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HomeMy WebLinkAboutRES 15-140RESOLUTION NO. 15-140 WHEREAS, on August 7, 2012, City Council of the City of Beaumont, Texas approved Resolution No. 12-164 accepting. the bid submitted by Treat America Food Service, of Merriam, Kansas, for a three (3) year contract, with an option to renew for an additional three (3) years, for concession management services at the Civic Center, Julie Rogers Theater, Jefferson Theater, Riverfront Park and the Event Centre; and, WHEREAS, Treat America Food Service has requested the assignment of the contract to WOW Food Concepts, LLC, of Beaumont, Texas; and, WHEREAS, WOW Food Concepts, LLC will assume and fulfill all obligations, responsibilities, terms and conditions under the contract between the City of Beaumont and Treat America Food Service; and, WHEREAS, Treat America Food Service will be released from its obligation to the City and the City will be released of its obligations to Treat America Food Service, except for amount of outstanding balance owed, upon execution of the Assignment and Assumption Agreement; and, WHEREAS, City Council is of the opinion that the contract with Treat America Food Service should be assigned to WOW Food Concepts, LLC, as shown on Exhibit "1," attached hereto; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF'BEAUMONT: THAT the statements and findings set out in the preamble to this resolution are hereby, in all things, approved and adopted; and; THAT the :City Manager be and he is hereby authorized to execute an Assignment and Assumption Agreement with WOW Food Concepts, LLC, of Beaumont, Texas, and. Treat America Food Service, of Merriam, Kansas, for the purposes described herein. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 21st day of July, 2015. ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated July 2015, is by and between Treat America Food Service ("Treat"), WOW Food concepts, LLC, 3815 IH -10 South, Beaumont, TX 77705 ("Assignee"), and the City of Beaumont, a municipal corporation of the State of Texas ("Beaumont"). RECITALS: A. Treat and Beaumont are parties to that certain Contract, dated August 20, 2012 (the "Contract"), pursuant to which Treat agreed to provide certain concession management services contemplated by RFP No. P170512-04. B. Treat, Assignee and Beaumont have agreed to enter into this Agreement to provide for Treat's assignment to Assignee of all of Treat's right, title and interest in and to the Contract, and Assignee's assumption and performance of all Treat's obligations, duties and responsibilities under the Contract arising after the Effective Date (as herein defined). Date"). C. This Agreement will become effective upon approval by Beaumont ("Effective AGREEMENT: In consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assignment and Assumption: (a) Treat hereby assigns, grants, conveys, transfers and delivers to Assignee and its successors and assigns, all of Treat's right, title, benefit, privilege and interest in, to and under the Contract (other than for amounts due and owing by Beaumont to Treat under the Contract as of the date hereof), and Assignee hereby accepts such assignment, grant, conveyance, transfer and delivery. (b) Treat hereby sells, assigns, grants, conveys, transfers and delivers to Assignee and its successors and assigns, all of Treat's right, title and interest in and to all personal property owned by Treat and located at the locations described in the Contract, including without limitation all smallwares, pots, pans; dishes, glasses, utensils, etc., but excluding that certain lift truck and Southern Pride Smoker owned by Treat. (c) Treat hereby assigns, transfers and delivers to Assignee and its successors and assigns, all security deposits held by Treat as security for concession management services pertaining to events to be held after the Effective Date. Page 1 of 4 EXHIBIT T r (d) Assignee hereby assumes, and agrees to fulfill, perform and discharge, all obligations, duties and responsibilities of Treat to be performed under the Contract after the Effective Date in accordance with its terms. Assignee hereby is made a party to the Contract in replacement of, and substitution for, Treat, and Assignee hereby agrees to be bound by the terms and conditions thereof. (e) Assignee agrees to purchase from Treat those portions of the food and beverage inventory owned by Treat which remain at the locations described in the Contract and which are deemed by Assignee to be usable in Assignee's sole discretion. In connection therewith, Assignee agrees to pay the fair value for such usable inventory as mutually agreed upon between Treat and Assignee. (f) Treat hereby is relieved of and released from any further obligations, duties and responsibilities to be performed under the Contract after the Effective Date. (g) Treat shall be and remain liable and responsible for and shall make timely payment of all sums owed to vendors, suppliers, Beaumont and others directly or indirectly incurred or owed by Treat in connection with its performance of the Contract prior to the Effective Date. In connection therewith, Treat agrees to indemnify, hold harmless and defend Assignee and Beaumont from and against any and all claims arising from Treat's operations under the Contract prior to the Effective Date. (h) The term of the Contract is from September 1, 2012 through August 31, 2015, with Beaumont having the option to extend the contract an additional three (3) years. Assignee and Beaumont agree the contract shall end on January 31, 2016. Otherwise, the terms of the Contract are not altered or amended by this Assignment and Assumption Agreement except as otherwise expressly noted herein. 2. Consent and Certification of Beaumont. (a) Beaumont hereby consents to the assignment, assumption and other matters set forth in Section 1 above, and hereby agrees that (i) Assignee shall be entitled, in the place and stead of Treat, to exercise any and all rights of Treat under the Contract in accordance with its terms, (ii) Beaumont shall accept performance by Assignee under the Contract, and (iii) Beaumont will look solely to Assignee for the fulfillment, performance and discharge of all obligations, duties and responsibilities which Treat had originally agreed to fulfill, perform and discharge under the Contract from and after the Effective Date. (b) Beaumont hereby certifies as follows with respect to the Contract: (i) a true, correct and complete copy of the Contract as currently in effect is attached hereto; (ii) the Contract is in full force and effect, has not been modified or amended, and remains subject to Beaumont's General Conditions of Bidding, and (iii) to the knowledge Page 2 of 4 of Beaumont, Treat is not in default in the observance or performance of any covenant or condition to be observed or performed by Treat under the Contract. 3. Miscellaneous. (a) Authority. Each of Treat, Assignee and Beaumont, and the individuals executing this Agreement on behalf of each such party, represents and warrants to the other parties that (i) such party has the right and power to enter into this Agreement, (ii) such party has taken all necessary action to duly authorize the execution and delivery of this Agreement, and (iii) such party has duly executed and delivered this Agreement. (b) Binding Effect. This Agreement shall be binding upon and inure to the benefit of Treat, Assignee and Beaumont and their respective successors and permitted assigns. (c) Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Texas without giving effect to the principles of conflicts of law thereof. (d) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signed counterparts of this Agreement may be delivered by facsimile and by scanned .pdf image. If so delivered by facsimile or scanned .pdf image, at the request of any party hereto, the other parties shall re -execute an original form hereof and deliver it to the requesting party. IN WITNESS WHEREOF, Treat, Assignee and Beaumont have caused this Agreement to be duly executed by their respective officers thereunto duly authorized, all as of the date first above written. TREAT AMERICA FOOD SERVICES IM Name: Title: WOW FOOD CONCEPTS, LLC 0 Name: Title: Page 3 of 4 CITY OF BEAUMONT Lm Name: Title: Page 4 of 4 A58I:GNM1 T AND ASSUMPTION A.GIM, KMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated July o 2015, is by and between Treat America rood Service ("Treat"), WOW Food concepts, LLC, 3815 114-10 South, Beaumont, TX 77705 ("Assignee"), and the City of Beauniojrt; amunicipal corporation of the State of Texas ("Beaumont"). RECUALS: A. Treat and Beaumont are parties to that certain Contract, dated August 20, 2012 (the "Contract"), pursuant to which Treat agreed to provide certain concession tnanagmilent services contemplated by RF1' No. PP0512-04. B. Treat, Assignee and Beaumont have agreed to eater into this Agreement to provide for Treat's assignment to Assignee of all of Treat's right, title and interest in and to the Contract, and Assignee's assumption and performance of all Treat's obligations, duties -and responsibilities under tho Contract arising after the Effective Date (as herein defined). Date'.). C. This Agreement will become effective upon approval by Beaumont ("Effective AGREEMENT: In consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows; Assignment and Assumpqliqn. (a) Treat hereby assigns, grants, conveys, transfers and delivers to Assignee and its successors and assigns, all of Treat's right, title, benefit, privilege and interest in, to and under the Contract (other than for amounts due arld owing by Beaumont to Treat under the Contract as of the date hereof), and Assignee hereby accepts such assignment, grant, conveyance, transfer and delivery. (b) Treat .hereby sells, assigns, grants, conveys, transfers and delivers to Assignec and its successors and assigns, all of Treat's right, title and interest in and to all .personal property owned by Treat and located at the locations described in the Contract, including without limitation all smallwares, pots, pans, dishes, glasses, utensils, etc., but. excluding that cortain lift truck and Southern Pride Smoker owned by Treat. (c) Treat hereby assigns, transfers and delivers to Assignee -arid its successors and assigns, all security deposits held by Treat as security for concession management services pertaining'to events to be hold after the Effective Date. Page I of 4 (4) Assignee hereby assumes, and agrees to fulfill, perform and discharge, all obligations, duties and responsibilities of Treat to be performed under the Contract after the Effective Date in accordance with its terms. Assignee hereby is made a party to the Contract in replacement of, and substitution for, Treat, and Assignee Hereby agrees to be bound by the terins and conditions thereof. (e) Assignee agrees to purchase from Treat those portions of the food and beverage inventory owned by Treat which remain at the locations described in the Contract and which are deemed by Assignee to be usable in Assignee's sole discretion. In connection therewith, Assignee agrees to pay the fair value for such usable inventory as mutually agreed upon between 'Treat and Assignee. (f) Treat hereby is relieved of and released from any further obligations, duties and responsibilities to be performed under the Contract after the Effective'Date. (g) Treat shall be and remain liable acid responsible for and shall make timely payment of all turns owed to vendors, suppliers, Beaumont and others directly or indirectly incurred or owed by Treat in connection with its performance of the Contract prior to the Effective Date, In connection therewith, Treat agrees to indemnify, hold harmless and defend Assignee and Beaumont from and against any and all claims arising from 'li-eat's operations under tine Contract prior to the Effective Date. (h) The torn of the Contract is from September 1, 2012 through August 31, 2015, with Beaumont having the option to extend the contract an additional three (3) years. Assignee and Beaumont agree the contract shall end on Januaty 31, 2016. Otherwise, the terms of the Contract are. not altered or amended by this Assignment and Assumption Agreement except as otherwise expressly noted herein. 2. Consent cad Q Artification pf Bmmont. (a) Beaumont hereby consents to the assignment, assumption and other matters set forth in Section 1 above, and hereby agrees that (i) Assignee shall be entitled, in the place and stead of Treat, to exercise any and all rights of Treat under the Contract in accordance with its terms, (ii) Beaumont shall acoept perfonnance by Assignee under the Contract, and (ill) Beaumont will look solely to Assignee for the fulfillinent, performance and discharge of all obligations, duties and tesponsibilities which Treat had originally agreed to fulfill, perform grid discharge under the Contract from and after the Effective Date. (b) Beaumont hereby. certifies as follows with respect to the Contract: (i) a true, correct and complete copy of the Contract as currently in effect is attached hereto; (ii) the Contract is -in full force and erect, has not been modified or amended, and remains subject to Beaumont's General Conditions of Bidding, and (W) to the knowledge Page 2 of 4 of Beaumont, Treat is not in default in the observance or performance of any covenant or condition to be observed or performed by Treat under the Contract. 3. Misc ltOLIcous. (a) Authollt . Each of Treat, Assignee and. Beaurnont, and the individuals executing this Agreement on behalf of each such party, represents and warrants to the other parties that (i) such party has the right and power to enter into this Agreement, (ii) such party has taken all necessary action to duly authorize the execution and delivery of this Agreement, and (W) such party has duly executed and delivered this Agreement. (b) _ indi la E . This Agreement shall be binding upon and inure to the benefit of Treat, Assignee and Beaumont and their respective successors and permitted assigns, (c) Apulieable LOW. This Agreement shall be govezued by and construed and enforced in accordance with the iAtemal laws of the State of Texas Nvithout giving effect to the principles of conflicts of law thereof (d) QMWU mrts. This Agreement may be executed in multiple counterparts, eaclr of which shall be deemed an original, but all of which together shall constitute ono and the some instrument. Signexi counterparts of this Agreement may be delivered by facsimile and by scanned .pdf image. If so delivered by facsimile or scanned .pdf image, at the request of any party hereto, the other parties shall re -execute an original form hereof and deliver it to the requesting party. IN WITNBS i W17MPMF, Treat, Assignee and Beaumont have caused this Agreement to be duly executed by their respective officers thereunto duly authorized, all as of the date first above written. TREAT AN.ID SERVICES t By: Name: o rvl 54ei4e- Title; VP ID-j � S0a4 WUW X+"Ud EPTS, LLC By. Title: mo , Page 3 of 4 CITY OF BEA UMONT By., — Name: Title: Page 4 of4 RESOLUTION NO. 15-140 WHEREAS, on August 7, 2012, City Council of the City of Beaumont, Texas approved Resolution No. 12-164 accepting. the bid submitted by Treat America Food Service, of Merriam, Kansas; for a three (3) year contract, with an option to renew for an additional three (3) years, for concession management services at the Civic Center, Julie Rogers Theater, Jefferson Theater, Riverfront Park and the Event Centre; and, WHEREAS, Treat America Food Service has requested the assignment of the contract to WOW Food Concepts, LLC, of Beaumont, Texas; and; WHEREAS, WOW Food Concepts, LLC will assume and fulfill all obligations, responsibilities, terms and conditions under the contract between the City of Beaumont and Treat America Food Service; and, WHEREAS, Treat America Food Service will be released from its obligation to the City and the City Will be released of its obligations to Treat America Food Service, except for amount of outstanding balance owed, upon execution of the Assignment and Assumption Agreement; and, WHEREAS, City Council is of the opinion that the contract with Treat America Food Service should be assigned to WOW Food Concepts, LLC, as shown on Exhibit "1," attached hereto; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF'BEAUMONT; THAT the statements and findings set out in the preamble to this resolution are hereby, in all things, approved and adopted; and; • V THAT the ,City ' Manager. be and he is hereby authorized to execute an Assignment and Assumption Agreement with WOW Food Concepts, LLC, of Beaumont, Texas, and. Treat America Food Service,. of Merriam, Kansas, for the purposes described herein. PASSED BY THE CITY COUNCIL. "of the City of Beaumont this the 21s"t day of July, 2015. W (7. 1,1 t 0� �� o - Vayr&wf 'A es - R .►,t- 7 a: r TEXAS TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Laura Clark, Chief Financial Officer MEETING DATE: July 21, 2015 REQUESTED ACTION: Council consider a resolution approving the subcontracting of contract for concession services from Treat America Food Services to WOW Food Concepts. BACKGROUND On August 7, 2012, Council awarded the concession management contract for the Civic Center and various other locations to Treat America Food Services. Treat America is requesting the transfer of this contract to WOW Food Concepts of Beaumont, Texas. The original terms and conditions of the contract will remain in effect until this contract can be rebid. FUNDING SOURCE Revenue will be deposited in the General Fund. RECOMMENDATION Approval of resolution. Treat America P O O O. SERVICES City of Beaumont Patrick Bardwell, Purchasing Manager PO Box 3827 Beaumont, TX 77704-3827 July 1, 2015 Patrick, Pursuant to the terms of the contract agreement related to Concession Management Services RFP Bid No. PF0512-04, between City of Beaumont and Treat America Food Services, Treat America is providing 30 days written notification of cancellation of this agreement. We appreciate the opportunity to have been of service and will work cooperatively with the City of Beaumont to assist in a smooth transition. Sincerely, John Shene Vice President Food Service -South Division 816-365-2853 iohns@treatamerica.com 6 � .z wd 9- -io sm :. Olj��..iyyQt{��- Nl;Skt:�j��j�%'{1 8500 SHAWNEE MISSION PKWY • SUITE 100 4 MERRIAM, KS 66202 • 913.384.4900 + 913.671.7633 - FAx + WWW.TILEATAMERICA.COM r../' ✓ f U dna�citki����t�vD$ D I N I N G City of Beaumont 801 Main Street Beaumont, Texas 77704-3827 6-25-2015 To whom it may concern, On August 20, 2012, Treat America entered into an agreement with the City of Beaumont, to provide Concession Management Services. The contract commenced September 1, 2012 and expires August 31, 2-015. Treat America is requesting early termination of the contract, effective July 191h, 2015. It is Treat America's intention to assist with the transition with an alternative operator selected by the City of Beaumont. During the course of this, and previous service contracts, Treat America has made substantial investments in smallwares, catering and concession equipment, and vehicles. Treat America will remove from the premise the 2002 Chevy w/Lift gate, a Southern Pride Smoker/Trailer SPK500, and assorted office equipment, and all required accounting documents. If the request stated above is accepted, Treat America will not make claim, now or in the future, to any other catering, concession, or food service equipment on the premise, and will transfer ownership of said equipment to the City Of Beaumont. We greatly appreciate the opportunity to have been of service. Sincerely, John Shene Vice President Food Service -South Division Update on Treat America contract LAURA CLARK to: PATRICK BARDWELL 1210312013 01:32 PM Lenny dropped by today and wanted to give me an update on the Treat America contract. One of the top people in the company came in and met with Lenny. Ultimately, Denson will be leaving, although not until the end of the month. They will be bringing in a corporate chef to assess things and talk to the employees and keep it going for now. Treat America will be sending the City some suggested amendments to the contract that Lenny and the corporate executive agreed upon and talked over with the company's CFO. One will be a higher % of revenues to be paid to the City as well as a clause that allows for the City Manager to waive the exclusivity in certain instances, among other things. Put this with your Treat America file and you will know what is coming down the pike. Thank you, Laura Clark, CPA Chief Financial Officer City of Beaumont (409) 880-3115 (409) 880-3132 fax The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution, or duplication of this communication is strictly prohibited.