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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