HomeMy WebLinkAboutReso 15-25 Approving an Agreement with Origin Bay LLC, Koja Kitchen for Concession Operation Services
Reso. No. 15-25, Item 5.3, Adopted 3/18/2025 Page 1 of 2
RESOLUTION NO. 15 – 25
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AGREEMENT WITH ORIGIN BAY LLC, KOJA KITCHEN FOR
CONCESSION OPERATION SERVICES
WHEREAS, City owns concession facilities at The Wave Waterpark (“The Wave”); and
WHEREAS, the City desires to offer snacks, food and refreshments conveniently available
to its park users at The Wave; and
WHEREAS, the City desires to have a third-party operate the concessions facilities to offer
high quality food and refreshments for visitors at The Wave; and
WHEREAS, a Request for Proposals was released on November 18, 2024, with three
proposals received by the deadline; and
WHEREAS, the proposals were reviewed, evaluated and scored by Staff, and Origin Bay
LLC, Koja Kitchen (“Koja Kitchen”) was the selected bidder; and
WHEREAS, Koja Kitchen services best align with the City’s previous menu and price
range; and Koja Kitchen is prepared to complete the work outlined in the Scope of Services; and
WHEREAS, Koja Kitchen will pay the City $25,000 per season for two seasons totaling
$50,000; and
WHEREAS, as a pass-through cost, the City will reimburse the contractor for birthday party
meal expenses, not to exceed $60,000 per season for two seasons totaling $120,000.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Dublin does hereby
approve the agreement with Origin Bay LLC, Koja Kitchen.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
agreement, attached hereto as Exhibit A, and make any necessary, non-substantive changes to
carry out the intent of this Resolution.
{Signatures on the Following Page}
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Reso. No. 15-25, Item 5.3, Adopted 3/18/2025 Page 2 of 2
PASSED, APPROVED AND ADOPTED this 18th day of March 2025, by the following vote:
AYES: Councilmembers Josey, McCorriston, Morada, Qaadri and Mayor Hu
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
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CONTRACTOR SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
KOJA KITCHEN
THIS AGREEMENT for Concession Operation services is made by and between
the City of Dublin (“City”) and Origin Bay LLC, Koja Kitchen (“Contractor” or
“Concessionaire”) (together sometimes referred to as the “Parties”) as of 03/18/2025
(the “Effective Date”).
Section 1. SERVICES. Subject to the terms and conditions set forth in this
Agreement, Contractor shall provide to City the services described in the Scope of Work
attached as Exhibit A at the time and place and in the manner specified therein. In the
event of a conflict in or inconsistency between the terms of this Agreement and Exhibit
A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the
Effective Date and shall end on September 30, 2026, unless the term of
the Agreement is otherwise terminated or extended, as provided for in
Section 8. The time provided to Contractor to complete the services
required by this Agreement shall not affect the City’s right to terminate the
Agreement, as referenced in Section 8. Notwithstanding the foregoing this
Agreement may be extended on an annual basis for up to two years upon
the written consent of the Contractor and the City Manager, provided that:
a) sufficient funds have been appropriated for such purchase, b) the price
charged by the Contractor for the provision of the services described in
Exhibit B does not increase. None of the foregoing shall affect the City’s
right to terminate the Agreement as provided for in Section 8.
1.2 Standard of Performance. Contractor shall perform all services required
pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Contractor
is engaged.
1.3 Assignment of Personnel. Contractor shall assign only competent
personnel to perform services pursuant to this Agreement. In the event
that City, in its sole discretion, at any time during the term of this
Agreement, desires the reassignment of any such persons, Contractor
shall, immediately upon receiving notice from City of such desire of City,
reassign such person or persons.
1.4 Time. Contractor shall devote such time to the performance of services
pursuant to this Agreement as may be reasonably necessary to meet the
standard of performance provided in Subsection 1.2 above and to satisfy
Contractor’s obligations hereunder. Concessionaire shall provide services
during normal business hours of the Wave, or at other times as
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determined by the mutual consent of the Parties. Wave hours and dates
are attached hereto on Exhibit C. Contractor may not assign, sublease, or
transfer any of its rights under this Agreement
Section 2. COMPENSATION. As a pass-through cost from birthday party
participants, City hereby agrees to reimburse Contractor for birthday meal expenses at
a rate of $10.00-$12.00 per meal, with total reimbursable expenses not to exceed
$60,000.00 per season, notwithstanding any contrary indications that may be contained
in Contractor’s proposal, for services to be performed and reimbursable costs incurred
under this Agreement. Contractor shall pay City a flat fee of $25,000.00 per season for
two seasons, totaling up to $50,000.00, to lease the Wave concession stand and for
services provided under this Agreement.
In the event of a conflict regarding the amount of compensation between this
Agreement and Consultant’s proposal, the Agreement shall prevail. City shall pay
Contractor for services rendered pursuant to this Agreement at the time and in the
manner set forth herein. The payments specified below shall be the only payments
from City to Contractor for services rendered pursuant to this Agreement. Contractor
shall submit all invoices to City in the manner specified herein. Except as specifically
authorized by City in writing, Contractor shall not bill City for duplicate services
performed by more than one person.
Contractor and City acknowledge and agree that compensation paid by City to
Contractor under this Agreement is based upon Contractor’s estimated costs of
providing the services required hereunder, including salaries and benefits of employees
and subcontractors of Contractor. Consequently, the Parties further agree that
compensation hereunder is intended to include the costs of contributions to any
pensions and/or annuities to which Contractor and its employees, agents, and
subcontractors may be eligible. City therefore has no responsibility for such
contributions beyond compensation required under this Agreement.
2.1 Invoices. Contractor shall submit invoices, not more often than once a
month during the term of this Agreement, based on the cost for services
performed, incurred prior to the invoice date. Invoices shall contain the
following information:
Serial identifications of progress bills; i.e., Progress Bill No. 1 for the
first invoice, etc.;
The beginning and ending dates of the billing period;
A quantity ordered summary containing the original contracted costs
per item, the amount of prior billings, and the total due this period.
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The total quantity of each product ordered under the Agreement by
Contractor and each employee, agent, and subcontractor of Contractor
performing services hereunder;
The Contractor’s signature;
2.2 Monthly Payment. City shall make monthly payments, based on invoices
received, for services satisfactorily performed. City shall have 30 days
from the receipt of an invoice that complies with all of the requirements
above to pay Contractor.
2.3 [Intentionally Deleted]
2.4 Total Payment. City shall pay for the services to be rendered by
Contractor pursuant to this Agreement. City shall not pay any additional
sum for any expense or cost whatsoever incurred by Contractor in
rendering services pursuant to this Agreement. City shall make no
payment for any extra, further, or additional service pursuant to this
Agreement.
In no event shall Contractor submit any invoice for an amount in excess of
the maximum amount of compensation provided above either for a task or
for the entire Agreement, unless the Agreement is modified prior to the
submission of such an invoice by a properly executed change order or
amendment.
2.5 Fees. Fees for work performed by Contractor on a quantity basis shall not
exceed the amounts shown on the compensation schedule attached
hereto as Exhibit B.
2.5.1 Concessionaire agrees to pay City according to payment schedule
and payment amounts outlined in Exhibit B.
2.6 [Intentionally Deleted]
2.7 Payment of Taxes. Contractor is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal
or state taxes.
2.8 Payment upon Termination. In the event that the City or Contractor
terminates this Agreement pursuant to Section 8, the City shall
compensate the Contractor for all outstanding costs and reimbursable
expenses incurred for work satisfactorily completed as of the date of
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written notice of termination. Contractor shall maintain adequate logs and
timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Contractor is not authorized to
perform any services or incur any costs whatsoever under the terms of
this Agreement until receipt of authorization from the Contract
Administrator.
2.10 [Intentionally Deleted]
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Contractor
shall, at its sole cost and expense, provide all facilities and equipment that may be
necessary to perform the services that are in addition to the equipment outlined in
Exhibit D required by this Agreement. City shall make available to Contractor only the
facilities and equipment listed in this section, and only under the terms and conditions
set forth herein. Contractor shall make a written request to City to use facilities or
equipment not otherwise listed herein.
3.1 Safety Requirements. In accordance with generally accepted
construction practices and state law, Contractor shall be solely and
completely responsible for conditions on the jobsite, including safety of all
persons and property during performance of the work. This requirement
shall apply continuously and not be limited to normal working hours.
Contractor shall take all necessary precautions and provide all necessary
safeguards to prevent personal injury and property damage. Contractor
shall provide protection for all persons including, but not limited to, its
employees and employees of its subcontractors; members of the public;
and employees, agents, and representatives of the City and regulatory
agencies that may be on or about the work.
The services of the City in conducting review and inspection of
Contractor's performance is not intended to include review of the
adequacy of Contractor's work methods, equipment, bracing or
scaffolding, or safety measures, in, on, or near any Contractor jobsite.
All work and materials shall be in strict accordance with all applicable
state, city, county, and federal rules, regulations and codes, with specific
attention to the United States Department of Labor Occupational Health
and Safety Administration (OSHA) requirements. Contractor shall be
solely responsible for compliance with all city, county, and state explosive
transport, storage, and blasting requirements and for any damages
caused by such operations.
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Contractor is hereby informed that work on City property could be
hazardous. Contractor shall carefully instruct all personnel working on
City property that all conditions of the property are potentially hazardous
work areas as to potential dangers and shall provide such necessary
safety equipment and instructions as are necessary to prevent injury to
personnel and damage to property. Special care shall be exercised
relative to work underground.
In addition to complying with all other safety regulations, Contractor shall
abide by any and all other City requirements contained in any
specifications, special conditions or manuals, which shall be made
available by City upon request.
Contractor shall provide and maintain all necessary safety equipment such
as fences, barriers, signs, lights, walkways, guards, and fire prevention
and fire-fighting equipment and shall take such other action as is required
to fulfill its obligations under this section. It is the intent of the City to
provide a safe working environment under normal conditions.
CONTRACTOR IS ADVISED THAT CITY’S OPERATIONS AND
PROPERTY ARE INHERENTLY HAZARDOUS BECAUSE OF
CONDITIONS SUCH AS CONFINED SPACES, POTENTIALLY
EXPLOSIVE ATMOSPHERES, AND POSSIBLE EXPOSURE TO
PATHOGENS.
Contractor shall maintain all portions of the jobsite in a neat, clean, and
sanitary condition at all times. If required by the City, toilets shall be
furnished by Contractor where needed for use of its employees and their
use shall be strictly enforced. Contractor shall not use the City's existing
sanitary facilities, unless previously authorized by the City.
Contractor shall keep adequate first aid facilities and supplies available
and instruction in first aid for its employees shall be given.
City reserves the right to require that Contractor bring onto the project or
engage the services of a licensed safety engineer at any time during the
term of this Agreement. If Contractor does not have a licensed safety
engineer on staff, then City may require that Contractor engage a
subcontractor or subconsultant as the project’s safety engineer.
Contractor shall bear all costs in connection with meeting the
requirements of this section.
Section 4. INSURANCE REQUIREMENTS. Before fully executing this Agreement,
Contractor, at its own cost and expense, unless otherwise specified below, shall procure
the types and amounts of insurance listed below against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the
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work hereunder by the Contractor and its agents, representatives, employees, and
subcontractors. Consistent with the following provisions, Contractor shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and
under forms of insurance satisfactory in all respects, and that such insurance is in effect
prior to beginning work. Contractor shall maintain the insurance policies required by
this section throughout the term of this Agreement. The cost of such insurance shall be
included in the Contractor's bid. Contractor shall not allow any subcontractor to
commence work on any subcontract until Contractor has obtained all insurance required
herein for the subcontractor(s) and provided evidence to City that such insurance is in
effect. VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED
AND MADE PART OF THIS AGREEMENT PRIOR TO EXECUTION. Contractor shall
maintain all required insurance listed herein for the duration of this Agreement.
4.1 Workers’ Compensation:
4.1.1 General Requirements. Contractor shall, at its sole cost and expense,
maintain Statutory Workers’ Compensation Insurance and Employer’s
Liability Insurance for any and all persons employed directly or indirectly
by Contractor. The Statutory Workers’ Compensation Insurance and
Employer’s Liability Insurance shall be provided with limits of not less than
$1,000,000 per accident. In the alternative, Contractor may rely on a self-
insurance program to meet these requirements, but only if the program of
self-insurance complies fully with the provisions of the California Labor
Code. Determination of whether a self-insurance program meets the
standards of the California Labor Code shall be solely in the discretion of
the Contract Administrator.
4.1.2 Submittal Requirements. To comply with Subsection 4.1,
Contractor shall submit the following:
a. Certificate of Workers’ Compensation Insurance in the
amounts specified in the section; and
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General Requirements. Contractor, at its own cost and expense,
shall maintain commercial general liability insurance for the term of
this Agreement in an amount not less than $2,000,000 and
automobile liability insurance for the term of this Agreement in an
amount not less than $2,000,000 per occurrence, combined single
limit coverage for risks associated with the work contemplated by
this Agreement. If a Commercial General Liability Insurance or an
Automobile Liability form or other form with a general aggregate
limit is used, either the general aggregate limit shall apply
separately to the work to be performed under this Agreement or the
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general aggregate limit shall be at least twice the required
occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and
personal injury, including death resulting therefrom, and damage to
property resulting from activities contemplated under this
Agreement, including without limitation, blanket contractual liability
and the use of owned and non-owned automobiles.
4.2.2 Minimum Scope of Coverage. Commercial general coverage
shall be at least as broad as Insurance Services Office Commercial
General Liability occurrence form CG 0001 (most recent edition)
covering comprehensive General Liability on an “occurrence” basis.
Automobile coverage shall be at least as broad as Insurance
Services Office Automobile Liability form CA 0001, Code 1 (any
auto). No endorsement shall be attached limiting the coverage.
4.2.3 Additional Requirements. Each of the following shall be included
in the insurance coverage or added as a certified endorsement to
the policy:
a. The Insurance shall cover on an occurrence or an accident
basis, and not on a claims-made basis.
b. City, its officers, officials, employees, and volunteers are to
be covered as additional insureds as respects: liability
arising out of work or operations performed by or on behalf
of the Contractor; or automobiles owned, leased, hired, or
borrowed by the Contractor.
c. For any claims related to this Agreement or the work
hereunder, the Contractor’s insurance coverage shall be
primary insurance as respects the City, its officers, officials,
employees, and volunteers. Any insurance or self-insurance
maintained by the City, its officers, officials, employees, or
volunteers shall be excess of the Contractor’s insurance and
shall not contribute with it.
4.2.4 Submittal Requirements. To comply with Subsection 4.2,
Contractor shall submit the following:
a. Certificate of Liability Insurance in the amounts specified in
the section;
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b. Additional Insured Endorsement as required by the section;
and
c. Primary Insurance Endorsement as required by the section.
4.3 All Policies Requirements.
4.3.1 Acceptability of Insurers. All insurance required by this section is
to be placed with insurers with a Bests' rating of no less than A:VII.
4.3.2 Verification of Coverage. Prior to beginning any work under this
Agreement, Contractor shall furnish City with complete copies of all
Certificates of Liability Insurance delivered to Contractor by the
insurer, including complete copies of all endorsements attached to
the policies. All copies of Certificates of Liability Insurance and
certified endorsements shall show the signature of a person
authorized by that insurer to bind coverage on its behalf. If the City
does not receive the required insurance documents prior to the
Contractor beginning work, it shall not waive the Contractor’s
obligation to provide them. The City reserves the right to require
complete copies of all required insurance policies at any time.
4.3.3 Deductibles and Self-Insured Retentions. Contractor shall
disclose to and obtain the written approval of City for the self-
insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement. At the
option of the City, either: the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects the City, its
officers, employees, and volunteers; or the Contractor shall provide
a financial guarantee satisfactory to the City guaranteeing payment
of losses and related investigations, claim administration and
defense expenses.
4.3.4 Wasting Policies. No policy required by this Section 4 shall
include a “wasting” policy limit (i.e. limit that is eroded by the cost of
defense).
4.3.5 Endorsement Requirements. Each insurance policy required by
Section 4 shall be endorsed to state that coverage shall not be
canceled by either party, except after 30 days’ prior written notice
has been provided to the City.
4.3.6 Subcontractors. Contractor shall include all subcontractors as
insureds under its policies or shall furnish separate certificates and
certified endorsements for each subcontractor. All coverages for
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subcontractors shall be subject to all of the requirements stated
herein.
4.4 Remedies. In addition to any other remedies City may have if Contractor
fails to provide or maintain any insurance policies or policy endorsements
to the extent and within the time herein required, City may, at its sole
option exercise any of the following remedies, which are alternatives to
other remedies City may have and are not the exclusive remedy for
Contractor’s breach:
Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under the
Agreement;
Order Contractor to stop work under this Agreement or withhold any
payment that becomes due to Contractor hereunder, or both stop work
and withhold any payment, until Contractor demonstrates compliance
with the requirements hereof; and/or
Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONTRACTOR’S RESPONSIBILITIES.
Contractor shall indemnify, defend with counsel acceptable to City, and hold harmless
City and its officers, officials, employees, agents and volunteers from and against any
and all liability, loss, damage, claims, expenses, and costs (including without limitation,
attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature
arising out of or in connection with Contractor’s performance of the Services or its
failure to comply with any of its obligations contained in this Agreement, except such
Liability caused by the sole negligence or willful misconduct of City.
The Contractor’s obligation to defend and indemnify shall not be excused because of
the Contractor’s inability to evaluate Liability or because the Contractor evaluates
Liability and determines that the Contractor is not liable to the claimant. The Contractor
must respond within 30 days, to the tender of any claim for defense and indemnity by
the City, unless this time has been extended by the City. If the Contractor fails to
accept or reject a tender of defense and indemnity within 30 days, in addition to any
other remedy authorized by law, so much of the money due the Contractor under and
by virtue of this Agreement as shall reasonably be considered necessary by the City,
may be retained by the City until disposition has been made of the claim or suit for
damages, or until the Contractor accepts or rejects the tender of defense, whichever
occurs first.
Notwithstanding the forgoing, to the extent this Agreement is a “construction contract”
as defined by California Civil Code Section 2782, as may be amended from time to
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time, such duties of Contractor to indemnify shall not apply when to do so would be
prohibited by California Civil Code Section 2782.
In the event that Contractor or any employee, agent, or subcontractor of Contractor
providing services under this Agreement is determined by a court of competent
jurisdiction or the California Public Employees Retirement System (PERS) to be eligible
for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and
hold harmless City for the payment of any employee and/or employer contributions for
PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as
well as for the payment of any penalties and interest on such contributions, which would
otherwise be the responsibility of City.
Section 6. STATUS OF CONTRACTOR.
6.1 Independent Contractor. At all times during the term of this Agreement,
Contractor shall be an independent contractor and shall not be an
employee of City. This Agreement shall not be construed as an
agreement for employment. City shall have the right to control Contractor
only insofar as the results of Contractor's services rendered pursuant to
this Agreement and assignment of personnel pursuant to Subsection 1.3;
however, otherwise City shall not have the right to control the means by
which Contractor accomplishes services rendered pursuant to this
Agreement. Contractor further acknowledges that Contractor performs
Services outside the usual course of the City’s business; and is
customarily engaged in an independently established trade, occupation, or
business of the same nature as the Contractor performs for the City, and
has the option to perform such work for other entities. Notwithstanding
any other City, state, or federal policy, rule, regulation, law, or ordinance to
the contrary, Contractor and any of its employees, agents, and
subcontractors providing services under this Agreement shall not qualify
for or become entitled to, and hereby agree to waive any and all claims to,
any compensation, benefit, or any incident of employment by City,
including but not limited to eligibility to enroll in the California Public
Employees Retirement System (PERS) as an employee of City and
entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits.
6.2 Contractor Not an Agent. Except as City may specify in writing,
Contractor shall have no authority, express or implied, to act on behalf of
City in any capacity whatsoever as an agent. Contractor shall have no
authority, express or implied, pursuant to this Agreement to bind City to
any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
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7.1 Governing Law. The laws of the State of California shall govern this
Agreement.
7.2 Compliance with Applicable Laws. Contractor and any subcontractors
shall comply with all laws applicable to the performance of the work
hereunder.
7.3 Other Governmental Regulations. To the extent that this Agreement
may be funded by fiscal assistance from another governmental entity,
Contractor and any subcontractors shall comply with all applicable rules
and regulations to which City is bound by the terms of such fiscal
assistance program.
7.4 Licenses and Permits. Contractor represents and warrants to City that
Contractor and its employees, agents, and any subcontractors have all
licenses, permits, qualifications, and approvals of whatsoever nature that
are legally required to practice their respective professions. Contractor
represents and warrants to City that Contractor and its employees, agents,
any subcontractors shall, at their sole cost and expense, keep in effect at
all times during the term of this Agreement any licenses, permits, and
approvals that are legally required to practice their respective professions.
In addition to the foregoing, Contractor and any subcontractors shall
obtain and maintain during the term of this Agreement valid Business
Licenses from City.
7.5 Nondiscrimination and Equal Opportunity. Contractor shall not
discriminate, on the basis of a person’s race, sex, gender, religion
(including religious dress and grooming practices), national origin,
ancestry, physical or mental disability, medical condition (including cancer
and genetic characteristics), marital status, age, sexual orientation, color,
creed, pregnancy, genetic information, gender identity or expression,
political affiliation or belief, military/veteran status, or any other
classification protected by applicable local, state, or federal laws (each a
“Protected Characteristic”), against any employee, applicant for
employment, subcontractor, bidder for a subcontract, or participant in,
recipient of, or applicant for any services or programs provided by
Contractor under this Agreement.
Contractor shall include the provisions of this Subsection in any
subcontract approved by the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without
cause upon written notification to Contractor.
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Contractor may cancel this Agreement upon 30 days’ written notice to City
and shall include in such notice the reasons for cancellation.
In the event of termination, Contractor shall be entitled to compensation
for services performed to the effective date of termination; City, however,
may condition payment of such compensation upon Contractor delivering
to City any or all documents, photographs, computer software, video and
audio tapes, and other materials provided to Contractor or prepared by or
for Contractor or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end
date of this Agreement beyond that provided for in Subsection 1.1. Any
such extension shall require a written amendment to this Agreement, as
provided for herein. Contractor understands and agrees that, if City grants
such an extension, City shall have no obligation to provide Contractor with
compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator,
City shall have no obligation to reimburse Contractor for any otherwise
reimbursable expenses incurred during the extension period.
8.3 Amendments. The Parties may amend this Agreement only by a writing
signed by all the Parties.
8.4 Assignment and Subcontracting. City and Contractor recognize and
agree that this Agreement contemplates personal performance by
Contractor and is based upon a determination of Contractor’s unique
personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of
Contractor. Contractor may not assign this Agreement or any interest
therein without the prior written approval of the Contract Administrator.
Contractor shall not subcontract any portion of the performance
contemplated and provided for herein, other than to the subcontractors
noted in the proposal, without prior written approval of the Contract
Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement
and all provisions of this Agreement allocating liability between City and
Contractor shall survive the termination of this Agreement.
8.6 Options upon Breach by Contractor. If Contractor materially breaches
any of the terms of this Agreement, City’s remedies shall include, but not
be limited to, the following:
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8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design
documents, and any other work product prepared by Contractor
pursuant to this Agreement;
8.6.3 Retain a different contractor to complete the work described in
Exhibit A not finished by Contractor; or
8.6.4 Charge Contractor the difference between the cost to complete the
work described in Exhibit A that is unfinished at the time of breach
and the amount that City would have paid Contractor pursuant to
Section 2 if Contractor had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Contractor’s Performance. All reports,
data, maps, models, charts, studies, surveys, photographs, memoranda,
plans, studies, specifications, records, files, or any other documents or
materials, in electronic or any other form, that Contractor prepares or
obtains pursuant to this Agreement and that relate to the matters covered
hereunder shall be the property of the City. Contractor hereby agrees to
deliver those documents to the City upon the conclusion of each
waterpark season and termination of the Agreement. It is understood and
agreed that the documents and other materials, including but not limited to
those described above, prepared pursuant to this Agreement are prepared
specifically for the City and are not necessarily suitable for any future or
other use. City and Contractor agree that, until final approval by City, all
data, plans, specifications, reports and other documents are confidential
and will not be released to third parties without prior written consent of
both Parties.
9.2 Contractor’s Books and Records. Contractor shall maintain any and all
ledgers, books of account, invoices, vouchers, canceled checks, and other
records or documents evidencing or relating to charges for services or
expenditures and disbursements charged to the City under this Agreement
for a minimum of 3 years, or for any longer period required by law, from
the date of final payment to the Contractor to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that
Subsection 9.2 of this Agreement requires Contractor to maintain shall be
made available for inspection, audit, and/or copying at any time during
regular business hours, upon oral or written request of the City. Under
California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds $10,000.00, the Agreement shall
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Services Agreement between 03/18/2025
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be subject to the examination and audit of the State Auditor, at the request
of City or as part of any audit of the City, for a period of 3 years after final
payment under the Agreement.
Section 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including
an action for declaratory relief, to enforce or interpret the provision of this
Agreement, the prevailing party shall be entitled to reasonable attorneys’
fees in addition to any other relief to which that party may be entitled. The
court may set such fees in the same action or in a separate action brought
for that purpose.
10.2 Venue. In the event that either party brings any action against the other
under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in the state courts of California in the County of
Alameda or in the United States District Court for the Northern District of
California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any
provision of this Agreement is invalid, void, or unenforceable, the
provisions of this Agreement not so adjudged shall remain in full force and
effect. The invalidity in whole or in part of any provision of this Agreement
shall not void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific
provision of this Agreement does not constitute a waiver of any other
breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure
to the benefit of and shall apply to and bind the successors and assigns of
the Parties.
10.6 Conflict of Interest. Contractor may serve other clients, but none whose
activities within the corporate limits of City or whose business, regardless
of location, would place Contractor in a “conflict of interest,” as that term is
defined in the Political Reform Act, codified at California Government
Code Section 81000 et seq.
Contractor shall not employ any City official in the work performed
pursuant to this Agreement. No officer or employee of City shall have any
financial interest in this Agreement that would violate California
Government Code Section 1090 et seq.
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Contractor hereby warrants that it is not now, nor has it been in the
previous 12 months, an employee, agent, appointee, or official of the City.
If Contractor was an employee, agent, appointee, or official of the City in
the previous 12 months, Contractor warrants that it did not participate in
any manner in the forming of this Agreement. Contractor understands
that, if this Agreement is made in violation of California Government Code
Section 1090 et seq., the entire Agreement is void and Contractor will not
be entitled to any compensation for services performed pursuant to this
Agreement, including reimbursement of expenses, and Contractor will be
required to reimburse the City for any sums paid to the Contractor.
Contractor understands that, in addition to the foregoing, it may be subject
to criminal prosecution for a violation of California Government Code
Section 1090 et seq., and, if applicable, will be disqualified from holding
public office in the State of California.
10.7 Solicitation. Contractor agrees not to solicit business at any meeting,
focus group, or interview related to this Agreement, either orally or through
any written materials.
10.8 Contract Administration. This Agreement shall be administered by the
City Manager ("Contract Administrator"). All correspondence shall be
directed to or through the Contract Administrator or his or her designee.
10.9 Notices. Any written notice to Contractor shall be sent to:
Origin Bay LLC, Koja Kitchen
Att: Martin Chou
5252 Dublin Boulevard
Dublin, CA 94568
Any written notice to City shall be sent to:
City of Dublin
Att: Kevin Coffee
100 Civic Plaza
Dublin, CA 94568
10.10 Integration. This Agreement, including the scope of work attached hereto
and incorporated herein as Exhibit A B, C, and D, represents the entire
and integrated agreement between City and Contractor and supersedes
all prior negotiations, representations, or agreements, either written or
oral.
Exhibit A Scope of Services
Exhibit B Compensation Schedule
Exhibit C Operation Schedule
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Exhibit D Equipment List
10.11 Counterparts and Electronic Signatures. This Agreement may be
executed in multiple counterparts, each of which shall be an original and
all of which together shall constitute one agreement. Counterparts
delivered and/or signatures executed by City-approved electronic or digital
means shall have the same force and effect as the use of a manual
signature. Both Parties desire this Agreement to be electronically signed in
accordance with applicable federal and California law. Either Party may
revoke its agreement to use electronic signatures at any time by giving
notice to the other Party.
10.12 Certification per Iran Contracting Act of 2010. In the event that this
contract is for
one million dollars ($1,000,000.00) or more, by Contractor’s signature
below Contractor certifies that Contractor, and any parent entities,
subsidiaries, successors or subunits of Contractor are not identified on a
list created pursuant to subdivision (b) of Section 2203 of the California
Public Contract Code as a person engaging in investment activities in Iran
as described in subdivision (a) of Section 2202.5, or as a person
described in subdivision (b) of Section 2202.5 of the California Public
Contract Code, as applicable.
SIGNATURES ON FOLLOWING PAGE
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The Parties have executed this Agreement as of the Effective Date. The persons
whose signatures appear below certify that they are authorized to sign on behalf of the
respective Party.
CITY OF DUBLIN KOJA KITCHEN
Colleen Tribby, City Manager Martin Chou, Owner/Operator
Attest:
Marsha Moore, City Clerk
Approved as to Form:
City Attorney
Docusign Envelope ID: B59DE350-3F4F-492D-9C1B-6DFB72C6F130
Services Agreement between
City of Dublin and Koja Kitchen
03/18/2025
Exhibit A – Page 1 of 2
EXHIBIT A
SCOPE OF SERVICES
1. Concessionaire may only use the Facilities to sell snacks, food, and
refreshments to patrons and/or staff at the Wave. Concessionaire may use the
Facilities for storage of concession items only. The concessionaire will not sell
alcoholic beverages or any glass bottles/containers.
2. Facility must be returned to the City in the original condition at season’s end or
upon Agreement termination (reasonable wear and tear
excepted). Concessionaire will assume full liability for any repairs, loss, damage,
or destruction to the Facility which is due to the fault or negligence of the
Concessionaire or the Concessionaire’s agents or employees. Concessionaire
must immediately notify the Recreation Supervisor if City-owned equipment
malfunctions; Concessionaire provides like-kind replacement if repair is
unfeasible.
3. Concessionaire will be responsible for all non-concession equipment, including
cash register (with credit card and receipt capability). Concessionaire shall be
responsible for providing all food service equipment required to successfully
operate Food Services (excluding the equipment listed in Exhibit D.
Concessionaire provides and maintains service ware, uniforms, linens,
disposables, signage, menus, and laundry services.
4. Concessionaire may not subcontract any portion of the concession operation
without the City’s prior written consent.
5. Should City enter into an agreement with a beverage distributor, City may require
Concessionaire to sell that distributor’s products preferentially or exclusively.
6. Concessionaire may not install any permanent signs. Temporary, non-attached
signs may be used during Concessionaire operation but must be removed when
not in use. Signs must be in good condition. Signs that are tattered or in poor
condition must be removed.
7. City shall issue one door key to Concessionaire. Concessionaire may request
additional keys from City, but may not duplicate any keys. Keys must only be
distributed to appropriate staff. Concessionaire may not change locks or
cylinders. Violation will result in termination of this Agreement. Concessionaire
shall pay for all key and lock replacement costs if keys or locks are lost or
damaged, even if the costs exceed the amount deposited.
8. Concessions staff will receive security badges upon request and after the
completion of all related, necessary documentation.
9. Throughout the term of the Agreement, the Concessionaire shall be solely
responsible for the security of the Facility and all other areas under the
Concessionaire’s supervision. Further, the Concessionaire and its employees shall
ensure that, upon completion of normal business hours, the Facility is secured and
that all appropriate equipment and lights have been turned off.
10.Concessionaire will be responsible for implementing software that allows for
ordering and/or order ready notifications.
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Exhibit A – Page 2 of 2
11.Concessionaire must comply with all applicable federal, state, county, and local
laws, ordinances, and regulations for Food Services. Maintain Facility,
Freezer/Refrigerator, and equipment to highest sanitary standards in line with
Alameda County Health regulations. Concessionaire is to obtain and maintain all
necessary licenses/permits, including Food Handlers Permit.
12.Any health inspection is to be coordinated with City staff. Report all inspection
outcomes to the City; promptly correct deficiencies.
13.Concessionaire is solely responsible for security of the Facility and ensuring
proper closure procedures are followed daily.
EXHIBIT A
SCOPE OF SERVICES (CONT.)
14.Certified Food Service Manager required on-site during operations (minimum two
years’ experience).
15.The Concessionaire shall notify the City’s Police Department and/or Alameda
County Fire Department in the event of a fire or other emergency using the
appropriate communication method. Further, the Concessionaire shall establish
appropriate emergency procedures, ensure that all of its employees are trained on
such procedures, and provide copies of these procedures to City staff.
16.Concessionaire may display logos in designated areas with City’s approval.
17.At the end of the season and upon termination of the Agreement, the
Concessionaire shall empty and clean all food storage areas, including the
Freezer/Refrigerator within seven (7) days of the
end of the season and/or termination of the Agreement unless otherwise
arranged with Wave Management. A full, detailed cleaning of Facility, must
include:
o Removal of all food and supplies
o Cleaning of appliances, hood, filters, ducting system, and tile flooring
o Cleaning and sanitizing of counters, shelving, refrigerators, freezers, vents,
fans, and windows (inside and out)
o Degreasing and scrubbing exterior concrete entrance
o Cleaning of baseboards, walls, and any hidden areas behind wheeled
equipment
o If the above cleaning is not completed, it will be the responsibility of the
concessionaire to pay for the concession's facility cleaning
18.Concessionaire shall bear all costs of operation, except as set forth otherwise in
this Agreement.
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Services Agreement between
City of Dublin and Koja Kitchen
03/18/2025
Exhibit B – Page 1 of 1
EXHIBIT B
CONCESSIONAIRE PAYMENT SCHEDULE
Payment Due Date
May and June 2025 $12,500.00 06/05/2025
July, August, September
2025
$12,500.00 09/04/2025
May and June 2026 $12,500.00 06/04/2026
July, August, September
2026
$12,500.00 09/03/2026
BIRTHDAY PARTY MEAL PRICE
Payment Due Date
$10 - $12 per meal Invoiced by Concessionaire to City and
Paid Monthly
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Services Agreement between
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03/18/2025
Exhibit C – Page 1 of 1
EXHIBIT C
OPERATION SCHEDULE
The Concessionaire will have sole access to the concession stand beginning May 1st
through September 30th each year with operations being conducted according to the
following schedule.
Summer 2025 Hours of Operation
Daily Concessions Operating Hours
•11:00 am – 5:30 pm
Waterpark
•May 26, 2025
•May 31, and June 1, 2025
•Daily: June 7, 2025, through August 10, 2025
•Weekends Only: August 16, 2025, through September 1, 2025
The Concessionaire is required to operate on the following holidays
•Memorial Day: May 26, 2025
•Independence Day: July 4, 2025
•Labor Day: September 1, 2025
Summer 2026 Hours of Operations
Daily Concessions Operating Hours
•11:00 am – 5:30 pm
Waterpark
•May 25, 26, 27, 2026
•May 30 and 31, 2026
•Daily: June 6, 2026, through August 9, 2026
•Weekends Only: August 15, 2026, through September 7, 2026
The Concessionaire is required to operate on the following holidays
•Memorial Day: May 25, 2026
•Independence Day: July 4, 2026
•Labor Day: September 7, 2026
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Services Agreement between
City of Dublin and Koja Kitchen
03/18/2025
Exhibit D – Page 1 of 1
EXHIBIT D
EQUIPMENT LIST
•1 Electronic Menu Display Board
•1 Turbo Air Solid Door Refrigerator (three-door) – 73 Cubic Feet (M3R72-3-M)
•1 Turbo Air Solid Door Freezer (two-door) - 42.1 Cubic Feet (M3F47-2-M)
•2 Turbo Air Under Counter Freezer (JUF-48-N) (JUF-60-N)
•1 Turbo Air Work Top Freezer (TWF-60SD-N)
•1 Turbo Air Mega Top Unit - Sandwich/Salad Prep Table w/ Refrigerated Base
(MST-72-30-N)
•1 BUNN Coffee Machine with two 1.5-liter Capacity Pots
•1 Taylor Soft Serve Freezer (Two Flavor Dispenser) Model 791
•1 Ortega Nacho Cheese Warmer & Dispenser
•2 Globe 16lbs Countertop Electric Fryers (PF16E)
•1 Cecilware Electric Griddle (Model: EL1836)
•2 Sodir Panini Machines
•1 Four-light heat lamp
•1 Amana RC22S2 Heavy Duty Stainless Steel Commercial Microwave Oven with
Push Button Controls – one cubic foot
•1 Indigo Ice Machine
•1 Soda Machine (soda provided by soft drink vendor)
•1 Turbo Air Glass Door Merchandiser Refrigerator – 20.3 Cubic Feet (TGM22RV-
N6)
•3 P.O.S. Machines
•1 Three-Compartment Sink
•1 Prep Sink
•2 Hand Washing Sinks
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