Skating Rink Concession - DCR Operated Rinks 2015 MULTIPLE LOCATIONS.docx

COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF CONSERVATION AND RECREATION

REQUEST FOR PROPOSALS FOR

FOOD AND SKATE SHOP CONCESSIONS

MULTIPLE LOCATIONS

RFP # DCR 2015 900 (Steriti; Kelly Rinks) Table of Contents

Introduction The Massachusetts Department of Conservation and Recreation (hereinafter “DCR”), in accordance with Mass. Gen. Laws c. 132A, §§ 2B and 2D, c. 7 and c. 92 §33; rules and regulations promulgated thereunder, including 302 Code Mass. Regs. §12.00 and 350 Code Mass. Regs. §2.04; and all other enabling powers, is offering the opportunity to qualified individuals, corporations or business entities, whether for-profit or non-profit (hereinafter “Proposer,” or “Permittee”) to operate, manage and maintain a limited food and/or ice skate shop related concession at one or more of the indicated DCR Operated Rink locations, under a license as set forth below. Proposals may be submitted for the operation of one or multiple locations and any combination of food, ice skating related equipment, clothing, and skate shop (rental, skate sharpening, sales) operations.

The minimum proposal required for this opportunity is One Thousand ($1,000.00) Dollars per year. This minimum amount is due to DCR and is exclusive of all costs of operation, cleaning, preparation of the space, obtaining equipment, staff, foodstuffs, which are the responsibility of the proposer. Upon notice to the apparent winning proposer, the proposer shall remit a deposit of fifty (50%) percent of the proposed amount to be credited to the first year of operation.

Pursuant to Chapter 733 of the Acts of 1985 (January 3, 1986), any nonprofit youth hockey group or organization which submits a bid equal to or higher than the minimum fee shall be awarded the contract for the operation of that concession; provided however that if more than one such group or organization submits a bid equal to or higher than said minimum fee the contract for the operations of the concession shall be awarded to the group or organization submitting the highest bid; and provided, further , that the Massachusetts Commission for the Blind does not intend to establish a vending facility at the site.

The successful proposer would receive a license in the form of a permit to operate an organized, accountable, efficient, safe, clean, staffed and maintained concession operation available to the general public for a period from one (1) up to five (5) consecutive operating seasons subject to the terms and conditions herein and in any final Permit Agreement and commencing in October 2015, and expiring at the conclusion of the agreed upon term. A permit is a revocable license; it is not a lease or commercial rental agreement.

DCR is committed to the offering of healthy food and drink options by its permitted concessions, to enhance the experience of park visitors and to promote healthy lifestyles. See Section III C below. DCR will evaluate the number, percentage, and variety of healthy food and drink options in each proposal, and will consider a greater amount as advantageous to the proposer. This RFP also reflects DCR’s obligation to visitors and to the Commonwealth that products sold under the awarded permits will provide good value and high quality at all times.

DCR is soliciting competitive proposals pursuant to a determination that such a process best serves the interests of the Commonwealth, DCR and the general public. DCR has the right to accept or to reject any and all proposals, to withdraw or amend this RFP at any time, to initiate negotiations with one or more Proposers, to modify or amend with the consent of the Proposer any proposal prior to acceptance, and to waive any formality, all as the DCR in its sole judgment may deem to be in its and the public best interest. The decision of the evaluation panel and the Commissioner of DCR is final.

Proposal Process and Schedule Overview A Site Visit prior to submission of a proposal is recommended. Proposers’ questions must be submitted in writing. Answers to the questions will be posted on COMMBUY. Interviews of proposers may be held by DCR staff. Proposals received will be evaluated by a panel of DCR staff. The panel will recommend acceptance of a proposal by the Commissioner based upon the results of its evaluation of competitive and qualifying proposals. When the successful proposer has been chosen, a recommendation to the Commissioner of DCR will be made. Deposits, certificates of insurance and a signed permit will be due within ten (10) business days after the Recommendation of the Commissioner is accepted. Upon receipt of all required items a Notice of Award will be issued. Should the winning proposer fail to meet the requirements of the RFP or any other related DCR requirements, DCR may make an award to the next available proposer or withdraw the opportunity altogether.

Site Visit A Site Visit prior to proposal submission is mandatory. A scheduled site visit will be held at each location on the following schedule:

Steriti Memorial Rink, 561 Commercial St. North End (Boston), MA 02109 September 14, 2015 9:00 a.m.

Nicholas Panarelli Tel: 617-333-7405 Cel:617-447-1882 E-Mail: Nicholas.panarelli@state.ma.us

Joseph Skoczylas Tel: 617-626-1308 Cell: 617-874-7518 E-Mail: Joseph.skoczylas@state.ma.us

Kelly Outdoor Rink, 1 Marbury Terrace, Jamaica Plain, MA 02130 September 14, 2015 11:00a.m.

If Proposers cannot attend on this date, they must arrange an alternate date and time with local DCR field operations staff listed above. Site visits should be completed by September 18, 2015.

All proposers must obtain a DCR staff signature showing that they have visited this location and provide such proof with their proposal on the Proposal Submission Form. All proposals shall be deemed to have been made with full knowledge and understanding of the existing Premises conditions.

Questions During the Proposal Period All Proposer questions must be submitted in writing. Written questions must be received by the date in the schedule below and directed to the:

Department of Conservation and Recreation ATTN: Office of Long Term Leases and Permits 251 Causeway Street, Suite 600, Boston, MA 02114 By E-mail: dcr.permits@state.ma.us; or Fax No.: 617-626-1351 or -1301;

Inquiries not received by said deadline will not be answered. Proposers should not contact individual DCR staff directly. To ensure fair public notice to all prospective Proposers, DCR staff will reply to all inquiries in writing on the COMMBUYS site (http://www.commbuys.com/) by the date posted in the schedule below. No answers to substantive questions will be provided in person or by telephone.

Presentations and Interviews Following a review of the submitted mandated items and proposals that are timely and otherwise properly submitted, the DCR may conduct interviews with the top scoring proposers. Interviews may be held by teleconference (via phone and/or internet) but in person is preferred. The purpose of any interview will be to clarify proposals and evaluate the qualities, expertise and operational concepts of the Proposer’s proposal. No additional proposal material will be accepted at interviews.

Correcting, Modifying or Withdrawing Proposals Proposal documents may be corrected, modified or withdrawn at any time prior to the proposal due date when the proposal packages will be opened. Modifications should be submitted in writing, sealed and marked in the same manner as the original proposal package.

Mandatory Terms and Conditions; Permit Issuance To commence operations, the Permittee must receive and sign a duly issued Award Notice. Thereafter, the DCR will draft and the parties will execute a permit agreement or if a lease is chosen the process of appraisal will begin pursuant to the legislation. All provisions, conditions and terms in this RFP, any Award Notice, and Permit are obligatory and enforceable during the permit or lease drafting process.

Permit Compliance and Performance The DCR will periodically review the performance of the Permittee to ensure permit compliance. If the Permittee is found to be noncompliant with any term or condition, the DCR may suspend operations and/or terminate the agreement.

RFP Proposal Schedule

Proposers are encouraged to FREQUENTLY CHECK THE COMMBUYS site for this RFP to be apprised of amendments and any changes to the proposal documents or this schedule.

THIS SCHEDULE IS SUBJECT TO CHANGE.

Proposal Documents - Confidentiality/Public Records Any information provided to the DCR in any proposal or other written or oral communication between the Proposer and the DCR will not be, or deemed to have been, proprietary or confidential, although the DCR will use reasonable efforts not to disclose such information to persons who are not employees of, or consultants retained by, the Commonwealth or DCR, except as may be required by M.G.L. c. 66. Any items that Proposers consider proprietary, personal, or confidential should be clearly marked as such within the proposal.

Conflict of Interest Any Proposer that is currently providing goods or services to the DCR as a vendor, consultant, contractor or subcontractor, or in any other capacity, should disclose all projects or contracts that the Proposer is performing for or entered into with the DCR, and the Proposer’s plan to address and resolve such conflicts of interest, if any. The DCR reserves the right, in its sole discretion, to request additional information from a Proposer on potential conflicts of interest and to limit or prohibit the participation of any Proposer due to any conflict of interest. To the extent that M.G.L. c. 268A may be applicable, the Proposers and their officers, agents and employees shall be fully responsible for ensuring their compliance with the requirements of said chapter 268A.

No Personal Liability No staff or employee of the Commonwealth or DCR shall be charged personally by the Proposer with any liability under any term or provision of the RFP.

Description of the Premises & Applicable Information Each Rink has variously sized concession areas but all include basic components and utilities such as a sink, counters, and electrical outlets. Each concession has electric and water access. There are no grease traps or smoke exhaust units. DCR will not provide any machines for food preparation, refrigerators, beverage machines, skate sharpening, or skates.

The concession area is usually located inside each arena in the lobby-area on a concrete floor. Separate locking door(s) and/or “roll-up” or sliding window(s) are available at most locations.

The prospective bidder should be aware of the type of equipment necessary for a clean and well stocked concession area providing packaged snacks, minimally cooked food, a range of ice skates for public skating, and other ice skating related equipment or merchandise. Delivery and security for food and equipment in the concession are (including any camera’s etc.) shall be the responsibility of the permittee. Any new installations of shelves, counters, etc., shall be laid out in any proposal and will be ultimately approved by DCR Rink Operations and DCR Engineering.

Permittee shall operate during the full season as shown below for the minimal hours the rink is open to the public. Permittee may obtain special event permits from DCR for any parties or special events held at the rink, provided such events are not in conflict with other users of the rink. A request for special events shall be submitted to DCR Rink Operations and Special Event Permit staff.

The operating season for the DCR rinks is as follows:

Holiday Schedules

Christmas Eve: public skating at all rinks 12pm-3pm. All rinks close at 3pm. All rinks are closed on Christmas Day.

New Years Eve: public skating at all rinks 12pm-3pm. All rinks close at 3pm except Steriti which will be open for public skating from noon to 10pm.

New Years Day: all rinks are closed except Kelly and Steriti. Regular hours at Kelly. Steriti will be open for public skating 11am-4pm.

Martin Luther King Day: early public skating offered at all rinks 10am-2:30pm.

December and February Public School Vacation Weeks, Dec. and Feb. 10am-3pm

Rental Opportunity/Rates: Connell, Devine, Reilly: $5; EHO, Steriti: $3.50; Kelly: $2

ALL PROPOSERS ARE HEREBY NOTIFIED THAT WEATHER MAY ADVERSELY AFFECT THE NUMBER OF VISITORS TO THE PREMISES. CONSEQUENTLY, THE DCR WILL NOT ISSUE ABATEMENTS OF AGREED UPON FEES TO DCR FOR DIMINUTIONS IN BUSINESS INCOME BECAUSE OF WEATHER, SECURITY REQUIREMENTS, COMPETITION, OR ANY EVENT OR CIRCUMSTANCE NOT IN THE CONTROL OF DCR.

Submission Requirements for Proposal All proposals must be submitted in writing, in a legible format, and including clear and sufficient detail to meet the requirements of the following four sections:

Mandates Failure to submit the following items below will result in automatic rejection of a submitted proposal by DCR:

1. Completed and signed Certificate of Compliance with State Tax Laws and with Unemployment Compensation Contribution Requirements (See Attachment A at the end of this document);

2. Evidence of the payment of state meals taxes for the last two years, if applicable to the proposing entity; and

3. Completed and signed Version 2009 Commonwealth W-9 Form (See Attachment B at the end of this document); and

4. Documentation from an insurance company or properly licensed broker, authorized to conduct business within the Commonwealth, specifying that the Proposer is qualified to meet and obtain the insurance requirements specified herein; and

5. Site Visit Certification signed by DCR staff, confirming that Proposer visited the mobile concession location during the RFP period (See Site Visit form below).

6. A detailed list of any current or past contracts or licenses similar to that offered in this RFP with any private, municipal or state entity within the last five (5) years. Please include years, basic contact information, and estimated contract value.

7. A written description of the services to be offered, including menus, photos, and price lists that reflect a substantial selection of healthy food and beverage choices.

8. A description of any other services and items offered (i.e. price lists for skate rentals, skate sharpening, and any related clothing or equipment).

9. A tax good standing certificate from the Mass. Department of Revenue.

10. Proof of serve safe, allergen and other food related permits, approvals, certificates, and training.

11. Proposers must list any lawsuits, administrative hearings, or other legal proceedings related to the service of food or concession business, in which proposer has been either a party or participant within the last five (5) years.

12. If the Proposer is a corporation or LLC, a certificate of good standing is required. If the proposer has tax exempt status, a copy of its certificates from the U.S. Internal Revenue Service, the Massachusetts Attorney General’s Office, and the Massachusetts Secretary of State. If the Proposer is doing business under a different name, a business certificate for the town or city in which it will operate is required.

Proposers should include all of the following sections to maximize the total number of points received.

Description of Entity and Related Experience

1. Principal/Board Information:

a. For a private, commercial entity: A list of the names and addresses of all principals who have more than a one percent (1%) financial interest in the business entity.

b. For a youth hockey organization, a list of names and addresses of board members, including contact information for treasurer and snack concession lead.

2. History and Experience of Entity:

a. For a private, commercial entity: A description and history of the related experience of the entity and of the principal parties including: Resumes of the principals and two (2) written business references from past clients or entities for which similar services have been provided (contact names, addresses and phone numbers). Said references must be qualified and competent as well as responsible and responsive.

b. For a youth hockey organization: a description, history and experience of the organization, any relevant resumes (of snack lead staff, treasurer); and two (2) written business references from creditors or suppliers (contact names, addresses and phone numbers). Said references must be qualified and competent as well as responsible and responsive.

3. Staffing/Organization:

a. For a private commercial entity: An “organizational chart” or other detailed listing of Proposer’s “chain of command,” and a list of the operating personnel and staff members. A list and comprehensive explanation of all job descriptions for all anticipated operating personnel and staff members.

b. For youth hockey organizations: A list of lead staff and how volunteers are organized, supervised.

Description of Services to be Provided

1. Any additional descriptions of the services to be offered and how the concession area will be laid out. A written description of the overall vision of the concession and how it will enhance the visitors’ experience. Include any brochures, photographs, drawings or renderings showing the interior and exterior of the concession area.

2. The Concessionaire shall be responsible for the design, purchase, and installation of any necessary equipment for the concession. The Concessionaire shall include a complete schematic plan with its proposal for the interior and exterior, if applicable, of the concession. Said plans will be subject to DCR approval

3. An operating schedule, including the hours, days, weeks and months of operation, satisfying at least the minimum Operating Season and schedule as described herein.

4. A detailed, comprehensive and auditable cash management plan. Such a plan should lay out how theft, fraud and abuse is to be prevented.

5. Proposers plans for marketing, signage, coupons, discounts, if any.

Financial and Budget Information

1. Budget, Financial Status

a. For a commercial entity:

i. Proposed budget, including operating costs (including, but not limited to, itemization of costs for expenses, labor and materials).

ii. Financial statements for the prior two (2) years, including profit and loss statements, balance sheets and cash flows, signed.

iii. If available a Dun and Bradstreet report.

b. For an individual operating a commercial entity: either financial statements for the prior two (2) years, including profit and loss statements, balance sheets and cash flows signed; or copies of signed and filed federal and state tax returns for the prior two (2) years.

c. For a youth hockey organization:

i. A proposed budget including all concession expenses (equipment, supplies) and expected mark up, and profit.

2. For all entities: Written documentation evidencing positive and timely payment history from contractual relationships for the previous five (5) calendar years. Said written evidence must be from a qualified and competent payee as well as a responsible and responsive payee.

Compensation to the Commonwealth

1. The minimum proposal required for this opportunity is [One Thousand ($1,000.00)] Dollars per year paid in either

a. a lump sum in full at either the beginning or end of the season; or

b. monthly during the operating season with full payment recorded by the end of the season (March).

c. Upon notice to the apparent winning proposer, the proposer shall remit a deposit of fifty (50%) percent of the proposed amount to be credited to the first year of operation.

PAYMENTS AS OFFERED BY PROPOSERS SHALL BE DUE WITH OR WITHOUT AN INVOICE FROM DCR.

2. Payments may be made by:

a. Using a money order, cashier’s check, or certified bank check and shall be made payable exclusively to the “Commonwealth of Massachusetts.” Payments shall include a notation specifying:

Awarded Location (Town and Rink) Ice Rink Food and/or Skate Shop Concession - [Permittee’s name and contact information]; or

b. If the Permittee desires to make its remaining payment by electronic fund transfers (EFTs). EFT Sign up forms can be obtained at this link: https://massfinance.state.ma.us/VendorWeb/EFT_FORM.pdr. Fill out the form and send it along with a W-9 Form to the DR Finance Office. EFT Payments must include the Permittee’s Vendor Code Number and Permittee should send an email or fax confirmation to the DCR Finance Office.

c. Unless otherwise directed by DCR Finance and DCR Long Term Leases and Permits, all payments and finance forms shall be sent directly to:

DEPARTMENT OF CONSERVATION AND RECREATION,

ATTN: FINANCE OFFICE/Accounts Receivable 251 Causeway Street, Suite 600, Boston, MA 02114

3. Non-payment is a material breach and may be grounds for immediate suspension and/or termination at any time. Late payments may be subject to a late charge. Abatement requests shall be submitted in writing with supporting evidence for acceptance by DCR.

4. Upon such termination Permittee’s moveable equipment must be removed without damage to the Premises by Permittee. Should permittee not remove its detachable equipment, the Commonwealth may do so at Permittee’s expense.

Evaluation Criteria DCR’s Evaluation Committee will select the proposal that is most responsive and advantageous to the commonwealth. The minimum number of points which are acceptable out of the possible 100 points is 50 points. The DCR may consider higher monetary compensation or other factors more advantageous than other factors.

Submission Information Proposals must be delivered to the following EXACT Mailing Address:

Department of Conservation and Recreation ATTN: Office of Long Term Leases and Permits – RFP # DCR 2015 900 251 Causeway Street, Suite 600, Boston, Massachusetts 02114

PROPOSALS MUST BE RECEIVED AT THE ABOVE ADDRESS NO LATER THAN 4:00 P.M. on SEPTEMBER 25, 2015 Tips and Reminders:

· Proposers must submit one signed original paper copy (no spiral bindings or plastic covers please) and digital copy on a disc (thumb drives are not acceptable). All envelopes shall be clearly labeled on the outside with proposers name, address, telephone number and/or e-mail address and “RFP RESPONSE # DCR 2015 900.” Please include a signed cover letter inside detailing: contact name, organization mailing address, telephone number, cellular telephone contact number, and e-mail address.

· The minimum proposal required for this opportunity is One Thousand ($1,000.00) Dollars per year. Proposals lower than minimum amount will automatically be disqualified and rejected Upon notice to the apparent winning proposer, the proposer shall remit a deposit of fifty (50%) percent of the proposed amount to be credited to the first year of operation

· No special preference will be given to proposals received early. No late entries will be considered. Proposers should review COMMBUYS website and their e-mails frequently for updates, amendments and answers to questions.

· No special preference will be given to bids received early. No late entries will be considered.

SITE VISIT SIGN OFF

A site visit to the Premises prior to proposal submission is mandatory for each Proposer during the proposal period. A site visit to the Premises should be arranged with by the DCR Park Supervisor or District Manager. If Proposers cannot attend on any specified date, they must arrange an alternate date and time with DCR Staff. All Proposers must prove and certify that they have visited the site by obtaining and submitting with their proposal a signature below:

SITE INSPECTION VERIFICATION

I ______________________________________ visited the Premises site this _____day of __________________ 201 DCR Staff:

Name Signature Title: _________________________ Date/Time: ___________________ prove and certify that they have visited the site by obtaining a signature below:

ATTACHMENTS

CERTIFICATE OF TAX COMPLIANCE

CERTIFICATE OF COMPLIANCE WITH STATE TAX LAWS AND WITH UNEMPLOYMENT COMPENSATION CONTRIBUTION REQUIREMENTS

Pursuant to Mass. Gen. Laws c. 62C, §49A and c. 151A §19A, I, _______________________ _____________________________________________________, authorized signatory for ___________________________________________ whose principal place of business is at ______________________________________________________________________________ do hereby certify, under penalties of perjury, that ______________________________________ has, for the last seven (7) years filed all state tax returns and paid all taxes as required by law and has complied with all state laws pertaining to contributions to the unemployment compensation fund and to payments in lieu of contributions.

The Business Organization Social Security Number or Federal Identification Number is

Signed under the penalties of perjury this ________ day of ________________________ 20_______.

Signature: _________________________________________________

Name and Title: ________________________________________________________________

2009 Mass Substitute W-9 (use only this form)

EFT SIGN UP FORM

PROPOSAL SUBMISSION FORM

Commonwealth of Massachusetts Department of Conservation and Recreation Request for Proposals for Food Service and Skate Shop Concessions

RFP # DCR 2015 900

I, ______________________________ (Proposer) acknowledge receipt of the DCR’s Request for Proposals for Request for Proposals for Skating Rink Concessions and submit the following proposal in response thereto:

A. Proposal Format

Permit

2015 - 2016

2016 - 2017

2017 - 2018

2018 - 2019

2019 - 2020

Totals

Any additional consideration, requirements, proposed improvements during permitted term to be considered?

B. Business References Along with any actual reference letters, please fill out the chart below, or attach a separate sheet.

C. Acknowledgements and Conditions (SIGNATURE REQUIRED BELOW)

a. The Proposer acknowledges that it has received and read the RFP and other attachments to the RFP, and the terms thereof are incorporated by reference in its Proposal. The Proposer agrees that if its Proposal is accepted, the Proposer will enter into a Permit Agreement with DCR.

b. By submission of its response to this RFP, the Proposer authorizes DCR to contact any and all parties having knowledge of the Proposer’s operations and financial history, and hereby authorizes all parties to communicate such knowledge or information to DCR.

c. This Proposal constitutes a firm offer. A certified copy of the Proposer’s corporate resolution or other proof of authority to make this Proposal as a firm offer must be attached. This offer shall be held firm and open for a period of one (1) year, effective beginning the date proposals are opened.

d. Proposers are advised to base their proposal only upon the matters contained in this RFP and in any written clarifications (via addenda or answers to proposers’ questions) issued by DCR and disseminated to all Proposers on COMMBUYS. Any questions about the proposal must be submitted in writing prior to the scheduled deadline in the RFP as amended in any notice or on the COMMBUYS website for this RFP. Only questions, which in DCR’s sole judgment materially affect the RFP, will be clarified in writing by DCR and posted to COMMBUYS and/or with copies sent to all Proposers. Only such written clarifications to the RFP or the RFP document itself can be relied upon in the preparation and submittal of proposals.

e. Any costs or expenses incurred in the development of a proposal in response to this RFP will be borne entirely by the Proposer.

f. The information provided in this RFP and any subsequent addenda or related documents is provided as general information only. DCR makes no representations or warranties that the information contained herein is accurate, complete or timely. The furnishing of such information by DCR shall not create any obligation or liability whatsoever, and each Proposer expressly agrees that it has not relied upon the foregoing information and that it shall not hold DCR Liable.

g. By submission of its proposal, the Proposer acknowledges that from and after the Permit Agreement commencement date, the sole basis for the right to operate the Premises as specified in this RFP is by award of the Permit Agreement.

h. DCR is soliciting competitive proposals pursuant to a determination that such a process best serves the interests of DCR and the general public, and not because of any legal requirement to do so. The Proposer acknowledges DCR’s right to accept or to reject any or all proposals, to withdraw or amend this RFP at any time, to initiate negotiations with one or more Proposers, to modify or amend with the consent of the Proposer any proposal prior to acceptance, to waive any informality to effect any agreement otherwise, all as DCR in its sole judgment may deem to be in its best interest.

i. Non-Collusion Provision. The undersigned certifies under penalties of perjury that this proposal has been made and submitted in good faith and without collusion or fraud with any undisclosed other person or entity. As used in this certification, the word “person” shall mean any natural person, business, partnership, corporation, union, committee, club, or other organization, entity, or group of individuals.

j. The Proposer acknowledges that it has read, understood, and agrees to be bound by, all of the foregoing terms and conditions set forth in this RFP and any amendments, in its entirety.

Name of Operating Entity __________________________________________________ Date _________________ Signature of individual submitting proposal – duly authorized Printed Name and Title

Contact information: ______________________________________________________

DRAFT PERMIT AND MANDATORY REQUIREMENTS

(READ CAREFULLY; DCR RULES AND REGULATIONS AVAILABLE ONLINE

SEE: http://www.mass.gov/eea/agencies/dcr/inside-our-agency/agency-regulations/)

Z:\Operations\Special Services and Events\Permits\RFRs and Reverse RFRs\2015\418 -- Youth Hockey Orgs - food and skate concessions - multiple locations\Skating Rink Concession - DCR Operated Rinks 2015 kelly and steriti 9 8 15.docx 9/8/2015 12:17 PM

SPECIAL USE PERMIT AGREEMENT

ISSUED BY

THE COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF CONSERVATION AND RECREATION

TO

This Permit Agreement is hereby issued by the Commonwealth of Massachusetts, acting by and through its Department of Conservation and Recreation (hereinafter the DCR), having a principal place of business at 251 Causeway Street, Suite 600, Boston, Massachusetts, 02114, and ___________ (hereinafter the Permittee), a (individual or company) having a principal place of business located at __________. The DCR and the Permittee are each referred to as a Party to this Permit Agreement and are collectively referred to as the Parties to this Permit Agreement.

WHEREAS, [location], is in the care custody and control of DCR; and WHEREAS, the DCR publicly advertised a Request for Proposals (hereinafter “RFP”) to operate, manage and maintain a [ ] at [ ] for a term of [ years/months], from [ ] to [ ]; and WHEREAS, the Permittee voluntarily responded to the RFP with a proposal (hereinafter Permittee’s Proposal) and seeking this business relationship; and WHEREAS the Permittee’s response, after careful consideration, was determined to be the best value to the Commonwealth and DCR; and WHEREAS, the DCR has the authority pursuant to Massachusetts General Laws Chapter 7, and Chapter 132A, §§ 2B and 2D, and the rules and regulations promulgated thereunder, (including Titles 302, 304 and 350 of the Code of Massachusetts Regulations, including but not limited to 304 CMR 12.00), and all other powers enabling; and NOW, THEREFORE, the DCR hereby grants to the Permittee the right to operate, manage and maintain a seasonal fixed food concession in an area as defined and designated by the DCR Park Supervisor or designated DCR managerial staff member, located at [location], MA, (“hereinafter “Premises”), subject to the following terms and conditions:

1. PERMIT AGREEMENT TERM

a. The Term for the use authorized herein shall be for a period of [___] consecutive [years], commencing on [ ] and terminating on [ ] subject to review of the Permittee’s performance and compliance with all terms and conditions of this Permit Agreement.

b. If the Permittee is found to be noncompliant with any term of this Permit Agreement, and does not remedy the matter promptly, the DCR may immediately revoke the license and terminate this Permit Agreement. See Section 24 below for termination provisions.

c. Permittee's use of the site is not exclusive unless otherwise specifically provided for herein. Members of the general public may use the site subject to the rules and regulations of DCR.

2. CONSIDERATION

a. In exchange for use of the Premises for its business, the Permittee has bid and shall be required to pay to DCR the total consideration of [spell out total amount in words for total term ($__.00) Dollars], as set forth in the Permittee’s Proposal.

b. Payment for the first year’s Term, in the amount of [spell out amount ($_,0.00) Dollars], is due in full upon issuance of an Award Notice or the start of operations whichever occurs first.

c. Payment of the remainder of the total compensation bid by the permittee shall be paid to the Commonwealth via DCR, for each subsequent season of the Term. Compensation for each subsequent season of the Term shall be paid in quarterly/semi-annual, or annual installments over the course of each season as follows:

Monthly/ by June 30/ by Sept 30 each year

$ remainder paid by 10/31

Year 2 – if offered

Year 3

Year 4

Year 5

d. DCR shall endeavor to bill Permittee by invoice for each payment as detailed above. Each invoice shall be paid within thirty (30) days of the invoice date. However, whether or not an invoice is issued, permittee is liable for the payments as bid in their proposal and accepted by DCR. Any nonpayment shall be a material breach and cause for termination of this Permit Agreement, pursuit of remedies by the Commonwealth and DCR consistent with the Termination provisions herein.

e. Any request to reduce the amount bid is considered an abatement request. All abatement requests must be presented in writing with sufficient information and background for approval by the Commissioner of DCR and the Office of the State Comptroller. Abatements will not be granted for weather, competition, or other circumstances beyond the control of DCR staff. Permittees should consider the option of withdrawing from the Permit with notice to avoid the necessity of abatement

f. Payments may be made by using a money order, cashier’s check or certified bank check and shall be made payable exclusively to the “Commonwealth of Massachusetts.” If Permittee desires to make its remaining payments by electronic fund transfers (EFTs), EFT Sign up forms can be obtained at this link: https://massfinance.state.ma.us/VendorWeb/EFT_FORM.pdf. Fill out the form and send it along with a W-9 Form to the DCR Finance Office. Payments shall be sent directly to:

Department of Conservation and Recreation 251 Causeway Street, Suite 600, Boston, MA 02114-2119 Attn: Finance Office, Accounts Receivable or CFO

g. Payments shall include a notation specifying the [park name, town, or site location identifier (Both DCRs ID and Permittee’s ID if any)] as well as the Permittee’s name. EFT Payments must include the Permittee’s Vendor Code Number and Permittee should send an e-mail or fax confirmation to the DCR Finance Office.

3. CONCESSIONS AND SERVICES

a. The Permittee shall operate, manage and maintain a [ ] at the Premises and shall not be utilized for any other purpose. See Exhibit [__], attached and incorporated hereto on specific service conditions and requirements applicable to the referenced business.

b. The DCR shall have the right to object to the character of service or particular scope of deliverance. If the Permittee wishes to provide any new service or new particular scope or type of deliverance, it shall submit a non-electronic written request for prior approval from the Commissioner. In approving or denying said request, the DCR shall take into consideration the public’s (visitors, most users) best interest.

4. OPERATING SCHEDULE; SERVICE PRICING

a. The minimum operating schedule shall be: [ ]. The hours will be: [from _ to _, daily, including weekends and holidays]. Should the Permittee be required or compelled to close it must give notice to the DCR Park Supervisor, the Office of Long Term Leases and Permits. Permittee’s decision to open or close will not constitute a reason for abatement of the bid amount without approval in writing from DCR’s office of Long Term Leases and Permits and Finance Departments.

b. The Concession shall be prepared and opened by a date to be established by the DCR Park Staff pursuant to the Bid Award Notice.

c. During periods of closure due to inclement weather or any other cause not within the control of the DCR, all other obligations of the Permittee shall not be waived. The DCR shall not be responsible for any costs incurred or revenue lost due to closing or re-opening of facilities under the provisions of this paragraph.

d. The DCR may schedule special events at the Park. The sponsors and/or special event personnel may be permitted to offer similar items as those offered by Permittee. The Permittee shall make every effort to accommodate such events.

e. Fees, rates, additional charges and discount details must be made clear to patrons in all signage. Any discount rate and validation agreements with third parties should be submitted to DCR for prior approval. Permittee shall post notice of any changes to fees, rates, charges and discounts for patrons and provide DCR with such information prior to institution of new fees, rates, and charges.

f. All service rates shall be reasonably priced in accordance with those offered throughout ________/radius and/or the industry. Rate sheets and pricing changes should be furnished to DCR prior to the beginning of each fiscal year (July 1).

5. PERMITTEE’S EMPLOYEES (as applicable)

a. The Permittee shall hire qualified, competent employees, in sufficient numbers to provide an efficient service to the public. Permittee is responsible for obtaining and reviewing CORI and SORI reports of its staff and employees.

b. All employees shall wear identifiable uniforms or an article of clothing or carry approved company identification to exhibit to the Park Supervisor and members of the public.

c. The Permittee shall deliver to the DCR Park Supervisor and Regional Manager an up-to-date list of all employees at the start of each operating season, the delivery schedules, and when changes to the staff are made.

d. Permittee shall provide proof that it carries Worker’s Compensation coverage.

e. No DCR employees can be employed concurrently by Permittee.

6. CONDITION OF PREMISES

a. The Permittee acknowledges that it has made an inspection of the Premises and that the Premises is in a satisfactory condition, suitable for the purposes of this Permit Agreement in its existing condition, and that it has not relied upon representations or statements of the DCR, its officers, employees or agents with respect to these conditions. The Permittee expressly agrees that the DCR has no obligation to make any alterations, repairs, additions, or improvements to the Premises.

b. The risk of loss resulting from any natural weather phenomena or occurrences remains with the Permittee. Compensation due to the DCR shall not be reduced or abated in any manner due to said natural weather phenomena or occurrences.

c. The location of the Premises shall be determined solely at the discretion of the appropriate Park Supervisor or designated DCR staff member. The aforementioned Park Supervisor or DCR staff member may change the location of the Premises at any time during the Term of this Permit Agreement. The Permittee shall strictly comply with the instructions of DCR staff.

d. No public address system, amplified sound or signs, or amusement, video, electronic or coin-operated games or machines shall be permitted on the Premises without the prior approval of the DCR. Any music used within the Premises shall have final approval of the DCR. No automobile, truck, generator or other equipment (‘equipment”) shall be allowed on the Premises or to remain if such equipment emits excessive exhaust, noise, oil or other liquids, gases or smells.

e. The Permittee shall not store any items outside the Premises. Any and all related deliveries shall be made in such a manner as to have the least negative impact on the visiting public.

f. The Operator shall be responsible for the security of its items and its use of the Premises. DCR makes no representations as to the safety and security of the Premises or the Park.

g. The Permittee shall be solely responsible (financially and for labor costs) for any damage, destruction, vandalism or similar caused to the Premises by the Permittee, its members, guests, business invitees, agents, employees or similar. Any damage shall be immediately repaired to the satisfaction of the Park Supervisor and Regional Manager. Said repairs shall be performed immediately.

7. INSPECTIONS AND REPORTS

a. The Permittee shall arrange for inspections by local health officials, utilities engineers, building inspectors and others as may be required.

b. After notification to DCR, the Permittee shall take prompt action to correct any condition that is found not to be in compliance with any federal, state or local regulation, code or statute.

c. The Permittee shall agree to obtain at its own expense all permits and licenses necessary for the operation of the Premises. Failure to obtain any required licenses, prior to operation of facilities for which permits are required, or failure to maintain such licenses in full effect throughout the term of this Permit shall be cause for termination of this Permit by the DCR.

8. CONSTRUCTION ON THE PREMISES

a. Any proposed improvements, modifications, or build-out of the Premises shall be subject to written pre- approval by the DCR Commissioner after review and approval by the DCR Director of the Division of Planning and Resource Protection, Engineering Department, the applicable Parks Regional Director and District Manager, and the Office of Long Term Permits & Leases. All costs incurred under this section (including but not limited to local, state and federal permit application fees, construction, labor, materials, professional landscaping, architectural fees, etc.) are the sole responsibility of the Permittee and require pre-approval by authorized DCR Parks, Engineering, Planning, and Legal staff. Note prevailing wage and contractors insurance may be required depending on the nature of the work. Ordinary and everyday maintenance, such as minor repairs to the wiring, plumbing and structure, may be performed by the Permittee utilizing properly licensed and insured contractors, after notice to, and confirmation in writing from, DCR Parks, Engineering, and Long Term Leases and Permits departments.

b. Prior to the commencement of any work on the Premises, plans and specifications shall be submitted to the DCR for pre-approval. Plans and specifications shall be submitted and approved by the DCR Director of the Division of Planning and Engineering, Engineering, the applicable Regional Director, District Manager and Office of Long Term Permits & Leases.

c. All improvements to the Premises shall immediately become the property of the DCR with the exception of personal equipment of the Permittee which can be removed without damage to any structure on the Premises. Items installed into walls, attached to plumbing or heating systems, and the ground shall become fixtures unless the parties otherwise agree in writing.

d. Any damage to any structure on the Premises or surrounding area caused by the installation or removal of an improvement by the Permittee shall be repaired to a condition satisfactory to the DCR at the Permittee’s sole expense.

e. The Permittee may commission an electric utility company or internet provider, to provide service for cash registers, refrigeration and other appliances, subject to DCR pre-approval in writing of the planned items, installation methods, and layout. All costs are the sole responsibility of the Permittee.

f. The Permittee shall conform to all rules and regulations of the DCR and those of all other state, federal and local agencies, including Mass. Gen. Laws requiring approval by the Massachusetts Historical Commission or any other applicable body before any work which involves excavation or disturbance of any soils can commence.

9. UTILITIES

a. The Permittee shall be responsible for all costs associated with installation, maintenance, repair and use of all utilities within and on the Premises, unless otherwise agreed to by the Parties. The Permittee shall be responsible for all costs of water, sewerage, electricity, fuel, oil, telephone, or any utility used and consumed in connection with the operation of the Premises, and in connection with all structures located thereon. Once invoices are received for the consumption of utilities, the Permittee shall make prompt payment to the provider of said utilities.

b. The Permittee acknowledges that in the event utility service is discontinued by a utility service provider and said disconnection adversely affects the operations on the Premises, the DCR shall have the right to terminate this Permit Agreement forthwith and, to the extent such utility discontinuation was caused by Permittee and/or Permittee’s concession, the DCR may seek remedies in accordance with the Permit Agreement or as otherwise provided by law.

10. EQUIPMENT MAINTENANCE AND REPAIR; LEASED EQUIPMENT

a. Any and all equipment and structures on the Premises used by the Permittee to perform the activities authorized by this Permit Agreement shall be maintained in good operable condition by the Permittee. All such equipment shall be cleaned, tested and repaired by the Permittee, who shall bear all costs related to such repairs.

b. Any damage to any structure on the Premises or surrounding area caused by the installation or removal of equipment by the Permittee shall be repaired to a condition satisfactory to the DCR at the Permittee’s sole expense.

c. The Permittee shall identify and notify DCR of any leased equipment to be used on the Premises prior to the execution of the permit or whenever acquired by Permittee. The Permittee shall be solely responsible for any obligations under any leases. Vending machines, if any are approved, shall be operable whenever the Premises are available to the public. The Operator shall be solely responsible for the installation and maintenance (cleaning, filling, repairs, etc.) of the Machines. Advertising on leased equipment shall be kept to a reasonable amount and pre-approved by DCR’s External Affairs Department per Section 11 below. At the termination of this agreement, it will be Permittee’s responsibility to fulfill any remaining obligations under the lease arrangement so that title to said equipment can be passed directly to the Commonwealth prior to Permittee vacating the Premises. Equipment shall be described in detail that includes brand name, type of equipment and serial number, if applicable.

d. Any equipment that is affixed in a permanent manner including but not limited to: plumbing fixtures, sinks, hard-wired appliances, built-in refrigeration…