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HomeMy WebLinkAboutContract 52707 x� CITY SECRETARY �f , CONTRACT NO. Ja-lO �r��`�� „o 2019 i pUG29 ��� CONCESSION AGREEMENT BETWEEN THE .� p� �pRC "� CITY OF FORT WORTH AND FOSSIL CREEK LITTLE LEAGUE ,'THIS AGREEMENT ("Agreement") is made and entered into by and between the City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager ("City"), and Fossil Creek Little League, a Texas nonprofit corporation, acting herein by and through its duly authorized President ("FCLL"). The City and FCLL are identified herein individually as a"party" and collectively as the"parties." WHEREAS, the City owns and operates Northwest Community Park located at 8575 Blue Mound Road, Fort Worth, Texas 76137; and WHEREAS, FCLL is a Texas non-profit corporation, incorporated for the purpose of creating and maintaining youth baseball and softball programs; and WHEREAS, on June 12, 2018, the City Council of the City of Fort Worth accepted a donation from FCLL in the amount of $65,000.00 for the construction of concession and restroom building at Northwest Community Park; and WHEREAS, FCLL desires to manage the operation of the concession stand and maintain the restrooms; NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties, the City and FCLL do hereby agree to the following: SECTION 1 LICENSE GRANTED 1.01 The City grants to FCLL the following rights and privileges: A non-exclusive license to manage the operation of the concession stand, including restrooms, at Northwest Community Park which is more specifically identified in Exhibit "A" to this Agreement (`Licensed Premises") in accordance with the terms and conditions of this Agreement. SECTION 2 TERM AND TERMINATION 2.01 Term. This Agreement shall be binding on the date of execution by the parties and effective beginning on September 6, 2019, and shall remain in effect until September 5, 2022, unless terminated earlier as provided herein. This Agreement may be renewed upon written agreement of the parties for four additional one-year periods. OFFICIAL RECORD CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND FOSSIL CREEK LITTLE LEAGUE CITY SEEMARY FT. WORTH,TX 2.02 Termination without Cause. Either party may terminate this Agreement without cause by the giving of thirty(30) days' notice in writing to the other party. 2.03 Termination for Cause. FCLL shall be in default under this Agreement if FCLL breaches any term or condition of this Agreement and such breach remains uncured after ninety (90) calendar days following receipt of written notice from the City referencing this Agreement (or, if FCLL has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than ninety (90) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith), in which event the City shall have the right to terminate this Agreement immediately by providing written notice to FCLL. In the event of such termination of this Agreement by the City, all rights and privileges of the FCLL hereunder shall cease and terminate and FCLL shall immediately vacate the Licensed Premises. 2.04 FCLL's Duties Following Expiration or Termination. Following expiration or termination of this Agreement, FCLL shall promptly remove all of its personal property from the Licensed Premises. FCLL shall also repair any FCLL-caused damage to the Licensed Premises to the satisfaction of the Director of the Park and Recreation Department ("Director"), including, but not limited to, any damage that FCLL causes during removal of FCLL's property. If FCLL fails to remove all or any part of its personal property or to repair the Licensed Premises, City may, at its sole discretion, (i) remove FCLL's personal property and otherwise repair the Licensed Premises and invoice FCLL for City's costs and expenses incurred, such invoice to be due and payable to City within thirty (30) calendar days of being sent to FCLL; or (ii) following no less than thirty (30) days prior written notice to FCLL, take and hold any FCLL personal property as City's sole property; or(iii) pursue any remedy at law or in equity available to City. If FCLL fails to surrender the Licensed Premises to City following termination or expiration, City may remove forcibly, if necessary, FCLL and its property from the Licensed Premises and City shall incur no liability for such removal. 2.05 Other Remedies. Any termination of this Agreement will not relieve FCLL from paying any sum or sums due and payable to City under this Agreement at the time of termination that remains unpaid, or any claim for damages then or previously accruing against FCLL under this Agreement. Any such termination will not prevent City from enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law, or from recovering damages from FCLL for any default under the Agreement. All City's rights, options, and remedies under this Agreement will be construed to be cumulative, and not one of them is exclusive of the other. City may pursue any or all such remedies or any other remedy or relief provided by law, whether or not stated in this Agreement. CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH 2 of 17 AND FOSSIL CREED LITTLE LEAGUE SECTION 3. CONSIDERATION 3.01 Fee. As consideration for the rights and privileges granted herein, FCLL will provide concession services from the concession building at Northwest Community Park. 3.02 Additional Consideration. As additional consideration for the rights and privileged granted herein, FCLL will clean and maintain the Licensed Premises, including the restrooms as provided by this Agreement. 3.02 Concession Revenue. City and FCLL agree that all revenue generated by FCLL as a result of providing concession services pursuant to this Agreement shall be solely owned by FCLL and FCLL shall not be required to pay a portion of any such revenue to the City. SECTION 4. CONCESSION SERVICES 4.01 Concession Services. FCLL shall have the non-exclusive right and the obligation to make direct sales of food, non-alcoholic beverages, merchandise, and other items approved by the Director ("Concession Items") to the public at Northwest Community Park in accordance with the terms and conditions of this Agreement, including, but not limited to,the following: (a) Concessions will be sold from the concession building within the Licensed Premises. (b) Except as agreed to otherwise in this Agreement, the hours of operation for the concession services shall be determined by the FCLL, subject to the prior written approval of the Director. (c) FCLL shall open and operate the Northwest Community Park concession building for all City-sponsored league games; all weekend sporting tournaments, whether or not City- sponsored; and any other programs and events as deemed necessary by the Director. (d) Notwithstanding anything to the contrary, FCLL shall not be obligated to open and operate the Northwest Community Park concession building on days when non-City- sponsored sporting tournaments and leagues host less than eight teams or occupy less than four fields. (e) FCLL agrees that the sale of non-consumable merchandise is not allowed without the prior written permission of the Director. Such approval will be required and considered on a case-by-case basis only and at such times and in such locations as may be approved by the Director in its sole discretion. (f) FCLL shall keep and maintain all concession areas and all concession-related facilities in a good, clean, sanitary, and proper working condition at all times. CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH 3 of 17 AND FOSSIL CREEK LITTLE LEAGUE (g) FCLL shall provide, at its own expense, all janitorial services for the Licensed Premises, including the restrooms. FCLL shall ensure all trash, garbage, litter, and debris associated with the concession and restroom operation is collected and properly disposed of in dumpsters provided by the City at the Park. FCLL shall sweep and mop all floors, and clean all walls, windows, sinks, toilets, mirrors, counters, and equipment. FCLL shall keep the exterior of the Licensed Premises clean. City shall provide the initial supply of paper products necessary for the Licensed Premises, including toilet paper and paper towels. FCLL shall provide, at its own expense, all paper products such as toilet paper and paper towels, necessary for the License Premises after the initial supply is exhausted. (h) FCLL shall notify the Director immediately of any known or suspected hazards that exist in Northwest Community Park, whether or not the hazards are the result of the FCLL's operations. (i) FCLL shall operate its concessions in a manner that will reflect on the positive reputation of the City and shall not use the Licensed Premises, or act in any manner that will constitute, a nuisance or an unreasonable annoyance, or that might injure the reputation of the City. FCLL shall comply with all rules, specifications, and special instruction established and provided to FCLL by the Director. (j) FCLL shall operate in a courteous and professional manner at all times. If the Director determines, in its sole discretion, that FCLL is uncooperative, discourteous, or verbally or physically abusive to any of the City personnel or persons attending Northwest Community Park, the City may immediately terminate this Agreement and require FCLL to vacate Northwest Community Park. In the event a forced removal is necessary, the City, its representatives, officers, employees, and agents shall not be liable for any losses suffered by FCLL in connection with such forced removal. 4.02 Miscellaneous (a) Commercially accepted practices shall apply to any detail not covered in this Agreement. (b) FCLL shall establish prices for products that are comparable with the prices charged for similar products sold at comparable facilities within Tarrant County. (c) FCLL shall provide the Director with a list of all Vending Items and Concession Items it intends to sell at Northwest Community Park, along with the price for each item, and shall report any updates to this list before changes are implemented. The City reserves the right to deny the sale of any product it deems inappropriate for any reason. (d) FCLL shall ensure that all food, beverages, and goods sold pursuant to this Agreement are of first quality and standard quantity. Consumables shall be wholesome and pure and CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH 4 of 17 AND FOSSIL CREEK LITTLE LEAGUE shall conform in all respects to federal, state, and local food laws, ordinances, and regulations. (e) Delivery trucks shall be permitted only on existing service drives, and must be clearly identified with FCLL's name or the name of FCLL's contractor, as applicable. Where no service drives are available, delivery trucks should follow applicable parking regulations. All of FCLL's employees, volunteers, and contractors must have identification on their clothing clearly identifying who they are and the respective company's name and logo. (f) FCLL shall maintain, or caused to be maintained, an adequate inventory of all products sold to meet all reasonable demands of customers and potential customers. (g) The Director reserves the right to promulgate reasonable rules and regulations for FCLL necessary for the operation of Northwest Community Park. (h) The rights granted herein are subject to any agreements the City enters into which restrict the sale of food and beverages in the City or require the City to sell specific food and beverages in the City. FCLL agrees to abide by any such agreements the City enters into in connection with the vending and concession services to be performed by FCLL hereunder. (i) FCLL shall be entitled to employ Such employees or subcontractors on the premises as are necessary to perform the services required of it hereunder. FCLL agrees to employ, train, and supervise personnel with appropriate qualifications and experience and in sufficient number to provide all the services appropriate for the rights granted herein with a minimum of delay for the patrons. Employees shall be clean, neat, courteous, efficient, and properly trained. Employees shall be attired in clean uniforms at all times when performing FCLL's obligations hereunder and shall wear a badge with the employee name or number legibly imprinted. Accurate records must be kept of the names and addresses of employees of those to whom identification badges are issued to assure proper identification of employees at any time required by the Director. (j) FCLL shall be responsible for ensuring that FCLL's use of electrical equipment will not exceed the electrical capacity of the Concession Building. The City will not respond to tripped breakers resulting from FCLL exceeding the electrical capacity of the Concession Building. Should additional electrical capacity be necessary for the Concession Building, FCLL shall be responsible for the cost of supplying the Concession Building with additional electrical capacity, which shall be completed at the direction of the City by City staff or a contractor hired by the City. CONCESSION AGREEMENT BETWEEN THE CITY OF FORT NORTH 5 of 17 AND FOSSIL CREEK LITTLE LEAGITE (k) City shall pay the cost of providing water and electricity for the operation of the Licensed Premises. SECTION 5 CONDITION OF THE LICENSED PREMISES 5.01 FCLL takes all portions of the Licensed Premises and all appurtenances in "AS IS" condition without any express or implied warranty on the part of the City. FCLL accepts them in their present condition, finds them suitable for the purposes intended, and further acknowledges that it is thoroughly familiar with such condition by reason of personal inspection and does not rely on any representations by the City as to the condition of the Licensed Premises or Northwest Community Park, or their suitability for the purposes intended. 5.02 FCLL will not do or permit to be done any injury or damage to any grounds or any buildings or part thereof, or permit to be done anything that will damage or change the finish or appearance of the Licensed Premises or Northwest Community Park, its buildings or the furnishings thereof or any other property belonging to the City by the erection or removal of equipment or any other improvements, alterations, or additions, except as may be permitted in this Agreement. No decorative or other materials shall be nailed, tacked, screwed or otherwise physically attached to any part of Northwest Community Park or to any of the furnishings or fixtures of the City without the consent of the Director. 5.03 FCLL further agrees that, if during the course of the exercise of its rights under this Agreement, damages result to the Licensed Premises, FCLL shall, at it sole cost and expense, repair or restore same as near as possible to their pre-existing condition within thirty (30) calendar days, unless otherwise agreed to by the parties in writing. All repairs and restorations are subject to the full satisfaction of the Director. SECTION 6 AUDITING 6.01 FCLL agrees that the City shall, until the expiration of three (3) years after the expiration of this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of FCLL involving transactions relating to this Agreement. FCLL agrees that the City shall have access during normal working hours to all necessary FCLL facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give FCLL reasonable advance notice of intended audits. 6.02 FCLL further agrees to include in any contractor and subcontractor agreements hereunder a provision to the effect that the contractor and subcontractors agree that the City shall, until the expiration of three (3) years after the expiration or termination of the contract or subcontract, have access to and the right to examine any directly pertinent books, documents, papers, and records of such contractor or CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH 6 of 17 AND FOSSIL CREEK LITTLE LEAGUE subcontractor involving transactions of the contract or subcontract, and further that City shall have access during normal working hours to all contractor and subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give the contractor and subcontractor reasonable advance notice of intended audits. SECTION 7 SIGNAGE 7.01 FCLL may, at its sole expense and with prior written consent of the Director, install signs in the Licensed Premises advertising the concessions being sold at the Licensed Premises; provided however, such signs must be in keeping with the general aesthetic background of the park area and the size, type, color, location, manner of display and subject matter of the sign must be approved by the Director prior to installation. FCLL will be responsible for any damage to City property and repair such damages at its own expense. FCLL covenants and agrees not to damage or injure any property during the installation, maintenance, or removal of such signs. SECTION 8 RIGHT OF ENTRY AND INSPECTION 8.01 City and FCLL agree that City, acting by and through its authorized representatives, shall have at any and all times the full and unrestricted right to enter upon any premises that is the subject of this Agreement (without causing or constituting a termination of the use or an interference of the use of the Premises by the FCLL) for the purpose of inspecting the premises and doing any and all things with reference thereto that City is obligated to do as set forth in this Agreement or which may be necessary for the proper conduct and operation under the law and its public parks, provided this shall not authorize or empower City to direct the activities of the FCLL or assume liability for FCLL's activities. 8.02 In licensing the Licensed Premises to FCLL, the City does not relinquish the right to control the management of Northwest Community Park, or the right to enforce all necessary and proper rules for the management and operation of the same. SECTION 9. COMPLIANCE WITH LAWS AND DEEDS 9.01 This Agreement is subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. 9.02 FCLL shall materially comply with all of the City's Park and Recreation Department regulations and policies and shall coordinate with City staff with regard to use of the Licensed Premises. FCLL shall not permit its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees, CONCESSION AGREEMENT BETWEEN TIIE CITY OF FORT WORTH 7 of 17 AND FOSSIL CREEK LITTLE LEAGUE volunteers, or invitees to engage in any unlawful use and FCLL shall immediately remove from the Licensed Premises any of FCLL's officers, agents, servants, employees, contractors, subcontractors, licensees, volunteers,or invitees engaging in such unlawful activities. 9.03 If City notifies FCLL or any of its officers, agents, employees, contractors, subcontractors, licensees, volunteers, or invitees of any violation of such laws, ordinances, rules or regulations, FCLL shall immediately desist from and correct the violation. 9.04 Notwithstanding anything to the contrary, the rights granted to the FCLL herein are subject to any and all deed restrictions and agreements concerning the use of Northwest Community Park. The City reserves the right, at any time and without prior notice, to restrict the use of concession area at Northwest Community Park to ensure that the rights of the City are protected. SECTION 10. NONDISCRIMINATION 10.01 This Agreement is made and entered into with reference specifically to Chapter 17, Article 111, Division 3 of the Code of the City of Fort Worth (2015), as amended, an ordinance prohibiting discrimination in employment. FCLL hereby agrees that it will fully comply with all provisions of the same and that no employee or employee applicant has been or will be discriminated against as prohibited by the terms of such ordinance. SECTION 11 ALTERATIONS,ADDITIONS, OR IMPROVEMENTS 11.01 FCLL may not make any alterations, additions,or improvements to the Licensed Premises. SECTION 12 LIABILITY AND INDEMNIFICATION 12.01 CITY SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND OR CHARACTER TO ANY PERSON OR PROPERTY ARISING FROM ANY USE OF THE LICENSED PREMISES, OR CAUSED BY ANY DEFECT IN ANY BUILDING, STRUCTURE, IMPROVEMENT, EQUIPMENT, OR ANY FACILITIES AT NORTHWEST COMMUNITY PARK OR CAUSED BY OR ARISING PROM ANY ACT OR OMISSION OF FCLL, OR OF ANY OF ITS AGENTS, EMPLOYEES, LICENSEES, CONTRACTORS, VOLUNTEERS, OR INVITEES, OR BY OR FROM ANY ACCIDENT, FIRE, OR OTHER CASUALTY, OR BROUGHTABOUT BYFCLL'S FAIL URE TO MAINTAIN THE LICENSED PREMISES INA SAFE CONDITION. 12.02 FCLL AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, REPRESENTATIVES, AGENTS SERVANTS AND CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH 8 of 17 AND FOSSIL CREED LITTLE LEAGUE 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 (INCLUDING ALLEGED DAMAGE OR LOSS TO FCLL'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING,BUT NOT LIMITED TO,DEATH, THAT MAYRELATE TO,ARISE OUT OF OR BE OCCASIONED BY (i) FCLL'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR(ii)ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF FCLL, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH FCLL AND CITY, RESPONSIBILITY,IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 12.03 IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, FCLL, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING,AT FCLL'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. 12.04 FCLL shall require all of its subcontractors to include in their subcontracts an indemnity clause and duty to defend in favor of City in substantially the same form as section 12.01, 12.02, and 12.03 of this Agreement. SECTION 13 INSURANCE 13.01 General Requirements. FCLL shall furnish to City in a timely manner, but not later than the start of the term of this Agreement, certificates of insurance as proof that it and its subcontractors, as applicable, have secured and paid for the policies of insurance specified herein. if City has not received such certificates by such date, FCLL shall be in default of the Agreement and City may, at its option, terminate the Agreement. Such insurance shall cover all insurable risks incident to or in connection with the execution, performance, attempted performance or nonperformance of this Agreement. FCLL shall maintain, or require its general contractors and subcontractors to maintain (where applicable) the following coverages and limits thereof: CONCESSION AGREEMENT BETWEEN THE CITI'OF FORT WORTH 9 of 17 AND FOSSIL CREEK LITTLE LEAGUE (a) Commercial General Liability(CGL) Insurance i. $500,000 each occurrence ii. $1,000,000 aggregate limit (b) Professional Liability—Errors& Omissions i. $1,000,000 Each Occurrence ii. $1,000,000 Annual Aggregate Limit (c) Business Automobile Liability Insurance i. $1,000,000 each accident on a combined single-limit basis,or ii. $250,000 Property Damage iii. $500,000 Bodily Injury per person per occurrence iv. $2,000,000 Aggregate V. Insurance policy shall be endorsed to cover"Any Auto", defined as autos owned, hired, and non-owned. vi. Pending availability of the above coverage and at the discretion of City, the policy shall be the primary responding insurance policy versus a personal auto insurance policy if or when in the course of FCLL's business as contracted herein. (d) Workers' Compensation Insurance i. Part A: Statutory Limits ii. Part B: Employer's Liability A. $100,000 each accident B. $100,000 disease-each employee C. $500,000 disease-policy limit 13.02 Additional Requirements (a) Such insurance amounts shall be revised upward at City's reasonable option and no more frequently than once every 12 months, and FCLL shall revise such amounts within thirty (30)days following notice to FCLL of such requirements. (b) FCLL will submit to City documentation that it has obtained insurance coverage as required in this Agreement prior to payment of any monies provided hereunder. (c) Where applicable, insurance policies required herein shall be endorsed to include City as an additional insured as its interest may appear. Additional insured parties shall include employees, representatives, officers, agents, and volunteers of City. (d) The Workers' Compensation Insurance policy shall be endorsed to include a waiver of subrogation, also referred to as a waiver of rights of recovery, in favor of City. Such CONCESSION.AGREEMENT BETWEEN THE CITY OF FORT WORTH 10 of 17 AND FOSSIL CREEK LITTLE LEAGUE insurance shall cover employees performing work on any and all projects. FCLL or its contractors shall maintain coverages, if applicable. In the event the respective contractors do not maintain coverage, FCLL shall maintain the coverage on such contractor, if applicable, for each applicable contract. (e) Any failure on part of City to request certificate(s) of insurance shall not be construed as a waiver of such requirement or as a waiver of the insurance requirements themselves. (f) Insurers of FCLL's insurance policies shall be licensed to do business in the state of Texas by the Department of Insurance or be otherwise eligible and authorized to do business in the state of Texas. Insurers shall be acceptable to City insofar as their financial strength and solvency and each such company shall have a current minimum A.M. Best Key Rating Guide rating of A-: V11 or other equivalent insurance industry standard rating otherwise approved by City. (g) Deductible limits on insurance policies shall not exceed $5,000 per occurrence unless otherwise approved by City. (h) In the event there are any local, federal or other regulatory insurance or bonding requirements for FCLL's operations, and such requirements exceed those specified herein,the former shall prevail. (i) FCLL shall require its contractors and subcontractors to maintain applicable insurance coverages, limits, and other requirements as those specified herein; and, FCLL shall require its contractors and subcontractors to provide FCLL and City with certificate(s) of insurance documenting such coverage. Also, FCLL shall require its subcontractors to have City and FCLL endorsed as additional insured's (as their interest may appear) on their respective insurance policies. (j) Professional Liability coverage shall be in force and may be provided on a claim's made basis. This coverage may also be referred to as Management Liability, and shall protect the insured against claims arising out of alleged errors in judgment, breaches of duty and wrongful acts arising out of their management duties. SECTION 14 PERSONNEL 14.01 It is expressly understood and agreed that FCLL and its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers shall operate as independent contractors as to all rights and privileges and work performed Linder this Agreement, and not as agents, representatives or employees of the City. Subject to and in accordance with the conditions and provisions of this CONCESSION AGREEMENT BETWEEN THE CITY OF FORT NORTH 11 of 17 AND FOSSIL CREED LITTLE LEAGUE Agreement, FCLL shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. FCLL acknowledges that the doctrine of respondeat superior shall not apply as between the City and its officers, representatives, agents, servants and employees, and FCLL and its employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. FCLL further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and FCLL. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of FCLL or any employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers of FCLL. Neither FCLL, nor any officers, agents, servants, employees or subcontractors of FLLC shall be entitled to any employment benefits from the City. FCLL shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of employees, representative, agents, servants, officers, contractors, subcontractors, and volunteers. 14.02 The City, through its authorized representatives and employees, shall have the sole and exclusive right to exercise jurisdiction and control over City employees. 14.03 City employees will not be allowed to volunteer their time to FCLL unless and until the City's Human Resources Director or that person's authorized designee approves the volunteer arrangement in consultation with the City's legal department. SECTION 15 CHARITABLE IMMUNITY 15.01 If FCLL, as a charitable association, political subdivision, corporation, entity or individual enterprise, has or claims an immunity or exemption (statutory or otherwise) from and against liability for damage or injury to property or persons, FCLL, to the extent permitted by law, hereby expressly waives its rights to plead defensively such immunity, including governmental immunity, or exemption as against City arising under this Agreement. SECTION 16 THIRD-PARTY RIGHTS AND ASSISGNMENTS 16.01 The provisions and conditions of this Agreement are solely for the benefit of the City and FCLL, and any lawful assign or successor of FCLL, and are not intended to create any rights, contractual or otherwise,to any other person or entity. 16.02 FCLL agrees that it will not subcontract or assign all or any part of its rights, privileges or duties hereunder without the prior written consent of the Director and any attempted subcontract or assignment of same without such prior consent of the Director shall be void. CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH 12 of 17 AND FOSSIL CREEK LITTLE LEAGUE SECTION 17 BINDING COVENANTS 17.01 Subject to the limitations contained herein, the covenants, conditions and agreements made and entered into by the parties hereunder are declared to be for the benefit of and binding on their respective successors, representatives and permitted assigns, if any. SECTION 18 SEVERABILITY AND NO WAIVER 18.01 It is agreed that in the event any covenant, condition or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall in no way affect any other covenant, condition or provision does not materially prejudice either FCLL or City in connection with the right and obligations contained in the valid covenants, conditions or provisions of this agreement. 18.02 The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. SECTION 19 VENUE AND CHOICE OF LAW 19.01 FCLL and City agree that 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, arises on the basis of any provision 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. SECTION 20 NOTICES 20.01 All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery: CITY: FCLL: City of Fort Worth George Vegas Parks and Recreation Department President FCLL Attn: Director 5528 Bandelier 4200 South Freeway, Suite 2200 Fort Worth, TX 76137 Fort Worth, Texas 761 15-1499 CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH 13 of 17 AND FOSSIL CREEK LITTLE LEAGUE WITH COPIES TO: City Attorney's Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 City Manager's Office City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 SECTION 21 FORCE MAJEURE 21.01 If either party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars, blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal, state, county, or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency United States; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. If a Force Majeure Event occurs, the City may, in its sole discretion, close or postpone the opening of its community centers, parks, or other City-owned and operated properties and facilities in the interest of public safety and operate them as the City sees fit. FCLL hereby waives any claims it may have against the City for damages resulting from any such Force Majeure Event. SECTION 22 GOVERNMENTAL POWERS AND IMMUNITIES 22.01 It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. SECTION 23 AUTHORIZATION, COUNTERPARTS AND ELECTRONIC SIGNAUTRES 23.01 By executing this Agreement, FCLL's agent affirms that he or she is authorized by FCLL to execute this Agreement and that all representations made herein with regard to FCLL's identity, address, and legal status are true and correct. CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH 14 of 17 AND FOSSIL CREEK LITTLE LEAGUE 23.02 This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. SECTION 24 AMENDMENTS, CAPTIONS,AND INTERPRETATION 24.01 Except as otherwise provided in this Agreement, the terms and provisions of this Agreement may not be modified or amended except upon the written consent of both the City and FCLL. 24.02 Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 24.03 In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. SECTION 25 IMMIGRATION NATIONALITY ACT 25.01 FCLL 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, FCLL shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. FCLL 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 FCLL employee who is not legally eligible to perform such services. FCLL SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY FCLL, FCLL'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to FCLL, shall have the right to immediately terminate this Agreement for violations of this provision by FCLL. SECTION 26 SOLE AGREEMENT 26.01 This Agreement, including any exhibits attached hereto and any documents incorporated herein, contains the entire understanding and agreement between the City and FCLL, and any lawful assign and successor of FCLL, 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. CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH 15 of 17 AND FOSSIL CREEK LITTLE LEAGUE IN WITNESS WHEREOF,the parties hereto have executed this Agreement to be effective on the date set forth in section 2 above. CITY OF FORT WORTH FOSSIL C EEK LITT E LEAGUE By: (.sue By: Fernando Costa George e as Assistant City Manager President !.9 Date: 8 _ Date: 27 Recommend d By: Da 'd CreeV Acting irector Park& Recreation Department APPROVED AS TO FORM AND LEGALITY: Richard A. McCracken Assistant City Attorney FOP ATT ar Kayser , ity Secretary / M&C:N/A Form I295: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. ame: Lawrence Thompson Title: District Superintendent EXHIBIT A OFFICIAL RECORD CITY SECRETARY CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH FT. UVOW'FH,TX AND FOSSIL CREEK LITTLE LEAGUE Licensed Premises =Licensed Premises r • Area I� CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH 17 of 17 AND FOSSIL CREEK LITTLE LEAGUE