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HomeMy WebLinkAboutR-98-0138J-98-171 2/2/98 RESOLUTION NO. 9 138 A RESOLUTION, WITH ATTACHMENT, APPROVING THE TERMS OF THE ATTACHED AGREEMENT, AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH CATERING BY DAVID LYNN, INC., IN SUBSTANTIALLY THE ATTACHED FORM, FOR THE PROVISION OF CONCESSION SERVICES AT THE ORANGE BOWL STADIUM, FOR A PERIOD OF FIVE (5) YEARS, WITH THE OPTION TO EXTEND FOR ONE (1) ADDITIONAL FIVE (5) YEAR PERIOD. WHEREAS, on January 13, 1998, the City Commission adopted Resolution No. 98-13, approving the selection of Catering by David Lynn, Inc., (the "Concessionaire") for the provision of concession services to the Orange Bowl Stadium and authorizing the City Manager to negotiate and execute an agreement, on behalf of the City of Miami, with the Concessionaire in a form acceptable to the City Attorney and on such terms as are approved by the City Commission; and WHEREAS, the City and the Concessionaire have negotiated and are willing to execute the attached agreement, subject to the approval of the City Commission; 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 hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. 4 .A a ATTACHMENT (S) � CONTAINED 1:4 O) FEB 10 M8 R"O,� X& 98- 138 Section 2. The City Commission hereby approves the terms of the attached agreement, and authorizes the City Manager to execute an agreement with Catering by David Lynn, Inc. in substantially the attached form, for the provision of concession services at the Orange Bowl Stadium, for a period of five (5) years, with the option to extend for one (1) additional five (5) year period. Section 3. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 10 th day of February , 1998. VIER L. %JAREZ, MAYOR ATTEST: CITY CLERK PREPARED AND APPROVED BY: OL RAMIREZ-SE AS Gr AS TANT CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: / J L EDWARD LL ` ( TERIM CITY AT ORNEY W2252:CSK:ORS 2 98- 138 CONCESSION AGREEMENT between CITY OF MIAMI and CATERING BY DAVID LYNN, INC. 98- 138 CONCESSION AGREEMENT THIS AGREEMENT made and entered into this day of 1998, by and between the City of Miami, Florida, a municipal corporation of the State of Florida, (hereinafter referred to as "City"), and Catering by David Lynn, Inc., a Florida corporation (hereinafter referred to as "Concessionaire"). RECITALS WHEREAS, the City has issued a Request for Proposals ("RFP") for the operation of the food, beverage 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. 98-16 adopted on January 13, 1998, 1998, 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: I DEFINITIONS A. "Location" means the Orange Bowl Stadium, located at 1501 Northwest P 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 the cafeterias, restaurants, bars, refreshment stands and vending areas in he 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. Vending in public seating areas will be permitted only upon authorization by the Director (hereinafter defined). "Concession Areas" does not mean the Press Boxes, tenant office spaces, City's office space, City's operations spaces, surfaces, parking lots, Athletic Club, or any adjacent areas outside the confines of the Location. 2 98- 138 D. "Concession Products" means all food, beverages (alcoholic and nonalcoholic), candy, tobacco 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.' "Director" 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, video tapes, 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 paid or payable to the City 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 Adpr 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 immediately reported to the City. Gross Receipts also includes all amounts received by the Concessionaire from sales made by subcontractors approved by the City. 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 those Concession Products which have been authorized by the City, in writing, to be sold or provided by an approved subcontractor. 3 98- 138 WNDE" wt-TO The City hereby grants to the Concessionaire 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 Concession hereby granted shall apply to all events conducted at the Location during the term of this Agreement. 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. The Concession herein granted also grants the Concessionaire the right to subcontract the sale or service of some Concession Products, provided that the items to be subcontracted, as well as the identity subcontractor shall first be approved by the City in writing. In the event that Concessionaire elects to subcontract some of the services hereunder, Concessionaire agrees that it shall be fully responsible for the subcontractor's performance hereunder. The City retains the right to reject a proposed subcontractor or the number of subcontractors, in its sole discretion. III TERM The term of this Agreement shall be for an initial term of five (5) years commencing on the date hereof. The City shall have the option to extend the term for an additional five (5) year period, upon the same terms and conditions contained herein, by giving Concessionaire at least ninety (90) days prior written notice. IV CONSIDERATION The Concessionaire shall pay to the City, in consideration for the concessions privileges herein granted, a percentage of Gross Receipts, as indicated herein, or a minimum annual guarantee of $450,000 (the "Guarantee"); whichever is greater. The following percentages of Gross Receipts shall be paid to the City on the fifteenth (15th) day of each month for sales during the preceding month: Candy, tobacco and food Products 33.3% Beverage 35.0% Catering 10.0% Merchandising 25.0% Subcontracted Items 40.0% The percentage payable to the City for the sale of Subcontracted Items is based on Concessionaire's entitlement to 55% of Subcontractor's gross receipts. In the event that the 4 98- 138 Concessionaire's portion of Subcontractor's gross receipts is increase, then the percentage amount shall be increased proportionately. The parties acknowledge that the agreement between the University of Miami and the City will expire in June 2000. In the event that the UM Agreement is not extended, and as a 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. On the fifteenth (15th) day of each month, together with the payment of City's compensation, 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. Concessionaire shall also submit to the City, simultaneously with the monthly gross receipt reports, a copy of the monthly State of Florida prescribed Sales and Use Tax return on an applicable Daily Inventory Report by sales location indicating the specific types of products sold during the applicable period, including tobacco and 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 aid and/or due to the City is less than the amount of the Guarantee, then the Concessionaire shall pay the difference to the City within fifteen (15) 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. 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 be acceptable to the City. 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. At the conclusion of each Game or event, Concessionaire shall submit a report to the City detailing gross concession sales by category, applicable taxes and payment due the City. 5 98- 138 VI. MAINTENANCE The Concessionaire shall repair and maintain, at his own cost and expense, all Concession equipment and furnishings according to reasonable standards acceptable to the City. At the expiration of this Agreement, 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 commissaries 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. All storage of concession products and equipment must be in locations designated by Concessionaire, and Concessionaire shall not maintain, keep or erect any structure or equipment or make any alterations or additions to the location without the City's prior express written permission. The City shall provide all electricity, gas and other utilities and maintenance thereof to Concessionaire, except that utility connections required for improvements to the Concession Areas installed by Concessionaire shall be the financial responsibility the Concessionaire: Concessionaire will be invoiced separately by the City for utility services (except telephone), which will be billed at a rate of one percent (1%) of Gross Receipts of Concession operations. 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 not merchantable or fit for its particular purpose as defined by the Uniform Commercial Code, of that replacement is desirable or necessary to place said equipment in an operable condition, 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. The Concessionaire shall also clean and keep Concession Areas free of debris before, during and after events. 0 98- 138 The Concessionaire shall keep neat, clean and in a sanitary condition all premises including production, storage, service, receiving areas and the surrounding areas used by it during the term of the Agreement. Commissaries and Concession stands and related Concession Areas shall be cleaned thoroughly each day during and after an event. Laws, ordinances and regulations of all governmental bodies pertaining to the operation of food serving establishments shall apply and be complied with the. Where Concessionaire is providing catering services to areas beyond his normal operations (such as private parties or sales meetings in the Press Box or Athletic -Club), food and debris in those areas shall be promptly disposed of after each catered type event, at the expense of the Concessionaire. Waste foods and supplies shall be kept in closed metal or heavy plastic containers until removed from the locations. Such removal shall be made during and after all events. However, the City shall be responsible for the removal of debris in areas normally considered public areas of the Location (e.g. seating areas, corridors, etc., except as provided below). 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, commissary and work area, and such areas shall be kept clean and free from all rubbish, regardless of the width of any given concourse. The Concessionaire shall keep such twenty-five (25) foot radius of each stand and other Concession Areas free and clear from all nuisance before, during and immediately after each event. Concessionaire shall be responsible for the removal of all vendor's effects from the site within the time mutually determined by the City 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 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 provide sufficient waste receptacles at each location and make certain that they are kept clean and promptly serviced during and after each event. 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. 7 �R- 138 VII CONCESSION STANDS The Concessionaire shall ensure that all vendors furnish, equip and install their own concession facility or stand (hereinafter "Stand") at the designated and approved locations. Each Stand shall be attractive, sanitary, and fully self-contained and equipped for novelty sales, as authorized by the Concessionaire and City. Utilities, maintenance, and security will not be provided by the 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 City's approval and space limitations for specific locations and requisite items for the sale and the price of each VIII PERSONNEL: 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 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. If Concessionaire subcontracts the sales operation of any concession area or stand to any nonprofit, civic, and/or community group and/or individual for a specific event or event series, and such group and/or individual is allowed or given a portion of sales receipts as compensation for said operations, then Concessionaire will be required to effect a distribution of such opportunities and operations as follows: seventeen percent (17%) each to Black, Hispanic and Women minorities. The specified distribution shall be made by Concessionaire either on an event basis, where several stands or areas are conveyed, or on an annual basis, whichever is • applicable. Concessionaire acknowledges that he 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. Concessionaire shall observe and shall ensure compliance with the following requirements at all times: (a) Services shall be rendered in a professional manner to all individuals regardless of race, color, creed, age, sex, disability, marital status, or national origin. (b) Employees shall at all times be neatly attired in clean uniforms and wear an identification badge. 98- 138 (c) All employees shall provide prudent, reasonable, and experienced judgment in the servicing of alcoholic beverages to limit underage drinking. (d) All employees of the Concessionaire involved in serving alcoholic beverages shall have satisfactorily completed a recognized "Alcohol Awareness Program." Said program shall be approved by the City. (e) Concessionaire shall be responsible for training all food and beverage personnel. Special attention shall be required to select staff that is personable, service -oriented, and committed to the satisfactory service of the patrons of the Location. (f) The Concessionaire and its employees will not distribute campaign or political literature of any kind in the Location. (g) Only those employees actually working at the Location shall be permitted by Concessionaire into the Location at the time of event(s) without charge. The Director has the right to remove from the premises any employee observed at the Location during an event at which they are not working nor having paid to attend said event. (h). Concessionaire's officers or employees shall not drink alcoholic beverages nor use narcotic substances and neither shall be tolerated by the City. (i) The Concessionaire shall not interfere with the free distribution of food or drinks or any other items of any nature whatsoever where such distribution has been authorized by the Director. 0) An affirmative effort to employ a workforce representative of all aspects of the Miami community shall be made by the Concessionaire to ensure minority representation to the greatest extent possible. (k) Shall provide any additional personnel requested by the City and the City may require Concessionaire to remove from its employ any personnel deemed not to be in the City's best interests. (I) It is understood that Concessionaire, including its agents and employees, shall not be an agent or employee of the City, but shall be an independent contractor. It is further understood that the Concessionaire shall be responsible for making, where required, all payroll deductions and paying any and all income and other taxes as may be applicable and necessary to its personnel. Concessionaire shall use its best efforts not to employ any person who uses improper language or who acts in a loud or boisterous manner. Employees shall be clean, courteous, efficient and properly trained. The City shall have the right to require that undesirable practices be discontinued or remedied. Concessionaires' failure to act appropriately after notice from City may result in the termination of this Agreement. 9 98- 138 Concessionaire shall designate a management representative of the Concessionaire who shall serve as the liaison between the City and the Concessionaire. Said manager shall remain on call on a 24-hour basis during events at the Location should he/she need to be contacted by the City. In addition, the City 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. It is expected said manager shall immediately respond to any requests and/or concerns by the City within a maximum of 24 hours, or immediately on the day of event. Regular on -site scheduled and unscheduled visits shall be made by corporate representatives of Concessionaire to ensure adherence to all requirements of this Agreement and the specifications within the Solicitation Documents, and to determine whether there are any deficiencies as determined by the City that need to be addressed. The manager of Concessionaire and the Director 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 Director and the manager of Concessionaire shall meet to discuss the concessions operational requirements for the particular event. Concessionaire shall additionally develop a Total Quality Management System and provide a formalized training program for all of its employees. This training program shall be provided to the City to ensure City satisfaction with the depth and scope of the training being offered to employees of Concessionaire. 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 City 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. The City agrees, in good faith to review, and reserved the right to accept or reject all prices and price changes requested by the Concessionaire on a yearly basis during the term of this Agreement. Any requests for price increases after the first year shall be considered only if such increases are based on added value, increased services, or directly linked to the cost of products sold. The City shall be provided with all information regarding the price increase request, and no increase shall be effective unless and until it has been first approved, in writing, by the City. During all events, signs should be posted at each Concession Area advertising the prices of all items offered for sale. Menu prices shall include all applicable sales taxes. All meat and bread products offered by Concessionaire shall be fresh, except for meat products which must be frozen. Concessionaire shall provide to the City a listing of those meat products that should be frozen instead of fresh. Meat and bread products not sold at the event for which they were delivered shall not be re -used or re -offered for sale at any subsequent event in the Location, unless the event occurs 10 98- 138 within one (1) month of the previous event and are still determined to be fresh. Concessionaire shall abide by, and be responsible for compliance with, all Department of Heath guidelines and regulations. Alcoholic beverages and tobacco products may be sold in those specific instances for which the City provides permission to sell in writing. All perishable food shall be packaged, dated, and replaced with fresh products by Concessionaire. It shall be the obligation of Concessionaire to use adequate dating procedures to insure compliance with this requirement and such dating procedures, including any proposed changes, shall be made known and acceptable to the City. Labeling of all items, including perishable foods, shall comply with all USDA and FDA regulations, qualifications, including regulations regarding packaging, labeling, ingredient listing and standards. The Citv shall have free access to any and all records of recipe or production sheets, product specifications, and vendor invoices for food and beverages to be sold by Concessionaire, to determine compliance with this Section. Concessionaire agrees to use Branded Products whenever requested by the City and will use its best business efforts in securing rights of current University of Miami sponsors. Concessionaire agrees that it will ensure that the City remains in compliance with all requirements of any existing agreement, and further agrees to comply with any other such agreement the City may enter into during the term of this Agreement. All products listed on the menu board for sale consumption at any event must be available for sale in sufficient quantities to meet expected demands at each event. Concessionaire shall offer at each event the following minimum sizes for the products listed below: Soda: Small 20 oz. Large 32 oz. Hot Dog, all beef Kosher style, no filler: 2 oz. 2.66 oz Hamburger, all beef, no filler, precooked: 4 oz. Chicken 4 oz. Concessionaire agrees that it shall not subcontract the sale of any of the following items: soda, hot dogs, sausage sandwiches, hamburgers, candy, pop corn, 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 The Concessionaire shall, at its sole cost and expense, purchase, perform and provide all necessary labor and services, and shall furnish, acquire, and provide all supplies, utensils, equipment, materials, and services, including but not limited to, all food, food stuffs, beverages, containers, condiments, which are, necessary or desirable to operate the concessions in a manner that will effectively accommodate the needs of the patrons. 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. 98 - 08 The number, size, wording, location, and method of installing advertising signs shall be subject to the written approval of the Director. 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 Director, 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 name or logo must be approved in advance by the Director. XI LIQUOR BEER OR WINE CONCESSIONS The type of event at which liquor. beer, and/or wine may be sold shall be designated by the City. 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. Liquor sales shall be confined to the areas of the Location designated and approved by the City and by the licenses held by the Concessionaire for the sale of liquor. 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 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 and Press Boxes. The City may prohibit the sale of beer before, during, or after any event, including but not limited to high school football and soccer (except college/university football or other professional sports), 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 the City, 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 by the City. Notwithstanding the foregoing, in such cases: (a) Beer may be provided or dispensed at receptions or social gatherings held in those areas of the stadium specifically designated by the City, including but not limited to, the third -level pressbox structure, the fourth and fifth levels of the "new" pressbox structure, and the area designated as the Athletic Club located above Gate 14. 12 98- 138 (b) A reception or social gathering at which beer is served may not last more than a specified time designated by City. In this regard, receptions or social gatherings at which alcoholic beverages are served may take place at events determined by the City. (c) Refreshments, including beer, may be served at receptions or social gatherings in the designated areas, provided there shall be no charge for such refreshments and that no one leaving such designated area may carry any beer from such designated area into any other part of the stadium. No other areas, except those specifically designated by the City under this subsection, shall be allowed for the dispensation of beer by City when the conditions of this subsection apply. Beer shall be sold at concession stands and vended in the grandstands, but can only be served to customers in a paper or light plastic cups filled from either cans or from other first quality commercial equipment for dispensing cold beer. Prices for the sale of beer shall not exceed those prices exceeding industry standards for comparable beer. The Concessionaire shall make any additions, improvements, and alterations incident to the sale of beer; and the prior written approval for such additions, improvement, and alterations must be obtained from City before any such work is undertaken. 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 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 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. HOURSMAYS OF OPERATION Unless otherwise agreed to by the City, the Concessionaire must have the Concessions open and in operation at any and all events from the time the gates are opened until at least one-half hour after each function is held. Concessionaire must also provide refreshment services at the request of the Director. Furthermore, Concessionaire shall keep the Concessions open during the hours as may be reasonably required to adequately meet public demand and the needs of the City. 13 98- 138 XIV CAPITAL IMPROVEMENT The City shall provide at no charge, and Concessionaire hereby accepts, in an "as is" condition, all food service equipment and facilities presently on the premises. Every year, and as often as the City and/or Concessionaire deem it necessary, Concessionaire shall seal and paint floors, walls, repair or replace counters or broken windows; replace signs; replace expendable equipment such as condiment jars, napkin holders, and other such concessionaire items. Further, the Concessionaire shall provide, at its sole cost and expense, an amount of not less than $300,000.00 for equipment, fixtures, and improvements to the Concession Areas. At least eighty percent (80%) of the capital improvements required shall be purchased and made during the first three (3) years of the term hereof. The location, type, price and installation of the improvements shall be agreed upon by City in advance and in writing prior to any improvement made. Should the Concessionaire not obtain the City's prior written approval, the City reserves the right to accept such improvement but not accept it as being in compliance with this requirement. Within one hundred (120) calendar days following completion of improvements, including equipment and decor, the Concessionaire shall provide to the City a list of improvements, including 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 requirements of all applicable codes and regulations established by the City, County, State, and Federal jurisdictions. In addition to the foregoing, Concessionaire shall install, at its sole cost and expense, all cash registers at each Concession Area or implement Inventory Control System throughout concession areas. Concessionaire shall, at no cost to the City, 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 City . 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 an any utility connection fees, if required. Concessionaire agrees also that any and all building permits, and any other necessary approvals, including approval of the Director, shall be obtained prior to the commencement of each applicable component of construction. Concessionaire understands and agrees that all phases of construction and installation shall be subject to complete inspection and approval by the Director and the City's Public Works Department. The City shall have the right to have present, at any time during the construction period, an inspector who shall have the right of access to the premises and the construction work. The Concessionaire shall not proceed with subsequent phases of construction until the prior phases of construction have been inspected and approved by the Director and the Public Works Department. The Concessionaire shall design, provide, and install all furnishings, fixtures, trade fixtures, equipment, finishes, and signage necessary to operate the Concession as a first-class concession. The minimum 14 98- 138 capital investment shall not include financial costs, interest, inventory, pre -opening expenses, or intra- company charges related to construction. XV PORTABLE CARTS Portable carts may be allowed within the Location upon the approval by the Director . The type of Concession Products offered, and location and number of said carts, shall be approved by the City in advance of any sales. Additionally, the City has the right to restrict or limit the number of carts, the food/beverages sold therein, and the types of carts to be utilized. Approval to place a cart(s) for the sale of any item(s) must receive prior approval from the Director. XVI 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") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Concessionaire or its employees, agents or subcontractors (collectively referred to as "Concessionaire"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnities, or any of them 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- 15 98- 138 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. XVII 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 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 at: 1501 NW 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: 16 98- 138 (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. (2) Comprehensive General Liability affording (i) Bodily Injury Liability (or death) with limits of $1,000,000 for each person and $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 Damage. Elevator, and Concessionaire's Contingent (Protective) Liability with respect to work subcontracted by the Concessionaire. (3) Comprehensive Automobile Liability affording (1) 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. (4) 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 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) 17 98- 138 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. XVIII DEFAULT / RESOLUTION OF DISPUTES 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 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 may 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 premises, 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. Notwithstanding the foregoing, Concessionaire understands and agrees that all disputes between Concessionaire and the City based upon an alleged violation of the terms of this Agreement by the City shall be submitted to the City Manager for his/her resolution, prior to Concessionaire being entitled to seek judicial relief in connection therewith. In the event that the amount of compensation hereunder exceeds $4,500, the City Manager's decision shall be approved or disapproved by the City Commission. Concessionaire shall not be entitled to seek judicial relief unless: (i) it has first received City Manager's written decision, approved by the City Commission if the amount of compensation hereunder exceeds $4,500, or (ii) a period of sixty (60) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation (90 days if City Manager's decision is subject to City Commission approval); or (iii) City has waived compliance with the procedure set forth in this section by written instruments, signed by the City Manager. 18 08- 138 The City shall have the right to terminate this Agreement, in the event of a default, as described in Section X 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. 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 which consent may be withheld, in the City's sole discretion. XX ABANDONMENT If Concessionaire vacates or abandons its operations hereunder for a period of two (2) days, during the term of this Agreement, then the City, at its 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 its discretion, re -advertise and solicit proposals for the provision of concession services, with Concessionaire remaining liable for the payments of 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. B V0 0 1 S The Concessionaire shall maintain, in 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: Daily cash register tapes to support cash collections and copies of all other invoices issued by the Concessionaire for goods and services that are included in "gross receipts." 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. Within three (3) working days after each event, Concessionaire shall submit to the City one event statement of Gross Receipts and other supporting reports. Additionally, annual certified statement of operations shall be submitted within sixty (60) days of the end of each twelve- month period of this Agreement. 19 98- 138 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 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 Cite 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 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. .. i 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 the business conducted thereunder will be operated in strict compliance with all 20 98- 138 laws of the United States and the State of Florida, and with all health and fire codes and all applicable rules and regulations issued pursuant to the said laws. Concessionaire shall not permit the licensed premises, or any part thereof, to be used for any unlawful or immoral purpose or in any manner as to injure persons or property in, or on, or near said premises, and upon termination of this Agreement it shall deliver to the City the premises and fixtures in as good condition and repair as the same shall be found at the beginning of the term, subject to normal wear and tear. The City shall not require Concessionaire to perform unlawful acts nor to perform acts which may be in violation of its union contract, if such a contract exists. 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 or handicap. Concessionaire and its employees and agents shall be deemed to be independent contractors, and not agents or employees of the City and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the City, or any rights generally afforded classified or unclassified employees; further they shall be entitled to the Florida Workers' Compensation benefits as employees of the City 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), Dade County, Florida (Dade County Code, Section 2-11.1 et. sea.) 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, handicap, marital status or national origin. Concessionaire further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, 21 8- 138 marital status or national origin, 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 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: TO THE CITY: Catering By David Lynn, Inc. Department of Conferences, Conventions 816 NW 11 Street & Public Facilities Miami, FL 33136 400 SE 2nd Avenue Miami, FL 33131 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. 22 98- 138 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. 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. 23 8- 138 XXXV ENTIRE AGREEMENT This instrument and its attachments 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. 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. XXXVII APPROVAL BY THE OVERSIGHT BOARD The State of Florida has appointed an Emergency Financial Oversight Board (the "Oversight Board") which is empowered to review and approve all pending City of Miami contracts. As a result, contracts shall not be binding on the city until such time as they have been approved by the Oversight Board. Execution of this Agreement by the City Manager shall constitute evidence of its approval by the Oversight Board. 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. m City" CITY OF MIAMI, a municipal ATTEST: corporation Walter Foeman, City Clerk By: Jose Garcia -Pedrosa, City Manager 24 98- 138 ATTEST: Print Name: Title: Corporate Secretary APPROVED AS TO FORM AND CORRECTNESS: A. QUINN JONES, City Attorney Catering by David Lynn, Inc., a Florida corporation By: Print Name: Title: President APPROVED AS TO INSURANCE REQUIREMENTS: MARIO SOLDEVILLA Assistant Director Risk Management Division 25 98- 138 TO: Honorable Mayor and Members of the Commission FROM: Jose Garcia-Pedre City Manager RECOMMENDATION: CITY OF MIAMI, FLORIDA CA=20 INTER -OFFICE MEMORANDUM DATE : FEB 2 Ic , FILE: SUBJECT: Resolution Authorizing City Manager to Execute a Concessions Agreement for Orange Bowl Stadium REFERENCES: ENCLOSURES: It is respectfully recommended that the City Commission adopt the attached Resolution authorizing the City Manager to execute a Concessions Agreement, in substantially the form attached, between the City of Miami and Catering by David Lynn, Inc. for the provision of concessions services at the Orange Bowl Stadium. BACKGROUND: The City Commission, at its meeting of January 13, 1998, approved the findings of the Selection Committee and authorized the City Manager to negotiate a fair, competitive and reasonable Concessions Agreement with Catering by David Lynn, Inc. to provide concession services at the Orange Bowl Stadium. This Agreement is for a period of five (5) years with an option to extend for an additional period of five (5) years. The City will receive a minimum annual guarantee of $450,000 each year. In addition, Catering by David Lynn, Inc. will invest $300,000 in capital improvements. The following percentages of Gross Receipts shall be paid to the City on the fifteenth (15th) day of each month for sales during the preceding month. Candy, tobacco and food products 33.3% Beverage 35.0% Catering 10.0% Merchandising 25.0% Subcontracted Items 40.0% The Department of Conferences, Conventions and Public Facilities has reviewed this Agreement and recommends that the City Manager enter into said Agreement, in substantially the form attached. 1 98- 138 1