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HomeMy WebLinkAboutAG 17-091RETURN TO• EXT: CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM JRIGINATING DEPT./DIV: 13'60 ORIGINATING STAFF PERSON: TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E. ❑ PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT J GOODS AND SERVICE AGREEMENT ❑' REAL ESTATE DOCUMENT ❑ ORDINANCE ❑ CONTRACT AMENDMENT (AG #): ❑ OTHER EXT: 3. DATE REQ. BY: G, RFB, RFP, RFQ) ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ MAINTENANCE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) ❑ RESOLUTION ❑ INTERLOCAL . PROJECT NAME: NAME OF CONT ADDRESS: E -MAIL: SIGNATURE NAME: TELEPHONE FAX: TITLE Se it l �/ rV>Q`es EXHIBITS AND ATTACHMENTS: ❑ SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS /CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES TERM: COMMENCEMENT DATE: TOTAL COMPENSATION $ or ❑ PRIOR CONTRACT /AMENDMENTS COMPLETION DATE: aa 8 6nnt INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLE 3 ND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑ YES ❑ NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED ❑ YES ❑ NO IF YES, $ RETAINAGE: RETAINAGE AMOUNT: PAID BY: ❑ CONTRACTOR ❑ CITY ❑ RETAINAGE AGREEMENT (SEE CONTRACT) OR ❑ RETAINAGE BOND PROVIDE ❑ PURCHASING: PLEASE CHARGE TO: 0. DOCUMENT /CONTRACT REVIEW ❑ PROJECT MANAGER lfDIRECTOR RISK MANAGEMENT OF APPLICABLE) ❑ LAW INITIAL / DATE REVIEWED INITIAL / DATE APPROVED -AG Lf /wk r 51' 1. COUNCIL APPROVAL (IF APPLICABLE) COMMITTEE APPROVAL DATE: COUNCIL APPROVAL DATE: 2. CONTRACT SIGNATURE ROUTING SENT TO VENDOR/CONTRACTOR DATE SENT: DATE REC'D: ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS ❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR 1 MONTH PRIOR TO EXPIRATION DATE (Include dept. support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) 51,03/11- ❑ LAW DEPARTMENT X SIGNATORY (MAYOR OR DIRECTOR) ❑ CITY CLERK ❑ ASSIGNED AG# ❑ SIGNED COPY RETURNED ;OMMENTS: AIIMWSZiri INITIAL / DATE IGI\ ED C, - - / AG# SWIZZ 1 'IA. I DATE SENT: 5.2$' fl} (Ake Ve21-4.3c4A-. 1/1111 '7 CITY OF 4■+ Fe d e ra I Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 wive! cityoffederalway. corn FOOD AND BEVERAGE SERVICE AGREEMENT FOR PERFORMING ARTS AND EVENT CENTER This Food and Beverage Service Agreement ( "Agreement ") is made between the City of Federal Way, a Washington municipal corporation ( "City "), and SMG Food and Beverage, Limited Liability Company d/b /a SAVOR, a Delaware LLC ( "Contractor "). The City and Contractor (together "Parties ") are located and do business at the below addresses which shall be valid for any notice required under this Agreement: SMG FOOD AND BEVERAGE, LLC: Scott Campanella Division Senior Vice President 300 Conshohocken State Road, Suite 770 West Conshohocken, PA 19428 610 - 729 -1080 (telephone) 610- 772 -5320 (facsimile) scampanellac smgworld.com The Parties agree as follows: CITY OF FEDERAL WAY: Theresa Yvonne Executive Director 33325 8th Ave. S. Federal Way, WA 98003 -6325 (253) 835-2414 (telephone) (253) 835 -2409 (facsimile) theresa .yvonne@cityoffederalway.com 1. TERM. The term of this Agreement shall commence upon the effective date of this Agreement, which shall be the date of mutual execution, and shall continue until the completion of the Services, but in any event no later than May 8, 2022 ( "Term "). 2. WORK. 2.1 Work. The Contractor shall provide goods, materials or services and otherwise perform the work more specifically described in Exhibit "A," attached hereto and incorporated by this reference ( "Work "), performed to the City's satisfaction, within the time period prescribed by the City and pursuant to the direction of the Mayor or his or her designee. 2.2 Warranties. The Contractor warrants that it has the requisite training, skill, and experience necessary to provide the Work and is appropriately accredited and licensed by all applicable agencies and governmental entities, including but not limited to obtaining a City of Federal Way business registration. The Contractor warrants it will provide services in a manner consistent with the accepted practices for other similar services within the Puget Sound region in effect at the time those services are performed. 2.3 Time, Documentation, and Inspection. Work shall begin immediately upon the effective date of this Agreement. Work shall be subject, at all times, to observation and inspection by and with approval of the City, but the making (or failure or delay in making) such inspection or approval shall not relieve Contractor of responsibility for performance of the Work in accordance with this Agreement, notwithstanding the City's knowledge of defective or non - complying performance, its substantiality or the ease of its discovery. CONCESSIONAIRE AGREEMENT - 1 - 3/2017 CITY OF 4A•._ Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www cityoffederalway. coin 2.4 Clean Up. At any time ordered by the City and immediately after completion of the Work, the Contractor shall, at its own expense, clean up and remove all refuse and unused materials of any kind resulting from the Work. In the event the Contractor fails to perform the necessary clean up, the City may, but in no event is it obligated to, perform the necessary clean up and the costs thereof shall be immediately paid by the Contractor to the City and/or the City may deduct its costs from any remaining payments due to the Contractor. 2.6 Operating Account. The City shall establish and maintain, one or more general ledger accounts, in the name of the City to be used in connection with the Contractor's performance of the Work (collectively the "Operating Account "). Contractor shall deposit daily into the designated general ledger accounts (the "Revenue Account") all Gross Receipts received by Contractor from the performance of the Services. All Operating Costs shall be paid from the Operating Account. 2.5 Operations Funding. The Contractor, as the City's agent, shall pay all Operating Costs (as defined in Exhibit "C ") from the established and designated general ledger account. Such funds shall be provided to Contractor starting on the effective date and daily thereafter, based upon the then current balance in the Operating Account. The City shall advance to the Contractor as Working Capital an amount sufficient to fund ongoing operations. 3. TERMINATION. Either party may terminate this Agreement, with or without cause, upon providing the other party ninety (90) days written notice at its address set forth on the signature block of this Agreement. The City may terminate this Agreement immediately if the Contractor fails to maintain required insurance policies, breaches confidentiality, or materially violates Section 12 and such may result in ineligibility for further City agreements. 4. COMPENSATION. Contractor will be compensated per the terms outline in Exhibit "B" (compensation). 5. INDEMNIFICATION. 5.1 Contractor Indemnification. The Contractor agrees to release indemnify, defend, and hold the City, its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties expenses, attorney's fees, costs, and/or litigation expenses to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or in connection with this Agreement or the performance of this Agreement, to the extent of the Contractor's negligence. Contractor shall ensure that each sub - contractor shall agree to defend and indemnify the City, its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers to the extent and on the same terms and conditions as the Contractor pursuant to this paragraph. The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. 5.2 Industrial Insurance Act Waiver. It is specifically and expressly understood that the Contractor waives any immunity that may be granted to it under the Washington State industrial insurance act, Title 51 RCW, solely for the purposes of this indemnification. Contractor's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. The Parties further acknowledge that they have mutually negotiated this waiver. 5.3 City Indemnification. The City agrees to release, indemnify, defend and hold the Contractor, its officers, directors, shareholders, partners, employees, agents, representatives, and sub - contractors harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, losses, fines, fees, penalties expenses, attorney's fees, costs, and/or litigation expenses to or by any and all persons or entities, including without limitation, their respective agents, licensees, or representatives, arising from, resulting from or connected with this Agreement to the extent solely caused by the negligent acts, errors, or omissions of the City. 5.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. CONCESSIONAIRE AGREEMENT - 2 - 3/2017 CITY of Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www cityoffederafway corn 6. INSURANCE. The Contractor agrees to carry insurance for liability which may arise from or in connection with the performance of the services or work by the Contractor, their agents, representatives, employees or subcontractors for the duration of the Agreement and thereafter with respect to any event occurring prior to such expiration or termination as follows: 6.1. Minimum Limits. The Contractor agrees to carry as a minimum, the following insurance, in such forms and with such carriers who have a rating that is satisfactory to the City: a. Commercial general liability insurance covering liability arising from premises, operations, independent contractors, products - completed operations, stop gap liability, personal injury, bodily injury, death, property damage, products liability, advertising injury, and liability assumed under an insured contract with limits no less than $1,000,000 for each occurrence and $2,000,000 general aggregate. b. Workers' compensation and employer's Liability insurance in amounts sufficient pursuant to the laws of the State of Washington; c. Automobile liability insurance covering all owned, non - owned, hired and leased vehicles with a minimum combined single limits in the minimum amounts required to drive under Washington State law per accident for bodily injury, including personal injury or death, and property damage. 6.2. No Limit of Liability. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. The Contractor's insurance coverage shall be primary insurance as respect the City. Any insurance, self- insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 6.3. Additional Insured, Verification. The City shall be named as additional insured on all commercial general liability insurance policies. Concurrent with the execution of this Agreement, Contractor shall provide certificates of insurance for all commercial general liability policies attached hereto as Exhibit "C" and incorporated by this reference. At City's request, Contractor shall furnish the City with copies of all insurance policies and with evidence of payment of premiums or fees of such policies. If Contractor's insurance policies are "claims made," Contractor shall be required to maintain tail coverage for a minimum period of three (3) years from the date this Agreement is actually terminated or upon project completion and acceptance by the City. 6.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement. 7. CONFIDENTIALITY. All information regarding the City obtained by Contractor in performance of this Agreement shall be considered confidential subject to applicable laws. Breach of confidentiality by the Contractor may be grounds for immediate termination. All records submitted by the City to the Contractor will be safeguarded by the Contractor. The Contractor will fully cooperate with the City in identifying, assembling, and providing records in case of any public records disclosure request. 8. WORK PRODUCT. All originals and copies of work product, including plans, sketches, layouts, designs, design specifications, records, files, computer disks, magnetic media or material which may be produced or modified by Contractor while performing the Work shall belong to the City upon delivery. The Contractor shall make such data, documents, and files available to the City and shall deliver all needed or contracted for work product upon the City's request. At the expiration or termination of this Agreement, all originals and copies of any such work product remaining in the possession of Contractor shall be delivered to the City. 9. BOOKS AND RECORDS. The Contractor agrees to maintain books, records, and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of the Work and maintain such accounting procedures and practices as may be deemed necessary by the City to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject, at all reasonable times, to inspection, review or audit by the City, its authorized representative, the State Auditor, or other governmental officials authorized by law to monitor this Agreement. CONCESSIONAIRE AGREEMENT - 3 - 3/2017 CITY OF Federal Way 10. INDEPENDENT CONTRACTOR / EMPLOYEE CONDITIONS. CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 wwty cityoffederatway corn 10.1 Independence. The Parties intend that the Contractor shall be an independent contractor and that the Contractor has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. The City shall be neither liable nor obligated to pay Contractor sick leave, vacation pay or any other benefit of employment, nor to pay any social security, income, or other tax which may arise as an incident of employment, except as specifically provided in Section 4. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. If the Contractor is a sole proprietorship or if this Agreement is with an individual, the Contractor agrees to notify the City and complete any required form if the Contractor retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Contractor's failure to do so. 10.2 Safety. Contractor shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors at the work site and in the performance of the contract work and shall utilize all protection necessary for that purpose. Contractor shall comply with all applicable provisions of federal, state and municipal safety and health laws and codes, including without limitation, all OSHA/WISHA requirements, Safety and Health Standards for Construction Work (Chapter 296 -155 WAC), General Safety and Health Standards (Chapter 296 -24 WAC), and General Occupational Health Standards (Chapter 296 -62 WAC). Contractor shall erect and properly maintain, at all times, all necessary guards, barricades, signals and other safeguards at all unsafe places at or near the site for the protection of its employees and the public, safe passageways at all road crossings, crosswalks, street intersections, post danger signs warning against known or unusual hazards and do all other things necessary to prevent accident or loss of any kind. Contractor shall protect from damage all water, sewer, gas, steam or other pipes or conduits, and all hydrants and all other property that is likely to become displaced or damaged by the performance of the Work. The Contractor shall, at its own expense, secure and maintain a safe storage place for its materials and equipment and is solely responsible for the same 10.3 Risk of Work. All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. Even though Contractor is an independent contractor, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure satisfactory completion 11. CONFLICT OF INTEREST. It is recognized that Contractor may or will be performing professional services during the Term for other parties; however, such performance of other services shall not conflict with or interfere with Contractor's ability to perform the Services. Contractor agrees to resolve any such conflicts of interest in favor of the City. Contractor confirms that Contractor does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in the Contractor's selection, negotiation, drafting, signing, administration, or evaluating the Contractor's performance. 12. EQUAL OPPORTUNITY EMPLOYER. In all services, programs, activities, hiring, and employment made possible by or resulting from this Agreement or any subcontract, there shall be no discrimination by Contractor or its subcontractors of any level, or any of those entities'employees, agents, subcontractors, or representatives against any person because of sex, age (except minimum age and retirement provisions), race, color, religion, creed, national origin, marital status, or the presence of any disability, including sensory, mental or physical handicaps, unless based upon a bona fide occupational qualification in relationship to hiring and employment. This requirement shall apply to, but not be limited to, the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Contractor shall comply with and shall not violate any of the terms of Chapter 49.60 RC W, Title VI of the Civil Rights Act of 1964, the Americans With Disabilities Act, Section 504 of the Rehabilitation Act of 1973, 49 CFR Part 21, 21.5 and 26, or any other applicable federal, state, or local law or regulation regarding non - discrimination. CONCESSIONAIRE AGREEMENT - 4 - 3/2017 CITY OF Federal Way 13. GENERAL PROVISIONS. CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www cityoffederalway. com 13.1 Interpretation and Modification. This Agreement, together with any attached Exhibits, contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior statements or agreements, whether oral or written, shall be effective for any purpose. Should any language in any Exhibits to this Agreement conflict with any language in this Agreement, the terms ofthis Agreement shall prevail. The respective captions ofthe Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect any of the provisions ofthis Agreement. Any provision ofthis Agreement that is declared invalid, inoperative, null and void, or illegal shall in no way affect or invalidate any other provision hereof and such other provisions shall remain in full force and effect. Any act done by either Party prior to the effective date of the Agreement that is consistent with the authority of the Agreement and compliant with the terms ofthe Agreement, is hereby ratified as having been performed under the Agreement. No provision of this Agreement, including this provision, may be amended, waived, or modified except by written agreement signed by duly authorized representatives of the Parties. 13.2 Assignment and Beneficiaries. Neither the Contractor nor the City shall have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent ofthe other Party. If the non- assigning party gives its consent to any assignment, the teens of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. Subject to the foregoing, the rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto. No other person or entity shall have any right of action or interest in this Agreement based on any provision set forth herein. 13.3 Compliance with Laws. The Contractor shall comply with and perform the Services in accordance with all applicable federal, state, local, and city laws including, without limitation, all City codes, ordinances, resolutions, regulations, rules, standards and policies, as now existing or hereafter amended, adopted, or made effective. If a violation of the City's Ethics Resolution No. 91 -54, as amended, occurs as a result of the formation or performance ofthis Agreement, this Agreement may be rendered null and void, at the City's option. 13.4 Enforcement. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description ofthe Services is essential to the Contractor's performance of this Agreement. Any notices required to be given by the Parties shall be delivered at the addresses set forth at the beginning of this Agreement. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth above. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. Any remedies provided for under the terms of this Agreement are not intended to be exclusive, but shall be cumulative with all other remedies available to the City at law, in equity or by statute. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. Failure or delay of the City to declare any breach or default immediately upon occurrence shall not waive such breach or default. Failure ofthe City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default. This Agreement shall be made in, governed by, and interpreted in accordance with the laws of the State of Washington. If the Parties are unable to settle any dispute, difference or claim arising from this Agreement, the exclusive means of resolving that dispute, difference, or claim, shall be by filing suit under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative process. If the King County Superior Court does not have jurisdiction over such a suit, then suit may be filed in any other appropriate court in King County, Washington. Each party consents to the personal jurisdiction ofthe state and federal courts in King County, Washington and waives any objection that such courts are an inconvenient forum. If either Party brings any claim or lawsuit arising from this Agreement, each Party shall pay all its legal costs and attorney's fees and expenses incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, however nothing in this paragraph shall be construed to limit the Parties' rights to indemnification under Section 5 of this Agreement. CONCESSIONAIRE AGREEMENT - 5 - 3/2017 CITY OF .�.�.. Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www crtyoffederalway com 13.5 Execution. Each individual executing this Agreement on behalf of the City and Contractor represents and warrants that such individual is duly authorized to execute and deliver this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and with the same effect as if all Parties hereto had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but in making proof hereof it shall only be necessary to produce one such counterpart. The signature and acknowledgment pages from such counterparts may be assembled together to form a single instrument comprised of all pages of this Agreement and a complete set of all signature and acknowledgment pages. The date upon which the last of all of the Parties have executed a counterpart of this Agreement shall be the "date of mutual execution" hereof. CONCESSIONAIRE AGREEMENT [Signature page follows] - 6 - 3/2017 4CITY OF ., Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www.cityoffederalway.com IN WITNESS, the Parties execute this Agreement below, effective the last date written below. CITY OF FEDERAL WAY: ATTEST: Jim Ferrell, Mayor DATE: SMG FOOD AND BEVERAGE, LLC: By: Printed Name: John Burns Title: CFO DATE: M A-7 2 3 201") STATE OF PENNSYVANIA COUNTY OF MONTGOMERY Stephanie Courtney, CMC, City Clerk APPROVED AS TO FORM: J. Ryan Call, City Attorney On this day personally appeared before me �() �► urn S , to me known to be the C F o of rc% G co,, role. LPL dha SAVpjiat executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he /she was authorized to execute said instrument. GIVEN my hand and official seal this c 2 day of (Yi Gty Notary's signature L m i / 'e— Notary's printed name G a Q Ae <— Notary Public in and for the State of ere ire n ,t1t4` 2'-- My commission expires Cis .4- )j; x019 , 2017. CONCESSIONAIRE AGREEMENT 7 COMMONWEALT OF PENNSYLVANIA NOTARIAL SEAL CARLENE $ •ALICKIE Notary Public LOWER MERION TWP, MONTGOMERY COUNTY My Commission Expire Aug 11. 2019 3/ 017 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way. WA 98003 -6325 (253) 835 -7000 www. cityoffederalway. com IN WITNESS, the Parties execute this Agreement below, effective the last date written below. CITY OF FEDERAL WAY: ATTEST: J. , Mayor h ie Courtney, CMC, C Clerk DATE: 0 0 / 1 APPROVED AS TO FORM: SMG FOOD AND BEVERAGE, LLC: 13y: Printed Name: John Burns Title: CFO DATE: '((67 z3, 2- 01) STATE OF PENNSYVANIA COUNTY OF MONTGOMERY J. Ryan Call, City Attorney On this day personally appeared before me / (fin ( , to me known to be the of Sr- , Fc d 4 3 ■v-a-re d,ba Sava__ that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he /she was authorized to execute said instrument. GIVEN my hand and official seal this J.3 t5-4 day of ft,'( a•.j - , 2017. Notary's signature ( ! atZ,(e,.e.. ,Q. ,- b.c-L -- Notary's printed name C c,., * r,e- i3. 3 al.,• � cc, -e- Notary Public in and for the State of -BeF re 5rinsOl ✓a " My commission expires it 4,,{{'',,_ - ! 1 } .94)(1 COMMONWEAL!)1 OF PENNSYLVANIA NOTARIAL SEAL CARLENE 8 BALICKIE Notary Public LOWER MERION TWP, MONTGOMERY COUNTY My Commission Expires Aug 11, 2019 CONCESSIONAIRE AGREEMENT 7 3/2017 CITY OF .'�... Federal Way EXHIBIT "A" CONTRACTOR SERVICES CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835-7000 www cityofederatway com A. Scope of Services. Contractor agrees to exclusively promote, operate, manage, and provide food and beverage services as requested by the rental client or the PAEC Executive Director; and to provide quality service to the PAEC patrons and maximize gross receipts as commercially reasonable. As Operating Costs, Contractor shall: 1. develop a standard agreement to be used for all events for which the food and beverage service provider shall exercise its catering and concessions rights. Unless the client authorizes otherwise, the agreement shall be between the Contractor and the client and must be signed by those parties prior to Contractor beginning work on that event. The form of the standard agreement must be approved by the Executive Director, and any event - specific changes to the standard agreement must be approved by the Executive Director prior to its execution. Fully executed copies of the agreement must be delivered to the Executive Director prior to the event. The agreement must include the details on payment from the client. 2. prior to each performance or event, provide the PAEC representative assigned to the event with the names of the on -site managers and all employees, agents and approved subcontractors performing food and beverage services in connection with a client's event or performance. 3. coordinate with the PAEC representative regarding the exact location at which each program, concession or catering service is to be installed in connection with such event, and install the number of such stands at the locations authorized by the representative or requested by event client on the premises. 4. ensure that competent, courteous, well trained, appropriately- attired, and efficient employees, agents, or subcontractors appear at the event or performance location prior to the time of public door openings as specified by the event agreement, together with all equipment, merchandise and supplies needed to fully perform the program and vending desired by PAEC or the client. 5. provide high quality of customer service and shall treat all customers with courtesy and respect. Contractor shall honor all reasonable and proper requests for refunds including requests from customers that are dissatisfied with any food, beverage or other product sold by Contractor or from customers who have lost money in any vending machine owned by Contractor. 6. following each event or performance services, ensure that equipment, merchandise, and supplies are removed from Contractor's authorized sales locations to an appropriate, mutually agreed upon storage area, and that all unsold merchandise is disposed of in a manner that is separately agreed upon by Contractor and the client. 7. be responsible for developing and implementing a plan to minimize the risk of loss from theft in all its cash handling operations, which plan shall be subject to the prior review and approval of the City. 8. upon receipt of notice from the City of any reasonable and significant objection to any of Contractor's employees, including Contractor's representative, the use of such employee in connection with this agreement shall be discontinued and a suitable person shall be promptly substituted; provided however, that the City's right to require replacement of any Contractor's employee, and Contractor's obligation to comply with any such request, shall be subject to restrictions imposed upon Contractor by any federal, state or local statute, law, code, regulation or ordinance or by any collective bargaining agreement or other contract affecting such employee. 9. keep all fixtures, equipment, furniture, and other property installed, furnished, or supplied by or for the benefit of Contractor in good order and repair and shall make all necessary repairs and improvements thereto and to the concession and catering areas used in the provision of Food and Beverage Service. 10. maintain the catering and concessions areas in a clean and neat condition by cleaning, on a day -to -day basis, the interiors of the catering and concession areas, bars, stands and other areas under its control and the PAEC. Contractor shall further clean, as needed, the walls, windows, ceiling, light fixtures, and equipment located within the catering and concession areas. Contractor shall deposit in receptacles provided by City all waste, garbage and refuse which shall accumulate in the catering and concession areas. 11. order, stock, prepare, pay for and sell quality food, beverage and other concession and catering products. Consumable shall be first quality, wholesome and pure, and all food and beverage products on hand shall be stored and handled with due regard for sanitation and in accordance with state health code. Contractor shall have sufficient amounts of product prepared and an inventory on the premises so as not to run out of product during an event at the PAEC. CONCESSIONAIRE AGREEMENT 8 3/2017 CITY OF "kik Federal Way CITY HALL 33325 8th Avenue South Federal Way. WA 98003 -6325 (253) 835 -7000 www crtyoffederalway. com 12. ensure that Contractor, and its representatives, sell only those products or services authorized by the event client at the event. 13. designate a manager for program and sales who shall be responsible, at a minimum, for the following activities: a. Supervise all Contractors' on -site employees, agents and/or subcontractors who are working at the event. b. Serve as Contractor's representative and have the authority necessary to work with PAEC management and clients for event coordination, staffing requirements and stand placement. c. Be on site during events for which program and food /beverage sales services are provided (unless a substitute manager is designated by Contractor for such event), and be available by phone at other times for event planning and coordination. B. Use of Food Service Area. Contractor shall have use of the Food Service Areas including the right of access to and from the Food Service Areas by Contractor, its officers, employees, agents, subcontractors, servants, Clients, vendors, suppliers, patrons and invitees, who all shall be subject to such rules and regulations as may be established by City or any other governmental agency or authority having jurisdiction. C. Equipment. If additional equipment, including but not limited to cash registers and credit card terminals, is required or desired by the Contractor, Contractor shall procure this equipment as an Operating Cost.. 1. The City shall provide one working cubicle of office space, with office furniture, phone and computer equipment located in a non -public area for the use of the Contractors assigned staff. 2. Contractors staff has authority to park on the property of the Center with no cost to Contractor. D. Licenses. Contractor, as an Operating Cost, shall obtain all alcoholic beverage and food purveyor or dispenser licenses necessary for Contractor to perform the Services required to perform the services outlines herein, including all licenses for hosted served, catering concessions, mobile carts, and locations, if required and Contractor shall provide proof of such licenses to the Executive Director and shall keep such licenses in good standing throughout the term. a. Contractor agrees to strictly comply with the laws of the State of Washington regarding the sale of alcoholic beverages to minors. Contractor agrees to adopt an identification policy to verify the age of potential purchasers of alcoholic beverages. Contactor further agrees it will not sell alcoholic beverages to customers who are visibly intoxicated. Contractor will institute and conduct training programs for Contractor's employees at the facility on the proper standards to use to avoid selling alcoholic beverages to customers who are or who appear to be intoxicated. b. The City shall have sole discretion in determining the times and way alcoholic beverages may be sold or dispensed at the Center. E. Pricing. All pricing of any food, beverage or other product as set forth in Exhibit "A" must be competitive and must be approved in writing by the City. Contractor may not change any pricing without the City's prior written consent, which consent shall not be unreasonably withheld 1. Contractor shall provide a menu which shall constitute a complete list of all food and beverage products and merchandise the Contractor is allowed to sell as part of its Banquet Operations, from the Concession Operations areas of the Food Service Areas, and the prices to be charged to the public for such food and beverage product and merchandise. All items listed and the prices therefore are subject to the review and approval of the City, which may be approved or changed, in the Executive Director's sole discretion. Any changes to such items or prices must be requested in writing, and are subject to the written approval of the Executive Director. 2. Internal catering (catering paid for by City) shall be provided at discounted prices. Costs specifically excluded are any allocations for administrative and general overhead or for corporate -level supervision. Internal events that are discounted are not commissionable. CONCESSIONAIRE AGREEMENT 9 3/2017 'Pk CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way. WA 98003 -6325 (253) 835 -7000 www. ciryoffederal way com F. Marketing. Advertising and Marketing. All marketing and public relations materials must be reviewed and approved by the PAEC. Between September and November of each year, Contractor agrees to meet with the City to develop a mutually acceptable marketing plan for the next contract year. 1. Surveys. Contractor at the request of the City, shall conduct surveys of the services, products and prices offered by other public assembly facilities, nationally and locally, as well as other hospitality industry facilities, such as airports and hotels, and provide all results of such surveys to the City. G. Signage. During all applicable events at the PAEC, Contractor shall post signs and provide menus displaying the prices of items offered for sale. Such signs and menus shall be subject to the reasonable approval of the PAEC management. H. Records Contractor shall provide a written statement to the City on the Due Date showing the total Gross Monthly Revenue for the preceding month ( "Statement "). Contractor will provide the City or the City's agents or representatives reasonable access to the books and records of Contractor for the purposes of auditing and inspecting the same to verify the Statement. The records shall include documents from which the original transaction entry was made, including sales slips, cash register tapes, and /or purchase invoices. 1. Within twenty days following the end of each monthly accounting period Contractor shall provide to PAEC management, fmancial reports regarding its provision of food and beverage services, including a statement showing gross receipts and the operating expenses for the applicable period. Additionally, Contractor shall provide to City within twenty -four (24) hours following each event at the facility, a daily gross receipts report in a form to be mutually agreed upon. 2. City shall have the right, at its sole cost, to engage once a year an independent third party to audit the books and records of Contractor, for confirming that the amounts remitted by Contractor to City are the proper amounts due City. In the event audit reveals any underpayment to the City, Contractor shall promptly pay to City the amount of such deficiency. a. Ensure that the portion of all adjusted gross receipts from program and sales agreed upon by PAEC are remitted to the City in the designated time frame. I. Compliance with Laws. Contractor shall comply with and perform the Work in accordance with all applicable federal, state, and City laws including, without limitation, all City codes, ordinances, resolutions, standards, and policies, as now existing or hereafter adopted or amended, including but not limited to the following: a. Federal, state and Local health, safety and licensing laws relating to the sale of concession goods; b. City code provisions requiring any person or entity doing business in the City to obtain a business registration; and c. City policies, including, but not limited to, its concession policy. J. Food and Beverage Equipment. 1. Delivery. Contractor agrees to deliver and install, within 6 weeks from the execution of this Agreement, as an Operating Cost, the concession facilities, machines and equipment mutually agreed upon. 2. Maintenance. Contractor shall, as an Operating Cost, maintain the Concession Stands and Concession Equipment and the surrounding real property in good condition and repair, including, but not limited to, maintaining the Concession Stands in a neat, clean and sanitary condition and removing all garbage, trash or other debris on a regular basis pursuant to the City's instructions. 3. Damage to Concession Stands. If the Concession Stands are damaged beyond accepted fair wear, the Contractor shall, as an Operating Cost, restore the Concession Stands to a condition equivalent to or better than their condition immediately prior to such damage. K. Capital Investment. Within 30 days after commencement agreement, Contractor agrees to invest up to but not to exceed, Two Hundred Thousand and 00 /100 Dollars ($200,000.00) (the "Investment ") at the PAEC for capital equipment, and /or improvements dedicated to the food and beverage services to be performed by Contractor hereunder. Executive Director and Contractor shall mutually agree upon the specific equipment or improvement to CONCESSIONAIRE AGREEMENT - 10 - 3/2017 As %IAs %ILL OF ederal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835-7000 www. cityoffederalway, com be purchased or made with Contractor's investment, as well as the location for such improvement or installation of such equipment. 1. The investment shall be amortized on a straight -line basis over a 5 -year period, beginning on the effective date. The rights of Contractors set forth in above financial terms shall be in addition to any other rights of Contractor at law or in equity. City covenants and agrees to operate the PAEC in such manner as to not permit any liens to attach to the improvements or equipment. Upon the Investment being fully amortized according to the amortization schedule set forth above or otherwise upon payment, title to the equipment and improvements will become vested in City, and Contractor agrees to execute all necessary documents to evidence same. 2. The City has the right to buy out the Capital Investment at any time during this agreement. In the event of the expiration or termination of this Agreement for any reason, the City shall pay, or cause any successor food and beverage services company to pay, to Contractor unconditionally and without set -off the unamortized amount of the Capital Contribution existing as of such expiration or termination. The payment of any such unamortized amounts shall be made to Contractor no later than thirty (30) days following the effective date of such expiration or termination. CONCESSIONAIRE AGREEMENT - 11 - 3/2017 CITY OF ., Federal Way EXHIBIT "B" COMPENSATION CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www cilyoffederalway com 1. Compensation. In return for the services, the City agrees to pay the Contractor the greater of Five percent (5 %) of the Contractor's Gross Monthly Revenue or $50,000 annually, excluding state sales tax ( "Percentage Payment "). The term "Gross Monthly Revenue" shall mean the total amount charged by Contractor, its employees, agents, or licensees, for all goods and merchandise sold or services performed, whether for cash or other consideration or on credit, and regardless of collections. 2. Annual Incentive Fee: The Contractor shall be eligible to receive an Annual Incentive Fee equal to Twenty Five percent (25 %) of Net Operating Revenue in excess of the benchmark, payable within 30 days after the end of any contract year upon verification of performance. The Incentive Fee shall be paid within 30 days following the end of the Contract Year or within 30 days following documentation and approval of goal achievement, whichever is later. The foregoing notwithstanding, the Incentive Fee payable for the first twelve (12) months of operation shall be equal to 10% of Net Operating Revenues, if any. CONCESSIONAIRE AGREEMENT - 12 - 3/2017 CITY OF Federal Way EXHIBIT "C" CITY'S "OPERATING COSTS" CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www cityoffederalway.com The "Operating Costs ", payable by the City under this Agreement, shall include: a. cost of sales, calculated according to the Uniform System of Accounts for Restaurants ( "USAR "); b. payroll, service charge distributions, reserves for bonuses and vacation pay, employee benefits, and employee meals, all as calculated according to USAR; c. those expenses relating to the licenses necessary to perform the Work including, but not limited to, the cost of the Owner provided electrical and utility services and fees payable to the appropriate regulatory agency for alcoholic beverage and food purveyor or dispenser licenses, all calculated according to generally accepted accounting principles; d. fees and other costs and expenditures required to permit the Manager to perform the Work; e. interest and depreciation expenses, subject to the prior written approval of the Owner; and f. all other costs and expenses incurred by Manager in connection with the performance of the Work hereunder; and The following are not included in the calculation of Operating Costs: g. the Manager's federal, state or local income taxes and any other taxes not identified elsewhere in or contemplated under the Agreement, provided, however, that federal, state, municipal or other governmental excise, use and sales taxes shall be an Operating Cost hereunder; h. corporate general and administrative overhead expenses; however, the reasonable costs of travel by Manager's corporate or regional personnel incurred after the commencement of the Term hereunder in connection with overseeing the performance of the Work hereunder shall be an Operating Cost; and i. the cost of outside consulting services or professional services, e.g., recruitment services, unless specifically approved in advance and in writing by the Owner. CONCESSIONAIRE AGREEMENT - 13 - 3/2017 ACRD® CERTIFICATE OF LIABILITY INSURANCE D05/01 /2017D/YYYV) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER MARSH USA INC. 1717 Arch Street Philadelphia, PA 19103 Attn: PHILADELPHIA.CERTS @MARSH.COM J22735 -LIQ2- Stand -16-17 CONTACT NAME' PHONE FAX (A/C. No. Ext): (A/C, No): E -MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC 0 INSURER A : Berkshire Hathaway Specialty Insurance Company 22276 INSURED SMG FOOD AND BEVERAGE, LLC 300 CONSHOHOCKEN STATE ROAD, SUITE 770 WEST CONSHOHOCKEN, PA 19428 INSURER B : United States Fire Insurance Co. 21113 INSURER C : Berkshire Hathaway Homestate Insurance Company 20044 INSURER D : Redwood Fire & Casualty Co 11673 INSURER E : N/A N/A INSURER F : COVERAGES CERTIFICATE NUMBER: CLE- 005327981 -01 REVISION NUMBER:5 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS INSR LTR TYPE OF INSURANCE ADDL INSD SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY 47 -GLO- 301510 -02 07/01/2016 07/01/2017 EACH OCCURRENCE $ 1,000,000 DAMAGE TO RENTED PREMISES (Ea occurrence) $ 1,000,000 CLAIMS -MADE X OCCUR MED EXP (My one person) $ EXCLUDED PERSONAL 8 ADV INJURY $ 2,000,000 GENERAL AGGREGATE $ 3,000,000 GEN'L X AGGREGATE POLICY OTHER: LIMIT APPLIES JECOT PER: LOC PRODUCTS - COMP /OP AGG $ 2,000,000 $ B AUTOMOBILE X X LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS x SCHEDULED AUTOS ON SWNED 133-739145-9 COMP/COLL DED. $1000 07/01/2016 07/01/2017 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 BODILYINJURY(Perperson) $ BODILY INJURY (Per accident) $ (Per accident) $ $ UMBRELLA LIAB EXCESS LIAB OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ $ DED RETENTON$ D C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below Y / N N N / A SMWC711210 (AOS) SMWC711301 (FL) ( ) NJ, NY, PA, WY, WA, OH, ND SMWC711299 PA ( Corp) rp) 07/01/2016 07/01/2016 07/01/2016 07/01/2017 07/01/2017 07/01/2017 X STATUTE OTH E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 A LIQUOR LIABILITY 47 -GLO- 301510 -02 07/01/2016 07/01/2017 LIMIT 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: FOOD & BEVERAGE SERVICES AGREEMENT CITY OF FEDERAL WAY IS INCLUDED AS ADDITIONAL INSURED WHERE REQUIRED BY WRITTEN CONTRACT OR AGREEMENT WITH RESPECT TO LIABILITY ARISING OUT OF YOUR OPERATIONS OF PREMISES OWNED OR RENTED TO OR YOUR MANAGEMENT OF THE PREMISES OF OTHERS, EXCEPT FOR WORKERS COMPENSATION. THIS INSURANCE IS PRIMARY AND NON- CONTRIBUTORY TO ANY OTHER INSURANCE. CERTIFICATE HOLDER CANCELLATION CITY OF FEDERAL WAY ATTN: THERESA YVONNE 33325 8TH AVE. S. FEDERAL WAY, WA 98003 -6325 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Manashi Mukherjee 3tita�ano tcu e ACORD 25 (2014/01) © 1988-2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD