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HomeMy WebLinkAboutContract 52723 ` CITY SECRETARY CONTRACT NO. 5 ? 3 CONCESSIONAIRE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND MCLIFF PARTNERS, LTD. --.This CONCESSIONAIRE AGREEMENT ("Agreement") is made and entered into by and`6etween the City of Fort Worth, Texas, a home-rule municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager Fernando Costa, and Mcliff Partners, Ltd., a Texas limited partnership ("Concessionaire"), acting by and through its duly authorized representative. The City and Concessionaire and referred to herein individually as a "party" and collectively as the "parties." WHEREAS, the City desires to have Concessionaire sell food from vending machines to patrons of specific locations within the City operated by the Park & Recreation Department and the Neighborhood Services Department; NOW THEREFORE, City and Concessionaire agree as follows: 1. SCOPE Concessionaire shall have the right to place vending machines to sell food at specific locations within the City (`'Vending Locations") which are identified in Exhibit A, which is attached hereto and incorporated herein by reference, in accordance with the terms and conditions of this Agreement. 2. TERM OF AGREEMENT This Agreement shall be effective beginning on August 29, 2019 and be in effect on a month to month basis until terminated by either party after delivery of thirty (30) days' written notice to the other party ("Term"). 3. PAYMENTS Concessionaire agrees to pay City a fee of twenty-one percent (21%) of the gross receipts, less taxes, for all food sales made by Concessionaire pursuant to this Agreement. The only deduction allowed from the gross amount is the sales tax. Concessionaire must deliver to the City a report of the gross sales made at each Vending Location each month. Upon receipt of the gross sales report, the City will invoice Concessionaire for the twenty-one percent (21%) fee. Concessionaire must pay the full amount of the City's invoice within thirty (30) calendar days after receipt of the City's written invoice. Any late payment by the Concessionaire shall bear a service charge of one and one-half percent (I.5%), plus an interest fee in the amount of one and one-half percent (I.5%) per month from the date the payment became due until it is paid. LFT. L RECORD CRETARY RTH, TICConcessionaire Agreement of 9 Mcliff Partners,Ltd. Payments shall be made at 4200 South Freeway, Suite 220, Fort Worth Texas 76115 or at such other place in the City of Fort Worth as the City may hereinafter notify Concessionaire, and shall be made in legal tender of the United States. GROSS RECEIPTS REFERS TO THE TOTAL AMOUNT OF MONEY RECEIVED OR TO BE RECEIVED BY CONCESSIONAIRE OR BY ANY AGENT, EMPLOYEE OR SUBCONTRACTOR FROM ALL SALES, WHETHER FOR CASH OR CREDIT, WHETHER COLLECTED OR UNCOLLECTED, MADE AS A RESULT OF THE RIGHTS GRANTED UNDER THE AGREEMENT; PROVIDED, HOWEVER THAT ANY SALES OR OTHER TAXES IMPOSED BY LOCAL OR FEDERAL LAW WHICH ARE SEPARATELY STATED TO AND PAID BY A PURCHASER OF ANY ITEM SOLD BY CONCESSIONAIRE OR ANYONE ACTING BY OR ON BEHALF OF CONCESSIONAIRE FROM AN AUTHORIZED SERVICE OR ACTIVITY UNDER THIS AGREEMENT AND DIRECTLY PAYABLE TO A TAXING AUTHORITY SHALL BE EXCLUDED FROM THE COMPUTATION OF "GROSS RECEIPTS". FURTHER, SUCH "GROSS RECEIPTS" SHALL INCLUDE ALL MONIES PAID BY A PURCHASER OF ANY SERVICES PROVIDED BY CONCESSIONAIRE. THE SALE OF ANY FOOD THAT IS RETURNED BY THE PURCHASER AND ACCEPTED BY CONCESSIONAIRE EXCLUSIVE OF ANY SALES TAX MAY BE DEDUCTED FROM GROSS RECEIPTS. 4. EQUIPMENT All equipment owned by Concessionaire must be removed from the Vending Locations upon the termination of this Agreement. Any equipment or other property left by the Concessionaire at the Vending Locations for over thirty (30) days will be considered abandoned and will become the property of the City; the City will dispose of the property as it deems appropriate. Any damages to the Vending Locations beyond normal wear and tear caused by Concessionaire will be the responsibility of the Concessionaire. City will send, to Concessionaire, by first class mail, an itemized invoice for any damage to the Vending Locations. Concessionaire agrees to make payment to the City for the Fill amount of any damage caused by Concessionaire to the Vending Locations within thirty (30) days of the date of the itemized invoice. The City assumes no responsibility for any property placed at the Vending Locations by Concessionaire or any agent, officer and/or employee of Concessionaire. Concessionaire hereby expressly releases and discharges City from any and all liability for any property damage or loss arising out of or in connection with, directly or indirectly, the use of the Vending Locations pursuant to this Agreement. 5. TRASH DISPOSAL Concessionaire shall be responsible for proper disposal of all trash generated by Concessionaire at the Vending Locations. 6. LOCATION OF EQUIPMENT Concessionaire Agreement Page 2 of 9 Mcliff Partners,Ltd. The placement of Concessionaire's equipment at each Vending Location shall be determined by the manager of each Vending Location and concessionaire. 7. COMPLIANCE WITH LAWS AND REGULATIONS Concessionaire shall comply with all federal, state, county and city statutes, laws and ordinances including, but not limited to, all local public health, safety and fire regulations, and all such rules and regulations now or hereafter applicable to the Vending Locations or to any adjoining public ways, or as to the manner of use or the conduct of the Concessionaire's business. 8. LICENSES AND PERMITS Concessionaire shall have all valid license and permits necessary to supply the vending services set forth in this Agreement. 9. INSURANCE Concessionaire shall have the following types and amounts of insurance during the Term: Commercial General Liability (CGL): $1,000,000 each occurrence $2,000,000 aggregate limit Coverage shall include but not be limited to the following: premises/operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and as comprehensive as the current Insurance Services Office (ISO) policy. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the City. The Commercial General Liability policy, shall have no exclusions by endorsements that would alter of nullify premises/operations, products/completed operations, contractual, personal injury, or advertising injury, which are normally contained with the policy, unless the City approves such exclusions in writing. Workers'Compensation: Statutory limits Employer's liability $100,000 each accident/occurrence $100,000 Disease - each employee $500,000 Disease - policy limit Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas Workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.), and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee. Automobile Liability - a commercial business policy shall provide coverage on "Any Auto", defined as autos owned, hired and non-owned. $1,000,000 each accident on a combined single limit basis Split limits are acceptable if limits are at least: Concessionaire Agreement Page 3 of 9 Mcliff Partners, Ltd. $250,000 Bodily Injury per person $500,000 Bodily Injury per accident $100,000 Property Damage General Insurance Requirements: • The certificate of insurance shall document the City of Fort Worth, its' officers, employees and volunteers as an "Additional Insured" on all liability policies with the exception of Workers' Compensation policies • All policies shall include a Waiver of Subrogation (Rights of Recovery) in favor of the City of Fort Worth. • The insurers for all policies must be licensed and/or approved to do business in the State of Texas. Except for workers' compensation, all insurers must have a minimum rating of A-: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of the City's Risk Management Department. If the rating is below that required, written approval of Risk Management is required. • Policies shall have no exclusions by endorsements, which, neither nullify or amend, the required lines of coverage, nor decrease the limits of said coverage's unless such endorsements are approved in writing by the City. • Any self-insured retention (SIR), in excess of $25,000.00, affecting required insurance coverage shall be approved by the Risk Management Division of the City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also be approved by Risk Management. • Any deductible in excess of $5,000.00, for any policy that does not provide coverage on a first-dollar basis, must be acceptable to and approved by the City's Risk Management Division • The City shall be entitled, upon written request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions necessary to conform the policy and endorsements to the requirements of this contract. Deletions, revisions, or modifications shall not be required where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. 10. GENERAL INDEMNIFICATIONS CONCESSIONAIRE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, THE CITY, ITS OFFICERS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION OR SUITS, INCLUDING BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, PROPERTY DAMAGE, DAMAGE AND PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER HIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF THE USE AND OCCUPATION OF THE VENDING LOCATIONS BY CONCESSIONAIRE. THIS INDEMNITY PROVISION (INCLUDING, WITHOUT LIMITATION, INDEMNITY FOR COSTS, EXPENSES AND LEGAL FEES) IS SPECIFICALLY INTENDED TO OPERATE AND BE APPLICABLE EVEN IF IT IS ALLEGED OR PROVED THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED AS A WHOLE OR IN PART BY ANY ACT, OMISSION, NEGLIGENCE, Concessionaire Agreement Page 4 of 9 Mcliff Partners,Ltd. GROSS NEGLIGENCE, BREACH OF CONTRACT, INTENTIONAL CONDUCT, VIOLATION OF STATUTE OR COMMON LAW, BREACH OF WARRANTY, PRODUCT DEFECT, STRICT PRODUCT LIABILITY, OR ANY OTHER ACT OR CONDITION WHATSOEVER OF THE CITY OR ITS PROPERTY. 11. CANCELLATION City may cancel this Agreement, without cause, in its entirety by giving thirty (30) days' written notice to the Concessionaire. Concessionaire, without cause, may cancel this Agreement in its entirety by giving thirty (30) days' written notice to the City. 12. GOVERNING LAW/VENUE This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County; Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 13. NOTICES All notices required shall be in writing and sent by certified mail, return receipt requested: To the City: To Concessionaire: City of Fort Worth MCliff Partners, Ltd. Attn: Matt Quinn Attn: Ken Lyon PARD - Golf/Athletics Division 1820 High Prairie Road 4200 South Freeway, Suite 2200 Grand Prairie, Texas 75050 Fort Worth, Texas 76115 with copies to: the City Attorney's Office and the City Manager's Office at: 200 Texas Street Fort Worth, Texas 76102 14. AMENDMENT This Agreement cannot be modified or amended without the written consent of all the parties hereto and attached and made a part of this Agreement. 15. FORCE MAJEURE Concessionaire Agreement Page 5 of 9 Mcliff Partners, Ltd. If the Vending Locations or any portion thereof shall be destroyed or damaged by fire or other calamity so as to prevent the use of the Vending Locations for the purposes and during the periods specified in this Agreement or if the use of the Vending Locations by Concessionaire shall be prevented by act of God, strike, lockout, material or labor restriction by any governmental authority, civil riot, flood, or any other like cause beyond the control of the City, then this Agreement shall terminate and Concessionaire hereby waives any claim against City for damages by reason of such termination. 16. INDEPENDENT CONTRACTOR/NO PARTNERSHIP The doctrine of respondent superior shall not apply as between the Concessionaire and City and nothing contained in this Agreement shall be deemed to constitute City and Concessionaire as partners or joint ventures with each other, nor shall the Concessionaire be considered to be an agent, representative, or employee of the City. Concessionaire shall have the exclusive control of and the right to control its employees and the details of its operation at the Vending Locations and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, and subcontractors. 17. SEVERABILITY In case any one or more of the provisions contained in this Agreement are held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this Agreement shall be considered as if such invalid, illegal or unenforceable provisions were never contained herein. 18. ASSIGNMENT AND SUBCONTRACTING Concessionaire shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Concessionaire under which the assignee agrees to be bound by the duties and obligations of Concessionaire under this Agreement. The Concessionaire and assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the City grants consent to a subcontractor, the subcontractor shall execute a written agreement with the Concessionaire referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Concessionaire under this Agreement as such duties and obligations may apply. The Concessionaire shall provide the City with a fully executed copy of any such subcontract. 19. IMMIGRATION NATIONALITY ACT Concessionaire shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Concessionaire shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Concessionaire shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Concessionaire employee who is not legally eligible to perform such services. CONCESSIONAIRE SHALL Concessionaire Agreement Page 6 of 9 Mcliff Partners,Ltd. INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY CONCESSIONAIRE, CONCESSIONAIRE'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Concessionaire, shall have the right to immediately terminate this Agreement for violations of this provision by Concessionaire. 20. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL Concessionaire acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company with ten or more full-time employees that has a value of$100,000 or more that is to be paid from public funds of the City for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The term "boycott Israel" shall have the meaning ascribed to it by Section 808.001 of the Texas Government Code. The term "company" shall have the meaning ascribed to it by Section 2270.001 of the Texas Government Code. To the extent that Chapter 2270 of the Government Code is applicable to this Agreement, by signing this Agreement, Concessionaire certifies that Concessionaire's signature provides written verification to the City that Concessionaire: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 21. ENTIRE AGREEMENT This Agreement constitutes the entire Agreement between the parties and may be amended only in writing and executed by duly authorized representatives of the parties. [SIGNATURES ON FOLLOWING PAGE] Concessionaire Agreement Page 7 of 9 Mcliff Partners, Ltd. EXECUTED to be effective on the date set forth in Section 2. CITY OF FORT WORTH MCLIFF PARTNERS, LTD. By: c ad► �,�---- By: Fernando Costa Name: Paul Brown Assistant City Manager Title:. President Date: 8 30�9 Date: Aug. 20, 2019 Recommended.- By: //Iu/�zf David Creek, Acting Director Park & Recreation Department APPROVED AS TO FORM AND LEGALITY: By: O C' �• Richard A. McCracken Assistant City Attorney ATTE f~` ary Kayser City Secretary ,t M&C: N/A Form 1295: N/A CONTRACT COMPLIANCE MANAGER: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract including e u ng all pe Orman r //porting requirements. By: tt Quinn, Management A alyst II EFT. CIAL RECORD SECRETARY WORTH,TX Concessionaire Agreement Page 8 of 9 Mcliff Partners, Ltd. EXHIBIT A VENDING LOCATIONS Name Address Machines Chisholm Trail 4936 McPherson Blvd. 1 Congress--Haws Athletic Center 600 Congress 1 FW Parks and CS 4200 South Freeway, Suite 2200 1 Glasgow--Highland Hills 1600 Glasgow 1 Hemphill--Greenbriar 5200 Hemphill 1 Horne--Como Community Center 4900 Horne 1 Lackland--RD Evans 3242 Lackland Rd 1 Lafayette--Thomas Place 4237 Lafayette 1 New York--Worth Heights Comm. 3551 New York Avenue 1 Northside Parks & CS 1700 Brennan Avenue 2 Riverside Community Center 3700 Belknap 1 Roos eve lt--Tri-Ethnic Comm. 2950 Roosevelt 1 Rosedale--Souhside Comm. 959 East Rosedale 1 Sylvania--Andrew Doc Sessions 201 S Sylvania 1 Victory Forest Community Center 3427 Hemphill St 2 Welch--Southwest Comm. 6300 Welch 2 Concessionaire Agreement Page 9 of 9 Mctiff Partners,Ltd.