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HomeMy WebLinkAboutIce Rink Operations contract (executed) Arctic Zone Iceplex,LLC d/b/a Carmel Ice Skadium CRC-2017 Appropriation#902-4350900 ;P.O.#100809 Contract Not To Exceed$ 149,905.00 AGREEMENT FOR PURCHASE OF GOODS AND SERVICES THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES ("Agreement") is hereby entered into by and between the Carmel Redevelopment Commission (the "CRC"), and Arctic Zone Iceplex, LLC d/b/a Carmel Ice Skadium, an entity duly authorized to do business in the State of Indiana ("Vendor"). TERMS AND CONDITIONS 1. ACKNOWLEDGMENT, ACCEPTANCE: Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of same constitutes its acceptance of all of the Agreement's terms and conditions. 2. PERFORMANCE: CRC agrees to purchase the goods and/or services (the "Goods and Services") from Vendor using CRC budget appropriation number 902-4350900 funds. Vendor agrees to provide the Goods and Services and to otherwise perform the requirements of this Agreement by applying at all times the highest technical and industry standards. Vendor will not perform any of the Services detailed in Exhibit A prior to obtaining a written Notice to Proceed from the CRC. Upon receiving a Notice to Proceed, the Vender shall perform only those Services specifically detailed in the Notice. If the Vender desires clarification of the scope of any Notice to Proceed, the Vendor shall obtain such clarification from the CRC in writing, prior to performing the service set forth in the Notice to Proceed. Any services performed without the CRC's prior express written authorization will not be compensated. 3. PRICE AND PAYMENT TERMS: 3.1 Vendor estimates that the total price for the Goods and Services to be provided to CRC hereunder shall be no more than One Hundred Forty Nine Thousand Nine Hundred Five Dollars ($149,905.00) (the "Estimate"). Vendor shall submit an invoice to CRC no more than once every thirty (30) days detailing the Goods and Services provided to CRC within such time period. CRC shall pay Vendor for such Goods and Services within thirty-five (35) days after the date of CRC's receipt of Vendor's invoice detailing same, so long as and to the extent such Goods and Services are not disputed, are in conformance with the specifications set forth in Exhibit A, are submitted on an invoice that contains the information contained on attached Exhibit B, and Vendor has otherwise performed and satisfied all the terms and conditions of this Agreement. 3.2 Vendor agrees not to provide any Goods and Services to CRC that would cause the total cost of the Goods and Services provided by Vendor to CRC hereunder to exceed the Estimate, unless CRC has previously agreed, in writing, to pay an amount in excess thereof. 4. WARRANTY: Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to those certain specifications, descriptions and/or quotations regarding same as were provided to Vendor by CRC and/or by Vendor to and accepted by CRC, all of which documents are incorporated herein by reference, and that the Goods and Services will be delivered in a timely, good and workmanlike manner and free from defect. Vendor acknowledges that it knows of CRC's intended use and expressly warrants that the Goods and Services provided to CRC pursuant to this Agreement have been selected by Vendor based upon CRC's stated use and are fit and sufficient for their particular purpose. 5. TIME AND PERFORMANCE: This Agreement shall become effective as of the last date on which a party hereto executes same ("Effective Date"), and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the essence of this Agreement. [C:\Usrrslo leelAppDa[alLocalVvli rosofllWindowslTemporary Initmn FiI,\ConIu,L Outlook\BVPMOJ W U\CRC-GOODS SERVICES Arnie Zone Ice Skadimn Revised.doc:10/23/2017 12.54 PM] 1 Arctic Zone Iceplex,LLC d/b/a Carmel Ice Skadium CRC-2017 Appropriation#902-4350900;P.O.#100809 Contract Not To Exceed$ 149,905.00 6. DISCLOSURE AND WARNINGS: If requested by CRC, Vendor shall promptly furnish to CRC, in such form and detail as CRC may direct, a list of all chemicals, materials, substances and items used in or during the provision of the Goods and Services provided hereunder, including the quantity, quality and concentration thereof and any other information relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to furnish to CRC sufficient written warning and notice (including appropriate labels on containers and packing) of any hazardous material utilized in or that is a part of the Goods and Services. 7. LIENS: Vendor shall not cause or permit the filing of any lien on any of CRC's property. In the event any such lien is filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding, CRC shall have the right to pay such lien or obtain such bond, all at Vendor's sole cost and expense. 8. DEFAULT: In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Vendor's warranties; (b) fails to provide the Goods and Services as specified herein; (c)fails to make progress so as to endanger timely and proper provision of the Goods and Services and does not correct such failure or breach within five (5) business days (or such shorter period of time as is commercially reasonable under the circumstances) after receipt of notice from CRC specifying such failure or breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder, CRC shall have the right to (1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights and remedies available to CRC at law and/or in equity. 9 INSURANCE AND INDEMNIFICATION: Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer licensed to do business in the State of Indiana, such insurance as is necessary for the protection of CRC and Vendor from all claims for damages under any workers' compensation, occupational disease and/or unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness, disease or death of or to any of Vendor's agents, officers, employees, contractors and subcontractors; and, for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall cause its insurers to name CRC, the City of Carmel and Carmel Christkindlmarkt, Inc. as an additional insureds on all such insurance policies, shall promptly provide CRC, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be canceled without thirty (30) days prior notice to CRC. Vendor shall indemnify and hold harmless CRC from and against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and/or damages to any person or property arising from or in connection with Vendor's provision of Goods and Services pursuant to or under this Agreement or Vendor's use of CRC property. The Vendor is responsible for insuring its own assets and will provide a Certificate of Insurance to the CRC prior to commencement of operations that denotes the location of the Ice Rink as evidence that this location is covered under Vendor's policy. Vendor further agrees to indemnify, defend and hold harmless the CRC, the City of Carmel, and Carmel Christkindlmarkt, Inc., and their officers, officials, agents and employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney fees, and other expenses, caused by any act or omission of Vendor and/or of any of Vendor's agents, officers, employees, contractors or subcontractors in the performance of this Agreement. These indemnification obligations shall survive the termination of this Agreement. [C:\U8c1s\rn1 AppDat\Local\Microsoli\Windows\Temporary Internet Pilcs1Conient.Outlook\BVPMOJWIACRC-GOODS SERVICES Arctic Zone Ice Skadiuw Revised.doc:10/23/2017 12:54 PM) 2 Arctic Zone Iceplex,LLC d/b/a Cannel Ice Skadium CRC-2017 Appropriation#902-4350900;P.O.#100809 Contract Not To Exceed$ 149,905.00 10. GOVERNMENT COMPLIANCE: Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes which may be applicable to Vendor's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless CRC from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules, regulations and codes. This indemnification obligation shall survive the termination of this Agreement. 11. NONDISCRIMINATION: Vendor represents and warrants that it and all of its officers, employees, agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and CRC prohibiting discrimination against any employee, applicant for employment or other person in the provision of any Goods and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status. 12. E-VERIFY: Pursuant to I.C. § 22-5-1.7 et seq., as the same may be amended from time to time, and as is incorporated herein by this reference (the "Indiana E-Verify Law"), Vendor is required to enroll in and verify the work eligibility status of its newly-hired employees using the E-Verify program, and to execute the Affidavit attached herein as Exhibit D, affirming that it is enrolled and participating in the E-verify program and does not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the CRC with documentation indicating that it has enrolled and is participating in the E-Verify program. Should Vendor subcontract for the performance of any work under and pursuant to this Agreement, it shall fully comply with the Indiana E-Verify Law as regards each such subcontractor. Should the Vendor or any subcontractor violate the Indiana E-Verify law, the CRC may require a cure of such violation and thereafter, if no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or those set forth in the Indiana E-Verify Law. The requirements of this paragraph shall not apply should the E- Verify program cease to exist. 13. NO IMPLIED WAIVER: The failure of either party to require performance by the other of any provision of this Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof. 14. NON-ASSIGNMENT: Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not delegate its obligations under this Agreement without CRC's prior written consent. 15. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any of its officers, employees, contractors, subcontractors and agents are employees of CRC. The contract price set forth herein shall be the full and maximum compensation and monies required of CRC to be paid to Vendor under or pursuant to this Agreement IC:\Users\mleeWppData1Lncal\Microsoft Windows1Temporwy lnlmia Fik\Conte nt.Outlook\BVPMOIW U\CRC-GOODS SERVICES Arctic Zone Ice Skadium R vi,I.,Ioc,IO/23/2017 12.54 PM] 3 Arctic Zone Iceplex, LLC d/b/a Cannel Ice Skadium CRC-2017 Appropriation#902-4350900;P.O. #100809 Contract Not To Exceed$ 149,905.00 16. GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. 17. SEVERABILITY: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 18. NOTICE: Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: If to CRC: Carmel Redevelopment Commission AND Douglas C. Haney, 30 W. Main Street Suite 220 Corporation Counsel Carmel, Indiana 46032 Department of Law Attn: Corrie Meyer One Civic Square Carmel, Indiana 46032 If to Vendor: Arctic Zone Iceplex, LLC d/b/a Carmel Ice Skadium 16616 Southpark Dr. Westfield, IN, 46074 Attn: Mike Aulby Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. 19. TERMINATION: 19.1 Notwithstanding anything to the contrary contained in this Agreement, CRC may, upon notice to Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount representing conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 19.2 CRC may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount of conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 19.3 The CRC may terminate this Agreement pursuant to Paragraph 11 hereof, as appropriate. [C:1Users\tnleeWpDDataLLocaBMicrosori\WindowslTemporaryInternet Flies\Contenl.OWlnok\BVPMOIWI ICRC-GOODS SERVICES Anne Zone Ice Skadimn Revisul.doc:10/23/201712:54 PM] 4 Arctic Zone Iceplex,LLC d/b/a Carmel Ice Skadium CRC-2017 Appropriation#902-4350900;P.O.#100809 Contract Not To Exceed$ 149,905.00 20. REPRESENTATIONS AND WARRANTIES The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. 21. ADDITIONAL GOODS AND SERVICES Vendor understands and agrees that CRC may, from time to time, request Vendor to provide additional goods and services to CRC. When CRC desires additional goods and services from Vendor, the CRC shall notify Vendor of such additional goods and services desired, as well as the time frame in which same are to be provided. Only after CRC has approved Vendor's time and cost estimate for the provision of such additional goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in writing, to provide such additional goods and services, shall such goods and services be provided by Vendor to CRC. A copy of the CRC's authorization documents for the purchase of additional goods and services shall be numbered and attached hereto in the order in which they are approved by CRC. 22. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19 hereinabove, this Agreement shall be in effect from the Effective Date through March 11, 2018. The Agreement may be renewed with the written consent of both parties. 23. HEADINGS All heading and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 24. BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations set forth in Agreement. 25. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than CRC and Vendor. 26. IRAN CERTIFICATION: Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this document, it does not engage in investment activities within the Country of Iran. 27. ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 28. ENTIRE AGREEMENT: This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire agreement between Vendor and CRC with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. Notwithstanding any other term or condition set forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit attached to this Agreement or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. [C:IUsers1mleeWppData\Local1vlicrosoR\Windows\Temporary Internet Files\ConI I Outlook\DVPMOJWU\CRC-GOODS SERVICES Arctm Zone lee Skadimn Revise,l.doc:102312017 12:54 PM] 5 Arctic Zone Iceplex,LLC dlb/a Carmel Ice Skadium CRC-2017 Appropriation#902-4350900;P.O.#100809 Contract Not To Exceed$ 149,905.00 29. CONTROL: Nothwithstanding any other terms or provisions hereof, CRC shall have the right to approve the annual budget of the property subject to this Agreement (the "Ice Rink"), capital expenditures with respect to the Ice Rink, each disposition of property that is part of the Ice Rink, rates charged for the use of the Ice Rink, and the general nature and type of use of the Ice Rink. 30. RISK OF LOSS: CRC shall bear the risk of loss upon damage or destruction of the Ice Rink, subject to Paragraph 9 hereof. 31. NO INCONSISTENT TAX POSITION: Vendor agrees that it is not entitled to and will not take any tax position that is inconsistent with being a service provider to CRC with respect to the Ice Rink. For example, Vendor agrees not to claim any depreciation or amortization deduction, investment tax credit or deduction for any payment as rent with respect to the Ice Rink. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CARMEL REDEVELOPMENT ARCTIC ZONE ICEPLEX, LLC, d/bla COMMISSION CARMEL ICE SKADIUM By: ?)/ William Ha rimer, P esident Authorized Signature Date: (0 2.1- 12 C')t7 Printed Name Oe.4,A4e-d-/Oa-A4v-42-4— Title APPROVED FID/TIN: .sue- '� ` 75 el Redeye Commission Last Four of SSN if Sole Proprietor: Date: /647// 7 Date /a .e2'- 1 7 [C:\UscrsMks=lAppDa[a1Locall Microsoft\Windows\Temporary Inland Files\Cnmms.Omlook\BVPMOIWUICRC-GOODS SERVICES Arctic Zone Ice Skadium Revised.doc:10/23/2017 12:54 PM] 6 Exhibit A (Updated 10/23/17) • Management Fee for 2017/18 rink season. Fee is charged per rink season (2018/19 and 2019/20). ($61,981 per year covers management and accounting). • Arctic Zone dba Carmel Ice Skadium would be reimbursed for all direct and actual expenses paid by Carmel Ice Skadium to unrelated third parties to operate ice rink,which expenses are estimated below. • Carmel Ice Skadium would receive 25%of all private ice rentals. • After the 2017/18 ice rink season the Carmel Ice Skadium would receive 10%of the revenue for skate rental and admissions. There would be no percentage received from the concessions. • Office supplies($500) • Staffing($60,000 based on staffing needs and days and hours of operation.) • Employee Uniforms($5,000, Large winter type coats, lighter weight jacket,shirts, hats,scarves, gloves. Jackets would be kept for use at rink only,all other items are employee specific.) • Safety Equipment($125 for traffic cones and safety bibs,$1,800 for two-way radios,$150 for First Aid kit and cabinet,$135 Traffic control belt barriers for Zamboni entrance.) • Insurance($2,500) • Inventory for concessions. ($3,000 per month, December 26th—March 11) • Concession Stand Equipment($4,500,Some equipment is provided by supplier except for hot dog machine,food display units, microwave,freezer, refrigerator,etc. All based on floor plan of Concession Stand. First season only. The Carmel Ice Skadium would store these items during the off season.) • Flooring in Zamboni Hut($1,000,Per Tricia McClellan we will need protective flooring over pavers. The Zamboni has studded tires. First season only.) • Extra Zamboni Blades(2)($250 per blade,Per Tricia McClellan. First season only.) • In Ice Logo($850, First Season only.) • Lockers(These can be leased or done on a revenue share with the locker company. If revenue share is chosen lockers and kiosk would need to be stored during off season. Also, accounting needs to be done weekly with locker company. If the city does not want to handle this we can 1 set it up and take care of storing and accounting requirements. We would require 25%of shared revenue received after the locker company share.) Fuel Cost($3,364, based on estimated usage and current cost of propane) Estimated Rink Expenses Management Fees o Office Supplies $500.00 Fee $61,981.00 o Staffing $60,000.00 o Uniforms $5,000.00 o Safety Equipment $2,210.00 o Insurance $2,500.00 o Inventory(Concessions) $7,500.00 o Concessions Equipment$4,500.00 Total Estimated Costs o Zamboni Hut Floor $1,000.00 Management Fees $61,981.00 o Zamboni Blades $500.00 Estimated Rink Exp. $87,924.00 o In Ice Logo $850.00 Total $149,905.00 o Zamboni Fuel $3,364.00 Total $87,924.00 2 EXHIBIT B Invoice Date: Name of Company: Address &Zip: Telephone No.: Fax No.: Project Name: Invoice No. Purchase Order No: Goods Services Person Providing Date Goods/Services Provided Cost Per Hourly Total Goods/Services Goods/ (Describe each good/service Item Rate/ Service separately and in detail) Hours Provided Worked GRAND TOTAL Signature Printed Name EXHIBIT C INSURANCE COVERAGES Worker's Compensation&Disability Statutory Limits Employer's Liability: Bodily Injury by Accident/Disease: $500,000 each employee Personal&Advertising Injury: $500,000 each accident Property Damage: $500,000 policy limit Property damage, contractual liability, products-completed operations: General Aggregate Limit(other than Products/Completed Operations): $2,000,000 Products/Completed Operations: $2,000,000 Personal &Advertising Injury Policy Limit: $2,000,000 Each Occurrence Limit: $1,000,000 Fire Damage(any one fire): $1,000,000 Medical Expense Limit(any one person): $ 1,000 Comprehensive Auto Liability(owned,hired and non-owned) Single Limit—Bodily Injury and Property Damage: $1,000,000 each accident Policy Limit: $1,000,000 Umbrella Excess Liability Each occurrence and aggregate: $3,000,000 Maximum deductible: $ 10,000 Vendor will add the CRC,the City of Carmel and Carmel Christkindlmarkt, Inc. as additional insureds to its General Liability, Auto and Umbrella policies.