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Amendment No. 1 to the Agreement with Service America Corporation D/B/A Centerplate for Catering Concessions 26t- 29 .69 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 is made effective as of July 1, 2016 ("Effective Date"), 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 2187 Atlantic Street, Stamford, CT 06902 ("Concessionaire" or "Centerplate"), and hereby amends the Catering and Concessions Services Agreement dated as of June 5, 2013 (the "Agreement"), as follows: BACKGROUND The City is the owner of the Miami Beach Convention Center (the "Convention Center" or "Facility") located in the City of Miami Beach, Florida. On June 5, 2013, the City adopted Resolution No. 2013-28241, accepting the proposal submitted by Centerplate pursuant to the ITN, and the parties thereby executed the Agreement as of June 5, 2013. The initial term of the Agreement expires on June 30, 2016. The Agreement provides the parties with the ability to exercise a renewal option for two successive one year periods, through June 30, 2018. In view of the City's construction of the Miami Beach Renovation and Expansion Project, and the Convention Center's Construction Period Booking Policy, which will result in a significant reduction in operations at the Facility, the City desires to grant Concessionaire an additional extension of the term, through September 30, 2020, and to modify certain other terms and conditions of the Agreement, as set forth herein. NOW, THEREFORE, in consideration of the mutual premises, covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties intending to be legally bound, hereby agree as follows: 1. The aforesaid recitals are true and correct and incorporated by reference herein. 2. Unless otherwise expressly stated herein, all capitalized terms shall have the respective meanings ascribed in the Agreement. 3. The renewal term of this Agreement ("Renewal Term") shall commence on July 1, 2016 and shall expire at midnight on September 30, 2020 ("Termination Date"), unless earlier terminated pursuant to the provisions of this Agreement. 4. It is anticipated that substantial areas of the Facility will close for renovations during the Renewal Term. The complete Facility "Re-Opening Date" shall occur on the date that a TCO is obtained for the Facility Halls A, B, C and D and the new North Ballroom, or on the date that the Facility Halls A, B, C and D and the new North Ballroom are otherwise substantially completed such that events open to the general public may take place therein. The City currently anticipates that the Re-Opening Date shall occur on or about October 1, 2018. If the actual Re-Opening Date occurs after October 8, 2018, the Renewal Term shall be extended on a monthly basis for every month that the Re-Opening Date is delayed. For purposes of illustration only, if the Re- Opening Date is October 8, 2018, the Termination Date shall remain September 30, 2020; if the Re-Opening Date is October 9, 2018, the Termination Date shall be October 30, 2020; if the Re-opening Date is November 1, 2018, the Termination Date shall be November 30, 2020. 5. Section 4.2 is hereby deleted and replaced with the following: 4.2. Additional Capital Investment. Concessionaire shall directly invest $400,000.00 ("Additional Investment") toward food service capital projects ("Additional Investment Expenditures"), with the nature and scope of such Additional Investment Expenditures to be made by mutual agreement of the parties. Concessionaire shall procure up to twenty-five percent (25%) of Additional Investment ($100,000.00) within fifteen (15) days after the parties agree to such items, and shall invest the remaining seventy-five percent (75%) of the Additional Investment, ($300,000.00) on mutually-agreed Additional Investment Expenditures, sixty (60) days prior to the opening of the new North Ballroom to the public. 6. Section 4.3 is deleted in its entirety and replaced with the following: 4.3. Amortization Schedule/ Title. (a) Amortization Schedule. All Additional Investment Expenditures shall be amortized and/or depreciated pursuant to Generally Accepted Accounting Principles. (b) Title to Facility Goods. All costs associated with acquiring the tangible Facility Goods or Additional Investment Expenditures purchased with the Additional Investment shall be included in such Additional Investment. Title to all such tangible Facility Goods or Additional Investment Expenditures shall remain in Concessionaire, until the earlier of: (i) the respective Additional Investment Expenditures are fully amortized (subject to the limitations for amortization as set forth in subsection (a) above), or (ii) until City's payment of the amount required pursuant to Section 9.5(a). When the Additional Investment Expenditures have been fully amortized (subject to the time limitations for amortization as set forth in subsection (a) above), or upon payment _ _ of the amount required to be paid by City pursuant to Section 9.5(a), all right, title and interest in and to all Facility Goods or Additional Investment Expenditures acquired with the Additional Investment shall vest in the City. 7. Section 4.4 of the Agreement and all other aspects of the Additional Investment and Additional Investment Expenditures shall remain in full force and effect. 8. No Minimum Annual Rent shall be owed to the City during the Renewal Term. All references to the Minimum Annual Rent in Sections 5.1, 5.2 or other sections of the Agreement are hereby deleted. 9. Section 5.3 Commissions is hereby modified as follows: (i) Concessionaire shall pay Commissions to the City in the amount of twenty percent (20%) of all Gross Receipts; and (ii) the step-scale tiers of 20% to 40% Commissions based on achievement of specified annual Gross Receipt thresholds are hereby eliminated. 10. The definition of Gross Receipts in Section 1(v) is hereby modified as follows (with additions appearing as underlined and deletions as strike throughs): "Gross Receipts" shall mean the total amounts received by the Concessionaire from the provision of Services hereunder, whether arising from sales, rentals, license fees, concessions fees., administrative fees, or other payments, and whether evidenced by cash, check, credit, charge account or otherwise, and shall include, without limitation, 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, fees or other charges collected by or for the benefit of Concessionaire's employees as part of their compensation; (4) the amount of any Sales made to the City, or to a third party at the request of the City; (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 from wardrobe checking. For purposes of clarification, any and all service charges and/or administrative fees collected by Concessionaire prior to the Effective Date of this Amendment are excluded from Gross Receipts, provided, however, that after the Effective Date of this Amendment, all such service charges and/or administrative fees collected by Concessionaire shall be included as part of the Gross Receipts. 11. Section 5.5, Capital Reserve Fund, is hereby deleted in its entirety. 12. Section 5.6, Marketing Reserve Fund is hereby deleted and replaced with the following: Section 5.6. Marketing Reserve Fund. Beginning thirty (30) days following the Re- Opening Date, and each Contract Year on an annual basis thereafter during the Renewal Term, Concessionaire shall contribute to the Marketing Reserve Fund an amount equal to the greater of $50,000 or one percent (1%) of all Gross Receipts. The Marketing Reserve Fund shall be used by Concessionaire to promote the food and beverage offerings (catering, concessions, etc.) at the Facility. Expenditures made with the Marketing Reserve Fund must be mutually agreed upon by Concessionaire and City, in writing, prior to any such expenditure being made. Unused amounts in the Marketing Reserve Fund shall be carried forward from year to year. Any funds remaining in the Marketing Reserve Fund at the end of the Renewal Term shall be paid to the City. Concessionaire will furnish the City Manager annually (no later than September 1 of each Contract Year) with a statement of amounts expended from the Marketing Reserve Fund during the preceding Contract Year. 13. Section 5.7, Scholarships, is hereby deleted in its entirety. 14. Notwithstanding any provision in Section 6.8 to the contrary, Concessionaire shall not be responsible for equipment repairs or maintenance at the Facility during the period of construction prior to the Re-Opening Date, provided, however, that Concessionaire shall be responsible, at its sole cost and expense, for repairs and maintenance of the temporary kitchen equipment referenced in Exhibit A hereto and utilized by Concessionaire during the construction period. Concessionaire shall use the temporary kitchen agreement in accordance with the provisions of Exhibit A attached hereto, and shall comply with all requirements therein. 15. The parties understand and agree that the Facility will undergo substantial renovations during the Renewal Term. Notwithstanding anything to the contrary in the Agreement, Concessionaire shall be permitted to take such renovations into account in the management of its costs during the construction period prior to the Re-Opening Date. 16. Other than its own customary operating expenses, Concessionaire shall not be responsible for any costs or expenses incurred by the City or its vendors and other third parties due to any delay of the Re-Opening Date. 17. Except as expressly set forth in this Amendment No. 1, all other terms and conditions set forth in the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, this Amendment No. 1 to the Agreement has been duly executed by the parties hereto as of the day and year first above written. ATTEST: CITY OF MIAMI BEACH, FLORIDA „,/ 41 . , / /. By. I!/ Raf.eI Gran:.0, Cit CI: rk `4,O� Philip -`' Mayor • 7” .INCORP ORATED, s his N is 4h261' ATTEST: ol'‘RVICE AMERICA CORPORATION d/b/a CENTERPLATE By: Corporate Secretary Name:/n ' #�^rA- P ry ''7 Title: era Date: 4. z s ., APPROVED AS TO FORM&LANGUAGE &FOR EXE ION "t )kk__Ljcv 416/0 City Attorney pp,? ate Exhibit A RENTAL EQUIPMENT/TERMS OF USE Background Baring Industries ("Baring Industries") is a subcontractor to Clark Construction Group, LLC on the Miami Beach Convention Center Renovation and Expansion Project. Baring has entered into a rental agreement with Mobile Kitchen Systems, LLC ("MKS"), for the rental of certain kitchen and other specified equipment ("Equipment"). MKS, through Baring, has delivered the Equipment to the Project Site. The Equipment has been made available to the City for use by Concessionaire. The following terms and conditions memorialize Concessionaire's agreement with respect to the use of the Equipment. 1. CITY'S LICENSE TO USE THE EQUIPMENT. Concessionaire agrees to use the Equipment subject to the terms and conditions set forth herein. 2. RECEIPT & INSPECTION OF EQUIPMENT. Concessionaire has inspected the Equipment prior to taking possession thereof, finds it in good working order, and suitable for Concessionaire's and City's needs. City and Centerplate are familiar with the proper operation and use of each item of Equipment. Centerplate has inspected all hitches, bolts, safety chains, hauling tongues and other devices and materials used to connect the Equipment to City's towing vehicle, if any. 3. USE OF EQUIPMENT. Concessionaire shall not use or allow any other party to use the Equipment: (a) for an illegal purpose or in an illegal manner, (b) without a license, if required under any applicable law, or (c) by any person who is not qualified to operate it. Concessionaire shall comply with all applicable municipal, state, and federal laws, ordinances and regulations (including O.S.H.A.), which may apply to the use of the Equipment. Concessionaire shall check filters, oil, fluid levels and tire air pressure, and shall clean and visually inspect the Equipment daily and to immediately notify City when Equipment needs repair or maintenance. 4. MALFUNCTIONING EQUIPMENT. Should the Equipment become unsafe, malfunction or require repair, Concessionaire shall immediately cease using the Equipment and immediately notify City. If such condition is the result of normal operation, pursuant to the terms of their agreement, Baring Industries or MKS will repair or replace the Equipment with similar Equipment in working order, if such replacement Equipment is available. Baring Industries has no obligation to repair or replace Equipment rendered inoperable by City's or Concessionaire's misuse, abuse or neglect of the Equipment. 5. RETURN OF EQUIPMENT,DAMAGED AND LOST EQUIPMENT. At the expiration of the Rental Period in the agreement between Baring and MKS, City shall permit Baring Industries to return the Equipment to MKS. Concessionaire shall be responsible for damage to the Equipment caused by the negligence or willful misconduct of Concessionaire while the Equipment is in Concessionaire's possession and control. City shall return the Equipment to Baring in the condition and repair as when delivered to City, subject to reasonable wear and tear, as defined below. If the Equipment is returned in a damaged or excessively worn condition, Concessionaire shall be responsible for the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed. 6. FOR USE BY QUALIFIED TECHNICIAN ONLY. The Equipment may be used only by Concessionaire's qualified employees and/or agents and in strict accordance with the use contemplated herein. City shall keep the Equipment in City's or Centerplate's sole custody and shall not permit the Equipment to be used in the violation of any county, municipal, state, federal, or regulatory laws or ordinances. 7. REASONABLE WEAR AND TEAR. Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use(8 hours per day, 40 hours per week). The following shall not be deemed reasonable wear and tear: (a) damage resulting from lack of lubrication or maintenance of necessary oil, water and air pressure levels; (b) except where Baring Industries or MKS expressly assumes the obligation to service or maintain the Equipment, any damage resulting from lack of service or preventative maintenance suggested in the manufacturer's operation and maintenance manual; (c) damage resulting from any collision, overturning, or improper operation, including overloading or exceeding the rated capacity of the Equipment; (d) damage in the nature of dents, bending, tearing, staining and misalignment to or of the Equipment or any part thereof; (e) wear resulting from use in excess of shifts for which rented; and (f) any other damage to the Equipment which is not considered ordinary and reasonable in the equipment rental industry. Repairs to the Equipment shall be made to the reasonable satisfaction of Baring Industries and in a manner, which will not adversely affect the operation, manufacturer's design or value of the Equipment. 8. INSURANCE REQUIREMENTS. Concessionaire shall maintain in full force and effect insurance covering all Equipment rented, from all sources, for full replacement cost (without deductions for depreciation), except vehicles which are at actual cash value, and for loss of use (rentals) of the Equipment. Concessionaire shall deliver to City and Baring Industries, upon request, evidence of the insurance coverage, by way of a Certificate of Insurance satisfactory to Baring Industries, showing Liability Coverage, Property Insurance and Workers Compensation Insurance maintained by Concessionaire, as applicable. Such insurance shall be written by reputable insurers acceptable Baring Industries,and shall be primary. 9. KITCHEN AND CATERING EQUIPMENT. Equipment must be returned in its original clean state or cleaning charges will apply at $265.00 per man-hour plus materials. Concessionaire shall be responsible for replacement of equipment due to damage through negligence of the Concessionaire, or if due to acts of god, as well as security,upkeep, maintenance,and repairs to the Equipment while in its possession.