HomeMy WebLinkAbout020255 RES - 03/29/1988A RESOLUTION
AUTHORIZING THE EXECUTION OF A CONTRACT WITH OGDEN FOOD
SERVICES CORPORATION OF TEXAS FOR CONCESSION OPERATIONS AT
MEMORIAL COLISEUM.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI,
TEXAS:
SECTION 1. That the City Manager is hereby authorized to execute a
contract with Ogden Food Services Corporation of Texas for concession operations
at Memorial Coliseum from May 1, 1988, through January 1, 1990, all as more
fully set forth in the lease agreement, a substantial copy of which is attached
hereto and made a part hereof, marked Exhibit A.
ATTEST:
City Secretary
MA OR
THE CIT OF CORPUS CHRISTI, TEXAS
APPROVED: G DAY OF r�� , 197r
By
Assistant City Attorney
206RP003.ord
zozss MICROFILMED
Concessionaire AGREEMENT
THE STATE OF TEXAS
KNOW ALL BY THESE PRESENTS:
COUNTY OF NUECES
This contract made and entered into effect on this
by and between the City of Corpus Christi, a
municipal corporation, (hereinafter called "City"), and Ogden Food Services
Corporation of Texas, a wholly owned subsidiary of Ogden Allied Services
Corporation, (hereinafter called "Concessionaire").
W I T N E S SET H:
WHEREAS, the City desires to have a Concessionaire to serve the
public at Memorial Coliseum, and
WHEREAS, the City desires to have the concession contract at the
Coliseum run concurrently with the contract at the Convention Center so that
they both expire on January 1, 1990, and
WHEREAS, The Concessionaire desires to operate the concessions at
Memorial Coliseum,
NOW THEREFORE, for and in consideration of the premises, and of
the mutual covenants and agreements herein contained, and other valuable
considerations, the City and Concessionaire agree as follows:
Concession Rights
SECTION 101. Concession Rights.
privileges herein granted are the exclusive
the public of soft drinks, beer sandwiches,
merchandise usually and customarily handled
the City retains the right to:
The concession rights and
right to make direct sales to
popcorn, candy floss, and other
by a Concessionaire, except that
A. Handle catering separately and independently from the concession
contract.
B. 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 Concessionaire.
C. Make final decisions on matters which may arise, not
specifically covered in this contract, including the
interpretation thereof.
D. The City especially reserves the right to sell space for either
temporary or permanent signs.
-2--
E.
2-
E. Approve the form of and price of products to be sold and to
require the containers to be suitable for consumption of the
products on premises immediately after the sale. A suitable
print pattern shall be used on all containers, cups, bags,
plasticware, etc. used by Concessionaire. Under no conditions
shall there be any reuse of these containers by Concessionaire
after initial sale or use.
F. To superintend sales, to the extent that sales shall be at and
for a reasonable length of time before and after the time of the
performance or function being served, so as to insure that the
sales will not interfere with the conduct of the performance or
function being served.
G. Concession items such as programs, novelties, song books,
autographed pictures, records, tapes, T-shirts, etc., usually
carried by traveling shows and not normally stocked by
Concessionaire, and additional stands set up on a temporary
basis for this purpose with equipment not owned by the City
or Concessionaire, shall be exclusively sold by or through
Concessionaire pursuant to the arrangement set forth in section
301 C or D, the payment option in the City's discretion.
Privilege agreements between Concessionaire and the
subcontractor for such items must be approved by the Coliseum
Manager and, in case of a dispute, the decision of the Coliseum
Manager shall be final.
SECTION 102. Alcoholic Beverages. Beer sales will be allowed only
after the activity using the building first obtains permission from the City
for such sales.
SECTION 103. General Provisions. Should the Concessionaire's
method of operation, or manner of exercising the exclusive rights granted
herein, interfere with of disrupt any performance or event schedule or in
progress, Concessionaire will modify its method of operation or manner of
exercising its exclusive rights hereunder to meet with the approval and
satisfaction of the Coliseum Manager.
The exclusive rights granted herein shall not be construed so
as to prevent or prohibit an exhibitor from distributing without charge a
sample portion of the type of food or merchandise which is manufactured and
distributed in the normal course of the exhibitor's business or from selling
food items for consumption off the premises.
Term
SECTION 201. Term. The term of this agreement shall begin at 12:01
AM. May 1, 1988, and run until 2:00 AM. January 1, 1990.
SECTION 202. Delays or Causes Beyond Control. The concession
granted is subject to failure or delay caused by strikes, riots, civil
commotion, acts of God, or other causes beyond the control of the City,
including orders, regulations, or instructions of the United States or any
other governing agency having a jurisdiction over the subject matter of this
- 3 -
concession.
SECTION 203. Use of Premises. To provide the Concessionaire with
the services described herein, the City will provide and make available to
the Concessionaire two (2) 62' X 5' stands with sinks, work areas and
approximately three hundred (300) square feet of enclosed space for inventory
storage and an office. The City will also permit portable concession stands
to be located throughout the building, as agreed upon by the Coliseum Manager
and the Concessionaire for each event.
No notice to quit possession at the expiration date of the term of this
Agreement shall be necessary. Concessionaire covenants and agrees that at the
expiration date of the term of this Agreement, or at the earlier termination
thereof, it will peaceably surrender possession of the Concession Premises in
good condition, reasonable wear and tear, and acts of God excepted, and the
City shall have the right to take possession of the Concession Premises with
or without due process of law.
Payments
SECTION 301. Concession Rental. For the Concessionaire rights
and privileges granted, the Concessionaire shall pay the concession fees as
stated below, through the Coliseum Manager, each month during the term hereof,
the percentage of the "Gross Receipts" (as hereinafter defined) from the
operations of the Concessionaire under this Agreement.
Gross Receipts is defined as all revenues or proceeds from sales by
Concessionaire pursuant to this agreement less any and all applicable sales
taxes, Alcoholic Beverage Code taxes, or other taxes assessed on grossed
sales. There shall be no offset for federal, state or local income tax or any
other tax levied on the property or rights acquired by Concessionaire pursuant
to this agreement. Gross receipts shall be computed on an annual basis
commencing with the initial date of operations.
Concessionaire agrees to pay the City:
(A) The percentage of gross receipts each year on all basic
concession items sold, including all drinks, ice, peanuts, popcorn,
cotton candy, chips, doughnuts, hamburgers, pretzels, sandwiches,
hot dogs, french fries, chili dogs, tamales, burritos, coffee,
barbecue and pizza as follows:
All beer sales:
All nonalcoholic beverage and food sales:
For Gross Receipts of
$0.00 - $250,000
$250,001 - $500,000
40.0%
35.0%
37.5%
- 4 -
OVER $500,000 40.0%
(B) When the Concessionaire operates as a caterer, supplying food
on a per -person basis, such service shall be considered a food
subcontract. A flat fee of 10% of gross receipts will be paid to
the City. If Concessionaire operates as a caterer on a basis other
than a per - person basis, a fee shall be established by mutual
consent of the Concessionaire and the Coliseum Manager.
(C) When the Concessionaire subcontracts for the sale of novelties,
programs, T-shirts, caps, pictures, souvenirs, etc., a fee of 20%
of sales will be charged the subcontractor as a house privilege.
A flat 60% of the realized house privilege will be paid the City.
This is to include sales of every nature by any subcontractor,
including vending machines. If Concessionaire is requested to
provide labor or personnel for sales pursuant to a subcontract for
sales under this paragraph, Concessionaire and the Coliseum Manager
shall mutually agree to additional compensation in excess of 205 of
sales.
(D) When the Concessionaire acts as a retailer, selling the
following items:
T-shirts Toiletries
Souvenirs Postcards
Novelties Pictures
Tapes Caps/Hats
Records Emblems
A flat fee of 30% of gross receipts shall be deemed the amount owed
the City.
SECTION 302. Notice, Place and Manner of Payments. Payments shall
be made by check at the office of the City's Coliseum Manager, or at such
other place in the City of Corpus Christi, Texas as the City may hereafter
notify Concessionaire and shall be made in legal tender of the United States.
SECTION 303. Payments. All payments due the City shall be due and
payable without demand at the office of the Coliseum Manager.
Payments from any calendar month shall be due on the 20th day of the
following month. This day shall be considered the due date for all intents
and purposes. Any payment which is not made by this date shall bear a service
charge of one and one-half percent (1.5%) per month from the date it became
due until the date it is paid. Concessionaire agrees that it shall pay
and discharge all costs and expenses including attorney's fees incurred or
expended by the City in collection of said delinquent amounts due including
service charges.
Reporting
SECTION 401. Event Reports. The Concessionaire will be required to
furnish the City a daily report of gross sales on each event serviced. This
report will be submitted on forms provided by the City, and must be turned
-5 -
into
5 -
into the office of the Coliseum Manager no later than 5:00 P.M. of the first
working day after the event has taken place. This form will be signed by the
Concessionaire or the Concessionaire's designated representative.
Cash registers will be used by the Concessionaire to record sales
whenever possible, and the tape from each register used for an event will be
attached to the corresponding concession report. The location of the register
will be written on the tape and it must be verified and signed by the person
that operated the register. If a register is not used, a cash slip must be
prepared for each location that cash was received. This slip must be verified
and signed by a person working at that location. In no case shall the person
who signed the cash register tape or cash slip be the same person that signed
the concession report. In the case of subcontract of novelties, records,
tapes or souvenirs, the Concessionaire shall include a copy of the cash
receipt given the vendor.
SECTION 402. Bank Account. The Concessionaire shall establish a
separate commercial account at a bank in Corpus Christi, Texas diverse from
any other accounts, which shall be exclusively used for all receipts involved
in the Concessionaire's operations with the City of Corpus Christi.
SECTION 403. Accounting Records, Equipment and Reports. The
Concessionaire shall at all times during the term hereof keep true, accurate,
complete and auditable records, in a form satisfactory to the Director
of Finance of the City of Corpus Christi, Texas. The Concessionaire
further agrees that the Coliseum Manager or his duly authorized agents or
representatives shall have the right to examine all pertinent books and
records at any and all reasonable times for the purpose of determining the
accuracy thereof and of the provisions hereof. The making of any willfully
false report of revenue by the Concessionaire shall be grounds for the
immediate cancellation and termination of this Agreement at the option of the
City. Any such report which shall understate the gross by as much as 10% of
the true amount thereof shall be conclusively deemed to have been knowingly
and falsely furnished by Concessionaire. 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.
Aside from permanent books, ledgers, journal accounts and records,
the Concessionaire will not be required to retain beyond twelve (12) months
following the completion of any year of the term hereof collateral papers and
forms such as: Original invoices, sales checks or slips, cash register and
adding machine tapes and analogous supporting data.
The Concessionaire shall, upon the receipt of written request from
the Coliseum Manager, prepare and submit such reports and analyses of the
operation of the concessions under this Agreement in such form and content as
the City may reasonably require in the administration of this Agreement.
The Concessionaire shall submit to the Coliseum Manager a copy of
all reports that are made to the Texas Alcoholic Beverage Commission, and
also a copy of all quarterly sales tax and use tax reports. In addition, the
Concessionaire shall provide the Coliseum Manager with an annual financial
statement. This shall be submitted not later than 60 days after the close of
-6 -
each
6 -
each year of the term of this Agreement.
At the City's option and with written notice made within one (1)
year after the end of each year of the term of this Agreement, the City
may cause an inspection and audit to be made of the books and records of
Concessionaire and of its sub -lessees, sub -concessionaires, and sub -licensees
relating to its operations on the Concession Premises. Such audit shall be
made to determine the correctness of the computation of the Concession Rental
paid by the Concessionaire for the preceding year. If, as as result of such
inspection and audit, it is established that additional Concession Rental
payments are due, Concessionaire shall pay such additional rent to the City
upon written demand made by the City not later than thirty (30) days after
completion of such audit and inspection.
If the results of such audit reveal a difference of more than two
percent (2%) between Gross Receipts reported by Concessionaire and Gross
Receipts as determined by the audit, the cost of the audit shall be paid by
the Concessionaire.
Concessionaire Operations
SECTION 501. Occupancy of Premises. The Concessionaire agrees that
it will not permit any act of omission or commission or any condition to exist
on the Concession Premises or conduct its operations in such a manner which
would increase the premium rate of insurance thereof or on the building or
invalidate any such insurance.
SECTION 502. Hours of Operation. Except as otherwise provided
in this Agreement, the Concessionaire agrees to operate the concessions
granted herein when any event or attraction is scheduled in the facilities,
unless approval not to operate is granted by the Coliseum Manager. The
Concessionaire shall have the concession open and in operation a reasonable
time before, during and after all events as determined by the Coliseum
Manager.
SECTION 503. Personnel. The Concessionaire shall be entitled to
a reasonable number of employees on the premises who shall be permitted free
admission to the facilities provided that the number of such employees is
approved by the Coliseum Manager. Concession employees shall be admitted in
accordance with the regulations established by the Coliseum Manager.
The Concessionaire agrees to employ, train and supervise personnel
with appropriate qualifications and experience and in sufficient number to
provide all the services appropriate for the concessions granted herein with a
minimum of delay for the patrons. The Concessionaire shall not employ anyone
under the age of sixteen (16) years. The Concessionaire shall abide by all
federal, state and local laws, rules and regulations concerning the hiring and
employment of its employees.
Employees shall be clean, neat, courteous, efficient, properly
trained and attendant to patrons of the facilities. Employees shall be
attired in clean uniforms at all times when the facility is open to patrons
and shall wear a badge with the employee name or number legibly imprinted.
The type and design of the uniforms and identification badges are subject to
- 7 --
the
the approval of the Coliseum Manager.
If, in the opinion of the Coliseum Manager, insufficient personnel
are assigned to any event, he may require the Concessionaire to add sufficient
personnel to service the patrons adequately and the Concessionaire shall
promptly do so.
SECTION 504. Solicitation of Business. The Concessionaire's
solicitation of business shall be confined to the stands, booths or other
locations specifically indicated in the Exhibits hereto or otherwise assigned
to the Concessionaire by the Coliseum Manager and to a walking vendor program
specifically approved by the Coliseum Manager for each event or attraction as
to merchandise offered, periods of sale, and number of walking vendors.
The Concessionaire agrees that the Coliseum Manager may be the sole
judge of whether or not walking vendors, portable stands or permanent stands
shall be permitted to sell their wares during any performance or meeting held
in any part of the facilities. The manner of callers, criers, hawkers, or
the use of signs or other means of calling attention to or selling
Concessionaire's merchandise shall be subject to approval of the Coliseum
Manager.
The Concessionaire agrees that alcoholic beverages will not be sold
or exhibited for sale at its stands or bars when a lessee has made his lease
with the understanding that alcoholic beverages will not be sold or exhibited
for all or for specified periods within his lease term of the facility. The
City will give timely notice to the Concessionaire of any such restrictions in
a lease of the facilities.
SECTION 505. Deliveries. Deliveries of all supplies, goods, wares,
merchandise, and equipment to the Concessionaire shall be made as designated
by the Coliseum Manager. The Concessionaire is responsible for accepting all
deliveries to his operation and shall schedule deliveries outside event hours
in the facility, whenever possible.
SECTION 506. Restrictions on Sales by Others. The City will use
all legal means at its disposal to prevent vendors and peddlers not employed
by the Concessionaire from vending or distributing their wares upon the
premises under the control of the City . It is understood, however, that
exhibitors may give away sample -size products or sell merchandise intended for
consumption off -premises.
SECTION 507. Conduct of Other Business. The Concession Premises
used by the Concessionaire in the facility shall be used solely for the
services described herein. Foods and beverages prepared or stored at
the facilities, or novelties or other merchandise for sale stored at the
facilities, may not be sold for consumption off premises.
SECTION 508. Price and Quality of Merchandise. As a general
policy, prices for merchandise for sale shall not be higher than those charged
for the same quality merchandise at comparable facilities elsewhere.
- 8 -
Prices must be posted by the Concessionaire on display at all stands
and on vendor's equipment. Permanent display signs shall not be gaudy or
offensive and the final design and location of all posted prices shall be
subject to the approval of the Coliseum Manager.
The prices, quality and unit quantity of all consumable merchandise
offered for sale shall be as approved in advance by the Coliseum Manager.
Within 15 days of the execution of this Agreement, the Concessionaire shall
submit a detailed "Price Schedule" for all items to be sold. This schedule
shall list the proposed weight and content of each item offered for sale.
The Concessionaire and the Coliseum Manager shall periodically
review the general price structure of all commodities sold and may, by
agreement in writing, for good cause, show an increase or decrease in the
price of any article to be offered for sale.
If the Concessionaire desires to offer for sale any article not
included in an approved "Price Schedule", the Concessionaire may be allowed to
sell the article after obtaining written approval from the Coliseum Manager.
If the Concessionaire desires to substitute any article for an
article listed in the approved "Price Schedule", the written approval of the
Coliseum Manager must be obtained.
SECTION 509. Consumable Merchandise. Concessionaire will offer
customers food, drink, and other consumable merchandise of first quality
and standard quantity. Consumables shall be wholesome and pure and shall
conform in all respects to federal, state and local food laws, ordinances and
regulations. All merchandise kept for sale shall be subject to inspection
and approval or rejection by the Coliseum Manager or duly authorized
representatives of appropriate governmental agencies.
Unless otherwise approved by the Coliseum Manager, all beverages
shall be sold in paper or plastic cups. If plastic cups are used, the vendors
shall use leakproof baskets or containers, and exercise caution to prevent the
scattering of bottle caps, wrappers, napkins or other items on the floor.
SECTION 510. Non -consumable Merchandise. Non -consumable
merchandise to be offered for sale shall be approved, together with prices, by
the Coliseum Manager. Non -consumable merchandise shall be sold only at such
times and in such locations as approved by the Coliseum Manager. Novelties
or souvenirs offered for sale shall be consistent with generally acceptable
social standards in the area and shall not be hazardous or dangerous when used
in their normal manner.
SECTION 511. Advertising. Concessionaire agrees that all
merchandise offered for sale shall be handled without the use of special
advertising, signs, displays or oral trade names. Concessionaire further
agrees not to cause, suffer or permit the advertising and its adjacent
grounds, whether for display, advertising or other allowances or otherwise,
without the prior written approval of the Coliseum Manager.
-9 -
SECTION
9 -
SECTION 512. Temporary or Fixed Concession Stands. The
Concessionaire shall acquire no rights to locations of temporary or fixed
concession stands as may be approved from time to time by the Coliseum
Manager. The City reserves the right to require the Concessionaire to move
the temporary or portable stands and equipment when the needs of events in the
facilities so require. Unless approved in advance by the Coliseum Manager,
all portable stands will be returned to the storage areas immediately upon the
conclusion of the event being served.
The Concessionaire shall furnish at its own expense all labor,
equipment and supplies for the moving and setting up or dismantling of
temporary or portable stands in such locations as approved by the Coliseum
Manager. The Concessionaire may use at no additional charge, available tables
and chairs belonging to the City for the purpose of providing seating adjacent
to concession or cafeteria locations. The Concessionaire is responsible for
setting up, maintaining and taking down any such tables and chairs.
SECTION 513. Operating Objectives. The Concessionaire shall
endeavor constantly to improve the operations with the objectives of
developing maximum gross receipts potential and service to the patrons.
SECTION 514. Promotion of Events. During the term of the food and
beverage concession agreement, and running concurrently with, Ogden Allied
Presents will promote, co -promote, or generate, not less than five (5) first
class mutually agreeable entertainment events in Memorial Coliseum.
Should this agreement for concessions run until it's scheduled
expiration date of January 1, 1990, and Ogden Allied Presents has not
fulfilled this commitment, Ogden Allied Presents shall pay to Memorial
Coliseum the sum of $9,000 per non -completed events, not to exceed a total of
$45,000, which payment is hereby guaranteed by Concessionaire, as additional
consideration for the Concessionaire rights conferred herein.
It is understood that the rental of Memorial Coliseum for such
events will be at historical or published rates and the City shall not bear
any risk of loss or gain relating to the promotion of that event, unless
Memorial Coliseum agrees otherwise in writing.
Improvement of the Premises
SECTION 601. Construction and Installation by the Concessionaire.
In addition to the equipment provided by the City (as shown on Attachment
"A"), the Concessionaire agrees, at its own expense, to provide necessary
trade fixtures or necessary equipment to provide proper service to the patrons
of the Coliseum subject to the terms and conditions hereinafter set out.
Concessionaire shall purchase and install only new or, with the
permission of the Coliseum Manager, good used fixtures, furnishings, and trade
equipment on the Concession Premises, throughout the term of this agreement.
All facilities and equipment necessary to prepare and handle the merchandise
offered for sale will be of the best and most modern type.
- 10-
SECTION
0-
SECTION 602. Building Services. The City will furnish building
services as set forth in this section:
(1) Utilities: The City will furnish standard outlets and
connections as have been installed, for hot and cold water,
natural gas and electricity in the concession stands. Monthly
utility bills will be paid by the City.
(2) Equipment: The City will furnish the equipment listed in
Attachment "A"; all other permanent and portable equipment will
be furnished by Concessionaire.
SECTION 604. Design Control. Any construction and improvement
plans, proposals, materials, colors and designs shall be submitted to the
Coliseum Manager for approval, and the Concessionaire shall not commence the
construction or installation of any improvements on the Concession Premises
without the prior written approval of the Coliseum Manager.
All proposed future changes of the improvements and equipment
shall be submitted and approved in the same manner for the full term of this
Agreement.
SECTION 605. Maintenance and Repair. Maintenance and repair of all
concession equipment installed by the City, and improvements furnished by the
Concessionaire during the term of the Agreement shall be at the expense of
the Concessionaire. The Concessionaire agrees to keep in good repair and to
maintain in clean and good appearance all equipment and improvements.
SECTION 606. Signs. Concessionaire agrees that no signs or
advertising displays' shall be placed on or erected in any manner upon the
areas of the Concession Premises without prior approval of the Coliseum
Manager with respect to wording, type, size, design, color and location.
SECTION 607. Title to Improvements. All permanent improvements,
except trade fixtures installed by the Concessionaire, shall remain the
property of the City upon termination of this Agreement. Title to all
equipment, temporary or portable shall remain with Concessionaire upon
termination of this agreement.
SECTION 608. Compliance with Laws and Regulations. The
Concessionaire shall comply with all federal, state and city statutes, laws
and ordinances and all such rules and regulations now or hereafter applicable
to the Concession Premises or to any adjoining public ways, or as to the
manner of use or the conduct of the Concessionaire's business hereunder.
SECTION 609. Utilities. The City shall furnish reasonable heating
and air-conditioning, and the building services set forth in Section 602. The
City will, at its own expense, provide all electricity and water and sanitary
drainage required for the concession operations, as previously installed.
The City shall not be liable for interruption of any service when such
interruption is caused by required maintenance work, or when the interruption
is not due to negligence on its part.
The Concessionaire agrees that the cost of the installation of
any new utility services requested by the Concessionaire for the Concession
Premises will be negotiated with the Coliseum Manager.
SECTION 610. Repairs and Maintenance. The cost of maintenance and
repair of the equipment shall be borne by the Concessionaire, except that the
City shall maintain the structure and the mechanical, plumbing and electrical
systems of the Concession Premises.
The Concessionaire will, at its own
fixed Concessionaire locations clean and neat
keep the public area within a ten -foot radius
concession stands and any temporary stands or
may be operated clean and free of all refuse,
other nuisance.
expense, keep the temporary or
. The Concessionaire shall also
of any portion of the fixed
portable stand locations that
rubbish, litter, obstructions or
Concessionaire shall provide garbage and refuse receivers in numbers
satisfactory to the Coliseum Manager, within the stands described above and
shall "police" these areas after intermissions, or more frequently as required
to keep the areas neat. Concessionaire shall sweep or mop the floors in
these areas as necessary to maintain neatness. All transportation of ice to
temporary stands shall be done in drip -proof containers.
Concessionaire shall provide for complete sanitary handling,
transportation and disposal away from the Concession Premises of all trash,
garbage and refuse (liquid or solid) in accordance with standards established
by the Coliseum Manager. Concessionaire shall remove the refuse containers
from the refreshment stands area and deposit them in an approved collection
area located on the premises of the Coliseum for trash and refuse.
The Concessionaire will design and implement an extermination
program for insects and rodents in all areas under the use of the
Concessionaire. The plan shall be submitted to the Coliseum Manager for
approval.
SECTION 611. Right to Enter, Inspect and Make Repairs. The City
and its authorized officers, employees, agents, contractors, subcontractors
and other representatives shall have the right (at such times as may be
reasonable under the circumstances and with as little interruption of the
Concessionaire's operations as is reasonably practicable) to enter upon and in
the Concession Premises for the following purposes:
(1) Inspection: To inspect such premises to determine whether the
Concessionaire has complied and is complying with the terms and
conditions of this Agreement.
(2) Maintenance: To perform maintenance and make repairs in any
case where the Concessionaire is obligated, but has failed to
do so, after the City has given the Concessionaire reasonable
notice to do so, in which event the Concessionaire shall
reimburse the City for the reasonable cost thereof promptly
upon demand.
- 12-
(3)
2-
(3) Access: To gain access to the mechanical, electrical, utility
and structural systems of the Facilities for the purpose of
maintaining and repairing such systems.
Insurance and Indemnification
SECTION 701. Liability Insurance. The Concessionaire, at its
expense at all times during the term hereof, shall cause the City, its
Facilities, tenants and the Concessionaire to be insured on an occurrence
basis, under policies no more restrictive than the standard broad form
comprehensive general liability policy, including products liability and
liquor liability, against the claims of any and all persons for personal
or bodily injury (including wrongful death) in a sum of not less than
$1,000,000.00 for any one person, and not less than $1,000,000.00 for any
on occurrence, arising from, but not limited to work, acts, operations or
omissions incidental to the operations of the Concessionaire, its officers,
agents, employees, subconcessionaires and independent contractors, hereunder,
and not less than $50,000.00 each occurrence for damage to property of others.
Such insurance shall specifically insure the obligations of the Concessionaire
to indemnify the City and its tenants under Section 808 hereof.
Insofar as said insurance provides protection against liability for
damages to third parties for personal or bodily injury, death and property
damage, the City and its tenants shall be included as additional insureds.
The City or its tenants shall have no liability for any premiums charged for
such coverage, and no liability for the inclusion of the City or any tenant
or joint venturer with the Concessionaire in its operations in the Facilities.
The additional insureds are relieved from the consequences of violations
committed by the named insured of conditions of the insurance policies.
Insurance carried by Concessionaire under this Agreement is the primary
coverage in case of loss and damage, and the City's insurance is excess and
solely for damages or losses for which the City is responsible.
The Concessionaire and the City understand and agree that the
minimum limits of the insurance herein required may become inadequate, and the
Concessionaire agrees that it will increase such minimum limits upon receipt
of notice in writing from the Coliseum Manager.
SECTION 702. Limitation as to Policies. All policies of insurance
required herein shall be in a form and content and with a company or companies
approved by the City, and qualified to do insurance business in the State of
Texas. Each such policy shall provide that the policy may not be materially
changed, altered or cancelled by the insurer during its term without first
giving thirty (30) days prior written notice to the parties insured.
SECTION 703. Evidence of Insurance. Certificates, or other
evidence of insurance coverage required of the Concessionaire in this Article,
shall be delivered to the Coliseum Manager in form and content satisfactory to
the City prior to the execution of this Agreement.
At least thirty (30) days prior to the expiration of any such
policy, the Concessionaire shall submit to the Coliseum Manager a certificate
showing that such insurance coverage has been renewed. If such coverage
is cancelled or reduced, the Concessionaire shall, within fifteen (15) days
- 13-
after
3-
after the date of such written notice from the insurer of such cancellation
or reduction in coverage, file with the Coliseum Manager a certificate showing
that the required insurance has been reinstated or provided through another
insurance company or companies.
SECTION 704. Worker's Compensation Insurance. The Concessionaire
shall, at its own cost and expense, secure Worker's Compensation Insurance to
an extent sufficient to meet all worker's compensation payments required by
law for the benefit of, and keep insured during the term of this Agreement
each of the persons employed by it in the operations of the concession rights
in this Agreement.
SECTION 705. Adjustment of Claims. Concessionaire shall provide
for the prompt and efficient handling of all claims for bodily injury,
property damage or theft arising out of the activities of Concessionaire under
this Agreement.
SECTION 706. Conditions of Default. If, at any time, the
Concessionaire shall fail to obtain the insurance as required herein, the City
may effect such insurance by taking out policies in companies satisfactory
to the City. The amount of the premiums paid for such insurance by the City
shall be payable by the Concessionaire to the City with the installment of
rent thereafter next due under the terms•of this Agreement.
SECTION 707. Cancellation, Termination or Interruption of Event.
Concessionaire understands that the City reserves the right in its sole
discretion to cancel, interrupt or terminate any performance, lecture, event,
public or private gathering, whether or not admission has been charged, upon
its premises, 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 act of the City, its officers, agents, or employees, in the
exercise of the City's discretions as aforesaid.
SECTION 708. Indemnification. The Concessionaire agrees to
indemnify and save harmless the City, its City Council, and its officers,
agents and employees from and against any and all loss of or damage to
property of a third person or injuries to, or death of , any person or
persons, and from any and all claims, damages, suits, costs, expense,
liability, actions or proceedings of any kind whatsoever, in any way resulting
from, or arising out of the acts or omissions of officers and employees of
the Concessionaire arising out of this Agreement or the Concessionaire's use
and occupancy of the Concession Premises. At its own cost and expense,
Concessionaire will defend and protect the City and its tenants from any and
all such claims or demands and will defend all suits arising therefrom.
Assignment
SECTION 801. Assignment. The Concessionaire agrees not to assign,
transfer, convey, sublet or otherwise dispose of this Agreement of any rights
or responsibilities thereunder, or of its right, title or interest in, or
its power to execute such Agreement to any other persons, firm, corporation,
sublessee or subconcessionaire without the written consent of the City.
- 14-
Liens
4-
Liens and Claims
SECTION 901. Prompt Payment of Taxes and Fees. The Concessionaire
covenants and agrees to pay promptly all lawful general taxes, special
assessments, excises, license fees, permit fees and utility service charges of
whatever nature, applicable to its operations in the Facilities, and to take
out and keep out current all licenses, municipal, state or federal, required
for the conduct of its business at and upon the Facilities, and further
covenants and agrees not to permit any of said taxes, assessments, excises,
fees or charges to become delinquent.
SECTION 902. Mechanics' and Materialmen's Liens. The
Concessionaire agrees not to permit any mechanics' or materialmen's or
any other lien to become attached upon the Concession Premises or any part
or parcel thereof, by reason of any work or labor performed or materials
furnished by a mechanic or materialman or for any other reason.
Termination of Agreement in Entirety
SECTION 1001. City's Right to Terminate. The City, acting by and
through its Coliseum Manager, may declare this Agreement terminated in its
entirety, in the manner provided in Section 1003 hereof, upon the happening of
any one or more of the following events and may exercise all rights of entry
and reentry with or without process of law, upon the concession premises:
(1) Nonpayment: If the rentals, fees, charges or other money
payment which the Concessionaire herein agrees to pay, or any
part thereof, shall be unpaid after the date the same shall
become due.
(2) Default: If the Concessionaire shall have failed in the
performance of any covenant or condition herein required to
be performed by the Concessionaire. This includes, but is not
limited to the failure on the part of the Concessionaire to
submit the reports required by the City or the failure on
the part of the Concessionaire to provide good service to
the lessees of the Coliseum. Failure by the City to take any
authorized action upon default by Concessionaire of any of the
terms, covenants or conditions required to be performed, kept
and observed by the Concessionaire shall not be construed to be
or act as a waiver of default or in any subsequent default of
any of the terms, covenants and conditions herein contained to
be performed, kept and observed by the Concessionaire.
(3) The happening of any act or omission which results in the
suspension or revocation of any act, power, license, permit
or authority that terminates the conduct and operation of the
Concession in any of the facilities of the Coliseum by the
Concessionaire, or suspends it for any time in excess of thirty
(30) days.
(4) The interest or estate of the Concessionaire under this
Agreement is transferred to, passes to or devolves upon,
by operation of law or otherwise, any other person, firm or
- 15-
corporation
5-
corporation without the written consent of the City other than
the result of becoming a successor or merged corporation in a
merger or a constituent corporation in a consolidation.
(5) The levy of any attachment or execution, or the appointment
of any receiver, or the execution of any other process of
any court of competent jurisdiction which does, or as a
direct consequence of such process, will interfere with
Concessionaire's occupancy of the Concession Premises and will
interfere with its operations under this Agreement, and which
attachment, execution, receivership, or other process or such
court is not enjoined, vacated, dismissed, or set aside within
a period of thirty (30) days.
(6) A petition under any part of the Federal bankruptcy law, or an
action under any present or future solvency law or statute is
filed against Concessionaire and Concessionaire's operations
hereunder are interfered with or adversely affected thereby, or
Concessionaire is adjudicated as bankrupt. Upon notification
that the Concessionaire has declared bankruptcy, the City
may immediately make other arrangements to provide concession
services to its customers until an arrangement is worked
out between the City and the Court. The Concessionaire will
not share in any of the revenues derived from such temporary
arrangements.
(7) Concessionaire shall voluntarily abandon, desert, vacate or
discontinue all or part of its operation of the concession, or
the Concession Premises, or any other action that results in a
failure by Concessionaire to provide the public and others with
the service contemplated hereunder.
SECTION 1002. The Concessionaire's Right to Terminate. The
Concessionaire at its option, may declare this Agreement terminated in its
entirety, in the manner provided in Section 1103 hereof, if the City shall
have failed in the performance of any covenant or condition within the control
of the City and herein required to be performed by the City.
SECTION 1003. Procedure for Termination and Repossession.
(1) For nonpayment, the Coliseum Manager will provide notice to
the Concessionaire in writing as to the exact nature of the
complaint and the Concessionaire will be given 30 days from the
date the notice was mailed to correct the deficiency. If the
deficiency is not corrected within 30 days, the contract shall
be terminated. In the event the Concessionaire's payment to
the City is past due the second time during the period of one
calendar year, the procedures for notification will remain the
same; however, the deficiency must be corrected within 10 days
or the contract will be terminated.
In the event the Concessionaire's payment to the City is past
due the third time during the period of one calendar year, the
City will provide written notice that the contract with the
-16 -
Concessionaire
16 -
Concessionaire will be terminated immediately.
(2) For poor performance, the Coliseum Manager will provide
to the Concessionaire a written notice about the nature of
the complaints and inform the Concessionaire that he is on
probation. The probation period shall last for 90 days.
If, during that period, the complaints are not remedied, the
Coliseum Manager, with the written approval of the Convention
Center Manager, may terminate the contract with the
Concessionaire by giving a 30 day notice.
(3) Other reasons, as outlined in Section 1001. Except for
nonpayment or poor performance, no termination declared
by either party shall be effective until not less than 30
days have elapsed after notice by either party to the other
specifying the date upon which such termination will take
effect. In addition, the cause of which this agreement is
being terminated must be specified.
SECTION 1004. Rights Cumulative. It is understood and agreed
that the rights and remedies of the City and Concessionaire specified in this
Article are not intended to be, and shall not be, exclusive of one another or
exclusive of any common law right of either of the parties hereto.
officer,
under or
have been
Texas.
Miscellaneous Provisions
SECTION 1101. No Personal Liability. No Councilperson, director,
employee or other agent of either party shall be personally liable
in connection with this Agreement.
SECTION 1102. Governing Law. This Agreement shall be deemed to
made in and be construed in accordance with the laws of the State of
SECTION 1103. Notices. Except as herein otherwise expressly
provided, all notices required to be given to the City hereunder shall be in
writing and shall be sent by certified mail, return receipt requested, to the
Coliseum Manager, P. 0. Box 9277, Corpus Christi, Texas 78469; all notices,
demands and requests by the City to Concessionaire shall be sent by certified
mail, return receipt requested, addressed to: Attn. General Counsel, Ogden
Allied Services Corporation, 2 Pennsylvania Plaza, NY. NY. 10121
The parties, or either of them, may designate in writing from
time to time any changes in addresses or any addresses of substitute or
supplementary persons in connections with said notices. The effective date
of service of any such notice shall be the date such notice is mailed to
Concessionaire or said manager.
SECTION 1104. Amendments. This Agreement may be amended from time
to time by written agreement, duly authorized and executed by representatives
of all the parties hereto.
- 17 -
SECTION 1105. Force Majeure. Neither the City nor Concessionaire
shall be deemed in violation of this Agreement if it is prevented from
performing any of the obligations hereunder by reason of strikes, boycotts,
labor disputes, embargoes, shortage of material, acts of God, acts of the
public enemy, acts of superior governmental authority, weather conditions,
riots, rebellion, sabotage, or any other circumstances for which it is not
responsible or which is not within its control.
SECTION 1106. Invalid Provisions. In the event any covenant,
condition or provision herein contained is held to be invalid by a court of
competent jurisdiction, the invalidity of any such covenant, condition or
provision shall in no way affect any other covenant, condition or provision
herein contained, provided the invalidity of any such covenant, condition
or provision does not materially prejudice either the City or Concessionaire
in its respective rights and obligations contained in the valid covenants,
conditions and provisions of this Agreement.
SECTION 1107. Headings. The headings of the several Articles and
Sections of this Agreement are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope or intent of
any provisions of his Agreement and shall not be construed to affect in any
manner the terms and provisions hereof or the interpretation or construction
thereof.
SECTION 1108. Withholding Required Approvals. Whenever the
approval of the City, or of the Coliseum Manager or of Concessionaire is
required herein, no such approval shall be unreasonably requested or withheld.
SECTION 1109. Successors and Assigns. All of the terms,
provisions, covenants, stipulations, conditions and considerations of this
Agreement shall extend to and bind the legal representatives, successors,
sublessees and assigns of the respective parties hereto.
SECTION 1110. Waivers. No waiver of default by either party of
any of the terms, covenants and conditions hereof to be performed, kept and
observed by the other party shall be construed as, or operate as, a waiver
of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
SECTION 1111. Discrimination. Concessionaire will not on
the grounds of race, color or national origin, discriminate or permit
discrimination against any person or group of persons in any manner. The City
hereby reserves the right to take such action as the United States Government
may direct to enforce this covenant.
The Concessionaire agrees to refrain from any unlawful employment
practice as to comply with all lawfully adopted regulations relating thereto.
Concessionaire agrees to furnish service on a fair, equal and
nondiscriminatory basis to all users thereof, and to charge fair, reasonable
and nondiscriminatory prices for each unit or service.
- 18 -
SECTION 1112. Entire Agreement. This Agreement constitutes the
entire Agreement between the parties hereto and all other representations
of statement heretofore made, verbal or written, are merged herein and this
Agreement may be amended only in writing, and executed by duly authorized
representatives of the parties hereto.
IN WITNESS WHEREOF, the parties hereto for themselves, their
successors and assigns, have executed this Agreement the day and year first
above written.
CITY OF CORPUS CHRISTI:
ATTEST:
Armando Chapa
City Secretary
Juan Garza
City Manager
Harold R. Peterson Bill Hennings
Convention Center Manager Assistant City Manager
APPROVED AS TO LEGAL FORM:
Hal George
City Attorney
Concessionaire:
Ogden Food Service Corporation
of Texas
Corpus Christi, Texas
s29 day of /✓(4i.tellJ , 198g
The above resolution was passed by the following vote:
Betty N. Turner
David Berlanga, Sr.
Leo Guerrero
Clif Moss
Bill Pruet
Mary Rhodes
Frank Schwing, Jr.
Mary Pat Slavik
Linda Strong
99.066.01
20255