HomeMy WebLinkAboutAmendment 1 to Service America Corp (Centerplate)~dp~_2lv3/!o
AMENDMENT NO. 1 TO THE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND
SERVICE AMERICA CORPORATION D/B/A CENTERPLATE FOR CATERING
CONCESSIONS AT THE CITY OF MIAMI BEACH CONVENTION CENTER
This Amendment No. 1 to the Agreement, is made and entered into this ~~day of
!~~ ayw /3arL , 2009, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal
corporation having its principal office at 1700 Convention Center Drive, Miami Beach, Florida,
33139 ("City"), and Service America Corporation d/b/a CENTERPLATE, a Delaware corporation
whose address is 201 East Broad Street, Spartanburg, SC, 29306 ("Concessionaire" or
"Centerplate").
RECITALS
WHEREAS, on March 1, 2007, the City entered into an Agreement with Centerplate for
the exclusive provision of food and beverage services at the Miami Beach Convention Center
("MBCCJ for an initial term of five (5) years (the "Agreement, and
WHEREAS, BGW Design, Limited, Inc. d/b/a Barton G partnered with Centerplate for
the provision of select social and corporate events at the Miami Beach Convention Center; and
WHEREAS, on May 15, 2008, Centerplate provided notice to the City that the
partnership with Barton G would not continue; and
WHEREAS, pursuant to Section 10.17 of the Agreement, Centerplate proposed Touch
Catering, LLC as its new social catering partner, which was subsequently approved by the City
Manager on December 19, 2008.
NOW, THEREFORE, in consideration of the mutual premises, covenants and
agreements herein contained, and other good and valuable consideration, in receipt and
adequacy of which are hereby acknowledged and intending to be legally bound, the City and
Concessionaire hereby amend the Agreement as follows:
1. The aforestated recitals are true and correct and incorporated by
reference herein.
2. Section 1 of the Agreement entitled "Definitions," is amended as follows:
(c) „ ~e „ #.,u~„~r~~n~~T~^,-r- '~~e~-l~^s~.:;~'a~,~^~~- "Touch
Catering" shall mean Touch Catering LLC.
(d) "~a+#en-G Touch Catering Agreement" shall mean that certain agreement with
respect to the provision of select social and corporate Events at the Facility by and
between Concessionaire and 6 Touch Catering dated as of March 9, 2009,
which shall be made available for inspection upon request by the City.
(e) "~afte~-6 Touch Catering Event" shall mean Events conducted pursuant to
the ~ar~en-6 Touch Catering Agreement consisting of: (1) Social Catering Events,
designed and conducted by Baia-6 Touch Catering (hereinafter, "~ Touch
Catering Social Catering Events"); and (2) Events conducted by Ba~te+~-6 Touch
Catering in conjunction with any other Event (etc .., in conjunction with a trade show,
convention, corporate meeting, etc.) at the Facility.
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(f) "men-6 Touch Caterins~ Receipts" shall mean the amount received by
Ba+~en--6 Touch Catering from food and beverage sales at l~a#~-~ Touch Catering
Events excluding: (1) the amount of any federal, State or local sales or other such tax
collected in connection with a ~ Touch Catering Event; (2) the amount of any
gross receipts, rent or similar tax; (3) gratuities collected by l~a~en--6 Touch Catering
and for the benefit of Ba#en-6~ Touch Catering's employees; (4) service or discount
charges or fees on credit or debit card sales; (5) bulk or other sales not in the ordinary
course of business; (6) sales made by Bartsn--G Touch Catering at cost; (7) meals
consumed by l~a~-6~ Touch Catering's on-duty personnel at no cost to such
personnel; (8) amounts received for labor billed to third parties; and (9) amounts
received from wardrobe checking. The parties acknowledge that food and beverage
sales shall exclude any amounts charged or received with respect to aspects of a ~a#en
6 Touch Catering Event other than food and beverages (e.g., entertainment, decor,
flowers, linens, etc.).
(x) "Food and Beverage Sales" shall mean the Gross Receipts from
Services provided at the Facility, exclusive of Touch Catering Receipts.
(aa) "Gross Receipts" shall mean the total amounts received by
Concessionaire or its Affiliates from the provision of Services hereunder, whether arising
from sales, rentals, license fees, concessions fees or other payments, and whether
evidenced by cash, check, credit, charge account or otherwise and shall include the
amounts received from the sale of all Food and Beverage Items at the Facility, together
with the amount received from all orders taken or received at the Facility, whether such
orders be filled from there or elsewhere, less only: (1) the amount of any federal, State
or local sales or other such tax collected in connection with the sale of Food and
Beverage Items and paid to the appropriate Governmental Authority; (2) the amount of
any gross receipts tax, rent tax or similar tax; (3) gratuities collected by or for the benefit
of Concessionaire's employees; (4) the amount of any Sales made to the City or its
designee, or a third party at the request of the City or its designee in accordance with
Section 6.1(k); (5) service or discount charges or fees on credit or debit card sales; (6)
bulk or other sales not in the ordinary course of business; (7) sales or rentals made by
Concessionaire at cost; (8) meals consumed by Concessionaire's on-duty personnel at
no cost to such personnel; (9) amounts received by Concessionaire for labor billed to
third parties; (10) amounts received by Concessionaire from wardrobe checking; and
(11) 6 Touch Catering Receipts.
(nn) "Social Catering Surcharge" shall mean anon-commissionable fee charged by
the City or S11~ Global Spectrum for items and services provided by the City in
connection with Social Catering Events in accordance with Exhibit "B" attached hereto.
The parties acknowledge and agree that the Social Catering Surcharge shall be paid in
lieu of the usual space rental fee charged by the City or ~AAG Global Spectrum in
connection with Events. The Social Catering Surcharge shall be based on actual
persons served or guaranteed for such Social Catering Event, whichever is greater, and
in accordance with final client settlement by Concessionaire or Touch Catering 6,
as the case may be, for such Social Catering Events. The Social Catering Surcharge is
$5.00 per person, subject to adjustment as provide in Exhibit "B."
(oo) "Subcontractor Sales" shall mean the amounts received by Concessionaire
from any subcontractor of Concessionaire hereunder. The parties acknowledge and
{0946-168-00022527.DOC - }
agree that for purposes of this Agreement, ~a+~ep-6 Touch Catering shall not be
deemed a subcontractor of Concessionaire.
3. Section 2.2(d) of the Agreement is amended as follows:
Notwithstanding anything to the contrary contained in this Agreement, in no event
shall any waiver of any exclusive right granted to Concessionaire include or pertain to
the sale of alcoholic beverages, and Concessionaire shall be the sole provider of
alcoholic beverages at the Facility; provided, however, that Touch shall be permitted to
serve alcoholic beverages at Touch Events.
4. Section 5.3 of the Agreement, entitled "°^^~~°' °°^~; Commissions
D°°°^~° ~~ ~^~'°," is amended as follows:
(b) 6 Touch Catering Receipts. Concessionaire shall pay
Commissions on ~a#sp-6 Touch Catering Receipts during each Contract Year at the
rate of Twenty-Two and One-Half percent (22.5%).
5. Section 5.6(a) of the Agreement is amended as follows:
~ On or before the fifteenth (15th) day of the month
immediately succeeding any month during which Services are rendered by
Concessionaire as provided in this Agreement, Concessionaire shall deliver to the City
Manager or his designee a complete and accurate report in sufficient detail showing the
Concessionaire's Gross Receipts, and ~a+#~-~ Touch Catering Receipts, if any, from
Services for such month and the Commissions payable by Concessionaire hereunder,
which Commissions shall be paid contemporaneously therewith to the City Manager or
his designee.
as follows:
6. Section 6.1 of the Agreement, entitled "General Standards," is amended
(d) In addition to the types of food and beverage products typically found at
facilities comparable to the Facility, Concessionaire shall provide such specialty and
premium/gourmet items, including Branded Products and local specialties and "heart
healthy" items, as shall be reasonably required by the City Manager or his designee, so
long as (i) the cost, quality, sales prices and other terms of sale of such Branded
Products are at least comparable to other Food and Beverage Items selected by
Concessionaire for sale at the Facility; (ii) Concessionaire's operating profit from the sale
of any such Branded Product is not materially less than the operating profit realized from
competing Food and Beverage Items selected by Concessionaire for sale at the Facility;
and (iii) Branded Products are reasonably available in quantities needed for the
Services. Concessionaire acknowledges and agrees that any payments made by a
supplier for the right to have its Branded Products sold at the Facility shall be retained by
the City and shall not be included in Gross Receipts. In the event that a particular
Branded Product does not meet the requirements of subsections (d)(i) - (iii) hereof, but
the City Manager or his designee still desires to use such Branded Product,
Concessionaire's obligation to sell such Branded Product at the Facility shall be subject
to the parties' agreement on an adjustment to the financial arrangements described in
Article 5, so that Concessionaire's sale of that particular Branded Product will not have a
materially adverse effect on Concessionaire's net profits from the performance of
{0946-168-00022527.DOC - }
Services under this Agreement. In the event Concessionaire and the City are unable to
agree as to whether a particular Branded Product meets the requirements of
subsections (d)(i) - (iii) hereof, then the City Manager and/or his designee shall give
Concessionaire written notice, and promptly thereafter the parties will submit the issue
for consideration to a mutually agreed upon independent third party familiar with the food
service industry at comparable facilities in the region where the Facility is located, and
the parties agree to abide by the written determination of such independent third party.
Any such independent third party shall not be any Person that competes with
Concessionaire. Any such independent third party shall be required to sign a non-
disclosure agreement and shall not be any Person that competes with Concessionaire.
Concessionaire shall not be required to incur any out-of-pocket expense in connection
with Branded Products, including, without limitation, the cost of selling soft drinks in
custom bottles (as opposed to the cost of selling such drinks as fountain drinks) or the
cost of fitting out space or purchasing equipment in connection with any Branded
Products, and shall have the right to deduct any franchise or other fees and charges
required to be paid to the sponsor, or increased costs associated with the Branded
Product, from the Commissions payable under this Agreement.
Notwithstanding the foregoing, Concessionaire shall not be obligated to sell any
Branded Products, with the exception of Coca-Cola, at or in connection with a ~a~en-~
Touch Event.
follows:
7. Section 6.4 of the Agreement, entitled "Event Duties" is amended as
(b) All Clients using the Facility shall maintain appropriate insurance
coverage including, without limitation, adequate liability coverage. The parties
acknowledge and agree that all Clients other than Social Catering Event Clients shall
deal directly with SAA& Global Spectrum regarding the foregoing requirement. The
parties further acknowledge and agree that Clients hosting Social Catering Events shall
have the option to satisfy this requirement by accepting the general liability insurance
purchased by ~AA6 Global Spectrum as part of the Social Catering Surcharge imposed
by S~~ Global Spectrum with respect to such Event. In the event such Client elects not
to accept the Global Spectrum insurance, Concessionaire shall require that such
Client separately maintain the coverage required hereunder. In all events, copies of
these certificates shall be furnished to the City Manager or his/her designee prior to any
Event and shall be kept in force at all times by the Client. All liability policies shall name
the City and Concessionaire as additional insureds. Concessionaire shall also require
Clients to execute a written indemnification, indemnifying, defending and holding
harmless the City and Concessionaire (the form of such indemnity provisions to be
subject to the City Attorney's approval, not to be unreasonably withheld). For ~a~ter~-~
Touch Catering Event(s) at the Facility, Client Contracts entered into by ~a#~-~ Touch
Catering shall also require compliance with this Section 6.4(b).
8. Section 6.12 of the Agreement, entitled "Barton G Events1" is amended
as follows:
6.12 Sarten--6 Touch Catering Events The_ parties acknowledge and agree _
that ~arter~-6~~Touch ~ Caterinq may render Services at select Events at the Facility
pursuant to the ~ Touch Catering Agreement, and that for each ;ten-6 Touch
Caterinq Event, Sartep-~ Touch Catering will be responsible for negotiating and entering
{0946-168-00022527.DOC - }
into the Client Contract and performing all the duties set forth in this Article 6 with
respect to such ~a~e-~-6 Touch Catering Event including, without limitation, compliance
with Section 6.4(b). The City agrees that, except as set forth on Exhibit "C" attached
hereto, neither the City nor ~1A6GIobal Spectrum shall charge ~a~sn-~ Touch Catering
for use of the Facility or any Facility Services in connection with a ~a~ten-8 Touch
Catering Event. For the avoidance of doubt, the parties acknowledge and agree that if a
~artep-6 Touch Catering Event is held in connection with a trade show, convention,
corporate meeting or other such Event, the party booking the Event will be required to
book all rooms (including any space used for the 6 Touch Catering Event)
through the City or ~{6Global Spectrum and the usual space rental fee will apply. In
such case, the City shall not require the payment of the Social Catering Surcharge
specified on Exhibit "B."
9. Section 10.17 of the Agreement, entitled "Relationship with Barton G," is
amended as follows:
10.17 Relationship with Touch Catering ~. T"~ne~ -~eF ~^
ci,,~s-~c;eio~~°~-ir~tc~k~i~s-Agreer~er~+~~ensess+e~aire- Concessionaire shall
promptly notify the City Manager or his designee in the event that Concessionaire and
@artsn-6 Touch Catering end their contractual association at any time during the Term
of this Agreement. Concessionaire acknowledges and agrees that any replacement for
~a~tea-6 Touch Catering shall be subject to the prior written approval by the City
Manager or his designee.
10. Exhibit B of the Agreement, entitled "Social Catering Surcharge," and
Exhibit C of the Agreement entitled "Permitted Charges to Barton G in connection with Barton G
Events," are amended to replace all references to "Barton G" therein with "Touch Catering."
11. No Further Modifications. Except as provided in this Amendment No. 1,
the Agreement remains unmodified and in full force and effect.
{0946-168-00022527.DOC - }
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
ATT ST:
~ ~a~ cll~
City Clerk
ATTEST:
Secretary
CITY OF MIAMI BEACH, FLORIDA
tY na9er
~ " . - day of ~/~~ Rte, 2009.
SERVICE AMERICA CORPORATION d/b/a
CENTERPLATE
C:\Documents and Settings\infosklmWly Documents\Centerplate Amendment No. 1_2008.doc
APPROVED AS TO
FORM & LANGUAGE
8~ FOR EXECUTION
l Z t5~ ~9
ome to
{0946-168-00022527.DOC - }
day of D~'612 2009.
JEFFERS & IRELAND
PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
55 WALLS DRIVE
FAIRFIELD, CONNECTICUT 06824
KAREN A. JEFFERS
PAMELA T. IRELAND
STEPHEN M. COWHERD
CAROLYN R. LINSEY
JASON A. MARSH
MICHELLE S. GOGLIA
STEPHANIE E. SPRAGUE
October 12, 2009
Via Federal Express
Max Sklar, Director
City of Miami Beach
Tourism and Cultural Department
1700 Convention Center Drive
Miami Beach, FL 33139
Re: Centerplate
Dear Max:
TELEPHONE (203) 259-7900
TELECOPIER (203) 259-1070
WWW.JEFFIRE.COM
I have enclosed three copies of Amendment No. 1 between the City of Miami Beach and
Centerplate, which have been executed on behalf of Centerplate.
I have not filled in the date on the first page of the Amendment, but would suggest March
9, 2009, which is the date that Centerplate's agreement with Touch became effective.
Once the Amendment has been executed on behalf of the City, please send me a fully-
executed original. (If the City needs to retain all three of the originals signed by Centerplate,
please have the City execute a fourth copy and send it to me.)
If you have any questions whatsoever, please do not hesitate to call me.
Ve t y yours,
Karen A. Jeffers
KAJ:pad
Enclosure
cc.: Elizabeth Damien
Eric Bayne
{0946-168-00022694.DOC - }
Page 1 of 1
Parcher, Robert
From: Sklar, Max
Sent: Thursday, December 17, 2009 5:04 PM
To: Parcher, Robert
Subject: Re: Centerplate Catering Concession
Yes. The agreement specifically says the manager has the authority. It's the last page of the agreement, just
before signature page.
Who's asking?
MIAMI BEACH
Max A. Sklar, Director
Tourism and Cultural Development
Mailing Address:
1700 Convention Center Drive, Miami Beach, Florida 33139
Physical Address:
555 17th Street, Miami Beach, Florida 33139
Tel: 305.673.7577 /Fax: 786.394.4560/ maxsklar@miamibeachfl.gov / www.miamibeachfl.gov
www.visitmiamibeach.us
www. mbculture.org
www.eventsmiamibeach.com
www.filmmiamibeach.com
www.sleeplessnight.org
From: Parcher, Robert
To: Sklar, Max
Cc: Hernandez, Kerry
Sent: Thu Dec 17 17:01:26 2009
Subject: Centerplate Catering Concession
Max, can an amendment to the original agreement be changed from Barton G to Touch without going to the
Commission?
Bob
MIAMIBEACH
Robert Percher, City Clerk
CITY CLERK'S OFFICE
1700 Convention Center Drive, Miami Beach, FL 33139
Tel: 305-673-7411 /Fax: 305-673-7254 / mrww.miam~t eachfl.gov
We are committed to providing excellent public service and safety to all who live, work and play in our vibrant, tropical, historic community.
12/18/2009