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HomeMy WebLinkAboutContract 14164 CITY SECRETARY CONTRACT N�ly�6f CONCESSIONAIRE AGREEMENT STATE OF TEXAS S COUNTY OF TARRANT S WHEREAS, the City of Fort Worth, Texas owns as a part of its Park System a tract of land which is known as the Fort Worth Nature Center; and WHEREAS, the Friends of the Fort Worth Nature Center, Inc. is a non-profit corporation of the State of Texas which was orqanized for the purposes of supporting, improving and maintaining the natural environment and structures known as the Fort Worth Nature Center; and WHEREAS, the Friends of the Fort Worth Nature Center, Inc. desires to operate a gift shop at the Fort Worth Nature Center, the proceeds of which will benefit the Fort Worth Nature Center; NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: That for and in consideration of the mutual covenants, promises and agreements contained herein the City of Fort Worth, a municipal corporation located in Tarrant County, Texas ("City"), acting herein by and through David Ivory, its duly authorized Assistant City Manager, and the Friends of the Fort Worth Nature Center, Inc., acting by and through Carrol Richardson, its duly authorized President, hereinafter called "Concessionaire", do hereby covenant and agree as follows: 1 . City grants to Concessionaire a non-exclusive license and priv- ilege to operate as an independent contractor, a gift shop in a designated area of the Hardwicke Interpretive Center at the Fort Worth Nature Center in Fort Worth, Texas. All items of merchandise to be sold and all prices to be charg- ed therefor in said qift shop shall be subject to the prior approval of the Park and Recreation Director of the City of Fort Worth. The OFFICIAL RECORD CITY SECRETARY FT. WORTH, TEX. gift shop will be open during all regular operating hours of the Hardwicke Interpretive Center. In addition, Concessionaire will have a non-exclusive right, throughout the Fort Worth Nature Center premises, to sell merchan- dise or services, and the price charged therefor shall be subject to prior approval of the Park and Recreation Director. These sales may be only at locations and only on such days as the Director of Park and Recreation shall approve. 2. The term of this Agreement shall be for an initial term of five (5) years, beginning December 1 , 1984, and ending November 30, 1989. Thereafter, this Agreement shall be renewed automatically on a year to year basis for consecutive one (1 ) year terms unless City gives Concessionaire written notice of its desire not to renew this Agreement for any one of such additional terms in which event this Agreement shall terminate and neither party shall have any further rights or duties hereunder. 3. Concessionaire agrees that it will furnish adequate personnel to conduct the above mentioned services in a manner satisfactory to the Park and Recreation Director. Such personnel shall be of good character, neatly dressed, and shall at all times conduct themselves in a manner satisfactory to the Park and Recreation Director. Con- cessionaire agrees to discharge any person found by the Park and Recreation Director to be objectionable. 4. Concessionaire covenants, agrees and declares that it will hold all of its profits from said concessions for the benefit of the public and that said funds will be deposited into a special fund to be maintained by the Friends of the Fort Worth Nature Center, Inc. to be used only for the operation, expansion or improvement of the Fort Worth Nature Center. -2- 5. Concessionaire shall keep complete and accurate records, books and accounts according to customary and accepted business practices, and City or its representatives shall have the right to examine and audit said records, books and accounts at any reasonable time. Con- cessionaire shall furnish the Park and Recreation Director on or before the 10th day of each and every calendar month a sworn state- ment showing the amount of all gross receipts during the preceding month. Concessionaire shall furnish said Park and Recreation Direc- tor a yearly audit of its books, such report to be furnished within ninety (90) days after the end of the fiscal year of Concessionaire. 6. Concessionaire shall prepare and submit for the approval of the Park and Recreation Director a schedule of prices and charges for all goods or services sold under this Agreement. No changes shall be made in such prices without the prior written consent of the Park and Recreation Director. 7. It is understood and agreed that the sole purpose of this Agreement is to provide the best practicable atmosphere and opera- tion of the Fort Worth Nature Center for the benefit of the public while preserving the non-commercial atmosphere of the Nature Center. If it becomes undesirable to continue the operation of any of the said concessions, same can be modified or discontinued by the City Council. The decision of the City Council shall be final. 8. Concessionaire may, at its own expense, with prior written con- sent of the Park and Recreation Director, install signs in the areas where it operates its concessions to indicate its business; however, any such signs so installed must be in keeping with the general scheme and aesthetic background of the Hardwicke Interpretive Center premises and the grounds and territory of the Nature Center, and the -3- size, type, color, location, manner of display and subject matter of the sign must be specifically approved by the Park and Recreation Director prior to installation. Concessionaire covenants and agrees not to damage or injure any property in the installation and/or maintenance or removal of said Concessionaire's signs. 9. City and Concessionaire mutually covenant and agree that City, acting by and through its authorized representatives, shall have at any and all times the full and unrestricted right to enter the pre- mises for the purpose of inspecting and maintaining the same and doing any and all things with reference thereto which City is obli- gated to do as set forth in this Agreement, or which it may deem necessary for the proper conduct and operation of public parks. 10. Concessionaire shall comply with all federal, state and local laws, rules and regulations, as well as with all regulations, restrictions and requirements of the Police, Fire and Health Depart- ments, now or hereafter in effect, which are applicable to its operation and shall obtain and keep in effect, at its own cost and expense, all licenses and permits necessary for the operation of its business. 11 . The parties hereto covenant and agree that no person will be permitted to use the premises for any unlawful or immoral purposes, and that if City calls the attention of Concessionaire to any such immoral or unlawful act on the part of Concessionaire, or any person employed by or admitted to said premises by Concessionaire, then Concessionaire shall immediately desist from and correct such viola- tion or vacate the premises. 12. Concessionaire, in the performance of this Agreement, will not discriminate against any person or persons because of sex, race, -4- religion, color or national origin. This Agreement is made and entered into with reference specifically to Chapter 13A, Article III ("Discrimination in Employment Practices") of the City of Fort Worth, and Concessionaire hereby covenants and agrees that it has fully complied with all provisions of same and that no employee or employee-applicant has been discriminated against as prohibited by the terms of such ordinance. 13. Concessionaire covenants and agrees that it shall do no act nor make any contract that may create or be the foundation for any lien upon or interest in the City's park property and any such contract or lien attempted to be created shall be void. Should any purported lien on City park property be created or filed, Concessionaire, at its sole expense, shall liquidate and discharge same within ten (10) days after notice from City to do so; and should Concessionaire fail to discharge same, such failure shall constitute a breach of the covenant herein. 14. Concessionaire covenants and agrees that, in the event Conces- sionaire fails to comply with any of the terms and conditions of this Agreement, then and in that event City shall have the right at once and without further notice to declare this Agreement terminated and to enter into and take full possession of the premises, save and except such personal property and equipment as may be owned by Con- cessionaire. In the event of such cancellation of this Agreement by the City, all rights and privileges of the Concessionaire hereunder shall cease and terminate, and Concessionaire shall immediately vacate said premises. If Concessionaire fails to vacate said pre- mises following termination of this Agreement, City may remove, forcibly if necessary, Concessionaire and all its property from said premises, and City shall incur no liability for such removal. -5- The parties hereto further covenant and agree that this Agree- ment may be terminated without cause by either party by giving thirty (30) days' notice in writing to the other party. No waiver of default by City of any of the terms, covenants or conditions shall be construed to be a waiver of any subsequent default of any of the terms, covenants or conditions herein con- tained. 15. Upon dissolution of the Friends of the Fort Worth Nature Center, Inc., either voluntary or involuntary, all profits held by Concessionaire under this contract, save and except those required to pay current obligations, shall be transferred to the City of Fort Worth for the account of the Park and Recreation Department to be used in the Fort Worth Nature Center only. 16. Concessionaire assumes all risks of whatsoever nature incident to or arising out of the operation of its business and use and occu- pancy of the gift shop premises and other concession areas, and does hereby indemnify, hold harmless and defend, at its own expense, City, its officers, agents, servants and employees from and against any and all claims or suits for property damage or loss, and/or personal injury, including death, to any and all persons of whatso- ever kind or character, whether real or asserted, arising out of, incident to, or in connection with, directly or indirectly, the Concessionaire's use of the premises; and Concessionaire hereby assumes all liability and responsibility of City, its officers, agents, servants, or employees for any and all such claims or suits; and Concessionaire likewise covenants and agrees, and does hereby indemnify and hold harmless City from and against any and all injuries, damage or destruction of City's property arising out of, incident to, or in connection with, directly or indirectly, acts or -6- omissions of Concessionaire, its officers, agents, members, ser- vants, employees, or contractors, or its patrons or customers, whether invitees or trespassers. 17. If specifically required by the Park and Recreation Director, Concessionaire covenants and agrees to carry and keep in force durinq the term of this Agreement, with companies satisfactory to the Park and Recreation Director of the City of Fort Worth, public liability insurance in amounts not less than the following: Property damage, per occurrence $100,000 Personal injury or death, per occurrence $300,000 with the understanding of and agreement by Concessionaire that such insurance amounts may be revised upward at City's option and that Concessionaire covenants and agrees to so revise such amounts within thirty (30) days following notice to Concessionaire of such require- ments; and that certificates of insurance evidencing such coverage shall be furnished to the Park and Recreation Director within thirty (30) days of his request for same and shall be issued by a company or companies doing business in Texas. 18. If Concessionaire, as a charitable corporation, association or entity, has or claims an immunity or exemption (statutory or other- wise) from and against liability for damage or injury to property or persons, Concessionaire hereby expressly waives its riqhts to plead defensively such immunity or exemption as against City. 19. It is expressly understood and agreed by and between the par- ties hereto that Concessionaire shall operate as an inAependent contractor as to all rights and privileges granted herein, and not as an officer, agent, representative, servant or employee of City; that Concessionaire shall have exclusive control of and the exclu- sive right to control the details of its operation hereunder and all -7- persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, members, servants, employees and contractors, and its patrons and customers; that the doctrine of respondeat superior shall not apply as between City and Concessionaire, its officers, agents, members, servants, employees or contractors; and that nothing herein shall be construed as creating a partnership or joint enterprise between City and Concessionaire. 20. Concessionaire covenants and agrees that it will not subcontract or assign all or any part of its rights, privileges or duties under this Agreement without the prior written consent of City, and any attempted subcontract or assignment of same without such prior consent of City shall be void. 21 . Subject to the limitations contained herein, the covenants, conditions and agreements made and entered into by the parties here- to are declared to be for the benefit of and binding upon their re- spective successors, representatives and assigns, if any. 22. It is agreed that in the event any covenant, condition or pro- vision herein contained is held to be invalid by any court of compe- tent jurisdiction, the invalidity of such covenant, condition or provision shall in no way affect any other covenant, condition or provision herein contained, provided, however, that the invalidity of any such covenant, condition or provision does not materially prejudice either Concessionaire or City in connection with the riqhts and obligations contained in the valid covenants, conditions or provisions of this Agreement. 23. Concessionaire covenants and aqrees that should any action, whether real or asserted, at law or in equity, arise out of the -8- terms of this Agreement, or by Concessionaire's operations on the premises, venue for said action shall lie in Tarrant County, Texas. 24. This written instrument constitutes the entire Agreement by the parties hereto concerning the premises and any prior or contemporan- eous, oral or written agreement which purports to vary from the terms hereof shall be void. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this d/ day of 'b2(a1r,,A01\ 196 ATTEST: CITY OF FORT WORTH By City Secretary David Ivory Assistant City Man r APPROVED AS TO FORM AND LEGALITY: City Attorney Date: THE FRIENDS OF THE FORT WORTH NATURE CENTER, INC. By: Carrol ichardson President APPROVED BY CITY COUNCIL C- p7 3D City SecretarY Date -9- STATE OF TEXAS S COUNTY OF TARRANT S BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas on this day personally appeared David Ivory, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he executed the same as the act of said City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this I day of A.D., 19�" Notary Public in and ftit ` the State of Texas STATE OF TEXAS S COUNTY OF TARRANT S BEFORE ME, the undersigned authority, a Notary Public in and for Tarrant County, Texas, on this day personally appeared Carrol Richardson, known to me to be the person whose name is,A,#ubscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of the Friends of the Fort Worth Nature Center, Inc., and in the capacity therein stated as its duly authorized officer or representative. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of �� e�ma�✓ , A.D., 19 . otary u lic in an for the State of Texas -10- City of ,fort Worth, Texas Mayor and Council Communication DATE REFERENCE SUBJECT: CONTRACT WITH RI ND PAGE NUMBER FORT WORTH NATURE CENTER, INC. 2 11/20/84 **C-8732 tot The Friends. of the Fort Worth Nature Center and Refuge, Inc. (Mr. Carrol Richardson, President) proposes to contract with the City to permit the Friends of the Nature Center to operate the gift shop at the Nature Center's Hardwicke Interpretive Center. The Friends of the Fort Worth Nature Center and Refuge, Inc. is a Texas non-profit corporation, which for ten years has organized volunteers to provide Nature Center improvements and educational programs, and which has donated supplies and equipment for public use. The gift shop is presently operated by the Park and Recreation Department. The inventory is almost entirely natural science books for which the Department paid approximately $1,500. It is proposed to sell the entire inventory to the corporation at the same total price paid by the Department, and to deposit the proceeds of that sale in the City's Fort Worth Nature Center and Refuge Special Fund. The corporation would be permitted to sell goods and services at the Nature Center as an independent contractor subject to advance approval by the Park and Recreation Director of all prices, merchandise, services, fixtures, furnishings, signs, and of the location and hours of operation. The corporation's profits from sales at the Nature Center would be deposited to a special fund to be maintained by the corporation to be used only for the operation, expansion, or improvement of the Nature Center. The proposed contract tern is five years. Thereafter, the contract term would be extended automatically on a year-to-year basis unless either party gives written notice to the contrary. All operations under this proposed contract would be subject to generally accepted accounting, reporting, audit and business practices. It is understood and agreed that the purpose of this proposed agreement would be to provide for the best practical operation of the Nature Center for the benefit of the public while preserving the noncommercial atmosphere of the area. If is should become undesirable to continue the operations described in the proposed agreement, the City Council could modify or discontinue those operations. The Park and Recreation Advisory Board voted to recommend approval of this proposal. v DATE REFERENCE SUBJECICONTRACT WITH FRIENDS OF THE PAGE NUMBER , 11/20/84 **C-8732 FORT WORTH NATURE CENTER, INC. 2 . f.2--- Recommendation It is recommended that: 1. The City Council authorize the City Hanger to execute an agreement with the Friends of the Fort Worth Nature Center, Inc. for the operation of the Nature Center Gift Shop as described above; 2. The City's merchandise inventory at the Nature Center Gift Shop be sold to the Friends of the Fort Worth Nature Center, Inc. for a price equal to the City's cost; and 3. The City's revenue from this sale be deposited to the Fort Worth Nature Center Special Fund, No. 72-502107-02, Index Code 088856. DIc SUBMITTED FOR THE / DISPOSITION BY COUNCIL: PROCESSED BT CITY MANAGER'S OrrICE BY. , Q APPROVED ORIGINATING C OTHER (DESCRIBE) DEPARTMENT HEAD Charles 3. Campbell, r. CITY SECRETARY FOR ADDITIONAL INFORM TI CONTACT: Yac Ashworth Ext. 7019 DATE