HomeMy WebLinkAboutContract 32248-A2 CITY SECRETARY
CONTRACT NO.. 34=48-A a
SECOND AMENDMENT TO CONTRACT
FOR EXCLUSIVE CONCESSION AND ALCOHOLIC BEVERAGE SERVICE
AT THE WILL ROGERS MEMORIAL CENTER
STATE OF TEXAS }
}
COUNTY OF TARRANT }
THIS SECOND AMENDMENT TO CONTRACT FOR EXCLUSIVE CONCESSION
AND ALCOHOLIC BEVERAGE SERVICE AT THE WILL ROGERS MEMORIAL
CENTER (this "Amendment") is made and entered by and between the CITY OF FORT
WORTH, a home rule municipal corporation of the State of Texas located within Tarrant,
Denton, Parker, and Wise Counties, Texas (hereinafter referred to as "City") acting by and
through its duly authorized Assistant City Manager, and ARAMARK SPORTS AND
ENTERTAINMENT SERVICES OF TEXAS, LLC, a Delaware limited liability company
and successor-by-conversion of ARAMARK Sports and Entertainment Services of Texas, Inc.
(hereinafter referred to as "ARAMARK" or "Concessionaire").
RECITALS
WHEREAS, on May 10, 2005, the City Council, via M&C C-20728, authorized the City
Manager to execute a five-year agreement styled as City Contract No. 32248 (the "Original
Agreement') with ARAMARK to be the exclusive food, beverage (alcoholic and non-alcoholic)
and related concession and catering services provider at the Will Rogers Memorial Center
("WRMC");
WHEREAS, on September 15, 2010, the City and ARAMARK amended the Original
Agreement to provide for the payment to ARAMARK of the unamortized portion of the
investment and the disposition of the related equipment and permanent improvements utilized at
the WRMC, all as more particularly set forth therein (the "First Amendment'; the First
Amendment together with the Original Agreement, the "Agreement');
WHEREAS, the City and ARAMARK wish to further amend the Agreement to, among
other things, extend the period for which ARAMARK will continue to provide services under the
Agreement (as amended herein) and modify certain of the fiscal arrangements, subject to the
terms and provisions contained in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
OFFICIAL RECORD
1 CITY SECRETARY
FT. WORTH, TX
is hereby acknowledged, and intending to be legally bound hereby, the City and Concessionaire
agree as follows:
AGREEMENT
1. Recitals/Defined Terms. The preceding recitals are hereby incorporated by
reference as if fully set forth herein. All capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Agreement.
2. Term. In accordance with Section 2 of the First Amendment, the parties hereto
agree to extend ARAMARK's holdover at the WRMC for a period of one (1) additional month
to December 31, 2010 under the terms and conditions set forth in the Agreement as the same are
modified and amended by the terms and conditions of this Amendment. The parties hereto may
further agree to extend the Agreement (as amended herein) on such terms and conditions as the
parties may mutually agree in writing.
3. Fiscal Arrangements. Effective as of December 1, 2010 and continuing until the
subsequent termination or expiration of the Agreement as set forth in Section 2 above (such
period, the "Extension Term") or earlier in accordance with the terms of the Agreement, the
terms of the "Concession Rental" as set forth in the Agreement shall be deemed amended
pursuant to the terms of this Amendment. Accordingly, effective as of December 1, 2010,
Section 5.01 of the Original Agreement is hereby amended and modified as follows:
A. In Section 5.01, paragraph A, the phrase "Thirty (30%) percent" at the
beginning of such paragraph is hereby deleted and replaced with the
following: "Eighteen percent (18%)".
B. In Section 5.01, paragraph B, the phrase "Thirty Six (36%) percent" at the
beginning of such paragraph is hereby deleted and replaced with the
following: "Eighteen percent (18%)".
C. Section 5.01, paragraph C, is hereby deleted in its entirety and replaced with
the following:
"When the Concessionaire operates as a caterer, defined as the sale of group
meals or food to an organization and the billing to that one organization (not
individual sale of food), or when the Concessionaire is providing services
pursuant to Section 11.08 herein, then a flat fee of twenty percent (20%) of
Gross Receipts, as defined in the RFP, from such catering operations will be
paid to the City."
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D. The following is hereby added as Section 5.01, paragraph D:
"Notwithstanding anything in Section 5.01 herein to the contrary, to the extent
there are any Gross Receipts, as defined in the RFP, arising from sales by
subcontractors of Concessionaire at the Center, then the only fee payable to
the City hereunder with respect to such Gross Receipts shall be a flat fee of
ten percent (10%) of the net amount received by Concessionaire from such
subcontractors relating to such Gross Receipts."
4. Holdover Financial Incentive Payment.
A. City agrees to pay to ARAMARK the Holdover Incentive Payment
Amount (as defined below) as additional compensation to ARAMARK for the
extension of the holdover term as set forth in Section 2 herein. The Holdover
Incentive Payment Amount shall be due and payable to ARAMARK upon the
expiration or earlier termination of ARAMARK's holdover at the WRMC in
accordance with the terms of the Agreement (as amended herein).
(i) As used herein, the "Holdover Incentive Payment Amount" shall
mean an aggregate amount equal to one (1) week of regular salary
payments as determined by ARAMARK with respect to each of
ARAMARK's Exiting Holdover Managers (defined below); provided that
in no event shall the Holdover Incentive Payment Amount exceed the sum
of Two Thousand Nine Hundred Eight and 55/100 Dollars ($2,908.55).
(ii) As used herein, the "Exiting Holdover Managers" shall mean
those certain members of ARAMARK's salaried management team
assigned to the WRMC who (a) worked until the expiration or earlier
termination of ARAMARK's holdover at the WRMC as set forth in
Section 2 herein and (b) were not subsequently employed by the successor
concessionaire of the WRMC immediately following the end of
ARAMARK's holdover term at the WRMC; it being acknowledged and
agreed by the parties hereto that the Exiting Holdover Managers referred
to herein are employees solely of ARAMARK and not employees of the
City.
B. The City grants ARAMARK the right to withhold and deduct a sum equal
to the Holdover Incentive Payment Amount from any and all amounts otherwise
due to the City under the terms of the Agreement, including a percentage of Gross
Receipts, also referred to therein as a "Concession Rental" as the same may be or
may have been received by ARAMARK from operations at the WRMC and
without limitation to any other sums otherwise due to ARAMARK under the
terms of the Agreement (as amended herein).
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C. If the sums withheld and setoff by ARAMARK pursuant to Paragraph 4.13.
above are in an aggregate amount less than the Holdover Incentive Payment
Amount, then ARAMARK shall be entitled to invoice the City in an amount equal
to the outstanding, unpaid portion of the Holdover Incentive Payment Amount,
which invoice shall be due and payable by City to ARAMARK within ten (10)
business days of receipt thereof; it being understood and agreed that, subject to
the terms herein, City shall have the absolute obligation to pay the Holdover
Incentive Payment Amount to ARAMARK in its entirety, regardless of whether
or not Gross Receipts generated during the period which ARAMARK continues
operations at the WRMC are sufficient to permit ARAMARK to recover such
amounts therefrom.
(4) The terms of this Section 4 of the Amendment shall be deemed to survive the
expiration or termination of the Agreement (as amended hereby).
5. Special Marketing Fund. Notwithstanding any provisions of the Agreement to the
contrary, as of the date of this Amendment, Concessionaire shall no longer be required to
maintain or contribute any funds to the Fund pursuant to Article 14 of the Original Agreement.
Accordingly, all obligations and responsibilities of Concessionaire set forth in Article 14 of the
Agreement are hereby deleted in their entirety. Concessionaire shall pay to the City, to the
extent any funds remain as of the Termination Date, all amounts then remaining in the Fund.
6. Miscellaneous.
A. Governing Law: This Amendment shall be governed by and construed in
accordance with the laws of the state of Texas, without regard to its principles regarding conflicts
of laws.
B. Ratification: This Amendment supplements and amends the Agreement,
but only to the extent expressly set forth herein. All other terms, provisions, representations,
warranties and covenants of the Agreement are hereby confirmed, ratified and remain in full
force and effect.
C. No Default. The City and ARAMARK each acknowledge and agree that
to the best of such party's respective knowledge after due and reasonable inquiry, as of the date
of execution of this Amendment, neither party is in default or otherwise in breach of its
obligations under the Agreement, nor has any event or condition occurred which, with the
passage of time, notice or both, would constitute a default or breach of the Agreement;provided,
however, that the foregoing shall not be deemed to waive any rights of the City or ARAMARK
with respect to an audit and reconciliation of accounts at the end of ARAMARK's holdover term
at the WRMC on payments made during such holdover term prior to the date of execution of this
Amendment.
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D. Counterparts: This Amendment may be signed in several counterparts
which, when taken together, shall constitute but a single document. This Agreement shall not
constitute the agreement of the parties until such time as it has been executed by all of the
parties. Each of the parties agrees that its facsimile signature on this Agreement shall have the
same force and effect as an original, non-facsimile signature by such party.
E. Severability. The agreements, representations, and warranties set forth in
this Amendment shall survive the execution hereof. If any term or provision of this Amendment
shall be held to be invalid or unenforceable for any reason, such term or provision shall be
ineffective to the extent of such invalidity or unenforceability without invalidating the remaining
terms and provisions hereof, and this Amendment shall be construed as if such invalid or
unenforceable term or provision had not been contained herein
F. Construction; Headings. The parties acknowledge that each party and, if it
so chooses, its counsel have reviewed and revised this Amendment and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party must
not be employed in the interpretation of this Amendment or any amendments or exhibits hereto.
The headings contained herein are for the convenience in reference and are not intended to
define or limit the scope of any provision of this Amendment.
[SIGNATURES ON FOLLOWING PAGE]
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EXECUTED on this%� day of November, 2010.
CITY OF FORT WORTH: ARAMARK SPORTS AND
ENTERTAINMENT SERVICES OF
TEXAS, LLC, a Delaware limited liability
company and successor-by-conversion of
Aramark Sports and Entertainment Services
of Texas, 'ric.
Sus anis Name: L
Assistant City Manager Title: Q r �t✓�0�,� �� /
Financial Officer " v
RECOMMENDED:
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ir Slaughter, Director
Public Events Department
APPROVED AS TO FORM AND
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Cherl K. Byles
Assistant City Attorney
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Marty Hendrix TS Saoo d
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Date
M&C No. A
6 OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX