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HomeMy WebLinkAboutContract 52143 i a RECEj� CITY SECRETARY PR_ E� CONTRACT NO. C/jyo" 2019 CONCESSIONAIRE AGREEMENT 07ySEc,7gR�ry BETWEEN THE CITY OF FORT WORTH AND KELCHER ENTERTAINMENT GROUP, LLC This CONCESSIONAIRE AGREEMENT ("Agreement") is made and entered into by and between 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, and Kelcher Entertainment Group, LLC, a Texas limited liability company ("Concessionaire"), acting by and through its duly authorized representative. The City and Concessionaire are referred to herein individually as a"party" and collectively as the "parties." WHEREAS,the City is hosting a lantern exhibit at the Fort Worth Botanic Garden located at 3220 Botanic Garden Blvd., Fort Worth, Texas, 76107; and WHEREAS,the City desires to have Concessionaire to sell food and beverages to patrons of the Botanic Garden during the dates of the lantern exhibits; NOW THEREFORE, City and Concessionaire agree as follows: 1. SCOPE Concessionaire shall have the right to sell food and beverages at the Botanic Garden in accordance with the terms and conditions of this Agreement. 2. TERM OF AGREEMENT This Agreement shall be effective beginning on March 7, 2019 and ending on May 13, 2019 ("Term"). 3. PAYMENTS Concessionaire agrees to pay City a fee of ten percent (10%) of the gross receipts, less taxes, for the catering of food and beverages at the Botanic Garden. The only deduction allowed from the gross amount is the sales tax. Concessionaire must deliver to the City,an itemized list of gross sales made at the Botanic Garden. Upon receipt of the itemized list, the City will invoice Concessionaire for the ten percent (10%) 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 (1.5%),plus an interestfee in the amount of one and one-half percent (1.5%)per month from the date the payment became due until it is paid. Payments shall be made at the Fort Worth Botanic Garden or at such other place in the City of Fort Worth as the Garden Director may hereinafter notify Concessionaire, and shall be made in legal tender of the United States. OFFICIAL RECORD Concessionaire Agreement—Lantern Festival P0046CRETARY Keleher Entertainment Group,LLC FT. WORTH,TX ` T T 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 GOODS, FOOD, BEVERAGE OR, OTHER ITEMS THAT ARE 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 Botanic Garden at the end of the Term. Any equipment or other property left by the Concessionaire at Botanic Garden 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 Botanic Garden 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 Botanic Garden. Concessionaire agrees to make payment to the City for the full amount of any damage caused by Concessionaire to the Botanic Garden within thirty (30) days of the date of the itemized invoice. The City assumes no responsibility for any property placed in Botanic Garden 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 Botanic Garden pursuant to this Agreement. 5. TRASH DISPOSAL Concessionaire shall be responsible for proper disposal of all trash generated by Concessionaire at the Botanic Garden. 6. ALCOHOLIC BEVERAGES Alcoholic beverages can be sold with the correct Texas Alcoholic Beverage Commission permit and is subject to agreed thirty percent(30%) commission on all alcohol sales. Concessionaire Agreement—Lantern Festival Page 2 of 8 Kelcher Entertainment Group,LLC 7. LOCATION OF EQUIPMENT Concessionaire may locate Concessionaire's equipment and make sales at the following locations at the Botanic Garden, Concessionaire row off of Rock Springs Road. 8. 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 Botanic Garden or to any adjoining public ways, or as to the manner of use or the conduct of the Concessionaire's business. 9. LICENSES In order to assure the necessary health inspections of the preparation facilities and transportation vehicles are completed and comply with all applicable regulations,evidence of a valid City of Fort Worth Catering Permit or Temporary Health Permit, valid for the dates of the Term shall be delivered to the Garden Director. 10. 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. Concessionaire Agreement—Lantern Festival Page 3 of 8 Kelcher Entertainment Group,LLC 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: $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. 11. GENERAL INDEMNIFICATIONS CONCESSIONAIRE COVENANTS AND AGREES 'r0 AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS± OWN EXPENSE, THE CITY, ITS OFFICERS, SERVANTS AND EMPLOYEES,FROM�%ND 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 KIND OR CHARAC TER, WHETHER REAL OR ASSERTED, ARISING OUT OF THE USE AND OCCL PATION OF THE BOTANIC Concessionaire Agreement—Lantern Festival Page 4 of 8 Keleher Entertainment Group,LLC GARDEN 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, 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. 12. CANCELLATION City may cancel this Agreement,without cause, upon delivery of written notice to Concessionaire. Concessionaire, without cause, may cancel this Agreement in its entirety by giving seven(7) days written notice to the City. 13. 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. 14. 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 Kelcher Entertainment Group Attn: Garden Director 3804 Greenhills Court Fort Worth Botanic Garden Irving, Texas 75038 3220 Botanic Garden Blvd. Fort Worth, Texas 76107 with copies to the City Attorney's and the City Manager's Office at: 200 Texas Street Fort Worth, Texas 76102 15. 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. Concessionaire Agreement—Lantern Festival Page 5 of 8 Keleher Entertainment Group,LLC 16. 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. 17. FORCE MAJEURE If the Botanic Garden or any portion thereof shall be destroyed or damaged by fire or other calamity so as to prevent the use of the Botanic Garden for the purposes and during the periods specified in this Agreement or if the use of the Botanic Garden 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 contract shall terminate and Concessionaire hereby waives any claim against City for damages by reason of such termination. 18. 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 on the Botanic Garden and shall be solely responsible for the acts and omissions of its officers,agents,employees,contractors, and subcontractors. 19. 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. 20. 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 grant:; 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. Concessionaire Agreement—Lantern Festival Page 6 of 8 Keleher Entertainment Group,LLC 21. 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 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. 22. 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 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 terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. 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. [SIGNATURES ON FOLLOWING PAGE] Concessionaire Agreement—Lantern Festival Page 7 of 8 Kelcher Entertainment Group,LLC EXECUTED to be effective on the date set forth in Section 2. CITY OF FORT WORTH KELCHER ENTERTAINMENT GROUP, LLC By: /�ilrli(a�d By: — Fernando Costa Nfame: j Assistant City Manager Title: Date: 4zJ�1.9 Date: Recommended: By: _ chard Zavala, Director INrk& Recreation Department APPROVED AS TO FORM AND LEGALITY: By: Richard A. McCracken Assistant City Attorney ATTEST: �®RTC 2 By: Mary Kay er City Secretary 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 ensuring all performance and reporting requirements. By• der n Garden Center Coordinator OFFICIAL RECORD FITY SECRETARY Concessionaire Agreement—Lantern Festival age f�{,,.� i TX Kelcher Entertainment Group,LLC �T lQ�1KC