HomeMy WebLinkAboutR-03-0913J-03-793
09/02/03
RESOLUTION NO. 93— 913
A RESOLUTION OF THE MIAMI CITY COMMISSION,
WITH ATTACHMENT(S), AUTHORIZING THE CITY
MANAGER TO EXECUTE A CONCESSIONS AGREEMENT
("AGREEMENT"), IN SUBSTANTIALLY THE ATTACHED
FORM, WITH BOSTON CONCESSION SERVICES TO
PROVIDE CONCESSION SERVICES AT THE ORANGE
BOWL STADIUM ("STADIUM"); AND APPROVING A
REDUCTION IN THE MINIMUM GUARANTEE FOR THE
STADIUM BY AN AMOUNT EQUAL TO $30,000 PER
GAME PLAYED BY THE UNIVERISTY OF MIAMI AS SET
FORTH IN THE PROPOSED AGREEMENT PURSUANT TO
RESOLUTION NO. 03-842, ADOPTED JULY 24, 2003.
WHEREAS, pursuant to Resolution No. 03-842, adopted July 24,
2003, the City Commission authorized the City Manager to
negotiate a Professional Services Agreement ("Agreement") with
Boston Concession Services ("Concessionaire"), in substantially
the form; and
WHEREAS, subsequent to the adoption of Resolution
No. 03-842, the City of Miami agreed to restrict the vending of
beer in the stands of the Orange Bowl Stadium during University
of Miami ("UM") football games to promote a safer environment;
and
CITY COMUSS3ON
F.EETING OF
IS F F' 0 5 2003
Resolution No.
0)3- 913
M
WHEREAS, as a result of such vending restriction in the
stands, the Concessionaire has requested a reduction of the
Minimum Guarantee in an amount of $30,000 per UM football game,
which is a modification to the proposed Agreement attached to
Resolution No. 03-842;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are adopted by reference and
incorporated as if fully set forth in this Section.
Section 2. The City Manager is authorized:1 to execute
an Agreement, in substantially the attached form, with Boston
Concession Services to provide concession services at the Orange
Bowl Stadium.
Section 3. A reduction of the Minimum Guarantee for the
Orange Bowl Stadium by an amount equal to $30,000 per UM game, as
set forth in the proposed Agreement, authorized pursuant to
Resolution No. 03-842, adopted July 24, 2003, is approved.
1� The herein authorization is further subject to compliance with
all requirements that may be imposed by the City Attorney,
including but not limited to those prescribed by applicable
provisions of the City Charter and Code.
Page 2 of 3 03- 913
Section 4. This Resolution shall become effective
immediately upon its adoption and signature of the Mayor.21
PASSED AND ADOPTED this 5th day of September 2003.
M7r EL A. DIAZ, MAYOR
ATTEST:
RISCILLA A. HOMPSON
CITY CLERK i
PREPARE 'AS FOI AND CORRECTNESS :/
LLO
CY2Y ATTORNEY
W7508:tr:AS:BSS
2/ If the Mayor does not sign this Resolution, it shall become
effective at the end of ten calendar days from the date it was
passed and adopted. If the Mayor vetoes this Resolution, it
shall become effective immediately upon override of the veto by
the City Commission.
Page 3 of 3 03- 913
CONCESSION AGREEMENT
between
CITY OF MIAMI
and
BOSTON CONCESSIONS GROUP, INC.
dated
2003
M)3 913
CYL5
CONCESSION AGREEMENT
THIS AGREEMENT made and entered into this day of
, 2003, by and between the City of Miami, Florida, a municipal
corporation of the State of Florida, (hereinafter referred to as "City"), and Boston
Concessions Group, Inc., a corporation duly organized and existing according to the laws
of the State of Wisconsin and having an usual place of business at 55 Cambridge
Parkway, Cambridge, Massachusetts 02142 (hereinafter referred to as "Concessionaire").
RECITALS
WHEREAS, the City has issued a Request for Proposals ("RFP") for the operation of the
food, beverages and related services and other authorized concessions at the Miami
Orange Bowl (the "Facility"); and
WHEREAS, Concessionaire submitted its proposal ("Proposal") which has been selected
as the most qualified proposal for the provision of the concessions. The RFP and the
Proposal are sometimes referred to herein, collectively, as the Solicitation Documents,
and are by this reference incorporated into and made a part of this Agreement.
WHEREAS, the Commission of the City of Miami, by Resolution No.
adopted on , 2003, approved the selection of
Concessionaire and authorized the City Manager to execute a contract, under the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and of the terms, covenants and
conditions hereinafter contained to be kept and performed by the respective parties, it is
agreed as follows:
DEFINITIONS
A. "Location" means the Orange Bowl Stadium, located at 1501 Northwest 3rd
Street, Miami, Florida 33125.
B. "Concessions" means the sale of Concession Products (hereinafter defined) in the
Concession Areas (hereinafter defined) to patrons of events at the Location, and
all operations necessarily incidental to such sale in accordance with the provisions
of this Agreement.
C. "Concession Areas" means all food and refreshment stands and vending areas in
the interior of the Location and in the area between the exterior of the Orange
Bowl Stadium structure and the green picket fence surrounding the structure.
"Concession Areas" does not mean the Press Boxes, tenant office spaces, City's
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office space, City's operations spaces, Athletic Club, or any adjacent areas outside
the confines of the Location.
D. "Concession Products" means all food, beverages (alcoholic and nonalcoholic),
candy, and similar products, as well as Approved Novelties (hereinafter defined)
which the City directs or allows the Concessionaire to sell to patrons of events in
the Concession Areas pursuant to this Agreement.
E. "Manager" means the Miami Orange Bowl Stadium Manager or his/her
designee, or any other person designated by the City in writing.
F. "Novelties" means music tapes, CD's, videotapes, T-shirts, caps, pennants,
jackets, programs, souvenir books or other printed matter of like nature, and the
sale of said Novelties is outside the scope of this Agreement. Concessionaire
shall not sell any Novelties, other than Approved Novelties (hereinafter defined),
unless specifically authorized by the City.
G. "Approved Novelties" means specific novelty items that do not pertain to any
specific event, activity, program or User of the Location (as hereinafter defined)
which the City has approved in writing, for sale by the Concessionaire in the
Concession Areas.
H. "User" means any person or persons, group or groups, other than the City, who
use any or all portions of the Location, for the purpose of conducting
entertainment, sporting or other events and/or activities.
I. "Gross Receipts" means all moneys received by, or due to, the Concessionaire
for sales made or services rendered at or from the concessions, or from any other
source related directly or indirectly to the concessions, including catering and
merchandising revenues ("Merchandising Revenues", and revenues from
Subcontractor Items (hereinafter defined), whether collected or uncollected, for
cash or for credit. Gross receipts includes all moneys from any temporary and
permanent concession stands and sales by Concessionaire's employees or any
others acting on behalf of Concessionaire, whether made from temporary or
permanent stands, or to customers in the seating areas or concourse areas by
Concessionaire's employees or others acting on behalf of Concessionaire. These
individuals are sometimes referred to as Concessionaires, traveling
concessionaires, hawkers or hustlers, whether collected or uncollected, for cash or
credit, provided however, that any sales taxes imposed by local or federal law
which are separate to, and paid by, purchaser of any item sold by the
concessionaire or any other authorized service or activity of the Concessionaire
and directly payable to a taxing authority shall be excluded from the computation
of "Gross Receipts." Gross Receipts shall be computed prior to any deduction for
"spoilage" or "shortage." Inventory disappearances or shrinkage's up to a
maximum of one percent (1%) of gross receipts are excluded from the "gross
receipts" provided, that any such inventory disappearances or shrinkage's must be
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immediately reported to the City. Gross Receipts also includes all amounts
received by the Concessionaire from sales made by Subcontractors. Gross
receipts shall be maintained for accounting purposes in a segregated account
acceptable to the City, which shall be with a bank located within the City of
Miami, Florida.
J. "Subcontracted Items" means concession products authorized by the Manager,
in writing, to be sold by Subcontractors, provided, however, that in no event shall
the following items be deemed "Subcontractor Items": hot dogs, sausage
sandwiches, hamburgers, candy, popcorn and potato chips.
K. "Subcontractors" means those individuals hired by the Concessionaire to sell
Subcontracted Items which have been authorized by the City, in writing, to be
sold or provided by an approved subcontractor.
L. "UM" means The University of Miami.
M. "UM Agreement" means the Use Agreement dated June 22, 1990 between the
City and UM, as amended and extended, and as it may be amended from time to
time.
II.
LICENSE GRANTED
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from
the City, the exclusive right and privilege to operate the Concessions in the Concession
Areas in accordance with the terms and provisions set forth herein. The license herein
granted is also referred to herein as the "Concession". The Concessionaire agrees to
operate the Concessions in accordance with, and perform all of the services and assume
all of the obligations set forth in, the Proposal, as supplemented or amended in this
Agreement.
The Concessions hereby granted shall apply to all events conducted at the Location
during the term of this Agreement, provided, however, that the City retains the right to
authorize UM to give away to patrons of UM events food and beverage samples, free of
charge, in UM's tail gate areas, as depicted in the sketch attached hereto as Exhibit "A".
The Concession herein granted also grants the Concessionaire the right to hire
Subcontractors to sell Subcontractor Items provided that the Subcontractors and the
Subcontracted Items are first approved by the Manager in writing. In such event the
Concessionaire shall 1 be fully responsible for the Subcontractor's performance
hereunder. The Manager retains the right to reject a proposed Subcontractor or the
Subcontracted Items, in his/her sole discretion.
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The City agrees that, upon leasing, licensing or granting the use of the Location to Users,
it will not grant any rights for Concession Products to any User other than as herein
excepted.
III
TERM
The term of this Agreement shall be for an initial period of three (3) years commencing
on the date hereof. The City shall have two (2) options to extend the term, each for a
period of (2) years at the City's sole discretion. The City shall exercise each option by
the City Manager giving written notice of the City's exercise to the Concessionaire at
least ninety (90) days prior to the expiration of the then current term.
IV
CONSIDERATION/LETTER OF CREDIT
In consideration for the concessions privileges herein granted, the Concessionaire agrees
to pay to the City the greater of (a) Minimum Guarantee (the "Guarantee"), or (b) a
percentage of Gross Receipts (the "Percentage Fee"), as follows:
(a) Minimum Guarantee:
(i) $835,000 for each UM 6 game season, or
(ii) $905,000 for each UM 7 game season (the "Guarantee");
(b) Percentage Fee: The Percentage Fee shall be based on a percentage
of f Gross Receipts, as set forth below, and shall be paid to the City on the
tenth (10th) day of each month during the Term, for sales during the
immediately preceding month:
Concession Food and Beverage 42.0%
Alcoholic Beverages 50.0%
Merchandising 25.0%
Subcontracted Items 60.0%
Catering 25%
On the fifteenth (15th) day of each month, together with the payment of the Percentage
Fee, Concessionaire shall deliver to the City a report of Gross Receipts for the preceding
month, in such form as is acceptable to the City, detailing each source of sale and such
additional information as the City may reasonably require (the Monthly Gross Receipt
Report"). If such payment is not received by the 15th day of the month, Concessionaire
shall be subject to a 5% late fee which will be assessed on the amount owed to the City of
Miami. Concessionaire shall also submit to the City, simultaneously with the Monthly
Gross Receipt Report, a copy of the monthly State of Florida prescribed Sales and Use
Tax return on an applicable Daily Inventory Report indicating the specific types of
+J3- 913
products sold during the applicable period, including alcoholic and nonalcoholic
beverages sales.
Not later than sixty (60) days after each anniversary date of this Agreement,
Concessionaire shall deliver to the City its annual audited financial statements, for the
immediately preceding year, together with a certification, showing the amount of Gross
Receipts and sources of sales, prepared by a certified public accountant, and certifying
the amount of compensation due and/or paid to the City in accordance with the provisions
of this Section. In the event that the amount paid and/or due to the City is greater than
the amount of the Guarantee, then the Concessionaire shall pay the difference to the City
within ten (10) days after delivery of the annual report. For purposes of this Agreement
each Agreement Year shall consist of a twelve (12) month period ending on each
anniversary date of this Agreement.
Upon execution of this Agreement, Concessionaire shall deliver to the City an
Unconditional Irrevocable Letter of Credit ("L/C") in the amount of $500,000, to secure
Concessionaire's performance under this Agreement. The L/C shall be satisfactory to the
City, in form and substance. The City shall have the right to draw upon the L/C
immediately upon the occurrence of a default. In such event, the Concessionaire shall
have a period of thirty (30) business days in which to replace the L/C by a new one in the
amount of $500,000.
V
ACCOUNTING AND FISCAL CONTROLS
Concessionaire shall provide, at its sole cost and expense, the services of an independent
Certified Public Accountant (CPA) who shall be responsible for the accounting and fiscal
control of the Concession, including, without limitation, daily inventory, sales records,
and revenue reports.. The CPA shall prepare all reports required hereunder.
Concessionaire shall make available to the City a daily opening and closing inventory of
all novelties and/or merchandise on a form approved by the City. Concessionaire shall
keep a record of gross sales of all concession goods and merchandise by category. The
payment of State of Florida Sales Tax on concession goods and merchandise is the sole
responsibility of Concessionaire, and such tax shall be included in the price of the goods
and merchandise. Concessionaire shall allow the City to inspect, check and/or inventory
concession goods and merchandise, inspect the stands and areas prior to opening, both
during the operation or after the close of the concession. Within two (2) after the
conclusion of each event, Concessionaire shall submit a report to the City detailing gross
concession sales by category, applicable taxes and payment due the City.
VI
MAINTENANCE
The Concessionaire shall repair and maintain, at his own cost and expense, all
Concession equipment and furnishings needed to conduct it's operation according to
reasonable standards acceptable to the City. At the expiration of this Agreement,
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Concessionaire shall leave the Concession Areas in at least the same condition, as they
were at commencement of this Agreement, normal wear and tear excepted. Further, the
Concessionaire will furnish, at its own cost and expense, all expendable equipment
necessary to the successful operation of the Concessions and shall replace at its own
expense any equipment provided under the Agreement which has been destroyed,
damaged, or become inoperable due to normal wear and tear, with like equipment. The
City will maintain the below ground level connection lines for water and sewer utilities
during the term of this Agreement. Concessionaire will furnish and maintain all fire
equipment in all concession stands and vending areas as required by the City of Miami
Fire Department.
The City shall not be responsible for any goods, merchandise or equipment stored at the
location; nor, will it be responsible for damage resulting from a power failure, hurricane,
tornado, flood, fire, explosion and/or other causes. Concessionaire shall not maintain,
keep or erect any structure or equipment or make any alterations or additions to the
location without the City Manager's prior express written permission.
The City shall provide all electricity, gas and other utilities, except that utility
connections required for improvements to the Concession Areas installed by
Concessionaire shall be the financial responsibility of the Concessionaire.
The City and the Concessionaire agree that prior to the beginning of each Agreement
Year, a representative of the parties hereto shall inspect the equipment used in the
operation of the Concessions, whether owned by the City or Concessionaire. Should the
City reasonable determine that an equipment is in need of replacement, then
Concessionaire shall, at its sole cost and expense, provide such replacements.
The Concessionaire shall provide, at his own expense, all garbage, trash, and rubbish
receptacles within the confines of its designated areas, and shall provide a sufficient
number of these receptacles for its own use and or the use of the public. Dumping of
such receptacles and the removal of trash, rubbish, and garbage from Concession Areas
shall be the responsibility of the Concessionaire.
The Concessionaire shall provide its own janitorial services, and shall pick up, clean up
and dispose of all litter for all space assigned or used in its operations immediately after
the conclusion of each event. The Concessionaire shall also clean and keep Concession
Areas free of debris before, during and after events. The Concessionaire shall provide
sufficient waste receptacles at each Concession Area and make certain that they are kept
clean and promptly serviced during and after each event.
The Concessionaire shall be responsible for the entire area, except public seating areas
and restrooms, within a radius of twenty-five (25) feet of each stand, vending areas and
work area, and such areas shall be kept clean and free from all rubbish, regardless of the
width of any given concourse.
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Concessionaire shall be responsible for the removal of all vendors' effects from the site
within the time mutually determined by the Manager and the Concessionaire. Any
effects remaining in the site beyond the time allowed for its removal shall be removed
and stored by the City at Concessionaire's sole cost and expense. The intent of this
provision is to avoid slip -and -fall hazards. Repair for damage done by the
Concessionaire to floors, walls, windows or other property in said radius by reason of the
operation of said stand will be the responsibility of the Concessionaire. The
Concessionaire must employ the necessary personnel before, during and after the hours
of any event to comply with these provisions.
The Concessionaire shall comply with and observe all federal, state and local laws,
ordinance and regulations as to sanitation and the purity of food and beverages or
otherwise relating to its operation under this Agreement.
The Concessionaire shall be responsible for arranging for pest control service to ensure
conformance with the State and county health codes. Concessionaire shall provide a copy
of the service agreement of the pest control firm that is retained to the City.
VII
CONCESSION STANDS
The Concessionaire shall re -design and operate all concession facilities or stands
("Stand") as provided in the Proposal, and at the designated and mutually agreed upon
locations. Each Stand shall be attractive, sanitary, and fully self-contained and equipped
for novelty sales, as authorized by the Concessionaire and City. . Stands may be mobile
units brought onto the site, or if stationary, must be easily erected and broken down. Size
and location requirements for Stands are to be determined by the Concessionaire, subject
to the Manager's approval and space limitations for specific locations.
VIII
PERSONNEL
Concessionaire shall comply with all of the provisions, and observe the procedures, set
forth in the Proposal in the staffing of its operations at the Location. Without limiting the
generality of the foregoing, Concessionaire agrees to hire the personnel dedicated to the
Location, primarily from the groups identified in Exhibit `B" which are located within
the City of Miami.
The Concessionaire shall employ, train and supervise personnel with appropriate
qualifications and experience in sufficient numbers to provide all services appropriate for
the operations of the Concessions granted under this Agreement. The Concessionaire
shall be deemed to represent and warrant to the City that all personnel engaged in the
provision of services hereunder is fully qualified to perform such services.
Concessionaire shall have a hiring practice regarding minorities and women, which will
ensure equity in the employment and utilization of same. Concessionaire acknowledges
that it has been furnished a copy of Ordinance No. 10062, the Minority and Women
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Business Affairs Procurement Program Ordinance of the City of Miami, and agrees to
comply with all applicable substantive and procedural provisions therein, including any
amendments thereto.
Concessionaire acknowledges that it has been furnished a copy of City of Miami
Ordinance No. 10032, the First Source Hiring Ordinance, and shall comply with the
applicable provisions including any amendments thereto.
IX
MANAGEMENT / TRAINING PROGRAM
Concessionaire shall designate a general manager for the Location, (the "General
Manager") who shall be responsible for the overall management and operation of the
concessions at the Orange Bowl Stadium. Said General Manager shall remain on call on a
24-hour basis during events at the Location should he/she need to be contacted by the
Manager. In addition, the Manager shall be provided with a telephone number and
beeper where said individual can be reached at all times, 24 hours per day, 7 days per
week. The General Manager shall immediately respond to any requests and/or concerns
by the Manager within a maximum of 24 hours, or immediately on the day of event.
The General Manager and the Manager shall consult from time to time with reference to
the operations of Concessionaire to review such operations to provide concession
services in a proper manner for persons attending the Location. Additionally, prior to an
event, the General Manager and the Manager shall meet to discuss the concessions
operational requirements for the particular event.
X
FOOD QUALITY AND PRICING
Concessionaire shall provide the highest quality of both food and beverage products to
the patrons of the Location, and the City reserves the right to determine, in good faith,
where a particular product or ingredient complies with the aforementioned standard.
Further, the Manager reserves the right to approve the quality of menus and prices to be
offered by Concessionaire. Food and beverages sold in the Location shall be at prices
competitive to other stadiums or arenas in the South Florida area. The Concessionaire
shall not charge prices more than is standard in the industry in the area.
Menu prices shall include all applicable sales taxes.
Concessionaire agrees to use Branded Products whenever requested by the City and will
use its best business efforts in securing rights of current UM sponsors. Concessionaire
acknowledges receipt of the UM Agreement and agrees not to do anything, nor permit
anything to be done on Concessionaire's behalf, that would cause the City to violate any
of the provisions of the UM Agreement.
All products listed on the menu board for sale at any event must be available for sale in
sufficient quantities to meet expected demands at each event. If, during an event,
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Concessionaire runs out of water, beer or soda, it will be required to pay to the City
percentage rent on such products in order to compensate the City for loss revenue. The
amount of the loss revenue shall be determined based on the amount of such products
sold at the last comparable event.
Concessionaire agrees that it shall not subcontract the sale of any of the following items:
soda, hot dogs, sausage sandwiches, hamburgers, candy, popcorn, and potato chips.
Subcontracting with a specific vendor for additional items must be agreed upon in
advance and in writing by the City.
The Concessionaire shall not sell food, beverages, or any other merchandise in glass
containers, or in such other containers that may pose a risk or hazard to the safety of the
customers, participants or spectators in the Location
Should any scheduled event be canceled, the City shall not be liable for losses of the
Concessionaire for sales, spoilage, or any other cause arising from the cancellation of
such event.
The number, size, wording, location, and method of installing advertising signs shall be
subject to the written approval of the Manager.
The Concessionaire shall not use or permit product brand identification on markets, cups,
trays, or advertising displays in the Location without the expressed prior approval of the
Manager, but such product brand identifications will be encouraged if there is a benefit to
the City as determined by the City.
The use of the Concessionaire's logo in association with the Location, or
Concessionaire's use of the name or logo of the City, UM or any other user of the
Location, is prohibited, unless Concessionaire first obtains the prior written consent of
the party's whose name or logo it intends to use.
XI
BEER OR WINE CONCESSIONS
The type of event at which liquor, beer, and/or wine may be sold shall be designated by
the Manager. The final decision as to when, where, if, and which types of alcoholic
beverages may be sold is at the sole discretion of the City. It is agreed and understood
that there shall be no adjustment of the percentage payment to be paid by the
Concessionaire should the City restrict or prohibit the sale of alcoholic beverages at
certain events.
Sales of beer and wine shall be confined to the areas of the Location designated and
approved by the Manager and by the licenses held by the Concessionaire for the sale of
beer and wine. The privilege to sell alcoholic beverages shall be subject to the provision
of all laws of the State of Florida, City, and County of Dade, applicable to the sale of
liquor, wine, and beer. The Concessionaire shall be responsible for obtaining and
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maintaining throughout the term of this Agreement all necessary licenses for the sale of
such beverages, and shall pay all fees and costs incurred for such licenses.
Concessionaire represents and warrants to the City that it currently possesses all
necessary licenses to provide the food and beverage concessions, and specifically the sale
of beer and liquor. The Concessionaire shall comply with and observe all the laws and
regulations governing the serving of such liquors. Violation of this provision shall give
the City the right to terminate this Agreement without notice. Service of such liquors will
be the exclusive right of the Concessionaire, except for service in the Athletic Club, Press
Boxes and the area depicted in Exhibit "A".
The City may prohibit the sale of beer before, during, or after any event, including but
not limited to high school football and or at a specific point in time during the event,
when City deems it proper to do so. This right of prohibition shall not be unreasonably
applied and shall be exercised by the Manager. The Manager, to the extent possible, shall
notify Concessionaire in writing at least one (1) week in advance of the date of any event
at which this right of prohibition is to be exercised.
XII
LICENSES AND TAXES
The Concessionaire shall pay for and obtain all licenses and permits necessary for the
operation of said business, including those required for the on -premise sale of beer and
wine. Concessionaire represents and warrants that it currently has, and at all times during
the term hereof shall maintain, all licenses and permit required for the full and proper
performance of this Agreement.
The Concessionaire specifically agrees to conform to the terms and provisions of the
applicable Retailers Occupational Tax Law and to pay to the State of Florida, promptly
when due, all taxes assessed against the Concessionaire or the City by the State of
Florida. Concessionaire agrees to include the State Sales Tax in all the advertised prices.
Concessionaire further agrees to pay promptly all taxes imposed in connection with its
performance under this Agreement.
The Concessionaire shall pay all social security, unemployment insurance, old age
retirement and other federal and state taxes which are measured by the wages, salaries or
other remuneration paid to persons employed by Concessionaire.
XIII
HOURS/DAYS OF OPERATION
Unless otherwise agreed to by the Manager, the Concessionaire must have the
Concessions open and in operation at any and all events from the time the gates are
opened until the conclusion of the events.
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XIV
CONDITION OF LOCATION/CAPITAL IMPROVEMENTS
The Concessionaire has inspected the Location, including all food service equipment and
facilities presently thereon, and accepts it in "as is" condition.
Concessionaire shall provide, purchase, install and/or construct, at its sole cost and
expense, the equipment, fixtures and improvements specifically described in the Proposal
(the "Improvements") the cost of which Concessionaire represent is not less than
$420,100.00. The location, type, price and installation of the Improvements shall be
approved by the Manager, in writing. Concessionaire agrees to complete the
Improvements not later than three (3) months following the date of this Agreement.
Within thirty (30) calendar days following completion of Improvements, the
Concessionaire shall provide to the Manager a list of improvements, including sales
receipts, the date of installation, type of improvement, and its costs on an item -by -item
basis. Such information and/or list shall be verified by the City and maintained as a
record by both parties. All improvements shall be made in accordance with all applicable
laws, codes and regulations and shall belong to the City.
Concessionaire shall, at no cost to the City, if applicable, develop or have developed,
plans and specifications for all construction to be performed and installed under the
direction of, and certified by, licensed professionals such as architects, landscape
architects, structural engineers, electrical engineers, mechanical engineers, and others as
applicable and appropriate, based on construction project elements. Concessionaire shall
provide the City with a schedule of final construction plans and phasing of actual
construction. Any changes in the plans and specifications must be approved by the
Manager. The approval of the plans and specifications or any changes therein shall not be
unreasonable withheld.
Concessionaire shall secure all necessary permits, licenses, and taxes for the construction
of improvements hereunder, including but not limited to, permits and utility connection
fees, if required. Concessionaire agrees also that any and all building permits, and any
other necessary approvals, including approval of the Manager, shall be obtained prior to
the commencement of each applicable component of construction.
Every year, and as often as the City and/or Concessionaire deem it necessary,
Concessionaire shall seal and paint floors, walls, replace expendable equipment such as
condiment jars, napkin holders, and other such concessionaire items. Additionally,
Concessionaire agrees to spend not less than $20,000 on each of the Second and Third
Agreement Year, in capital improvements to the Concession Areas, on items that are
mutually agreeable to the City and the Concessionaire.
XV
INDEMNIFICATION
Concessionaire shall indemnify, defend and hold harmless the City and its officials,
employees and agents (collectively referred to as "Indemnities") and each of them from
and against all loss, costs, penalties, fines, damages, claims, expenses (including
attorney's fees) or liabilities (collectively referred to as "Liabilities") arising out of,
resulting from, or in connection with (i) the performance or non-performance of the
services contemplated by this Agreement which is directly or indirectly caused, in whole
or in part, by a default or negligence (whether active or passive) of Concessionaire or its
employees, agents or subcontractors (collectively referred to as "Concessionaire"), or (ii)
the failure of the Concessionaire to comply with any of the paragraphs herein or the
failure of the Concessionaire to conform to statutes, ordinances or other regulations or
requirements of any governmental authority, federal or state, in connection with the
performance of this Agreement. Concessionaire expressly agrees to indemnify and hold
harmless the Indemnities, or any of them, from and against all liabilities which may be
asserted by an employee or former employee of Concessionaire, or any of its
subcontractors, as provided above, for which the Concessionaire's liability to such
employee or former employee would otherwise be limited to payments under state
Workers' Compensation or similar laws.
Concessionaire further agrees to indemnify, defend and hold harmless the Indemnities
from and against (i) any and all Liabilities imposed on account of the violation of any
law, ordinance, order, rule, regulation, condition, or requirement, in any way related,
directly or indirectly, to Concessionaire's performance hereunder, compliance with which
is left by this Agreement to the Concessionaire, and (ii) any and all claims, liens and/or
suits for labor and materials furnished by the Concessionaire or utilized in the
performance of this contract or otherwise.
Where not specifically prohibited by law, Concessionaire further specifically agrees to
indemnify, defend and hold harmless the Indemnities from all claims and suits for any
liability, including, but not limited to, injury, death, or damage to any person or property
whatsoever, caused by, arising from, incident to, connected with or growing out of the
performance or non-performance of this Agreement which is, or is alleged to be, caused
in part (whether joint, concurrent or contributing) or in whole by any act, omission,
default, or negligence (whether active or passive) of the Indemnities. The foregoing
indemnity shall also include liability imposed by any doctrine of strict liability.
XVI
INSURANCE
The Concessionaire shall take out, pay for, and at all times during the term of this
Agreement maintain, such public, contingent (where applicable, professional
malpractice) and employer's liability insurance as will satisfy the foregoing indemnity
requirements of the Agreement and protect Concessionaire and the City from claims
under Workers' Compensation and other employee benefit acts (the "Insurance"). The
i)3- 913
insurance shall include Comprehensive General Liability and property and damage,
including automobile, products completed operations and broad form contractual
covering liability assumed by the Concessionaire under this Agreement. The insurance
shall: (i) include the City as an additional insured; (ii) be primary insurance written on
an occurrence basis to the full limits of liability hereinafter stated, and should the City
have other valid insurance, the City's insurance shall be excess insurance only; (iii)
include a waiver of subrogation against the City, its officers, agents and employees, (iv)
include a severability clause substantially in the following form:
"The insurance afforded applies separately to each insured against whom
claim is made or suit is brought, but the inclusion hereunder of more than
one insured shall not operate to increase the limits of the insurance
carrier's liability. The inclusion of any person or organization as an
insured shall not affect any right that such person/organization would
have as a claimant if not so included," and
(iv) contain an endorsement substantially stating:
"Cancellation or expiration of the policy to which this endorsement is
attached shall not become effective until after thirty (30) days advance
written notice has been delivered to the City.
Attention: Orange Bowl Stadium Manager
1501 N.W. 3rd Street
Miami, Florida 33125
cc: Risk Management Administrator
444 S.W. 2nd Avenue
Miami, Florida 33130
Without limitation of the requirements set forth in this Section, Concessionaire shall
maintain insurance with coverage and minimal limits of liability as follows:
(1) Workers' Compensation and Employer's Liability providing statutory
coverage under the Workers' Compensation and Occupational Disease Laws of
the state where operations are being performed under this Contract; and
Employer's Liability coverage with limits of $ [at least
$100,000 suggested] bodily injury per accident and $ [at least
$300,000 suggested] annual aggregate bodily injury.
(2) Comprehensive General Liability affording (i) Bodily Injury Liability (or
death) with limits of $1,000,000 for each person and, where applicable,
$2,000,000 in the aggregate; and (ii) Property Damage Liability with limits of
$1,000,000 for each occurrence and $2,000,000 in the aggregate, such coverage
to include: Products Completed Operations, Broad Form Contractual Liability
covering liability assumed under this Agreement, Broad Form Property
03- 913
Damage, Elevator, and Concessionaire's Contingent (Protective) Liability with
respect to work subcontracted by the Concessionaire.
(3) Comprehensive Automobile Liability affording (i) Bodily Injury Liability
(or death) with limits of at least $300,000 each person and $500,000 each
occurrence; and (ii) Property Damage Liability with a limit of at least $250,000
each occurrence; such coverage to include liability for the operation of owned,
hired, and non -owned vehicles.
Liquor Liability ($1,000,000).
In no event shall the provisions of this Section be construed in any way to limit
Concessionaire's obligations under any provision of this Agreement, including, but not
limited to, Concessionaire's obligations to indemnify, defend and hold harmless the City.
The insurance coverage required herein shall be through policies issued by companies
authorized to do business under the laws of the State of Florida. The Company must be
rated by the latest edition of Best's Insurance Guide, published by Alfred M. Best
Company, Inc. [or other recognized organization] at no less than an "A" Best
Policyholders Rating and no less than an "X" rating in Best's Financial Size Category.
All such insurance, including renewals, shall be subject to the approval of the City for
adequacy of protection, and evidence of such coverage shall be furnished to the City on
Certificates of Insurance indicating such insurance to be in force and effect and providing
that it will not be canceled during the performance of the services under this Agreement
without thirty (30) calendar days prior written notice to the City. Completed Certificates
of Insurance shall be filed with the City prior to the performance of services hereunder,
provided, however, that Concessionaire shall at any time upon request file duplicate
copies of the policies of such insurance with the City.
If, in the judgment of the City, prevailing conditions warrant the provision by
Concessionaire of additional liability insurance coverage or coverage which is different
in kind, the City reserves the right to require the provision by Concessionaire r of an
amount of coverage different from the above stated amounts or kind and shall afford
written notice of such change in requirements thirty (30) days prior to the date on which
the requirements shall take effect. Should the Concessionaire fail or refuse to satisfy the
requirement of changed coverage within thirty (30) days following the City's written
notice, this Agreement shall be considered terminated on the date that the required
change in policy coverage would otherwise take effect.
XVII
DEFAULT
If Concessionaire fails to comply with any term or condition of this Agreement, or fails to
perform any of its obligations hereunder, then Concessionaire shall be in default. Upon
the occurrence of a default hereunder, the City, in addition to all remedies available to it
03- 913
by law, shall have the following options, and its choice of any option shall in no way
waive its right to select any other option at any time:
(a) The City must give Concessionaire written notice of such default. If the
Concessionaire does not cure said default within thirty (30) days, in the event of a non -
monetary default, and within seven (7) days in the event of a monetary default, after
written notice thereof is given to Concessionaire, then the City may terminate this
Agreement, assume the operation of the Concession, and exclude the Concessionaire
from the Location, and/or the City may recover at law any and all claims which may be
due the City and/or
(b) The City may perform such work as it deems necessary to cure said
default and charge the Concessionaire for the full cost of labor and materials expended.
Concessionaire understands and agrees that termination of this Agreement under this
Section shall not release Concessionaire from any obligations accruing prior to the
effective date of termination.
In the event the City defaults in the performance of any of the provisions of this
Agreement, Concessionaire may give the City written notice of such default. If the City
fails to cure said default within thirty (30) days after written notice was given, or make
reasonable progress to cure said default, then Concessionaire may terminate this
Agreement.
XVIII
CITY'S TERMINATION RIGHTS
The City shall have the right to terminate this Agreement, in the event of a default, as
described in Section XVII above, or, if (a) the Stadium is sold; (b) events held at the
Stadium are significantly reduced, (c) the City decides to terminate or suspend the
operations of the Stadium, or like events, by giving written notice to Concessionaire at
least ninety (90) days prior to the effective date of such termination. Concessionaire shall
be reimbursed for the depreciated capital improvements made to the facility and will not
be responsible to pay the City of Miami for the minimum guarantee of that year.
XIX
ASSIGNMENT, SUBLEASE
Concessionaire shall not sublet, transfer, convey, assign nor permit the use of the rights,
privileges or premises granted under this Agreement in whole or in part to any other
person, firm or corporation without written consent of the City Manager which consent
may be withheld, in the City Manager's sole discretion which will not be unreasonable
withheld.
iJ3- 913
XX
ABANDONMENT
If Concessionaire vacates or abandons its operations hereunder for a period of twenty
(20) days, and the abandonment continues for a period of seven (7) calendar days after
written notice thereof is given to Concessionaire by the Manager, the City Manager, at
his/her option and without serving notice elsewhere required in this Agreement, may: (a)
take immediate possession thereof for the remainder of the said term, and, at his/her
discretion, re -advertise and solicit proposals for the provision of concession services,
with Concessionaire remaining liable for the payments of Minimum Guarantee, and for
all other obligations under this Agreement to the same extent as if said abandonment had
not taken place; or (b) cancel this Agreement, without prejudice to its rights and remedies
under applicable laws.
XXI
BUSINESS RECORDS
The Concessionaire shall maintain, in Miami -Dade County, Florida, complete and
accurate books and records reflecting its operations under this Agreement and these shall
be open for inspection at reasonable times during the term of this Agreement. The books
and records shall include daily sequentially renumbered receiving reports and supporting
vendor documentation indicating description and quantity of goods received: Photocopies
of payment checks shall be attached to the invoices; where payment has been made in
cash, the person making payment to the Concessionaire shall sign the applicable invoice
acknowledging the amount paid.
XXII
AUDIT AND INSPECTION RIGHTS
The City may, at reasonable times, and for a period of up to three (3) years following the
date of final payment by Concessionaire to the City under this Agreement, audit, or cause
to be audited, those books and records of Concessionaire which are related to
Concessionaire's performance under this Agreement. Concessionaire agrees to maintain
all such books and records at its principal place of business, in Miami -Dade County,
Florida for a period of three (3) years after final payment is made under this Agreement.
The City may, at reasonable times during the term hereof, inspect Concessionaire's
facilities and perform such tests, as the City deems reasonably necessary, to determine
whether the goods or services required to be provided by Concessionaire under this
Agreement conform to the terms hereof and/or the terms of the Solicitation Documents, if
applicable. Concessionaire shall make available to the City all reasonable facilities and
assistance to facilitate the performance of tests or inspections by City representative
03- 913
XXIII
AWARD OF AGREEMENT
Concessionaire represents and warrants to the City that it has not employed or retained
any person or company employed by the City to solicit or secure this Agreement and that
it has not offered to pay, paid, or agreed to pay any person any fee, commission,
percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the
award of this Agreement.
XXIV
PUBLIC RECORDS
Concessionaire understands that the public shall have access, at all reasonable times, to
all documents and information pertaining to City contracts, subject to the provisions of
Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all
documents subject to disclosure under applicable law. Concessionaire's failure or refusal
to comply with the provisions of this section shall result in the immediate cancellation of
this Agreement by the City.
XXV
COMPLIANCE WITH LAWS, REGULATIONS AND DIRECTIVES
Concessionaire understands that agreements between private entities and local
governments are subject to certain laws and regulations, including laws pertaining to
public records, conflict of interest, record keeping, etc. City and Concessionaire agree to
comply with and observe all applicable laws, codes and ordinances as the may be
amended from time to time.
Concessionaire will use the subject premises for no purpose other than specified in this
Agreement and shall conduct its business and operate the concessions in strict
compliance with all applicable laws, including specifically, without limitation, laws,
ordinances and regulations pertaining to the operation of food serving establishments and
all applicable health and fire codes.
Concessionaire understands that the City reserves the right in its sole discretion to cancel,
interrupt, or terminate any performance, event, public or private gathering upon its
premises, whether or not admission has been charged, and to dismiss the audience, or
cause the same to be dismissed; and the Concessionaire hereby agrees that it will not
make or allow to be made against the City, any claim for damages to the Concessionaire
or other party arising out of any acts of the City, its officers, agents, or employees, in the
exercise of the City's discretion as aforesaid.
All areas which are open to the public shall be available for use and enjoyment by the
public without regard to race, color, creed, sex, age, national origin, marital status, sexual
preference or disability.
iJ3- 913
XXVI
CONFLICT OF INTEREST
Concessionaire is aware of the conflict of interest laws of the City of Miami (Miami City
Code Chapter 2, Article V), Miami -Dade County, Florida (Dade County Code, Section 2-
11.1 et. seg.) and of the State of Florida as set forth in the Florida Statutes, and agrees
that it will fully comply in all respects with the terms of said laws. Concessionaire, in the
performance of this Agreement, shall be subject to the more restrictive law and/or
guidelines regarding conflict of interest promulgated by federal, state or local
government.
XXVII
NONDISCRIMINATION
Concessionaire represents and warrants to the City that Concessionaire does not and will
not engage in discriminatory practices and that there shall be no discrimination in
connection with Concessionaire's performance under this Agreement on account of race,
color, sex, religion, age, disability, marital status, national origin or sexual preference.
Concessionaire further covenants that no otherwise qualified individual shall, solely by
reason of his/her race, color, sex, religion, age, disability, marital status, national origin,
or sexual preference, be excluded from participation in, be denied services, or be subject
to discrimination under any provision of this Agreement.
XXVIII
MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT
PROGRAM
The City has established a Minority and Women Business Affairs and Procurement
Program (the "M/WBE Program") designed to increase the volume of City procurement
and contracts with Blacks, Hispanic and Women -owned business. The M/WBE Program
is found in Ordinance No. 10062, a copy of which has been delivered to, and receipt of
which is hereby acknowledged by, Concessionaire. Concessionaire understands and
agrees that the City shall have the right to terminate and cancel this Agreement, without
notice or penalty to the City, and to eliminate Concessionaire from consideration and
participation in future City contracts if Concessionaire, in the preparation and/or
submission of the Proposal, submitted false of misleading information as to its status as
Black, Hispanic and/or Women owned business and/or the quality and/or type of
minority or women owned business participation.
XXIX
NOTICES
All notices or other communications required under this Agreement shall be in writing
and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt
requested, addressed to the other party at the address indicated herein or to such other
address as a party may designate by notice given as herein provided. Notice shall be
03- 913
deemed given on the day on which personally delivered; or, if by mail, on the fifth day
after being posted or the date of actual receipt, whichever is earlier.
TO PROVIDER:
With copies to:
TO THE CITY:
City Manager
Director, Department of Public
Facilities
City Attornedy
444 S.W. 2" Avenue, suite 940
Miami, Florida 33130
XXX
MISCELLANEOUS PROVISIONS
A. This Agreement shall be construed and enforced according to the laws of
the State of Florida.
B. Title and paragraph headings are for convenient reference and are not a
part of this Agreement.
C. No waiver or breach of any provision of this Agreement shall constitute a
waiver of any subsequent breach of the same or any other provision hereof, and no
waiver shall be effective unless made in writing.
D. Should any provision, paragraph, sentence, word or phrase contained in
this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or
otherwise unenforceable under the laws of the State of Florida or the City of Miami, such
provision, paragraph, sentence, word or phrase shall be deemed modified to the extent
necessary in order to conform with such laws, or if not modifiable, then same shall be
deemed severable, and in either event, the remaining terms and provisions of this
Agreement shall remain unmodified and in full force and effect or limitation of its use.
E. This Agreement constitutes the sole and entire agreement between the
parties hereto. No modification or amendment hereto shall be valid unless in writing and
executed by property authorized representatives of the parties hereto.
si3— 9i3
XXXI
SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties hereto, their heirs, executors, legal
representatives, successors, or assigns.
XXXII
INDEPENDENT CONTRACTOR
Concessionaire has been procured and is being engaged to provide services to the City as
an independent contractor, and not as an agent or employee of the City. Accordingly,
Concessionaire shall not attain, nor be entitled to, any rights or benefits under the Civil
Service or Pension Ordinances of the City, nor any rights generally afforded classified or
unclassified employees. Concessionaire further understands that Florida Workers'
Compensation benefits available to employees of the City are not available to
Concessionaire, and agrees to provide workers' compensation insurance for any
employee or agent of Concessionaire rendering services to the City under this
Agreement.
XXXIII
CONTINGENCY CLAUSE
Funding for this Agreement is contingent on the availability of funds and continued
authorization for program activities and the Agreement is subject to amendment or
termination due to lack of funds, reduction of funds and/or change in regulations, upon
thirty (30) days notice.
XXXIV
REAFFIRMATION OF REPRESENTATIONS
Provider hereby reaffirms all of the representations contained in the Solicitation
Documents.
XXXV
ENTIRE AGREEMENT/ INTERPRETATION/CONFLICT
This instrument, its attachments and the Solicitations Documents constitute the sole and
only agreement of the parties relating to the subject matter hereof and correctly set forth
the rights, duties, and obligations of each to the other as of its date. Any prior
agreements, promises, negotiations, or representations not expressly set forth or
incorporated into this Agreement are of no force or effect. In the event of a conflict or
inconsistency between the provisions of this Agreement and the Proposal, the provision
that is most favorable to the City shall be deemed to control.
03- 913
XXXVI
COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original but all of which, when taken together, shall constitute one and
the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their respective officials thereunto duly authorized, this the day and year
above written.
ATTEST:
Priscilla Thompson, City Clerk
ATTEST:
Print Name:
Title: Corporate Secretary
APPROVED AS TO FORM AND
CORRECTNESS:
Alejandro Vilarello
City Attorney
"City"
City of Miami, a municipal corporation
am
Joe Arriola, City Manager
"Concessionaire"
Boston Concession Group, Inc., Inc.,
a Wisconsin corporation
By:
Print Name:
Title: President
APPROVED AS TO INSURANCE
REQUIREMENTS:
Diane Ericson
Risk Management Administrator
��3-M 913
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
Honorable Mayor el Diaz and
T° Me rs of the ity Co mission
L
FROM: Joe •pla
Chie£Administrator/City Manager
August 29, 2003
DATE:
FILE:
Amendment to Agreement with
SUBJECT: Boston Concessions Group, Inc. for
Concession Services at the Orange
Bowl Stadium
REFERENCES:
ENCLOSURES:
RECOMIIIENDATION
It is respectfully recommended that the City Commission approve the attached
Resolution authorizing the City Manager to amend the Agreement with Boston
Concessions Group, Inc for the provision of concession services at the Orange Bowl
Stadium
BACKGROUND
On July 17, 2003 the City Commission passed a Resolution authorizing the City Manager
to enter into an Agreement with Boston Concession Group, Inc. (BCG) under terms and
conditions outlined in their proposal. BCG was one of four proposers that bid on the
Orange Bowl Concession RFP and was selected by a selection committee as the best and
most responsive bidder.
Subsequently, the City of Miami agreed to restrict the vending of beer in the stands to
promote a safer environment in the Orange Bowl Stadium during LTM football games. As
a result, the concessionaire has requested and the administration recommends a reduction
in the minimum guarantee rent to the City in the amount of $30,000 per LTM football
game. BCG will continue to pay the City an average of 47% of gross sales, invest over
$420,000 in capital improvements, and provide the City with a Letter of Credit in the
amount of $500,000. Further, the minimum guarantee continues to be the highest of any
of the other proposers.
It is recommended that the City Commission approve the Resolution in order to execute
the amended Agreement prior to the first game on September 6d.
J CPA
03- 913
SEP -02-2003 10:55
J-03-478
05/22/03
CITY CLERKS UFF- ! CL
RESOLUTION NO.
305 858 1610 P.02
A RESOLUTION OF THE MIAMI CITY COMMISSION,
WITH ATTACHMENT(S), AUTHORIZING THE CITY
MANAGER TO TERMINATE THE AGREEMENT WITH
CATERING BY DAVID LYNN, INC.
(CONCESSIONAIRE) FOR THE PROVISION OF FOOD
AND BEVERAGES AT THE ORANGE BOWL STADIUM;
FURTHER, BY A FOUR-FIFTHS (4/5Txs)
AFFIRMATIVE VOTE, RATIFYING, APPROVING AND
CONFIRMING THE CITY MANAGER'S FINDING THAT A
VALID EMERGENCY EXISTS, WAIVING THE
REQUIREMENTS FOR COMPETITIVE BIDDING
PROCEDURES AND AWARDING A CONCESSION
AGREEMENT, UNDER SUBSTANTIALLY -THE TERMS SET
FORTH IN "ATTACHMENT B," ATTACHED AND
INCORPORATED, TO BOSTON CONCESSIONS GROUP,
INC., TO REPLACE THE CURRENT CONCESSIONAIRE.
WHEREAS, Catering By David Lynn, Inc. is the current
concessionaire for the Orange Bowl Stadium; and
WHEREAS, David Lynn has failed to pay the City of Miami
compensation from November 2002 through March 2003 and has an
outstanding balance of $330,182.90; and
CITY COf-AMISSION
03- 913
SEP -02-2003 10:35 CITY CLERKS OFFICE 305 858 1610 P.03
WHEREAS, the Department of Conferences, Conventions and
Public Facilities made several attempts'to obtain payment from
David Lynn, Inc. (Concessionaire), and has issued a Notice of
Default; and
WHEREAS, Paragraph XVII of the Agreement with David Lynn
(Concessionaire) gives the City Commission the right to
terminate the Agreement as a result of the Concessionaire's
default; and
WHEREAS, the City has formed a selection committee and has
begun the formal Request For Proposal ("RFP") process to replace
the concessionaire, which has been developed incorporating
recommendations from the Orange Bowl Advisory Board and the
Hammes Company; and
WHEREAS, the City Manager has found that a valid emergency
exists to waive the formal RFP process and to enter into an
agreement with a temporary concessionaire not to exceed a
three-month period;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE
CITY OF MIAMI, FLORIDA_
Page 2 of 4
il3- 913
SEP -02-2003 10:36
CITY CLERKS OFFICE
305 858 1610
P.04
S-e.ction 1.
The recitals
and findings contained in
the
Preamble to this Resolution are adopted by reference and
incorporated as if fully set forth in this Section.
Section 2. The City Manager is authorized!" to terminate
the Agreement with Catering by David Lynn, Inc. (Concessionaire)
for the provision of food and beverages at the Orange Bowl
Stadium.
Section 3. By a four-fifths (4/5ths affirmative vote,
the City Manager's finding that an emergency exists, waiving the
requirements for competitive sealed bidding procedures is
ratified, approved and confirmed, and awarding a concession
agreement, under substantially the terms set forth in
"Attachment B," attached and incorporated, to Boston Concessions
Group, Inc. to replace the current concessionaire, is approved,
pending the completion of the formal RFP process for a permanent
concessionaire.
Section 4. The City Manager is further authorized!/ to
execute a Concession Agreement, under substantially the terms
set forth in "Attachment B," attached and incorporated.
ii The herein authorization is further subject to compliance with
all requirements that may be imposed by the City Attorney,
including but not limited to those prescribed by ap]ilicable City
Charter and Code provisions.
Page 3 of 4
,� 3 - 913
SEP -02-2003 10:36
CITY CLERKS
OFFICE
305 858 1610 P.05
Section 5.
This
Resolution
shall become effective
immediately upon its adoption and signature of the Mayor.Z'
PASSED AND ADOPTED this 22nd day of Ma , 2003.
/17
MANUEL A. DIAZ, Y R
ATTEST:
•�•7 PRI.$CILLA A. THOMPSON
CIt CLERK
APPROVED '�Z"T4'FORM AN/D CORRECTNESS
7262:tr:AS
If the mayor does not sign gn this Resolution, it shall become
effective at the end of ten calendar days from the date it was
passed and adopted. It the Mayor vetoes this Resolution, it
shall become effective immediately upon override of -the veto by
the City Commission.
Page 4 of 4
93- 913
SEP -02-2003 10:36 CITY CLERKS OFFICE
Attachment A-
305 858 1610 P.06
Event
Date
Event
Rent
Utilities
Tax On
Utilities
Total
11-21-02
U of M vs. Pittsburgh
$103,811.40
$3,221.62
$209.41
$107,242.43
12-07-02
U of M vs. Virginia Tech
$146,799.60
$4,525.75
$294.17
$151,619.52
12-14.02
Bowl Before the Bowl
$3,067.35
$96.86
$6.30
$3,170.51
01-11-03
Honduras vs. Germany
$12,794.43
$385.92
$27.01
$13,207.36
01-18,-03
Torneo de Las Americas
$10,842.59
$327.24
$22.91
$11,192.74
01-22-03
Torneo de Las Americas
$6,348.25
$191.70
$13.42
$6,553.37
01-25-03
Torneo de Las Americas
$10,278.78
$307.61
$21.53
$10,607.92
02-08-03
03-05 & 8-
03
04-05-03
0430-03
USA vs Argentina
Soccer
Canes Festas
Colombia vs Honduras
$21,738.50
$1,399.31
$4,700.31
$5,293.66
$662.60
$43.22
$145.96
$159.50
$46.38.
$3.02
$10.22
$11.16
$22,447.48
$1,44555
$49856.49
$5,4f4.32
Total
$337,807.69
Credits { $ 7,624.76)
Total Outstanding Amount $ 330,182.90
s.1z-05-V2
03- 913
SEP -02-2003 10:36 CITY CLERKS OFFICE 305 858 1610 P.07
ATTACHMENT --B
The following are the basic terms and conditions pursuant to which the City of Miami
agrees to grant the Concessionaire the exclusive right to operate Concessions in the
Concession Areas at the Orange Bowl Stadium (the "Stadium").
Definitions:
a. "Concessions" means the sale of food and beverages in the Concession Areas
(herein defined) to patrons of events at the Stadium and all operations
necessarily incidental to such sale in accordance with the provisions of this
Agreement,
b. "Concession Areas" means all food and refreshment stands and vending areas
in the interior of the Stadium and in the area between the exterior of the
Stadium structure and the green picket fence surrounding the structure.
"Concession Areas" does not mean the Press Boxes, tenant office spaces, City
office spaces, City's operation spaces, Athletic Club, or any adjacent areas
outside the confines of the Location.
"Gross Receipts" means all moneys paid or payable to the City for sales made
or services rendered at or from the Concession Areas, or from any other
source related directly or indirectly to the Concessions, and revenues from
Subcontractor Items (herein defined), whether collected or uncollected, for
cash or credit. Gross Receipts includes all moneys from any temporary or
permanent concessionaire, whether made from temporary or permanent
stands, or to customers in the seating areas or concourse areas by the
Concessionaire's employees, traveling concessionaires, hawkers or hustlers,
whether collected or uncollected, for cash or credit.. Gross Receipts shall be
computed prior any deduction for "spoilage or "shortage". Inventory
Disappearances or shrinkage up to a maximum of one percent (I%) of gross
receipts are excluded from the "gross receipts" provided, that any such
inventory disappearances or shrinkage's must be immediately reported to the
City.
d. Subcontractor(s) means those individuals hired by the Concessionaire to sell
concession products authorized by the City Manager or designee in writing
(Subcontractor Items"). Subcontractors are also referred to as "Third Party
Vendor(s)".
1. Term: The term shall be three (3) months commencing June 2003
and terminating August ` 2003. The City shall have the option to extend the term on a
month-to-month basis upon the same terms and conditions contained herein, by giving
Concessionaire at least thirty (30) days prior written notice.
iJ3-- 913
SEP -02-2003 10:3? CITY CLERKS OFFICE
305 858 1610 P.08
2. � � Compensation: Subject to the provisions of Section 5 below, the
Concessionaire shall pay to the City compensation based on a percentage of Gross
Receipts, as follows, not later than the fifteenth (15) day each month.
40%
Food Sales
40%
Alcohol Sales
42%
Third Party Vendor Sales
3. Subcontracting: Concessionaire agrees that it shall not subcontract the sale
of any of the following items: soda, hot dogs, sausage sandwiches, hamburgers, candy,
popcorn, and potato chips. Subcontracting with a third party vendor for other
Subcontractor Items must be agreed upon in advance and in writing by the City Manager
or designee and shall be limited to portable stands.
4. Food Quality: - Concessionaire shall provide the best quality of both food
and beverage products to the patrons of the Stadium, and the City reserves the right to
determine whether a particular product or ingredient complies with the aforementioned
standard.
5. Guarantee: Based on the list of scheduled events and estimated concessions
revenues to the City listed in Attachment C, Concessionaire has agreed to 1 guarantee a
minimum of $150,000 return to the City during the initial 3 month term.. In the event
that one or more of the scheduled events listed in Attachment C are cancelled or
postponed, and as result thereof, there is a significant reduction in the amount of Gross
Receipts, then the City and the Concessionaire agree to renegotiate the amount of the
Guarantee, in good faith Upon commencement of the term, Concessionaire shall deposit
with the City the amount of the Guarantee.
6. Insurance: Concessionaire is required to provide and maintain, during the
term of this agreement, current insurance, as approved by the City' Risk Management as
follows;
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
Personal and Adv. Injury $1,000,000
Products/Completed Operations $1,000,000
Fire Damage Liability (any One Fire) $50,000
Note: Liquor Liability should be endorsed if beer and wine is sold
at establishment.
H Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
03- 913
SEP -02-2003 10:37 CITY CLERKS OFFICE 305 858 1610 P.09
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident 5300,000
IIT. Worker's Compensation
Limits of Liability
As defined in Chapter 440 of the Florida Statutes
City of Miami/Orange Bowl should be named as an additional insured
with respects to General Liability and Automobile Coverage.
7. Licenses: The Concessionaire shall pay for and obtain all Iicenses and
permits necessary for the operation of the Concessions, including those required for the
on -premise sale of liquor, beer and wine, Concessionaire represents and warrants that it
currently has, and at all times during the term hereof shall maintain, all licenses and
permits required for the fill and proper performance of this Agreement.
g. Maintenance/Cleanup. The Concessionaire shall repair and maintain, at his
own cost and expense, all Concession equipment and furnishings needed to conducts its
operation. The Concessionaire and City shall jointly conduct a walk through of the
concession areas prior to the concessionaire's occupation to inventory the equipment and
condition of the concession areas, including equipment. The Concessionaire shall
provide its own janitorial services, and shall pick up, clean and dispose of all litter for all
space assigned or used in its operations. The Concessionaire shall also clean and keep all
Concession areas free of debris before, during and after events. In additional, the
Concessionaire shall provide at its own expense, all garbage, trash„ and rubbish
receptacles within the confines of its designated vending areas, and shall provide
sufficient numbers of receptacles for its own use. Dumping of such receptacles and the
removal of trash, rubbish, and garbage from Concession Areas shall be the responsibility
of the Concessionaire_
9. Audit and Inspection Rights: The City shall have the right to audit, or
caused to be audited those books and records of Concessionaire which are related to the
Concessionaire's performance under this Agreement for a period of up to (3) years
following the expiration of the Term. Concessionaire agrees to maintain all such books
and records at its principal place of business I, in Miami -Dade, Florida for a period of
three (3) years after Expiration of the Term.
iJ3- 913 W%.F � -
SEP -02-2003 10:3? CITY CLERKS OFFICE 305 658 1610 P.10
ATTACHMENT G
The following is a list of events scheduled to be held at the Orange Bowl Stadium
" Processing contract
" Executed contract
"" Tentatively scheduled
Al events are subject to cancellation.
NJ 3— 913 TOTAL P-10
ESTIMATED CITY
ESTIMATED
ESTIMATED
REVENUES @40%
DATE
EVENT
ATTENDANCE
PER CAP
OF GROSS
CONCESSION
SALES
06-07-03'
Venezuela vs Honduras
7,500
4.65
$
12,977
06-26-03"
Venezuela vs Peru
7,500
4.65
$
12,977
07-13-03"
Gold Cup/Jamaica vs Colombia
20,000
4.65
$
34,605
07-15-03"
Gold Cup/Guatemala vs Jamaica
15,000
4.65
$
25.953
07-17-03"
Gold Cup/Colombia vs Guatemala
20,000
4.65
$
34,605
07-20-03"
Gold Cup/Quarterfinal
25,000
4.65
$
43,256
07-23-03"
Gold Cup/Semifinal Match
25,000
4.65
$
43,256
07-26-03'
Gold Cup/Third Place
25,000
4.65
$
43,256
08-01-03`"
Fair Play Cup -Club Teams
5,000
4.65
$
5,651
08-03-03""-
Fair Play Cup -Club Teams
5.000
4.65
$
8,551
Estimated Revenues to City
$
268,166
" Processing contract
" Executed contract
"" Tentatively scheduled
Al events are subject to cancellation.
NJ 3— 913 TOTAL P-10