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Structuring Your 'Event/Food Service' Occupancy Agreement to Service Mixed-use Tenants
Much has been written in connection with retail leases in “mixed-use” projects. Retail, office and living spaces coexist in mixed-use developments ' and such developments are currently one of the hottest concepts in many major metropolitan areas. As the concept evolves and grows, other components have been and are being added, such as entertainment (e.g., theaters, bowling alleys and billiards), hotel, civic and cultural offerings. In addition, these mixed-use developments are being sought out for events by event planners, companies seeking meeting spaces not accommodated within their office space, promotional events, civic meetings and events sponsored by arts and cultural organizations.
There is an opportunity to enhance mixed-use projects by developing “event space” to accommodate these needs. Several options are available to structure an occupancy arrangement for these events. This article briefly discusses some of the options available, and items you may want to include in your transaction.
1. The Lease
The Owner may lease to a single tenant such as a “Party House” operator (“Tenant”) for an operation/facility containing several meeting rooms/ballrooms for use for special events (meetings and conferences, concerts, plays, civic and cultural events, company team building meetings, exhibitor halls, fashion shows, holiday parties, weddings and receptions). As part of its operation, the Tenant will make all arrangements with vendors for scheduled events. The Lease Agreement should contain all the normal Lease provisions for a retail/restaurant tenant, including a tight use clause, plus special clauses to cover the “event space” requirements owner is seeking for the enhancement of the mixed-use development. More on the Special Clauses herein.
2. The Event Service/Management/Operation Agreement
The Owner may want to control the real estate to be used for events, and enter into an operation/management agreement with an operator whereby the Owner gives up the operational control, subject to certain requirements of the Owner, but reserves the right to step in if issues arise. In this type of arrangement, the operator will be responsible for the day-to day operation of the facility and for providing the needed services/accommodations desired by the Owner to enhance the mixed-use project. The Owner may finance the build-out, including the space and kitchen facilities. The Owner may also provide the furnishings, speaker systems, table ware, linens and serving equipment.
The management/operation Agreement should set forth the rights and obligations of each party, including but not limited to the initial build-out, furnishing of equipment and trade fixtures and the many obligations you typically find in shopping center leases such as the responsibility for common area maintenance, repairs, access and parking. The issue of the trade name for the event space and which party owns and controls the name should be addressed. If you have an operator with a national or regional reputation, the trade name of the operator will be important to the success of the operation but it will also require the Owner to allow the operator a great deal of flexibility in its operation so that the operator may operate the facility in a similar (and hopefully successful) fashion as it operates other facilities. It is important that the public gets the services and quality that is common and expected at facilities operated under the trade name.
The compensation for each party also needs to be addressed. Various economic scenarios may be used to compensate both the Owner and the operator for their investments and efforts in the endeavor. There may be a fee paid by the operator similar to a rent with a percentage payment clause similar to percentage rent based on a formula to be determined. Another compensation method may be to pay the operator a base fee based on a certain percentage of income with some increased ability to earn more money if certain breakpoint/threshold amounts are reached. In the alternative, you may want to start with the Owner receiving a base payment to guaranty that the Owner receives a minimum return on its investment.
The Owner and operator may split the proceeds on some basis after deducting certain agreed upon operating expenses. The Owner will want to insure that the operator is charging fees that are profitable. Some form of budget approval or at least a minimum built-in profit margin for various services should be established and included in the formula so that a high gross income received at a net loss is not a windfall to the operator. An annual meeting of the parties to determine pricing may be a necessary part of any method used to determine compensation of the parties.
The compensation formula must consider capital improvement and expense items to be paid to keep the facility in first class condition and repair. Who will bear the responsibility for the everyday repairs (the operator) versus capital replacement of the chairs, tables, flooring, kitchen equipment, etc. (the Owner)? All the detail and responsibility must be spelled out in the operating Agreement and requirements for reporting income, expenses and days of use of each event room should be included. The Owner's employees may have certain obligations and the operator's employees may have certain responsibilities. Will the Owner's employees undertake cleaning responsibilities inside and outside? Will it include the cleaning of the kitchen or ' similar to a lease ' will the Owner take the responsibility for the outside areas such as the entrances, loading docks and compactor areas and leave the remainder to the operator? Utilities, taxes, typical common area maintenance expenses and insurance cost must be factored in as part of the compensation formula.
It is important for the Owner to reserve a termination right if income received does not meet certain levels, or if the operation does not meet certain criteria (cleanliness and service to name a few). The Owner will have a big investment to protect and if the operator or the use is not producing results, or if the operator is not enhancing the overall experience for the mixed-use development, the Owner will want the opportunity to remerchandise all or a portion of the space or select a different operator.
3. The License Agreement
Depending on the anticipated type of user and type of use for the event space, the Owner may want to build out the space and provide all trade fixtures and equipment and license its use to individual end users. For example, major office tenants may want to use the space for annual meetings, client conferences, promotional conferences and training/instructional seminars. Retail tenants may want to use the space for large promotions (spring runway shows for fashion clothing stores or bridal stores). Cultural events or civic meetings may need space. Various groups may want to license the space for concerts, speeches or instructional workshops.
Licensing may allow for each tenant to use its own vendors to provide food service, tables and chairs, lighting, sound systems, etc. or they may use such items as the Owner may provide. The licensing period may be on a daily basis or may be for periodic dates (for example, license the space to a restaurant operation to use the facility every Friday and Saturday evening or for a restaurant to offer lunch service to office workers Monday through Friday). The Owner may also consider a license to a caterer for the use of the kitchen.
The License Agreement option allows the Owner a lot of control and flexibility over the event facility, and should be a simpler to prepare than a lease or Operating Agreement, as the license is for a short duration and for a specific event use. However, the License Agreement still needs to include basic provisions similar to the lease, including the exact time and area licensed, the equipment included, the fee to be paid, insurance and indemnitee provisions, cleaning requirements, repair of any damage, provisions for security and a requirement for the licensee to obtain all necessary permits for its event. Because the specific use for a specific event should be known, a very tight use clause for the event should be included in the License Agreement.
Special Clauses
No matter what structure you want to use (lease, operating agreement or license (collectively sometimes referred to as the “Agreement”), there are several “Special Clauses” you may want to include in your Agreement.
As with any construction to be undertaken on a client's property, the property owner will want to have approval rights over plans and specifications for the construction of the premises. With any food service/restaurant operation, the planning of the kitchen ' and especially the exhaust system and grease traps ' needs to be vetted very carefully in order to prevent the “ugly” parts of a food service/restaurant operation from having a negative impact on the remainder of the mixed-use project. Depending on the use permitted, sound attenuation should be dealt with upfront so that any music systems or speaker systems used do not emit noise outside the venue.
The premises should be able to accommodate the anticipated needs of the mixed-use project. For example, improvements to the premises may include a stage for plays, speakers or concerts. Will there be movable walls to arrange for small and large meetings and allow for art gallery displays? Will sound systems and lighting be easily changed to accommodate various events? All these requirements need to be included in the Agreement.
The possible uses of the event facility are numerous, and including certain categories of use in the Agreement is a detail that should not be overlooked. As an example of what may be included, consider food service needs such as an operation of a restaurant or a bar open on a daily basis as part of the use. Also consider requiring food catering from the premises for service to the office building and other business as well as residences within the mixed-use project. Would a music venue enhance the project? Various forms of entertainment may be scheduled for the event facility. Provisions should be required for inclusion of such events in the Agreement. The right of the Owner to participate in the marketing and scheduling of events should also be included.
At a minimum, include as a requirement the following: conference space for office tenants, catering for both the residential and business tenants in the project and other special needs of a particular use or tenant in the project. For example, if a civic association for the arts is part of the project and it sponsors various art shows throughout the year, the event operator (whether a tenant, operator or licensee) should be required to accommodate the art shows in its facilities so that the shows do not go elsewhere and thus lose the foot traffic that should come to the mixed-use project. As a quid pro quo , the commercial leases and operating agreements with other occupants of the project should require the use of the event facility.
Build in some minimal use of the event facility by the office tenants and certain retailers ( i.e. , a bridal store may host a runway event a few times a year at the event facility) of the project. This will entail arranging for pricing, scheduling dates for events and the square footage of event space to be occupied, along with other services such as music, food and beverage services. Again, the Owner may require certain tenants in the project to commit to the use of the event facility for a certain number of days and possibly charge a fee to each tenant to allow them to “bid” on the available dates. If the agreement is crafted to accommodate the anticipated needs of all tenants of the project, an opportunity will exist for the operator, tenants and the Owner of the project to receive added value for their businesses due to the opportunity to use the event facility to enhance operations at the project. The tenants leasing space in the project are given use of a large event space within the project to supplement their current space, and the operator gets upfront commitments for its operation.
A method of scheduling events that will prioritize the needs of the tenants in the project should be established. Ensure that office tenants have an opportunity to use the event space during weekly office hours (Monday through Friday from 7:00 a.m. through 6:00 p.m.). Civic and entertainment events will likely be popular during evenings and weekends as will the use by retailers for promotional events. Use for party/celebrations such as weddings will also be popular on evenings and weekends. A primary user of the event space, which commits to certain periodic use, should be given a priority for its scheduled events. The Owner may want to grant a priority to office users during office hours, and other uses (mentioned above) during evening hours and weekends and grant a priority to any restaurant user that will operate in the space on a daily or weekly basis (if such a use is to be part of the event space).
Provisions for a shared data base with access by both the Owner and the Tenant under a lease or the operator under and operating agreement should be included in the agreement along with periodic meetings to discuss scheduling and approval rights of the parties involved. The Owner will want to make sure that the mix of scheduled events is of the quality and type of use that positively promote the entire mixed-use project and upfront discussions with respect to the mix of events should be part of the process in selecting an operator. The Owner may want to reserve a priority right to use the space (for a certain number of times per year) upon some advance notice, providing the space has not already been scheduled to a third party. If the preferred priority use of the event space for the time frames mentioned above has not been scheduled on or before some agreed-upon date, then the time frame should be opened for any event that is in keeping with the quality and type of use that positively promotes the project.
There should be a joint effort on the marketing of the event facility so that the facility is well used. In connection with the scheduling component, do not forget to address the telephone and computer systems to be shared for reservations/scheduling, common telephone numbers, web addresses and websites to be used by the Owner and Operator to schedule and promote reservations and events. A determination of the Owner of the telephone numbers, web addresses and websites should be considered. The determination of the party primarily responsible for the scheduling and the rights of the non-scheduling party to participate in the scheduling of events is critical to a good working relationship between the parties. The scheduling process should be considered a work in process until the type of users have been established and necessary lead times for reservations have been determined. Periodic meetings should be scheduled to review and modify whatever scheduling process is put in place in order to fine tune the process.
Consider adding a requirement that the occupant use vendors from the existing tenants in the project. For example, if you have a bridal shop in the project, it should be one of the preferred vendors to be used by the Operator for a bridal show, so long as such vendor is open and operating in the project. What about your restaurant tenants? If the Operator contracts out for the food service for various events should the Operator be required to use an open and operating restaurant within the project or at least allow that tenant or tenants to be on the preferred vendor list?
Last, build in stringent responsibilities for the cleaning of the kitchen and the event facility after each use. Kitchen cleaning should include periodic maintenance of the grease trap and vent system and specific directions for the cleaning of each of those systems as well as the remainder of the kitchen. The Owner will want to control the cleaning and have rights of inspection.
Conclusion
Three possible arrangements have been reviewed above to accommodate the entry of an event facility offering at a mixed-use project. There are others that may work for the type of event venue envisioned by your client. The goal is to enhance the occupancy and the businesses of tenants at the project. Various points discussed above that have been discussed as part of a particular type of agreement may (and should) be inserted in whatever type of agreement you draft in order to accomplish the vision of your client. The end Agreement may very well be part lease, part license, part food service and part operation agreement to accomplish the Owner's objective.
This article is a short discussion of the minimal items to address in event facility agreements. More than likely, you will want to add more detail to the terms of your agreement, as each one will vary greatly from venue to venue, depending on the size and scope of the mixed-use project and the potential users of the facility. Be creative in structuring your Agreement so that each party has the flexibility to use the facility for their intended use and also to make sure that each party has the flexibility to operate in a manner that will allow such party to achieve its economic goals.
Much has been written in connection with retail leases in “mixed-use” projects. Retail, office and living spaces coexist in mixed-use developments ' and such developments are currently one of the hottest concepts in many major metropolitan areas. As the concept evolves and grows, other components have been and are being added, such as entertainment (e.g., theaters, bowling alleys and billiards), hotel, civic and cultural offerings. In addition, these mixed-use developments are being sought out for events by event planners, companies seeking meeting spaces not accommodated within their office space, promotional events, civic meetings and events sponsored by arts and cultural organizations.
There is an opportunity to enhance mixed-use projects by developing “event space” to accommodate these needs. Several options are available to structure an occupancy arrangement for these events. This article briefly discusses some of the options available, and items you may want to include in your transaction.
1. The Lease
The Owner may lease to a single tenant such as a “Party House” operator (“Tenant”) for an operation/facility containing several meeting rooms/ballrooms for use for special events (meetings and conferences, concerts, plays, civic and cultural events, company team building meetings, exhibitor halls, fashion shows, holiday parties, weddings and receptions). As part of its operation, the Tenant will make all arrangements with vendors for scheduled events. The Lease Agreement should contain all the normal Lease provisions for a retail/restaurant tenant, including a tight use clause, plus special clauses to cover the “event space” requirements owner is seeking for the enhancement of the mixed-use development. More on the Special Clauses herein.
2. The Event Service/Management/Operation Agreement
The Owner may want to control the real estate to be used for events, and enter into an operation/management agreement with an operator whereby the Owner gives up the operational control, subject to certain requirements of the Owner, but reserves the right to step in if issues arise. In this type of arrangement, the operator will be responsible for the day-to day operation of the facility and for providing the needed services/accommodations desired by the Owner to enhance the mixed-use project. The Owner may finance the build-out, including the space and kitchen facilities. The Owner may also provide the furnishings, speaker systems, table ware, linens and serving equipment.
The management/operation Agreement should set forth the rights and obligations of each party, including but not limited to the initial build-out, furnishing of equipment and trade fixtures and the many obligations you typically find in shopping center leases such as the responsibility for common area maintenance, repairs, access and parking. The issue of the trade name for the event space and which party owns and controls the name should be addressed. If you have an operator with a national or regional reputation, the trade name of the operator will be important to the success of the operation but it will also require the Owner to allow the operator a great deal of flexibility in its operation so that the operator may operate the facility in a similar (and hopefully successful) fashion as it operates other facilities. It is important that the public gets the services and quality that is common and expected at facilities operated under the trade name.
The compensation for each party also needs to be addressed. Various economic scenarios may be used to compensate both the Owner and the operator for their investments and efforts in the endeavor. There may be a fee paid by the operator similar to a rent with a percentage payment clause similar to percentage rent based on a formula to be determined. Another compensation method may be to pay the operator a base fee based on a certain percentage of income with some increased ability to earn more money if certain breakpoint/threshold amounts are reached. In the alternative, you may want to start with the Owner receiving a base payment to guaranty that the Owner receives a minimum return on its investment.
The Owner and operator may split the proceeds on some basis after deducting certain agreed upon operating expenses. The Owner will want to insure that the operator is charging fees that are profitable. Some form of budget approval or at least a minimum built-in profit margin for various services should be established and included in the formula so that a high gross income received at a net loss is not a windfall to the operator. An annual meeting of the parties to determine pricing may be a necessary part of any method used to determine compensation of the parties.
The compensation formula must consider capital improvement and expense items to be paid to keep the facility in first class condition and repair. Who will bear the responsibility for the everyday repairs (the operator) versus capital replacement of the chairs, tables, flooring, kitchen equipment, etc. (the Owner)? All the detail and responsibility must be spelled out in the operating Agreement and requirements for reporting income, expenses and days of use of each event room should be included. The Owner's employees may have certain obligations and the operator's employees may have certain responsibilities. Will the Owner's employees undertake cleaning responsibilities inside and outside? Will it include the cleaning of the kitchen or ' similar to a lease ' will the Owner take the responsibility for the outside areas such as the entrances, loading docks and compactor areas and leave the remainder to the operator? Utilities, taxes, typical common area maintenance expenses and insurance cost must be factored in as part of the compensation formula.
It is important for the Owner to reserve a termination right if income received does not meet certain levels, or if the operation does not meet certain criteria (cleanliness and service to name a few). The Owner will have a big investment to protect and if the operator or the use is not producing results, or if the operator is not enhancing the overall experience for the mixed-use development, the Owner will want the opportunity to remerchandise all or a portion of the space or select a different operator.
3. The License Agreement
Depending on the anticipated type of user and type of use for the event space, the Owner may want to build out the space and provide all trade fixtures and equipment and license its use to individual end users. For example, major office tenants may want to use the space for annual meetings, client conferences, promotional conferences and training/instructional seminars. Retail tenants may want to use the space for large promotions (spring runway shows for fashion clothing stores or bridal stores). Cultural events or civic meetings may need space. Various groups may want to license the space for concerts, speeches or instructional workshops.
Licensing may allow for each tenant to use its own vendors to provide food service, tables and chairs, lighting, sound systems, etc. or they may use such items as the Owner may provide. The licensing period may be on a daily basis or may be for periodic dates (for example, license the space to a restaurant operation to use the facility every Friday and Saturday evening or for a restaurant to offer lunch service to office workers Monday through Friday). The Owner may also consider a license to a caterer for the use of the kitchen.
The License Agreement option allows the Owner a lot of control and flexibility over the event facility, and should be a simpler to prepare than a lease or Operating Agreement, as the license is for a short duration and for a specific event use. However, the License Agreement still needs to include basic provisions similar to the lease, including the exact time and area licensed, the equipment included, the fee to be paid, insurance and indemnitee provisions, cleaning requirements, repair of any damage, provisions for security and a requirement for the licensee to obtain all necessary permits for its event. Because the specific use for a specific event should be known, a very tight use clause for the event should be included in the License Agreement.
Special Clauses
No matter what structure you want to use (lease, operating agreement or license (collectively sometimes referred to as the “Agreement”), there are several “Special Clauses” you may want to include in your Agreement.
As with any construction to be undertaken on a client's property, the property owner will want to have approval rights over plans and specifications for the construction of the premises. With any food service/restaurant operation, the planning of the kitchen ' and especially the exhaust system and grease traps ' needs to be vetted very carefully in order to prevent the “ugly” parts of a food service/restaurant operation from having a negative impact on the remainder of the mixed-use project. Depending on the use permitted, sound attenuation should be dealt with upfront so that any music systems or speaker systems used do not emit noise outside the venue.
The premises should be able to accommodate the anticipated needs of the mixed-use project. For example, improvements to the premises may include a stage for plays, speakers or concerts. Will there be movable walls to arrange for small and large meetings and allow for art gallery displays? Will sound systems and lighting be easily changed to accommodate various events? All these requirements need to be included in the Agreement.
The possible uses of the event facility are numerous, and including certain categories of use in the Agreement is a detail that should not be overlooked. As an example of what may be included, consider food service needs such as an operation of a restaurant or a bar open on a daily basis as part of the use. Also consider requiring food catering from the premises for service to the office building and other business as well as residences within the mixed-use project. Would a music venue enhance the project? Various forms of entertainment may be scheduled for the event facility. Provisions should be required for inclusion of such events in the Agreement. The right of the Owner to participate in the marketing and scheduling of events should also be included.
At a minimum, include as a requirement the following: conference space for office tenants, catering for both the residential and business tenants in the project and other special needs of a particular use or tenant in the project. For example, if a civic association for the arts is part of the project and it sponsors various art shows throughout the year, the event operator (whether a tenant, operator or licensee) should be required to accommodate the art shows in its facilities so that the shows do not go elsewhere and thus lose the foot traffic that should come to the mixed-use project. As a quid pro quo , the commercial leases and operating agreements with other occupants of the project should require the use of the event facility.
Build in some minimal use of the event facility by the office tenants and certain retailers ( i.e. , a bridal store may host a runway event a few times a year at the event facility) of the project. This will entail arranging for pricing, scheduling dates for events and the square footage of event space to be occupied, along with other services such as music, food and beverage services. Again, the Owner may require certain tenants in the project to commit to the use of the event facility for a certain number of days and possibly charge a fee to each tenant to allow them to “bid” on the available dates. If the agreement is crafted to accommodate the anticipated needs of all tenants of the project, an opportunity will exist for the operator, tenants and the Owner of the project to receive added value for their businesses due to the opportunity to use the event facility to enhance operations at the project. The tenants leasing space in the project are given use of a large event space within the project to supplement their current space, and the operator gets upfront commitments for its operation.
A method of scheduling events that will prioritize the needs of the tenants in the project should be established. Ensure that office tenants have an opportunity to use the event space during weekly office hours (Monday through Friday from 7:00 a.m. through 6:00 p.m.). Civic and entertainment events will likely be popular during evenings and weekends as will the use by retailers for promotional events. Use for party/celebrations such as weddings will also be popular on evenings and weekends. A primary user of the event space, which commits to certain periodic use, should be given a priority for its scheduled events. The Owner may want to grant a priority to office users during office hours, and other uses (mentioned above) during evening hours and weekends and grant a priority to any restaurant user that will operate in the space on a daily or weekly basis (if such a use is to be part of the event space).
Provisions for a shared data base with access by both the Owner and the Tenant under a lease or the operator under and operating agreement should be included in the agreement along with periodic meetings to discuss scheduling and approval rights of the parties involved. The Owner will want to make sure that the mix of scheduled events is of the quality and type of use that positively promote the entire mixed-use project and upfront discussions with respect to the mix of events should be part of the process in selecting an operator. The Owner may want to reserve a priority right to use the space (for a certain number of times per year) upon some advance notice, providing the space has not already been scheduled to a third party. If the preferred priority use of the event space for the time frames mentioned above has not been scheduled on or before some agreed-upon date, then the time frame should be opened for any event that is in keeping with the quality and type of use that positively promotes the project.
There should be a joint effort on the marketing of the event facility so that the facility is well used. In connection with the scheduling component, do not forget to address the telephone and computer systems to be shared for reservations/scheduling, common telephone numbers, web addresses and websites to be used by the Owner and Operator to schedule and promote reservations and events. A determination of the Owner of the telephone numbers, web addresses and websites should be considered. The determination of the party primarily responsible for the scheduling and the rights of the non-scheduling party to participate in the scheduling of events is critical to a good working relationship between the parties. The scheduling process should be considered a work in process until the type of users have been established and necessary lead times for reservations have been determined. Periodic meetings should be scheduled to review and modify whatever scheduling process is put in place in order to fine tune the process.
Consider adding a requirement that the occupant use vendors from the existing tenants in the project. For example, if you have a bridal shop in the project, it should be one of the preferred vendors to be used by the Operator for a bridal show, so long as such vendor is open and operating in the project. What about your restaurant tenants? If the Operator contracts out for the food service for various events should the Operator be required to use an open and operating restaurant within the project or at least allow that tenant or tenants to be on the preferred vendor list?
Last, build in stringent responsibilities for the cleaning of the kitchen and the event facility after each use. Kitchen cleaning should include periodic maintenance of the grease trap and vent system and specific directions for the cleaning of each of those systems as well as the remainder of the kitchen. The Owner will want to control the cleaning and have rights of inspection.
Conclusion
Three possible arrangements have been reviewed above to accommodate the entry of an event facility offering at a mixed-use project. There are others that may work for the type of event venue envisioned by your client. The goal is to enhance the occupancy and the businesses of tenants at the project. Various points discussed above that have been discussed as part of a particular type of agreement may (and should) be inserted in whatever type of agreement you draft in order to accomplish the vision of your client. The end Agreement may very well be part lease, part license, part food service and part operation agreement to accomplish the Owner's objective.
This article is a short discussion of the minimal items to address in event facility agreements. More than likely, you will want to add more detail to the terms of your agreement, as each one will vary greatly from venue to venue, depending on the size and scope of the mixed-use project and the potential users of the facility. Be creative in structuring your Agreement so that each party has the flexibility to use the facility for their intended use and also to make sure that each party has the flexibility to operate in a manner that will allow such party to achieve its economic goals.
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