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HomeMy WebLinkAbout14506 ORD - 09/20/1978JKH:hb: 8/14/78 -"t ' AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A TWO - YEAR CONTRACT WITH JOHN NICHOLSON FOR CONCESSION RIGHTS AT THE BAYFRONT PLAZA AUDITORIUM, ALL AS MORE FULLY SET FORTH IN THE CONTRACT, A SUBSTANTIAL COPY OF WHICH IS ATTACHED HERETO AND MARKED EXHIBIT "A ", AND MADE A PART HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Manager be and he is hereby authorized to execute a contract with John Nicholson for concession rights at the Bayfront Plaza Auditorium, all as more fully set forth in the contract, a substantial copy of which is attached hereto, marked Exhibit "A ", and made a Part hereof. s �_ fc OFILM€ 145C3 S AGREEMENT THE STATE OF TEXAS X COUNTY OF NUECES KNOW ALL MEN By THESE PRESENTS: x This contract made and entered into effective on the 1st day of August, 1978, by and between the City of Corpus Christi, a municipal corporation, hereinafter called "CITY ", and Mr. John Nicholson dba Auditorium Concessions, of Corpus Christi, Nueces County, Texas, hereinafter called "CONCESSIONAIRE ". W I T N E S S E T H: The City hereby grants unto Concessionaire the rights of concession, as herein- after defined, at the locations hereinafter specifically set out, subject to the terms, conditions and covenants as follows, to -wit: I Terms of the Agreement. In consideration of the rent hereby provided to be paid by the Concessionaire and the covenants on his /her behalf herein contained, the City hereby grants Concessionaire rights to concession for a term beginning August 1, 1978, and ending at 11:59 p.m. on July 31, 1980 (unless previously terminated under any provision herein contained), at the designated concession locations in the Auditorium for the sale and dispensing of food, beverages and other merchandise as hereinafter provided. Upon the mutual consent of the Concessionaire and the City, this agreement may be extended for a period of up to one (1) year from the date of the scheduled termina- tion of this contract as detailed above. II Concession Rights Defined. The concession rights and privileges herein granted are the exclusive right to make direct sales to the public of soft drinks, alcoholic beverages, and other merchandise usually and customarily handled by a concessionaire in a facility such as the Auditorium, except that the City retains the right to: (A) Handle catering separately and independently from the con ssioon contract. (B) Grant permission for conventions or beverages to its own group when the sale aof said tmeals - ell food and the nature of the event as determined by the Convention CenteriManager. This right does not apply to public events for which tickets are to be sold. (C) Grant permission for merchandise to be given away on the premises and is in no way obligated to the Concessionaire to force such merchandise to be purchased through her /him. (D) Use space designated for concessions in the Lounge (excepting inventory storage) when the Concessionaire is not using such space. r. -2- (E) Make final decision on matters which may arise not speeificall • in the specifications, including the interpretation thereof. y covered (F) Exclude from this Agreement the right for Concessionaire to sell space for either temporary or permanent signs. The City especially reserves this right to itself. (G) Approve the form of products to be sold and to require the containers to be suitable for consumption of the product on premises immediately after sale. (H) Superintend sales to the extent that sales shall be only at and for a reasonable length of time before and after the time of the performance or function being served and so as to insure that the sales will not interfere with the conduct of the performance or function being served. (I) Make the final decision concerning the amount the Concessionaire will charge a Lessee for the right to sell programs, novelties, records, tapes, etc. (J) Prohibit the opening of concessions when, in the opinion of the Convention Center Manager, such activity does not complement an event. III Location of Concession: The City will provide and make available to the Con- cessionaire and, except for the supervision of the City, to be in the exclusive control of the Concessionaire the following: (1) Auditorium - One (1) Round Bar approximately 50' in circumference (200 square feet), with installed equipment as detailed in Section IV, item B. (2) Storage Spaces: Restricted to storage room 11334; and that space located under the stairwell in corridor 133 as indicated on the Auditorium architectural plans. IV The City agrees to furnish the following: (a) Utilities: Standard outlets and connections for water and electricity for service of concession activities only. Monthly utility bills will be paid by the City. (B) Equipment: Installation and major maintenance and repairs to the following will be paid by the City: On Premises: 1 Three Compartment Sink, 4' long x 2631" deep 1 Bottle Speedway 1 Dry Waste Chute 1 Towel Ring 1 Bottle Cooler Box, 50" long x 26'" deep x 34" high 4 Ice Dispensers 1 Single hand sink. A reasonable number of tables, chairs in lounge or other areas for patron seating (placement and number to be determined by the Convention Center Manager) The above equipment is made of high quality stainless steel. Equipment furnished by Concessionaire shall be of equivalent quality of that provided by the City, and all installations must be approved by the Convention Center Manager. Any permanently installed equipment will become the property of the City at the expiration of this lease agreement. ' 1 -3- V Obligations of Concessionaire. The Concessionaire will be responsible to the City as follows: (A) Compliance with all City health regulations and all ordinances of the City of Corpus Christi as they affect the concession operation. Concessionaire will secure at its sole expense all permits, licenses, etc., required by any govern- mental agency, including a full liquor license. (B) Insurance. The Concessionaire covenants that it will carry insurance as follows: I. Before permitting any employees to begin working in any capacity, Concessionaire shall cover all employees by Workmen's Compensation Insurance, or other coverage approved by the State Industrial Accident Board. 2. Before beginning or permitting the installation of any furnishings, fixtures, equipment, etc., Concessionaire shall procure and keep in full force and effect Public Liability and Property Damage Insurance under which the City shall be, co- insured. 3. Before opening up for business, Concessionaire shall procure either by separate policy or by appropriate rider to its Public Liability Insurance Products Liability coverage which is sometimes referred to as Food Handlers or Restaurant Operators Protection (protecting against claims for damages to persons claiming to have been served unwholesome foods, etc.). The policies referred to in 2 and 3 above shall be in amounts providing for pro- tection of not less than $50,000 against liability or damage to property in any one accident ($250,000 aggregate) and protection of not less than $300,000 for injury to one person subject to a limit of not less than $300,000 protection if injury to two or more persons in a single accident or other occurrence. The originals of all of the policies referred to in 1, 2 and 3 above, or copies thereof, certified by the agent issuing them, shall be deposited by the Concessionaire with the Convention Center Manager who shall forward them to the Director of Finance for custody. They shall include provisions that they cannot be cancelled except after the expiration of fifteen days after delivery of notice of the intention to cancel to the Director of Finance. Failure on the part of the Concessionaire to furnish a new Policy or certified copy before the expiration date of such policy or failure to furnish a new policy before the date so fixed for the cancellation of the existing Policy so that the risk-referred to shall be continuously protected will constitute a default on the part of the Concessionaire entitling the City to its option to terminate the entire agreement. . e -4- If either of the policies referred to in 2 and 3 above do not show u • pott their face that they are a flat premium policy and the premium has been paid in full, they must be accompanied by a rider or other appropriate certificate or waiver sufficient to establish that the company or agency issuing the same is entitled to look only to Concessionaire for any premium payments and has no right to recover any premiums from the City. The Public Liability Policy or the policies referred to in 2 above shall include provisions that the City is fully protected not only against claims on behalf of the general public, but also against claims on the part of any of Concessionaire's employees, including claims based upon alleged negligence on the part of City, its officers, agents or employees. If Concessionaire cannot procure such broad protection for the City as a part of its Landlord- Tenant Public Liability Policy, it shall at its sole cost and expense furnish other appropriate policies, approved by the City Insurance Committee and City Attorney, which will also protect City. (C) Posting in a conspicuous place, visible from every location where merchan- dise is sold, a schedule of prices approved in writing by the Convention Center Manager. Prices charged shall not be in excess of those charged under similar con- ditions elsewhere in City. (D) Maintaining a clean, safe, orderly, and sanitary operation within the concession locations and adjacent areas. Concessionaire will also be responsible for the actions and demeanor of subcontractors, deliverymen, etc. while they are conducting business within the building. (E) Returning the premises and equipment to City in the condition received, except for normal wear and tear. (F) Collecting debris in the concession stand in covered containers and placing same in designated trash areas outside the building at the conclusion of each event served. (e) Providing a detailed report at the conclusion of each event served on forms to be provided by City and reporting income from subcontracts, if any, as earned. (H) Consulting with and receiving approval from the Convention Center Manager on the quality, quantity and price schedule of all concession merchandise. (I) Requiring employees to wear appropriate uniforms to indicate the fact and nature of such employment and to present themselves to the public in a clean and neat condition and in polite and courteous manner. Drinking on duty, showing up in a con- dition unfit for work, or objectionable conduct, will give the City the right to demand the immediate dismissal of concession help, and if management or the Concessionaire is the party involved, immediate cancellation of the contract. -5- (J) 1. Being prepared to furnish additional equipment (other than that pro- vided by City) and personnel sufficient to serve up to 2,500 people in the Auditorium during a 15- minute intermission upon reasonable notice from the Auditorium Office. (The term "sufficient" as used in the foregoing paragraph means that Concessionaire will have on hand equipment and personnel adequate to serve all persons attending the particular event.) 2. Concessionaire shall be prepared to furnish the following equipment upon acceptance of this agreement: All drink equipment apparatus 2 Portable Bars (Note: Bars are to be stored in designated storage areas after each event.) (K) Serving only those food products which have been approved by the Convention Center Manager. (No cooking whatsoever shall be permitted without the expressed written permission of the Convention Center Manager.) VI General Provisions: (A) It is a condition of the concession rights herein offered that City will not be responsible to Concessionaire in any manner for merchandise, equipment, etc., belonging to Concessionaire if such are not removed from the concession locations by Concessionaire during periods when concession locations may be otherwise occupied. It is likewise a condition that equipment and merchandise which is not in the sole possession of Concessionaire may not be removed. (B) When temporary concession stands are required at locations other than those already specified the City will provide the space,'and Concessionaire will be respon- sible for setting up and taking down such temporary concession stands. (C) Operation of the concession will at all times be in keeping with the activity using the facilities,and restraint shall be exercised in the handling of any equipment to minimize interference with the served event caused by resulting noise. The Convention Center Manager shall have the right to instruct Concessionaire to cease those operations which produce disturbing noises during those periods when the resulting noise will interfere with the enjoyment of the event in process. Such instruction shall be immediately complied with. Sales of alcoholic beverages will be allowed only after the written permission of the Convention Center Manager has been obtained. (D) Subcontracts: (1) Concession items such as programs, novelties, song books, records, tapes, pictures, etc., usually carried by traveling shows and not normally stocked by Concessionaire are considered as subcontracts. Privilege agree- ments between Concessionaire and the subcontractor for such items must be approved by the Convention Center Manager and, in case Of a dispute, the decision of the Convention Center Manager shall be final. (2) Arrangements for vending machines and supervision of the machines to see they are stocked and moved according to the event is the respon- sibility of Concessionaire. Vending machines are considered to be sub- contracts. Exempt from this contract are those vending machines located in the restrooms and non - public areas. (3) For the purpose of this agreement, the percentage of gross receipts that the City will receive from subcontracts will be determined from the total amount of money the Concessionaire receives from the Subcontractor rather than the total purchase amount of the items sold by the Subcontractor. (E) Maintenance of City -owned equipment will be the responsibility of Concessionaire, and City employees will not service the equipment unless a request for major repairs or maintenance is reported to the Convention Center Office. Per this agreement, the Concessionaire is not required to install an ice maker for the Lounge; 40wever, he /she is expected to furnish ice as required. (F) Concessionaire shall acquaint himself with the regulations and rules of the Alcoholic Beverage Commission and comply with the qualifications to obtain and keep a license for the sale of alcoholic beverages. VII Consideration to be paid by the Concessionaire: "Per this agreement, the Concessionaire shall make the following rental payment: (1) 11 % of all gross sales on all items sold, including all drinks, alcoholic and nonalcoholic, and food items; and (2) --.L3—% of gross amounts received by Concessionaire from subcontracts." VIII Accounting Procedure: All payments due the City shall be due and payable without demand at the office of the Convention Center Manager. At the conclusion of each event, a report of the gross sales (and gross receipts in the case of subcontracts) shall be provided to the Convention Center Manager on forms approved by the City. Payments from any calendar month shall be due on the 20th day of the following month, and such day shall be considered the due date for all intents and purposes. Any payment which is not made within ten days after the date it is due shall bear interest at the rate of 10% per annum from the date it became due until the date it is paid. In the event any amount of sum owing by the Concessionaire to the City under this agreement remains unpaid after the demand for payment thereof and is there- after collected by suit, 10% in addition computed on the amount otherwise recovered -7- therein by the'City'as attorney's fees and cost of the expense of* collection shall be paid. The Concessionaire's cash register and all records relating to the operation of the concession shall be subject to the examination and audit by the City at any time. If Concessionaire shall knowingly furnish any incorrect statement of the amount of gross sales, this will constitute a default entitling the City at its option to declare this concession terminated. Any such report which shall understate the gross sale for any month by as much as 10% of the true amount thereof shall be conclusively deemed to have been knowingly and falsely furnished by Concessionaire, and the City, in order to exercise its option of termination, shall only be required to establish such falsity and shall not be required to establish actual knowledge on the part of the Concessionaire. IX Termination: If at any time the City is of the opinion that the Concessionaire is not in performance of the terms of this agreement, the City shall have the option to terminate this agreement by notifying the Concessionaire in writing that a violation of a condition of the contract has occurred and setting forth the nature of such vio- lation. In the event such violation is not discontinued, and a correction made on or before the next event for which concessions are to be provided by Concessionaire, or within ten days of such notice, whichever date first occurs, then this agreement shall be terminated except for the right of City to recover any and all sums payable by Concessionaire. Concessionaire may appeal from such notice within five (5) days of the receipt of same from the Convention Center Manager and such appeal shall be in writing to the Director of Inspections and Operations and then to the City Manager whose decision shall be final. WITNESS OUR RANDS in duplicate originals at Corpus Christi, Texas this the day of 1978. ATTEST: CITY OF CORPUS CHRISTI City Secretary R. Marvin Townsend City Manager APPROVED: day of , 1978: J. BRUCE AYCOCK, CITY ATTORNEY By Assistant City Attorney John Nicholson dba Auditorium Concessions Director of Finance That the foregoing ordinance Was read for he first time and paSS96d to its second reading on this the 11 day of 19, by the fo owi t ng vo e. Gabe Lozano, Sr. Bob Gulley David Diaz Ruth Gill �7 Joe Holt (a/ Tony Juarez, Jr. (� Edward L. Sample That the foregoing ordinance was read for se third reading on this the--2? day of following vote: Gabe Lozano, Sr. Bob Gulley David Diaz Ruth Gill Joe Holt Tony Juarez, Jr. Edward L. Sample That the foregoing ordinanceAas ^ea d or the thi on this the—.20 day of 19' Gabe Lozano, Sr. Bob Gulley David Diaz Ruth Gill Joe Holt Tony Juarez, Jr. Edward L. Sample PASSED AND APPROVED, this the_ day of ATTEST: City Secretary MAYOR APPROVED: THE I' _DAY OF CG� 19 J. BRUCE AYCOCK, CITY ATTORNEY By A Assista ty Attorney 14506 ime and pas ed to its 19, by the time and passed finally _, by the following vote: 19 7O CHRISTI, TEXAS