DATED THIS
DAY OF
2015
INSERT FULL NAME OF CATERER HERE (1)
AND
DERRY CITY AND STRABANE DISTRICT COUNCIL (2)
AGREEMENT
FOR THE PROVISION OF CAFÉ OPERATION AT THE FOYLE ARENA, DERRY
Derry City and Strabane District Council
Legal Services Department
Council Offices
98 Strand Road
DERRY
BT48 7NN
1
THIS AGREEMENT is dated the
(1)
day of
2015 and made between:
(name)[a company incorporated in XXXXX under company number XXXXX] [of (address)
whose registered office is at (address)] (the 'Caterer'); and
(2)
DERRY CITY AND STRABANE DISTRICT COUNCIL of Council Offices, 98 Strand
Road, Derry, BT48 7NN (the 'Council’).
NOW IT IS AGREED as follows:
1
Definitions
In this Agreement, the following expressions will have the following meanings:
‘Café’
means the kitchen, store-room[s], preparation and service area[s],
dining room[s] and other accommodation from time to time appointed for the purpose of a café at the Establishment;
‘Establishment’
means the Foyle Arena, Derry;
‘Fee’
means the sum of [
] sterling per month payable by the Cater-
er to the Council on the first calendar day in each month for the duration of the Term;
‘Parties’
means the Caterer and the Council, and ‘Party’ will mean either one
of them;
‘Term’
means the period of three (3) years commencing on and including
the date of this Agreement.
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The Caterer's obligations
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2.1
The Caterer will establish and operate a café and associated public catering facilities and
services for the benefit of members of the public, including visitors, users, guests of the
Council and persons employed by the Council at the Establishment (’the Public’).
2.2
The Caterer will provide a high quality offering which embodies efficient service, cleanliness and cost effectiveness commensurate with the surroundings of the Establishment.
2.3
The Caterer will provide, supply and serve for consumption in the Café to the Public who
wish to purchase them hot and cold snacks, meals or other food between the hours of
(specify) daily and hot and cold non-alcoholic beverages and light refreshments between
the hours of (specify) daily such food, beverages and light refreshments to be in accordance with the specification set out in Schedule 1.
2.4
Subject to the generality of clause 2.3, there will be an onus on the Caterer to at all times
offer and have available for purchase by the Public a range of healthy eating options.
2.5
The prices to be charged for the snacks, meals, food, beverages and light refreshments
referred to in clause 2.3 will be reasonable having regard to the quality of the service required by Council and will initially not exceed the prices respectively set out in Schedule
1 and after that will not be increased except in accordance with the provisions of clause
3.14.
2.6
The Caterer will pay to the Council the Fee for the duration of the Term of this Agreement. [Insert here additional information in relation to payment mechanism if required].
2.7
The Caterer will operate the Café in accordance with the operational terms and conditions set out in clause 3 of this Agreement.
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The Caterer’s operational terms and conditions
The Caterer will at all times during the Term of this Agreement:
3.1
pay all rates taxes assessments and outgoings imposed or charged upon or in respect of
the Café;
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3.2
pay for all gas and electricity and other services used in the Café as shown by the separate meters installed in the Café;
3.3
order, provide, supply and pay for all food, beverages, refreshments and ingredients of
sound quality to be used in the preparation of meals for service in the Café;
3.4
only store food and other materials in the Café which are intended for use in connection
with the catering operation carried on there pursuant to the terms of this Agreement;
3.5
provide and employ an adequate number of competent and properly trained staff for the
purpose of preparing and serving food and beverages in the Café and to ensure that all
staff are suitably dressed and presented;
3.6
pay rates of wages to employees/ staff and observe hours and regulations of labour no
less favourable than those established within the catering industry prevailing in Northern
Ireland from time to time;
3.7
ensure that an appropriately qualified duty manager is in attendance at the Café at least
thirty minutes before the Café opens for business as defined in clause 2.3;
3.8
ensure that safe working practices are carried out at all times by employees/ staff at the
Café and that they comply with all relevant Health and Safety legislation and regulations;
3.9
upon being required in writing by the designated manager of the Establishment of the
Council to do so, remove any employee of the Caterer employed in the Café who in the
opinion of the designated manager is guilty of behaviour that the Council considers is
prejudicial to the conduct of the Establishment or to the interests of the Council;
3.10
to take all reasonable precautions to prevent any disorderly conduct within the Café and
in the event of disorderly conduct occurring to take immediately effective steps as are legally and practically possible to bring such conduct to an end whether by disciplining or
dismissing any member of the Caterer’s staff or by evicting from the Café any other person involved;
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3.11
subject to agreement being reached between the Council and the Caterer on the rate of
payment, to make available staff and equipment to provide and serve tea, coffee, snacks
and light refreshments for events hosted by the Council within the Establishment and to
clean and wash up afterwards;
3.12
to maintain in good order and repair all of the fixtures fittings equipment and furniture
specified in Schedule 2 of this Agreement and to replace and/ or renew with items of like
quality if they are destroyed or damaged or become beyond economic repair during the
Term of this Agreement;
3.13
maintain high standards of hygiene and general cleanliness in the preparation use handling and service of food and beverages and all fittings utensils equipment and tableware
and to ensure compliance with all statutory requirements affecting the same (including
the Food Safety (NI) Order 1991, the Food Hygiene (General Regulations) (NI) 1995)
and all relevant Codes of Practice and in the services to be provided under this Agreement generally and to keep the Café and all kitchen equipment, utensils, tables and
chairs clean and in a tidy and orderly state;
3.14
not increase the price of any meals, beverages or refreshments to be supplied under this
Agreement [without first obtaining the approval of the Council and/ or giving to the Council at least [14] days' notice in writing of any such increase];
3.15
to provide a discount of twenty per cent (20%) to Council employees on the price of any
meals, beverages or refreshments purchased by them at the Café;
3.16
make such satisfactory arrangements as are necessary for the removal and disposal of
waste from the Café and for the cleaning and safety of all areas under the Caterer’s control;
3.17
not to discharge any noxious or deleterious substances into the drains and pipes serving
the Café;
3.18
at [its (or) his] own cost supply, maintain, replace and renew as necessary:
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(i)
all furniture and first aid articles and equipment and kitchen and cooking
utensils and implements used in the Café, and
(ii) light utensils required in connection with the operation of the Café including
all glass, crockery, cutlery, table coverings, linen, catering staff uniforms and
protective clothing.
3.19
supply and maintain all furniture, décor and services required for the Café and ensure
that the integrity and consistency of the overall fit out is to the satisfaction of Council.
The approval of Council is required for all designs and branding for the Café prior to installation of said furniture, décor and/ or services;
3.20
be responsible for the replacement of any items of equipment or furniture which may be
damaged or destroyed through the negligence of the Caterer or its employees;
3.21
to be responsible for the routine replacement of all crockery and cutlery which require to
be replaced from time to time as a result of breakages and wear and tear;
3.22
maintain for Council all statistics required in connection with the operation of the Café
and submit to Council quarterly statements of turnover and throughput volume if required;
3.23
on the termination of this Agreement to yield up to the Council the Café and the Council’s equipment detailed in Schedule 2 in such order and repair as is required by the
terms of this Agreement;
3.24
be liable for and fully indemnify Council against any injury, loss or damage to any person
or property (including the Council’s employees and the Council’s property) caused by the
negligence of the Caterer, its employees or agents and to indemnify the Council against
any costs, claims and expenses whatsoever in respect thereof;
3.25
maintain insurance cover against any such injury, loss and damage referred to in clause
3.24 providing for cover of up to £5,000,000 (five million pounds sterling) in respect of
any one claim and to produce evidence to Council that such insurance cover is in force
when requested by Council;
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3.26
provide and maintain adequate security provisions for the Café;
3.27
obtain the prior approval of Council to the use of any promotional and advertising literature before use in connection with the Café;
3.28
permit authorised Council employees and agents to have access to and inspect the Café, as and when required;
3.29
comply with all reasonable regulations and directions issued by Council for the good
management of the Café and the Establishment;
3.30
comply with the Council’s current ‘No Smoking’ policy and any changes which might be
made to that policy during the Term of this Agreement;
3.31
not to provide any external catering services from the Café without first obtaining the
written consent of Council;
3.32
[notify the Council forthwith of any matters connected with the Café in respect of which
repairs and/ or maintenance may be required;]
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The Council’s obligations
The Council will:
4.1
make such security arrangements as the Council will in its discretion from time to time
decide for the protection of the Café at all times when the Establishment is closed;
4.2
not itself carry on or permit or suffer any other person to carry on any catering business
within the Establishment in direct competition to the Café PROVDED THAT the provision
by Council of vending machines in the Establishment for the sale of beverages and
snacks will not be in breach of this clause 4.2;
4.3
provide the Caterer with such information as may be necessary from time to time to identify the persons who may be served with meals in the Cafe;
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4.4
permit the Caterer for the purpose of fulfilling [its (or) his] obligations under this Agreement to have full licence and liberty to enter upon and use the Cafe and the fixtures fittings equipment and furniture specified in Schedule 2;
4.5
permit the Caterer's employees and agents to have full and free access to and from the
Cafe if and so far as will be necessary for the purposes of this Agreement at all times by
day [and night] except when the Establishment is closed [at weekends or] for holidays or
by reason of strikes or lockouts;
4.6
supply the Café with the items listed in Schedule 2.
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VAT
5.1
All sums payable under this Agreement unless otherwise stated are exclusive of VAT
and other duties or taxes.
5.2
Any VAT or other duties or taxes payable in respect of such sums will be payable in addition to such sums.
6
Termination [by notice]
6.1
Either Party may at any time determine this Agreement by giving to the other [3] months'
notice in writing.
7
Termination on default etc
Either Party may at any time by written notice (in addition to any other rights) terminate
this Agreement immediately and without liability for compensation or damages if:
7.1
the other fails to comply with any of [its (or) his] obligations under this Agreement or any
agreement supplemental to it and the failure (if capable of being remedied) remains unremedied for [14] days after being called to [its (or) his] attention by written notice from
the Party not in default;
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7.2
the Caterer purports to assign or charge all or any of [its (or) his] rights and obligations
under this Agreement;
7.3
there is any change in the identity of all or any of the Caterer's directors, senior managers
or executives;
7.4
for any reason anything is done or is omitted to be done as a result of which the Caterer
is or is liable to be struck off the Register of Companies;
7.5
the Caterer convenes a meeting of its creditors or suffers a petition to be presented or a
meeting to be convened or other action to be taken with a view to its liquidation except
(with the written approval of the Council) for the purposes of and followed by amalgamation or reconstruction; or
7.6
a receiver or administrative receiver is appointed of any of the Caterer's property.
8
Option to renew
8.1
If the Caterer desires to renew this Agreement at the end of the Term the Caterer shall
before [insert date which is six months before expiry of the Term] give to the Council prior notice in writing and pay the Fee reserved by and the perform the conditions on the
part of the Caterer contained in this Agreement up to the date of expiry of the Term the
Council will enter into a new agreement with the Caterer for the operation of the Café for
a term of twelve months at a Fee to be valued in accordance with clause 8.2 on such
terms and conditions as the Council so requires and agreed between the Parties PROVIDED THAT if the Caterer does not serve notice in accordance with this clause 8.1 or
having served notice the Parties are unable to come to agreement on the terms and
conditions of the new agreement then this Agreement will automatically terminate on the
expiration of the Term as defined herein.
8.2
The Fee in the renewal Agreement will be such sum as is certified in writing by Land and
Property Services as the fair market fee for the operation of the Café.
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8.3
The decision as to the renewal of this Agreement will belong to Council and will be final
and binding on the Parties.
9
Rights cumulative
All rights granted to either of the Parties will be cumulative and no exercise by either of
the Parties of any right under this Agreement will restrict or prejudice the exercise of any
other right granted by this Agreement or otherwise available to it.
10
Survival of terms
No term will survive expiry or termination of this Agreement unless expressly provided.
11
Waiver
The failure by either Party to enforce at any time or for any period any one or more of the
terms or conditions of this Agreement will not be a waiver of them or of the right at any
time subsequently to enforce all terms and conditions of this Agreement.
[12
Status of the Caterer (insert where caterer is an individual)
12.1
During the term of this Agreement the Caterer will be an independent contractor and not
the servant or agent of the Council.
12.2
In such capacity the Caterer will bear exclusive responsibility for the payment of his national insurance contributions as a self-employed person and for discharge of any income tax and VAT liability arising out of remuneration for his work performed by him under this Agreement.
12.3
The Caterer will not be subject to directions from the Council as to the manner in which
he will perform his work.]
13
Costs
10
Each of the Parties will pay any costs and expenses incurred by [it (or) it or him] in connection with this Agreement.
14
No assignment or sub-contracting
The Caterer will not assign or sub-contract any of [its (or) his] rights or duties under this
Agreement without the consent in writing of the Council (such consent not to be unreasonably withheld or delayed).
15
Notices
15.1
Any notice to be given under this Agreement will be in writing and will be sent by first
class mail or air mail, or by facsimile or e-mail (confirmed by first class mail or air mail),
to the address of the relevant Party set out at the head of this Agreement, or to the relevant facsimile number set out below, or such other address or facsimile number as that
Party may from time to time notify to the other Party in accordance with this clause. The
relevant contact information for the Parties is as follows:
15.2
Caterer:
(fax number and e-mail address)
Council:
(fax number and e-mail address)
Notices sent as above will be deemed to have been received 3 working days after the
day of posting (in the case of inland first class mail), or 7 working days after the date of
posting (in the case of air mail), or on the next working day after transmission (in the
case of facsimile messages, but only if a transmission report is generated by the sender's facsimile machine recording a message from the recipient's facsimile machine, confirming that the facsimile was sent to the number indicated above and confirming that all
pages were successfully transmitted), or next working day after sending (in the case of
e-mail).
15.3
In proving the giving of a notice it will be sufficient to prove that the notice was left, or
that the envelope containing the notice was properly addressed and posted, or that the
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applicable means of telecommunication was addressed and dispatched and dispatch of
the transmission was confirmed and/or acknowledged as the case may be.
16
Law and jurisdiction
The validity, construction and performance of this Agreement will be governed by the
laws of Northern Ireland and will be subject to the exclusive jurisdiction of the Courts of
Northern Ireland to which the Parties submit.
17
Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999, and notwithstanding
any other provision of this Agreement, this Agreement is not intended to, and does not,
give any person who is not a party to it any right to enforce any of its provisions.
18
Confidentiality
18.1
Each Party to this Agreement shall keep its terms confidential to itself and its authorised
employees and officers.
18.2
The Parties shall treat as confidential the content of this Agreement, the prior negotiations and the information that they have made available to each other within this scope.
18.3
The Parties shall not be allowed to make any announcements to third parties concerning
the content of this Agreement, the negotiations and the information, unless obliged by
law or mutually agreed upon.
19
General clauses
19.1
This Agreement represents the whole and only agreement between the Parties in relation to the operation of the Cafe. This Agreement contains all the terms agreed between
the Parties and no verbal statements or representations by any party or by their respective agents shall form any part of this Agreement and any variation or modification of this
Agreement must be in writing.
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19.2
If all or any part of any provision of this Agreement shall be or become illegal, invalid or
unenforceable in any respect, then the remainder of such provision and/or all other provisions of this Agreement shall remain valid and enforceable and the remaining liability of
the Caterer under this Agreement shall not be affected or impaired.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and affixed their seals
the day and year first herein written.
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SCHEDULE 1
[Specification of Meals, Beverages and Light Refreshments to be Supplied and Prices at which
they are to be Supplied Initially]
14
SCHEDULE 2
[Inventory of Council's Fixtures, Fittings, Equipment and Furniture]
List here all of the Council’s assets which are included in the Agreement – includes tables and
chairs (list type and number of them)
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EXECUTED as a DEED
By the CATERER
Acting by
In the presence of:
____________________________
Authorised Signatory
____________________________
Authorised Signatory
EXECUTED as a DEED
By the COUNCIL
Acting by
In the presence of:
____________________________
Mayor
____________________________
Chief Executive
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