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Jim Donchess
Mayor e City of Nashua

To: Board of Aldermen

From: Mayor Jim Donchess

Date: March 11, 2021

Re: Multi-Year Contract Award — Concession Rights for Stellos Stadium

Pursuant to NRO: § 5-74/B: A contract that extends from the current fiscal year into succeeding

fiscal year(s) in which no funds have been appropriated nor otherwise designated for this purpose
shall be approved by the full Board of Aldermen before the contract shall become binding on the

City.

The Finance Committee has approved and placed on file the notification of the award of the
referenced contract at the March 17, 2021 meeting and as such | am requesting the full Board of
Alderman approve the following contract:

Item: Concession Rights for Stellos Stadium
Value: 8% of Gross Revenue
Vendor: Dudley’s Concessions
Purchasing Memo#: 21-085 dated March 10, 2021
Contract Term: 2 years

Thank you.

229 Main Street »* PO Box 2019 * Nashua, New Hampshire 03061-2019
603.589.3260 * fax 603.594.3450 * NashuaMayor@NashuaNH. gov
www. NashuaNH.gov

To:

From:

Re:

City of Nashua, Public Works Division

Board of Public Works Meeting Date: February 25, 2021

Jason Puopolo, Superintendent
Parks and Recreation Department

Stellos Stadium Concessions Agreement

A. Informational: Stellos Concession Agreement

Discussion:

The City went out bid for a three-year Agreement for Concessions at Stellos
Stadium. No bids were received. Assistant Director of Public Works Andy
Patrician contacted several vendors who had attended the pre-bid meeting to
establish why there was no interest the Agreement. The current vendor Mark
Dudley was interested in a two-year Agreement rather than three-year term. The
City has reached agreement with Mark Dudley d/b/a Dudley’s Concessions for a
two-year Agreement for Concessions at Stellos Stadium for eight (8) percent of
each month’s gross revenue.

AGREEMENT

CONCESSION RIGHTS — STELLOS STADIUM
IFB0253-012121

THIS AGREEMENT IS MADE BETWEEN:

THE CITY OF NASHUA, 229 MAIN STREET, CITY HALL, NASHUA, NH 03060 (OWNER)
AND

Mark Dudley dba Dudley’s Concessions
and its successors, transferees and assignees (together CONTRACTOR)

NAME AND TITLE CONTRACTOR

36 Camp Sargent Road , Merrimack,, New Hampshire 03054
ADDRESS OF CONTRACTOR

WHEREAS, the City of Nashua, a political subdivision of the State of New Hampshire,
from time to time requires the services of a Contractor, and

WHEREAS, it is deemed that the services of a Contractor herein specified are both
necessary and desirable and in the best interests of the City of Nashua; and

WHEREAS, Contractor represents they are duly qualified, equipped, staffed, ready, willing
and able to perform and render the services hereinafter described;

Now, THEREFORE, in consideration of the specifications herein made, the parties
mutually agree as follows:

1. DOCUMENTS INCORPORATED. The following exhibits are by this reference incorporated
herein and are made part of this Agreement:

Exhibit A—Bid Sheet Dated February 10, 2021

The Agreement represents the entire and integrated agreement between the parties and
supersedes prior negotiations, proposals, representations or agreements, either written or oral.
Any other documents which are not listed in this Article are not part of the Agreement.

In the event of a conflict between the terms of the Proposal and the terms of this Agreement,
a written fully executed City of Nashua Amendment, the terms of this Agreement, the written
fully executed City of Nashua Amendment shall control over the terms of the Proposal.

2. WORK TO BE PERFORMED. Except as otherwise provided in this Agreement, Contractor
shall furnish all services, equipment, and materials and shall perform all operations necessary
and required to carry out and perform in accordance with the terms and conditions of the
Agreement the work described.

CONCESSION RIGHTS — STELLOS STADIUM PAGE 1 of 6

3. DESCRIPTION AND CONDITIONS OF WORK.

a. The Contractor for the Stellos Stadium concession stands shall provide food and beverage
for the full duration of all events at which Park & Recreation Department determines
concessions will be sold. Each sports season is from April to the following March. The
City of Nashua does not offer any guarantee of sales in this Agreement.

b. No mobile units will be allowed without the written permission of the Parks and
Recreation Department, Division of Public Works, at least five (5) days prior to the
designated event.

c. Popcorn must be sold in bags and not boxes. This does not preclude fresh popcorn. No
glass bottles are to be used in the sale of any liquid refreshments at the concession stand or
mobile units or on the premises. No alcoholic beverages are to be sold by the Contractor
or any third party.

d. There shall be no sub-contracting to a third party except with the express written
permission of the City Purchasing Department. The request to sub-contract shall be
submitted in writing to Recreation Program Manager of the Parks and Recreation
Department no later than five (5) work days before the event and include evidence that
such third party vendor is in full compliance with all requirements of this agreement.

e. The Contractor shall have the concession rights at most events taking place at Stellos
Stadium. A list of events may be obtained, as available, from the Parks and Recreation
Department.

f. A product list describing items to be sold shall be submitted with the bid and include
quantity and prices of each item. Prices cannot be changed during the Agreement term
unless agreed upon by the City. The City realizes an obligation to the public to keep prices
reasonable. New items are not to be added to the menu without the prior approval of the
Division of Public Works, Parks and Recreation Department.

g. The concession area at each location must be kept neat and orderly in accordance with
Board of Health regulations and all merchandise dispensed must be of good quality. A
Health Department Food Service License is required to be maintained in good standing for
the duration of this agreement. A copy of the license is to be submitted to the Division of
Public Works, Parks and Recreation Department at least five (5) days prior to the first
scheduled event. All other regulations and documentation required by the City and/or
State of New Hampshire must also be satisfied, including current polices on COVID-19.

h. The properties and facilities to be occupied by Contractor are the responsibility of the

Parks and Recreation Department, Division of Public Works, in cooperation with the
Nashua School Department and are supervised by that agency of the City.

CONCESSION RIGHTS — STELLOS STADIUM PAGE 2 of 6

4.

INSURANCE AND INDEMNIFICATION. Contractor shall carry and maintain in effect during the
performance of services under this contract:

* General Liability insurance, including food product liability, in the amount of
$1,000,000 per occurrence; $2,000,000 aggregate;

= $1,000,000 Combined Single Limit Automobile Liability; and

" Workers' Compensation Coverage in compliance with the State of New
Hampshire statutes, $100,000/$500,000/$100,000.

Contractor shall maintain in effect at all times during the performance under this contract all
specified insurance coverage with insurers. None of the requirements as to types and limits
to be maintained by Contractor are intended to and shall not in any manner limit or qualify
the liabilities and obligations assumed by Contractor under this contract. The City of
Nashua shall not maintain any insurance on behalf of Contractor. Subcontractors are subject
to the same insurance requirements as Contractor and it shall be the Contractor’s
responsibility to ensure compliance of this requirement.

The parties agree that Contractor shall have the status of and shall perform all work under
this contract as an independent contractor, maintaining control over all its consultants, sub
consultants, contractors, or subcontractors. The only contractual relationship created by this
contract is between the City and Contractor, and nothing in this contract shall create any
contractual relationship between the City and Contractor’s consultants, sub consultants,
contractors, or subcontractors. The parties also agree that Contractor is not a City employee
and that there shall be no:

(1) Withholding of income taxes by the City:

(2) Industrial insurance coverage provided by the City;

(3) Participation in group insurance plans which may be available to employees of the
City;

(4) Participation or contributions by either the Contractor or the City to the public
employee’s retirement system;

(5) Accumulation of vacation leave or sick leave provided by the City;

(6) Unemployment compensation coverage provided by the City.

Contractor will provide the City of Nashua with certificates of insurance for coverage as
listed below and endorsements affecting coverage required by the contract within ten
calendar days after the City issues the notice of award. The City of Nashua requires thirty
days written notice of cancellation or material change in coverage. The certificates and
endorsements for each insurance policy must be signed by a person authorized by the insurer
and who is licensed by the State of New Hampshire. General Liability, Employers’
Liability and Auto Liability policies must name the City of Nashua as an additional
insured and reflect as such on the certificate of insurance. All policies shall contain a waiver
of subrogation in favor of the City of Nashua and its officers, directors, employees,
volunteers and agents. Contractor is responsible for filing updated certificates of insurance
with the City of Nashua's Risk Management Department during the life of the contract.

« All deductibles and self-insured retentions shall be fully disclosed in the
certificate(s) of insurance.

CONCESSION RIGHTS — STELLOS STADIUM PAGE 3 of 6

Board of Aldermen — 10/24/17 Page 7

UNFINISHED BUSINESS — ORDINANCES

O-17-039
Endorser: Alderman David Schoneman
AMENDING THE ZONING MAP BY EXPANDING THE HISTORIC OVERLAY DISTRICT
BY ADDING GREELEY PARK

Given its second reading;

MOTION BY ALDERMAN SCHONEMAN TO AMEND O-17-039 IN ITS ENTIRETY BY REPLACING IT
WITH THE AMENDED COPY PROVIDED WITH THE AGENDA

ON THE QUESTION
Alderman Schoneman

Essentially what we are doing here is clarifying the role of the Historic District Commission. It is an advisory
role according to this. It just says that if something comes up that would involve a project that would come
under the normal scrutiny of the Historic District Commission, the Historic District Commission will be consulted
on the project. It is non-binding, just an advisory role. That’s the amendment.

MOTION CARRIED

MOTION BY ALDERMAN SCHONEMAN FOR FINAL PASSAGE OF O-17-039 AS AMENDED
ON THE QUESTION
Alderman Schoneman

The idea behind this is to take advantage of one of these volunteer boards that we have in the city, the Historic
District Commission. We appoint folks to this commission who have a perceived expertise in city history and a
sense of aesthetics, and a desire to preserve assets in the city for the revitalization of the city with time. The
idea here is to give them an advisory role, ask them their opinion, call on their expertise that we have already
appointed them based upon. | would encourage all of us to please support that. | think it is good for Nashua.
Thank you.

Alderman Wilshire
Roll call please.
Alderman Dowd

I’m not going to support this because the Historic District Commission normally looks at properties, buildings,
colors, architecture. | don’t ever envision us building any buildings in Greeley Park. We found when we try to
do one simple project in the park that it had to go through the Board of Aldermen and the scrutiny took forever.
| think the way it is set up now with the Board of Aldermen having that oversight is fine.

Alderman Caron

| will be voting no. | think this is not needed. We have so many boards and commissions overseeing Greeley
Park. If this is non-binding then | think if there was something coming up and they wanted an opinion that they
could just go to the Historic District Commission and ask for their opinion on something. The only buildings that
are there probably would come down anyway if Park-Rec ever leaves that facility. | will not be voting for this.
Thank you.

« Ifaggregate limits of less than $2,000,000 are imposed on bodily injury and
property damage, Contractor must maintain umbrella liability insurance of at least
$1,000,000. All aggregates must be fully disclosed on the required certificate of
insurance.

« The specified insurance requirements do not relieve Contractor of its
responsibilities or limit the amount of its liability to the City or other persons, and
Contractor is encouraged to purchase such additional insurance, as it deems
necessary.

«The insurance provided herein is primary, and no insurance held or owned by the
City of Nashua shall be called upon to contribute to a loss.

" Contractor is responsible for and required to remedy all damage or loss to any
property, including property of the City, caused in whole or part by Contractor or
anyone employed, directed, or supervised by Contractor.

Regardless of any coverage provided by any insurance, Contractor agrees to indemnify and
shall defend and hold harmless the City, its agents, officials, employees and authorized
representatives and their employees from and against any and all suits, causes of action, legal
or administrative proceedings, arbitrations, claims, demands, damages, liabilities, interest,
attorney’s fees, costs and expenses of any kind or nature in any manner caused, occasioned,
or contributed to in whole or in part by reason of any negligent act, omission, or fault or
willful misconduct, whether active or passive, of Contractor or of anyone acting under its
direction or control or on its behalf in connection with or incidental to the performance of
this contract. Contractor’s indemnity, defense and hold harmless obligations, or portions
thereof, shall not apply to liability caused by the sole negligence or willful misconduct of the
party indemnified or held harmless.

5. PERIOD OF PERFORMANCE. Contractor shall perform and complete all work within the time
periods set forth and may only be altered by the parties by a written agreement to extend the
period of performance or by termination in accordance with the terms of the Agreement.
Agreement or shall begin performance upon receipt of an Executed Agreement from the
City of Nashua.

The term of the base Agreement, for Stellos Stadium Concession Rights, will be for two (2)
years with an option to renew for a second one (1) year term increment. The base
Agreement will commence on April 1, 2021 and terminate on March 30, 2023, unless
extended by amendment. Each year is subject to annual budget appropriations and at the
City of Nashua's sole discretion. A separate/amended purchase order shall be issued for each
year of the Agreement.

6. PAYMENTS. Payments shall be made in accordance with the following schedule:

> 8% __ Percent of total Monthly Gross Sales within 15 days of the month close.

> Payment shall be made by a check, payable to the "City of Nashua” and submitted
to the Parks and Recreation Department, Division of Public Works, Greeley Park,
100 Concord St., Nashua, NH 03064.

CONCESSION RIGHTS — STELLOS STADIUM PAGE 4 of 6

7, EFFECTIVE DATE OF AGREEMENT. This Agreement shall not become effective until the date
of execution by the City of Nashua.

8. TERMINATION. This Agreement may be terminated by the City on ten (10) calendar
day’s written notice to Contractor in the event the Contractor fails to meet the payment
schedule or the provisions set forth in the Agreement.

9. NOTICES. All notices, requests, or approvals required or permitted to be given under this
Agreement shall be in writing, shall be sent by hand delivery, overnight carrier, or by United
States mail, postage prepaid, and registered or certified, and shall be addressed to:

Address for giving notices to Owner: Address for giving notices to Contractor:
Jason Puopolo, Superintendent Mark Dudley

City of Nashua -Division of Public Works dba Dudley’s Concessions

Parks & Recreation Department 36 Camp Sargent Road

100 Concord Street Merrimack,, New Hampshire 03054

Nashua, NH 03064

Any notice required or permitted under this Agreement, if sent by United States mail, shall
be deemed to be given to and received by the addressee thereof on the third business day
after being deposited in the mail. The City of Nashua or Independent Contractor may change
the address or representative by giving written notice to the other party.

10. CHOICE OF LAW AND VENUE This Agreement shall be governed exclusively by the laws of the
State of New Hampshire and any claim or action brought relating to this Agreement, the work performed
or contracted to be performed thereunder, or referable in anyway thereto shall be brought in Hillsborough
County (New Hampshire) Superior Court Southern Judicial District or in the New Hampshire 9th Circuit
Court—Nashua and not elsewhere.

CONCESSION RIGHTS — STELLOS STADIUM PAGE 5 of 6

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed and intend to
be legally bound thereby.

nab. Qh,

City of Nashua, NH (signature) Mark Dudley dba Dudley’s Confessions
(signature)
James W_Donchess, Mayor Mark Dudley, Owner
(Printed Name and Title) (Printed Name and Title)
O2 [ U7 | LO2]
Date Date

CONCESSION RIGHTS — STELLOS STADIUM PAGE 6 of 6

EXHIBIT A

DUDLEY’S CONCESSIONS

NASHUA, NEW HAMPSHIRE
Superior Food Products & Services

° Bince 1975 ®

February 10, 2021

Mr. Andy Patrician

Assistant Director, Public Works
City of Nashua

9 Riverside Drive

Nashua, NH 03060

Andy,

Thank you again for reaching out. Enclosed is our bid to operate concessions at Stellos Stadium. |
updated the bid form to reflect a two-year period (2021 — 2023) with an optional additional year (2023-
2024), should the City wish to consider it. Given the restrictions and guidelines related to the ongoing
COVID-19 situation, | assume 2021 may be a challenging year for stadium concession sales.

if you have questions or need anything else from me, please feel free to call me at 603-966-7745 or

email me mdudley25@msn.com.
Regards,

Mark V. Dudley, Sr.
Dudley’s Concessions