13-173 Resolution No. 13-173
RESOLUTION
AUTHORIZING EXECUTION OF A
LICENSE FOR CATERING SERVICES AGREEMENT
WITH CUISINE AMERICA, INC.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,
that Sean R. Stegall, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby
authorized and directed to execute a license for catering services agreement on behalf of the City
of Elgin with Cuisine America, Inc. for catering services at the Heritage Ballroom in The Centre,
a copy of which is attached hereto and made a part hereof by reference.
s/ David J. Kaptain
David J. Kaptain, Mayor
Presented: October 2'), 2013
Adopted: October 23, 2013
Omnibus Vote: Yeas: 9 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
LICENSE FOR CATERING SERVICES
This agreement is made this 23rd day of October 2013 by and
between the City of Elgin, an Illinois municipal corporation, referred to as "City" in this
agreement, and Cuisine America, Inc., an Illinois corporation, referred to as the "Cater-
er" in this agreement.
1. Background
1.01. The City owns and operates The Centre of Elgin, a full service, state-of-the-
art recreation facility located in downtown Elgin near the Fox River. The City markets
The Centre of Elgin's Heritage Ballroom and other meeting and recreation areas of the
facility for.business and professional meetings, social functions and special events.
Businesses or persons renting the Heritage Ballroom and other meeting and recreation
areas of the facility often desire catering services for these occasions. The City is inter-
ested in maintaining a high quality of catering services at events held at The Centre of
Elgin and desires that these catering services operate in a clean, orderly, healthy and
legal manner.
1.02. The City maintains a list of approved and preferred caterers authorized to
cater events at The Centre of Elgin. The City also identifies one caterer as the City's
"Featured Caterer" and includes the identification of that Caterer in the informational
folder provided to patrons renting The Heritage Ballroom or other areas within The Cen-
tre of Elgin. Information on The Centre of Elgin's Featured Caterer is favorably distin-
guished from the City's list of preferred caterers. This license agreement designates the
Caterer as The Centre of Elgin's "Featured Caterer" pursuant to the terms of this license
agreement and authorizes the Caterer to use facilities at The Centre of Elgin when re-
quested to do so by persons renting the Heritage Ballroom and other meeting and rec-
reation areas of the facility, and sets forth the responsibilities of the Caterer and City
under such circumstances.
2. Scope of Catering Services; Limitations
2.01. Catering services include providing food and non-alcoholic beverages at
social, business, and professional functions held at The Centre of Elgin such as meet-
ings, banquets, parties, teas, coffees, receptions and dinners.
2.02. The Caterer acknowledges that the services it is entitled to provide pursu-
ant to this agreement do not include the sale or supply of alcohol. The City shall provide
all alcoholic beverages served at The Centre of Elgin.
2.03. Non-alcoholic beverages served by the Caterer are required under an
agreement between the City and PepsiAmericas, Inc. to be products branded by Pepsi-
Americas, Inc. Non-alcoholic beverages that are exempt from this condition are as fol-
lows:
■ Branded or unbranded freshly brewed coffees
• Branded or unbranded freshly brewed teas
• Branded or unbranded herbal tea sold in a bag and made by the consumer
• Milk, flavored milk, hot chocolate
• Non-alcoholic beer
• Tap water
• Juice squeezed fresh on the premises and juice drinks made fresh on the
premises
• "Smoothies"
• Yogurt-based drinks
• Margarita, pina-colada, Bloody Mary and similar alcoholic drink mixes (without
alcohol)
• Club soda, tomato or V-8 Vegetable Juice
2.04. Catering services do not include any function at which the Caterer handles
cash sales to participants.
2.05. The City may review requests to provide catering services in order to de-
termine compliance with this license agreement.
2.06. The Caterer shall identify, provide and maintain in force any and all federal,
state and local licenses and permits for the legal operation of all food and beverage ser-
vice that comply with all applicable federal, state and local laws, acts or regulations. The
Caterer shall.comply with OSHA and ADA requirements.
2.07. The Caterer shall be responsible for receiving all food, supplies and equip-
ment at the banquet service entrance of The Centre of Elgin and then move these items
to the respective areas of The Centre where the Caterer will be providing its services.
The Caterer shall be responsible for providing the necessary staff and equipment to
properly move materials from one location to another.
2.08. The City shall not be obligated to provide the Caterer with any catering
equipment or utensils.
3. Grant of License
3.01. The City grants the Caterer a non-exclusive license to provide catering ser-
vices at business and professional meetings, social functions and special events held at
The Centre of Elgin under the terms of this license agreement.
4. Term
4.01. Unless terminated by law or as provided by this Agreement, this Agreement
shall terminate on December 31, 2018.
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5. Insurance and Indemnity
5.01. The Caterer shall provide, pay for and maintain in effect, during the term of
this agreement, a policy of comprehensive general liability insurance, written in occur-
rence form, with limits of at least $1,000,000 per occurrence for bodily injury and
$1,000,000 per occurrence for property damage. The Caterer shall deliver to the City a
certificate of insurance naming the City as an additional insured. The policy shall not be
modified or terminated without thirty (30) days prior written notice to the City. This insur-
ance shall apply as primary insurance with respect to any other insurance or self-
insurance programs afforded to the City. There shall be no endorsement or modification
of this insurance to make it excess over other available insurance, alternatively, if the
insurance states that it is excess or pro rate, it shall be endorsed to be primary with re-
spect to the City. The Caterer shall also provide, pay for and maintain in effect during
the term of this agreement worker's compensation insurance in amounts required under
the laws of the State of Illinois.
5.02. To the fullest extent permitted by law, the Caterer agrees to indemnify, de-
fend and hold harmless the City, its officers, employees, agents, boards and commis-
sions from and against any and all claims, suits, judgments, costs, attorney's fees,
damages or other relief, including but not limited to worker's compensation claims, in
any way resulting from or arising out of negligent actions or omissions of the Caterer in
connection herewith, including negligence or omissions or agents of the Caterer arising
out of the performance of this agreement. In the event of any action against the City, its
officers, employees, agents, boards or commissions covered by the foregoing duty to
indemnify, defend and hold harmless, legal counsel of the City's choosing shall defend
such action. The provisions of this paragraph shall survive any termination of this
agreement.
5.03. No official, director, officer, agent or employee of the City shall be charged
personally or held contractually liable under any term or provision of this Agreement or
because of their execution, approval or attempted execution of this Agreement.
6. Operational Responsibilities
6.01. The Caterer shall provide, at its expense, the following:
a. Food to be served;
b. Beverages to be served (in accordance with the requirements of para-
graph 2.03 of this license agreement);
C. The management, personnel, and labor to be used by the Caterer to meet
its obligations under this license agreement and the salaries and fringe
benefits due its employees;
d. Linens, dishes, utensils, and uniforms for its personnel to satisfactorily
perform the Caterer's under this agreement;
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e. Custodial services and supplies;
f. Licenses and permits which may be required by federal, state, county or
local government for the Caterer to perform its services under this license
agreement;
g. Payment of sales and other taxes on monies collected by the Caterer;
h. Cost to repair or replace plumbing, electrical fixtures and other property in
The Centre of Elgin damaged by the Caterer's negligence.
6.02. The City will provide, at its expense, the following:
a. Water, gas and electrical utilities for the Caterer's operations; and
b. The Heritage Ballroom or other area within The Centre of Elgin at which
the event or function is held; and
6.03. The City shall make the following catering-related equipment within the
Heritage Ballroom's kitchen available to the Caterer when the Caterer is servicing pa-
trons at The Centre of Elgin in accordance with this license agreement:
• Work tables
• Work table with sink
• Soiled dish table
• Disposer
• Dishwasher
• Clean dish table
• Three-compartment sink
• Hand sink
• Gas range
6.04. The City shall provide the Caterer with dedicated storage facilities within
The Centre of Elgin for use by the Caterer during the term of this license agreement.
The location and conditions governing the Caterer's use of the storage facilities within
The Centre of Elgin is set forth in Exhibit A, attached to and incorporated into this li-
cense agreement by reference. Should the Caterer fail to surrender the dedicated stor-
age facilities within The Centre of Elgin for use by the Caterer during the term of this li-
cense agreement after the termination of this license agreement, the Caterer agrees to
waive all notices required by the Forcible Entry and Detainer Act or any other statute,
waive any defense, and consent to an immediate judgment for possession.
7. Facilities
7.01. The City shall not be required to furnish the Caterer with any equipment,
nor make any physical alterations of its facilities or equipment.
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7.02. The City does not guarantee an uninterrupted supply of water, gas or elec-
trical current, nor does the City guarantee uninterrupted service in providing any utilities.
The City shall not be liable to the Caterer or to others for any loss, damage, cost or ex-
pense that may result from the interruption or failure of any utility service.
7.03. Should the Caterer fail to provide services as required under paragraphs
6.01 (e and f) and paragraph 9.01 of this license agreement, or should the City be re-
quired to make any repairs to The Centre of Elgin premises or clean-up any area of The
Centre of Elgin as a result the negligence of the Caterer or its employees, the Caterer
shall make payment to the City in an amount equal to the City's costs for repairing or
correcting the deficiency caused by the Caterer or it employees. The Caterer shall make
such payment to the City not less than five (5) business days from the Caterer's receipt
of an invoice from the City representing the City's costs for such repairs and remedial
services.
7.04. The Caterer shall not sublease or assign this license agreement or any por-
tion of The Centre of Elgin.
7.06. The Caterer shall comply with all specific policies and operating procedures
of The Centre of Elgin when the Caterer is providing catering services.
8. Personnel
8.01. The City shall not be bound by any labor union contract affecting the Cater-
er's employees.
8.02. In all hiring or employment made possible or resulting from this license
agreement, there shall be no discrimination against any employee or applicant for em-
ployment because of sex, age, race, color, creed, national origin, marital status, or the
presence of any sensory, mental or physical handicap, unless based upon a bona fide
occupational qualification, and this requirement shall apply to, but not limited to, the fol-
lowing: employment advertising, layoff or termination, rates of pay or other forms of
compensation and selection for training, including apprenticeship.
8.03. No person shall be denied or subjected to discrimination in receipt of the
benefit of any services or activities made possible by or resulting from this license
agreement on grounds of sex, race, color,.creed, national origin, age except minimum
age and retirement provisions, marital status or the presence of any sensory, mental or
physical handicap. Any violation of this provision shall be considered a violation of a
material provision of this license agreement and shall be grounds for cancellation, ter-
mination or suspension, in whole or in part, of the license agreement by the City.
8.04. As a condition of this license agreement, the Caterer shall have written
sexual harassment policies that include, at a minimum, the following information:
A. The illegality of sexual harassment.
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B. The definition of sexual harassment under state law.
C. A description of sexual harassment, utilizing examples.
D. The vendor's internal complaint process including penalties.
E. The legal recourse, investigative and complaint process available through
the Illinois Human Rights Commission.
F. Directions on how to contact the department and commission.
G. Protection against retaliation, as provided by Section 6-101 of the Illinois
Human Rights Act.
9. Cleanliness and Sanitation
9.01. The Caterer shall operate the Caterer's and the City's food service and per-
form all work in connection therewith in a professional and resourceful manner, comply-
ing with all public health regulations including a Grade A sanitation rating to the satisfac-
tion of all authorized state, county and local health department offices.
The Caterer shall keep all of the premises within The Centre of Elgin under its
control, and all furniture, fixtures and equipment therein, in a clean and sanitary condi-
tion and will promptly replace all loss and breakage, and at the expiration of each event
surrender the same to the City in as good condition as the facilities and equipment were
in at the beginning of the event, reasonable wear and tear and loss and damage by
force majeure excepted. The Caterer shall dispose of all refuse in designated recepta-
cles located at The Centre of Elgin without any cost to the Caterer.
9.02. The City may inspect the facilities and equipment under the Caterer's con-
trol with respect to the quality and quantity of and the beverages served, the method of
service, and generally with respect to safety, sanitation and the maintenance of the
premises within The Centre of Elgin, all of which shall be maintained in a manner satis-
factory to the City. The City reserves the right to make reasonable regulations with re-
gard to all of these matters, and the Caterer agrees to comply with those regulations.
9.03. The Caterer shall comply with all state, federal, county, and the City of El-
gin Health and Sanitary Code.
10. Records
10.01. The City's fiscal services manager shall be provided with copies of the Ca-
terer's financial records insofar as they apply to the Caterer's duties under this license
agreement. The Caterer shall maintain these records for not less than three years.
11. Termination of Agreement
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11.01. Should the Caterer fail to maintain the insurance required by this agree-
ment the City shall have the right to terminate this agreement immediately and without
notice.
11.02. Should the Caterer fail to carry out any of the terms and conditions of this
license agreement or fail to comply with any regulations adopted by the City governing
the use of facilities within The Centre of Elgin, the City may notify the Caterer of such
failure or default in writing and demand that it be remedied within ten (10) days. Should
the Caterer fail to remedy the identified problem within ten (10) days, the City may can-
cel this license agreement without further notice.
11.03. The Caterer may terminate this license agreement by providing the City
not less than sixty (60) days' written notice of the Caterer's intent to terminate this li-
cense agreement. Notwithstanding any other provision of this license agreement, the
City may terminate this license agreement for any reason without penalty at any time
upon written notice to the Caterer. In the event this license agreement is so terminated
by the City, the Caterer shall pay the City any commission due in accordance with Sec-
tion 12 of this license agreement.
12. Fiscal Arrangements
12.01. The Caterer shall pay the City twenty percent (20%) of its gross receipts
from persons or entities conducting events in The Centre of Elgin's Heritage Ballroom or
any other facilities within The Centre of Elgin. A copy of the Caterer's billing invoice to
the persons or entities conducting events in The Centre of Elgin's Heritage Ballroom or
any other facilities within The Centre of Elgin shall be attached to the Caterer's commis-
sion payment to the City. The Caterer's billing invoice to the sponsoring party, attached
to the commission check, will be used as basis for verifying the Caterer's commission
paid to the City.
12.02. The Caterer's commission to the City shall be paid by a check made pay-
able to the "City of Elgin" and delivered to Amy Spooner, Centre.Customer Service
Manager, The Centre of Elgin, 100 Symphony Way, Elgin, Illinois 60120-5555. The Ca-
terer shall tender its commission payment to the City on the twentieth day of each
month for the duration of this license agreement.
12.03. As used in this license agreement, the term "gross receipts" shall mean
the total amount of compensation the Caterer receives from the sale and/or leasing of
food, beverages and supplies, including, but not limited to, china, linens, and decora-
tions, except any applicable sales tax and/or service fees.
13. General Terms and Conditions
13.01. This license agreement shall not be construed so as to create a partner-
ship, joint venture, employment or other agency relationship between the parties hereto.
The Caterer understands and agrees that the relationship of the Caterer to the City aris-
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ing out of this agreement shall be that of an independent contractor. It is expressly
agreed and understood that the Caterer and the Caterer's officers, employees and
agents are not employees of the City and are not entitled to any benefits or insurance
provided to employees of the City.
13.02. If either party violates or breaches any term of this agreement, such viola-
tion or breach shall be deemed to constitute a default, and the other party has the right
to seek administrative, contractual or legal remedies as may be suitable to the violation
or breach.
13.03. The parties intend and agreed that, if any paragraph, sub-paragraph,
phrase, clause or other provision of this Agreement, or any portion thereof, shall be held
to be void or otherwise unenforceable, all other portions of this Agreement shall remain
in full force and effect.
13.04. This Agreement and its exhibits constitutes the entire Agreement of the
parties on the subject matter hereof and may not be changed, modified, discharged or
extended except by written amendment duly executed by the parties. Each party
agrees that no representations or warranties shall be binding upon the other party un-
less expressed in writing herein or in a duly executed amendment hereof.
13.05. This Agreement shall be deemed to have been made in, and shall be con-
strued in accordance with the laws of the State of Illinois. Venue for the resolution of
any disputes or the enforcement of any rights pursuant to this agreement shall be in the
Circuit Court of Kane County, Illinois. In the event any legal action is brought by the City
for the enforcement of any of the obligations of the Caterer in this license agreement
and the City is the prevailing party in such action, the City shall also be entitled to re-
cover from the Caterer reasonable attorneys' fees and interest at the maximum allowa-
ble by law.
13.06. All notices, reports and documents required under this license agreement
shall be in writing and shall be mailed by First Class Mail, postage prepaid, addressed
as follows:
As to the City: As to the Caterer:
Amy Spooner Jim and/or Mary Catherine Walsh
Centre Customer Service Manager Cuisine America, Inc.
The Centre of Elgin 403 Bluff City Boulevard
100 Symphony Way Elgin, IL 60120
Elgin, IL 60120
13.07. This license agreement is and shall be construed to be a joint and collec-
tive work product of the City and the Caterer and, as such, this license agreement shall
not be construed against the other party, as the otherwise purported drafter of same, by
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any court of competent jurisdiction in order to resolve any inconsistency, ambiguity,
vagueness or conflict, if any, of the terms and provisions contained herein.
13.08. This license agreement shall be binding on the parties hereto and their re-
spective successors and permitted assigns. This license agreement and the obligations
herein may not be assigned by the Caterer without the express written consent of the
City which consent may be withheld at the sole discretion of the City.
13.09. Notwithstanding any other provision of this Agreement, it is expressly
agreed and understood that, in connection with the performance of this Agreement, the
Caterer shall comply with all applicable federal, state, city and other requirements of
law, including, but not limited to, any applicable requirements regarding prevailing wag-
es, minimum wage, workplace safety and legal status of employees. Without limiting
the foregoing, Caterer hereby certifies, represents and warrants to the City that all Ca-
terer's employees and/or agents who will be providing products and/or services with re-
spect to this Agreement shall be legal residents of the United States. Caterer shall also,
at its expense, secure all permits and licenses, pay all charges and fees and give all no-
tices necessary and incident to the due and lawful prosecution of the work, and/or the
products and/or services to be provided for in this Agreement. The City shall have the
right to audit any records in possession or control of the Caterer to determine the Cater-
er's compliance with the provision of this section. In the event the City proceeds with
such an audit, the Caterer shall make available to the City the Caterer's relevant rec-
ords at no cost to the City. Caterer shall pay any and all costs associated with any such
audit.
IN WITNESS WHEREOF, the undersigned have entered into executed this
agreement on the date and year first written above.
CITY OF ELGIN, a municipal CATERER
Corporation
By By .
City Manager
Attest:
City Clerk
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