HomeMy WebLinkAboutService America Corporation dba Centerplate - Concession and Catering ContractYAKIMA CONVENTION CENTER
CONCESSION AND CATERING CONTRACT
THIS CONTRACT is made and executed by and between the CITY OF YAKIMA, a
municipal corporation (hereinafter the "Owner"), and Service America Corporation d/b/a
Centerplate (hereinafter the "Contractor").
WHEREAS, the Owner desires food and beverage catering, concession, and vending
services and sales at the Yakima Convention Center ("Center");
WHEREAS, neither the Owner nor the Yakima Valley Visitors and Convention Bureau
(hereafter the "Bureau") has the staffing levels or the specialized expertise necessary to provide
said services and sales;
WHEREAS, the Contractor has the experience, expertise, and personnel necessary and is
willing to perform said services and sales in accordance with the terms and conditions of this
Contract;
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
agreements set forth herein, it is agreed by and between the Owner and the Contractor as
follows:
1. Purpose.
The Center is managed by the Bureau through a management services contract
with the Owner. The Bureau operates the Center through a CEO or appointed designee In that
connection and in coordination with the CEO, the Contractor shall provide food and beverage
catering, concessions, and vending services and sales at the Center in the most efficient and
convenient manner possible and in accordance with the terms, covenants, and conditions of this
Contract The Owner owns the Yakima Convention Center (hereinafter the "Center", a 68,194
square foot convention center building. The Alex Deccio Ballroom is approx. 23,500 square feet
which may be divided into 8 different rooms. The ballroom has the capacity to assemble 2,200
occupants, seated, and provide a banquet for 1,400 people. The South Ballroom is a 6,000 square
foot room, divisible into 6 different rooms and has the capacity to seat 500 occupants, seated,
and provide a banquet for 400 people. In addition, the foyer and 2 Conference Rooms has a total
area of approximately 13,464 square feet, the outdoor plaza approx. 6,000 square feet and 'the
kitchen has a total area of approximately 6,013 square feet.
The Bureau manages and operates the Center through a manager (hereinafter referred to as "the
CEO or designated appointee"). In that connection and in coordination with the CEO or
designated appointee, Contractor shall provide food and beverage catering, concessions, and
vending services and sales at the Center, in the most efficient and convenient manner possible
and in accordance with the terms, covenants, and conditions of this Contract.
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2. Contract Documents.
The rights granted under this Agreement include the terms, conditions, covenants and
representations contained in the following documents, all of which are incorporated herein by
reference as though fully set forth:
a. The RFP, together will all exhibits, addenda and amendments thereto;
b. Centerplate's Proposal and all accompanying exhibits submitted therewith by
Centerplate in response to the RFP; and
This Agreement and the documents referenced in this Paragraph 2 shall be construed
consistently with each other in order to best effectuate the intent of the Owner and Centerplate as
set forth in this Agreement.
In case of conflict or ambiguity, the documents shall have the following priority for the
purpose of interpreting the terms, covenants, conditions, or duties therein: this Agreement, the
Proposal accepted by the Owner, and the RFP. The parties acknowledge that there are no other
representations, agreements, or conditions not specifically referred to or set forth in the foregoing
documents which are a part of this Agreement.
3. Term and Option to Extend.
The Term of this Contract shall commence on May 1, 2013 or the date the Contractor
begins to provide the services required hereunder, whichever event occurs first (the
"Commencement Date"), and terminate five (5) years thereafter: provided, however, that the
parties, at their mutual agreement, have the option to extend this Contract for one (1) additional
five (5) year term. The extension term, if exercised, shall be on the same terms, covenants, and
conditions as provided in this Contract unless the parties mutually agree in writing to different
terms, covenants, and conditions.
4. Capital Investment.
a. Contractor will invest the sum of $500,000.00 (the "Capital Investment") to be
used for the following:
i. Investment of up to $430,000 toward foodservice capital projects and
smallwares (as estimated in EXHIBIT A) ($350,000 in year one (1) and
$80,000 in year three (3); and
ii. Start-up and/or pre -opening investment of up to $70,000 (as estimated in
EXHIBIT B) in year one (1) of the contract.
b. Contractor will provide Owner, upon request, with a list of all expenditures made
with the Capital Investment, and will amortize each expenditure of the Capital Investment (each
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being an "Investment Expenditure") monthly on a straight-line basis over a ten (10) year period
(or three (3) years for start-up / pre -opening expenses) with each such period to commence on
the later date of installation or deployment.
c. Excepting Capital Investment, upon termination, the Owner may, in its discretion,
require the Contractor to remove any and all improvements, fixtures, facilities, and structures,
constructed or placed on the Center premises by the Contractor, title to which has not vested in
the Owner, and restore the Center premises and leave such in the same condition as existed at the
time of commencement of this Contract, complete with all of Owner's equipment, furnishings,
and fixtures inventoried at the time of commencement of this Contract.
d. Title shall remain with Contractor, until the Investment Expenditures are fully
amortized, or until the amount required to be paid by Owner pursuant to Section 49 has been
paid to Contractor. When the Investment Expenditures have been fully amortized, or payment of
the amount required to be paid by Owner pursuant to Section 49 has been made, title to all
Investment Expenditures shall vest in Owner. If this Contract expires or is terminated by either
party, at any time, with or without cause, prior to Contractor's complete amortization of the
Investment Expenditures, Owner will pay Contractor, or cause to be paid to Contractor, an
amount equal to the unamortized portion of such Investment Expenditures, in accordance with
Section 49.
5. Guaranteed Minimums and Commissions.
a. In consideration for the exclusive rights granted hereunder by the Owner, the
Contractor agrees to pay to the Owner an annual guaranteed minimum sum of One Hundred
Twenty Thousand Dollars ($120,000.00) per contract year, or an annual Commission calculated
in accordance with Section 5(e) below based upon the total Gross Revenue derived each year
from its catering, concession, and vending services and sales under this Contract, whichever is
greater.
b. The Commissions set forth in Section 5(e) shall be made to the Owner on a
monthly basis pursuant to the Monthly Accounting Period. "Monthly Accounting Period" means
each monthly period (or portion thereof) in accordance with Contractor's accounting calendar,
which is arranged on a four-week, four-week, five-week basis for each quarter, during the Term
of this Contract. The first payment is due and payable on June 21, 2013, with all subsequent
payments to be made on or before twenty-one (21) days after the end of the applicable Monthly
Accounting Period. In the event that the annual Commissions pursuant to Section 5 (e) below are
less than $120,000.00, Contractor shall pay to Owner such difference within thirty (30) days of
the end of the Contract Year.
c. The annual minimum or annual commission due under this Contract shall be
treated by the Contractor and the Owner as an isolated event and a separate charge for
accounting purposes. No previous payment or credit from any prior or past Contract Year shall
be credited or subtracted from the annual minimum or annual commission.
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d. The Contractor shall provide the Owner with a written sales summary for each
Center activity, event, function, or off-site catered event, within two (2) business days of the
completion of such. The sales summary shall include a sales breakdown by location and type of
sale (i.e., concession, catering, etc.).
e. Commissions
In Building Food and Beverage Services (Catered Affairs, Concession Stands and
Fixed/Mobile):
Sales Level Commissions
$0 to $750,000 15%
$750,001 to $1,500,000 16%
Greater than $1,500,000 17%
Off Premise Catering
Sales Level
All Levels
Commissions
10%
Calculated on the increment and sales thresholds will be adjusted annually on the contract
anniversary date, in accordance with the "All Urban Consumers — Seattle -Tacoma -Bremerton
Consumers Price Index (CPI -U)", based upon the previous twelve (12) months.
Note: Commission for branded foods shall be same as the rates for Gross Receipts from
food & beverage services, provided the commissions due to the Owner are decreased dollar for
dollar for the royalty fee (typically at 5.0% to 6.0% of sales) associated with the branded food
concepts.
f. Contractual Reserves. In order to maximize the experience at the Center;
Contractor shall fund an annual food and beverage Marketing and Promotions Fund program
equal to 1% of Gross Revenues.
6. Accounting.
a. The term "Gross Revenue" means total revenues collected by Contractor pursuant
to this Contract less sales or other taxes, service charges and gratuities paid directly to the
employees, credit card charges, employee meals and reduced or at cost items. Anything out of
the ordinary will be mutually agreed upon by both parties. Gross Revenues will include the
amount received by Contractor from third party subcontractors and not the gross receipts
generated by the subcontractors.
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b. Contractor shall, with respect to all business done, transaction engaged in, and
revenues received pursuant 'to this Contract, keep and maintain at the Center true and accurate
account records, books, ledgers, and data in accordance with generally accepted accounting
principles and procedures acceptable to the Owner. Said accounting records shall be maintained
on contractual year basis during the term of this Contract. A contractual year shall be three
hundred and sixty-five (365) days measured from the Commencement Date of this Contract
("Contract Year").
c. The Owner shall have the right, at all reasonable times, to inspect said records,
books, ledgers, data, and all other necessary documents of the Contractor during the term of this
Contract up to three (3) years after the end of the pertinent Contract Year to verify amounts due
to it under the terms of this Contract.
d. The Owner, in its discretion, may request in writing special accounting reports
regarding any financial aspect of the Contractor's operation under this Contract. Contractor shall
provide Owner with the special accounting report within fifteen (15) calendar days of receipt of
Owner's request.
e. The Contractor shall annually furnish to the Owner a certified audit from a
certified public accountant within ninety (90) days after the close of the contractual year. Said
audit must accurately show all business done and all revenues received pursuant to this Contract.
If the Owner is not satisfied with said audit, the Owner may, with auditors selected by the
Owner, conduct a full audit of said records, books, ledgers, data, and other necessary documents.
Should the Owner's audit uncover any payment deficiencies due to the Owner in excess of one
percent (1%) of gross receipts, the amount of the payment deficiencies and the cost of the audit
shall be immediately due and payable to the Owner by the Contractor and shall not be expensed
as a controllable expense by the Contractor.
f. The Contractor shall submit to the Owner a monthly commission statement within
twenty (20) days after the conclusion of each month detailing events and commissions earned.
g. The Contractor shall provide the Owner an annual explanation of the income and
expense reporting procedures and controls utilized by its accounting personnel within ninety (90)
days after the close of the Contract Year.
h. Thirty (30) days prior to the commencement of each Contract Year during the
term of this Contract, the Contractor shall submit to the Owner for review and approval an
annual budget covering all services to be provided pursuant to this Contract. The budget shall
detail revenue derivation, food cost, and labor cost.
i. In the event Contractor's services are billed to a third -party customer directly
through the Owner, Contractor shall be responsible for entering, reviewing, and closing all food
and beverage orders (an "Order") in as short a period as is reasonably possible after completion
of the day's events or function and in no case shall such period exceed three (3) business days.
By closing an Order, Contractor authorizes that the actual amounts entered are correct and
thereby requests payment from Owner for the amount authorized. Owner will review and invoice
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all closed Orders within three (3) business days after completion of such event. Payment of the
amount invoiced to the third -party customer will be made by Owner to Contractor within fifteen
(15) days of the invoice date. There shall be a right of set-off pursuant to this subsection.
7. Authority.
The Owner shall, through its designated officer, manager or agent, be the final authority
with regard to all aspects of the control, management and performance of the catering,
concession, and vending services and sales, and other operations required hereunder and all
requests, procedures, approvals, or changes shall be submitted through the Owner. Liaison
between the Owner and the Contractor will generally be through the CEO or his/her designee.
8. Exclusive Catering, Concession and Vending Rights.
a. Except as limited herein, the Contractor shall have the exclusive right to provide
food and beverage (alcoholic and non-alcoholic) catering, concession, and vending sales and
services at the Center and operation of certain areas of the Center designated by the Owner (i.e.,
the Center kitchen, storage space, bars, and fixed and mobile concession stands).
b. The exclusive catering, concession, and vending rights granted herein do not
include the right to sell advertising and sponsorship packages at the Center. The Owner
reserves the right to sell advertising and sponsorship packages at the Center.
c. The exclusive concession, catering, and vending rights granted herein shall not be
construed to prohibit a Center licensee or tenant from exhibiting any commodity, product,
merchandise, and/or article in connection with an exhibit, trade show, or other type of event, or
from dispensing free samples of food and/or beverages as provided in Section 21 of this
Contract.
d. The parties agree to always act in good faith, including but not limited to as it
may pertain to potential competition in other facilities.
e This Contract does not grant any sale of lease rights to the Contractor.
9. Food and Beverage Services.
a. Without limiting its exclusive rights to provide services at the Center pursuant to
Section 8 above, Contractor shall organize, put into service, and manage efficiently food and
beverage catering, concession, and vending services and sales for the following existing Center
rooms, facilities, and areas:
South Ballroom, Suite 100 — 1,000 SF
South Ballroom, Suite 200 — 1,000 SF
South Ballroom, Suite 300 — 1,000 SF
South Ballroom, Suite 400 — 1,000 SF
South Ballroom, Suite 500 — 1,000 SF
South Ballroom, Suite 600 — 1,000 SF
Deccio Ballroom, Room A — 1,564 SF
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Deccio Ballroom, Room B — 1,564 SF
Deccio Ballroom, Room C — 5,564 SF
Deccio Ballroom, Room D — 5,564 SF
Deccio Ballroom, Room E — 5,701 SF
Deccio Ballroom, Room F — 1,142 SF
Deccio Ballroom, Room G — 1,160 SF
Deccio Ballroom, Room H — 1,160 SF
Outdoor Plaza — 6,000 SF
Conference Room 1 — 351 SF
Conference Room 2 — 463 SF
South Lobby — 2.641 SF
East Lobby — 1,210 SF
Center and S.E. Lobby — 5,487 SF
Northeast Lobby — 2,842 SF
North Lobby — 1,284 SF
Kitchen — 6,013 SF
South Support Area — 2,012 SF
Equipment Storage — 4,554 SF
Beverage Storage — 145 SF
b. Owner warrants that as of the Commencement Date, all food and beverage
services areas, including but not limited to those areas in Section 9(a) above, kitchens, fire
suppression, exhaust hoods, grease traps and similar equipment shall be fully cleaned, serviced,
and ready for operations (and certified if needed) at Owner's cost.
10. Other Services.
a. Specialized Services. In addition to the normal concession, catering, and vending
functions the Contractor will provide hereunder, the Contractor is required to provide (but not
pay for) specialized services normally associated with convention/trade show activities, events,
and functions. These specialized services include, but are not limited to, the following:
•
•
Special and pre -function style food and beverage facility services.
Main Kitchen storage/preparation.
Brand name food and beverage facilities.
Special meeting and banquet catering services.
Water and tablecloth service.
Exhibitor food/beverage services.
b. Personnel Services. The Contractor may be called upon by the Owner to
provide (but not pay for) personnel for special purposes such as bartending, waiter/waitress,
host/hostess, or other services for Center activities, events, or functions. These special personnel
services are not to be confused with the normal personnel required by the Contractor to meet the
Contractor's responsibilities to provide service otherwise under this Contract.
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c. All special specialized services and personnel services shall be provided by the
Contractor at no cost or expense to the Owner (or Contractor).
d. The number of events for which Specialized Services and Personnel Services
under this Section 10, as well as samples to be distributed under Section 21, are to be provided,
shall not exceed five (5) events during each Contract Year, unless mutually agreed upon to host
more than five (5) events during Contract Year.
11. Vending Services and Sales.
Vending services and sales shall only be provided by the Contractor when such services
and sales are requested and required by the Owner. All vending machines used on the premises
shall be of modular front design acceptable to the Owner. Placement, contents, and suggested
prices of the contents of these machines are subject to prior approval of the Center Manager.
Vending of smoking products, gum, and/or gum type candy is strictly prohibited at the Center.
For purposes of clarification only, Contractor may subcontract out this vending work.
12. Operating Conditions.
a. The activities of the Contractor hereunder shall be such as to render service to the
public in a dignified manner and no pressure, coercion or persuasion shall be used by the
Contractor in an attempt to influence the public to use the food and beverage concession,
catering, and/or vending services of the Contractor. All such services and sales shall be
conducted and operated under the supervision of the Contractor, and shall in no way interfere
with the orderly operation of any Center activity or event. The Contractor shall conduct all such
services and sales at such times, locations, and for such purpose as approved or designated by the
Center Manager. The Contractor will not circulate throughout the Center premises for the sale of
any commodity, product, and/or article except with the permission of the Center Manager. The
Contractor and its employees shall not distribute campaign or political literature or any
commercial solicitation literature of any kind at any time in or on the premises of the Center.
b. The Center Manager shall give the Contractor advance notice of the nature of
scheduled Center activities, events, and functions and such information as is available regarding
the probable attendance at each such activity or event. Every reasonable effort will be made by
the Center Manager to notify the Contractor of the cancellation of a previously scheduled
activity, event, or function to which due notice has been given the Owner, but no liability shall
evolve upon the Center Manager or the Owner for failure to deliver such notice of cancellation.
The Contractor, on the other hand, shall be held accountable for furnishing full and adequate
service, as determined by the Owner, for the full period of time required for any Center activity,
event, or function for which the Center Manager has provided notice to the Contractor. Further,
nothing contained herein shall be interpreted to limit the Contractor from taking reasonable
measures to obtain activity or event information from the Center in a timely manner.
c. Location of all mobile concession stands and auxiliary storage space required by
the Contractor shall be subject to the approval of the Owner. The Contractor shall acquire no
rights to such locations once assigned, and the Owner reserves the right to require the Contractor
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to remove mobile stands and equipment and to relocate items from any auxiliary storage spaces
when the Owner deems it necessary. The Contractor shall be responsible for all cost associated
with and furnishing all labor necessary to remove said mobile stands and equipment and to
relocate items from said auxiliary storage spaces.
d. When and if a temporary food service area (i.e., mobile "special emphasis" food
service area) is in operation, food served must be cooked and prepared by the chef on the
premises of the Center, with the exception of baked goods and standard canned and packaged
items. Deviation from this requirement must be approved in advance by the Center Manager.
e. The Center Manager may reasonably restrict the Contractor's sale of food and
beverage commodities, products, and/or articles at the Center in order to protect goods,
merchandise, equipment that is on display during a Center activity, event, or function, or because
of the nature of a Center activity, event, or function.
f. The Owner reserves the right to direct the Contractor to partially or completely
suspend concession, catering, or vending services and sales during those Center activities,
events, or functions in which operation of such services may be incompatible in the opinion of
the Owner with such activities, events, or functions.
13. Right of Entry and Use.
a. It is recognized that the Contractor has the right to use certain areas of the Center
necessary for catering, concession, and vending services and sales under this Contract, and that
Contractor shall have a reasonable right of necessary ingress and egress to those Center areas and
to those areas of the Center that are available for common use (i.e., entrances, stairways,
hallways, and lounges). The Owner shall have the right at any time to impose reasonable
restrictions upon Contractor's right of ingress and egress to the Center premises. The Contractor
shall have no right of access to, and the Owner may, in its discretion, refuse access to, any other
area of the Center premises.
b. Nothing herein contained shall be held to limit or qualify the right of the Owner to
free and unobstructed use, occupation and control of the Center premises and ingress and egress
for itself, its tenants/licensees, and the public. Except for the possibility of Contractor's cash
room, representatives of the Owner shall have the right to enter upon and have access to all areas
of the Center occupied by the Contractor at any time.
c. The Contractor shall make commercially reasonable efforts to ensure that
deliveries of all food and beverage commodities, products, and operational supplies, goods,
wares, merchandise, and/or equipment shall be made at the Center service entrance between 9
a.m. and 4 p.m., Monday through Friday. The Owner, in its discretion, may approve other
delivery locations and times. The Contractor shall monitor the movement of products in and out
of all food service areas to avoid all conflicts with other Center activities, events, or functions.
The Contractor shall cover or otherwise protect all food, beverages and food handling equipment
being moved through public areas.
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d. In the event that the Contractor has a need to be on the premises in the evening
and weekends and at other times when the Center premises are closed to the public, the
Contractor, during all such times, shall be responsible for securing the kitchen and other food
and beverage services premises against vandalism, theft and/or intrusion upon the premises by
persons trespassing thereupon.
14. Personnel.
a. The Contractor shall select, employ, train, furnish and deploy employees who are
proficient, productive, and courteous to Center patrons. The Contractor shall also provide
adequately trained relief personnel in the event of absences by primary staff.
b. The Contractor shall furnish all necessary qualified supervision for the
performance of its catering, concession, and vending services and sales under this Contract and
agrees to assign this task to a highly competent, full-time resident manager who shall have no
duties other than direction of said operation at the Center. The Contractor shall secure the
Owner's advance approval of the person who will act as said manager and, once
employed/assigned, said manager will not be replaced without the approval of the Owner.
c. The Contractor's manager or his/her assistant manager shall be present and
available to the Owner during all operations of the Contractor under this Contract.
d. If at any time the Owner finds that the Contractor's manager or his/her assistant
manager is unsatisfactory, and such causes and reasons are duly reported in writing by the Owner
to the Contractor, and such unsatisfactory performance is not cured within thirty (30) days, the
Contractor shall, within ten (10) calendar days, unless specifically extended in writing by the
Owner, replace him/her with a manager or assistant manager who is satisfactory to the Owner.
e. In the event that Contractor's manager desires to leave his/her position managing
Contractor's operations under this Contract, said manager will provide the replacement manager
with all necessary and required training to manage Contractor's operation hereunder before
leaving his/her position.
f. The Contractor assumes full responsibility for all actions of its personnel
performance and/or non-performance of services, obligations, and/or duties under this Contract,
and shall be solely responsible for their supervision, daily direction and control, payment of
wages/salary (including withholding and income taxes, unemployment insurance, workers'
compensation, and Social Security) and the like, as required by applicable federal, state, and/or
local laws.
g. All of Contractor's employees that are engaged in the preparing, handling, serving
and storing of food and beverages for catering, concession, and vending services and sales under
this Contract must meet all applicable state, county, city, and local health district requirements
for such operations.
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h. Prior to commencement of its operation at the Center, the Contractor shall furnish
to the Owner a written statement setting forth the names of all employees who will be
performing services under this Contract, the location in which they will work, the
commencement date of the employment at the Center of each such employee, and the duties to
be performed by each such employee. The Contractor shall also furnish to the Owner, at
Owner's specific written request, a monthly written statement setting forth the names of persons
ceasing to be employed by the Contractor at the Center.
i. The Contractor shall also provide the Owner with the following:
• A copy of the Contractor's Employee Handbook.
• A written description of recruiting techniques and sources of non-
management labor.
• A written description of personnel policies and practices.
j. Contractor's employees will not solicit or accept tips/gratuities at the Center;
provided, however, that Contractor's employees may accept, but not solicit, tips in any cash bar
environment.
15. Uniforms and Linens.
The Contractor will provide and maintain linens and uniforms for all of its employees.
Selection type, color, style and dress code of uniforms, shall be at the discretion and approval of
the Owner. The Contractor must provide a choice of uniform styles and availability at the
Owner's request. The Owner will provide the graphic standards to be followed in this design.
The Owner will consider the Contractor to be the sole contact and responsible for the services it
or its agents provide. Additionally, the condition of the hygiene and appearance of Contractor's
employees is the Contractor's sole responsibility, notwithstanding the fact the Owner shall have
the right to comment on and, where necessary, cause Contractor to insure that all employees
meet minimum hygiene and appearance standards.
16. Quality of goods.
Contractor recognizes that the quality of items sold and services performed at the Center
is a matter of highest concern and is the essence of the contract. Contractor represents and
warrants that all items Contractor sells will be of high quality and acceptable to the Center.
Contractor shall provide products of high quality and at prices at least consistent with similar
products presently being offered in other similar facilities located in the Pacific Northwest. The
Center reserves the right to determine whether a particular product complies with the above
standard.
17. Menus.
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a. The Contractor shall plan and prepare imaginative menus in consultation and
coordination with the Center Manager and in accordance with Owner's specifications.
Quantities, portions, and prices of all food items and beverages for catering, concession, and
vending services hereunder shall be subject to prior approval by the Owner. Only foods and
beverages which are wholesome and of the best quality, in the opinion of the Owner, shall be
purchased and served by the Contractor.
b. Contractor, upon request of the Center Manager, shall prepare appropriate sample
menus for distribution to prospective users of the Center. All menus shall include the food and
beverages available, prices of such, and date of distribution. All menus shall be subject to the
approval of the Owner prior to distribution and shall be used by the Owner for sales and
marketing purposes.
c. Should the Contractor directly contract with a Center tenant for a meal function,
buffet and/or cocktail party or for providing any services in the Center, Contractor shall forward
within two (2) business days one (1) copy of the completed Contract to the Owner. Such
Contract shall list the various food and beverages to be served, the approximate number of
people involved, the services to be provided, the prices of the various services, the total charges
to be collected for the function by the Contractor and the Owner's commission expected from the
transaction.
18. Procurement, Handling, and Sale of Food and Beverages.
a. Except as otherwise provided in this Contract, the Contractor shall sell those food
and beverage commodities, products and/or articles normally found in catering, concession, and
vending operations of this type. The Owner may require the Contractor to sell items which, in
the Owner's discretion, are necessary for the operation of the food service facilities at the Center
and may limit or require discontinuance of the sale of any products, commodities and/or articles
which the Owner deems are not in the best interest of the operation of the food and beverage
service facilities at the Center.
b. The Contractor will not sell food and beverage commodities, products, and/or
articles of inferior quality. All products, commodities, and/or articles to be sold by the
Contractor under this Contract must be approved in writing by the Owner. This requirement
does not require the Contractor to rely exclusively on one seller or manufacturer's item(s), but
several manufacturers or sellers may be used or the Contractor's original source may be changed
in the interest of quality, competition and public appeal, as required by the Owner.
c. The Contractor shall sell only food and beverage commodities, products, and/or
articles that comply with all applicable federal, state and local laws, acts, orders, and/or
regulations.
d. The Contractor shall purchase, sell and feature locally produced (Central
Washington State) food and beverage commodities, products, and/or articles as long as said
wholesale prices are competitive with similar products available on the open market (and do not
conflict with current Contractor agreements, i.e. Sysco).
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e. All food and beverage commodities, products, and/or articles kept for sale by the
Contractor under this Contract are subject to inspection and approval or rejection by the Owner
at any time during the term of this Contract. The Contractor shall immediately remove from the
Center all rejected food and beverage commodities, products, and/or articles and such shall not
be returned for sale by the Contractor under this Contract.
f. The Contractor shall purchase food and beverage commodities, products, articles,
and operating supplies (i.e., uniforms, laundry service, paper goods and detergents) from
whatever source or sources that will establish and effect procedures which assure the quality and
quantity required at the most economical prices, it being understood that the Contractor shall
avail itself of all lawful trade, cash, quantity discounts and rebates and all such discounts and
rebates, both local and national, shall inure to the benefit of the food and beverage concession,
catering, and vending sales and services hereunder. All such purchases shall be in the
Contractor's name and payment shall be made directly to the supplier.
g. All food and beverage commodities, products, and/or articles received by the
Contractor for use in performing its obligations under this Contract shall be inspected by the
Contractor upon delivery for quality and quantity compliance with its original order. The
Contractor shall store all such food and beverage items in proper areas in sanitary containers
which are dated for effective rotation of stock on a first -in, first -out basis. The Contractor shall
cover all refreshments and food exhibited for sale in showcases or other suitable containers. The
Contractor shall wrap all pre-packaged sandwiches, cakes and other similar products in
cellophane or similar transparent wrapping appropriate to the food service industry.
h. As a matter of general policy, prices of food and beverage commodities, products,
and/or articles sold by the Contractor pursuant to this Contract shall not be higher (or lower) than
those charged at comparable restaurants, bars, snack stand facilities, hotels, stadiums, convention
centers, arenas, etc., for the same quality merchandise and services within the non -urban market
Pacific Northwest Region of the United States of America. Prices must be posted in displays on
all stands and vendor's equipment. The Owner shall be the sole and final judge for prices, sign
quality, size of letters and propriety of any signs.
i. The Contractor shall submit a detailed price schedule to the Owner based on
current market conditions for any and all food and beverage commodities, products, and/or
articles it proposes to sell under this Contract. The price schedule shall include the size, weight
(if reasonable and practicable), quantity and price of each proposed food or beverage product,
commodity, and/or article. The price schedule and all prices shown thereon are subject to the
approval of the Owner. The Owner and the Contractor shall, on a quarterly basis, or as deemed
necessary by the Owner or the Contractor, review the price schedule of all products,
commodities, and/or articles sold under this Contract. Any changes in the price schedule are
subject to the prior approval of the Owner.
j. If the Contractor desires to sell any food and beverage commodity, product,
and/or article not included in the approved price schedule, the Contractor must first obtain the
written approval of the Owner to sell such item. If the Contractor desires to substitute a food or
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beverage commodity, product, and/or article listed in the approved price schedule, the Contractor
must first obtain written approval of the Owner for such substitution. Notwithstanding the
foregoing, Contractor shall be permitted reasonable commercial flexibility, i.e regarding
customized menu for a catering customer or substituted items by Sysco.
k. Contractor shall utilize an electronic, computerized cash control system for its
catering, concession, and vending services and sales under this Contract. This system must track
food and beverage commodities, products, and/or articles from purchase order through actual
sales transactions for all catering, concession, and vending services and sales under this Contract.
1. The sale of chewing gum, cigarettes, cigars, chewing tobacco, matches, and any
and all other tobacco related products by the Contractor under this Contract is strictly prohibited.
19. Sale of Alcoholic Beverages.
a. The Contractor shall obtain and maintain all federal, state, and local permits and
licenses required for the sale, service, and consumption of intoxicating beverages, alcoholic
beverages, and/or any fermented ale, wine, liquor, or spirits under this Contract. The costs
associated with the Contractor obtaining all such licenses and permits shall be the sole
responsibility of the Contractor.
b. The types of concession and catering activities, events, functions at which wine,
beer, or other alcoholic beverages are sold by the Contractor under this Contract is subject to the
prior approval of the Owner and subject to any policies and procedures established by the Owner
regarding such activities, events, or functions. Contractor may levy a corkage charge during
such functions at a price approved by the Owner.
c. The Contractor must provide, at its own expense, an alcohol awareness training
program for its employees (i.e., TIPS) and provide the Owner with complete information
regarding such program.
d. The financial arrangements pursuant to this Contract shall be subject to
renegotiation should Contractor be unable to sell alcoholic beverages at the Center due to no
fault of its own.
20. Advertising.
The Contractor shall not advertise in any manner other than as approved by the Owner.
The Contractor shall have no right to use the trademarks, symbols, trade name, or name of the
Owner or Center, directly or indirectly, in connection with any activity, event, function,
promotion, production, service, and/or publication without the prior consent of the Owner.
21. Food and Beverage Samples.
a. Contractor understands and agrees that food and beverage commodities, products,
and/or articles may be germane to a Center activity, event, or function. As such, nothing in this
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Contract shall be construed to prohibit a Center licensee/tenant from exhibiting any food and/or
beverage commodity, product, and/or article, or, from dispensing free samples of food and
beverages, in connection with a Center activity, event, or function. The Center Manager shall
determine whether food and/or beverage samples are appropriate for a Center activity, event, or
function.
b. Food and beverage samples will normally be restricted to the following quantities:
• food sample -- 2 ounce portion
• beverage sample -- 2 ounces
Where it is appropriate for a Center activity, event, or function, the Center Manager may
authorize larger sample quantities, if reasonable.
c. This Section shall be limited in event number per Contract Year pursuant to
Section 10.
22. Equipment and Smallwares.
a. The Owner will provide certain equipment to the Contractor for its use in
performing its obligations under this Contract ("Existing Equipment"). Existing Equipment is
listed on attached and incorporated Appendix C. The Contractor is responsible for maintaining
Existing Equipment in good condition and repair. Owner shall pay for any Existing Equipment
expense, repair or replacement if such Existing Equipment has passed its useful life according to
generally accepted accounting principles ("GAAP"), unless due to the negligence or willful
misconduct of Contractor. If the useful life of the Existing Equipment has not passed, Contractor
shall, at its expense, repair any Existing Equipment that is damaged during its operations under
this Contract, up to a total of $1000 for each such equipment. Any replacement, or expenses and
repairs over $1000, shall be paid by Owner. Existing Equipment shall not be removed from the
Center premises by the Contractor without the written approval of the Owner. At the termination
of this Contract, the Contractor shall return Existing Equipment to the Owner in the same
condition as existed at the inception of this Contract, except for normal wear and tear, and will
reimburse the Owner for any of said equipment that is damaged (beyond reasonable wear and
tear) or missing on the basis of replacement value.
b. The Owner shall furnish, up to the quantity owned by the Owner and available at
the Center, tables and chairs to tenants for catered and special events at the Center. All fee
charges for the use of the Owner's tables, chairs, and Center premises for catered events shall be
retained by the Owner. The Owner, at its option, may directly bill the tenant for said use fees or
require the Contractor to bill said use fees to the tenant and remit said fees to the Owner. Said
use fees shall not be included in the Contractor's gross revenues under this Contract.
c. The Contractor shall, at its expense, furnish all tables, chairs, smallwares, and
other items necessary for any and all off-site catered activities, events, or functions. All use fees
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charged and received by the Contractor shall be included in Contractor's gross revenues under
this Contract.
d. The Contractor shall supply all smallwares necessary to accommodate 2,000
guests during its operations under this Agreement. Smallwares shall become the property of the
owner at the conclusion of the Contract pursuant to the terms of this Contract. Said smallwares
are listed in attached and incorporated Schedule 1. The Contractor shall maintain its smallwares
in good and presentable condition, including ensuring that said smallwares are washed after each
use to achieve maximum cleanliness and sanitation. The Contractor's washing of glassware and
cutlery must produce spotless drying. Contractor shall perform, at its expense, a physical
inventory of said smallwares on a quarterly basis. Contractor shall provide the Owner with the
results of each smallware inventory within five (5) calendar days after the inventory is
completed. The Contractor shall replace missing or damaged smallwares within thirty (30)
calendar days of the inventory. The smallware replacement costs shall be deemed a controllable
expense of the Contractor. At the end of the Contract pursuant to the buyback terms, smallwares
shall become the property of the Owner.
e. Except for the equipment listed on Appendix C (and as potentially replaced
pursuant to Section 22(a), the Contractor shall provide the equipment contemplated to conduct its
operations and perform its obligations under this Contract pursuant to the Capital Investment set
forth in Section 4. The Contractor shall maintain, at its expense, such equipment in good
condition and repair. The Contractor shall, at its expense, repair or replace said equipment that is
damaged during its operation under this Contract. The Contractor shall be responsible for any
damage to its equipment during its operations under and/or term of this Contract (unless due to
the negligence or willful misconduct of Owner). The Contractor shall provide the Owner with an
inventory of the equipment it shall use on the Center premises prior to the commencement of its
catering, concession, and vending services and sales at the Center. Said inventory shall be
updated and kept current by the Contractor and a copy of the updated inventory shall be available
to the Owner upon request.
23. Maintenance, Repair and Sanitation.
a. The Contractor shall maintain, at all times, the Center kitchen, storage areas, food
and beverage preparation/service areas (including the area within a twenty-five (25) foot radius
of all mobile and fixed concession stands), and all related equipment, fixtures, paraphernalia,
material, utensils and other items therein, in a clean, sanitary, and operable condition, and
comply with all applicable health and sanitation laws and regulations. The Contractor shall at all
times permit and facilitate inspection of its food and beverage service operation under this
Contract by the Owner, its representatives and by authorized public authorities.
b. The Contractor shall be responsible for and shall repair any and all damage to the
Center kitchen, storage areas, food and beverage preparation/service areas (including the area
within a twenty-five (25) foot radius of all mobile and fixed concession stands), and all related
equipment, fixtures, improvements, appurtenances, floors, walls, and other property therein
where said damage occurs during and because of Contractor's use of that respective Center area.
At the termination of this Contract, the Contractor may remove its own personal property, but
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will be responsible for leaving the Center premises in the same condition as existed at the
inception of this Contract, reasonable wear and tear excepted, and will reimburse the Bureau for
damage to the Center premises.
c. The Contractor shall follow and comply with the Sanitation Regulations and Job
Inspection requirements as specified in the Contract. The Contractor shall provide the Owner
with a description of its approach to sanitation practices and a description of its program used to
train its employees in proper sanitation procedures.
d. The Contractor shall transport all waste materials, including grease, from the
Center kitchen, storage areas, and food and beverage preparation/service areas, including the
area within a twenty-five (25) foot radius of all fixed and mobile concession stands, to waste
receptacles provided by the Center at garbage pick-up areas, in a manner and by a route
designated by the Owner. Such removal shall be made during and after each Center activity,
event, or function, and all trash handling costs shall be borne by the Center.
e. The Contractor must not discharge any grease into the Center's drains and must
keep grease in containers for disposal by the Contractor. If the Contractor fails to comply with
this provision, any cost, charge or expense incurred in opening, cleaning and/or repairing drains
for such discharge will be paid by the Contractor.
f. Contractor expressly agrees to comply with all codes, ordinances, regulations and
laws regarding environmental health and safety matters, including the use and disposal of
cleaning agents and the like.
g. In the event that the Owner deems that the Contractor's sanitation services are
unsatisfactory, the Owner reserves the right (after written notice to contractor and 15 day
opportunity to cure) to contract for or provide such sanitation services and charge the Contractor
for said sanitation services. This right is in addition to all other rights the Owner may have under
this Contract and the law as a result of Contractor's unsatisfactory sanitation services.
24. Job Inspection.
a. Formal inspections of the foodservice facilities are to be conducted a minimum of
four (4) times a year by the Owner, accompanied by the Contractor.
b. An inspection checklist is to be prepared and completed by the Contractor and
submitted to the Owner not later than three (3) working days following the inspection. A
complete report of corrective measures taken or to be taken for any deficiencies noted
should accompany the inspection report.
c. Informal inspections of the foodservice facilities are to be conducted daily by the
Contractor with immediate corrective measures taken for any deficiencies noted.
25. Alterations and Modifications.
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The Contractor shall obtain the written approval of the Owner prior to making any
alterations or modifications to or installation of equipment in the Center kitchen, storage areas,
and food and beverage preparation/service areas. All approved alterations and modifications
shall be constructed and completed in a competent and skillful manner. All approved and
completed alterations or modifications to said areas shall become a part of the Center premises
and shall be the property of the Owner.
26. Rodent Control.
The Contractor shall engage and supervise exterminators to control rodents and other
vermin and pests as is necessary, but at least on a monthly basis. Such extermination services
shall be supplied in all areas where food and beverage commodities, products, and/or articles are
prepared, stored, and/or dispensed by the Contractor in performing its obligations under this
Contract (and not the entire Center). Documentation of such services shall be retained and
provided to the Owner.
27. Affirmative Action.
a. Contractor understands that all labor contractors who are issued permits to work
within the Center are required to make a concerted effort to employ a work force which is
representative of the minority population of the City of Yakima. To that end, the Contractor
agrees to meet with the Owner within fifteen (15) days after the award of the Contract and shall,
within ninety (90) days after said award, complete preparation of an affirmative action plan to
achieve a fully integrated work force, subject to approval by the Owner. Pertinent data regarding
minority populations within the City of Yakima shall be supplied by the Owner.
b. The Owner may terminate this Contract and any other contract for failure by
Contractor or other labor contractor to demonstrate, without good cause as determined by the
Owner, compliance with or substantial progress toward the goals set forth in the approved
affirmative action plan. Prior to any termination, the Owner shall give notice of noncompliance
and a sixty (60) day period thereafter within which to make progress toward compliance.
c. The Contractor will furnish all information and reports required by the Owner,
and will permit access to its books, records, and accounts by the Owner for purpose of
investigation to ascertain compliance with this section.
d. The Contractor will, in all solicitations or advertisements for employees placed by
or on behalf of the Contractor, state that all qualified applicants will receive consideration for
employment without regard to sex, race, color, religion, ancestry, or national origin.
e. The Contractor will send to each labor union or representative of workers with
which it has a collective bargaining Contract, a notice advising the labor union of the
Contractor's commitments under this section and shall post copies of the notice in conspicuous
places available to employees and applicants for employment.
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f. In the event of the Contractor's noncompliance with the nondiscrimination clauses
of this Contract, this Contract may be canceled, terminated or suspended.
g. The Contractor will include the provisions of paragraphs "a" through "d" in every
subcontract, so that such provisions will be binding upon each subcontractor or vendor. The
Contractor will take such action with respect to any subcontract or purchase order as the Owner
may direct as a means of enforcing such provisions; provided, however, that in the event the
Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor
as a result of such direction by the Owner, the Contractor may request Owner to enter into such
litigation to protect the interests of the Owner.
28. Equal Employment and Nondiscrimination
During the performance of this Agreement, Contractor and contractor's subconsultants
shall not discriminate in violation of any applicable federal, state and/or local law or regulation
on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability,
honorably discharged veteran or military status, pregnancy, sexual orientation, and any other
classification protected under federal, state, or local law. This provision shall include but not be
limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising,
layoff or termination, rates of pay or other forms of compensation, selection for training, and the
provision of services under this Agreement. Contractor agrees to comply with the applicable
provisions of State and Federal Equal Employment Opportunity and Nondiscrimination statutes
and regulations.
29. Osha and Wisha Requirements.
Contractor agrees to comply with conditions of the federal Occupational Safety and
Health Acts of 1970 (OSHA), as it may be amended, and the Washington Industrial Safety and
Health Act of 1973 (WISHA), as it may be amended, and the standards and regulations issued
there under, and certifies that all items furnished and purchased under this Contract will confirm
to and comply with said standards and regulations.
30. Minimum Sanitation Regulations.
a. The Sanitation Code of the U.S. Food Service Industry as published by the
National Restaurant Association.
b. All state of Washington Acts and Regulations governing foodservice operations.
c. All applicable Municipal Regulations.
d. All applicable Federal Government Acts and Regulations.
e. Appropriate voluntary codes and guidelines established by trade associations and
other groups operating within the food industry.
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f. Any specific guidelines established by the Owner.
31. Taxes.
Centerplate is responsible for payment of all taxes levied by federal, state or local
governments as a result of Centerplate conducting business or occupying the Yakima Convention
Center.
32. Status of Contractor.
Contractor is an independent contractor, and none of Contractor's employees or agents
shall be considered an employee of the Owner. Contractor and Contractor's employees or agents
shall make no claim of Owner employment or claim any related employment benefits from the
Owner, including but not limited to medical benefits, worker's compensation, social security,
and/or retirement benefits. Contractor has no authority to nor shall Contractor represent that it
has authority to bind the Owner in any manner.
33. No Guarantee.
The Owner in no way promises or guarantees the number of Center activities, events, or
functions, or the level of attendance at same, or the sales, payments, and revenues to Contractor
resulting from Center activities, events, functions.
34. No Conflict of Interest.
Contractor represents that it and its employees do not have any interest and shall not
acquire any interest, direct or indirect, which would conflict in any manner or degree with the
performance of this Contract. Contractor further covenants that it will not hire anyone or any
entity having such a conflict of interest during the term of this Contract.
35. Compliance With Law.
The Contractor shall procure all permits and licenses and pay all charges and fees
necessary and incidental to the lawful conduct of its catering, concession, and vending sales and
services under this Contract. Contractor agrees to perform all of its obligations under and
pursuant to this Contract in full compliance with any and all applicable laws, rules, and
regulations enacted, adopted, or promulgated by any governmental agency, legislative body, or
regulatory body, whether federal, state, local, or otherwise.
36. No Insurance Provided By Owner.
The Owner does not maintain any insurance, liability or otherwise, for or on behalf of the
Contractor.
37. Indemnity, Hold Harmless, And Defense.
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a. Contractor agrees to protect, defend, indemnify and hold harmless the City, Yakima
County and the Bureau, their elected officials, officers, employees, agents, and volunteers from
any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other
proceedings and all judgments, awards, costs and expenses (including reasonable costs and
attorney fees) resulting from death or bodily injury to any person or damage or destruction to a
third party or third parties to the extent caused by any negligent act and/or omission of
Contractor, its officers, employees, agents, volunteers and/or subcontractors, arising out of the
performance of this Contract.
b. If the negligence or willful misconduct of both Contractor and the City, County and/or
Bureau (or a person identified above for whom each is liable) is a cause of such third party
claim, the loss, cost, or expense shall be shared between Contractor and the City, County and/or
Bureau in proportion to their relative degrees of negligence or willful misconduct and the right of
indemnity will apply for such proportion.
c. ,Nothing contained in this Section or this Contract shall be construed to create a
liability or a right of indemnification in any third party.
38. Insurance Provided By Contractor.
Contractor shall, at its sole cost and expense, procure and maintain the following types
and limits of insurance through the term of this Contract:
a. Commercial liability insurance on an occurrence basis subject to a $1,000,000 per
occurrence limit and $2,000,000 aggregate. The policy shall contain a "Per Job Aggregate"
endorsement. The policy shall include Employers Liability (Washington Stop Gap) coverage.
The policy shall also include a minimum of $1,000,000 per occurrence limit for All Risk Legal
Liability/Damage to Rented or Leased Premises, and a minimum limit of $2,000,000 for liquor
liability. The policy shall have a deductible of $500,000 or less and the Contractor will be
responsible for the payment of any deductible amount. The City shall be held harmless for any
attempt to recover Contractor's deductible. Higher retention or deductible limits may be
acceptable on prior approval by Owner. Such insurance shall be primary and noncontributory
with any other coverages, including the Owner's, and such insurance shall afford immediate
defense and indemnification of the Owner.
b. Commercial Automobile Liability insurance policy for any auto with limits not
less than $1,000,000 per occurrence, combined single limit for bodily injury or death and
property damage, including loading and unloading operations.
c. Commercial Umbrella Liability insurance coverages shall be provided in excess
of the Commercial General Liability, Commercial Automobile Liability, and Employer's
Liability coverages with limits of no less than $5,000,000 per occurrence. The deductible or
self-insurance retention for this coverage shall not exceed $500,000 per occurrence
d. Blanket employee dishonesty insurance policy with limits of no less than
$500,000 including third party loss.
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e. Owner shall be responsible for insuring the facility and owned equipment for
property loss. Contractor agrees to reimburse Owner for any and all loss relating to the facility
or equipment furnished by Owner, up to and including the deductible carried by Owner on said
property policy. Currently this deductible is set at $100,000. Contractor is responsible for
insuring all equipment and goods owned by Contractor including but not limited to stock and
food goods/perishables of any kind, and any additional equipment owned by Contractor and
stored onsite not otherwise provided by Owner and holds the Owner harmless from any loss to
Contractor' s property.
f. Contractor, by executing this Contract, certifies that it is aware of the provisions
of Title 51 of the Revised Code of Washington (RCW) which require industrial insurance
coverage for employees, and certifies that it will comply with such provisions before
commencing performance of this Contract, and shall present adequate evidence thereof to the
Owner.
39. Additional Insurance Conditions.
a. All insurance policies shall be issued by an insurance company authorized by law
to conduct business in the State of Washington. Such insurance company and policies are
subject to the prior approval and acceptance of the Owner and who has a current minimum rating
of A -VII in Best's Guide.
b. The Commercial General Liability, the Commercial Automobile, the Employer's
Liability, and Employee Dishonesty Liability insurance policies required under this Contract
must name the Owner, County of Yakima, the Bureau, their elected officials, officers,
employees, volunteers and agents as additional insureds with primary coverage, whether or not
said entities and/or persons have other insurance against any loss covered by said insurance.
c. The Contractor shall furnish a certificate of insurance as evidence of coverage for
each policy including the appropriate additional insured endorsement, (a CG 20 10 11/85 or
equivalent is required). Each certificate shall provide that if the insurance policy is canceled by
the insurance company or Contractor during the term of this Contract, the insurance company
shall provide the Owner with forty-five (45) days written notice prior to the effective date of
such cancellation. If requested by the Owner, the Contractor shall furnish a complete copy of the
insurance policy to the Owner."
d. Unless expressly waived in writing by the Owner, Contractor shall, throughout
the term of this Contract, require all of Contractor's agents, licensees or subcontractors providing
a service at the Center to provide Contractor and the Owner with certificates of insurance and
insurance policies evidencing the same type of Commercial General Liability, Workers'
Compensation, Employers' Liability, and Commercial Automobile Liability insurance coverages
with the same policy limits required of Contractor by this Contract. Said insurance shall include
the additional insured endorsement and the cancellation terms required of the Contractor by this
Contract.
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e. Contractor's compliance with insurance coverage requirements shall not be
construed to relieve the Contractor from liability in excess of the insurance policy limits.
f. The Contractor shall comply with any and all applicable insurance and fire
prevention laws, rules, and regulations, enacted, adopted, or promulgated by any governmental
agency, legislative body, or regulatory body, whether federal, state, local, or otherwise.
40. Waiver Of Damage Claims And Subrogation.
Contractor, its officers, agents, employees and insurer(s) hereby waive any right of recovery and
release the Owner, its elected officials, officers, employees, volunteers, agents, and assigns from
any and all liability or responsibility, including anyone claiming through or under them by way
of subrogation or otherwise, for any loss or damage which Contractor, its officers, agents,
employees and/or insurers may sustain incidental to or in any way related to Contractor's
catering, concession, and vending services/sales, and all other operations under this Contract
41. Performance Bond.
A Performance Bond issued by a professional surety company authorized to do business
in the State of Washington in the amount of One Hundred Twenty -Five Thousand Dollars
($125,000.00) shall be executed and delivered to the Owner and subject to approval of the
Purchasing Agent within ten (10) calendar days after execution of this Contract to insure the
faithful and full performance of all covenants, terms, and conditions of this Contract. Said
Performance Bond shall be maintained and kept in full force and effect by the successful
Contractor during the entire term of this Contract.
42. Assignment.
This Contract shall not assign, subcontract, transfer, hypothecate, mortgage or otherwise
encumber any right, duty, obligation, liability, claim, or interest hereunder without the prior
written consent of the Owner. In the event that such an assignment, subcontract, or transfer is
permitted by the Owner, the assignee, subcontractor, or transferee shall assume all of
Contractor's duties, obligations, and liabilities under this Contract.
43. Removal of Subcontractor.
If dissatisfied with the background, performance, and/or general methodologies of any
subcontractor, the Owner may request in writing that the subcontractor be removed. The
Contractor shall comply with this request at once and shall not employ the subcontractor for any
further work/services under this Contract.
44. Subordination.
This Contract and everything herein contained shall be subordinate to any ground and underlying
lease or leases and to any charge or charges (including deeds of trusts, mortgages, bonds, and all
instruments supplemental thereto) and all renewals, modification, consolidations, replacements
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and extensions thereof created by the Owner in respect to the Center and the Contractor hereby
covenants and agrees that it will at any time and from time to time as required by the Owner
during the term hereof and any extension or renewal, give all such further assurances relative to
this proviso as may be reasonably required to evidence and effectuate this subordination of its
rights and privileges hereunder to the holder or holders of any such ground and underlying lease
or leases and charge or charges (including deeds and trusts).
45. Payment for Utilities.
The Owner shall provide gas, electrical, and water services at the Center for use by the
Contractor in performing its obligations under this Contract; provided, however, that such
services will be separately metered and charged back to the Contractor on a monthly basis.
46. Waiver of Bureau Liability.
It is understood by Contractor that the Bureau is a lessee of the Center and that all
agreements, contracts, and licenses are subject to the terms and conditions of the Bureau's lease
with the Owner. Should that lease be terminated or expire or should the Bureau be unable to
perform any of the conditions or covenants of its lease provisions with the Owner, then, to that
extent, the Contractor waives any liability of the Bureau to Contractor.
47. Default or Breach.
Each of the following events constitutes a default or breach of this Contract by
Contractor:
a. If Contractor files a petition for bankruptcy, insolvency, or reorganization under
any bankruptcy act/law, or shall voluntarily take advantage of any such act/law by answer or
otherwise, or shall make an assignment for the benefit of creditors.
b. If involuntary proceedings under any bankruptcy or insolvency act/law is
instituted against Contractor, or if a receiver or trustee is appointed to administer Contractor's
affairs, and such proceedings are not dismissed or the receivership or trusteeship vacated within
sixty (60) after the institution or appointment.
c. If the Contractor fails to timely pay the Owner any minimum or commission
required under this Contract.
d. If the Contractor fails to perform, keep, and/or observe any of the terms,
covenants, conditions, and/or obligations of this Contract, and the failure continues for a period
of thirty (30) calendar days after written notice of the failure is provided by the Owner to the
Contractor, or if the failure cannot be reasonably corrected/remedied within the thirty (30)
calendar day period, the Contractor does not in good faith commence correction/remedy within
the thirty (30) calendar day time period and does not diligently proceed to completion of the
correction/remedy.
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e. If the Contractor vacates or abandons the Center premises and its catering and
concession service without cause under this Contract.
48. Effect of Default or Breach / Termination.
In the event of any default or breach of this Contract as set forth in Section 47, the Owner
has the following options:
a. The Owner may, in its discretion, terminate this Contract upon giving the
Contractor thirty (30) calendar days written notice of termination. The Contractor shall be liable
to the Owner for all damages, losses, expenses, and costs suffered by the Owner as a result of the
Contractor's breach/default.
b. After termination, the Owner may, in its discretion, enter into a catering and
concession contract for the Center with another party. In such case, the Contractor may be liable
to the Owner, in addition to all other damages and/or losses caused by the Contractor's breach,
for all reasonable expenses and costs incurred by the Owner in obtaining another party to
perform catering and concession sales and services at the Center.
c. The Owner may, in its discretion and without notice, enter the Center premises
immediately and remove any property of the Contractor, and store the property in a public
warehouse or other place selected by the Owner, at the expense of the Contractor. If the
Contractor has not paid the removal and storage expenses of the Owner within thirty (30)
calendar days of removal, the property shall become the property of the Owner. The Owner
may, in its discretion, dispose of the property in any manner without payment or reimbursement
to the Contractor.
d. Upon termination, the Owner may, in its discretion, require the Contractor to
remove any and all improvements, fixtures, facilities, and structures, constructed or placed on the
Center premises by the Contractor, title to which has not vested in the Owner, and restore the
Center premises and leave such in the same condition as existed at the time of commencement of
this Contract, complete with all of Owner's equipment, furnishings, and fixtures inventoried at
the time of commencement of this Contract.
e. The Owner may, in its discretion, assert any other remedy, means, or claim
provided in law or equity as a result of Contractor's default or breach of this Contract.
f. The Owner may, in its discretion, utilize any combination of the above options.
All rights and remedies of the Owner under this Contract are cumulative and not alternative.
g. In addition to the above, in the event the City's financial condition becomes
insufficient to meet specific budget requirements necessary to meet the City's obligations under
this Agreement, the City may terminate the Agreement after providing the Contractor One
Hundred Eighty (180) calendar days written notice of termination.
49. Rights and Duties Upon Termination or Expiration.
Page 25 of 28
a. Amortization; Repayment. In the event that Contractor has not fully amortized
the Investment Expenditures pursuant to Section 4, Contractor shall submit to Owner a statement
of the total amount outstanding no less than thirty (30) days before the termination of this
Contract, and Owner shall pay such amount to Contractor within thirty (30) days after receipt of
such statement
b.Upon termination of this Contract, through passage of time or otherwise,
Contractor shall assist Bureau and Owner in a transfer of the operations within One hundred and
eighty (180) calendar days after notification of termination.
c. Replacement Foodservice Provider. Owner shall purchase (or shall cause its
replacement foodservice provider to purchase) Contractor's smallwares (to the extent such
smallwares do not otherwise constitute Investment Expenditures) and in -date food, beverage and
supply inventories at Contractor's book value thereof. Owner (or the replacement foodservice
provider) shall also assume responsibility for any non -cancellable purchase orders for food,
beverages or other goods.
d. Final Accounting. Contractor shall deliver to Owner, within thirty (30) days after
the date of termination, a final accounting setting forth all commissions due to Owner, and shall
remit to Owner all amounts owed to Owner, after setting off any amounts owed by Owner to
Contractor.
50. Non -Waiver.
Any waiver of any default or breach of this Contract must be express and in writing. No
waiver shall be implied or inferred from any action or inaction of Owner. Waiver of any default
or breach of this Contract does not constitute a waiver of any other and/or subsequent default or
breach of this Contract.
51. Severability.
It is understood and agreed that if any part of this Contract is held to be illegal or invalid,
the validity and enforceability of the remaining provisions shall not be affected.
52. Modification.
No change, modification, amendment, and/or addition to this Contract shall be valid or
binding upon either party unless in writing and executed by both parties.
53. Section or Paragraph Headings.
All section and paragraph headings are for quick reference and convenience only and do
not alter, amend, explain, or otherwise affect the terms, covenants, and conditions of this
Contract.
Page 26 of 28
54. Notices.
Unless stated otherwise herein, all notices and demands under and related to this Contract
shall be in writing and sent to the parties to their addresses as follows:
TO PURCHASING MANAGER
TO CONTRACTOR:
Sue Ownby
Purchasing Manager
City of Yakima
129 No 2nd St.
Yakima, WA 98901
Centerplate
2187 Atlantic Street
Stamford, CT 06902
Attn: Legal Department
or to such other addresses as the parties may hereafter designate in writing. Notices and/or
demands shall be sent by registered or certified mail, postage prepaid or by national overnight
courier such as Federal Express. Such notices shall be deemed effective when mailed or hand
delivered at the addresses specified above.
55. Governing law.
This Contract shall be governed by and construed in accordance with the laws of the
State of Washington.
56. Venue.
The venue for any action to enforce or interpret this Contract shall lie in the Yakima
County, Washington courts.
[Signature Page Follows]
Page 27 of 28
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed this,
the 4th day of April, 2013 (the "Effective Date.").
APPROVED AND ; GREED TO:
CONTRACTO
By:
Its: 'Chief Financial Officer
adi Monavar
STATE OF WASHINGTON )
County of Fh /M d )
On this q qday ofa@ , 2013, before me the undersigned, a Notary Public in and for
the State ofWashington, my commissioned and sworn, personally appeared 61.644 ,4the
Aix and who executed the foregoing instrument, and acknowle" ed to me that
signed an :.led the said instrument as _ free and voluntary act and deed for the uses and
purposes therein mentioned.
WITNESS my hand and official seal hereto affixed the day and year in this certificate
above written.
:SS.
CITY OF
By:
YAKIMA
Tony U
urke, City Manager
Ny` ARY PUBLIC in and for the Statp of
ashington, residing atp9
My commission expires: fvfa'' i 021 .30/1 -
CITY
J'
CITY CONTRAC f N0: g
RESOLUTION N0:
Page 28 of 28
Compliance with Immigration and Naturalization Act
The City of Yakima supports the Federal Immigration, Reform and Control Act of 1986, as
amended. The City requires that all contractors or business entities that contract with the City
for the award of any City contract for public works in excess of Five Thousand Dollars
($5,000), or any other city contract in excess of Two Thousand Five Hundred Dollars ($2,500),
enroll in the E -Verify program or its successor, and thereafter to verify its employees' proof of
citizenship and authorization to work in the United States.
E -Verify will be used for newly hired employees during the term of the contract ONLY: it is NOT
to be used for existing employees.
The Contractor must remain enrolled in the program for the duration of the contract and be
responsible for verification of every applicable subcontractor. The contractor shall sign and
return with their bid response the E -Verify Declaration below. Failure to do so may be cause
for rejection of bid.
E -VERIFY COMPLIANCE DECLARATION
The undersigned declares, under penalty of perjury under the laws of Washington State that:
1. By submitting this Declaration, I certify that I do not and will not, during the performance
of this contract, employ illegal alien workers, or otherwise violate the provisions of the
Federal Immigration Reform and Control Act of 1986.
2. I agree to enroll in E -Verify prior to the start date of any contract issued by the City of
Yakima to ensure that my workforce is legal to work in the United States of America. I
agree to use E -Verify for all newly hired employees during the length of the contract.
3. I certify that I am duly authorized to sign this declaration on behalf of my company.
4. I acknowledge that the City of Yakima reserves the right to require evidence of
enrollment of the E -Verify program at any time and that non-compliance could lead to
suspension of this. contract.
Firm Name: Service Amerca Corp, d/b/a Centerplate
Dated this 3rd day of April 20 13
Signature:
Printed Name: di Monavar
Address:. 218 Atlantic street, Stamford; CT 06902
Phone #: (203) 975-5900 EmaiIAddress: hadi.monavar@centerplate.com
Homeland Security's Web Address is: http://www.dhs.gov/e-verify
Completed declarations can be mailed to: City of Yakima Purchasing, 129 No. 2"d Street, Yakima, WA
98901, faxed to 509-576-6394 or scanned and emailed to sownby@ci.yakima.wa.us
YAKIMA CONVENTION CENTER
CONCESSION AND CATERING CONTRACT
CONTRACT AMENDMENT NO. 2
PROJECT: City of Yakima Contract No. 2013-090
DESCRIPTION: Catering Services at Yakima Center
VENDOR: Service America Corporation d/b/a Centerplate
THIS CONTRACT AMENDMENT NO. 2 is made and entered by and between the City of
Yakima, a Washington municipal corporation (hereinafter "City") and Service America
Corporation d/b/a Centerplate (hereinafter "Contractor")
WHEREAS, City and Contractor executed a Yakima Convention Center Concession And
Catering Contract No. 2013-090 on April 4, 2013 ("Contract"), providing for Contractor's
provision of food and beverage catering, concession, and vending services and sales at the
Yakima Convention Center ("Center") pursuant to the terms and conditions of the above -
referenced City Contract; and
WHEREAS, paragraph 3 of the Contract provided for a five (5) year term after which there is an
opportunity for the parties to mutually agree to one (1) additional five (5) year extension term;
the City has been advised that Contractor has requested that the extension term be
implemented by the parties; and
WHEREAS, the parties have determined that it is in their mutual best interests to amend the
Contract term to implement the one five-year extension of the original Contract and to reflect
one additional condition as set forth below; and
NOW THEREFORE, in consideration of the mutual covenants, promises, and agreements set
forth in City Contract No. 2013-090 and as amended herein, it is agreed by and between the
City and Contractor, effective upon the execution of this Contract Amendment No. 2 by both
parties, as follows:
3. Term and Option to Extend.
The Term of this Contract shall be extended for one (1) five (5) year
extension term that will begin on May 1, 2018 and shall terminate on April 30, 2023,
with no further opportunity to extend City Contract No. 2013-090.
4. Capital Investment.
f. In consideration for Owner's Agreement to extend the Contract for the
five year term in accordance with paragraph 3, above, Section 4 of the Agreement
shall be modified to the extent that Contractor shall invest an additional Capital
Investment of Fifty Thousand Dollars ($50,000.00) to be used toward food service
capital projects and smallwares. This Capital Investment shall be invested before
May 1, 2020. Sections 4(b)(c) and (d) of the Agreement shall apply to this Capital
Investment, except that amortization and depreciation shall be applied to this new
investment on a five (5) year schedule, not ten (10). Section 4 of the Agreement shall
be further modified to the extent that Owner shall invest up to Twenty -Five Thousand
Dollars ($25,000.00) to be used toward food service capital projects, specific scope
and nature to be mutually agreed upon, and shall be invested before May 1, 2020.
Except as expressly amended herein, all other terms and conditions of City Contract No. 2013-
090, including any previously approved amendments, shall remain in full force and effect.
CITY OF YAKIMA:
h
Cliff Moor- City Manager
Date
CITY CONTRACT NO•
2015--09() iia//d
RESOLUTION NO: k71 4
SERVICE AMERI A CORPORATION
D/B/A CENTER ATE:
Hadi Monavar, Chief Financial Officer
oil. zs,i8
Date
YAKIMA CONVENTION CENTER
CONCESSION AND CATERING CONTRACT
CONTRACT AMENDMENT NO. 3
PROJECT: City of Yakima Contract No. 2013-090
DESCRIPTION: Catering Services at Yakima Convention Center
VENDOR: Service America Corporation d/b/a Centerplate
THIS CONTRACT AMENDMENT NO. 3, is made and entered by and between the City of
Yakima, a Washington municipal corporation (hereinafter "City") and Service America
Corporation d/b/a Centerplate (hereinafter"Contractor")
WHEREAS, City and Contractor executed a Yakima Convention Center Concession And
Catering Contract No. 2013-090 on April 4, 2013 ("Contract"), providing for Contractor's
provision of food and beverage catering, concession, and vending services and sales at the
Yakima Convention Center ("Center") pursuant to the terms and conditions of the above-
referenced City Contract; and
WHEREAS, paragraph 3 of the Contract provided for one five (5) year term after which there is
an opportunity for the parties to mutually agree to one (1) additional five (5) year extension term;
the City and the Contractor exercised the extension term on the renewal date in 2018, extending
the term of the Contract to April 30, 2023; and
WHEREAS, due to the extensive interruption of services and operations at the Convention
Center from March 16, 2020, to the present time due to the impacts of the COVID-19
Coronavirus Pandemic, the parties have determined that it is in their mutual best interests to
extend the term of the contract to compensate Contractor for the loss of contract service due to
the pandemic and to allow for a return to business as usual following the long disruption; to
amend the Contract commission terms to provide a gradual return to the rates commensurate
with normal operations; and to authorize and execute one final five (5) year extension of the
original Contract following the completion of the extension term associated with the lost contract
time resulting from the pandemic; and
NOW THEREFORE, in consideration of the mutual covenants, promises, and agreements set
forth in City Contract No. 2013-090 and as previously amended by Amendment No. 1 and
Amendment No. 2 thereto, and in accordance with this Amendment No. 3, it is agreed by and
between the City and Contractor, effective upon the execution of this Contract Amendment No.
3 by both parties, as follows:
For purposes of this Amendment No. 3, the following definitions shall apply to the stated terms:
Agreement shall mean the Concession and Catering Contract dated April 7, 2013, Contract
Amendment No.1 dated May 13, 2015 and Contract Amendment No. 2 dated April 26, 2018
(hereafter referred to as the "Agreement") between the Client and Service America Corporation
d/b/a Centerplate ("Contractor").
COVID-19 Closure Date shall mean March 16, 2020, the date that the Facility was closed to
the public for regular service due to the novel coronavirus COVID-19 outbreak and Pandemic.
COVID-19 Closure Period shall mean the period of time in days between the COVID-19
Closure Date and the Reopening Date. For example, if the Reopening Date is March 16, 2021,
the COVID-19 Closure Period shall mean a 365-day period or one (1) year.
Facility shall mean the Yakima Convention Center.
Pandemic shall mean the novel coronavirus COVID-19 outbreak that first widely appeared in
the United States in 2020.
Reopening Date shall mean the date the Facility opens to the general public on a regular basis
without limitation and restriction to Contractor's service, provided, however, the Facility does not
close to the general public for regular service due to resurgence of the COVID-19 Pandemic for
a period exceeding thirty (30) consecutive days during the first twelve (12) months after the
preliminary Reopening Date. In such instances of subsequent closure, the Reopening Date shall
be the first day after the end of the last such closure period.
In consideration of the mutual covenants, promises and agreements set forth in City Contract
2013-090 and as specifically amended herein, it is agreed by and between the City and
Contractor, effective upon the execution of this Amendment No. 3 by both parties hereto, as
follows:
3. Term and Option to Extend.
The Agreement shall be extended, day for day, for the length of the COVID-19
Closure Period, plus one (1) additional year (the "Extension Period"). (For example, if
the actual Reopening Date is March 16, 2021, the Agreement would expire at
midnight on April 30, 2025 (365 days Closure Period+ 1 year Extension Period = 2
years added to original April 30, 2023 termination date). No more than thirty (30)
days after the Reopening Date the parties agree to use reasonable efforts to execute
a document memorializing the new expiration date of the Extension Period and the
Renewal Option Period.
The City and Contractor further agree that as consideration for a FINAL five (5) year
extension of the Agreement (the "Renewal Option Period"), said five year extension
to be applied upon completion of the additional Closure Period days and the
Extension Period, Contractor shall provide an additional investment, more
specifically described in Section 4 below, toward foodservice capital projects and
improvements for the Facility (the "New Investment"). The New Investment shall be
made no sooner than May 1, 2023, but fully invested before the expiration of the final
contract extension.
4. Capital Investment.
(a) In consideration for City's Agreement to extend the Contract for the final five
(5) year term in accordance with Section 3, above, Section 4 of the Agreement is
modified to recognize that Contractor shall invest an additional Capital Investment of
One Hundred Thousand Dollars ($100,000.00) to be used toward food service
capital projects. The scope and nature of the food service capital projects shall be
mutually agreed upon by both parties. This Capital Investment shall be invested no
sooner than May 1, 2023. The New Investment shall have industry standard buy-
back protection in case of early termination for any reason whatsoever.
(b) The depreciation and amortization provisions as established in the original
Agreement, as well as Amendments 1 and 2 thereto, shall be modified as follows:
Commencing on the COVID-19 Closure Date, the depreciation and amortization of
the Capital Investment per the Agreement shall be suspended for one (1) year and
during the Extension Period (the COVID-19 Amortization Amount"). On the first day
after the end of the Extension Period, Contractor shall amortize the previously
suspended COVID-19 Amortization Amount on a straight-line basis over the
remaining term of the Agreement (including the "Renewal Option Period") In
addition, with respect to the New Investment, the New Investment shall be amortized
and/or depreciated on a straight-line basis over a five (5) year schedule beginning on
the initiation date of the Renewal Option Period.
5. Guaranteed minimums and Commissions.
(a) Commencing on the COVID-19 Closure Date, the Annual Guaranteed
Minimum of One Hundred Twenty Thousand Dollars ($120,000), pursuant to Section
5(a) of the original Agreement, shall be waived and shall not be applied for the two
(2) years immediately following the Closure Date, as well as through the duration of
the Extension Period. Following this specified waiver period ending on the final day
of the Extension Period Contractor shall resume compliance with the terms set forth
in Section 5(a) of the original Agreement (Contract No. 2013-090) and as these
terms may have been previously amended.
(b) City and Contractor agree that commencing on the Reopening Date and
continuing throughout the Extension Period, notwithstanding anything to the contrary in
the original Agreement, Contractor's Commission percentages on Gross Revenues
payable to the City pursuant to Section 5(e) of the original Agreement, as well as the
Contractual Reserves pursuant to Section 5(f) of the original Agreement, shall be
calculated and payable in accordance with modified Subsection (e) commissions chart,
below.
(e) Commissions
(i) Annual Gross Revenues (Sales Level)
From: To: Commission %
Zero $2,000,000 15.0%
$2,000,001 $2,500,000 16.0%
$2,500,001 And Greater 17.0%
Off Premise Catering 6.0% (all Sales Levels)
City and Contractor further agree that commencing on the first day following the end of
the Extension Period, notwithstanding anything to the contrary in the original Agreement,
Contractor's Commission percentages on Gross Revenues payable to the City pursuant
to Section 5(e) of the original Agreement, as well as the Contractual Reserves pursuant
to Section 5(f) of the original Agreement, shall be calculated and payable in accordance
with the modified Subsection (e) commissions chart, below.
(ii) Annual Gross Revenues (Sales Level)
From: To: Commission %
Zero $873,000 15.0%
$873,001 $1,746,000 16.0%
$1,746,000 And Greater 17.0%
Off Premise Catering 10.0% (all Sales Levels)
Calculated on the increment and sales thresholds will be adjusted annually on the
contract anniversary date, in accordance with the "All Urban Consumers — Seattle-
Tacoma-Bremerton Consumers Price Index (CPI-U)", based on the previous twelve (12)
months.
(f) Commencing on the Reopening Date and During the Extension Period
Contractual Reserves 0.5% of Gross Revenues
Commencing on the first day following the end of the Extension Period
Contractual Reserves 1.0% of Gross Revenues
Upon the completion of the Extension Period, all terms and conditions established in Subsection
5(b), (e) and (f) shall resume in accordance with the specific terms set forth in the original
Agreement (City Contract No. 2013-090), or as thereafter Amended by Amendment No.s 1 and
2.
45. Payment for Utilities.
Commencing on the COVID-19 Closure Date and continuing until sixty (60) days after the
Reopening Date, Contractor shall not be obligated to pay any invoices and charges associated
with the electricity at the Facility. Beginning on the sixty first (61St) day after the Reopening
Date, the terms of utility payment shall resume as set forth in the original Agreement.
Except as expressly amended herein, all other terms and conditions of City Contract No. 2013-
090, including any previously approved amendments, shall remain in full force and effect.
CITY OF YAKIMA: SERVICE AMERICA CORPORATION
D/B/A CENTERPLATE:
Robert Harrison, City Manager Hadi Monavar - EVP & CFO
,J-t" . 1S 1/12/2021
Date Date
CITY CONTRACT NO: -o9 Amend.3
RESOLUTION NO: