Solicitation Document No. RQN-DES-1900053
NOTICE TO OFFERORS
Description: Management and Operation of the Koko Crater Stables within Koko Head Regional Park
Request Agency: Department of Enterprise Services, City & County of Honolulu, Hawaii.
NOTICE OF INTENT TO BID shall be received no later than:
Close Time: 14:00 HST
Close Date: January 9, 2019
Location: Division of Purchasing, Department of Budget and Fiscal Services 530 South King Street, Room 115, City Hall Honolulu, Hawaii 96813
COMPETITIVE SEALED BIDS shall be received no later than:
Close Time: 14:00 HST
Close Date: January 23, 2019
Location: Division of Purchasing, Department of Budget and Fiscal Services 530 South King Street, Room 115, City Hall Honolulu, Hawaii 96813
A presubmittal meeting will be held at 10:00 am HST on December 18, 2018 at Koko Crater Stables within Koko Head Regional Park and next to Koko Head Botanical Gardens, located at 7491 Unit A Kokonani Street, Honolulu, Hawaii 96825. All prospective Offerors or their representatives are encouraged to attend, but attendance is not mandatory. The purpose of this meeting is to familiarize potential offerors with the scope of the project and to answer questions regarding the solicitation requirements. Prospective Offerors are encouraged to submit written questions in advance.
ST-10/1/14
TABLE OF CONTENTS
NOTICE TO OFFERORS
Schedule of Events
General Instructions to Offerors for Concession Offerors
APPENDIX A: SCOPE OF WORK
APPENDIX B: TERM/SCHEDULE OF WORK
APPENDIX C: PRICING/CERTIFICATIONS [TO BE SUBMITTED]
APPENDIX D: SPECIAL PROVISIONS
APPENDIX E: GENERAL TERMS AND CONDITIONS FOR CONCESSION CONTRACTS (09/15)
TABLE OF CONTENTS NOTICE TO OFFERORS - SCHEDULE OF EVENTS
All times indicated are Hawaii Standard Time (HST).
Non-mandatory Pre-Submittal Meeting: December 18, 2018 7491 Unit A Kokonani Street, Honolulu, Hawaii 96825 10:00 a.m.
Deadline to Submit Request for Clarifications/Substitutions: December 28, 2018
Last Day to Issue Addenda: January 4, 2019
Written Notice of Intent to Bid Due: January 9, 2019 14:00 HST
Notification of Qualified Offerors: January 16, 2019
Deadline for Sealed Offer Submittals: January 23, 2018 14:00 HST
SCHEDULE OF EVENTS GENERAL INSTRUCTIONS TO OFFERORS FOR CONCESSION BIDS FOR THE CITY AND COUNTY OF HONOLULU
1. NOTICE OF INTENT TO OFFER
The Minimum Qualifications for the requisite experience, competence and financial responsibility are provided in the Notice of Intent to Bid, which must be completed and submitted by all prospective offerors.
Each prospective offeror shall file a Notice of Intent to Bid with the Director of the Department of Budget and Fiscal Services, Division of Purchasing, City Hall, Honolulu Hale, on or before the time and date specified in the Concession Schedule in the Notice to Offerors.
The Notice of Intent to Offer and the accompanying Questionnaire must bear the Purchasing Division's time stamp mark. The Notice of Intent to Offer and required documents that are not time stamped or that are time stamped after the time and date specified in the Notice to Offerors shall be rejected.
If submitted in an envelope, the words “INTENT TO OFFER” should be printed on the face of the envelope.
Each prospective offeror shall file the completed Questionnaire and all required evidence and/or documentation to substantiate meeting the Minimum Qualifications as specified, together with the Notice of Intent to Bid attached hereto. The Questionnaire shall be answered in full and sworn to before a notary. To meet the Minimum Qualifications, the prospective offeror, whether an individual, corporation, partnership, or joint venture, shall be presently doing business under the same organizational structure, while meeting the Minimum Qualifications as specified on the Questionnaire.
If a prospective offeror fails to submit the required Notice of Intent to Bid, or fails to meet the Minimum Qualifications stated herein or to submit the required evidence and/or documentation to substantiate meeting the Minimum Qualifications, the prospective offeror shall not be allowed to submit a bid.
A prospective offeror who upon initial review is deemed to have not met the Minimum Qualifications, may be provided with an opportunity to appeal the initial disqualification as follows: the prospective offeror must provide a written explanation or further documentation within seven (7) working days from the City’s request to demonstrate satisfaction of the Minimum Qualifications. If the Director finds that the prospective offeror still does not meet the Minimum Qualifications, the Director’s finding shall be final.
At any time prior to making an award, the Director shall have the right to investigate the prospective offeror’s financial ability, experience and competence.
2. SUPPLEMENTAL INSTRUCTIONS OR CHANGES
Any supplemental instructions or changes will be in the form of written addenda to this solicitation. Any addenda will be available to download from the City’s Purchasing Division website prior to the date fixed for the opening of offers. It shall be presumed that any
NOTICE TO OFFERORS 1 GENERAL INSTRUCTIONS TO OFFERORS (05/12) addenda so issued have been received by the offeror and shall become a part of the Contract.
Offerors who have not obtained this bid solicitation document directly from the City’s Purchasing Division shall be responsible for downloading the documents from http://www.honolulu.gov/pur.
3. PREPARATION OF OFFERS
Offers shall be prepared and submitted on forms furnished by the Purchasing Division or on an exact copy thereof in full accordance with the instructions given. Any bid that contains omissions, alterations, additions not called for, conditional offers or irregularities of any kind may be rejected.
Offers shall be typewritten or printed in ink. Errors may be erased or crossed out, and corrections typewritten or printed in ink but must be initialed in ink by the person or persons signing the offer.
Any illegible or otherwise unrecognizable price bid may be cause for automatic rejection of the offer.
Offers must be signed in ink by the person or persons duly authorized to sign bids in the space provided for signature on the concession offer form. Unsigned offers may be rejected.
A facsimile of the signature of the person or persons authorized to sign offers may be submitted in the space provided for signature on the concession offer only. However, the offeror must provide the original signature(s) on the concession offer within two (2) business days from the date of offer opening, unless otherwise authorized by the Director.
4. OFFER UPSET/OFFER CONCESSION
As a part of its bid, the offeror must provide a minimum monthly concession fee greater than or equal to the base monthly concession fee provided in the Bid Concession. Offerors must also provide a minimum monthly percentage fee greater than or equal to the base monthly percentage fee provided in the Bid Concession. Offerors failing to do so will be disqualified.
5. DEPOSIT ACCOMPANYING BIDS/BID SECURITY
All offer Concessions shall be accompanied by a deposit of legal tender or by a certificate of deposit, share certificate, cashier's check, treasurer’s check, teller’s check or official check, payable to the City and County of Honolulu, drawn by, or certified check accepted by, a bank, savings institution or credit union doing business in Hawaii, insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration, payable at sight or unconditionally assigned to the City and County of Honolulu, or by a surety bond approved by the Director, in a sum of FIVE PERCENT (5%) of the monthly concession fee bid; provided, that when the monthly concession fee bid exceeds $50,000.00, the deposit shall be in a sum not less than $2,500.00 plus two percent (2%) of the amount in excess of $50,000.00; if five percent (5%) of the monthly concession fee bid is less than $50.00, the
NOTICE TO OFFERORS 2 GENERAL INSTRUCTIONS TO OFFERORS (05/12) amount of the deposit shall be $50.00. The deposit shall also be enclosed in theoffer envelope.
If the offeror to whom the contract for the concession is awarded fails or neglects to enter into the contract, or does not furnish satisfactory performance security pursuant to the applicable provisions herein, within ten (10) days after receiving the contract document from the City or within such further time as the Director in his sole discretion may allow, the Director shall deposit such security or the proceeds thereof in the City treasury, as such funds shall be deemed forfeited by the prospective offeror.
If the contract is entered into and satisfactory security is furnished within the required time, the deposit shall be returned to the successful offeror. The deposit of the unsuccessful offerors shall be returned after the execution of the contract by the City or if no contract is executed, after the expiration of sixty (60) days following the opening of bids or sooner if deemed to be in the best interest of the City, the determination as to which shall be made by the Director. The City shall not pay any interest on such deposit.
The aforementioned surety bond may be executed to the City and County of Honolulu as obligee, by the offeror as principal, and as surety any bonding company authorized to do business in the State of Hawaii, in the amount specified hereinabove, conditioned upon the offeror entering into the contract and furnishing satisfactory security pursuant to the applicable provisions herein, within ten (10) days after receiving the contract document from the City or within such further time as the Director may allow.
6. SUBMISSION OF OFFERS
The Offer Documents shall be considered a part of the submittal of the offeror and a part of the resulting contract entered into with the successful offeror. Such documents shall not be altered in any way when the bid is submitted and any alterations so made by the offeror may form the basis for rejection of the bid.
Offers shall be sealed in envelopes. The offer number, offeror's name and address, and offer opening date and time must be printed on the outside of the envelope.
The offer envelope must be time stamped and deposited at the designated location in the Office of the Division of Purchasing, City Hall, 530 South King Street, Room 115, Honolulu, Hawaii 96813, on or before the time and date specified in the Concession Schedule on the Notice to Offerors page. All offer envelopes must bear the Division of Purchasing time stamp mark. Envelopes that are not time stamped or that are time stamped after the specified bid opening time and date shall be rejected.
The Director also reserves the right to reject scaled offers or offers showing graduated concession fee payments not called for in the solicitation.
An offeror shall submit its offer under its own name, whether as an individual or sole proprietor, partnership, corporation, limited liability company, non-profit corporation, non- profit organization, or joint venture. An offeror may not submit more than one offer. Any offeror who submits more than one (1) offer under the same or different name, whether submitted through an agent or not, shall be rejected. For purposes of illustration only, an offeror shall be deemed to have submitted more than one bid under the following
NOTICE TO OFFERORS 3 GENERAL INSTRUCTIONS TO OFFERORS (05/12) circumstances:
A. An individual or sole proprietor who submits an offer and who also owns directly or indirectly more than 25% interest in a partnership, corporation, limited liability company, or joint venture that has also submitted an offer shall be considered to have submitted more than one offer. Both offers shall be rejected.
B. An individual or sole proprietor who submits an offer and who is also a member of the board of directors or is an officer of a non-profit corporation or organization that has also submitted an offer shall be considered to have submitted more than one offer. Both offers shall be rejected.
C. A partnership, corporation, limited liability company, or joint venture that submits an offer and any individual who owns directly or indirectly more than a 25% interest in such partnership, corporation, limited liability company, or joint venture who has also submitted an offer as an individual or sole proprietor shall be considered to have submitted more than one offer. Both offers shall be rejected.
D. The circumstances stated above would apply for other legal entities including: partnerships, corporations, LLCs, joint ventures, and non-profits.
If the Director determines that there is evidence demonstrating that two or more offerors are in collusion to restrict competitive bidding, the offers of all such offerors shall be rejected and such evidence may be cause for the disqualification of the participants on any future concession for any contract with the City.
All costs to prepare and submit an offer shall be at the offeror's sole expense.
7. WAIVER OF MINOR DEVIATIONS
The Director reserves the right to waive and/or accept any minor deviations from the specifications and/or terms and conditions, if in the Director's opinion, such waiver is in the best interest of the City and that such waiver shall not affect the standards of performance, operation, capacities or capabilities of the offeror.
8. NO WARRANTY ON INFORMATION PROVIDED
Offerors understand and agree that the City does not represent or warrant the accuracy of any information provided to offerors and that use of any information is at their own risk.
9. INCORPORATION BY REFERENCE OR ATTACHMENTS; ORDER OF PRECEDENCE
Whenever a separate bid concession, special provisions, requirements, specifications, exhibits or plans are referred to or attached hereto, they shall be considered a part of this solicitation. Should the bid concession, special provisions, requirements, specifications, exhibits or plans conflict with these general instructions to offerors, said bid concession, special provisions, requirements, specifications, exhibits or plans shall govern.
NOTICE TO OFFERORS 4 GENERAL INSTRUCTIONS TO OFFERORS (05/12) 10. INSPECTION OF PREMISES
Interested offerors may inspect the conditions of the premises and determine the amount of improvements needed prior to bid opening during the pre-submittal meeting. Any inspection by offerors of the premises must be coordinated and approved by the Director, or designated representative.
11. OFFEROR'S QUESTIONS.
Questions must be submitted in writing and received prior to the deadline specified herein. All correspondence and/or questions must reference the bid solicitation number and the page and section numbers of the bid solicitation document on which the offeror needs clarification. The City shall not be obligated to respond to questions not received on a timely basis. Questions not relevant to the bid solicitation, may not receive responses. Questions shall be emailed to [email protected].
12. AWARD OF CONTRACT, RIGHT TO REJECT BIDS
The award of the contract for the concession shall be made to the responsive and responsible offeror who proposes to pay the highest total monthly concession fee and percentage fee (Total Evaluated Concession Fee). Consequently, in order to be considered for the award, an offeror must submit a bid for both monthly concession fee and percentage fee.
In the case of a tie (identical) of the highest total monthly concession fee, the highest percentage fee shall prevail. In the case of a tie (identical) of the total monthly and percentage concession fees bid, the City shall conduct a lottery limited to the bidders tied for the highest total monthly concession and percentage fee to determine award based on a drawing of the highest card from a deck of 52 playing cards with the “Ace” of each suit being the highest card.
13. HAWAII COMPLIANCE EXPRESS
Prior to the award of the contract, the successful Offeror shall be registered as “Compliant” on the State of Hawaii Compliance Express System (http://vendors.ehawaii.gov) or submit the required tax clearances from the State Department of Taxation and Internal Revenue Service, the Certificate of Compliance with the State Department of Labor and Industrial Relations, and the Certificate of Good Standing with the Department of Commerce and Consumer Affairs Business Registration Division. The City may reject the offer if the Offeror fails to provide proof of compliance within the time permitted by the City.
NOTICE TO OFFERORS 5 GENERAL INSTRUCTIONS TO OFFERORS (05/12) SPECIAL INSTRUCTIONS TO OFFERORS FOR CONCESSION BIDS FOR THE CITY AND COUNTY OF HONOLULU
1. Delete all references to the term “Concession Requirements” in the General Instructions to Offerors in its entirety and replace with “Appendix A: Scope of Work and Appendix B: Term/Schedule of Work”.
2. Delete all references to the term “Offer Concession” in the General Instructions to Offerors in its entirety and replace with “Appendix C: Pricing Certifications”.
3. Delete all references to the term “Concession Schedule” in the General Instructions to Offerors in its entirety and replace with “Schedule of Events”.
4. Delete the second paragraph of Section No. 1 Notice of Intent to Bid of the General Instructions to Offerors in its entirety and replace with the following:
“Each prospective Offeror shall file a hard-copy of the Notice of Intent to Bid with the Director of the Department of Budget and Fiscal Services, Division of Purchasing, City Hall, Honolulu Hale, 530 South King Street, Room 115, Honolulu, Hawaii 96813, on or before the time and date specified in the Concession Schedule in the Notice to Offerors. Emailed or faxed Notice of Intent to Bid shall not be accepted.”
5. Delete Section No. 4, Offer Upset/Bid Concession, of the General Instruction to Offerors in its entirety and replace with the following:
“4. OFFER UPSET/BID CONCESSION
Offerors shall provide a monthly percentage concession fee greater than or equal to the minimum upset monthly percentage fee listed in Appendix C: Pricing/Certifications. Offerors failing to do so shall be rejected.”
6. Delete Section No. 5 Bid Deposit Accompanying Bids/Bid Security of the General Instruction to Offerors in its entirety and replace with the following:
“5. DEPOSIT ACCOMPANYING BIDS/BID SECURITY
Bidders shall provide, at no cost to the City, a bid security. If the Bidder fails to accompany its bid with a bid security, the bid shall be rejected as non-responsive.
(a) Bid Security Amount. The bid security amount shall be equal to at least five percent (5%) of the amount bid for the evaluated revenue to the City (Item No. 1, Field D in Appendix C: Pricing/Certifications), provided that when the Bidder’s estimated monthly concession fee bid amount exceeds $50,000.00, the bid security amount shall be not less than $2,500.00 plus two percent (2%) of the Bidder’s Evaluated Revenue to the City bid amount in excess of $50,000.00.
SPECIALINSTRUCTIONSTOOFFERORS 1 (b) Acceptable bid security shall be limited to: (1) Legaltender; (2) A certificate of deposit, share certificate, cashier's check, treasurer's check, teller's check, or official check, payable to the City and County of Honolulu, drawn by, or a certified check accepted by, a bank, savings institution, or credit union insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration; (3) A surety bond executed to the officer calling for bids by the bidder as principal and by any bonding company listed in the United States Treasury List; provided that the bond furnished by any surety listed shall not exceed the bonding capacity rating of that surety on the Treasury List; in a sum of equal amount, conditioned upon the bidder entering into the contract and furnishing satisfactory security within ten days after the award or within any further time as the officer may allow, if the bidder is awarded the contract.
(c) If the Bidder to whom the contract for the concession is awarded fails or neglects to enter into the contract, or does not furnish satisfactory performance security pursuant to the applicable provisions herein, within ten (10) days after receiving the contract document from the City or within such further time as the Director in his sole discretion may allow, the Director shall deposit such bid security or the proceeds thereof in the City treasury, as such funds shall be deemed forfeited by the Bidder.
(d) If the contract is entered into and satisfactory performance security is furnished within the required time, the bid security shall be returned to the successful Bidder. The bid security of the unsuccessful Bidders shall be returned after the execution of the contract by the City or if no contract is executed, within sixty (60) days following the opening of bids. The City shall not pay any interest on the bid security.
“10. INSPECTION OF PREMISES
Interested offerors may inspect the conditions of the premises and determine the amount of improvements needed prior to bid opening. Any inspection by offerors of the premises must be coordinated and approved by the Director, or designated representative. A non-mandatory pre-bid and/or on-site inspection may be scheduled as set forth in the “Schedule of Events” of this bid solicitation.”
SPECIALINSTRUCTIONSTOOFFERORS 2 THE FOLLOWING PAGES SHALL BE DETACHED FROM THE SOLICITATION DOCUMENT AND SUBMITTED BY THE NOTICE OF INTENT TO BID DEADLINE.
NOTICE OF INTENT TO BID AND QUESTIONNAIRE - MINIMUM QUALIFICATIONS
Name of Prospective Offeror (Legal Name)
Director of Budget and Fiscal Services City and County of Honolulu Honolulu, Hawaii
Each prospective Offeror, pursuant to Section 1, Notice of Intent to Bid, of the General Instructions to Offerors, shall meet all of the following Minimum Qualifications and shall submit, along with the Notice of Intent to Bid, the required evidence and/or documentation such as, but not limited to, business registration documents and business records, to substantiate meeting the Minimum Qualifications specified below.
To qualify to bid for this concession solicitation, the prospective Offeror, whether an individual, corporation, partnership, or joint venture, shall be currently doing business under the same organizational structure and name. The qualifications may not be met on behalf of the prospective Offeror by anyone other than the prospective Offeror.
The qualifications of the prospective Offeror’s employee, who may be placed in immediate charge of the concession, will not be considered as a part of the prospective Offeror’s qualifications, regardless whether such employee may have the requisite number of years of experience and financial capability, as specified below. However, the qualifications of the owner, proprietor and/or shareholder of the prospective bidding entity will be considered.
1. Mandatory Requirements. (Failure to meet or provide evidence and documentation shall be grounds for disqualification).
A. Is prospective Offeror registered with the State Department of Commerce and Consumer Affairs (DCCA) as a business dealing with the stabling of horses and equestrian services and educational activities during two (2) of the past ten (10) years.?
___NO ___YES, and evidence/documentation is attached.
NOTICE OF INTENT TO BID 1 B. Stabling Operations.
Has prospective Offeror operated and or managed a business dealing with the stabling of horses and provided equestrian services and related educational activities with a minimum of $100,000.00 annual gross income directly derived from said type of business during two (2) of the last ten (10) years.
___NO ___YES, and evidence/documentation is attached.
Income requirements evidence/documentation:
The prospective Offeror shall provide income tax returns for a horse stabling and equestrian service type business available to the public for the two (2) consecutive years within the past ten (10) years.
If gross revenues derived from horse stabling and equestrian service operations cannot be determined from the prospective Offeror’s income tax returns, the prospective Offeror shall include Itemized Income Statements compiled by a certified public accountant for the prospective Offeror’s horse stabling and equestrian service operations.
C. Liquid Working Capital Requirement.
Prospective offeror has easily-certifiable evidence that liquid capital equal to the amount of $50,000.00 shall be available to the Concessionaire for the operation of the Concession.
___NO ___YES, and evidence and documentation are attached.
To satisfy this requirement, the prospective Offeror may provide a firm commitment from a financial institution doing business in the State of Hawaii, provided that such commitment letter is acceptable to the Director.
D. Reference Requirements.
The prospective Offeror shall provide the following background information and references:
1) Minimum of three (3) business references letters, which the prospective Offeror has done or is doing business with an indication of success in providing this type of service to the public. Reference letters must be on their company letterhead (unless the main contact person has left the referring company), indicating person’s name and contact information and be dated within the past two (2) years. 2. Discretionary Requirements. The Director has the discretion to disqualify the prospective Offeror based on the following requirements. Any answer to requirements specified below which is marked “Yes” must be remedied within a minimum of five (5) business days prior to submission of prospective Offeror’s Notice of Intent to Bid. However, completion and satisfaction of
NOTICE OF INTENT TO BID 2 remedies notwithstanding, the Director has the discretion to disqualify the prospective Offeror based on the answers provided.
A. Contract Defaults/Cancellation.
Has any lease, contract or agreement for the operation of a concession agreement been in default/cancelled due to non-payment prior to contracted expiration date?
___NO ___YES
If yes, please explain what is owed and provide proof that a remedy for the delinquent payment is made.
B. Delinquent Payment.
Is prospective Offeror delinquent in any payment of any prior or existing City contract prior to the submission of the Notice of Intent to Bid?
___NO ___YES
If yes, prospective Offeror must remedy the delinquent payment with City no later than five (5) days prior to the Notice of Intent to Bid deadline date and provide proof that the remedy has been satisfied.
C. Sanitation Infractions
Has the prospective Offeror or prospective Offeror’s organization been fined, suspended or closed due to health and sanitation infractions by the State of Hawaii, Department of Health-Sanitation Branch or by the USDA within the last five (5) years immediately preceding the submittal date of the Intent to Bid?
___NO ___YES
If yes, please explain what actions were taken and provide written proof that the infraction has been cured before submitting bid.
D. Financial Reports.
Is prospective Offeror delinquent in providing any financial reports on any prior or existing City contract on the date of submission of the Notice of Intent to Bid within the last five (5) years immediately preceding the submittal date of the Notice of Intent to Bid?
___NO ___YES
If yes, prospective Offeror must remedy the situations by providing copies of the financial reports not yet provided prior to the deadline for submitting the Notice of Intent to Bid. ______
NOTICE OF INTENT TO BID 3 The Director of the Department of Budget and Fiscal Services reserves the right to:
1) Investigate the financial status, experience and records of each prospective Offeror, and to request additional evidence and information from any prospective Offeror; and
2) Request and obtain the prospective Offeror’s credit reports from a credit reporting agency and/or financial institutions: Prospective bidder may be required to sign an authorization form provided by the Director to obtain such credit reports.
NOTICE OF INTENT TO BID 4 ATTESTATION
Having been first duly sworn and deposed, the undersigned hereby states that it intends to bid, it meets the Minimum Qualifications as set forth in the Questionnaire, and has hereby attached documents supporting proof of meeting the Minimum Qualifications.
By signing the Notice of Intent to Bid, I assert, under oath, that the statements made and documents provided under the Questionnaire, are true to the best of my knowledge.
Dated this ______day to______, 2______at ______A.M./P.M.
Respectfully submitted,
______Name of Offeror
______Authorized Signature
______Print Name
______Title
NOTICE OF INTENT TO BID 5 State of Hawaii
OFFEROR’S ACKNOWLEDGMENT STATE OF ______)
______COUNTY OF ______) S.S.
On this ______day of ______, ______, before me appeared ______and______, to me known, to be the person(s) described in and, who, being by me duly sworn, did say that he/she/they is/are ______and______of ______the OFFEROR named in the foregoing instrument, and that he/she/they is/are authorized to sign said instrument on behalf of the OFFEROR, and acknowledges that
he/she/they executed said instrument as the free act and deed of the OFFEROR.
______Signature
______Print Name
(Notary Stamp or Seal) Notary Public, State Of______
My Commission Expires:______
NOTARY CERTIFICATE (Hawaii Administrative Rules §5-11-8)
Document Identification or Description: ______
Doc. Date:______No. of Pages:______Jurisdiction: ______
______Notary Public Signature
______Printed Name of Notary
END OF NOTICE OF INTENT TO BID.
NOTICE OF INTENT TO BID 6 APPENDIX A: SCOPE OF WORK
OVERVIEW: It is the intent of the City and County of Honolulu (hereinafter referred to as the “City”) that operation and management of the Koko Crater Stables be performed in a fair and courteous manner as well as be well maintained by a qualified and eligible for-profit or non-profit organization or association whose goal or mission is to promote and perpetuate safe equine care and riding of horses in Hawaii. No subcontracting of the work or any aspect of its performance shall be permitted under this contract.
1) SCOPE OF THE CONTRACT
The Contractor shall have the exclusive privilege to operate and manage the Koko Crater Stables (hereinafter referred to as “Stables”). The Stables are located at 7491 Unit A Kokonani Street, Honolulu, Hawaii 96825, TMK:3-9-012-008 and 3-9-012-001. It is located within the Koko Head Regional Park next to the Koko Head Botanical Gardens. No portion of the Koko Head Botanical Gardens or any area out of the premised area is a part of this proposal.
Under the purview of operating and managing the Stables, the Contractor shall provide horse training, riding lessons, horse boarding, and equestrian type educational seminars to the public. Equestrian events are allowed only with prior written approval of the Department of Parks and Recreation (hereinafter referred to as “DPR”), Officer-in-Charge (hereinafter referred to as “OIC”), the surrounding community and the Neighborhood Board due to possible disruption of local traffic and parking patterns or other adverse impact to the neighborhood and the Botanical Gardens. A prepared plan for any equestrian event must be provided with the request at a minimum of thirty (30) calendar days prior to the event date to the for the written approval and any necessary permitting by DPR plus approvals from other State and City agencies that may be required, such as the Department of Health, etc. All equestrian events must be open to the public.
Participants in events and activities on the premises, including boarder owners, shall be required to sign the Release of Waiver and Claims (see sample - Exhibit D). The Contractor shall keep the signed original release forms and provide copies of forms at inspection or upon request from the City. The Release of Waiver and Claims shall waive the City from any and all claims, demands, liabilities resulting from activities within the scope of this contract.
The trails authorized for riding are located within the Stables’ premises. The Contractor shall ensure that horses are kept on the approval trails and that the flora and fauna of the Stables are not damaged or destroyed by the horses or their riders. The Contractor shall be responsible for any damage or destruction of the flora and fauna.
All facility changes must have the prior written approval of the City and it’s regulatory agencies. Any grading to the premises or the surrounding area and removal of trees and other plants shall not be permitted without written approval of the City.
2) DESCRIPTION OF PREMISES
The premises covered under this contract is the stable site located with Koko Head Regional Park, Honolulu, Hawaii as shown on the map marked as Appendix A – Exhibit A attached hereto and made a part hereof.
APPENDIXA:SCOPEOFWORK 1 The Contractor is responsible, at its own expense, to provide a self-contained manager’s office being manned as necessary for the protection of the animals and with the approval of DPR. A maximum of two (2) adult employees may be in the self-contained manager’s office. This office must be approved by the City’s Department of Planning and Permitting (hereinafter referred to as “DPP”) and DPR. There shall be no structures on the premises resembling living quarters or a cottage.
The premises are also situated on conservation district land. Therefore, any new improvements or construction will require a Conservation District Use Application approved by the State of Hawaii Board of Land and Natural Resources and prior written approval of the City and its regulatory agencies.
The premises is under the jurisdiction of DPR, therefore, all rules and regulations relating to the use of the property must adhere to all rules and regulations as stated in the Revised Ordinances of Honolulu, Chapter 10.
3) CONCESSION FEES AND PAYMENTS
A) Monthly Fixed Fee Guarantee
The minimum monthly fixed fee that the Contractor is obligated to pay the City is One Thousand One Hundred and 00/100 dollars ($1,100).
The Contractor’s monthly fixed fee shall be payable to the “City and County of Honolulu” and is due, in advance, on the twenty-fifth (25th) day of the preceding month for which the monthly fee is applicable (i.e. by May 25th for the month of June).
If commencement of the operation is other than the first (1st) day of the calendar month, the minimum monthly fee for less than the full month of operation at commencement and/or termination of the agreement shall be in accordance with the following formula:
No.ofdaysofoperation X Monthly =Fee No.ofdaysinthemonth fee payable
Payment for the first month’s monthly fee shall be made within five (5) days after the Contractor begins its operation as stated in the Notice to Proceed.
B) Monthly Percentage Fee
The minimum proposed percentage fee that the Contractor shall pay the City and County of Honolulu shall be no less than 8.8% per month of all revenues generated from the services and events on property. The percentage shall be limited to two (2) digits past the decimal point (i.e. 20.01%). This shall constitute the monthly percentage fee.
The Contractor shall pay the City, within ten (10) business days after the close of each month, that portion of the percentage fee in excess of the minimum monthly fee for the previous month (i.e. August 14, 2018 for September 2018).
APPENDIXA:SCOPEOFWORK 2 4) PAYMENT
All checks for payment of monthly and percentage fees shall be made payable to the “City and County of Honolulu” and submitted to the following:
Original to:
City and County of Honolulu BFS Treasury Division Miscellaneous Receivables Section 715 South King Street, Suite 502 Honolulu, Hawaii 96813
The Contractor must provide a copy of each payment and the monthly sales report to the Department of Enterprise Services to the address noted as follows:
Department of Enterprise Services City and County of Honolulu Concessions 777 Ward Avenue Honolulu, Hawaii 96814
Failure to pay any part of the monthly or percentage fees when due shall be deemed to constitute a material breach of contract and shall be grounds for termination of this contract by the City. Without prejudice to any of the other remedies herein given the City, interest at the rate of one percent (1%) interest per month or fraction thereof shall be assessed for any overdue payment of the monthly or percentage fees.
5) PAYMENT OF TAXES AND OTHER CHARGES
The Contractor shall pay any and all taxes attributable to the operation and management and all charges incurred or assessed against the operation and management of the Koko Head Stables.
The Contractor shall contract and pay for all utility services (including but not limited to gas, telephone, cable television and electricity), rubbish hauling and outside services required to operate the stables effectively within the parameters of this contract, including but not limited to utilities charged to its own meters and refuse collection. The electrical meter number for this concession is 305585.
Connection to water and sewage pipes is part of the capital improvements required in this contract as responsibilities of the Contractor. Upon completion of the connection within the first year of the contract, the Contractor will be responsible for the payment of water and sewage. Until the completion of the connection, Contractor shall be required to provide portable toilets and hand washing facilities for use by patrons of the stables.
APPENDIXA:SCOPEOFWORK 3 6) CONTRACTOR’S FISCAL RESPONSIBILITY
A) Business Records
The Contractor shall maintain and keep accurate books of accounts and records in accordance with accounting procedures approved by the Director, which shall detail all revenues and expenditures. Such books and records shall include tax reports of every kind. Said books, records and tax reports shall be kept for a period of one (1) year following the end of the contract term or until City auditors have had reasonable opportunity to audit the same, whichever comes first.
All books and records shall be kept separately for this operation, exclusive of any other business operation of the Contractor.
B) Income Accountability
Within ten (10) business days after the close of each month, the Contractor shall furnish the Director with a statement certified by the Contractor reporting the gross income for the prior month. Such statement shall itemize the gross monthly income for the prior month from the following sources:
B1. Stabling; B2. Horse training; B3. Riding lessons; and B4. All other revenue including membership fees, event revenues, etc.
Monthly gross income reports and percentage fees shall be due to the City on the 10th business day of the month following the specific month (e.g. report for the month of October 2018 shall by November 16, 2018) to the following departments:
CityandCountyofHonolulu CityandCountyofHonolulu BFSTreasuryDivision DepartmentofEnterpriseServices Misc.ReceivablesSection Concessions 715SouthKingStreet,Suite502 777WardAvenue Honolulu,Hawaii 96813 Honolulu,Hawaii 96814
If the Contractor understates the amount of its gross income for any month, whether knowingly, mistakenly or otherwise, by five percent (5%) or more of the true amount thereof, the same shall be deemed to constitute a material breach of the contract.
In addition, the Contractor shall furnish any other information or report requested by the OIC or the Director of the Department of Budget and Fiscal Services (hereinafter referred to as the “BFS Director”).
If any question arises with respect to what constitutes the gross income not otherwise covered in the contract, the interpretation given and made by the BFS Director shall govern and control.
APPENDIXA:SCOPEOFWORK 4 C) Sales Audit Requirement
The Contractor shall furnish the BFS Director with an annual sales audit report prepared by an independent certified public accountant. The report shall certify the amount of income as a result of this contract and shall be due within ninety (90) days of the end of the Contractor’s fiscal year and at the least within sixty (60) days of the end of the contract period.
The sales audit report shall be prepared in conformance with an audit program furnished by the City as a guide to the examining independent certified accountant. The sample audit guide is marked as Appendix A – Scope of Work – Exhibit B attached hereto and made a part hereof.
The audited sales report shall be sent to the following:
CityandCountyofHonolulu CityandCountyofHonolulu BFSTreasuryDivision DepartmentofEnterpriseServices MiscellaneousTreasury Division Concessions 715SouthKingStreet,Suite502 777WardAvenues Honolulu,Hawaii96813 Honolulu,Hawaii96814
Failure of the Contractor to comply with the fiscal requirements of this section shall be deemed a material breach of contract, which may warrant termination of the contract. In such event of non-compliance, the Contractor shall be responsible for all costs and expenses, including attorney fees, incurred by the City in enforcing compliance with these fiscal requirements.
6) CONDUCT OF BUSINESS
A) Conduct of Business Operations
The Contractor shall, to the satisfaction of the OIC, conduct this operation in such a manner so as to avoid (1) creating, commissioning or maintaining a nuisance on the Premises; or (2) causing or creating unusual or objectionable noises, noxious smoke, gases, vapors or odors.
B) Prohibited Uses
The Contractor is prohibited from the following:
1) Conducting any part of its operation in any area other than in the area specified in the Appendix A – Scope of Work section, Item 2 Description of the Premises herein without prior written approval of the OIC and DPR.
2) Using the premises or any part thereof or allowing the same to be used by anyone for any purpose other than those listed in the Appendix A – Scope of Work section, Item #1 Scope of the Contract, herein.
3) Permitting the premises to be used for any illegal purpose, immoral, or indecent activity, or lodging or sleeping purposes, and allowing disorderly persons to remain upon or loiter within the premises.
APPENDIXA:SCOPEOFWORK 5 4) Promoting the feeding of wildlife on land or sell any products of any kind for such a purpose. The Contractor shall not, at any time, allow personal pets or other animals belonging to the Contractor, any employee or the public to be within or around the premises unless the animal is a proper service animal under the control of the owner.
5) Interfering with free access and passage within the premises or adjacent public areas.
6) Sub-leasing or subcontracting to another entity or individual to conduct its operation under this contract.
7) Using any radio, recording or audio playback device or produce any sound or noise to disturb the quiet enjoyment of the surrounding area.
8) Selling, smoking (including e-cigarettes or illegal drugs) or consuming alcoholic/intoxicating beverages or illegal drugs on the premises.
C) PUBLIC PAY TELEPHONE
The City reserves the right to furnish public pay telephones on the premises in locations to be approved by the OIC. All commissions from the telephones shall belong to the City.
D) VENDING MACHINES
Use of vending machines shall be prohibited without prior written approval of the OIC.
E) EMPLOYEES AND/OR VOLUNTEERS
The Contractor shall maintain an adequate amount of trained staff/employees and/or volunteers to provide efficient, prompt and courteous service at all times.
The Contractor shall employ only persons and/or volunteers of good moral character, neat appearance and polite manners. The City shall have the right to eject from the premises any employee/volunteer of the Contractor whose conduct or activities violates any State or City laws, ordinances, rules, regulations, statutes or guidelines the provisions of this contract, or whose conduct poses a threat to public safety. The Contractor shall then be responsible to provide an adequate replacement when requested by the City.
The Contractor’s employees or volunteer dealing with public shall be dressed appropriately and wearing name tags that identifies themselves and their organization. Any uniform shall be approved of by the OIC.
Failure to furnish adequate personnel to service the public shall be deemed to constitute a breach of contract, and the CITY shall reserve the right to terminate the contract.
APPENDIXA:SCOPEOFWORK 6 F) The Contractor shall provide the following services to the public at prices not to exceed the prices prevailing at similar operations on Oahu. The Contractor shall provide a list of services and prices offered to the public and update the list as necessary. Service to be provided include:
1) Horse Boarding and Stalls
a) Stalls shall be available to the public for boarding horses.
b) Horse stalls shall be maintained in a safe and sanitary condition at all times.
c) Proper care of the stalls and horses shall include, but not be limited to, daily cleaning of the stalls and bedding, and providing two (2) feedings per day.
d) Trained personnel shall be available for exercising and grooming of boarded horses and riding horses, including the care of all stable gear.
2) Individual and Group Riding Lessons
a) The number of horses available to provide riding lessons shall be approved by the OIC. Horses shall be properly trained for beginner riders as well as advanced students.
b) The group lessons and educational classes may include, but not be limited to, the following:
b1. Summer horsemanship course, including riding and fundamental equine care. b2. Participation in the City’s Summer Fun programs and in cooperation with community groups and organizations, such as scouts, schools and underprivileged groups.
3) The Contractor may provide equine training within the premises of the Stables. The prices for these services shall not exceed the prices prevailing at similar operations on Oahu.
4) The Contractor may provide horse riding and trail riding within the premises of the Stables. Horse riding and trail riding services offered to the public must be attended to by an experienced horseman who has provided such services in facilities similar to that of the Stables.
7) INSTALLATION, MAINTENANCE AND UPKEEP
The Contractor accepts the premises, including all improvements, buildings and structures, in “As is, Where is” condition, with any and all defects whether known or unknown to the Contractor.
The Contractor shall make sure that all equipment, buildings, furniture, fixtures, fencing and décor are in compliance with applicable statutes, rules, regulations, ordinances and industry
APPENDIXA:SCOPEOFWORK 7 standards, including but not limited to regulations of the U.S. Department of Agricultures (USDA), Occupational Safety and Health Administration (OSHA), American Society of the Prevention of Cruelty to Animals (ASPCA) and the U.S. Humane Society guidelines. The Contractor shall allow said organizations to inspect the premises should there be any need to perform an inspection. There are certain equipment, building, furniture, fixtures, fencing and décor that are not usable – See Exhibit C. The Contractor is not responsible to repair all of these items if Contractor is not using them.
Any and all renovation or installation plans shall be reviewed and approved by the OIC and other City departments, as required, prior to renovation or installation.
A) Installation
The Contractor shall, at its own cost and expense, provide and install all equipment, furniture, fencing, décor, and fixtures necessary for the operation of the stables and its services. Within thirty (30) days of the issuance of the Notice to Proceed, the Contractor shall provide the OIC a list of equipment, furniture, fixtures, fencing, décor, and signage that Contractor plans to install within the premises. This list shall be updated and resubmitted should there be any changes. This list shall include the method of installation of equipment, furniture, fixtures, fencing, or décor, which may require alteration, modification or affixing to the premises, including utility lines to service such equipment and shall be subject to prior written approval of the OIC. Installation of all equipment, furniture, fixtures fencing, décor, and signage shall conform to all applicable statutes, rules, regulations, ordinances and industry standards. Installation shall be performed by licensed contractors with appropriate permits.
Temporary equipment may be used during the first thirty (30) day period with prior written approval of the OIC.
B) Maintenance and Repair of the Premises
The Contractor shall, at its own cost and expense, keep and maintain the premises, equipment (including usable structures that the Contractor chooses to repair and utilize), supplies, the grounds, the trails and all areas used by it in a clean and sanitary condition in compliance with all applicable laws, ordinances, rules, regulations, statutes and guidelines, including the requirements of the State Department of Health, and to the satisfaction of the OIC. All repairs and upgrades will be vested to the City in good order at the termination of the contract.
The Contractor shall be responsible for the proper upkeep of the premises and provide landscaping and maintenance only within the premises to complement the surrounding aesthetics of the Koko Head Regional Park. All trimming of trees will be conducted by the City. Request to trim trees shall be coordinated with and submitted to the OIC. Proper upkeep includes, but is not limited to, cutting back of weeds, trimming of shrubbery, maintaining and repair fencing, painting and repair of wooden structures, corrals and rinks.
Any damage to the premises or the adjacent premises caused by the Contractor’s use of the premises shall be repaired or replaced at the sole cost and expense of the Contractor. All repairs, alterations and improvements must conform to industry standards. The Contractor shall be responsible for the cost of any maintenance and
APPENDIXA:SCOPEOFWORK 8 repair work to the premises including the cost of repairs or replacement due to, but not limited to, damage caused by malicious mischief, vandalism, unlawful entry or fire.
The City reserves the right, with mutual agreement, to elect to accept any additional non-permanent fixture or equipment installed by Contractor, the Contractor shall provide a bill of sale free of any liens, encumbrances and convey free and clear of taxes the fixture/equipment to the City, included in this conveyance shall be any documented maintenance and repair, manuals and inspections.
If the Contractor adds fixtures and equipment to the premises, the City shall have a right to require removal of the equipment and appurtenances and require the Contractor to “make whole” any damages to the premises.
Temporary equipment may be used with written approval of the OIC until a replacement is found or purchased. The Contractor shall provide the OIC with a listing of all its temporary equipment installed, repaired and/or replaced, or leased with a cost breakdown for each item. The listing shall state whether the equipment is new or used. Repair of leased equipment is the responsibility of the Contractor in accordance with its contract with the leasing vendor.
The Contractor shall provide continued service to the public during any required renovations or repairs.
The Contractor shall be required, at its own expense, engage, supervise and maintain a contract with a licensed pest control company to provide extermination of vermin and pest control services.
A current, operational fire extinguisher shall remain at each of the structures on the premises at all times.
If the Contractor refuses or neglects to carry out any maintenance, repairs or replacement properly to the reasonable satisfaction of the OIC, the OIC may, but shall not be obligated to, upon thirty (30) days written notice, or such shorter notice as may be appropriate in an emergency, perform such maintenance, repairs and replacements without being liable for any loss of damage that may result to the Contractor’s merchandise, fixtures or other property or to the Contractor’s business by reason thereof except to the extent attributable to the City’s gross negligence or willful misconduct. Upon completion thereof, the Contractor shall pay to the City, within ten (10) working days after written demand, the City’s cost relating to any such maintenance, repairs, replacement, plus a sum equal to the administrative fees incurred. The Contractor agrees that the making of any maintenance, repairs, and replacement by the City pursuant to this section is neither a re-entry nor a breach of any covenant of quiet enjoyment.
Failure to comply with maintenance and repair of the City’s or Contractor’s equipment during the term of the contract shall be deemed to constitute a breach of contract and the CITY shall have the right to terminate the contract.
APPENDIXA:SCOPEOFWORK 9 C) Disposal of Garbage, Rubbish and Other Refuse
The Contractor shall, at its own expense, arrange for adequate sanitary handling and disposal from the premises of all garbage, rubbish and other refuse caused by or resulting from the Contractor’s operation. The Contractor shall be responsible to maintain the immediate vicinity around the containers in an orderly and clean condition.
The Contractor shall arrange for transport and remove all refuse and horse droppings from the premises regularly in accordance with a removal schedule approved by the OIC. Piling of boxes, cartons, barrels or other similar items shall not be permitted on the premises.
The Contractor shall provide sanitary restrooms for public use at any event held on the premises. If there are no events, the Contractor shall be responsible to provide a restroom for its office.
D) Inspection by the City
The City shall have the right to enter the premises at all reasonable times for the purpose of examining the state of repair and condition of the premises and equipment, and also for the purpose of determining whether the terms, covenants and conditions contained in the contract are fully and faithfully observed and performed.
The City shall also reserve the right to hire service quality inspectors, at the expense of the Contractor, to inspect the operation for quality requirements, verify that customers are being treated in a courteous and professional manner, and assure that premises are being used in accordance with contract terms, including the scope of the concession and cash handling procedures. The estimated cost of these inspectors is approximately eight hundred dollars ($800.00) annually. The Contractor will be provided with reports of these inspections and shall comply with any required remedies to correct the discrepancies.
E) The City will not be responsible or liable for any damages to the property, equipment, supplies, and structures which occur due to vandalism, fire and natural disaster.
F) Removal of Items on Termination of Contract
The Contractor shall leave the premises in a clean condition without an implied or written warranty within three (3) days at the end of term date of the contract. The City and Contractor shall agree to any discrepancies in the condition of the premises and negotiate/arbitrate any discrepancies regarding the condition of the premises within thirty (30) days of the inspection. The City acknowledges that “reasonable wear and tear” is acceptable upon termination of the contract.
1) Hazardous Materials
In the course of the contract and the expiration or other termination of the agreed term of occupancy, if the City believes in its reasonable judgment that there are materials deemed to be “Hazardous Materials” within the premises, then upon request by the City to the Contractor, the Contractor, at its own
APPENDIXA:SCOPEOFWORK 10 expense, shall deliver to the City a copy of a current environmental assessment of the premises, in a form reasonably acceptable to the City, conducted by a competent and experienced environmental engineer or engineering firm reasonably approved by the City in advance, confirming the Contractor’s removal of any of the Hazardous Material in accordance with Federal, State, and City and County environmental laws.
2) Telephone CAT5 Cables
Upon surrender of the Contractor premises, the Contractor shall remove any and all telephone CAT5 or comparable cables that the Contractor installed, at its own expense. The Contractor shall also seal any holes/cavities in walls, doors or floors.
8) CAPITAL IMPROVEMENTS
The Contractor shall improve the areas as listed below to enhance the services of the Contractor:
A) New entrance and driveway to the Stables from Kokonani Street (must be completed within twelve (12) months from Notice to Proceed start date or as decided by the Department of Parks and Recreation);
B) Installing new fencing around the entire perimeter of the premises (must be completed within twelve (12) months from Notice to Proceed start date);
C) Temporary portable public restrooms shall be provided by the Concessionaire until more permanent restrooms can be provided.
APPENDIXA:SCOPEOFWORK 11 EXHIBIT A Koko Crater Stables
APPENDIXA-EXHIBITA 1 EXHIBIT B
FINANCIAL RECORDS AND REPORTS
INTRODUCTION
The accompanying Internal Control Questionnaire and Standard Audit Program have been prepared as a guide to the examining accountant in the examination of gross receipts of
City Contractors.
Preparation of the questionnaire by appropriate inquiry and observation is to be undertaken at the outset of the work. The audit program should then be considered in the light of conditions revealed by the questionnaire, particularly with reference to the extent of detailed checks. Accuracy of the answers and effectiveness of established procedures are to be checked by the accountant doing the detailed audit operations.
Upon completion of the audit work, the examining accountant should prepare a certificate in the form requested, calling the attention of the Contractor to any failure to adhere to terms of the concession contract and weakness in internal control.
APPENDIXA-EXHIBITB 1 EXHIBIT B: INTERNAL CONTROL QUESTIONNAIRE
1. Have amendments been made to the contracted premises for the year under examination?
2. Are accounting records showing daily receipts from all sales and other transactions of the contracted premises kept on the premises?
3. Does the Contractor operate and control other contractual services in locations other than with the City?
4. If the Contractor has other locations, are sales segregated in the accounting records?
5. Is more than one cash register in use at the concession? If more than one register is employed, obtain list of all registers in use.
6. Do all cash registers have a non-resettable cumulative dollar total? What is the capacity of the cumulative total? $______
Do registers with limited capacity have non-resettable control features indicating the number of times the registers returned to zero?
7. Did the Contractor repair cash register(s) during the year? If so, were the cumulative totals reset?
Did the Contractor obtain a loaner while its register was being repaired? If so, was proper notification given to the City?
8. Are all cash registers in use manufactured in the United States?
9. Are sales recapitulations by sales registers maintained?
Are such recapitulations summarized so that totals for the year are available?
10. Did the Contractor rent additional (temporary) cash registers during the year for special events? If so, was proper notification given to the City?
11. Are cash registers so located that customers can see the amount of the sales that are rung up?
12. Did the Contractor sublease any department or concession of the leased premises during the year under?
13. Did the Contractor sublease any department or concession of the leased premises during the year under examination?
14. Does the concession agreement provide that both charge and cash sales be rung up in the cash register?
15. Are serially numbered sales slips prepared for all sales originating in the concession premises?
APPENDIXA-EXHIBITB 2 16. Are sales per cash register tapes and readings reconciled to those per sales invoices by someone independent of the cashier or sales force?
17. Are daily clearings of cash registers made by an employee other than the concession owner or cashier?
18. Are sales discounts, returns and allowances approved by someone other than the cashier?
APPENDIXA-EXHIBITB 3 EXHIBIT B: ANNUAL STANDARD AUDIT PROGRAM
1. Obtain from the Contractor a copy of the concession agreement including all amendments thereto and abstract pertinent sections of the agreement for reference during the current audit and subsequent examinations.
2. Prepare internal control questionnaire and ascertain by observation and test that indicated procedures are being followed.
3. In the light of the evaluation of the system of internal control, add below or on a separate sheet, additional audit operations considered necessary in the circumstances. Likewise, delete inapplicable operations or operations considered unnecessary in the circumstances.
4. For Contractor with operations located other than in the City premises prepare a columnar worksheet showing a breakdown of gross sales by month for each store and total sales. Foot and cross foot all columns and compare the totals with the total sales in the general ledger. (For a Contractor operating on City premises, the schedule specified in Item #6, below, will suffice.)
5. Obtain monthly reports submitted to the gross receipts tax department of the State of Hawaii and ascertain that monthly gross sales shown on such reports agree with the gross sales shown on the schedule prepared under Item #4, above. Reconcile any difference.
6. Prepare a columnar worksheet showing a breakdown by month sales of the entity as follows:
a. Gross sales - itemized by type b. Sales exempt from rental c. Total sales subject to rent d. Sales reported to the City e. Difference
If, by the terms of the management agreement, sales are reportable for rent computation by the application of various percentages, break down the sales by such classification. Reconcile differences appearing under Item #7, below, and obtain explanations for such differences.
7. Select period(s) for detail checking (the extent to be determined by reference to the Internal Control Questionnaire) and proceed as follows:
a. From the list of cash registers or POS systems in use during the year obtained in answer to Question #5 of the Internal Control Questionnaire, ascertain that the cash register tapes or POS systems transaction records are present for each day of the period selected for testing. Trace the totals appearing on tapes to sales summaries, foot the sales summaries for the months selected for testing and compare the monthly totals shown on sales summaries to the general ledger control accounts.
APPENDIXA-EXHIBITB 4 EXHIBIT B: ANNUAL STANDARD AUDIT PROGRAM (continued)
b. Select cash register tapes or POS systems transaction records for five (5) consecutive days in each of two (2) months and foot the tapes. Determine that the recapitulation agrees with the total rung up. The recapitulation report shall show the type of sale, i.e., charge sales, cash sales, etc.
c. Trace the daily recapitulations shown on the tapes to recapitulation summaries, if summaries are maintained.
d. Test the footings on recapitulation summaries for the year and compare the totals to totals obtained from cumulative register readings.
e. For tapes selected in Item b, above, review sales made indicating a non-ring and obtain explanation for frequent no-rings. Satisfy by inspection and observation (if practicable) at the cash register that explanations for no-ring sales are proper.
Examine vouchers supporting returns (pay-outs) appearing on the tape for proper approval.
f. If, by the terms of the concession agreement, charge sales are not rung up in cash registers, obtain sales slips for the periods selected for test under Item b, above, and total the slips representing the day's charge sales. Account for the numerical sequence of sales slips.
g. Trace totals shown on cash register or POS transaction tapes in Item e, above, and charge sales under Item f, above, to sales summaries, sales registers, etc.
h. If, by the terms of the concession agreement, sales slips are required for both charge sales and cash sales, obtain sales slips for the five (5) days selected in Item b, above, foot the slips and compare the totals to sales reported in cash register tapes or POS system transaction records. As in Item f, above, account for the numerical sequence of sale invoices for periods selected.
8. Review the general ledger account, sales summaries, etc., for any debits (charges) to sales from sources other than sales journals, cash receipts books, etc., and examine underlying data supporting such charges.
9. Complete the sales report and certification in the form attached hereto. Weaknesses in internal control and failures to adhere to terms of the management agreement must be disclosed in the certificate by the insertion of paragraph(s) with appropriate qualifications in the accountant's opinion or in a separate letter. The accountant's certification letter must also contain either one of the following paragraphs:
a. That the Contractor's cash register(s) or POS system is in compliance with all agreement requirements; or,
APPENDIXA-EXHIBITB 5 b. That the Contractor’s cash register(s) or POS system is not in compliance with all concession agreement requirements. A detailed explanation of the variances to the concession requirements must be disclosed.
APPENDIXA-EXHIBITB 6 SAMPLE EXHIBIT B - INDEPENDENT AUDITOR'S REPORT
(Name and Address of Contractor)
We have audited the accompanying schedules of gross receipts and rent computation, as defined in the agreement dated ______, between the City and County of Honolulu and ______as Contractor of the concession agreement location for the year ended ______. These schedules are the responsibility of (Name of Contractor) management. Our responsibility is to express an opinion on these schedules based on our audit. We have conducted our audit in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the schedules are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in these schedules. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall schedule presentation. We believe that our audit provides a reasonable basis for our opinion. In our opinion, the schedules of sales and rent computation referred to above present fairly, in all material respects, the sales and rent computation of (Name of Contractor) at ______(concession location) , for the year ended ______, as defined in the concession agreement referred to in the first paragraph. Our audit disclosed gross sales as follows: GrossSalesasaudited $ Cumulative Cash Register reading(s):
End-of-Year Reading(s) $ LESS: Beginning-of-Year Reading(s) $ $
Difference* $
*This "difference" may be attributed to the following principal reasons (if applicable). In addition, the cash registers are/are not in compliance with the requirements specified in the concession agreement referred to in the first paragraph.
This report is intended solely for the information and use of the board of directors and management of (Name of Contractor) and the City and County of Honolulu, and should not be used for any other purpose.
Certified Public Accountant(s)
______(Date of Report)
APPENDIXA-EXHIBITB 7 EXHIBIT B: CITY AND COUNTY OF HONOLULU
CONTRACTOR ANNUAL GROSS RECEIPTS REPORT
MONTH GROSS MINIMUM PERCENTAGE CONCESSION RECEIPTS MONTHLY CONCESSION FEE FEE PAID CONCESSION @% FEE
Concession Fee Payable $
LESS: Monthly Fee Paid $
Remit to City or (Refund Due Contractor) $
APPENDIXA-EXHIBITB 8 CITY AND COUNTY OF HONOLULU
CASH REGISTER/POS SYSTEM NOTIFICATION
I hereby certify that the following cash register(s) listed below, located at ______meets the City cash register/POS System Concession agreement requirements.
This notification is to inform you of the following (check one):
______Cash Register/POS system Installation ______Temporary (Note 1) ______Permanent Reason: ______
______Cash Register/POS system Removal ______Temporary (Note 2) ______Permanent (Note 3) Reason: ______
______Cash Register/POS system Return Reason: ______
Make/ModelNo. SerialNo. RegisterReading Date
"Furnish to the City a statement from an established agency that the transaction number, the cumulative total, and the overrun counter have been sealed in a manner approved by the City."
For:______Name of Cash Register/POS system Company
By:______SignatureofRepresentative Date
APPENDIXA-EXHIBITB 9 Note 1: If cash register(s) has been temporarily installed for reason of repair, special sales promotion, etc., a follow-up notification of removal must be submitted by the cash register company upon discontinuance of the temporary cash register(s).
Note 2: If cash register(s) has been temporarily removed for reason of repair, servicing, etc., a follow-up notification of return must be submitted by the cash register company when repairs have been completed.
Note 3: If cash register(s) has been permanently removed for reason of discontinuance, no follow-up notification statement is required.
If cash register(s) has been permanently removed for reason of replacement, a follow-up notification of installation must be submitted by the cash register company upon installation.
APPENDIX A - EXHIBIT B 10 EXHIBIT C
CITY PROPERTY- KOKO HEAD STABLES
All structures on the property including:
a. Corrals and rinks – as repaired
b. 2 stable structures – stable closest to lower rink is not repaired but usable and ½ of the lower portion of the long barn is not repaired.
c. Structure with office and restroom is not repaired and not usable as a part of this contract.
d. Tack room and adjoining structures is not repaired and not usable as a part of this contract.
e. 2 sheds for storage of fee and maintenance equipment for the property has been repaired.
f. One tiled structure for storage is not repaired and not usable.
g. Fencing around the perimeter of the property needs repair.
All structures listed above are as indicated.
APPENDIX A – EXHIBIT C 1 EXHIBIT D
RELEASE AND WAIVER OF CLAIMS SAMPLE
The undersigned, who is or may be a participant in equestrian activities including, without limitation, horseback riding, horse grooming, horse cleaning, stall cleaning, riding lessons, trail and beach rides, horse jumping, horse shows, clinics, parades, polo matches or practice, organized events, and all other equestrian activities of every kind and description (hereinafter “Equestrian Activities”), being carried out.
(a) at Koko Crater Stables, located at 1791 Kokonani Street, Unit A, Honolulu, Hawaii, HI 96825, (hereinafter “Center”), owned by the City and County of Honolulu, Department of Parks and Recreation, (hereinafter “Owner”), and operated by [CONTRACTOR’S LEGAL NAME], (hereinafter ”Operator”), [STATE - CONTRACTOR’S NAMES, TRAINERS NAMES AND INSTRUCTORS NAMES, EMPLOYEE’S NAMES]
or (b) using horses or other equipment located at the Center or owned, leased, or otherwise controlled by Operator, or using horses boarded at the Center by other owners (collectively referred to as “Horses and Equipment”) whether used on or off the Center premises, in consideration of the use of Center facilities, Horses and Equipment, agrees to the following:
1. GENERAL RELEASE. The undersigned hereby releases and waives any claims that the undersigned and those listed below may now or hereafter have against Owner, City and County of Honolulu, Department of Parks and Recreation, City and County of Honolulu, Department of Enterprise Services, and/or Operator, [CONTRACTOR’S LEGAL NAME],
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APPENDIXA:EXHIBITD 1 and all of their owners, operators, employees, agents, guests, licensees, invitees, independent contractors, work persons, barn help, privies, (hereinafter collectively referred to as the “Released Parties”), from and against any and all liabilities, claims, judgments, losses, damages, costs or expenses of whatever kind or nature, including all attorney’s fees, which the undersigned and those listed below may incur as a result of their Equestrian Activities undertaken at the Center or including without limitation, personal injury and/or death and damages to property (including injury to or death of horses) resulting therefrom, including loss of income, earnings, bodily injury, pain and suffering, emotional or mental distress and any and all medical concerns and conditions related thereto.
2. ASSUMPTION OF RISK. The undersigned acknowledges and understands that the Equestrian Activities, whether undertaken at the Center or elsewhere and whether using the horses and equipment or not, involve the risk of personal injury and/or death, and the damage to personal property (including injury to and/or death of horses) which may result from undersigned’s participation in Equestrian Activities. Such injuries may be caused by animals, horses, other participants, the undersigned, instructors, trainers, acts of God and nature, field conditions including uneven or damaged terrain, the presence of moisture, mud and/or flooding of the terrain, obstacles and obstruction upon or under the terrain and other natural or manmade conditions which may be hazardous to the undersigned or create hazards in the undersigned’s Equestrian Activities. The undersigned further acknowledges knowing and understanding that the Equestrian Activities are INHERENTLY DANGEROUS AND ASSUMES ALL RISK OF INJURY OR DEATH AND/OR DAMAGE WHICH MAY RESULT THEREFROM FOR ANY REASON WHATSOEVER.
3. INDEMNIFICATION. The undersigned hereby agrees to indemnify, defend and hold harmless the Released Parties, and all neighboring property owners, and/or their assigns, from and against any and all liabilities, claims, judgments, losses, damages, costs or expenses of whatever kind or nature, including all attorney fees, which the undersigned,
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APPENDIXA:EXHIBITD 2 those persons listed below and any guest, licensee, invitee or any other person claiming by or through the undersigned, may sustain, inflict or cause in connection with their participation in Equestrian Activities, use of the horses and equipment or presence on or in the Center or Center facilities, including injury to or death of other horses, damage to cars or other property of other persons or personal injury to or death of said other persons.
4. REIMBURSEMENT. The undersigned agrees that in the event any claim is made against the Released Parties for any damage or injury for which the undersigned has released or indemnified the Released Parties pursuant to this Release and Waiver of Claims, and for which any of the Released Parties is found liable, the undersigned shall pay such claims within thirty (30) days notice thereof being given to undersigned. In the event the undersigned does not make such payment within the time period allotted, then all sums shall be due and owing together with interest at the rate of twelve percent (12%) per annum. In the event of an action to collect such sums, the Owner/Operator shall be entitled to place a lien, or hold, or liquidate personal property of the undersigned located in or on the Center. In the event of an action to collect such sums, the prevailing party in such action shall be entitled to an award of reasonable attorney fees incurred thereby. For the purposes of this provision, notice shall be deemed given upon personal delivery of three (3) days after depositing said notice with the U.S. Postal Service, addressed to the undersigned at their current address in the records of the Owner/Operator, postage prepaid, registered or certified, return receipt requested.
5. BINDING EFFECT AND CONTINUED NATURE. The foregoing provisions shall be fully binding upon and shall be effective against the undersigned, its heirs, successors, legal representatives or assigns and shall apply to the actions of the undersigned personally, the undersigned’s family, guests, employees or agents. This Release shall be continuing in nature, and shall apply to the persons mentioned in the preceding paragraphs who use the Horse and Equipment, which are present at the Center and/or any neighboring properties upon which they are riding.
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APPENDIXA:EXHIBITD 3 6. GOVERNING LAW AND VENUE. This Release and Waiver of Claims shall be governed by the laws of the State of Hawaii, without regard to conflicts of laws. The undersigned agrees that the sole venue for any civil action resulting hereunder shall be the appropriate Court of the First Circuit, State of Hawaii.
7. SEVERABILITY. If any portion of this Release and Waiver of Claims is found to or held to be invalid, the remaining portions of it shall remain in full force and effect.
8. OTHER RIGHTS HELD BY RELEASED PARTIES NOT LIMITED BY THIS DOCUMENT. This Release and Waiver of Claims does not in any way limit or reduce any protection, limitation, or immunity from suit otherwise enjoyed by the Released Parties as a result of any other agreements, or of any legislation, statute, regulation, ordinance, or other law of the State of Hawaii or any political subdivision of the State of Hawaii.
9. COUNTERPARTS AND FACSIMILE or PDF SIGNATURES. The undersigned and Release Parties agree that this Release and Waiver of Claims may be executed in counterparts. When each has signed and delivered at least one such counterpart, each counterpart shall be deemed an original and, when taken together, shall constitute a Release and Waiver of Claims, which shall be binding upon undersigned and Released Parties. In making proof of the Release and Waiver of Claims, it shall not be necessary to produce or account for more than a single counterpart containing the respective signatures of each of the parties. Facsimile signatures or signatures in portable documents format (pdf) shall be deemed original signatures for all purposes.
10. ACKNOWLEDGEMENT. The undersigned and Released parties each acknowledge that the terms of this Release and Waiver of Claims have been read, that its provisions are fully understood and that it has been signed as their free act and deed.
11. MERGER AND AMENDMENTS. This Release and Waiver of Claims contains the entire Release and Waiver of Claims between the undersigned and Released Parties and supersedes all prior and contemporaneous releases and understandings in connection
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APPENDIXA:EXHIBITD 4 therewith. This Release and Waiver of Claims shall not be altered, amended, modified or otherwise changed in any respect, to particular whatsoever, except in a writing duly executed by the undersigned and Released Parties.
12. CONSTRUCTION. This Release and Waiver of Claims shall be construed without regard to the identity of the person(s) who drafted the provisions contained herein. Each and every provision of this Release and Waiver of Claims shall be construed as though each of the undersigned and Released Parties participated equal in the drafting thereof. As a result of the foregoing, any rule of construction against the drafting party shall not be applicable.
13. NUMBER. In this Release, the singular shall include the plural and plural shall include the singular as the case may be.
14. WAIVER AND AMENDMENT. No provision of this Release and Waiver of Claims may be amended or waived except by a writing signed by the undersigned and Released Parties, and a waiver of any one provision of this Release and Waiver of Claims shall not be deemed a waiver of any other provision.
15. EFFECTIVE DATE. The effective date of this Release and Waiver of Claims shall be the date that this Release and Waiver of Claims is fully executed by the undersigned and Released Parties.
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APPENDIXA:EXHIBITD 5 THIS DOCUMENT AFFECTS AND LIMITS YOUR LEGAL RIGHTS. READ THIS DOCUMENT CAREFULLY BEFORE SIGNING.
In WITNESS WHEREOF, this document is executed on ______, 20____.
______Print Name Signature
Address: ______
______
PARENT OR GUARDIAN CONSENT: Each of those persons signing above on behalf of themselves is a parent or legal guardian of the minor(s), being under 18 years of age, listed below. They hereby represent and warrant that they are also entering into this Release and Waiver of Claims on behalf of such minors, subjecting said minor(s) to all terms and conditions of this Release of Waiver of Claims.
______Print Name Relationship to above minor
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APPENDIXA:EXHIBITD 6 APPENDIX B: TERM / SCHEDULE OF WORK
1. Contract Term: The term of the contract shall be for a thirty-six (36) month period, and shall begin on the date stated on the Notice to Proceed, unless otherwise mutually agreed upon by the parties hereto.
2. Hours of Operation. The Contractor shall be opened to the public for business for boarding operations Tuesday through Saturday from 7:00 AM to 7:00 PM and by appointment to provide additional services. The Contractor shall post hours, approved by the OIC, on when the public is allowed on the premises and the rules and regulations for the accessible areas. The facility shall be closed for maintenance on Sundays and Mondays.
Any changes to the operational hours can be made only with written approval by the OIC. The OIC reserves the right to regulate the operating hours of the concession, including blocking sufficient time to inspect the premises and conduct repairs. The Contractor shall not be permitted a fee reduction to offset any closure by the City for inspection, repairs or trimming of trees.
APPENDIXB:TERM/SCHEDULEOFWORK 1 THE FOLLOWING PAGES SHALL BE DETACHED FROM THE SOLICITATION DOCUMENT AND SUBMITTED AS THE OFFEROR’S BID.
APPENDIX C: PRICING/CERTIFICATIONS
Name of Offeror (Legal Name)
Director of Budget and Fiscal Services City and County of Honolulu Honolulu, Hawaii 96813
Solicitation No. RQN-DES-1900053
The undersigned hereby agrees to complete the specified work herein, at the proposal prices quoted below, in strict compliance with this Appendix C- Price/Certifications, Appendix A: Scope of Work, Appendix B: Term/Schedule of Work, Appendix D: Special Provisions and Appendix E: The General Terms and Conditions for Concession Contracts (09/15), the attached Exhibits and Attachments attached hereto and by reference made a part thereof.
It is understood and agreed that the undersigned Offeror declares that it has thoroughly examined and is familiar with the this Appendix C – Price/Certifications, Appendix A: Scope of Work, Appendix B: Term/Schedule of Work, Appendix D: Special Provisions and Appendix E: The General Terms and Conditions for Concession Contracts (09/15), the attached Exhibits and Attachments attached hereto and by reference made a part thereof (referred to as “Bid Documents” herein) for the operation and management of the Koko Crater Stables and that this proposal is made without collusion with any other person, firm or corporation.
It is also understood and agreed that the Koko Crater Stables is a public facility. Therefore, the established rates for services shall be within a range charged at comparable facilities or types of business. It is understood that the Offeror has taken this into consideration in calculating its bid.
The undersigned Offeror bids the following Monthly Percentage Concession. Any percentage fee bid offered that is less than the bid upset as specified below and in Appendix A Section 3– Concession Fees and Payments, #3B- Monthly Percentage Fee shall be as follows:
AppendixC:Pricing/Certifications 1 Item Contract Monthly Fixed Minimum Offeror’s Estimated Evaluated Number Total Concession Fee No. Period Fee Due Percentage Minimum Monthly Revenue to of Bid Fee Monthly Revenues the City Months Percentage Fee if greater than (BxC)=D DxE=F Minimum Monthly Fixed Fee*
(B) (C) (D) (E) (F)
1. Year 1 to Year $1,100.00 8.8% ______% $12,500.00 $______36 $______3
Estimated Total Evaluated Proposed Fee to be paid to the City and $______County of Honolulu for the duration of the Contract
*The percentage shall be limited to two (2) digits past the decimal point (i.e.10.01%). It should be noted the “Estimated Monthly Revenues”, “Evaluated Revenue to the City” and “Estimated Total Evaluated Proposed Fee to be paid to the City and County of Honolulu for the duration of the Contract” are solely for the purpose of determining the highest responsive, responsible bidder. The amounts stated for the “Monthly Fixed Fee” and “Estimated Monthly Revenues” are not to be changed.
“Estimated Monthly Revenues” listed are estimated sales volume projected by the Department of Enterprise Services. Projections are based on businesses with similar size and similar occupancy. In the event the sales volume does not materialize in the quantities as specified, such failure shall not constitute grounds for equitable adjustment under the contract.
The undersigned Offeror agrees that, if awarded the contract for the operation and management of the Koko Head Stables, it will enter into a contract with the City and County of Honolulu in accordance with the terms and conditions set forth in the Appendix A: Scope of Work, Appendix B: Term/Schedule of Work, Appendix C – Price/Certifications, Appendix D: Special Provisions and Appendix E: The General Terms and Conditions for Concession Contracts (09/15), the attached Exhibits and Attachments.
The Bid Deposit shall be calculated by the following:
Year 1 Offeror’s Estimated Evaluated % Minimum Bid Deposit Monthly Minimum Monthly Revenue to Deposit Due with Bid Fixed Fee Monthly % Revenues the City for Year 1 G+(HxI)=J JxK=L
(G) (H) (I) (J) (K) (L)
$1,100.00 ______% $12,500.00 $______.05 $______
The undersigned bidder submits as a bid deposit a:
AppendixC:Pricing/Certifications 2 [ ] SuretyBond [ ] Cashier’sCheck
[ ] CertifiedCheck [ ] LegalTender
In the amount of ______Dollars ($______), or (L) above, as required by Section 5 Deposit Accompanying Bids/Bids Security of the General Instructions to Offerors and made payable to the “City and County of Honolulu”.
It is understood and agreed upon that the Director of the Department of Budget and Fiscal Services reserves the right to accept or reject any or all bids and to waiver any defects if, in the Director’s opinion, such acceptance, rejection or waiver is deemed to be in the best interest of the City and County of Honolulu.
The undersigned represents: (Check one only)
A Hawaii business incorporated or organized under the laws of the State of Hawaii;
OR
A Non-Hawaii business not incorporated or organized under the laws of the State of Hawaii.
State of Incorporation or Organization:
Offeror is: Sole Proprietor; Partnership; Corporation; Joint Venture;
Other:
Respectfully submitted,
Name of Offeror
Signature
Print Name and Title of Above
Business address (Street Address)
AppendixC:Pricing/Certifications 3 City, State, Zip Code:
Business mailing address (If other than address above)
City, State, Zip Code:
Business Telephone No:
Business Fax No.:
Business E-Mail Address:
Name of Hawaii Contract and Contact Number:
State of Hawaii General Excise Tax License Number:
Last 4 numbers of Federal Identification No.: XX-XXX
- Or - Last 4 numbers of Social Security No. if Sole Proprietor: XXX-XX-
Type of Organization: ______
State of Incorporation: ______Other:______
Note: If “Other” is the corporate seal available in your Honolulu office?
Yes:______No: ______
What month does the organization’s fiscal year end? ______
AppendixC:Pricing/Certifications 4 CERTIFICATE OF ACCEPTANCE OF SOLICITATION REQUIREMENTS
It is understood and agreed that the undersigned acknowledges the following:
1. The Offeror has read this solicitation document including any addenda, in its entirety;
2. The Offeror understands and agrees to furnish, deliver, and perform the requirements of the solicitation in strict compliance with the solicitation document as amended, including any specifications, plans, and scope of work descriptions, without any exceptions, if awarded a contract;
3. The Offeror understands that the Contractor shall resolve any noncompliance with the requirements of the awarded contract at the Contractor’s own expense;
4. The Offeror understands that FAILURE TO MEET CONTRACT REQUIREMENTS WILL CONSTITUTE A BREACH OF CONTRACT THAT MAY RESULT IN SUSPENSION OR DEBARMENT, AND THE EXERCISE OF RIGHTS AND REMEDIES AS PROVIDED BY LAW. Contract requirements include any specifications, plans, and scope of work descriptions;
5. The undersigned is an authorized representative of the Offeror and can legally obligate the Offeror thereto.
Offeror:
Signature:
Title:
Date:
END OF APPENDIX C.
AppendixC:Pricing/Certifications 5 APPENDIX D: SPECIAL PROVISIONS
1. FAILURE TO COMPLY
In the event the Concessionaire is found to be in nonconformance with the requirements of this contract, the Concessionaire shall, within five (5) days of receipt of written notice from the OIC, remedy, maintain, clean and/or make repairs necessary to conform to the contract requirements. Failure to comply shall be deemed to constitute a breach of contract and the City shall have the right to terminate the contract.
2. TERMINATION FOR SUBSTANTIAL BREACH OF CONTRACT
The following types of Contractor violations shall be deemed to be substantial breaches of the Contract. Contractor violation of any of the following types of violations specified below shall be sufficient causes for termination by breach of this Contract.
a. When the actions of the Contractor or their employees puts the public, employees or patrons in harm’s way due to hazardous weather conditions, inferior equipment, inexperienced employees and personnel or disobeying communications from emergency personnel including Honolulu Emergency Services personnel (including lifeguards and ocean safety officers), Emergency services personnel, Honolulu Police Department or Honolulu Fire Department.
b. Non-compliance with Non-Discrimination clause in this contract. (Appendix E – General Terms and Conditions for Concession Contracts 09/15, Item #10 Non Discrimination)
3. INSURANCE
Delete Section 15. Insurance Requirements of the General Terms and Conditions for Concession Contracts (09/15) in its entirety and replace with the following:
“15. INSURANCE REQUIREMENTS
The Contractor shall procure or cause to be procured and maintained (as provided herein), at no cost to the City, during the life of this contract and any extensions thereof, all insurance to cover the operations under this contract, that may be required under the laws, ordinance or regulations of any governmental authority, including but not limited to the coverage stated below. The Contractor shall either include all tiers of subcontractors, if any, under the policies required under Paragraphs 8A1) and 8A2) to the extent permitted by law, or shall require all subcontractors to maintain all coverage described in Paragraphs 8A1) and 8A2) below.
A) Commercial General Liability Insurance. The Contractor shall maintain commercial general liability (CGL) and if necessary commercial umbrella insurance with a limit of not less than $1,000,000 each occurrence and general aggregate. CGL insurance shall be written on ISO occurrence form, CG 00 01 (or a substitute form providing equivalent coverage), and shall cover liability arising from premises, operations, property and equipment, independent contractors, products-completed operations,
AppendixD:SpecialProvisions 1 personal injury and advertising injury and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). The City shall be included as an insured under the commercial umbrella, if any. The policy(ies) shall contain a waiver of subrogation in favor of the City.
B) Workers’ Compensation and Employer’s Liability Insurance. The Contractor shall maintain workers compensation and employers liability insurance. Workers compensation coverage shall be in accordance with State statutes. Employers liability coverage shall provide limits of not less than $100,000 each accident for bodily injury by accident or $100,000 each employee, $100,000 aggregate, for bodily injury by disease. This policy shall contain a waiver of subrogation in favor of the City.
C) Business Automobile Liability Insurance. The Contractor shall maintain business auto liability (including no-fault coverage) and if necessary, commercial umbrella liability insurance with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of any auto (including owned, hired, and non-owned autos) used by the contractor in performance of this contract. If necessary, the policy shall be endorsed to provide contractual liability coverage.
D) Builder’s and Installation Risk. During any period of construction or remodeling or installation, the Contractor shall procure or cause to be procured Builder’s Risk or installation insurance covering loss or damage to materials, supplies and equipment to be built, installed or otherwise incorporated into the Premises. The City will be included as additional insured under such policy or policies.
E) The insurance specified above shall:
1) Provide that such insurance is primary coverage with respect to all insured for claims arising from the Contractor’s negligent acts and/or omissions or misconduct; and that nay insurance (or self- insurance) carried by the City shall be excess and non- contributing;
2) Contain a standard Cross Liability endorsement providing that the insurance applies separately to each insured, applicable to policies specified in Paragraphs 8A1 and 8A2 above;
3) Not be terminated, cancelled, not renewed or substantially changed without thirty (30) prior written notice to the City, except for non-payment of premium; and
4) Be provided by insurers authorized to do business in the State of Hawaii, and with a current Best’s rating of not less than A-, or otherwise as approved by the City.
F) Certificates of Insurance:
AppendixD:SpecialProvisions 2 1) The Contractor will provide and maintain current certificates of insurance, prepared by a duly authorized agent, or if requested, copies of the policies evidencing the insurance in effect at all times during the period of this agreement as required herein to the City.
2) Certificates shall clearly identify the project by name and/or contract number.
3) Certificates shall show the Certificate Holder as the City and County of Honolulu and be delivered to the Director of Budget and Fiscal Services, 530 South King Street, Honolulu, Hawaii 96813.
4. FISCAL RESPONSIBILITY
Delete subsections B. Income Accountability and C. Sales Audit Requirement of Section 8. Business Records and Income Accountability of the General Terms and Conditions for Concession Contracts (09/15) in its entirety. It is replaced in function under Section 6 Contractor’s Fiscal Responsibility, Appendix A: Scope of Work.
5. TERMS
Wherever in this Contract it states “Contractor”, this shall be equal to “Concessionaire”.
AppendixD:SpecialProvisions 3 APPENDIX E: GENERAL TERMS AND CONDITIONS FOR CONCESSION CONTRACTS FOR THE CITY AND COUNTY OF HONOLULU
1. DEFINITIONS. Whenever used herein:
A. "ADJUSTED GROSS INCOME" means Gross Income less the State General Excise Tax.
B. “AS IS, WHERE IS” means the concession premises in its present condition and location without any warranties.
C. "BIDDER" means any individual, partnership, corporation or other entity, or combination thereof, submitting a bid for the concession.
D. “BUILDING SYSTEMS” means any air conditioning, electricity, water, heating, chilled water, ventilating, mechanical, lighting, telephone and telecommunications systems, sanitary (sewer) and storm drainage systems and all other utilities and mechanical systems which serve any portion of, or are located and used by the Concessionaire in the City building.
E. "CITY" means the City and County of Honolulu.
F. "CONCESSIONAIRE" means the party entering into the Contract with the City.
G. "CONTRACT" means the properly-executed written agreement that includes the Notice of Intent to Bid, General Instructions to Bidders, Concession Requirements, Bid Proposal, General Terms and Conditions for Concession Contracts, properly executed written modifications of the Contract, and all exhibits and documents referenced in the aforementioned list of documents.
H. "DAYS" means calendar days unless otherwise specified.
I. "DIRECTOR" means the Director of the Department of Budget and Fiscal Services of the City or his/her authorized representative.
J. "GROSS INCOME" means and includes all receipts and all revenues, inclusive of any and all taxes, from operations, sales, orders taken, and services rendered from, about, or by reason of the operation of the concession by the Concessionaire; provided that the following shall be excluded from the computation of gross income:
(1) Receipts from the sale or trade-in value of any of the Concessionaire's furniture, fixtures or equipment used in the concession operation.
(2) Receipts from the sale of uniforms or clothing when such uniform or clothing are required to be worn by such employees.
(3) Gratuities or tips given by patrons or customers to the employees.
Appendix E: GENERAL TERMS AND CONDITIONS 1 FOR CONCESSION CONTRACTS In case of any doubt on the interpretation of gross income, the interpretation given by the Director shall govern and control.
K. “NON-STRUCTURAL PORTION OF THE CONCESSION PREMISES” – means and includes all nonstructural installations related to the Concessionaire in and about the Premises, in good condition and repair, including, without limitation, the maintenance, replacement and repair of any storefront, doors, door assemblies, window casements, glazing, plumbing, gas lines and the following which serve the concession premises: pipes, electrical wiring, and conduits, and ventilation and any air conditioning system (“the HVAC system, if applicable) that services the concession.
L. "OFFICER-IN-CHARGE" means the Director of the Department of Enterprise Services of the City or his/her authorized representative.
M. "OFFICIAL COMMENCEMENT DATE" means the commencement date designated in the written "Notice to Proceed" issued by the Officer-in-Charge or the Director after execution of the Contract by the City.
N. “PREMISES” is the area designated in Exhibit A which includes the area within the interior walls, ceilings, and top of the floor and also includes storefronts, doors, door assemblies, window casements, glazing, plumbing, gas lines, pipes, electrical wiring and conduits and ventilation and any air conditioning system that services the concession or any appurtenances which support the concession equipment, or fixtures.
O. "PURCHASING DIVISION" means the Division of Purchasing, Department of Budget and Fiscal Services of the City.
P. “SUBLET” means to permit a third party to rent the PREMISES or any part thereof in exchange for payment.
2. CONSTRUCTION OF CONTRACT
Whenever the context of the Contract requires it, the masculine shall be deemed to embrace and include the feminine and neuter, and the singular shall be deemed to embrace and include the plural.
3. COURT RULING
In the event any term, covenant, or condition of the Contract is held to be invalid by any court of competent jurisdiction, such invalidity shall not affect any other term, covenant, or condition of the Contract, provided that such invalidity does not materially prejudice the rights and obligations of either the City or the Concessionaire contained in the valid terms, covenants, or conditions of the Contract.
4. SECTION AND SUBSECTION HEADINGS
The section and subsection headings throughout this instrument are for the convenience of the City and the Concessionaire and are not intended nor shall they be used to
Appendix E: GENERAL TERMS AND CONDITIONS 2 FOR CONCESSION CONTRACTS construe the intent of the Contract or any part thereof, or to modify, amplify, or aid in the interpretation or construction of any of the provisions thereof.
5. INTERPRETATION OF CONTRACT
In case of any doubt as to the meaning of any term in the bid proposal, special provisions, requirements, specifications, exhibits, plans, general terms and conditions and all other documents herein, the interpretation by the Director shall control. All directions and explanations required or necessary to complete the Contract shall be formulated by the Director or his/her authorized representative.
6. EXECUTION OF CONTRACT
Within ten (10) days of the City’s request or within such further time as the Director may allow, the successful bidder shall execute and submit to the Director the Contract, together with satisfactory security, pursuant to the applicable provisions herein.
The successful bidder shall execute the Contract as follows: In the case of a domestic corporation, the title or titles of the person or persons signing must be stated and the corporate seal affixed thereto. In the case of a foreign corporation, if the corporate seal is not readily available, a copy of a resolution of the Board of Directors of such corporation, or other written evidence of authority signed by an officer of the corporation, authorizing the person or persons signing to execute bids, contracts and all other necessary documents in connection therewith shall be attached. Where the bidder is an association or group, the title or titles of the person or persons signing must be stated and an affidavit of the association or group must be attached which acknowledges the authority of the signer or signers to sign bids, contracts and all other necessary documents in connection therewith for the association or group.
The City reserves the right to cancel the award of the Contract at any time prior to the signing of the Contract by the City.
7. COMMENCEMENT OF OPERATION
After the Contract is executed, the Officer-in-Charge shall issue to the Concessionaire a written Notice to Proceed designating the Official Commencement Date of the Contract.
Should the Concessionaire incur expenditures for material, supplies and equipment or for any installation work prior to receiving the Notice of Proceed from the City, such expenditures shall be considered as having been done at its own risk and expense and shall not obligate the City in any way.
8. BUSINESS RECORDS AND INCOME ACCOUNTABILITY
A. BusinessRecords
The Concessionaire shall maintain and keep accurate books of accounts and records in accordance with accounting procedures approved by the Director which shall detail all concession revenue and expenditures. The books and records shall include tax reports of every kind. The books, records and tax reports shall be kept for a period of not less than one year following the end of
Appendix E: GENERAL TERMS AND CONDITIONS 3 FOR CONCESSION CONTRACTS the Contract term or until City auditors have had reasonable opportunity to audit the same.
All books and records shall be kept separately for this concession, exclusive of any other business operation of the Concessionaire.
The Director shall reserve the right, at all reasonable times, to access the Concessionaire’s books, accounts, records and reports, including tax reports, and on twenty-four (24) hours notice have the right to complete an audit of the Concessionaire’s entire business affairs and records relating to the concession operation. If the audit reveals that the Concessionaire underestimated the amount of gross income for any month by two percent (2%) or more of the true amount thereof, the Concessionaire shall then be responsible to pay for the cost of the audit. If the Concessionaire, whether knowingly, mistakenly or otherwise, understates the amount of its gross income for any month by five percent (5%) or more of the true amount thereof, the same shall be deemed to constitute a material breach of contract.
B. IncomeAccountability
The Concessionaire shall furnish the Director with a statement certified by the Concessionaire reporting the gross income for the prior month within ten (10) working days after the end of each month. Such statement shall itemize the gross monthly income for the prior month as required in the Concession Requirements for each specific concession.
In addition, the Concessionaire shall furnish any other information or report as requested by the Officer-in-Charge or the Director.
The Director shall be the final judge in determining concession gross income not otherwise covered in the Contract.
The statement and copy shall be sent to the following departments:
Original: With Copy to: Department of Budget and Fiscal Services Department of Enterprise Services CityandCountyofHonolulu CityandCountyofHonolulu Divisionof Treasury– Concessions Concessions 530 South King Street, Room 115 777 Ward Avenue Honolulu,Hawaii96813 Honolulu,Hawaii96814
The Concessionaire must provide a copy of the gross income report to the Department of Enterprise Services to the address noted above.
C. SalesAuditRequirement
The Concessionaire shall furnish a sales audit report prepared by an independent certified public accountant to the Director. The report shall certify the amount of income to the concessionaire as a result of this Contract and shall be due within ninety (90) days of the close of each fiscal year of the
Appendix E: GENERAL TERMS AND CONDITIONS 4 FOR CONCESSION CONTRACTS Concessionaire. The final report shall be due within sixty (60) days at the end of the Contract period.
The sales audit report shall be prepared in conformance with an audit program furnished by the City as a guide to the examining accountant. The sample audit guide is marked as Exhibit B attached hereto and made a part hereof.
The audited sales report shall be sent to the following:
Department of Budget and Fiscal Services Department of Enterprise Services CityandCountyofHonolulu CityandCountyofHonolulu Divisionof Treasury– Concessions Concessions 530 South King Street, Room 115 777 Ward Avenue Honolulu,Hawaii96813 Honolulu,Hawaii96814
9. EMPLOYEES/ HIRED STAFF
The Concessionaire shall maintain an adequate and trained staff of employees or hired staff to provide efficient, prompt and courteous service at all times. The Officer-in-Charge shall be the final authority in determining the number of employees or hired staff needed on duty.
The Concessionaire’s employees and/or hired staff shall be uniformed and wear name tags identifying themselves and the Concessionaire. The final design of the uniform must be provided and approved by the Officer-in-Charge. All employees and hired staff must obtain TB clearances prior to the commencement of employment.
The Concessionaire shall employ only persons of good moral character, neat appearance and polite manners. The City shall have the right to eject from the Premises any employee or hired staff of the Concessionaire whose conduct is improper, inappropriate or offensive. The Concessionaire shall then be responsible to provide an adequate replacement when requested by the City. Failure to furnish a replacement acceptable to the Officer-in-Charge shall be deemed to constitute a material breach of contract and the City shall have the right to terminate the Contract.
The Concessionaire shall have a manager, assistant manager or approved supervisor on duty at all times that the concession is open. The manager shall be properly trained and knowledgeable of all aspects of the operation. The manager shall be identified by a name tag and shall be available to answer questions or complaints about the concession operation.
The Concessionaire employees and hired staff shall be fluent in English and have the ability to communicate effectively with patrons and customers.
Non-employees or non-hired staff are not permitted within the workplace.
The Concessionaire shall be in compliance with all related federal and state labor and employment laws.
Appendix E: GENERAL TERMS AND CONDITIONS 5 FOR CONCESSION CONTRACTS 10. NON-DISCRIMINATION
The Concessionaire shall operate the concession and render the services required without discrimination as to race, sex, sexual orientation, age, religion, color, ancestry, disability, marital status, or arrest and court record.
11. SIGNS AND ADVERTISING
The Concessionaire shall furnish, install and maintain signs listing the prices of the items for sale. All signs shall be approved in writing by the Officer-in-Charge as to size or quantity, appropriateness, design and location before installation of the sign.
No hawking, solicitation or unauthorized advertising shall be made by the Concessionaire or its employees on or outside of the premises or on a public address system.
The Concessionaire shall not engage in or have any form of advertising without prior written approval of the Officer-in-Charge. Signs, flyers or other promotional materials shall not be posted on windows.
12. PUBLIC PAY TELEPHONE AND ATM MACHINES
The City reserves the right to furnish public pay telephones or automated teller machines (ATM) on the Premises in locations to be approved by the Officer-in-Charge. All commissions from the telephones and ATM machines shall belong to the City under its Contract with the specific services.
13. VENDING MACHINES
Written approval must be received from the Officer-in-Charge prior to placing any vending machines. The gross receipts accruing to the Concessionaire from the gross sales of vending machines shall be included as concession gross income.
14. PERFORMANCE BOND
Within ten (10) days of the City’s request or within such further time as the Director may allow, the Concessionaire shall furnish as security for the full and faithful performance of the Contract by the Concessionaire, a bond in an amount equal to two (2) months concession fee. For purposes of computing the amount of the performance bond required, the monthly concession fee shall be based on the minimum monthly concession fee bid amount, excluding any percentage amount of the total gross income.
The bond shall be made for the term of the Contract. It shall be returned to the Concessionaire after the termination of the Contract if the Concessionaire is not in default. The bond, if other than cash, shall have a surety or sureties thereon as prescribed by HRS §102-12. Such surety or sureties shall be subject to the approval of the Director and shall be required to justify as prescribed by HRS §102-12. The bond to be submitted shall be a performance bond.
In the event the Concessionaire elects to furnish cash as security, it shall be understood that no interest shall be paid by the City on any such deposit.
Appendix E: GENERAL TERMS AND CONDITIONS 6 FOR CONCESSION CONTRACTS 15. INSURANCE REQUIREMENTS
The Concessionaire shall at its own expense procure and maintain any and all insurance to cover the Concessionaire’s operations that may be required under any applicable federal, state or local law, statute or ordinance or regulation, including but not limited to applicable workers’ compensation and automobile liability insurance. In addition, the Concessionaire shall carry the insurance listed below from insurance company(ies) authorized to do business in the State of Hawaii and maintain such insurance throughout the term of the Contract.
A. Commercial General Liability Insurance. Commercial General Liability (CGL) insurance with a limit of not less than $1,000,000 each occurrence and $1,000,000 general aggregate, and at least $1,000,000 Products/Completed Operations aggregate, and if sale of alcohol is permitted as a part of the concession agreement, $1,000,000 Liquor Liability. Such insurance shall include Fire Legal Liability coverage with limits of $100,000, to cover City provided equipment and furnishings under this Concession agreement. THIS POLICY SHALL INCLUDE THE CITY AND COUNTY OF HONOLULU AS ADDITIONAL INSURED.
B. Workers’ Compensation and Employer’s Liability Insurance. This policy shall cover against all claims of the Concessionaire’s employees working in any capacity whose duties require their presence on the premises. Workers’ Compensation insurance shall be in accordance with State statutes; Employer’s Liability coverage shall provide limits of no less than $500,000 each accident for bodily injury by accident or $500,000 each employee, $500,000 aggregate, for bodily injury by disease. Such insurance shall include a waiver of subrogation in favor of the City.
C. Property Insurance. The Concessionaire shall procure the necessary property insurance to cover risks of loss or damage to the Concessionaire’s equipment, materials, supplies, furnishings, fixtures and improvements and betterments.
D. Builder’s and Installation Risk. During any period of construction or remodeling or installation, the Concessionaire shall procure or cause to be procured Builder’s Risk or installation insurance covering loss or damage to materials, supplies and equipment to be built, installed or otherwise incorporated into the premises.
E. The City will be included as additional insured under such policy or policies: CITY AND COUNTY OF HONOLULU, 530 S. King Street, Room 115, Honolulu, Hawaii 96813.
F. The insurance required hereinabove shall not be terminated, cancelled or not renewed without thirty (30) days prior written notice to the City, except for non- payment of premium.
G. Within ten (10) days of the City’s request or within such further time as the Director may allow, the Concessionaire shall provide current certificates of insurance upon award and throughout the term of the Contract, demonstrating coverage under the policies set forth above prepared by a duly authorized agent.
Appendix E: GENERAL TERMS AND CONDITIONS 7 FOR CONCESSION CONTRACTS Copies of all current (policies) certificates covering the Concessionaire’s premises must be sent to:
Department of Budget and Fiscal Services Department of Enterprise Services CityandCountyofHonolulu CityandCountyofHonolulu DivisionofPurchasing Concessions 530 South King Street, Room 115 777 Ward Avenue Honolulu,Hawaii96813 Honolulu,Hawaii96814
16. ASSUMPTION OF RISK
The Concessionaire shall assume the risk of any loss or damage to its property left on the Premises. The City and all its officers, agents and employees shall not be held responsible or liable for any loss of, or damage to, the aforesaid property while on the Premises, regardless of how or the manner in which any such loss or damage is sustained.
17. INDEMNIFICATION
The Concessionaire shall conduct its activities so as not to endanger any person lawfully thereon; and shall indemnify, save and hold harmless the City and all its officers, agents and employees from any and all deaths, injuries, losses and damages (including attorney fees and costs) to persons or property, and any and all claims, demands, liabilities therefore occasioned wholly or in part by the acts or omissions of the Concessionaire, its officers, agents, employees, patrons or any persons admitted to the premises of the concession. The Concessionaire shall not be responsible for such portion of damages, if any, proximately caused by the negligence or intentional misconduct of the City. It is expressly acknowledged and agreed that the obligation set forth herein this section is independent of any obligations to procure insurance for the benefit of the City as required in the Contract.
18. ALTERATIONS OR IMPROVEMENTS
The Concessionaire shall not make alterations or repairs to the Premises without prior written approval of the Officer-in-Charge. Any permanent addition or fixture to the buildings or premises shall become the property of the City at no cost to the City. Permanent additions or fixtures shall mean items that are not free standing but are affixed or attached to the building or premises, such as but not limited to shelving and cabinets, range hood (includes motor, fan, duct, and accompanying fire suppression system), ceiling fans, built-in range and built-in refrigerators, tables, chairs and benches which are anchored in place to the ground or floor, plumbing, water heater, grease traps and sinks.
The Concessionaire shall promptly discharge all debts incurred in making any such alteration or repair, and within sixty (60) days after completion, render to the Officer-in- Charge receipted bills for all such debts. In the event mechanic and materialmen liens should attach on the said premises, the Concessionaire shall satisfy such liens within fifteen (15) days from the date of such attachment and shall provide the City with a certified copy of the lien release.
Appendix E: GENERAL TERMS AND CONDITIONS 8 FOR CONCESSION CONTRACTS 19. DAMAGE OR DESTRUCTION TO PREMISES OR VEHICLES
If the Premises or vehicles are damaged or destroyed in whole or in part, by act of God, war, fire, or other catastrophe due to no fault on the part of the Concessionaire and the same cannot be repaired with reasonable diligence within three (3) months after such occurrence, and during said three-month period, if the Concessionaire is unable to continue the operation of this concession, the Concessionaire may thereupon terminate the Contract as of the date of such damage or destruction and pay the concession fee only up to the time of such damage or destruction.
20. EXCUSE OF PERFORMANCE
Performance under the Contract by the Concessionaire will be excused only by reason of the following causes:
A. When such performance is prevented by destruction or damage to the premises or vehicles as specified in Section 19 hereinabove.
B. When such performance is prevented by an act of the public enemies of the State of Hawaii or of the United States of America.
C. When such performance is prevented by any job action conducted by any public employee organization that prevents patrons from utilizing the Concessionaire's services.
21. MODIFICATION OF CONTRACT TERMS
A. Any modification, including any decrease in the concession fee as proposed by the successful bidder in the Bid Proposal, shall not be allowed, except only as provided under HRS §102-10 as follows:
“§102-10 Modification of contract terms. If during the term of the contract (including contracts which have been executed and are presently in force) there has been a reduction of fifteen per cent or more in volume of business of the concessionaire for a period of sixty days or more, computed on the average monthly gross income for the eighteen months prior to the period or as long as the concessionaire has been in the business, whichever period is shorter, and such reduction as determined by the officer letting the contract is caused by construction work conducted during the period of time on, or within or contiguous to, the public property upon which the concession is located by either the state or county governments, or both, the officer, with the approval of the governor in the case of a state officer and the chief executive of the respective county in the case of a county officer, may modify any of the terms of the contract, including the agreed upon rent, for a period which will allow the concessionaire to recoup the amount lost by such reduction; provided that if the contract includes provisions allowing modification for the above contingencies, this section shall not be applicable thereto; provided further that this provision shall not apply to any particular concession if the application thereto may impair any contractual obligations with bondholders of the State or counties or with any other parties.”
Appendix E: GENERAL TERMS AND CONDITIONS 9 FOR CONCESSION CONTRACTS B. The parties may amend the Contract to allow a related use only in accordance with HRS §102-13, and such contract modifications shall be executed in writing by both parties.
22. NO SUBLETTING
The Concessionaire shall not sublet in whole or in part the Premises, hypothecate or mortgage the Contract or any of its rights.
23. NOVATION OR CHANGE OF NAME
A. No assignment of contract. This contract is not transferable, or otherwise assignable, without the written approval of the Director.
B. Recognition of a successor in interest; assignment. When in the best interest of the City, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee shall agree that: the transferee assumes all of the transferor's obligations; the transferor remains liable for all obligations under the Contract but waives all rights under the Contract as against the City; and unless the transferor guarantees performance of the Contract by the transferee, the transferee shall furnish all required bonds.
C. Change of name. In the event a Concessionaire requests a change in the name in which it holds a Contract with the City, the Director shall, upon receipt of a document indicating such change of name (i.e., amendment to the articles of incorporation of the corporation), enter into an agreement with the requesting Concessionaire to effect such a change of name. The agreement changing the name shall specifically indicate that no other terms and conditions of the Contract are thereby changed.
D. Reports. All change of name or novation agreements effected hereunder shall be reported to the Director within thirty (30) days of the date that the agreement becomes effective.
24. DEATH OR DISABILITY OF THE CONCESSIONAIRE
In the event of the death or disability of the Concessionaire during the term of the Contract, the executor or administrator of the estate of the Concessionaire or the Concessionaire acting personally or by guardian, whichever the case may be, shall dispose of the Contract and the concession covered by the Contract within two (2) months after such death or disability, or within such further time as may be allowed by the Director. The Concessionaire may thereupon request an assignment of Contract. Such a request for assignment will be coordinated by the Director and shall not be granted except by written approval of the Director to an assignee with similar or better qualifications than the Concessionaire, including but not limited to financial qualifications and tax clearance.
Appendix E: GENERAL TERMS AND CONDITIONS 10 FOR CONCESSION CONTRACTS 25. DEFAULT, REMEDIES AND TERMINATION
A. Default
(1) Event of Default. The occurrence of any of the following shall constitute an "Event of Default" (also referred to as a "Default"). It is understood and agreed that any “Event of Default” shall constitute a material breach of the agreement unless described as an immaterial breach below.
(2) Default in Rent. An Event of Default shall occur if Concessionaire fails to pay timely any Rent or Additional Rent when due and such failure or violation is not cured within ten (10) days after written notice by the City describing the nature of the breach or Default.
(3) Cross-Default. The occurrence of an uncured breach, violation or default under any other agreement with the City may constitute an Event of Default.
(4) Insurance or Performance Surety. An Event of Default shall occur if insurance or performance surety is canceled without City written consent.
(5) Bankruptcy/Insolvency. The insolvency of concessionaire shall be an Event of Default for which no notice or opportunity to cure need be given. For the purposes of this Agreement, and to the extent permitted by the United States Bankruptcy Code, "Insolvency" shall be deemed to include: if the Concessionaire becomes bankrupt or makes an assignment for the benefit of its creditors, or if the Concessionaire files any debtor proceedings or takes any proceedings of any kind or character whatsoever under any provisions of the Federal Bankruptcy Act seeking any readjustment, arrangement, postponement, composition, or reduction of the Concessionaire's debts, liabilities, or obligations, or if any such proceedings under the Federal Bankruptcy Act should be taken against the Concessionaire and the same shall not be frivolous.
(6) Unapproved Transfers. An Event of Default shall occur if Concessionaire transfers its interest under this Agreement, without the prior written approval of the City, by reason of death, operation of law, assignment, sublease or otherwise, to any other person, entity or corporation.
(7) Failure of Concessionaire’s Obligation to Construct and Use Concession Space. An Event of Default shall occur if Concessionaire fails to timely submit plans and specifications, bonds and other preconstruction submittals, fails to promptly begin or timely complete construction of Improvements, fails to Open for Business to the public when construction is completed, or fails to occupy and use the Concession Space after construction is completed or fails to operate the concession.
(8) Illegal Use. An Event of Default shall occur if Concessionaire uses, or gives its permission to any person to use, for any illegal purpose any portion of the property made available to Concessionaire for its use under this Agreement.
Appendix E: GENERAL TERMS AND CONDITIONS 11 FOR CONCESSION CONTRACTS (9) Abandonment. An Event of Default, for which no notice or opportunity to cure need be given, may be declared, at the City's option, if the City discovers that Concessionaire has abandoned, deserted or vacated the Concession Space.
(10) Liens against City Property. If Concessionaire suffers any lien or attachment adverse to the interest of the City, including but not limited to mechanic’s or materialman’s liens to be filed against the Concession Space, or any lien or attachment to be filed against the City or the City's property because of any act or omission of Concessionaire, an Event of Default shall occur if such lien or attachment is not discharged or contested by Concessionaire in good faith by proper legal proceedings within twenty (20) days after receipt of notice thereof by Concessionaire.
(11) Material Misrepresentation. An Event of Default, for which no notice or opportunity to cure need be given, may be declared, at the City's option, if the City discovers that Concessionaire made a material misrepresentation to the City that induced the City to enter into this Agreement.
(12) License or Franchise Agreement. If, during the Term (or any extended term subsequent revocable permit) of this Agreement, the license or franchise agreement related to the Brand or trade name Concessionaire is authorized to operate at the property, is terminated, expires or is amended so that compliance with the amended provisions will cause Concessionaire to be in breach of its obligations under this Agreement, an Event of Default shall be deemed to have occurred.
(13) Default in Other Covenants. An Event of Default shall occur if Concessionaire fails to keep, perform and observe any other promise or violates any term, covenant or condition of this Agreement, other than the payment of Rent, or Additional Rent, as described above, and such failure or violation is not cured within ten (10) days after written notice by the City describing the nature of the failure or violation. This provision shall be complied with if (i) the violation is of such a nature that it cannot be completely cured within the ten (10) day period, (ii) Concessionaire begins to perform whatever may be required to correct its failure to perform its obligation or to correct the violation within such ten (10) day period and (iii) Concessionaire proceeds in good faith and continues such performance with all due diligence and without interruption, except for causes beyond its control, to effect the cure as soon as practical. Defaults in other covenants constitute immaterial breaches of the agreement. It is understood and agreed that any occurrences of three (3) or more events of default of other covenants shall constitute a material breach of the agreement.
B. REMEDIES
(1) Remedies on Default. Immediately upon the occurrence of an Event of Default, the City may, at its option, immediately exercise any of the following rights and remedies in addition to any other rights and remedies provided elsewhere in this Agreement, or otherwise at law or in equity.
(2) Right to Draw on Performance Surety. In an Event of Default, in the case of failure to pay Rent or Additional Rent or in the case of breach or violation of any other
Appendix E: GENERAL TERMS AND CONDITIONS 12 FOR CONCESSION CONTRACTS provision, including Concessionaire’s obligations and duties of Concessionaire under all general rules and regulations adopted by the City or the Officer in Charge for the management, operation and control of the property, after written notice by the City describing the default, failure, breach or violation and giving Concessionaire an opportunity to cure if provided in this Agreement, the City may immediately, and without further notice to Concessionaire, draw upon the Performance Surety in any amount necessary to satisfy the damages sustained or reasonably expected to be sustained.
(3) Elect to Continue and Enforce Agreement. The City may elect to allow this Agreement to continue in full force and effect without termination and to enforce all of City’s rights and remedies hereunder, including without limitation the right to collect compensation as it becomes due together with Past Due Interest.
(4) Termination of Agreement. Subject to Concessionaire's right to cure, if any, the City may terminate this Agreement and Concessionaire's right to possession immediately upon the occurrence of an Event of Default. Any notice to terminate may be given before or within the applicable cure period and may be included in a notice of failure of compliance. The City may cancel and terminate this Agreement and repossess the Concession Space, with or without process of law, and without liability for so doing, upon giving ten (10) days written notice to Concessionaire of its intention to terminate, at the end of which time all the rights hereunder of the Concessionaire shall terminate, unless the default, which shall have been stated in such notice, is by its nature curable and shall have been cured within such ten (10) days.
(5) Damages upon Termination. If City elects to terminate, Concessionaire shall be liable to City for all amounts owing at the time of termination, including but not limited to compensation due plus interest thereon at the Past Due Interest Rate together with any other amount to fully compensate City for all loss of compensation, damages, and costs, including attorney's fees, caused by Concessionaire's failure to perform its obligations hereunder, or which in the ordinary course would likely result therefrom. Nothing in this Agreement shall be construed to grant a right to Concessionaire to cure a default, which by its nature is not capable of being cured.
(6) Re-Entry. Without accepting surrender and without prejudice to any remedies for damages or breach, the City may elect to reenter and take possession of the Concession Space or any part thereof, by suitable action or proceeding at law, or by force or otherwise, without being liable for indictment, prosecution or damages therefore, and may expel Concessionaire or any person claiming under Concessionaire, and remove all effects as may be necessary, to the end that the City may have, hold and enjoy the Concession Space. Such reentry shall not be construed as termination of this Agreement unless a written notice specifically so states; however, the City reserves the right to terminate the Agreement at any time after reentry. Notwithstanding re-entry by the City, Concessionaire shall continue to be liable for all amounts due as compensation under this Agreement, on the dates specified and in such amounts as would be payable if default had not occurred. Upon expiration of the Term (or any extended term), or any earlier termination of the Agreement by the City, the City, having credited to the account of Concessionaire any amounts recovered through reletting, shall refund, without interest, any amount that exceeds the compensation, damages and costs payable by Concessionaire under this Agreement.
Appendix E: GENERAL TERMS AND CONDITIONS 13 FOR CONCESSION CONTRACTS (7) Reletting. Following re-entry, the City may relet the whole or any part of the Concession Space from time to time, either in the name of the City or otherwise, to such tenants, for such terms ending before, on or after the Expiration Date of this Agreement, at such rentals and upon such conditions (including financial concessions and free rent periods) as the City may determine to be appropriate. The City shall not be liable for refusal to relet the Concession Space, or, in the event of any such reletting, for failure to collect any Rent due upon such reletting; and no such failure shall operate to relieve Concessionaire of any liability under this Agreement or otherwise affect any such liability. The City may make such physical changes to the Concession Space as the City considers advisable or necessary in connection with any such reletting or proposed reletting, without relieving Concessionaire of any liability under this Agreement or otherwise affecting Concessionaire's liability. If the City has other vacant space, the City shall have no obligation to attempt to relet the Concession Space prior to leasing such other vacant space. The City shall not be required to attempt to relet the Concession Space to a potential lessee with whom the City has been negotiating for other space owned by the City or to whom the City has shown other space owned by the City. If the City has relet all or any part of the Concession Space for the period which otherwise would have constituted all, or any part, of the unexpired portion of the Term of this Agreement, the amount of Rent reserved on such reletting shall be deemed, prima facie, to be the fair and reasonable rental value for the part, or the whole, of the Concession Space so relet during the period of the reletting. Acts of maintenance, or preservation, or efforts to relet the Concession Space, or the appointment of a receiver upon initiative of the City to protect the City's interest under this Agreement, shall not constitute a termination of this Agreement or an acceptance of surrender of this Agreement.
(8) Damages upon Re-Entry. Whether or not the City retakes possession or relets the Concession Space, the City shall have the right to recover damages immediately, without waiting until the due date of any future Rent or until the date fixed for expiration of this Agreement, which damages, shall include, but not be limited to the following: ( a) all Rents lost, calculated through the Expiration Date, subject only to any duty to mitigate damages, if any; (b) all legal expenses and other related costs incurred by the City as a result of Concessionaire's Default; (c) all costs incurred by the City in restoring the Concession Space (or other damaged City property where damage was caused by Concessionaire) to good order and condition, or in remodeling, renovating or otherwise preparing the Concession Space for reletting, including, without limitation, removal and disposal of Concessionaire's Improvements or other property; (d) all taxes due or to become due under this Agreement; and, (e) all costs incurred by the City in reletting the Concession Space, including, without limitation, any advertising costs, brokerage commissions and the value of the City's staff time expended as a result of the Default.
(9) Remedies Cumulative and Nonexclusive. Each right and remedy in this Agreement shall be deemed cumulative and will be in addition to every other right or remedy in this Agreement, or existing at law or in equity, including, without limitation, suits for injunctive relief and specific performance. Such rights and remedies shall not be in lieu of or exclusive of each other and shall in no way affect any other remedy available at law or in equity. The exercise or beginning of the exercise, by the City of any such rights or remedies will not preclude the simultaneous or later exercise by
Appendix E: GENERAL TERMS AND CONDITIONS 14 FOR CONCESSION CONTRACTS the City of any other such rights or remedies. All such rights and remedies are nonexclusive. Nothing contained herein shall be construed to require the City to accept delinquent Rent, or delinquent Additional Rent. Acceptance of full or partial payment of delinquent Rent, or delinquent Additional Rent, shall not constitute a waiver of any of the City's other rights and remedies under this Agreement. The City is entitled to damages during the period corresponding to the remainder of the Term (or any extended term) of this Agreement and no action for damages shall bar a later action for damages subsequently accruing.
C. WAIVERS
(1) Non-Waiver of Rights – Default. No waiver of a breach or violation of this Agreement by the City of any of the terms, covenants, and conditions hereof to be performed, kept, and observed by the Concessionaire shall be construed as, or shall operate as, a waiver of any subsequent breach or violation of any of the terms, covenants, or conditions herein contained, to be performed, kept, and observed by the Concessionaire.
(2) Non-Waiver of Rights – Partial Payment. No failure of City to insist upon the strict performance of a term, covenant or agreement contained in this Agreement, no failure by City to exercise any right or remedy under this Agreement, and no acceptance of full or partial payment during the continuance of any breach of this Agreement by Concessionaire shall constitute a waiver of any such term, covenant or agreement or a waiver of any such right or remedy or a waiver of any breach of this Agreement by Concessionaire.
26. DUTIES UPON SURRENDER
A. Standard for Surrender. Upon the expiration or earlier termination of this Agreement or on the date specified in any demand for possession by City after any default by Concessionaire, Concessionaire must have fully performed all of its obligations under this Agreement. Concessionaire covenants and agrees to surrender possession of the Concession Space and all Improvements to City in broom clean condition and good state of repair, ordinary wear and tear excepted. Ordinary wear and tear shall not include deterioration that could have been prevented by proper maintenance practices, or by Concessionaire performing all of Concessionaire's obligations under this Agreement.
B. Performance of All Obligations. By the Expiration Date, or upon the earlier termination of this Agreement or on the date specified in any demand for possession by City after any default by Concessionaire, Concessionaire must have fully performed all of its obligations under this Agreement, including: (a) delivery of all keys to any doors and to any Improvements located on the Concession Space to the City; (b) removal of Concessionaire’s Equipment; (c) surrender of the Concession Space as required; and (d) performance of any other obligations required to be performed pursuant to this Agreement prior to termination under this Agreement.
C. Improvements to be in Good State of Repair. If the Officer in Charge or an authorized representative determines in his judgment upon such expiration or termination, that the Concession Space was not surrendered in accordance with the
Appendix E: GENERAL TERMS AND CONDITIONS 15 FOR CONCESSION CONTRACTS preceding standard, the City may immediately repair, restore, or remove the Improvements or such portion thereof at the Concessionaire’s expense.
D. Restoration at Concessionaire’s Expense. If all or any portion of the Improvements are removed by Concessionaire either at any time during the Term (or any extended term), Concessionaire shall at its expense restore any City property damaged to conditions existing prior to the installation of such Improvements or applicable portions thereof, and upon Concessionaire’s failure to do so the City may cause such removal and restoration to be done at Concessionaire’s expense.
E. Concessionaire to Remove its Equipment. Unless otherwise specified in the agreement, Concessionaire shall retain title to and shall remove, at its sole cost, prior to the expiration or termination of this Agreement, all of Concessionaire's Equipment.
F. Manner of Removing Concessionaire’s Equipment. Concessionaire shall remove Concessionaire’s Equipment in a manner and at times that do not interrupt other business at the City property or operations at the City property. Concessionaire agrees, at its sole cost, at or prior to the expiration or termination of this Agreement, to repair any injury or damage done to the Concession Space, or other City-owned property, resulting from the removal of Concessionaire’s Equipment, in good and workmanlike fashion and to place the Concession Space in the same condition as the Concession Space would have been if such Concessionaire's Equipment had not been installed, ordinary wear and tear excepted.
G. Failure of Concessionaire to Remove its Equipment. If Concessionaire fails to remove any of Concessionaire's Equipment by the expiration or termination of this Agreement, City at its option, may take immediate title to and retain any such Concessionaire's Equipment at no cost to the City. In the alternative, the City may dispose of all or portions of Concessionaire’s Equipment and retain any proceeds therefrom. In addition, if City removes any such Equipment, the Concessionaire agrees to indemnify and hold City harmless from all costs, losses, expenses or damages incurred in relation to the removal of such Equipment, including without limitation all costs of associated remedial actions, fines or penalties, reasonable attorney fees, engineering fees and other professional expert fees and upon demand, Concessionaire agrees to reimburse the City for any expenses or damages incurred. In the event of a dispute as to the affixed or non-affixed nature of any of Concessionaire’s Equipment, the Parties agree that the City's determination shall be final and shall not be subject to mediation or any other form of dispute resolution or litigation.
27. SEXUAL HARASSMENT POLICY
The Concessionaire shall have and enforce a policy prohibiting sexual harassment. The Concessionaire's sexual harassment policy must set forth the same or greater protection than those contained or required by Rev. Ordinance of Honolulu 1990, §1-18.1 et.seq. The ordinance is applicable to the Concessionaire's business and includes the following:
A. Prohibitions against an officer's or employee's sexual harassment of the following:
(1) Another officer or employee of the employer;
Appendix E: GENERAL TERMS AND CONDITIONS 16 FOR CONCESSION CONTRACTS (2) An individual under consideration for employment with the employer; or
(3) An individual doing business with the employer;
B. A provision prohibiting a management or supervisory officer or employee from knowingly permitting a subordinate officer or employee to engage in the sexual harassment prohibited under Paragraph A. above;
C. A prohibition against retaliation towards an officer, employee, or individual who has complained of sexual harassment, conducted an investigation of a complaint, or acted as a witness during an investigation of a complaint;
D. A prohibition against a malicious false complaint of sexual harassment by an officer, employee, or individual;
E. Provisions allowing an officer, employee, or individual to make a sexual harassment complaint to an appropriate management, supervisory, or personnel officer or employee;
F. Procedures for investigating a sexual harassment complaint in an unbiased, fair, and discreet manner with appropriate safeguards to maintain confidentiality and protection from embarrassment;
G. A provision requiring the use of the "reasonable person of the same gender standard," to determine if sexual harassment has occurred. Under the standard, sexual harassment shall be deemed to have occurred if the alleged offender's conduct would be considered sexual harassment from the perspective of a reasonable person of the same gender as the alleged victim. If the alleged victim is a woman, the "reasonable person of the same gender standard" shall be equivalent to and may be called the "reasonable woman standard";
H. Disciplinary actions which may be imposed on an officer or employee who committed a prohibited act; and
I. For a Concessionaire with at least five (5) employees, a provision requiring the annual viewing of a video on the sexual harassment policy by each management or supervisory officer or employee.
The policy required under this section shall be in effect for at least the duration of the Concessionaire's Contract with the City.
The action of the bidder in submitting its bid proposal or signing of the concession contract shall constitute its pledge and acceptance of the provisions for the sexual harassment policy as required by Rev. Ordinance of Honolulu 1990, §1-18.1 et. seq.
Rev. Ordinance of Honolulu 1990, §1-18.1 et. seq. is on file and available for viewing in the Division of Purchasing. A bidder or Concessionaire needing a copy may pick up the ordinance from the Office of the City Clerk, City Hall, 530 South King Street, Room 203, Honolulu, Hawaii.
Appendix E: GENERAL TERMS AND CONDITIONS 17 FOR CONCESSION CONTRACTS 28. ACCEPTANCE OF CONCESSION FEE
The acceptance of the concession fee, percentage fee, or any sum reserved in the Contract by the City shall not be deemed to be a waiver by the City of any breach by the Concessionaire of any term, covenant or condition contained in the Contract.
29. INDEPENDENT CONTRACTOR
The Concessionaire shall be deemed to be an independent contractor and not the agent, employee, partner, or joint venturer of the City.
30. LAWSTOBEOBSERVED
The Concessionaire shall observe, perform and comply or require compliance with all governmental laws, ordinances, rules and regulations of the United States, State of Hawaii, City and County of Honolulu, or any department or agency thereof, which in any manner affect the construction and installation of the concession facilities, and in the operation and maintenance of the concession and vehicle. Any reference to such laws, ordinances, rules and regulations shall include any amendments thereto.
31. PERMITS AND LICENSES
The Concessionaire shall procure and keep current all permits and licenses, pay promptly all charges and fees, and give all notices necessary and incidental to the due and lawful operation of the concession.
32. COSTS OF ENFORCEMENT AND LITIGATION
In the event the City is made a party to any litigation other than condemnation or like proceedings, commenced by or against the Concessionaire arising out of its use or occupancy of the premises or attributable to any structure or objects placed thereupon or therein by the Concessionaire or operation of any vehicle by Concessionaire, the Concessionaire shall then be responsible to pay all costs and reasonable attorney fees incurred by or imposed upon the City in connection with such litigation.
33. NOTICE
All notices, submissions or requests between the parties to this Contract shall be in writing and shall be deemed to have been duly given or made when mailed, first-class postage. Notices, submissions or requests shall be forwarded to:
Department of Budget and Fiscal Services Division of Purchasing City and County of Honolulu 530 South King Street, Room 115 Honolulu, Hawaii 96813
The City shall not be responsible for the Concessionaire’s failure to receive notices or correspondence issued by the City, in particular if the Concessionaire fails to check or receive its mail. The date on which the notice or correspondence was mailed shall be
Appendix E: GENERAL TERMS AND CONDITIONS 18 FOR CONCESSION CONTRACTS the official date on which the notice or correspondence shall be deemed to have been duly given.
34. INCORPORATION BY REFERENCE OR ATTACHMENTS; PRECEDENCE
Whenever separate bid proposal, special provisions, requirements, specifications, exhibits or plans are referenced or attached hereto, they shall be considered a part of the Contract as if contained herein. Should any of the bid proposal, special provisions, requirements, specifications, exhibits or plans conflict with these General Terms and Conditions, said bid proposal, special provisions, requirements, specifications, exhibits or plans shall govern.
35. TERMINATION FOR CONVENIENCE BY THE CITY
A. Termination for convenience. The City may terminate this Agreement, in whole or in part without cause and at the convenience of the City. The Director will provide a thirty (30) day written notice of the termination to the Concessionaire specifying when termination becomes effective.
B. Concessionaire’s obligations. The Concessionaire shall incur no further obligations in connection with the terminated concession operation to the extent specified. The Concessionaire shall also terminate outstanding material, supply, or equipment orders and service contracts as they relate to the terminated concession operation. The Concessionaire shall settle the liabilities and claims arising out of the termination of service contracts and orders connected with the terminated concession operation subject to the City’s approval. The Director may direct the Concessionaire to assign the Concessionaire’s right, title, and interest under terminated orders or contracts to the City. The Concessionaire must still operate any part of the concession not terminated by the notice of termination and may incur obligations as are necessary to do so. The Concessionaire shall protect and preserve all property in the possession of the Concessionaire in which the City has an interest until released by the City. The Concessionaire may also be required to comply with the Duties Upon Surrender provisions of this agreement as directed by the Director.
C. Right to goods. The Director may require the Concessionaire to transfer title and deliver to the City in the manner and to the extent directed by the Director any site improvements at the concession area and any goods, such as but not limited to, equipment, fixtures and furnishings that the Concessionaire has specifically produced or specially acquired for the operation of the terminated concession operation.
D. Compensation. The Concessionaire shall pay to the City all concession fees due for concession operations to the date of termination. Compensation for any goods acquired by the City from the Contractor shall be at fair market value as determined by the Director. Compensation for any expenses by the Concessionaire to settle any liabilities and claims attributable to the termination of service contracts and orders shall not exceed documented direct costs paid by the Concessionaire to the service contract and order holders. Compensation for site improvements shall not exceed the Concessionaire’s documented direct costs of construction less amortization based on the initial term of the agreement, excluding any extensions, or the fair market value of the site improvements as determined by the Director. Any
Appendix E: GENERAL TERMS AND CONDITIONS 19 FOR CONCESSION CONTRACTS compensation made by the City to the Concessionaire related to termination for convenience shall be made solely based on the opinion and the discretion of the Director.
Appendix E: GENERAL TERMS AND CONDITIONS 20 FOR CONCESSION CONTRACTS