VI-C-3 FEBRUARY 1, 2021
MEMORANDUM
TO: MAYOR AND CITY COMMISSION
FROM: CITY ATTORNEY'S OFFICE
DATE: February 1, 2021
RE: Agreement with Levy Premium Foodservice Limited Partnership for Concession Services at the RP Funding Center
Attached hereto for your consideration is a proposed Agreement with Levy Premium Foodservice Limited Partnership (Levy) for concession services at the RP Funding Center. In February 2020, the City’s Purchasing Department issued Request for Proposal No. 0097 seeking a qualified and experienced food and beverage concessionaire for the RP Funding Center. Due to the significant impact of the COVID-19 pandemic on the event industry, as well as on the RP Funding Center’s business, City staff made the decision to postpone the RFP and negotiate an extension of its agreement with Ovations Food Services, LP, d/b/a Spectra Food Services & Hospitality (Spectra) to facilitate a transition period to a new vendor. The City’s agreement with Spectra expired in June 2020.
The City received two (2) proposals in response to the RFP which included Levy from Chicago, IL and Second Plate Catering from Plant City, FL. Upon evaluation by RP Funding Center staff, Levy was selected as the preferred vendor to be the exclusive food, beverage and catering concessionaire for the RP Funding Center. Levy is one of the fastest growing hospitality companies that is well respected for its network of internationally acclaimed restaurants and it is the leading market share operator of premium food service at convention, sports, cultural and entertainment facilities such as Amway Center and Tropicana Field in Central Florida.
Pursuant to the Agreement, Levy will be the sole and exclusive provider of all food, beverage and concession business on designated portions of RP Funding Center’s property, while certain special services and City sponsored events will be excluded from Levy’s services. The initial term of the Agreement will be for a period of five (5) years, commencing on February 1, 2021, with one (1) additional five (5) year renewal term upon mutual written agreement of the parties, subject to City Commission approval. The City reserves the right to terminate the Agreement in the event of default by Levy of any terms/conditions in the Agreement, including filing of bankruptcy and material breaches of contract that are not cured by Levy within thirty (30) days of written notice from the City. In addition, the City may terminate the Agreement if sufficient funds are not appropriated by the City Commission for a new fiscal year or if the City Commission makes a determination to close or sell the RP Funding Center. In any such event, the City will be required to pay Levy the unamortized portion of Levy’s capital investment, with the
exception of termination of the Agreement due to Levy’s default arising from an intent to defraud the City. However, title to all equipment and assets in the RP Funding Center that are purchased pursuant to Levy’s capital investment shall be owned by the City upon any such termination.
In accordance with the Agreement, Levy has agreed to a capital investment of up to $150,000 toward pre-opening costs, development, design, construction, equipping and finishing of the food service facilities at the RP Funding Center during the initial five (5) year term of the Agreement. Pursuant to the Agreement, Levy will be required to submit a written plan within thirty (30) days of execution of this Agreement for its proposed investment expenditures, which shall be subject to prior written approval of the RP Funding Center’s Executive Director.
In consideration for the City’s grant of exclusive food and beverage rights and privileges to Levy, Levy will pay the City a percentage of gross receipts (commissions) generated on its concessions’ business during each contract year of the initial term of the Agreement as set forth in the Commission Schedule below. All amounts of gross receipts shall be subject to an annual increase in accordance with the Consumer Price Index.
Source Gross Receipts Commission Rate
Alcohol $0 - $200,000 35% $200,000.01 - $400,000 42% $400,000+ 47%
Catering $0 - $600,000 15% $600,000.01 - $800,000 18.5% $800,000.01 - $1,000,000 21.5% $1,000,000 + 40% General Concessions $0 - $250,000 30% $250,000.01 - $500,000 35% $500,000 + 40%
Net Subcontractor All Net Receipts 50% Income & Vending:
Catering Supplemental 16.5% Charge
Due to the nature of the current COVID-19 pandemic, the Agreement contains an interim financial structure to ensure Levy’s profitability. During this interim period, the parties have agreed that Levy’s minimum annual net receipts shall equal $75,000. If the prorated minimum net receipts for a month have been satisfied, Levy shall then pay the City commissions as set forth in the Commission Schedule above. However, if the monthly net receipts are less than the monthly prorated minimum net receipts, then the
City’s total commissions will be reduced by the difference between actual net receipts and minimum net receipts. If the adjusted commissions equal a negative amount, then Levy shall be entitled to withhold future commissions until the minimum net receipts are met. If Levy’s gross receipts from May 1, 2021 through July 31, 2021 are less than 85% of the gross receipts for the same time frame of 2019 (i.e. May 1, 2019 – July 31, 2019) then the interim financial structure specified above will be automatically extended for additional three (3) month periods until such time gross receipts reach a normalized capacity period as set forth in 2019.
The City shall be responsible for the cost related to procuring replacement equipment, additional furniture, fixtures and equipment, except to the extent any damage to such replacement property was the result of Levy’s negligence or lack of maintenance. Any such replacement purchases shall remain the property of the City upon expiration or termination of the Agreement. The City will also be responsible for the payment of all utilities, with the exception of telephone usage and long-distance charges, which shall be the responsibility of Levy. In addition, Levy will be required to indemnify and hold harmless the City from any claims, losses or liability related to injury, disease, business interruption and destruction of property to the extent caused by Levy’s negligence or willful misconduct.
It is recommended that the City Commission approve the attached Concessions Service Agreement with Levy and authorize the appropriate City officials to execute the Agreement.
Attachment
MANAGEMENT AGREEMENT
BY AND BETWEEN
THE CITY OF LAKELAND,
AS CITY
AND
LEVY PREMIUM FOODSERVICE LIMITED PARTNERSHIP,
AS MANAGER
1. REPRESENTATIONS ...... 2 2. MANAGEMENT SERVICES ...... 3 3. PROJECTIONS OF GROSS RECEIPTS; CAPITAL BUDGET ...... 7 4. CONDUCT OF THE OPERATIONS ...... 7 5. SALE AND DELIVERY OF FOOD AND BEVERAGE ITEMS ...... 9 6. EMPLOYEES AND AGENTS...... 9 7. LICENSES AND PERMITS ...... 10 8. COLLECTIONS AND PAYMENTS OF TAXES AND OTHER ITEMS ...... 11 9. USE OF FACILITIES...... 12 10. INVESTMENT; MARKETING FUND ...... 13 11. COMMISSIONS AND INTERIM FINANCIAL STRUCTURE...... 14 12. TERM; TERMINATION; DEFAULT ...... 19 13. INDEMNITY ...... 24 14. INDEPENDENT CONTRACTOR ...... 26 15. OWNERSHIP IN FOODSERVICE FACILITIES; AUTHORITY OF MANAGER ...... 26 16. TAXES AND CONTRIBUTIONS ...... 26 17. QUALIFICATION ...... 26 18. SEVERABILITY ...... 26 19. CONSENTS; WAIVER ...... 26 20. REMEDIES...... 27 21. GOVERNING LAW AND JURISDICTION ...... 27 22. TIME OF ESSENCE ...... 27 23. FORCE MAJEURE; CHANGE OF CIRCUMSTANCES ...... 27 24. ASSIGNMENT AND SUBCONTRACTS ...... 28 25. MODIFICATION OF AGREEMENT ...... 29 26. HEADINGS ...... 29 27. INTERPRETATION...... 29 28. NOTICES ...... 29
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29. CONFIDENTIALITY AND INFORMATION TECHNOLOGY...... 30 30. SECURITY ...... 32 31. INSURANCE ...... 32 32. PUBLIC RECORDS…………………………………………………………………….35
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MANAGEMENT AGREEMENT
This Management Agreement (“Agreement”) is entered into as of this 1st day of February, 2021 by and between The City of Lakeland, a Florida municipality organized and existing in accordance with the laws of the State of Florida (“City”), and Levy Premium Foodservice Limited Partnership, an Illinois limited partnership (“Manager”).
RECITALS
1. The City of Lakeland owns, manages and operates the multi-use public event facility currently known as “RP Funding Center” located in Lakeland, Florida (collectively, the “Facility”), which hosts among other events, all of the Lakeland Magic and the Florida Tropics SC (collectively, the “Team”) home exhibition, regular season and post-season NBA G-League and Major Arena Soccer League, respectively, (collectively, the “League”) games.
2. City has the exclusive right to determine who shall provide the food and beverage operations at the Facility.
3. The Facility includes food service operations in the areas described as premium areas (the “Premium Areas”) and general concession areas (the “General Concession Areas”) listed on Exhibit “A”, which is attached hereto and incorporated herein. The Premium Areas and the General Concession Areas and any other areas within the Facility at which food or beverages are sold are herein collectively called the “Food and Beverage Areas.”
4. Manager and its affiliated and related entities are in the business of developing, owning and managing facilities comparable to the Facility, restaurants and other food service facilities.
5. City desires to engage Manager pursuant to City of Lakeland Request for Proposal No. 0097 issued February 19, 2020 and corresponding Addenda thereto (collectively, the “RFP”), and Manager desires to be engaged by City, pursuant to the terms of this Agreement, to exclusively manage all of the food and beverage services throughout the Facility, including Food and Beverage Areas throughout the duration of this Agreement.
6. Manager desires to render certain management and operational services for the Food and Beverage Areas, all as more fully described in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, hereby agree as follows:
1. Representations.
(a) City’s Representations to Manager. City hereby represents to Manager as follows:
(i) that it has been validly organized and duly exists as a municipality under the laws of the State of Florida, and that it is duly qualified to do business in the State of Florida;
(ii) that it has the full right, power and authority to grant the exclusive right to manage the food and beverage concessions throughout the entire Facility, including, but not limited to, the right to engage Manager to provide the management and operational services described in this Agreement;
(iii) that it is not prevented from entering into this Agreement or complying with its commitments hereunder by its bylaws, any statute, regulation or order of any governmental authority;
(iv) that it is not prevented from entering into this Agreement or complying with its commitments hereunder by any statute, regulation, order of or agreement with, governmental or quasi-governmental authority or by any license, debt instrument, mortgage, lease, contract or other agreement or instrument binding it or any of its property;
(v) that it is duly authorized to enter into this Agreement and has taken all necessary corporate action to obtain such authorization and that no consent of, or notice to, any other individual, private entity (including, but not limited to, the Team, their owners or the League), or governmental authority is required in connection with the execution, delivery, and performance of this Agreement;
(vi) that this Agreement constitutes a legal, valid and binding agreement, enforceable by Manager against City in accordance with its terms; and
(vii) that the party executing this Agreement on behalf of City has full right, power and authority to execute this Agreement and to bind City to the terms hereof.
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(b) Manager’s Representations to City. Manager hereby represents to City as follows:
(i) that it has been validly formed and duly exists as a limited partnership under the laws of the State of Illinois, and that it is duly qualified to do business in the State of Florida;
(ii) that it is duly authorized to enter into this Agreement and is not prevented from entering into this Agreement or complying with its commitments hereunder by its partnership agreement, by any statute, regulation or order of any governmental or quasi-governmental authority, or by any license, debt instrument, mortgage, lease, contract, or other agreement or instrument binding upon it or any of its property;
(iii) that it is duly authorized to enter into this Agreement and has taken all necessary action to obtain such authorization, and that no consent of, or notice to, any other individual, private entity or governmental authority is required in connection with the execution, delivery and performance of this Agreement;
(iv) that this Agreement constitutes a legal, valid, and binding agreement, enforceable by City against Manager in accordance with its terms; and
(v) that the party executing this Agreement on behalf of Manager has full right, power and authority to execute this Agreement and to bind Manager to the terms hereof.
2. Management Services.
(a) Foodservice Facilities. Except as otherwise stated herein, City hereby retains Manager to operate and manage, on an exclusive basis, the entire food and beverage service operations (collectively, the “Operations”) of, for and to the Food and Beverage Areas for all events held or conducted in the Facility during the Term (as that term is defined below), including but not limited to, all of the Team’s home games and all catering throughout the Facility. In order to provide the services required of Manager hereunder, Manager shall also have the exclusive right and license to use all food preparation facilities located at the Facility, including without limitation, the kitchens, pantry areas and other areas of the Facility described on Exhibit “B” attached hereto and made a part hereof (collectively, the “Facilities”). The Food and Beverage Areas, together with the Facilities, shall hereinafter be referred to as the “Foodservice Facilities.” In addition, Manager shall have the exclusive right and license to utilize all of the equipment in the Facilities, which currently existing equipment is listed on Exhibit “C” attached hereto and made a part hereof (as the same may be supplemented or changed from time to time, the “Equipment”). All 3
such Equipment shall remain the property of the City and must not be modified, altered, loaned or removed from the City without written permission from the City’s authorized representative. Title to all Equipment and property furnished by the City shall remain with the City.
The exclusive food and beverage rights granted hereunder with respect to the Operations specifically exclude backstage food and non-alcoholic beverage catering for the sole purpose of feeding athletes, performers, stage crew or other backstage personnel of any athletic competition or musical performance held at the Facility when requested by the event licensee (“Backstage Catering”). In addition, the exclusive food and beverage rights granted hereunder with respect to the Operations shall not be construed so as to prevent or prohibit the following: (i) the City from engaging in or contracting for, outside catering services for only City-sponsored events, such as the ones listed in the attached Exhibit “E”, or for events requiring a specialty ethnic menu, not to exceed three (3) such events in a Contract Year; or (ii) an exhibitor from distributing, without charge, a sample type of non-food or non-beverage good or merchandise which is manufactured and distributed in the normal course of the exhibitor’s business, or from selling food items for consumption off the Facility premises that comprises less than one percent (1%) of the total Food and Beverage sales during such an event, all for the purpose of providing samples. In all such cases, City and/or City’s designee shall release Manager from any and all liability arising out of these services. Furthermore, such parties shall not be allowed to utilize Manager’s inventory, licenses, Equipment or employees, and they shall be exclusively responsible for all associated cleaning and sanitizing of the areas and the equipment that they utilize. In no event, shall Manager be responsible for any such obligations.
(b) Manager’s Rights in the Foodservice Facilities. In order to enable Manager to fulfill its responsibilities under this Agreement, City hereby grants Manager the exclusive right and license to use all of the Foodservice Facilities without hindrance or disturbance from City or any individuals of entities claiming by, from, through or under any of the foregoing. In order to control the quality of the products and services sold at the Facility, to ensure the safety of the patrons and to protect Manager's exercise of the exclusive rights granted hereunder, City will prevent any other entities or individuals, (i) utilizing all or any portion of the Foodservice Facilities, and (ii) selling, anywhere in the Foodservice Facilities, any Food and Beverage Items (as that term is defined below). In addition, City hereby agrees to use its best efforts to prevent patrons from bringing any food, beverages, beverage containers or alcoholic beverages into the Facility except as specifically set forth in Paragraph 2(a) above.
(c) Services. The management services (collectively, the “Services”) to be provided by Manager shall include, without limitation, the following: 4
(i) Administration, management and direction of the day-to-day Operations in accordance with, and subject to, the further terms and conditions of this Agreement;
(ii) Procurement of all supplies, services and personnel which are necessary for the Operations, including personnel for the maintaining and operating of the Foodservice Facilities and preparation and service of such food and beverage items as shall be proposed by Manager and reasonably approved by City (“Food and Beverage Items”), which Food and Beverage Items shall consist of, but not necessarily be limited to, food, alcoholic and non-alcoholic beverages, candy and confections, but only to the extent that any of the foregoing may now or hereafter be legally sold at the Facility, in accordance with applicable laws, ordinances, rules and regulations;
(iii) Establishment and, from time to time, review and/or modification of such menus, portions and prices of the Food and Beverage Items as shall be proposed by Manager and reasonably approved, in writing, by City shall occur on an annual basis on October 1st during the term of this Agreement; provided, however (A) for the first Contract Year, such menus, portions and prices will be consistent with Manager’s proposal to the RFP, (B) City shall not unreasonably withhold, condition or delay its approval of such menus, portions and prices, (C) in the event that City fails to deliver to Manager within fifteen (15) days after submission of such menus, portions and prices, written approval or denial, such submitted menus, portions and prices shall be deemed approved, and (D) Manager may increase the price of Food and Beverage Items annually based on the increase in the Consumer Price Index. For purposes hereof, “Consumer Price Index” shall mean the Consumer Price Index for Lakeland, Florida -- Urban Wage Earners and Clerical Workers (all items) (1982-84=100) (Revised Series) prepared by the Bureau of Labor Statistics of the United States Department of Labor for the preceding twelve (12) month period, with 2021 as the base year. If such index ceases to be published, the parties shall use the most comparable index published by the U.S. Government.
(iv) Arranging for the maintenance and repair of all furniture, fixtures and equipment used solely in connection with the Operations and the maintenance of the Foodservice Facilities in a clean, neat and sanitary condition, within a 10- foot radius surrounding such Foodservice Facilities, it being agreed that for accounting purposes, any such expenditures shall be an Expense (as that term is defined below). If any furniture, fixtures or equipment needs to be repaired more than twice in any Contract Year, then such item shall be replaced at City’s expense, provided, however, that any replacement or modification of Equipment be 5
approved, in writing, by the City, which shall not be unreasonably withheld. Equipment replacements will be allowed if the cost of repairing an item would amount to more than 50% of its replacement cost;
(v) Arranging for the addition to, and replacement or modification of, any Equipment or other element of the Foodservice Facilities subject to the provisions set forth in this Agreement, the cost of which shall be borne by City;
(vi) Consultation with City at such times as shall be reasonably appropriate for the purpose of eliminating operational problems and improving the Operations;
(vii) Arranging for the removal of all trash from the Facilities to various centralized collection points in the Facility (the cost of which shall be an Expense), whereupon City shall be responsible for arranging for such trash to be properly and lawfully discarded; and
(viii) Any and all other services which City or Manager, in their joint reasonable discretion, deem appropriate in order for Manager to effectively manage and operate the Operations in a manner at least consistent with, if not better than, Manager’s performance of comparable services at facilities similar to the Food and Beverage Areas.
(d) City Cooperation. City shall use its good faith, reasonable and diligent efforts at all times to cooperate with and assist Manager in (A) providing quality food and beverage services to patrons of the Food and Beverage Areas, and (B) achieving maximum Gross Receipts (as that term is defined below) for the Operations. Prior to Manager taking over use of the Foodservice Facilities, City shall provide pest control services and have the Foodservice Facilities (including without limitation, all hoods and grease traps) professionally cleaned.
(e) Design Services. It is expressly understood and agreed that, unless City and Manager otherwise agree in a separate written agreement, Manager shall have no responsibilities with respect to any aspect of the Facility other than the (i) consultation services with respect to the design, development and construction of the Food and Beverage Areas and (ii) management of the operations of the completed Food and Beverage Areas, all as more fully described herein. It is further expressly understood and agreed that Manager is a consultant and not a licensed architect, engineer or professional services provider and accordingly, Manager shall not have control or charge of, and shall not be responsible for, construction means, methods, techniques, sequences or procedures, or for safety precautions and programming in connection with the design, development and
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construction of the Food and Beverage Areas, nor for the acts or omissions of any architect, engineer, professional services provider, general contractor, subcontractor, supplier, vendor or any other individual or entity performing any of the design, engineering or construction work, or for the failure of any of them to carry out the construction work in accordance with the contract documents. Furthermore, Manager shall not be obligated to enter into any agreements on behalf of City in connection with the aforementioned design, development and construction of the Facility.
3. Projections of Gross Receipts; Capital Budget. Prior to the commencement of each Contract Year during the Term (or such other period upon which City and Manager shall mutually agree), Manager shall supply City with a copy of Manager’s projections for anticipated Gross Receipts for the ensuing Contract Year together with a budget (the “Capital Budget”) for any recommended capital expenditures for replacements or upgrades (the cost of which shall be borne exclusively by City) to be made during such year to add to, replace or modify any of the furniture, fixtures or equipment to be included in the Foodservice Facilities, which Capital Budget shall be subject to City’s reasonable approval, which approval shall not be unreasonably withheld, conditioned or delayed. No less than once each month, Manager shall provide City with a written statement of the actual Gross Receipts for the prior month in comparison to the applicable sales projection, together with a brief explanation from Manager about any significant variances between the projected Gross Receipts and the actual Gross Receipts.
4. Conduct of the Operations.
(a) General. Manager agrees that it will conduct the Operations diligently and in good faith. The hours and days of operation during which the Foodservice Facilities shall be open shall be proposed by Manager and reasonably approved, in writing, by City.
(b) Compliance with Laws, Policies and Programs. In connection with the conduct of the Operations, Manager shall in all material respects comply with and observe all applicable federal, state and local laws, ordinances, regulations, orders or directions (including, without limitation, fire, building, health and sanitation codes and regulations) with respect to the sanitation and purity of the Food and Beverage Items, provided that nothing herein shall be interpreted to hold Manager responsible for such compliance as it relates to areas of the Facility other than the Foodservice Facilities in which Manager prepares or provides food and beverages on an exclusive basis. If either Team’s league or any change in the current law requires material changes to the alcohol policy in the Facility as compared to the alcohol policy in the Facility on the date hereof, or if the costs of Food and Beverage Items materially increase, then upon request of Manager, the parties hereby agree to re-negotiate in good faith all impacted business terms agreed to in this Agreement. In addition, the parties acknowledge that this Agreement is based upon Manager’s ability to use not-for-profit organizations in the conduct of its Operations, and in the event 7
Manager is unable to use such not-for-profit organizations, upon request of Manager, the parties hereby agree to re-negotiate in good faith all impacted business terms agreed to in this Agreement.
(c) Condition of the Foodservice Facilities. Manager agrees to use reasonable efforts to conduct the Operations in such a manner so as to reasonably preserve the condition of all areas of the Foodservice Facilities to which Manager shall have access in the course of the performance of its obligations hereunder. Manager agrees to keep the Foodservice Facilities utilized by Manager, neat, clean and in a sanitary condition, within a 10-foot radius surrounding such Foodservice Facilities, and to follow all reasonable and appropriate directions of City with respect thereto.
(d) Sponsorship. Manager and City recognize the value of securing sponsorship relationships for the Facility. City shall have the exclusive right to enter into any sponsorship agreements with corporations with respect to food and/or beverage products that are offered in the Facility (“Sponsorship Agreements”). At City’s request, Manager agrees to provide City with introductions to Manager’s food and beverage vendors that may be interested in having their products exclusively served or sold at the Facility in exchange for marketing and/or rights fees. Notwithstanding the foregoing, City will ensure that such Sponsorship Agreements do not impair the quality of the Food and Beverage Items served by Manager (as compared to comparable items served at other similar venues in which Manager or its affiliates provides food and beverage service) or increase the costs for such items (as compared to the Manager’s pricing or what Manager would normally pay through its own distributors for comparable items of similar size and quality). City and Manager agree that they will not compromise the quality of the Food and Beverage Items served in the Operations in order to secure a sponsorship. In the event City decides to enter into a Sponsorship Agreement (or enters into any other relationship) that increases the costs that Manager incurs, then City shall cooperate with Manager to ensure that Manager is fully reimbursed for such cost increases. In order for Manager to provide City with high quality Food and Beverage Items and in order for Manager to maintain the high standards of operations that it requires, Manager shall purchase inventory, equipment, and services from various sellers and vendors selected by Manager in its sole discretion (each, a “Vendor”). Purchases from Vendors shall be made under such terms Manager deems acceptable in its sole discretion (“Vendor Terms”). All Vendor Terms are the exclusive obligations and property of Manager. City does not have any liability under, or any right to benefit from, any Vendor Terms, and no Vendor Terms will reduce or otherwise affect the amount or performance of City’s obligations. Manager covenants that: (i) the Vendor Terms will not impair the quality of the Food and Beverage Items served by Manager (as compared to comparable items served at other similar venues in which Manager or its affiliates provides food and beverage service), and (ii) the Vendor Terms will not increase
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the costs for such items (as compared to the Manager’s pricing for comparable items of similar size served at other similar venues in which Manager or its affiliates provides food and beverage service). The foregoing shall be in accordance with any applicable federal, state, or local statute, law code, regulation, or ordinance.
5. Sale and Delivery of Food and Beverage Items. Manager covenants that it shall use commercially reasonable efforts to have available for sale in the Foodservice Facilities sufficient quantities and varieties of Food and Beverage Items and to provide sufficient trained personnel to conduct the Operations. All deliveries of Food and Beverage Items and any other items used in connection with the Operations shall be made only at the times and through the locations in the Facility reasonably designated by City.
6. Employees and Agents.
(a) Conduct and Supervision of Employees and Agents. Manager agrees that it shall hire, train, supervise and regulate all persons employed by it in the conduct of the Operations so that they are aware of, and practice, standards of cleanliness, courtesy and service required and customarily followed in the conduct of similar operations. Manager shall use its reasonable, good faith and diligent efforts to instruct its employees to (i) be neatly and cleanly uniformed, (ii) maintain personal cleanliness (iii) be polite and courteous and (iv) with respect to non-management employees, wear identification badges that are (A) reasonable in light of identification and security concerns and (B) unobtrusive and consistent with the uniforms worn by Manager's employees. Manager shall hire and at all times employ an experienced Director of Operations who shall be subject to City's reasonable approval from time to time and who shall be available to, and shall consult with and shall regularly report to City regarding the conduct of the Operations. In addition, as mutually agreed to in writing by Manager and City throughout the Term, Manager shall hire and employ an Executive Chef, a catering and sales director and coordinator.
(b) Cooperation with Other Employees. Manager agrees to direct its employees to reasonably cooperate in the use of the Facility’s areas that are common to the Foodservice Facilities and to other operations at the Facility. In this regard, Manager agrees to instruct its employees to cooperate in all other reasonable manners with all employees and agents of City and with third parties performing services at the Facility.
(c) Hiring and Employment Practices. Manager agrees that in the conduct of the Operations it will not intentionally discriminate or permit discrimination in its hiring or employment practices on the basis of any federal, state or local impermissible grounds. Upon receipt of notice from City of any reasonable and significant objection to any of Manager's employees, the employment of such person will be discontinued and a suitable person will be promptly substituted; provided, however, the City acknowledges that its 9
right to require replacement of an employee employed by Manager is expressly subject to considerations and restrictions imposed upon Manager by any federal, state or local statute, law, code, regulations, or ordinance by any collective bargaining agreement or other contract affecting such employee.
(d) Labor Relations. Notwithstanding anything in this Agreement to the contrary, Manager shall have the sole and exclusive right and authority to implement all matters relating to labor relations in the Foodservice Facilities and with respect to the Operations, including, but not limited to, the determination of (i) the degree and methods of opposition (if any) to any union organizing efforts, (ii) all terms and provisions of any collective bargaining agreement(s) and (iii) counsel and consultants to be utilized in such efforts. All of the costs, expenses and fees incurred in this regard shall be an Expense of the Operations.
7. Licenses and Permits.
(a) Manager shall obtain and use commercially reasonable efforts to maintain in force during the Term, all required food, alcohol and other licenses and permits and renewals thereof and shall cause to be paid all fees and taxes which may be due and owing from time to time to federal, state or municipal authorities incidental to the Operations. Manager shall be the named licensee under all such licenses and permits. City shall do all acts or things that are necessary in order for Manager to obtain all such licenses and permits. Throughout the Term, City shall, at its sole cost and expense, maintain all other licenses and permits which may be required for the operation of the Facility. At all times, City shall comply with the restrictions, rules and conditions of all such licenses and permits. Notwithstanding anything contained in this Agreement to the contrary, Manager shall be solely responsible for the determination of brands, quantities, pricing, shelving and display for sale of any and all alcoholic beverages that Manager may buy or sell at the Facility. Nothing contained in this Agreement is intended in any way to diminish Manager’s discretion and responsibility relating to the service of alcoholic beverages at the Facility, including without limitation, Manager’s sole discretion and sole responsibility for the decision to serve or refuse service of alcoholic beverages to any individual. Manager acknowledges and agrees that City and its affiliates require all retailers, distributors/wholesalers and distillers/brewers of alcoholic beverages (each an “Industry Member”) that City and its affiliates conduct business with, including, but not limited to, Manager, to strictly comply with all local, state and federal, laws and regulations, which may be applicable to the Manager and the purchase, marketing, promotion, advertising and sale of alcoholic beverages, including, but not limited to: Title 27 of the Federal Alcohol Administration Act (Title 27 of the United States Code) and Title 27 of the Code of Federal Regulations, and other related provisions governing “intoxicating liquors” (collectively, “Alcohol Laws”). Further, City and its affiliates shall not conduct business with any 10
Industry Member in violation of the Alcohol Laws. To the extent permitted by applicable law and subject to the monetary limitations set forth in Florida Statute §768.28, City shall indemnify and hold Manager harmless as to any action or conduct which may be imputed to Manager as a result of City or its affiliates’ negligent actions or willful misconduct which may give rise to any alleged violation of the same by Manager. City further agrees that it shall not require as a condition for the continuation of this Agreement or exercise an early termination rights or failure to renew, Manager to engage in conduct which Manager believes would be in violation of the Alcohol Laws.
(b) In the event Manager’s alcoholic beverage licenses are suspended or revoked, and if such suspension or revocation shall not be stayed or appealed in a manner that will permit Manager to continue to satisfy the requirements of Paragraph 7(a), Manager shall within thirty (30) days of such occurrence, at its sole cost and expense, retain a third party that is reasonably acceptable to the City and which possesses all necessary alcoholic beverage licenses, to operate pursuant to the terms and conditions of this Agreement until Manager is able to reinstate or obtain substitute alcoholic beverage licenses.
(c) In the event Manager is prohibited completely from offering alcoholic beverages for sale the Facility (other than as a result of the fault of Manager), the City and Manager shall negotiate in good faith to determine an equitable adjustment in the commission rates to compensate Manager for the effect of such prohibition to provide the Manager with the continued ability to receive a fair and reasonable rate of return for the duration of the prohibition.
8. Collections and Payments of Taxes and Other Items.
(a) Payment of Taxes; Filing of Sales Tax Returns. Manager agrees to timely pay from Gross Receipts all sales and employment taxes relating to the Operations pursuant to applicable federal, state, and local laws (the “Manager Taxes”). Manager agrees to file separate tax returns for Manager Taxes reflecting only the Operations, it being understood that such returns shall be filed separately from all other such tax returns required to be filed by Manager. Manager shall not be responsible for any taxes other than the Manager Taxes.
(b) Cash Handling and Cash Management Policies. In connection with the conduct of the Operations, Manager agrees to employ reasonable and appropriate internal control procedures to protect against the misappropriation of cash funds, which procedures shall be subject to the reasonable written approval of City. In addition, Manager agrees to deposit all cash Gross Receipts in a federally-insured depository institution. Manager shall not extend credit to any party.
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(c) Replacement of Equipment and Purchase of Ancillary Items. Manager shall be responsible for consulting with and obtaining written approval of the City with respect to the purchase of all necessary replacements to furniture, fixtures and equipment and for the purchase of additional furniture, fixtures and equipment, the entire cost of which shall be borne by City. In addition, Manager shall consult with and obtain written approval of the City regarding the purchase of additional Equipment, the cost of which shall be borne by City. All such replacement purchases shall remain the property of the City following the expiration or termination of the Agreement. However, damage incurred to the property of the City, including any of the above-referenced replacement items, to the extent that it is a direct result of the negligence or lack of maintenance on the part of Manager shall be the expense of the Manager.
9. Use of Facilities.
(a) Access to Facilities. Access to the Foodservice Facilities shall be limited to the authorized representatives of, and other persons designated by, City and Manager for the purpose of the reasonable exercise of City’s and Manager’s rights and obligations hereunder.
(b) Signs, Displays and Advertising. Manager agrees that all signs and displays, and the content and graphics thereof, to be utilized by Manager at the Facility shall be subject to the prior reasonable written approval of City. Manager may use its name and logo and that of any affiliate of Manager, as well as the name and logo of the Team, City and the name by which the Facility is known in the signage, displays, menus and similar items used in connection with the Operations. In addition, Manager may, in a reasonable and tasteful fashion, including by use of relevant names and logos, promote its affiliation with City, Team and Facility and the services provided by Manager under this Agreement in Manager’s and its affiliates’ corporate stationery, brochures and similar promotional material. If requested by the City, Manager may preliminarily clear certain hospitality brand names for use in the Florida area in connection with Foodservice Facilities. Because a preliminary search only uncovers obvious conflicts, Manager does not guarantee that City has the exclusive right to use the names. As the owner of the brand, City is expected to conduct its own trademark search before using any name to make the final risk assessment and seek trademark protection (if desired).
(c) Parking. Manager will be provided parking without charge, located reasonably proximate to the Facility for its employees and vendors. The City will designate the location where such parking will be placed from time to time. The City retains the right to restrict all parking.
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(d) Office Space and Equipment. City shall provide to Manager sufficient office space and equipment for Manager’s employees (e.g., chefs, sous chefs, Director of Operations) to manage the Operations, which shall include, but not be limited to, furniture, phone systems, HVAC, electricity and lighting. Costs for such items shall be the sole expense of City.
(e) Utilities. City shall be responsible to pay and provide for all utilities and related costs. The telephone equipment is owned by the City and will be supplied to Manager. The actual cost of phone line usage and long distance phone charges are the responsibility of the Manager.
(f) City Taxes. City shall be responsible to pay any real, excise, possessory, lease, personal property, and other taxes related to the Foodservice Facilities and the Operations (collectively, “City Taxes”).
(g) Assets. Title to all equipment and assets in the Facility, including such that are purchased pursuant to the Manager’s Investment and Renewal Investment (if applicable), shall be owned and vested in City, except for computers or other proprietary items of Manager.
10. Investment; Marketing Fund.
(a) Manager’s Investment. From the Effective Date and continuing throughout the Term, as defined in Paragraph 12(a) of this Agreement, Manager agrees to invest up to One Hundred Fifty Thousand Dollars and 00/100 ($150,000) (“Manager’s Investment”) toward the pre-opening costs, development, design, construction, fixturing, equipping and finishing of the foodservice facilities at the Facility. All expenditures related to Manager’s Investment shall be made within the five (5) year Term of this Agreement. Manager shall submit a final plan within thirty (30) days of executing this Agreement for its proposed Investment expenditures, which shall be subject to the prior written approval of the Facility’s Executive Director; provided however, (A) City shall not unreasonably withhold, condition or delay its approval, and (B) any denial of such proposed expenditures shall not prohibit Manager from satisfying its obligations pursuant to the terms and conditions of this Agreement. Manager’s Investment will amortize on a straight-line basis over five (5) years, beginning on the Effective Date. Should the Agreement expire or terminate, City agrees to pay Manager the unamortized amount of Manager’s Investment as a pre- condition to the effectiveness of such expiration or early termination in accordance with Paragraph 12(f). City hereby formally acknowledges and agrees that, except for Manager’s Investment, City shall be responsible for delivering to Manager a “turnkey” Facility and paying all costs, fees and expenses incurred in connection with the development, design, construction, fixturing, equipping and finishing of the Facility, including, but not limited 13
to, the foodservice facilities. Within thirty (30) days of the execution of this Agreement, City and Manager shall conduct a walk-through inspection of the Facilities to determine any repairs, replacements or upgrades that may be necessary to satisfy the “turnkey” obligation described herein. All such expenses will be either paid through Manager’s Investment or borne by the City.
(b) Annual Marketing Fund. Manager shall contribute One Percent (1%) of monthly Gross Receipts toward mutually agreed upon marketing expenditures of the Facility (the “Marketing Fund”). If there are insufficient funds in the Marketing Fund to cover such expenditures, then the City shall be responsible for the payment of those expenditures. Any balance in the Marketing Fund in any one Contract Year shall roll over into subsequent Contract Years. At the time of termination of the Agreement, City will retain any balance of the Marketing Fund. Manager shall provide City with a monthly accounting of the Marketing Fund.
11. Commissions and Interim Financial Structure.
(a) Definition of Gross Receipts. As used in this Agreement, the term “Gross Receipts” shall mean the total gross revenues actually collected from patrons of the Facility in respect of food and beverage sales and services by Manager at the Facility, including the net amount received by Manager from subcontractors; provided, however, Gross Receipts shall not include (i) service charges paid to employees, discounted sales or gratuities, (ii) any service or discount charges on credit or debit card sales, (iii) amounts not received by Manager due to cash shortages or bad debt, including accounts receivable and credit card bad debt, or (iv) any city, county, state or federal use, excise or similar tax imposed on the sale or use of the Food and Beverage Items collected and paid to applicable taxing authorities by Manager.
(b) Commissions. Subject to Paragraph 11(c) below, as consideration for the City’s grant of the exclusive food and beverage rights and privileges to Manager pursuant to this Agreement, and as the sole compensation due and owing from Manager to the City, Manager agrees to pay the City the following percentages of Gross Receipts generated in the following parts of the Food and Beverage Areas during each Contract Year of the Term; provided, however, it is expressly understood that the increasing percentages referred to herein shall be incremental and shall not be retroactive to the first dollar of the Gross Receipts derived (collectively, the “Commissions”):
Source of Gross Amount of Gross Receipts* Percentage of Gross Receipts Receipts $0.00 - $200,000.00 35.0% Alcohol $200,000.01 - $400,000.00 42.0% (on the increment) 14
All amounts in excess of $400,000.00 47.0% (on the increment) $0.00 - $600,000.00 15.0% Premium $600,000.01 - $800,000.00 18.5% (on the increment) Areas/Catering $800,000.01 - $1,000,000.00 21.5% (on the increment) All amounts in excess of $1,000,000 25.0% (on the increment) General $0.00 - $250,000.00 30.0% Concession $250,000.01 - $500,000.00 35.0% (on the increment) Areas All amounts in excess of 500,000.00 40.0% (on the increment) Net Subcontractor All Amounts 50.0% Income & Vending Catering All Supplemental Charges 16.5% Supplemental (Not Paid to Employees) Charge
* All amounts of Gross Receipts in the middle column above shall increase annually by the increase in the Consumer Price Index.
(c) Interim Financial Structure.
(A) Notwithstanding Paragraph 11(b) above, an interim financial structure will be in place until April 30, 2021. During this interim period, the parties agree that the minimum annual Net Receipts shall equal Seventy-Five Thousand Dollars ($75,000) (“Minimum Net Receipts”). If the prorated Minimum Net Receipts for a month has been satisfied, then Manager shall pay to the City the Commissions listed in Paragraph 11(b) above. However, if the monthly Net Receipts are less than the monthly Minimum Net Receipts (prorated), then the total amount of Commissions will be reduced by the difference between the actual Net Receipts and the Minimum Net Receipts (“Adjusted Commissions”). If the Adjusted Commissions equal a negative amount, then Manager shall be entitled to withhold future Commissions until the Minimum Net Receipts are met.
By way of example, if: • Gross Receipts = $100,000 • Commissions to be paid to City = $30,000 • Monthly Expenses = $80,000 (inclusive of amortization of Manager’s Investment and Marketing Fund) • Monthly Net Receipts = (-$10,000) (i.e., $100,000 - $80,000 - $30,000 = -$10,000) • Monthly Minimum Net Receipts = $6,250 (i.e., $75,000/12 = $6,250)
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The monthly Minimum Net Receipts have not been satisfied by $16,250 (i.e., $6,250+$10,000 = $16,250). Therefore, the Commissions paid to the City would need to be reduced by that same amount ($16,250). As such, the Adjusted Commissions paid to the City equal $13,750 (i.e., $30,000 - $16,250 =$13,750).
(B) If the Gross Receipts from May 1, 2021 through July 31, 2021 are less than Eighty-Five Percent (85%) of the Gross Receipts for that same time frame in 2019 (i.e., May 1, 2019- July 31, 2019) (the “Normalized Capacity Period”), this interim financial structure will be automatically extended for additional three- month periods until such time that the Gross Receipts reach Normalized Capacity Period.
(C) Definition of Net Receipts. As used in this Agreement, the term “Net Receipts” shall mean the Gross Receipts, minus (i) the items specifically identified elsewhere in this Agreement as being “Expenses” or reimbursable out of, or chargeable against, Gross Receipts, and (ii) the items listed below (the items listed below, together with the items referred to in clause (i) of this subparagraph (b) being hereinafter collectively referred to as the “Expenses”):
(1) The actual cost to prepare and serve all Food and Beverage Items sold in the Foodservice Facilities, together with the actual cost of all serving dishes, serving pieces, containers, plates, silverware, glassware, cooking utensils, napkins, table linens and other similar items relating to the sale of Food and Beverage Items (hereinafter collectively referred to as the “Ancillary Items”);
(2) Office and administration expenses, including, but not limited to, the cost of office supplies, postage, computer software, network connections, information systems infrastructure, telephone service, accounting and reporting, together with all payroll costs, including reasonable fringe benefits, payroll taxes, employee benefits, payroll administration expenses, worker’s compensation, severance payments, Operations-related legal services and costs, recruiting and relocation costs and related costs and expenses pertaining to all of Manager's and its affiliate’s employees engaged in the performance of the Operations;
(3) Costs of repairs and maintenance (but not including costs incurred for additions to, or replacements or modifications of) any element of the Foodservice Facilities;
(4) Costs incurred for pest control, trash removal, janitorial service, cleaning expenses, including, but not limited to, the cost of supplies;
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(5) Insurance costs incurred by Manager in connection with providing the insurance required pursuant to this Agreement;
(6) Any amounts paid by Manager in respect of claims relating to the Operations (“Deductible Payments”), which claims would have been covered under the insurance policies approved by City but for the deductibles under such policies, whether such Deductible Payments occur during or after the Term;
(7) Cost of uniforms for all of Manager's employees and the costs of laundering all such uniforms;
(8) The cost of governmental charges, such as the cost of obtaining and maintaining all necessary or required licenses;
(9) All pre-opening expenses not paid through Manager’s Investment, and generated in connection with the opening of the Food and Beverage Areas, including, but not limited to, all of the costs, expenses and fees incurred (i) to procure all required licenses and permits to conduct the Operations, (ii) if applicable, to establish and document the relationship between Manager and any union(s) representing the employees that will work in the Foodservice Facilities, (iii) to recruit, hire, relocate and train employees prior to opening, (iv) to market and promote the Food and Beverage Areas prior to the actual opening of the Facility, it being understood and agreed that marketing and promotional expenses include, but shall not necessarily be limited to, pre-opening promotional or training events or parties, and (v) all travel and other reasonable out of pocket expenses to prepare the Operations for opening (collectively, the “Pre-Opening Expenses”);
(10) Reasonable reserves to cover anticipated funding or cash requirements established by Manager and approved by City, in City’s reasonable discretion;
(11) Commissions or Adjusted Commissions (as applicable) paid to the City;
(12) Amortization expense of Manager’s Investment pursuant to Paragraph 10(a) above;
(13) Manager’s contributions toward the Marketing Fund;
(14) Any uncollectible amounts from the Operations, including, without limitation, uncollectibles from credit/debit card activity, provided that Manager agrees to exercise good faith reasonable and diligent collection efforts; and
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(15) Any other costs actually and reasonably incurred by Manager in connection with the Operations.
(D) Accountings and Records. Manager shall at its offices at the Facility maintain accurate digital files of the books and records in connection with Manager’s services in accordance with generally accepted accounting procedures. Such records shall be retained by Manager for a period of at least three (3) years following the conclusion of the Term. Within thirty-six (36) hours of each event day, Manager shall provide the City with an electronic spreadsheet of Gross Receipts by source and calculated commissions for each event identified by the City’s internal Event I.D. System, as well as the event name and transaction date of the sale(s). Manager shall be required to utilize point of sale software for service transactions to prevent Manager’s employees from voiding transactions without supervisory approval in order to properly record all Gross Receipts from Operations.
Within thirty (30) days following the last day of each month during the Term and any Renewal Term, Manager shall provide City with a statement detailing all Gross Receipts from the Operations generated during such month, (separated by area), together with a statement of the applicable Commissions or Adjusted Commissions due for such Gross Receipts (collectively, the “Statement”). When Manager delivers the Statement, Manager shall also pay to City the appropriate Commissions or Adjusted Commissions for such month. Within sixty (60) days following the conclusion of each calendar year during the Term, Manager shall provide City with a complete accounting (collectively, the “Final Statement”), setting forth the calculation of the annual Gross Receipts, (separated by area) and the total Commissions or Adjusted Commissions due for the applicable period. At any time during the Term, and for a period of one (1) calendar year thereafter, City and its designated representatives shall have the opportunity, at their sole cost and expense (subject to the provisions set forth below), to inspect the books and records of Manager solely and directly related to the financials of this Agreement to verify the figures contained in each Statement or Final Statement, as the case may be. In the event that City disputes such figures, City shall deliver a written notice of such dispute to Manager (“Dispute Notice”). If City and Manager are unable to resolve such dispute within ninety (90) days following the delivery of the Dispute Notice, City and Manager shall immediately submit the dispute for resolution to a nationally recognized public accounting firm to be mutually agreed to by City and Manager (the “Accounting Firm”). The determination of Gross Receipts and Commissions/Adjusted Commissions in accordance with the terms hereof made by
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the Accounting Firm after a full and complete inspection of Manager's books and records shall be final and binding upon the parties.
If the Accounting Firm determines that the computation of Gross Receipts or Commissions/Adjusted Commissions contained in any Statement or the Final Statement as the case may be, is inaccurate and not previously corrected, then either City shall promptly pay to Manager, or Manager shall promptly pay to City, such amount as is necessary to reflect the adjustment of Gross Receipts or Commissions/Adjusted Commissions based upon the Accounting Firm's determinations (the “Adjusted Amount”), provided, not previously collected. If the Accounting Firm determines that the computation of Gross Receipts or Commissions/Adjusted Commissions contained in any Statement or the Final Statement, as the case may be, is understated by the greater of (i) $25,000 or (ii) three percent (3%) or more, then, in addition to the Adjusted Amount, Manager shall pay the entire cost of the Accounting Firm's engagement. In all other events, the cost of the Accounting Firm’s engagement and the costs of City’s inspection of the books and records of Manager shall be borne by City.
(E) City’s Payment to Manager. City shall pay Manager for any and all amounts owed by City to Manager within forty-five (45) days of receipt of the invoice by City in accordance with Florida Statute §218.74 et. seq., the Local Government Prompt Payment Act. If such payment is not received within forty- five (45) days of the invoice receipt, all such outstanding amounts shall accrue interest at a rate of one percent (1%) per month from the date that the invoice is due and payable (i.e., forty-five (45) days following receipt of invoice) in accordance with Florida Statute §218.74 et. seq., the Local Government Prompt Payment Act to the date of payment until all outstanding amounts are paid in full, and Manager shall have the right to withhold any past due amounts (plus all applicable interest) from any of City’s Commissions until made whole.
12. Term; Termination; Default.
(a) City hereby grants Manager the right to be the exclusive provider of all management services for the Operations for five (5) years, commencing on February 1, 2021 (the “Effective Date”) and expiring on January 31, 2026 (“Term”). Upon mutual written agreement, City and Manager shall have the right to extend the Term for an additional five (5) years (“Renewal Term”) based upon the same terms and conditions in this Agreement, provided that this extension is exercised by the parties at least sixty (60) days prior to the expiration of the Term, and Manager agrees to invest up to One Hundred Fifty Thousand Dollars and 00/100 ($150,000) (“Renewal Investment”) toward development, design, construction, fixturing, equipment and other items that shall be 19
approved, in writing, which shall not be unreasonably withheld by the Facility’s Executive Director within thirty (30) days of executing the five (5) year Renewal Term. For purposes of this Agreement, the term “Contract Year” shall mean the twelve (12) month period commencing on February 1st and expiring on the next ensuing January 31st. Upon mutual written agreement of Manager and City, the parties may have the option to extend the Term or Renewal Term of the Agreement for one (1) additional year upon the occurrence of a force majeure event set forth in Paragraph 23 of this Agreement.
(b) City shall have the right to terminate this Agreement and Manager's services for all of the Operations upon the occurrence and continuation of any of the following events of default by Manager:
(i) Manager shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state, or shall seek, consent to or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of Manager or of all or any substantial part of its properties (the term “acquiesce,” as used herein, being deemed to include, but not be limited to, the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within the time specified by law); or a court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against Manager seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state, and Manager shall consent to or acquiesce in the entry of such order, judgment or decree, or the same shall remain unvacated and unstayed for an aggregate of sixty (60) days from the day of entry thereof, or any trustee, receiver, conservator or liquidator of Manager or of all or any substantial part of its properties shall be appointed without the consent of or acquiescence of Manager and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days; or
(ii) Manager defaults under any agreement related to debt for borrowed money, which City reasonably believes materially adversely effects Manager’s ability to perform hereunder, which is not cured within any applicable cure period and causes all amounts owed under such agreement to be then due and payable; or
(iii) Manager materially breaches its material obligations under this Agreement and fails to cure or remedy such breach within thirty (30) days after 20
Manager’s receipt of a Termination Notice (as defined below) or, if such breach cannot reasonably be cured within thirty (30) days, fails to commence such cure or remedy within said thirty (30) day period and fails to diligently prosecute such cure or remedy to completion as soon as is reasonably possible thereafter.
(iv) Upon termination of this Agreement pursuant to subparagraphs (i), (ii), or (iii) above, Manager shall only be obligated to pay the Commissions/Adjusted Commissions for Gross Receipts generated and actually collected prior to termination in accordance with Paragraph 11 above, less any amounts owed by City to Manager.
(c) In the event that all of Manager's services are terminated as provided in this Paragraph 12, Manager shall, at the request of City, continue to serve as manager of the Operations until a successor is selected and commences work in the Foodservice Facilities or until such earlier date as City shall specify; provided that Manager shall not be obligated to so continue as manager for a period in excess of thirty (30) days. The terms and conditions of this Agreement shall continue to be fully applicable during such period as if no termination had occurred; provided that such request shall be deemed to constitute City's agreement to continue the current business deal contained herein. In addition, City shall, with respect to Manager's compliance with the federal Worker Adjustment and Retraining Notification Act (“WARN Act”) and applicable state or local WARN Acts (collectively, the “WARN Acts”), permit Manager to stay at the Foodservice Facilities to comply with the notice requirements required by any applicable WARN Acts.
(d) The City shall have the right to terminate this Agreement in the event its City Commission, duly authorized to act on behalf of the City, does not budget sufficient funds to continue operating the Facility for a new fiscal period, makes a determination to close the Facility or sell the Facility. In the event of such occurrence, Manager shall be provided ninety (90) days prior written notice by City and shall be paid the unamortized amount of Manager’s Investment and Renewal Investment (if applicable), plus any amount incurred for services pursuant to the Agreement prior to receipt of the notice of termination, all in accordance with Paragraph 12(f) below. The Agreement shall then terminate without further penalty or expense to the City.
(e) Manager shall have the right to terminate this Agreement upon the occurrence of any of the following events of default by City and upon written notice to the City specifying the nature of such default:
(i) City shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or 21
similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state, or shall seek, consent to or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of City or of all or any substantial part of its properties (the term “acquiesce,” as used herein, being deemed to include, but not be limited to, the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within the time specified by law); or a court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against City seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state, and City shall consent to or acquiesce in the entry of such order, judgment or decree, or the same shall remain unvacated and unstayed for an aggregate of sixty (60) days from the day of entry thereof, or any trustee, receiver, conservator or liquidator of City or of all or any substantial part of its properties shall be appointed without the consent or acquiescence of City and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days; or
(ii) City defaults under any agreement related to debt for borrowed money in excess of Manager’s Investment, which is not cured within any applicable cure period, and which causes all amounts owed under such agreement to be then due and payable; or
(iii) City materially breaches its material obligations under this Agreement (other than its obligation to make any payments due to Manager hereunder) and such breach is not cured within thirty (30) days after City’s receipt of a Termination Notice (as defined below) or, if such breach cannot reasonably be cured within thirty (30) days, fails to commence such cure or remedy within said thirty (30) day period and fails to diligently prosecute such cure or remedy to completion as soon as is reasonably possible thereafter; or
(iv) City fails to make any payment due to Manager hereunder within thirty (30) days of written notice from Manager that payment is past due;
(f) In the event that, this Agreement expires or terminates for any reason, except as otherwise stated in this Paragraph 12(f), City hereby agrees, as a condition precedent to such expiration or early termination, to pay Manager, in a single lump sum payment, (i) the unamortized value of Manager’s Investment (amortizing on an annual straight-line basis over five (5) years) pursuant to Paragraph 10(a) above; (ii) if applicable, the unamortized value of the Renewal Investment (amortizing on an annual straight-line basis over five (5) years); (iii) any other amounts owed to Manager, and (iv) an amount 22
equal to the cost of Manager for all food, beverage, and supply inventory on hand. Notwithstanding the immediately preceding sentence, City shall not be required to pay Manager the unamortized portion of Manager’s Investment and Renewal Investment (if applicable), if and only if, City terminates the Agreement due to an uncured default of Paragraph 12(b), but only if the uncured default is solely due to a criminal conviction for an intentional corporate scheme to defraud City of a material amount, done at the direction of the officers of Manager and Manager’s parent company. The parties hereby agree that there shall be no early termination of this Agreement except as permitted in Paragraphs 12(b), 12(d) and 12(e). Notwithstanding anything in this Agreement to the contrary, neither City nor Manager shall be entitled to seek, claim or collect damages in excess of the actual and direct damages actually incurred or sustained as a result of a breach or violation of this Agreement, provided that nothing in this sentence shall limit Manager’s right to recover the Manager’s Investment or the Renewal Investment (if applicable), unless otherwise stated in this Paragraph 12(f).
(g) City hereby expressly agrees that, during the Term (including any Renewal Term) and for a period of twenty-four (24) months following either the expiration or earlier termination of this Agreement, none of City, any other food or beverage service operator or concessionaire providing food and beverages in, to or for any areas of the Facility, nor any of their respective affiliates, related entities or owners shall directly or indirectly solicit, hire, offer to hire or employ any former or current salaried or management-level employee of Manager or its affiliates (including, but not limited to, Manager’s current or former Director of Operations, chefs, sous chefs and the managers of the various areas of the Foodservice Facilities) to work in or in connection with the Facility or the Foodservice Facilities as a consultant, employee, independent contractor or otherwise in any other capacity, without Manager's prior written approval, which approval can be granted or denied in Manager’s sole and absolute discretion. Manager hereby expressly agrees that, during the Term (including any Renewal Term) and for a period of twenty four (24) months following either the expiration or earlier termination of this Agreement, none of Manager nor any of its affiliates shall directly or indirectly solicit, hire, offer to hire or employ any former or current salaried or management-level employee of City learned about solely due to the Operations to work for or in connection with Manager as a consultant, employee, independent contractor or otherwise in any other capacity, without City’s prior written approval, which approval can be granted or denied in City’s sole and absolute discretion.
(h) If either party (the “Non-Breaching Party”) in good faith believes that the other party has materially breached this Agreement, then it shall provide written notice of the breach to the other party specifying in detail the nature of the breach (the “Preliminary Notice”). Promptly after receipt of the Preliminary Notice, the Executive Director of the Facility for the City and the Director of Operations of Manager, or their delegated
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representatives shall meet in person to discuss the claims and possible resolutions. If the dispute is not resolved after this meeting, then the Non-Breaching Party may submit a written notice to the other party indicating it intends to terminate the Agreement as a result of the other party’s breach unless the specified breach is cured (the “Termination Notice”); provided that a party may not deliver a Termination Notice at any time it is in breach or default of this Agreement.
13. Indemnity.
(a) To the fullest extent permitted by law, Manager hereby indemnifies, defends, protects and forever holds City, its respective shareholders, officers, directors, partners, members, employees, agents and representatives (collectively, the “City's Indemnitees”) harmless from and against any and all claims, demands, losses, liabilities, actions, lawsuits and other proceedings, judgments, awards, costs and expenses (including reasonable attorneys' fees, paraprofessional fees and court-related costs), such indemnity covering, but not being limited to, business interruption claims, bodily injury, sickness, disease, death or injury to or destruction of tangible property, but in all events, except as expressly provided below, only to the extent arising out of the negligence or any willful misconduct, omission or breach of its obligations under this Agreement by Manager or by any of its officers, directors, agents or employees, in connection with this Agreement or Manager's performance of its duties or authority hereunder. The indemnification obligation contained in this Paragraph 13(a) shall expressly include, but will not be limited to, damage which occurs as a result of the consumption of Food and Beverage Items sold by Manager at the Facility. Notwithstanding the foregoing, this Paragraph 13(a) does not require Manager to indemnify, defend, protect or hold City or City’s Indemnitees harmless for claims, demands, losses, liabilities, actions, lawsuits or other proceedings, judgments, awards, costs and expenses resulting from (i) the willful or negligent acts or omissions of City or any of City’s Indemnitees or any contractors hired or retained by any of them, (ii) the willful or negligent acts or omissions of the Facility’s construction contractor, any construction subcontractors, the Facility architect or any other persons involved in the design, construction, renovation or modification of the Facility (including, but not limited to, the Foodservice Facilities), or (iii) any damages, claims or liabilities resulting from any part of the Facility other than the Foodservice Facilities. If any action or proceeding (including any governmental investigation) shall be brought or asserted against City or City’s Indemnitees, in respect of which indemnity may be sought from Manager, City and City’s Indemnitees, as the case may be, shall promptly notify Manager in writing and Manager shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to City and City's Indemnitees, as the case may be, and the payment of all expenses. If Manager assumes the defense of such action or proceeding, any such indemnified party shall have the right to employ separate counsel in any such
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action and to participate in the defense thereof, but the fees and expenses of such separate counsel shall be at the expense of such indemnified party unless (A) Manager, in its sole and absolute discretion, has agreed in advance and in writing to pay such fees and expenses, or (B) Manager has failed to assume the defense of such action or proceeding or employ counsel reasonably satisfactory to the indemnified party in any such action or proceeding. Manager shall not be liable for any settlement of any such action or proceeding effected without its written consent, but if there be a final judgment for the plaintiff in any such action or proceeding, or if any such action or proceeding shall be settled and Manager shall have consented to such settlement, Manager agrees to indemnify, protect, defend and hold harmless both City and City's Indemnitees from and against any loss or liability by reason of such judgment or settlement.
(b) To the fullest extent permitted by law and subject to the monetary limitations set forth in Florida Statute §768.28, City hereby indemnifies, defends, protects and forever holds Manager, its partners, each of its and their respective shareholders, officers, directors, partners, members, affiliates, employees, agents and representatives (collectively, the “Manager's Indemnitees”) harmless, from and against any and all claims, demands, losses, liabilities, actions, lawsuits and other proceedings, judgments, awards, costs and expenses (including reasonable attorneys' fees, paraprofessional fees and court-related costs), such indemnity covering, but not limited to, bodily injury, sickness, disease, death or injury to or destruction of tangible property, but in all events, except as expressly provided below, only to the extent arising directly or indirectly, in whole or in part, out of the negligence or any willful misconduct or omission or breach of its obligations hereunder by City or by any of its officers, directors, agents or employees, in connection with this Agreement, or losses due to City’s systems. Notwithstanding the foregoing, this Paragraph 13(b) does not require City to indemnify, defend, protect or hold Manager or Manager's Indemnitees harmless for claims, demands, losses, liabilities, actions, lawsuits or other proceedings, judgments, awards, costs and expenses resulting from the willful or negligent acts or omissions of Manager or any of Manager's Indemnitees. If any action or proceeding (including any governmental investigation) shall be brought or asserted against Manager or Manager's Indemnitees, in respect of which indemnity may be sought from City, Manager and Manager's Indemnitees, as the case may be, shall promptly notify City in writing, and City shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to Manager and Manager's Indemnitees, as the case may be, and the payment of all expenses. If City assumes the defense of such action or proceeding, any such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such separate counsel shall be at the expense of such indemnified party unless (i) City, in its sole and absolute discretion, has agreed in writing to pay such fees and expenses, or (ii) City has failed to assume the defense of such action or proceeding or 25
employ counsel reasonably satisfactory to the indemnified party in any such action or proceeding. City shall not be liable for any settlement of any such action or proceeding effected without its written consent, but if there be a final judgment for the plaintiff in any such action or proceeding, or if any such action or proceeding shall be settled and City shall have consented to such settlement, City agrees to the extent permitted by law to indemnify, protect, defend and hold harmless both Manager and Manager's Indemnitees from and against any loss or liability by reason of such judgment or settlement.
(c) Absence of Liens. Manager shall conduct its Operations in such a way that it shall not permit any liens to be placed against the Facility or other property of the City. Any lien so filed shall be removed by Manager within five (5) business days of its knowledge of such a filing.
(d) The provisions of this Paragraph 13 shall survive the termination of this Agreement for any reason.
14. Independent Contractor. In performing its services hereunder, Manager is an independent contractor of City and not an employee, agent, partner or joint venturer of City.
15. Ownership in Foodservice Facilities; Authority of Manager. Manager shall have no ownership rights in the Foodservice Facilities, nor any claim of ownership with respect thereto, arising out of this Agreement or the performance of its services hereunder. This Agreement shall in no way be construed to authorize Manager to engage in any brokerage services or activities of any similar nature relating to the Foodservice Facilities.
16. Taxes and Contributions. Manager assumes full and exclusive responsibility and liability for withholding and paying, as may be required by law, all federal, state and local taxes and contributions with respect to: (a) Manager's earnings hereunder, or (b) salaries or other contributions or benefits paid or made available to any persons retained, employed or used by or for Manager in connection with its services. City shall be responsible for all other taxes, including, without limitation, City Taxes.
17. Qualification. Manager shall, at its own expense, qualify to do business in the State of Florida.
18. Severability. Each provision of this Agreement is intended to be severable. If any term or provision hereof shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be deemed to be severed from this Agreement and shall not affect the validity of the remainder of this Agreement.
19. Consents; Waiver. City and Manager hereby expressly acknowledge and agree that, unless otherwise expressly stated to the contrary in this Agreement, all of the consents and 26
approvals that are necessary or required from either City or Manager hereunder shall not be unreasonably conditioned, delayed, withheld or denied. The granting of any consent or approval in any one instance by or on behalf of either City or Manager shall not be construed to waive or limit the need for such consent in any other or subsequent instance. No waiver, express or implied, by either City or Manager to or of any breach or default by the other party in the performance by the other of its obligations hereunder shall be valid unless in writing, and no such waiver shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other party of the same or any other obligations of such party hereunder. Failure on the part of either party to complain of any act or failure to act of the other party or to declare the other party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder.
20. Remedies. The remedies specified in this Agreement shall be in addition to, and not exclusive of, any other remedies available to a party at law or in equity. In the event of any dispute, claim, suit or proceeding relating to this Agreement, the prevailing party shall be entitled to recover all of its legal and other fees and expenses incurred in connection with the dispute, claim, suit or proceeding from the other party. City and Manager hereby expressly waive any right to seek, claim or collect lost profits or any punitive, treble, indirect, special, speculative or consequential damages in connection with, or related to, a breach or violation of this or any other agreement entered into between City and Manager.
21. Governing Law and Jurisdiction. This Agreement shall be governed by, construed and enforced, in accordance with the laws of the State of Florida without regard to conflict of law principles. The parties agree that any and all disputes, controversies, or claims of whatever nature arising out of or relating to this Agreement or breach thereof shall be only resolved by a state court in Polk County, Florida or the U.S. District Court in and for the Middle District of Florida, Tampa Division, and the parties hereby consent to the exclusive jurisdiction of such courts in any action or proceeding arising under or brought to challenge, enforce, or interpret any of the terms of this Agreement.
22. Time of Essence. Subject only to the provisions of Paragraph 23 below, time is of the essence in the performance of this Agreement.
23. Force Majeure; Change of Circumstances.
(a) Force Majeure. A delay in or failure of performance by City or Manager shall not constitute a default, nor shall City or Manager be held liable for loss or damage, if and to the extent that such delay, failure, loss or damage is caused by occurrences beyond the reasonable control of such party, and its agents, employees, contractors, subcontractors and consultants, including, but not limited to acts of God or the public enemy, expropriation or confiscation of facilities, compliance with any order or request of any governmental 27
authority or person purporting to act therefor, acts of declared or undeclared war, weapon of war employing atomic fission or radioactive force, whether in the time of peace or war, public disorders, rebellion, sabotage, revolution, earthquakes, tornadoes, floods, riots, strikes, labor or employment difficulties, delays in transportation, epidemic, pandemic (including COVID-19 and variations or mutations thereof and any related epidemics and residual effects thereof), inability of a party to obtain necessary materials or equipment or permits due to existing or future laws, rules or regulations of governmental authorities, or any other causes, whether direct or indirect, and whether or not of the same class or kind as those specifically above named, not within the reasonable control of such party, or its agent, employees, contractors, subcontractors and consultants, and which by the exercise of reasonable diligence said party is unable to prevent. Neither City nor Manager shall be entitled to the benefits of this Paragraph 23 unless it gives reasonably prompt written notice to the other of the existence of any event, occurrence or condition which it believes permits a delay in the performance of its obligations pursuant to this Paragraph 23; provided, however, if the other party is already aware of such event causing the Force Majeure (including COVID-19 and variations or mutations thereof and any related epidemics and residual effects thereof), no such written notice shall be required.
(b) Change of Circumstances. In the event of changing conditions at the Facility (including but not limited to attendance changes, changes in employee work arrangements, office closures, disruption in operation, changes in revenue, or changes in participation rates) or if there is a material difference between actual Gross Receipts and historical Gross Receipts listed in Exhibit “D” for reasons outside of Manager’s or City’s reasonable control (except for the first Contract Year during which the interim financial structure described in Paragraph 11(c) applies), the parties shall re-negotiate the financial terms of this Agreement. If the parties are unable to agree upon alternate financial terms within thirty (30) days, either Party may terminate this Agreement effective upon thirty (30) days’ written notice, subject to Paragraph 12(f) above.
24. Assignment and Subcontracts. Manager shall have no right, power, or authority to assign this Agreement without the prior written approval of City, which approval shall not be unreasonably withheld, conditioned or delayed; provided, however, that an assignment of this Agreement to any of Manager’s partners or affiliates (or any of their affiliated or related entities) shall not constitute an assignment under this paragraph and, therefore, shall not require City’s approval. In the event that (a) ownership of the Facility is transferred to any person, trust or entity other than City (a “Successor”), or (b) City sells or in any way transfers its rights to grant the right to sell food and beverage items in the Facility, City will use best efforts to cause this Agreement to be transferred and assigned to the Successor, subject to Manager's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Prior to the consummation of such sale, assignment or transfer, to the Successor, City shall cause the Successor to expressly
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assume in writing the terms and conditions of this Agreement and to agree to be bound by all of the obligations of City contained in this Agreement. Without waiver of the foregoing provisions, all of the rights, benefits, duties, liabilities and obligations of the parties hereto shall inure to the benefit of, and be binding upon, their respective successors and assigns. City shall use its best efforts to obtain a commitment or undertaking, in form and substance reasonably acceptable to Manager, from every person, firm, corporation governmental or quasi-governmental entity that holds a lien or encumbrance affecting the Facility, stating that such person, firm or corporation shall not disturb Manager in its possession of the Foodservice Facilities and conduct of the Operations and will recognize and be subject to the rights granted to Manager under this Agreement and Manager hereby agrees to agree to such reasonable attornment provisions as such person, firm or corporation may reasonably request. However, in the event that such transfer or assignment does not occur, this Agreement shall terminate and neither party will have any further obligation with the exception of obligations or expenses incurred pursuant to the Agreement prior to the termination.
25. Modification of Agreement. This Agreement constitutes the entire agreement between the parties hereto. To be effective, any modification of this Agreement must be in writing and signed by an authorized representative of the party to be charged thereby.
26. Headings. The headings of the paragraphs of this Agreement are inserted for convenience of reference only and shall not in any manner affect the construction or meaning of anything contained herein or govern the rights or liabilities of the parties hereto.
27. Interpretation. Whenever the context requires, all words used in the singular number shall be deemed to include the plural and vice versa, and each gender shall include any other gender. The use herein of the word “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation,” or “but not limited to,” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter.
28. Notices. All notices, requests and communications required or permitted hereunder shall be in writing and shall be sufficiently given and, deemed to have been received upon personal delivery or, if mailed, upon the first to occur of actual receipt as evidenced by written receipt for certified or registered mail or a nationally recognized overnight courier service, refusal or delivery or notification by the United States Postal Service to the sending party that the notice, request or communication is not deliverable at the address of the receiving party set forth below due to the unwillingness of the recipient to accept delivery:
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If to City: RP Funding Center (City of Lakeland) Attn: Anthony Camarillo, Executive Director 701 West Lime Street Lakeland, Florida 33815
If to Manager: Andrew J. Lansing President and CEO Levy 980 North Michigan Avenue Suite 400 Chicago, Illinois 60611
With a copy to: General Counsel Levy 980 North Michigan Avenue Suite 400 Chicago, Illinois 60611
With a copy to: Manager's Director of Operations at his/her offices in the Facility
Notice of a change in address of one of the parties shall be given in writing to the other parties as provided above, but shall be effective only upon actual receipt.
29. Confidentiality and Information Technology.
(a) Confidentiality.
(i) Any financial statements or other financial information that may be provided by either party to the other prior to the execution of, or pursuant to the requirements contained in, this Agreement, whether provided voluntarily or in satisfaction of an obligation to do so, and the terms of this Agreement, shall be kept strictly confidential by the party receiving the same, except and only to the extent that such information may be required to be reported for purposes of the receiving party's financial statements or public reporting requirements, to or by any duly constituted governmental authorities or to any bank or other financial institution providing financing to Manager, City or any of their respective affiliated or related entities or owners.
(ii) During the course of the performance of Manager’s services pursuant to this Agreement, Manager may utilize certain information that relates to 30
its past, present or future research, development, business activities, products, services, technical knowledge and knowledge capital (“Confidential Information”). Furthermore, during the course of Manager’s Services hereunder, Manager may utilize certain proprietary materials, tools and methodologies, including, but not limited to, software, programs and systems (including modifications and adaptations thereto), documentation, training manuals and procedures (hereinafter collectively referred to as “Service Solution Tools”). Service Solution Tools shall be deemed to be included as part of Manager’s Confidential Information.
(iii) City hereby acknowledges and recognizes the competitive advantage and value associated with Manager’s Confidential Information and hereby agrees to use its best efforts to, at all times, protect and preserve the confidentiality of Manager’s Confidential Information. City hereby agrees that it shall not have or retain any right, title or interest in the Confidential Information, except to use them during the term of this Agreement as expressly authorized by Manager from time-to-time and solely for the purpose of furthering Manager’s services pursuant to this Agreement. Nothing in this Agreement shall restrict, prohibit or limit, in any way, Manager’s use of the Service Solution Tools in any manner or for any purpose whatsoever.
(iv) City hereby agrees that all Confidential Information, including, but not limited to, Service Solution Tools and all copies thereof, shall be returned to Manager or, at Manager’s election, may be removed by Manager upon the first of the following to occur: (a) the expiration or earlier termination of this Agreement or (b) Manager’s request.
(v) City and Manager hereby expressly acknowledge and agree that the terms and provisions of this Paragraph 29 shall survive the expiration or earlier termination of this Agreement.
(vi) If Manager, in its sole discretion authorizes City to use any Service Solution Tools, City may only use such Service Solution Tools for its internal business purpose and may not use or share them for the benefit of any other party. The Service Solution Tools are made available “AS IS” without express or implied warranties of any kind.
(vii) City and Manager agree that nothing herein shall be construed to limit disclosure of information subject to Florida Statute Chapter 119, the Florida Public Records Act, or any other applicable law.
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(b) Information Technology Systems. In connection with the services provided hereunder, Manager may need to operate certain information technology systems not owned by City (“Manager Systems”), which may need to connect to or interface with City’s internet access, networks, software, or information technology systems (“City Systems”). Manager will be solely responsible for all Manager Systems, and City will be solely responsible for all City Systems, including taking the necessary security and privacy protections that are reasonable under the circumstances. If Manager serves as the merchant- of-record for credit or debit card transactions in connection with the services provided hereunder, then Manager will be responsible for complying with applicable laws, regulations and payment card industry data security standards related to the protection of cardholder data (“Data Protection Rules”). If Manager Systems connect to or interface with City Systems, then upon written agreement from the City, which shall not be unreasonably withheld, City agrees to promptly implement upon request from Manager, at City’s expense, the changes to the City Systems that Manager reasonably requests and believes are necessary or prudent to ensure Manager’s compliance with the Data Protection Rules. To the extent permitted by law, each party will indemnify, defend, and hold the other party harmless from all claims, liabilities, damages, and costs (including reasonable legal fees) arising from the indemnifying party’s failure to comply with its obligations in this paragraph.
30. Security. City shall be exclusively responsible for providing adequate security throughout the entire Facility, including the Foodservice Facilities. Manager acknowledges that City shall be responsible for public order and safety and shall have the right and authority to eject individuals from the Foodservice Facilities as necessary.
31. Insurance.
(a) Manager Required Insurance. Throughout the Term of this Agreement (including any extensions thereof), Manager shall provide and maintain in full force and effect the policies of insurance set forth hereinafter, which shall protect Manager from any and all claims, damage, liability, loss or expense to persons or property caused by, resulting from, arising out of or in connection with the Operations conducted by Manager pursuant to this Agreement:
(i) Commercial General Liability insurance with limits not less than $5,000,000 each occurrence and in the aggregate. Each occurrence limit and annual aggregate limit may be satisfied by using a combination of primary and umbrella (excess) insurance coverages. Such insurance shall include coverage for products- completed operations liability, personal injury, damage to rented property (fire damage legal), property damage and bodily injury liability;
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(ii) Liquor Liability insurance with limits not less than $1,000,000 each common cause and $5,000,000 in the aggregate. Each common cause limit and aggregate may be satisfied by using a combination of primary and umbrella (excess) insurance coverages. If needed coverage is not included in the general/umbrella/excess liability policies, such policies must be endorsed to extend coverage for liquor liability or a separate policy must be purchased to provide liquor liability coverage in the amount required.
(iii) Automobile Liability insurance covering liability arising out of Manager’s use of Manager's vehicles, whether owned by Manager, non-owned, leased, hired or borrowed, with limits not less than $1,000,000 combined single limit each accident for bodily injury and property damage;
(iv) Workers’ Compensation insurance covering all of Manager's employees who are engaged in furnishing the Services under this Agreement. Such insurance shall provide coverage and limits as required by statutory law, including Employer’s Liability coverage with limits not less than $500,000 each accident, $500,000 disease-each employee and $500,000 disease-policy limit;
(v) Manager Additional Insureds. City shall be included as an additional insured on the General Liability, Liquor Liability and Automobile Liability policies.
(vi) Commercial Crime Coverage: insurance shall be purchased or extended to cover dishonest acts of the Manager’s employees resulting in loss of City property (Client Coverage). The liability limits shall not be less than $1,000,000.
(vii) Network Security and Privacy/Cyber Liability. This insurance shall cover liabilities resulting or arising from acts, errors, or omissions, including Civil Liability, in connection with the services provided or permitted under this Agreement which are associated with any unlawful or unauthorized access to, or acquisition, Use or Disclosure of, PII, PHI, or payment card information, including but not limited to cardholder data or sensitive authentication data (“PCI”) including any Use or Disclosure not permitted by this Agreement, and any Breach, loss, or compromise of any PII, PHI or PCI. Such insurance shall provide coverage for up to $5,000,000.00 each claim and in the aggregate. Costs and Damages to be covered by this insurance policy shall include; (a) costs to notify Individuals; (b) costs to provide credit monitoring and credit restoration services to Individuals; (c) costs and damages associated with third part claims including restoration expenses, revenue loss, civil penalties, litigation costs and settlement costs all where 33
permitted by law; and (d) any investigation and enforcement costs, including but not limited to any forensic investigation costs. The policy must be kept in force during the life of this Agreement and for 2 years (either as a policy in force or extended reporting period) after Agreement termination.
(b) City Required Insurance.
(i) Commercial General Liability insurance with limits not less than $5,000,000 each occurrence. Each occurrence limit and annual aggregate limit may be satisfied by using a combination of primary and umbrella (excess) insurance coverages. Such insurance shall include coverage for products-completed operations liability, personal injury, property damage and bodily injury liability;
(ii) Automobile Liability insurance covering liability arising out of City’s use, operation and/or maintenance of any auto, whether owned, non-owned, leased, hired or borrowed, with limits not less than $1,000,000 combined single limit each accident for bodily injury and property damage;
(iii) Workers’ Compensation insurance covering all of City's employees who are engaged in furnishing the Services under this Agreement. Such insurance shall provide coverage and limits as required by statutory law, including Employer’s Liability coverage with limits not less than $500,000 each accident, $500,000 disease-each employee and $500,000 disease-policy limit;
(iv) Property Damage Insurance. City shall be responsible for maintaining all insurance for all of the furniture, fixtures and equipment utilized in connection with the Operations against property damage for one hundred percent (100%) of the replacement value of such assets. City hereby releases Manager from any and all liability and responsibility to City, or anyone claiming through and under City by way of subrogation or otherwise, for any loss, damage or injury to the property of City or its employees caused by fire or other peril, even if such fire or other peril shall have been caused by the fault of Manager or anyone for whom Manager may be responsible. Manager hereby releases City from any and all liability and responsibility to Manager, or anyone claiming through and under Manager by way of subrogation or otherwise, for any loss, damage or injury to the property of Manager or its employees caused by fire or other peril, even if such fire or other peril shall have been caused by the fault of City or anyone for whom City may be responsible.
(v) City Additional Insureds. Manager shall be included as an additional insured on the General Liability and Automobile Liability policies.
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(c) General Insurance Provisions. All such insurance required above shall be written by insurance companies qualified to do business in the State with an A.M. Best Company rating of A-VII or better in the latest edition of Best’s Insurance Guide and Key Ratings. City shall bear all costs of all deductibles for its insurance policies and shall remain solely and fully liable for the full amount of any claim, damage, liability, loss or expense not compensated by insurance. Manager shall bear all costs of all deductibles for its insurance policies and shall remain solely and fully liable for the full amount of any claim, damage, liability, loss or expense not compensated by insurance. Upon execution of this Agreement and for each insurance renewal thereafter, Manager and City, respectively, shall provide each other with a certificate(s) of insurance certifying that the appropriate insurance coverages are in place to meet the insurance requirements as set forth above.
(d) Casualty Loss. In the event the Facility or any part thereof is partially destroyed by fire or other casualty and such partial destruction materially affects the ability of the Manager to conduct Operations at the Facility, the City shall exercise its best efforts to restore such damaged portions of the Facility such that Manager’s Operations may be resumed as promptly as possible. If complete operation of the Facility must be suspended due to fire or other casualty and full operation is not resumed within ninety (90) days from the date of such suspension, Manager shall have the right to terminate this Agreement by providing City with sixty (60) days prior written notice of its intent to do so and City shall pay to Manager any payment due under the Agreement.
32. Public Records.
IF THE MANAGER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE MANAGER’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS: KEVIN COOK - DIRECTOR OF COMMUNICATIONS AT: PHONE: 863-834-6264, E-MAIL: [email protected], ADDRESS: ATTN: COMMUNICATIONS DEPARTMENT, 228 S. MASSACHUSETTS AVE., LAKELAND, FLORIDA 33801.
In accordance with Florida Statute §119.0701, the Manager shall keep and maintain public records required by the City in performance of services pursuant to the contract. Upon request from the City’s custodian of public records, Manager shall provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided pursuant to Florida Statute
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Chapter 119 or as otherwise provided by law. Manager shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Manager does not transfer the records to the City. Manager shall, upon completion of the contract, transfer, at no cost, to the City all public records in possession of the Manager or keep and maintain public records required by the City to perform services pursuant to the contract. If the Manager transfers all public records to the City upon completion of the contract, the Manager shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Manager keeps and maintains public records upon completion of the contract, the Manager shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City’s custodian of public records, in a format that is compatible with the information technology systems of the City.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
THE CITY OF LAKELAND, FLORIDA, a Florida municipality
By: Name: H. William Mutz Its: Mayor
Attest:
By: Kelly S. Koos, City Clerk
Approved as to form and correctness:
By:______Palmer C. Davis, City Attorney
LEVY PREMIUM FOODSERVICE LIMITED PARTNERSHIP, an Illinois limited partnership
By: Name:______Its:
Witness:
By:______
37 EXHIBIT "A"
FOOD AND BEVERAGE AREAS
EXHIBIT "B"
FACILITIES
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EXHIBIT “C”
EQUIPMENT
40 Smallwares Inventory/Operations
4390- RP Funding Center
Item Ovations QTY Unit Cost Value 10 Gallon Cambor 7 $ 295.00 $ 2,065.00 10" Dinner Plate (New) 881 $ 2.83 $ 2,493.23 3gl Coffee Urn 18 $ 208.87 $ 3,759.66 3gl Coffee Urn Black 8 $ 208.87 $ 1,670.96 5 Gallon Cambro 8 $ 217.00 $ 1,736.00 5.5" B&B Plate (Old) 1625 $ 1.75 $ 2,843.75 6' Flat Rolling table 4 $ 680.00 $ 2,720.00 6.5" B&B Plate (New) 640 $ 1.75 $ 1,120.00 7" Salad/Dessert Plate (New) 2460 $ 1.91 $ 4,698.60 9.5" Dinner Plate (Old) 937 $ 2.67 $ 2,501.79 Banquet Water Goblet (new) 1146 $ 1.79 $ 2,051.34 Bar Tray 22 $ 5.19 $ 114.18 Beverage Dispensers- Plastic 27 $ 45.25 $ 1,221.75 Bread Baskets 112 $ 1.19 $ 133.28 Butane Portabel Stove Burner 4 $ 34.79 $ 139.16 Carving Station 2 $ 340.08 $ 680.16 Chafer Lid (Plastic) 13 $ 100.00 $ 1,300.00 Chafer Roll top Black (New) 18 $ 126.00 $ 2,268.00 Chaffer pans Round Inserts 26 $ 50.00 $ 1,300.00 Chaffer pans split Round Inserts 11 $ 25.00 $ 275.00 Chaffer Square (Old) 12 $ 208.87 $ 2,506.44 Champagne Flute 156 $ 2.06 $ 321.36 China Cap 12" 3 $ 18.98 $ 56.94 Coffee Cup (New ) 862 $ 1.18 $ 1,017.16 Coffee Cup (Old) 1118 $ 1.98 $ 2,213.64 Coffee thermal Carafe-Black 77 $ 6.85 $ 527.45 Coffee thermal Carafe-White 56 $ 6.85 $ 383.60 Condiment Holder 4 $ 11.08 $ 44.32 Creamer 5oz 144 $ 1.40 $ 201.60 Creamer Mini/Big 50 $ 1.09 $ 54.50 Cutting Boards 21 $ 27.27 $ 572.67 Dish Caddy 5.75" 3 $ 306.38 $ 919.14 Dish Caddy 11.25" 13 $ 306.38 $ 3,982.94 Dish Caddy 7" 9 $ 306.38 $ 2,757.42 Dishrack Dolly 12 $ 67.55 $ 810.60 Effel Tower Salt and Pepper 252 $ 1.10 $ 277.20 Fork- Big ( Old and New) 5140 $ 0.58 $ 2,981.20 Fork-Small (New) 2582 $ 0.45 $ 1,161.90 Ice Bucket Blue Safe-t-tote 4 $ 26.70 $ 106.80 Ice Scoop 7 $ 7.20 $ 50.40 Knife (Old and New) 2523 $ 0.90 $ 2,270.70 Label Holder 36 $ 1.53 $ 55.08 Ladel 1.5oz 2 $ 10.69 $ 21.38 Ladel 1oz 8 $ 9.99 $ 79.92 Ladel 2oz 60 $ 3.39 $ 203.40 Ladel 3 oz 7 $ 13.39 $ 93.73 Ladel 4oz 14 $ 1.90 $ 26.60 Ladel 5oz 2 $ 15.99 $ 31.98 Lg Coffee thermal Carafe- Black 10 $ 8.50 $ 85.00 Lg Coffee thermal Carafe- White 13 $ 8.50 $ 110.50 Margarita Glass 165 $ 1.75 $ 288.75 Oval Serving Tray 153 $ 19.27 $ 2,948.31 Pan 1/2 4 inch 3 $ 8.38 $ 25.14 Pan 1/2 6 inch 2 $ 11.68 $ 23.36 Pan 1/3 11 $ 7.13 $ 78.43 Pan 1/3 4" SS 11 $ 21.79 $ 239.69 Pan 1/6 5 $ 5.58 $ 27.90 Pan 1/9 2 $ 4.74 $ 9.48 Pan 1/9 4" SS 2 $ 16.29 $ 32.58 Pan 12" 16 $ 6.25 $ 100.00 Pan 15" Sautee pan 3 $ 3.23 $ 9.69 Pan Full Size 2" Perf 43 $ 7.05 $ 303.15 Pan Full Size 2" Steamtable 35 $ 7.05 $ 246.75 Pan Full Size 4" Steamtable 9 $ 15.75 $ 141.75 Pan Omelet 8 $ 4.70 $ 37.60 Pan Roast 13 $ 13.50 $ 175.50 Pastry Brush 1 $ 3.75 $ 3.75 Pie Servers 14 $ 2.15 $ 30.10 Pizza Cutters 3 $ 4.23 $ 12.69 Plastic Water Pitcher 301 $ 2.85 $ 857.85 Plate Cover 1332 $ 2.87 $ 3,822.84 Pot 12 Qt 3 $ 34.39 $ 103.17 Pot 4 Qt Sauce 3 $ 28.16 $ 84.48 Red Serving Barrells 6 $ 100.33 $ 601.98 Rock Glass 73 $ 0.97 $ 70.81 Roll Top Chafer (Lid) 13 $ 100.00 $ 1,300.00 Round Chafter (New) 12 $ 103.95 $ 1,247.40 Salad (Old) 830 $ 1.90 $ 1,577.00 Saucer (New) 616 $ 0.86 $ 529.76 Saucer (Old) 653 $ 1.59 $ 1,038.27 Scoop 1oz 4 $ 6.77 $ 27.08 Scoop 2oz 1 $ 6.77 $ 6.77 Scoop 4oz 1 $ 6.77 $ 6.77 Scoop 5.33 1 $ 6.77 $ 6.77 Serving Fork 87 $ 4.20 $ 365.40 Serving Slotted Spoon 20 $ 4.20 $ 84.00 Serving Spoon Solid 47 $ 4.20 $ 197.40 Sheet Pan 412 $ 6.78 $ 2,793.36 Soup spoon 459 $ 0.58 $ 266.22 Spatulas Metal 7 $ 3.20 $ 22.40 Spatulas Rubber 8 $ 1.20 $ 9.60 Speedracks 20 $ 227.00 $ 4,540.00 Additional 8 are broken Supreme Bowl 17oz 2 $ 18.57 $ 37.14 Table Number Stands 148 $ 1.53 $ 226.44 Tea spoon (Old and New) 1703 $ 0.42 $ 715.26 Tongs 155 $ 5.16 $ 799.80 Tray Jack 59 $ 15.04 $ 887.36 Two Tiered Rolling Table 9 $ 849.00 $ 7,641.00 Water Glass (Old) 1400 $ 1.50 $ 2,100.00 White Plastic Sugar Caddy 139 $ 1.28 $ 177.92 Wine Glass 1224 $ 0.95 $ 1,162.80 Wisk 12 $ 20.50 $ 246.00 Total $ 97,305.10
EXHIBIT “D”
PROJECTED ATTENDANCE, HOURS OF OPERATION AND HISTORICAL GROSS RECEIPTS
41
Event Attendance 10/1/2020 - 9/30/2021 Status Description Start Date End Date Attendance Invoiced (70) Than Merrill's Real Estate Class 10/02/20 10/02/20 90 Invoiced (70) Lakeland VW Classic 10/03/20 10/04/20 2,000 Invoiced (70) City Commission Meeting 10/05/20 10/05/20 200 Invoiced (70) Lakeland Art Guild Artwork Hanging in Lobby 10/06/20 10/08/20 20 Invoiced (70) Live 2 Lead (Lakeland) 10/09/20 10/09/20 50 Invoiced (70) Axios Church Services (Practice Event) 10/11/20 10/11/20 50 Invoiced (70) COL Onboarding 10/12/20 10/13/20 20 Invoiced (70) Enneagram for Entrepreneurs (Hop In) 10/13/20 10/13/20 50 Invoiced (70) Debs Gym presents The NPC Ultimate Muscle Extravaganza 10/16/20 10/17/20 200 Invoiced (70) Axios Church Services (Practice Event) 10/18/20 10/18/20 50 Invoiced (70) AAF Polk County Advertising Federation Lunch 10/20/20 10/20/20 45 Invoiced (70) NCEES Engineering Exams 10/22/20 10/24/20 256 Invoiced (70) Axios Church Services 10/25/20 10/25/20 50 Invoiced (70) Orlando Magic Court Refurbishing 10/27/20 11/10/20 0 Hold 1 (03) Lakeland Magic/Mr. Central Florida Meeting 10/27/20 10/27/20 0 Invoiced (70) Workplace Violence 10/28/20 10/28/20 100 Invoiced (70) Workplace Violence 10/29/20 10/29/20 100 Invoiced (70) LIFT Lakeland 10/29/20 10/29/20 150 Invoiced (70) Axios Church Services 11/01/20 11/01/20 50 Invoiced (70) ** New Date** Just Between Friends Sale 11/05/20 11/08/20 600 Invoiced (70) Athena Award Dinner 11/05/20 11/05/20 260 Firm (21) Music of Cream - Hold 11/07/20 11/07/20 0 Invoiced (70) NAWCC Chapter 19 Meeting 11/08/20 11/08/20 25 Invoiced (70) COL Onboarding 11/09/20 11/10/20 17 Hold 2 (02) Orlando Magic Court 11/10/20 11/17/20 0 Invoiced (70) AAF Polk County Advertising Federation Lunch 11/10/20 11/10/20 45 Invoiced (70) Axios Church Services 11/15/20 11/15/20 50 Invoiced (70) **NEW DATE** Original Sewing & Quilt Expo 11/19/20 11/21/20 2,000 Invoiced (70) Collectorama 11/19/20 11/21/20 400 Invoiced (70) United Way - Holiday Tree Contest 11/20/20 12/31/20 50 Invoiced (70) Axios Church Services 11/22/20 11/22/20 50 Invoiced (70) VISTE - Food Distribution Pick Up 11/25/20 11/25/20 1,800 Invoiced (70) Florida Elite Cheer Competition 11/28/20 11/28/20 1,000 Invoiced (70) Axios Church Services 11/29/20 11/29/20 50 Invoiced (70) **NEW DATE** Central Florida Wheels of Steel 12/05/20 12/06/20 1,000 Invoiced (70) Buckler Arts & Craft Fair 12/05/20 12/06/20 1,500 Invoiced (70) Axios Church Services 12/06/20 12/06/20 50 Invoiced (70) Tropic Training Camp 12/07/20 12/31/20 0 Invoiced (70) AAF Polk County Advertising Federation Lunch 12/08/20 12/08/20 45 Invoiced (70) Championship Committee Meeting 12/10/20 12/10/20 12 Invoiced (70) Axios Church Services 12/13/20 12/13/20 50 Invoiced (70) COL Onboarding 12/14/20 12/15/20 13 Invoiced (70) ESPY Awards Ceremony 12/19/20 12/19/20 400 Invoiced (70) Florida Tropics FANFEST 12/19/20 12/19/20 150 Invoiced (70) The Nutcracker 12/20/20 12/20/20 400 Invoiced (70) Axios Church Services 12/20/20 12/20/20 50 Event Plan Ready (34) **CANCELLED** Axios Church Services 12/27/20 12/27/20 50 Invoiced (70) Florida Tropics vs St. Louis Ambush 01/02/21 01/02/21 0 Invoiced (70) Axios Church Services 01/03/21 01/03/21 50 Invoiced (70) Florida Tropics vs St. Louis Ambush 01/03/21 01/03/21 0 Invoiced (70) G & L Wholesalers 01/08/21 01/10/21 800 Invoiced (70) Florida Tropics vs Kansas City Comets 01/08/21 01/08/21 400 Ready to Invoice (40) NAWCC Chapter 19 Meeting 01/10/21 01/10/21 25 Invoiced (70) Axios Church Services 01/10/21 01/10/21 50 Invoiced (70) Florida Tropics vs Kansas City Comets 01/10/21 01/10/21 400 Invoiced (70) COL Onboarding 01/11/21 01/12/21 14 Invoiced (70) Lakeland Art Guild Art Hanging 01/12/21 01/14/21 20 Invoiced (70) Allen & Company Annual Economic Forecast Breakfast 01/14/21 01/14/21 70 Invoiced (70) Florida Tropics vs Dallas Sidekicks 01/16/21 01/16/21 400 Invoiced (70) Axios Church Services 01/17/21 01/17/21 50 Finance Review (38) Garden Bros. Circus Nuclear Circus "Humans Gone Wild!" 01/18/21 01/18/21 4,500 E/S Review (37) City Commission Meeting 01/19/21 01/19/21 148 Event Plan Ready (34) Polk Education Foundation Teacher of the Year Awards 01/21/21 01/21/21 80 Event Plan Ready (34) ALPI Annual Staff Training & Meeting 01/21/21 01/23/21 75 E/S Review (37) Than Merrill's Real Estate Class 01/22/21 01/22/21 70 Event Plan Ready (34) 2021 FHSAA Competitive Cheer State Championships 01/22/21 01/23/21 4,800 Event Plan Ready (34) **CANCELLED**AAF Polk County Addy Judging 01/23/21 01/23/21 6 Event Plan Ready (34) Axios Church Services 01/24/21 01/24/21 50 Event Plan Ready (34) COL: Water Distribution-CEU Training 01/28/21 01/28/21 16 Event Plan Ready (34) Gator Cutlery Club 01/29/21 01/31/21 300 Proposal (15) Miss Florida Committee Meeting 01/30/21 01/31/21 40 Event Plan Ready (34) Axios Church Services 01/31/21 01/31/21 50 ES Dept (31) COL:Public Forum presented by Lakeland Electric 02/03/21 02/03/21 50 Event Plan Ready (34) Showbiz Talent Competitions 02/05/21 02/06/21 1,000 ES Dept (31) BKFC Presents Knucklemania 02/05/21 02/05/21 0 Event Plan Ready (34) Florida Frag Swap 02/06/21 02/06/21 300 Event Plan Ready (34) Axios Church Services 02/07/21 02/07/21 50 Firm (21) COL Onboarding 02/08/21 02/09/21 14 Finance Review (38) **CANCELLED**BREAKOUT - Beyond the Stars Dance Competition02/13/21 02/14/21 1,500 ES Dept (31) Axios Church Services 02/14/21 02/14/21 50 ES Dept (31) City Commission Strategic Planning Retreat 02/16/21 02/17/21 25 ES Dept (31) **Postponing-TBD**2021 Lay of the Land Conference 02/18/21 02/19/21 250 ES Dept (31) Collectorama 02/18/21 02/20/21 400 Hold 1 (03) Florida Tropics VS. Tacoma Stars 02/18/21 02/18/21 0 Hold 1 (03) Florida Tropics vs. San Diego Sockers 02/19/21 02/19/21 0 ES Dept (31) Florida Tropics vs. Ontario Fury 02/21/21 02/21/21 400 ES Dept (31) Axios Church Services 02/21/21 02/21/21 50 ES Dept (31) BSDA Showcase 02/21/21 02/21/21 175 ES Dept (31) FHSAA Girls Basketball Finals 02/24/21 02/27/21 0 ES Dept (31) COL: Water Distribution-CEU Training 02/25/21 02/25/21 16 Parked (33) Hall of Fame Dance Challenge 02/26/21 02/28/21 2,000 ES Dept (31) Axios Church Services 02/28/21 02/28/21 50 ES Dept (31) FHSAA Boys Basketball 03/03/21 03/06/21 0 Hold 1 (03) MIDFlorida Mentorship Meeting 03/03/21 03/03/21 35 Proposal (15) Just Between Friends Sale 03/04/21 03/07/21 0 ES Dept (31) Legacy Dance Championships 03/05/21 03/07/21 2,000 ES Dept (31) Axios Church Services 03/07/21 03/07/21 50 Tentative (10) COL Onboarding 03/08/21 03/09/21 17 Hold 1 (03) Football field Install 03/08/21 03/12/21 0 ES Dept (31) City Commission Strategic Planning Retreat 03/10/21 03/11/21 25 Hold 2 (02) NCAA 03/11/21 03/16/21 0 ES Dept (31) Nex Star Dance Competition 03/12/21 03/14/21 2,000 Tentative (10) Tampa Bay Tornadoes vs Carolina Predators 03/13/21 03/13/21 0 ES Dept (31) NAWCC Chapter 19 Meeting 03/14/21 03/14/21 25 Firm (21) Tropic Hold 03/14/21 03/14/21 0 ES Dept (31) Axios Church Services 03/14/21 03/14/21 50 ES Dept (31) Original Sewing & Quilt Expo 03/18/21 03/20/21 0 ES Dept (31) StarQuest Performing Arts Competition 03/19/21 03/21/21 2,000 Firm (21) Lakeland VW Classic 03/20/21 03/21/21 2,000 Firm (21) Tampa Bay Tornadoes vs. Georgia Lions 03/21/21 03/21/21 0 ES Dept (31) Axios Church Services 03/21/21 03/21/21 50 ES Dept (31) Star Systems Dance Competition 03/24/21 03/28/21 1,500 ES Dept (31) **CANCELLED** 2021 State Gymnastics Meet 03/26/21 03/28/21 1,000 ES Dept (31) East Coast Championships-Cheer and Dance 03/27/21 03/27/21 3,000 Firm (21) Tropics Holds 03/28/21 03/28/21 0 ES Dept (31) Axios Church Services 03/28/21 03/28/21 50 ES Dept (31) Summit of Las Americas 03/31/21 03/31/21 90 ES Dept (31) COL: Water Distribution-CEU Training 04/01/21 04/01/21 16 Hold 1 (03) Tampa Bay Tornadoes vs Music City Fire 04/03/21 04/03/21 0 ES Dept (31) Axios Church Services 04/04/21 04/04/21 50 ES Dept (31) Lakeland Art Guild Hanging 04/06/21 04/09/21 20 Firm (21) COL: Special Election 04/06/21 04/06/21 0 ES Dept (31) Enterprise Annual Meeting 04/08/21 04/08/21 120 ES Dept (31) 6th Annual Voyages & Victories Gala 04/08/21 04/08/21 350 Firm (21) Job News Career Fair 04/08/21 04/08/21 450 ES Dept (31) More Than Conquerors Ministries Revival 04/09/21 04/09/21 400 Contracted (30) StarQuest Performing Arts Competition 04/09/21 04/11/21 2,000 Hold 1 (03) Tampa Bay Tornadoes vs Charlotte Thunder 04/10/21 04/10/21 0 Firm (21) Tropics Hold 04/11/21 04/11/21 0 ES Dept (31) Axios Church Services 04/11/21 04/11/21 50 ES Dept (31) Achievement Academy Top Chef of Polk County 04/12/21 04/12/21 340 Tentative (10) COL Onboarding 04/12/21 04/13/21 17 ES Dept (31) MIDFlorida Annual Meeting 04/13/21 04/13/21 65 Parked (33) Show Stoppers Dance Competition 04/16/21 04/18/21 0 ES Dept (31) Florida Xcel State Championship 04/17/21 04/18/21 4,800 Hold 1 (03) Polk County A-Team Competitions 04/20/21 04/20/21 1,200 ES Dept (31) MIDFLORIDA Annual Planning Conference 04/21/21 04/21/21 80 ES Dept (31) A Womans Choice Gala 04/22/21 04/22/21 1,000 ES Dept (31) Starpower National Talent Competition 04/23/21 04/25/21 2,500 Inquiry/Option (01) Varsity All Star 04/23/21 04/25/21 1,500 Firm (21) USA Water Ski Foundation HOF Induction 04/24/21 04/24/21 400 ES Dept (31) Axios Church Services 04/25/21 04/25/21 50 Contracted (30) Lakeland Chamber of Commerce Annual Meeting 04/27/21 04/27/21 432 Hold 1 (03) **HOLD** MIDFLORIDA Annual Planning Conference 04/28/21 04/28/21 80 Proposal (15) **POSTPONED**Superintendent Scholars Awards 04/29/21 04/29/21 2,000 ES Dept (31) Southeastern University Graduation 04/30/21 04/30/21 0 ES Dept (31) Applause Talent Dance Competition 04/30/21 05/02/21 2,500 Firm (21) AAU Taekwondo Training Camp 04/30/21 05/02/21 250 ES Dept (31) Axios Church Services 05/02/21 05/02/21 50 Hold 1 (03) Tampa Bay Tornadoes vs Mississippi Raiders 05/02/21 05/02/21 0 Tentative (10) COL: Run-off Election (if needed) 05/03/21 05/05/21 20 ES Dept (31) Polk State College Graduation 05/05/21 05/06/21 0 Proposal (15) Mayors Prayer Breakfast 05/06/21 05/06/21 500 ES Dept (31) Kids Artistic Revue 05/07/21 05/09/21 2,000 Tentative (10) Florida Southern College Graduation 05/08/21 05/08/21 4,300 Tentative (10) Florida Polytechnic University 2021 Graduation 05/09/21 05/09/21 3,000 Hold 1 (03) Axios Church Services 05/09/21 05/09/21 50 Tentative (10) COL Onboarding 05/10/21 05/11/21 17 ES Dept (31) 2021 Florida GMR/Publix Forum 05/11/21 05/11/21 640 ES Dept (31) Keiser University Graduation 05/12/21 05/12/21 1,500 ES Dept (31) Girls Inc. She Knows Annual Luncheon 05/13/21 05/13/21 250 ES Dept (31) An Evening with Bill Engvall 05/13/21 05/13/21 0 Tentative (10) All Saints Academy Senior Banquet 05/14/21 05/14/21 240 Contracted (30) One Night of Queen 05/14/21 05/14/21 0 ES Dept (31) Rotary District Conference 05/14/21 05/15/21 500 Hold 1 (03) Tampa Bay Tornadoes vs. Arlington Longhorns 05/14/21 05/14/21 0 ES Dept (31) Discovery High School Graduation 05/15/21 05/15/21 4,000 ES Dept (31) League Of Champions 05/15/21 05/16/21 2,000 Firm (21) Florida Wedding and Bridal Expo 05/16/21 05/16/21 300 ES Dept (31) NAWCC Chapter 19 Meeting 05/16/21 05/16/21 25 Hold 1 (03) Axios Church Services 05/16/21 05/16/21 50 Tentative (10) McKeel Academy of Technology 2021 Graduation 05/17/21 05/17/21 2,100 Firm (21) Job News Career Fair 05/19/21 05/19/21 450 Hold 1 (03) Just Say No Rally 05/19/21 05/19/21 2,600 ES Dept (31) Primerica Tampa Bay Leadership School 05/21/21 05/22/21 1,000 Tentative (10) Carol Grayson Recital 05/22/21 05/22/21 0 Proposal (15) Miss Florida Scholarship Orientations 05/22/21 05/23/21 0 Proposal (15) Polk County High School Graduations 05/22/21 05/27/21 44,000 ES Dept (31) Classic Albums Live - Fleetwood Mac - Rumours 05/23/21 05/23/21 800 ES Dept (31) Axios Church Services 05/23/21 05/23/21 50 Tentative (10) Just Say No Rally 05/26/21 05/26/21 2,600 Proposal (15) Sunshine State Games 05/28/21 05/30/21 500 ES Dept (31) Axios Church Services 05/30/21 05/30/21 50 ES Dept (31) Performers Edge Dance Center, Inc. 06/04/21 06/06/21 2,000 ES Dept (31) Creating Keepsakes Scrapbook Convention 2021 06/04/21 06/05/21 2,500 ES Dept (31) Axios Church Services 06/06/21 06/06/21 50 Tentative (10) Tampa Bay Tornadoes vs Pennsylvania Union 06/06/21 06/06/21 0 Tentative (10) Polk County All Sports Awards Banquet 06/08/21 06/08/21 770 ES Dept (31) Lakeland Art Guild Reception 06/08/21 06/11/21 20 Proposal (15) Florida United Methodist Conference 06/10/21 06/12/21 1,500 Tentative (10) Wendys Dance Company 06/11/21 06/12/21 1,000 ES Dept (31) Central Florida Comic Con 06/12/21 06/13/21 2,000 ES Dept (31) Axios Church Services 06/13/21 06/13/21 50 Contracted (30) LA Dance Center Recital 06/13/21 06/13/21 250 Tentative (10) COL Onboarding 06/14/21 06/15/21 17 Hold 2 (02) *HOLD* Just Between Friends Sale 06/17/21 06/20/21 0 Tentative (10) Ultimate Dance Center Recital 06/18/21 06/19/21 600 Proposal (15) New Beginnings High School Graduation 06/18/21 06/18/21 1,200 Proposal (15) Washington Park Rochelle Alumni Scholarship Banquet 06/19/21 06/19/21 0 ES Dept (31) Classic Albums Live - The Beatles Sgt. Pepper's Lonely Hearts Club06/20/21 Band 06/20/21 800 ES Dept (31) Axios Church Services 06/20/21 06/20/21 50 Proposal (15) Miss Florida Scholarship Pageant 06/23/21 06/26/21 1,000 ES Dept (31) Ana Mendez University Commencement Ceremony 06/25/21 06/25/21 1,750 Tentative (10) Florida Elite Coaches Meeting 06/26/21 06/26/21 1,000 ES Dept (31) Axios Church Services 06/27/21 06/27/21 50 Proposal (15) Healthy Schools Summer Academy 06/29/21 06/30/21 300 Proposal (15) Collectorama 07/01/21 07/03/21 400 ES Dept (31) Axios Church Services 07/04/21 07/04/21 50 Hold 2 (02) The Lakeland Boat Show 07/09/21 07/11/21 0 ES Dept (31) Florida Bigfoot Conference 07/10/21 07/10/21 1,000 Contracted (30) NAWCC Chapter 19 Meeting 07/11/21 07/11/21 25 Hold 1 (03) Axios Church Services 07/11/21 07/11/21 50 Tentative (10) COL Onboarding 07/12/21 07/13/21 17 Proposal (15) Tobacco Free Florida Statewide Meeting 07/15/21 07/18/21 300 ES Dept (31) Classic Albums Live - AC/DC Back In Black 07/16/21 07/16/21 800 ES Dept (31) Axios Church Services 07/18/21 07/18/21 50 Firm (21) Open Season Sportsman's Expo 07/23/21 07/25/21 1,500 Hold 1 (03) Axios Church Services 07/25/21 07/25/21 50 Hold 1 (03) Harlem Globetrotters 07/26/21 07/29/21 0 Tentative (10) All American Fancy Flea Vintage Home and Garden Market 07/30/21 07/31/21 1,500 ES Dept (31) Axios Church Services 08/01/21 08/01/21 50 Firm (21) Job News Career Fair 08/04/21 08/04/21 450 ES Dept (31) Axios Church Services 08/08/21 08/08/21 50 Tentative (10) COL Onboarding 08/09/21 08/10/21 17 Firm (21) Classic Albums Live - Led Zeppelin Zeppelin IV 08/13/21 08/13/21 800 ES Dept (31) Axios Church Services 08/15/21 08/15/21 50 ES Dept (31) 2021 (2020) Member Libraries Event 08/20/21 08/20/21 60 ES Dept (31) Axios Church Services 08/22/21 08/22/21 50 Firm (21) Robby Steinhardt and the Music of Kansas 08/27/21 08/27/21 0 ES Dept (31) Axios Church Services 08/29/21 08/29/21 50 Hold 1 (03) Frank Caliendo 09/04/21 09/04/21 0 ES Dept (31) Axios Church Services 09/05/21 09/05/21 50 Firm (21) F.I.R. Expo - Repticon Reptile & Exotic Animal Show 09/11/21 09/12/21 1,000 ES Dept (31) Axios Church Services 09/12/21 09/12/21 50 Tentative (10) COL Onboarding 09/13/21 09/14/21 17 Tentative (10) AFI 67th Annual Community Recognition Dinner 09/14/21 09/14/21 300 Proposal (15) Just Between Friends Sale 09/16/21 09/19/21 0 Tentative (10) 12th Annual Stepping Out For Education Dinner/Dance Competition09/17/21 09/17/21 400 Firm (21) Classic Albums Live - Creedence Cleawater Revival Chronicle Vol 109/17/21 09/17/21 800 ES Dept (31) Axios Church Services 09/19/21 09/19/21 50 Proposal (15) The Ledger Media Group 6th Annual Best of the Best Dinner/ Awards09/23/21 09/23/21 800 Firm (21) Debs Gym presents The NPC Ultimate Muscle Extravaganza 09/25/21 09/25/21 200 Hold 1 (03) Buckler Arts & Craft Fair 09/25/21 09/26/21 1,500 ES Dept (31) Axios Church Services 09/26/21 09/26/21 50 Contracted (30) Lakeland Art Guild Reception 09/28/21 10/01/21 20
Total 169,909
EXHIBIT “E”
SAMPLE CITY-SPONSORED EVENTS
42
Exhibit “E” City of Lakeland Sponsored Events City of Lakeland (COL) events include, but are not limited to: COL Commission Meetings COL Commission Meetings COL Workshops and Strategic Planning Meetings COL New Staff Onboarding Public Forums COL Department/Staff Training RP Funding Staff Planned Public Events (ex. “Pints for Paws”)