E. Receipt and acceptance by CITY of payments or charges owing by MISTER SOFTEE shall not constitute or be deemed to be a waiver by CITY of CITY's rights and remedies hereunder, nor a cure of MISTER SOFTEE's default unless (i) the amounts received are in strict compliance with amounts due to CITY and represent the full amount required; and (ii) MISTER SOFTEE is not otherwise subject to an Event of Default under any of the remaining obligations and requirements imposed upon MISTER SOFTEE by this License. 5 13. Termination Without Cause Notwithstanding the above, CITY shall have the right to terminate this License without cause, at any time and for any reason upon giving MISTER SOFTEE ninety (90) days written notice. The termination shall be effective as of the date set forth in the termination notice. 14. Force Majeure Whenever any non-monetary performance is required of MISTER SOFTEE hereunder, then MISTER SOFTEE will be permitted to effect such performance within the time period provided therefore in this License, or if, for reasons beyond MISTER SOFTEE's reasonable control (including,without limitation,acts of God,declared or undeclared war,the existence of injunctions or requirements for obtaining licenses,permits or other compliance with applicable laws,rules and regulations), such performance is not reasonably possible within such time periods, then the time for such performance shall be extended until removal of such reasons beyond MISTER SOFTEE's reasonable control, provided that MISTER SOFTEE commences such performance (or cure) as soon as reasonably possible and diligently pursues such performance or cure. 15. Rights and Waiver of Covenants The rights of the CITY and MISTER SOFTEE under this License shall be cumulative and nonexclusive as to those provided by statute. No consent or waiver by the CITY or MISTER SOFTEE to or of any breach of any covenant, condition or duty of the other shall be construed as a consent to or waiver of any other breach of the same or any other covenant, condition or duty. No such consent or waiver shall be valid unless in writing, signed by the CITY or MISTER SOFTEE, as the case may be, and no such consent or waiver shall be implied by the failure of the CITY or MISTER SOFTEE to declare a forfeiture or for any other reason. 16. Assignment of Rights MISTER SOFTEE may not assign,transfer,mortgage,pledge,hypothecate or encumber the rights granted herein, or an interest therein, without the prior written consent of the CITY. 17. Surrender of Premises Upon Termination Except as may otherwise be provided herein, the MISTER SOFTEE covenants and agrees that upon the termination of this License, whether by lapse of time or otherwise, it will, at once, peaceably and quietly, vacate, surrender and deliver up to the CITY, the Premises. 18. Time It is covenanted and agreed between the parties hereto that time is of the essence in this License and this provision shall apply to all terms and conditions contained herein. 6 19. Validity, Performance and Enforcement The laws of the State of Florida shall govern the validity, performance and enforcement of this License. Venue for any action hereunder shall be Lake County, Florida. The invalidity or unenforceability of any provision of this License shall not meet or impair any other provision. 20. Mutual Covenants Except as hereinbefore or otherwise specifically provided, the covenants, agreements, conditions, obligations and provisions herein contained shall extend to, bind and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors and assigns, and wherever either the word "CITY" or "MISTER SOFTEE" is used in this License, it shall be deemed to mean"CITYs"or"MISTER SOFTEEs", respectively, wherever the context permits or requires,and when the singular and/or neuter pronouns are used herein,the same shall be construed as including all persons and corporations designated respectively as CITY or MISTER SOFTEE in the heading of this instrument wherever the context requires. 21. No Partnership CITY does not, in any way or for any purpose, become a partner of MISTER SOFTEE in the conduct of MISTER SOFTEE's business or otherwise, or a joint venture, or member of a joint enterprise with MISTER SOFTEE. 22. Liability of CITY CITY shall not be responsible in any manner for any loss of or damage to the Premises, or injury to persons resulting from or occurring by reason of any future condition, detect, matter, thing, action or inaction, or for the acts, omissions or negligence of other persons or MISTER SOFTEE in or about the Premises, unless said injury or loss results from the acts, omissions or negligence of CITY. Nothing herein shall be construed as a waiver, either in whole or in part of CITY's right of sovereign immunity as provided by Section 768.2 8, Florida Statutes, or its successor. 23. Dispute Mediation Any dispute arising out of this License shall be submitted to non-binding mediation by a duly qualified and certified mediator practicing in the Fifth Judicial Circuit of Florida, and no action at law or in equity shall be filed in any state or federal court by either party hereto against the other until such time as the mediator has declared an impasse. 24. Miscellaneous A. Records. It is expressly understood and acknowledged by MISTER SOFTEE that any records related to the operation or maintenance of the Premises may be considered public records pursuant to Florida Law. MISTER SOFTEE covenants that it will comply with all applicable aspects of Florida's Public Records Act. 7 B. MISTER SOFTEE Employee Conduct. MISTER SOFTEE personnel shall conduct their actions and business while on the Premises in accordance with all applicable laws, regulations and policies established by MISTER SOFTEE for its employees. C. Written Notice. Written notice shall be given to the Parties at the following addresses or such other place or other person, as each Party shall designate by similar notice. As to MISTER SOFTEE: Mister Softee Strong of Central Florida, LLC. 15360 County Rd. 565A, Suite C Goveland, FL 34736 Attn: Patrick Wright, Manager As to the CITY: Darren Gray, City Manager City of Clermont 685 West Montrose Street Clermont, Florida 34711 With Copy to: Daniel F. Mantzaris, City Attorney deBeaubien, Knight, Simmons, Mantzaris and Neal, LLP 332 N. Magnolia Avenue Orlando, FL 32802-0087 D. Entire Agreement/Severability. This License constitutes the entire agreement between the Parties with respect to the subject matter contained herein and may not be amended, modified or rescinded, unless otherwise provided in this License, except in writing and signed by all parties hereto. Should any provision of this License be declared to be invalid by any act of law or court or administrative determination, the remaining provisions of this License shall remain in full force and effect unless such provision which is found to be invalid substantially alters the benefits of this License for either Party. IN WITNESS WHEREOF, the Parties hereto have caused this License to be executed by their duly authorized officers, and copies delivered to each Party, as of the day and year first above stated. 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates noted below. MISTER SOFTEE STRONG OF CENTRAL FLORID LC. CITY OF CLERMONT, FL A Florid icipal Corporation By, By: Patrick Wright, Manager Darre 1'b y anager Date. /� Date: id I a l' 1 1 9 ATTEST: ATTEST: / ByCl . � (Signature) Tracy Ackroyd, ity Clerk (Name Printed or Typed) 9 EXHIBIT A Proposal Requirements Mister Softee Strong Operating Plan: Mister Softee Strong's Staff members will operate the concession using normal procedures. The Mini and surrounding areas will be kept clean. In addition to the non-refundable annual permit fee of$420.00, Mister Softee Strong will pay the City of Clermont $300.00 a month. ii. Marketing Plan: Our focus will be to serve the very best soft serve ice cream to all guest at Champions Splash Park. We will utilize our contacts and followers of our social medial accounts, and the City of Clermont local residential contacts to promote the fact that we are now serving the very best ice cream at Champions Splash Park on the weekends. We will work with the South Lake Chamber of Commerce to schedule a grand opening event. Our Menu: MISTER SOFTEE STRONG is a mobile ice cream truck serving premium soft serve ice cream in Clermont, FL and surrounding areas. The owners are residents of the City of Clermont. You can also find this Ice Cream Truck out cruising because we specialize in serving the people of our community. Our trucks feature a sleek custom paint job, with vibrant graphics and shiny blue wheels that will make you happy that you hired Mister Softee Strong of Central Florida. Our "Ice Cream Truck "Jingle" will keep everybody entertained. Our friendly professional staff is committed to servicing you. Below items on our menu priced from $2-$7. Soft Serve Ice Cream Soft Serve Ice Cream Cones: (Cake cones, cup)-sm$2.00 med$3.00 Dipped Cones: sm$3.00 med $4.00 Waffle Cones: $4.00 with topping$5 Sundaes: (Chocolate, Strawberry, Pineapple, Chocolate Nut, Crushed Cherry, Butterscotch)- $5.00 Milkshakes: (Strawberry, Chocolate, Oreo, Vanilla, Coffee)- 16oz$5.00 21oz $6.00 Banana Boat-$7.00 Soda Float-$5.00 Cartwheel-$4.00 Waffle Nachos-$6.00 Specialty Items Banana Split Milk Shake-16oz$5.00 21oz$6.00 Oreo Mountain- $5.00 Oreo Waffle Cone- $5.00 Mint Waffle Cone-- $5.00 Yummy Gummy Sundae-$4.00 Toppings- $ .50 Rainbow Sprinkles Chocolate Sprinkles Fruity Pebbles Cinnamon Toast Crunch Crunches Cherry Dip Chocolate Dip Peanuts/Walnuts Sundaes $5 Chocolate Cherry Butterscotch Strawberry Cannel Strawberry Shortcake Chocolate Chocolate Sundae Pineapple Cinnimon Roll Rasberry Dream Blackberry Dream Banananut Chocolate Nut Sundae Silly Willy Drinks Water, Soda, Coffee and Hot Chocolate Waterfront Park W '�S E 61Proposed Concession Area CLERmoNT Choice ofp� 10, � e Ar. 1. 1 11111111: caP �P aG My O 10, 1111 / Proposed Concession Area CEDAR 5T Hours of Operations Mister Softee Strong We will staff our Concessions beginning March 23,2019 through November 31, 2019 on Saturdays from 11:OOa to 5:OOp and Sundays from 12:00noon to 4:OOp. We reserve the right to close our concessions operation in the event of thunderstorms. Every effort will be made to cover our normal concessions hour. But,at times our ongoing event schedule may prohibit us from opening. In those situations,we will give advance notice to the Parks and Recreations Department. We will offer bottled water and non-alcoholic drinks. If we see that there is a demand for food items, we will explore offering prepackaged food items. Our license through the Dept. of Agriculture only allows us to serve prepackaged food items. During the colder months we do offer hot chocolate and coffee. Mister Softee Strong Truck Pictures 114 il , \If/114 \ At . , is A , , , j . '..4;.%.14:00\\e,'. '. 4-10- , . „„„t\ k I 4... 4104 a: "'--.. ?41t4t IV g r rt y yO 411111111PPIP'' OP01" i, Or Mister Softee Uniforms OR .. , i „. . f.......w.. ifc-----).- , �I f ref ... 1. , , k....--..„..07-:5 • 0 %Ile r ',.'i 1%at \ •ft .t x.+ All Staff are required to wear approved uniform above. i SECTION — J SIGNATURE PAGE By signing this section the respondent certifies that: 1. It satisfies all legal requirements (as an entity) to do business with the City. 0 2. The undersigned respondent acknowledges that award of a contract may be contingent upon a determination by the City and that the respondent has the capacity and capability to successfully perform the contract. 3. The proposer hereby certifies that it understands all requirements of this solicitation, and that the undersignedindividual othly authorized to xecute er transactions eequ required byts proposal document and any contract(s) and/or award of this solicitation. Purchasing Agreements with Other Government Agencies This section is optional and will not affect contract award. If the termslty of Clermont and conditions, forahe your company, would your company sell under the same same price, to other governmental agencies in the State of Florida? Each governmental agency desiring to accept to utilize this contract shall eredbe ea pd received le rits by it. [�n uYesasl I es and shall be liable only for materials or services o No (Check one) aBy cii signing below, respondent ca acuity to execute thisterms, reponse.The respondent specifications certifies thatstated iit'can this and will provide and acting in an authorizedP make available, at a minimum,the items set forth in this solicitation. Respondent Information and Signature 4141,Company Name(print): 1 SFO - 2 ;C/ ••i • iaAJD {I. k k MILIIII"Pw° r ID Street Address: .Mailing Address(if different): , A ` Telephone: '4-6 -1, No Fax kt (IA Email: 151—eV.5, � 2: � ,L--, A ,�lOW( Payment Terms: % days, net T Professional. License No.: FEIN: � _ _.� !"� r — a ate: F I Signature: PM" �� D Print Name: rll` 1I'L Title: �.J(1 i a e i� Does the respondent accept payment using the City's MASTERCARD? N1 Yes 0 No END OF SECTION J RFP No: 19-018 Page 35 of 36