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HomeMy WebLinkAboutContract 47904 CITY SECRETARY/ T CONTRACT NO. -l" JUN AGREEMENT BETWEEN THE CITY OF FORT WORTH C17`1 Of SFEGRORA YH AND MANSFIELD FAMILY ENTERTAINMENT,LLC Cly This Agreement ("Agreement") is made and entered into by and between the City of Fort Worth ("City"), a home-rule municipal corporation, acting by and through Susan Alanis and Mansfield Family Entertainment, LLC d/b/a Hawaiian Parks ("Hawaiian Falls"), a Missouri limited liability company, acting by and through its duly authorized representative. WHEREAS, Hawaiian Falls operates family friendly water and adventure parks in North, Central, and South Texas; WHEREAS, the City's Park and Recreation Department operates a City-wide summer day camp program where children ages 5-13 have the opportunity to engage in various enriching activities; WHEREAS, in an effort to help the City raise funds for its summer day camp program, Hawaiian Falls will give the City 200 day passes that are valid for admission into all four Dallas-Fort Worth area Water Parks, including The Colony, Garland, Roanoke, and Mansfield ("Tickets"); WHEREAS, Hawaiian Falls will permit the City to sell the Tickets and allow the City to retain $2.01 per each ticket sold to help support the City's summer day camp program; NOW, THEREFORE, in consideration of the mutual covenants and promises made by the parties hereto,the City and Hawaiian Falls covenant and agree as follows: 1. Right to Sell. Within ten (10) calendar days after full execution of this Agreement, Hawaiian Falls shall provide the City with 100 Tickets and permit the City the right to advertise, promote, and sell the Tickets to the general public to raise funds for its summer day camp program. If, at any time, the City sells its 100 ticket allotment, then Hawaiian Falls agrees to provide the City with 100 additional Tickets, on the same terms and conditions, within ten (10) calendars after the City submits a written request. 2. Minimum Price. The minimum price at which the City may sell each of the Tickets shall be $18.00. 3. Parties' Share. The City shall have the right to retain $2.01 from each of the Tickets sold and shall provide Hawaiian Falls with any remaining balance from the sale of each such Tickets. On or before September 30, 2016, the City shall provide Hawaiian Falls with the following: (i) an accounting of the sold Tickets, including the number, price, City retainage, and balance, and (ii) any funds from the sale of the Tickets(less the City's $2.01 per ticket retainage). 4. Unsold Tickets. The City shall deliver any unsold Tickets to Hawaiian Falls on or before September 30, 2016. The City shall not be liable or responsible for any payments to Hawaiian Falls for any unsold Tickets. 5. Representations. Hawaiian Falls hereby represents and warrants that the Tickets are valid for admission into all four of its Dallas-Fort Worth area water parks, including The Colony, Garland, Roanoke, and Mansfield ("Water Parks"). The Tickets shall he gorad.for tions, all day long during normal operating hours of the Water Parks. OFFICIAL RECORD CITY SECRETARY Agreement with Mansfield Family Entertainment,LLC FT. WORTH, TX 1 of 4 6. Independent Contractor. It is expressly understood and agreed that Hawaiian Falls shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Hawaiian Falls acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Hawaiian Falls, its officers, agents, employees, servants, contractors and subcontractors. Hawaiian Falls further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Hawaiian Falls. Hawaiian Falls shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 7. Liabilily. The parties recognize that this Agreement simply permits the City to sell the Tickets to help raise funds for its summer day camp program. Nothing contained herein shall impose any liability on the City beyond that which is specifically covered by the terms herein, which the parties recognize is strictly limited to the sale of the Tickets. The City shall not be liable or responsible for anything that occurs after the sale of the Tickets, including, but not limited to, any damages or claims arising out of or resulting from a purchaser's use of the Water Parks 8. INDEMNIFICATION. HAWAIIAN FALLS COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS AND PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH), THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASSIONED BY (i) HAWAIIAN FALLS'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY ACT OR OMISSION OF HAWAIIAN FALLS, IT OFFICERS, AGENTS, AFFILIATES, ASSOCIATES, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS RELATED TO THE PEROFRAMNCE OF THIS AGREEMENT. 9. Assignment and Subcontracting. Hawaiian Falls shall not assign any of its duties, obligations or rights under this Agreement without the prior written consent of the City. 10. Compliance with Laws, Ordinances, Rules and Regulations. Hawaiian Falls agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Hawaiian Falls of any violation of such laws, ordinances, rules or regulations, Hawaiian Falls shall immediately desist from and correct the violation. 11. Notices. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives or(2)received by the other party by United States Mail, registered, return receipt requested, addressed as follows: TO THE CITY: TO HAWAIIAN FALLS City of Fort Worth Hawaiian Falls - Mansfield Attn: Richard Zavala Attn: Brian Busch Director, Park and Recreation Business Development Manager Agreement with Mansfield Family Entertainment,LLC 2 of 4 1000 Throckmorton 550 Bailey Avenue, Suite 400 Fort Worth TX 76102 Fort Worth, Texas 76107 With Copy to: City of Fort Worth Attn: City Attorney 1000 Throckmorton Street Fort Worth, Texas 76102 12. Governmental Powers. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 13. No Waiver. The failure of the City or Hawaiian Falls to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Hawaiian Falls's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 14. Governing Law and 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. 15. Severability. if any provision of this Agreement is held to be invalid, illegal or unenforceable,the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 16. Headings. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 17. Review of Counsel. The parties acknowledge that each party and its counsel have reviewed this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 18. Amendments. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, and duly executed by an authorized representative of each party. 19. Entirety of Agreement. This Agreement contains the entire understanding and agreement between the City and Hawaiian Falls, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 20. Signature Authority. The person signing this Agreement, and any amendment hereto, hereby warrants that he/she has the legal authority to execute this Agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other Agreement with Mansfield Family Entertainment,LLC 3 of 4 authorization of the entity. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 21. Counterparts. This Agreement may be executed in in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same. An executed Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the document by any party. Duplicates are valid and binding even if an original paper document bearing each party's original signature is not delivered. 22. Third Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of the City and Hawaiian Falls, and their lawful successors or assigns, and are not intended to create any rights, contractual or otherwise,to any other person or entity. fp Executed in multiples this thg >&Oay of , 2016. City of Fort Worth Mansfield Family Entertainment,LLC d/b/a Hawaiian Parks By: By: usan Alanis Name: .�u ..Assistant City Manager Title: De.,v& e✓ APPROVED AS TO FORM AND LEGALITY: 1yler Wallach Assistant City Attorney 7 ATTEST: ® o AaKa `� City Secretary CONTRACT AUTHORIZATION: No M&C necessary OFFICIAL RECORD CITY SECRETARY FT. WORTH,TX Agreement with Mansfield Family Entertainment,LLC 4 of 4