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HomeMy WebLinkAboutContract 41269 (2)an I( sEcnnwirA cortmeLir CONTRACT FOR EXCLUSIVE CONCESSIONS AND ALCOHOLIC BEVERAGE SERVICES AT THE WILL ROGERS MEMORIAL CENTER yemitait This EXCLUSIVE CONCESSIONS AND ALCOHOLIC BEVERAGE SERVICES AGREEMENT ("AGREEMENT") is made and entered into by and between the CITY OF FORT WORTH (the "CITY"), a home rule municipal corporation situated in portions of Tarrant, Denton , Parker and Wise Counties, Texas, acting by and through Susan Alanis, its duly authorized Assistant City Manager, and COBURN'S CATERING SERVICE INC.; ("OPERATOR"), a TEXAS corporation, and acting by and through Jerrell Coburn, its duly authorized President. 1. SCOPE OF SERVICES. The OPERATOR shall be the exclusive provider of CONCESSION and ALCOHOLIC BEVERAGE Services at Will Rogers Memorial Center subject to the terms of this AGREEMENT including, but not limited to operating concession stands, vend various refreshments, and selling other items or services as approved by the DIRECTOR OR HIS DESIGNEE, at the best value to the CITY. OPERATOR must obtain and keep in force throughout the term of the AGREEMENT all required liquor licenses, permits, etc. required by Texas Alcoholic Beverage Commission, State of Texas, and permits required by all local government entiti es. 2. TERM. This AGREEMENT shall be in effect for a period of six months beginning January 1, 2011 and ending June 30, 2011. This AGREEMENT may, however, be extended up to an additional seven months at the sole discretion of the CITY as approved by the City Manager. Upon expiration of the term, OPERATOR agrees to hold over under the terms and conditions of this AGREEMENT for such period of time as is reasonably necessary to obtain a replacement OPERATOR, provided such period shall not exceed one -hundred eighty (180) days. 3. COMPENSATION. For the rights and privileges granted, the OPERATOR shall pay the CITY, through its Director, each month during the term hereof, the following amounts: A. Twenty -Five (25%) percent of GROSS RECEIPTS, as defined in Article 34, during all Events on all basic concession items sold, including, but not limited to, all soft drinks, beer, ALCOHOLIC BEVERAGES, peanuts, popcorn, cotton candy, chips, doughnuts, hamburgers, pretzels, sandwiches, hot dogs, fr ench fries, chili dogs, coffee, barbecue and pizza B. 25% of food and non-alcoholic beverages at permanent or temporary concession stands. C. Fifty (5O%) percent of revenue received from sales by THIRD PARTY VENDORS. All third party vendors must be approved by the D designee. Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center rector or his/her OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 1 of 23 4. NOTICE, PLACE AND MANNER OF PAYMENTS. All payments due the CITY shall be due and payable without demand by check at the office of the Director at the CENTER, or at such other place in Tarrant County, Texas as the Director may hereafter notify OPERATOR (in writing and with reasonable advance notice) and shall be made in legal tender of the United States. Payments from any calendar month shall be due no later than 3:00 P.M. on the 20th day following the end of an "ACCOUNTING PERIOD' Any payment that is not made by this date shall bear a service charge of one and one-half percent (1 5%), plus an interest fee in the amounts of one and one - half percent (1.5%) per month from the date it became due until the date it is paid. OPERATOR agrees that it shall pay and discharge all costs and expenses including attorney's fees incurred or expended by the CITY in collection of said delinquent amounts due, including service charges. 5. LETTER OF CREDIT. The OPERATOR shall provide the CITY of Fort Worth with a Letter of Credit in the amount of $250,000 00 for the faithful performance of duties as specified by the terms defined in the scope of work in this agreement no later than 30 calendar days prior to the AGREEMENT effective date. The bank and the terms of the Letter of Credit must be acceptable to the City. 6. FOOD AND BEVERAGE PREMISES AND RIGHTS. 6.1. Premises. The CITY will make available to OPERATOR those concession premises shown on Exhibit A which subject to the supervision of the Director of Public Events Director (the " Director"), for the purposes of performing this AGREEMENT, and except as otherwise provided herein, will be in the exclusive control of OPERATOR ("the food and beverage premises") subject to the exclusions in this section. 6.2. Portable Locations. The CITY will peiniit portable concession stands to be located throughout the CENTER. The Director and the OPERATOR will agree upon the number and locations of these temporary stands at least 24 hours prior to each event 6.3. Concession Rights The concession rights and privileges• herein granted are the exclusive rights to make direct sales to the public of all food candy sandwiches, popcorn, and beverages, alcoholic and non- alcoholic beverages and to provide restaurant services CONCESSION SERVICES (as defined herein),customarily handled by a concessionaire at any and all events held at the CENTER except that the CITY retains the right to : 1. Grant permission for food and beverage items of sample size to be given away on the premises by exhibitors who are in the business of producing and/or selling such items. In no event shall ALCOHOLIC BEVERAGE samples be provided. 2. Exclude the following events: Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 2 of 23 a. Southwestern Exposition and Livestock Show, ( `Stock Show") During any period of time the CENTER is leased to and used by the Stock Show, for the annual Stock Show and such other non -ticketed, private events which the Stock Show may from time to time host within the CENTER, all concessions, catering and ALCOHOLIC BEVERAGE services rights will be granted to the Stock Show. The Stock Show will have full authority to enter into contracts with vend ors for various goods and services during their lease of the CENTER for the Stock Show. OPERATOR agrees it will lease all equipment, permanent and portable stands, storage space, commissary areas, and all other equipment and improvements (excluding OPERATOR S office and administrative equipment) to the Stock Show's contractor for the amount of One Thousand Dollars ($1,000) annually. OPERATOR will be permitted to continue to use and occupy its designated administrative office space during the Stock Show. The Stock Show may hold additional private, non ticketed events during other periods of the year under the same terms and conditions. b. Cowtown Marathon. During the period of time the CENTER is leased to and used for the Fort Worth Cowtown Marathon, permission to distribute sponsor donated products used solely for the hydration and consumption of the runners will be granted during the Cowtown Marathon. OPERATOR will maintain all other food, beverage and alcohol rights during the event. c. North Texas Cutting Club. During the National Cutting Horse Association Futurity the City retains the rights for alcoholic beverages services in the Backstage Club. All services are restricted to the Backstage Club premises. d. Jewel. Charity Ball. During the 2011 Jewel Charity Ball, the City retains the rights for alcoholic bever age services 3. Promulgate reasonable rules and regulations for the OPERATOR necessary for the operation of the CENTER. 4. Reasonably restrict the length of time before and after the time of the performance or function in order to ensure that sales will not interfere with the conduct of the performance or function being served. 5. The CITY, through its Director, retains the right to approve the form and price of products; provided that, the CITY agrees that it will not enter into any agreements after the date hereof (other than an agreement relating to exclusive pouring rights for soft drinks (carbonated or non -carbonated non-alcoholic beverages) or an agreement relating to naming rights of the arena facility within the CENTER that limit or restrict or otherwise contravene any AGREEMENT between OPERATOR and a service provider for concessions and ALCOHOLIC BEVERAGE service or advertising in the CENTER, unless such AGREEMENTS are approved in writing by OPERATOR, which approval will not be unreasonably withheld, conditioned or delayed. 6. The print pattern to be used on all containers, cups, bags, plastic ware, etc. used by OPERATOR shall be approved in advance by the Director. 7. The rights for CONCESSION SERVICES shall not include the right to sell video or audio tapes compact discs (CDs), non-food sundry items including but not limited to t -shirts, film, aspirin, postcards, programs, souvenir books, or other printed matter of a like nat ure, or Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 3 of 23 copyrighted novelties, However, DIRECTOR OR HIS DESIGNEE may require or permit OPERATOR to sell such items from time to time upon reasonable notice and upon such terms as may be negotiated with OPERATOR. 8. The Director reserves the right to allow outside vendors to provide unique specialty items during certain events; provided that, when so permitted, the OPERATOR is able to reach mutually agreeable, commercially prevailing and reasonable terms with such ven dor and CITY including, without limitation, those regarding the sub -AGREEMENT and the percentage of the vendor's gross sales which is to be split equally by OPERATOR and CITY. 9. The OPERATOR shall not sell space for either temporary or permanent signs. 10. The CITY presently has in place a "Pouring Rights Agreement" with Coca Cola Enterprises Inc d/b/a Coca Cola Bottling Company of North Texas and a "Snack Vending Agreement" with Intellivend. All fountam service soft drinks and beverages that are to be sold in individual containers by the OPERATOR must be purchased from Coca Cola, including bottled water. Brewed coffee, iced tea, or individual containers of milk are permitted exceptions to the "Pouring Rights Agreement" 11. The City of Fort Worth Public Events Department and/or Will Rogers Memorial Center shall have the right to negotiate Agreements with vendors of food and beverage products for advertising rights and product exclusivity. The OPERATOR shall not enter into any agreement with vendors, on their own, which could compromise the terms of existing City of Fort Worth Public Events Department and/or Will Rogers Memorial Center Agreements and/or Agreements. 6.4. ALCOHOLIC BEVERAGES ALCOHOLIC BEVERAGE sales will be allowed unless the LICENSEES leasing the CENTER request the Director to prohibit sale of ALCOHOLIC BEVERAGES during LESSEE S event and the Director concurs with this request. The OPERATOR agrees that it will not license the property in such a way that will prohibit the issuance of licenses for ALCOHOLIC BEVERAGES by the Stock Show referenced in Article 6.3.2a. 7. REPORTS/AUDITS. 7.1. Event Reports The OPERATOR shall be required to furnish the CENTER with a monthly report of GROSS RECEIPTS for each event This report will be submitted on forms approved by the Director in the reasonable exercise of his/her discretion, and must be turned into the office of the Director no later than 4:00 P.M. of the first business day after the end of the month. The report will be signed by the OPERATOR or the OPERATOR'S designated representative. The Director or his or her duly authorized agents or representatives may from time -to-time request 'flash reports ' on gross sales for individual events. When requested, this information must be turned into the office of the Director no later than 4 00 p.m. of the second (2°a) business day after the event. 7.2. Cash Registers Cash registers must be used at each point of sale by the OPERATOR to record sales, and the tape from each register used for an event will be attached to the corresponding concession report. The Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 4 of 23 location of the register will be written on the tape and it mu st be verified and signed by the person that operated the register If a register is not used, (only upon prior written approval of the Director), a cash slip must be prepared for each location that cash was received This slip must be verified and signed by a person working at the location. In no case shall the person who signed the cash register tape or cash slip be the same person that signed the concession report. 7.3. Bank Accounts The OPERATOR shall establish, in its own name, a separate commerci al account at a local bank in Fort Worth Texas, which shall be exclusively used for the initial deposit of all receipts involved in the OPERATOR'S operations with the CENTER. 7.4. Accounting Records, Equipment and Reports The OPERATOR shall keep true, accurate, complete and auditable records, in a form consistent with OPERATOR'S general corporate accounting requirements satisfactory to the Director .. The OPERATOR further agrees that the Director or his or her duly authorized agents or representatives shall have the right to examine all pertinent books and records at any and all reasonable times for the purpose of determining the accuracy thereof The making of any willfully false report of revenue by the OPERATOR shall be grounds for the immediate cancellation and termination of this AGREEMENT. Permanent books, ledgers, journal accounts and records, will be retained by OPERATOR for the term of this AGREEMENT and any extension thereof, along with collateral papers and forms such as. Original invoices, sales checks or slips, cash register and adding machine tapes and analogous supporting data. The OPERATOR shall, upon the receipt of a written reasonable request from the Director, prepare and submit such reports and analysis of the ope ration of the concessions under this AGREEMENT in such form and content as the CITY may reasonably require in the administration of this AGREEMENT. The OPERATOR shall deliver all data, reports and documents which result from its services to the Director in such form as described in the Scope of Work. 7.5. Audits OPERATOR agrees that the CITY shall, until the expiration of three (3) years after fmal payment under this AGREEMENT, have access to and the right to examine at reasonable times any directly pertinent books, documents papers and records of the OPERATOR involving transactions relating to this AGREEMENT at no additional cost to the CITY. OPERATOR agrees that the CITY shall have access durmg normal working hours to all necessary faciliti es and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this Article. The CITY shall give OPERATOR reasonable advance notice of intended audits. OPERATOR further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the CITY shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right t o examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor mvolving transactions related to the subcontract, and further that CITY shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 5 of 23 audits in compliance with the provisions of this paragraph. CITY shall give subcontractor reasonable notice of intended audits 8. OPERATIONS. 8.1. Occupancy Of Premises The OPERATOR agrees to improve, equip and maintain the Concession Premises as provided in Articles 14.1-14.3. 8.2. Hours Of Operation Except as otherwise provided in this AGREEMENT, the OPERATOR agrees to operate the concessions when any event or attraction is scheduled in CENTER unless prior approval not to operate is granted by the Director. The OPERATOR shall have the concession stands open and in operation a reasonable time before, during and after all events as determined by the Direc tor, but in no event later than 5 minutes prior to the time doors are opened to admit the public to the event. 8.3. Scheduled Events The Director shall give OPERATOR advance written notice (through monthly schedules of events and supplements) of the nature of scheduled events and such mformation as is available regarding probable attendance at such events. OPERATOR shall take all reasonable steps to obtain event information from the Director or his staff, if such information has not already been p rovided. OPERATOR shall be held strictly accountable for furnishing full and adequate service for the full period of time required for any event of which it has reasonable notice. The Director and OPERATOR shall notify the other of cancellations of previou sly scheduled events of which due notice has been given, and shall otherwise use its best efforts to notify the other of the cancellation of events where due notice has not been provided, however, neither the CITY nor OPERATOR shall be liable to the other for the failure to deliver notices of such cancellation The CITY makes no representation or warranty that an event will not be subject to cancellation. 9. PERSONNEL 9.1. Employees The OPERATOR shall be entitled to employ such employees on the premises as are necessary to perform the services required of it hereunder. The OPERATOR agrees to employ, train and supervise personnel with appropriate qualifications and experience and in sufficient num ber to provide all the services appropriate for the concessions granted herein with a minimum of delay for the patrons. The OPERATOR shall abide by all federal, state and local laws, rules and regulations concerning the hiring and employment of its employees. Employees shall be clean, neat, courteous, efficient, properly trained and attendant to patrons of the facilities. Employees shall be attired in clean uniforms at all times when the facility is open to patrons and shall wear a badge with the employe e name or number legibly imprinted. The type and design of the uniforms and identification badges are subject to the reasonable approval of the Director 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. OPERATOR represents that all of its employees and subcontractors who perform services under this AGREEMENT shall be qualified and competent to perform the services required Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 6 of 23 herein OPERATOR agrees to replace any employee or subcontractor that the CITY, in its reasonable opinion, finds unacceptable. In the event the OPERATOR does not provide sufficient personnel to service an event, the CITY reserves the right to obtain additional personnel at the cost of the OPERATOR. 9.2. Manager The OPERATOR shall employ a manager who is reasonably satisfactory to the Director at all times during the operation of the AGREEMENT. If at any time the Director fmds that the OPERATOR'S manager or his or her alternate has discharged his/her responsibilities in an unsatisfactory manner then the Director shall provide OPERATOR with written notice of the same, including a comprehensive summary of such deficiencies . Furthermore the OPERATOR shall replace the manager who discharged his responsibilities in an unsatisfactory manner with a manager that is reasonably satisfactory to the Director. If however, the actions of the manager endanger the health, safety and welfare of any individual the manager shall be immediately removed from the premises. In either event OPERATOR shall have thirty (30) days to replace the manager with a substitute manager. Failure to remove or replace the manager per the terms of this paragraph will constitute a breach of this AGREEMENT. 10. SOLICITATION OF BUSINESS, DELIVERIES, OTHER SALES 10.1. Solicitation of Business The OPERATOR'S solicitation of business shall be made from the stands, booths , specifically indicated in Exhibit A (see 6.1) as well as temporary stands and other locations, approved by the Director or to a walking vendor program specifically approved by the Director for each event or attraction as to, merchandise offered, periods of sale and number of walkin g vendors. 10.2. Deliveries Deliveries of all supplies, goods, wares, merchandise and equipment to the OPERATOR shall be made at a time and location at the CENTER during normal business hours and at a mutually agreed upon location at the CENTER as designated by the Director. The OPERATOR is responsible for accepting all dehveries to his/her operation and shall schedule deliveries outside event hours in the facility, whenever possible. 10.3. Restrictions on Sales by Others The CITY shall prohibit, and will use its best efforts to prevent vendors and peddlers not employed by the OPERATOR from vending or distributing their wares upon the premises under the control of the CITY, unless specifically permitted by this AGREEMENT. It is understood, however, that exhibitors may give away sample -size products (subject to the size limitations as provided above) or sell merchandise intended for consumption off -premises. Sample sizes of products may be consumed on premise. 10.4. Conduct of Other Business The Premises used by the OPERATOR in the CENTER shall be used solely for the transaction of business directly related to the obligations of this AGREEMENT Foods and beverages prepared or stored in the Premises may not be sold for consumption off -premise, without written approval of the Director. It is the intent that relief may be granted from the restrictions of this Article m instances Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 7 of 23 of inventory problems arising from conditions beyond the control of the OPERATOR. The CITY, at its discretion, may allow the OPERATOR to expand their scope of work to include off -premise catered events. In the event approval is given, a mutually agreed fee payable to CITY shall be determined 11. MERCHANDISE 11.1. Merchandise Prices Prices for merchandise for sale shall not be higher than those charged for the same quality merchandise at comparable facilities elsewhere in the Dallas -Fort Worth area. The OPERATOR must display, in a conspicuous location, prices at all stands and on ven dor s equipment. Permanent display signs and the final design and location of all posted prices shall be subject to the reasonable approval of the Director. 11.2. Price Schedule OPERATOR shall establish prices for products that are comparable with the pric es charged for similar products sold at comparable facilities within Tarrant County and submit proposed prices to the Director for approval. Withm 15 days of the execution of this AGREEMENT, the OPERATOR shall submit a detailed "Price Schedule" for all items to be sold. This schedule shall list the proposed quantity and content of each item offered for sale. The prices, quality and unit quantity of all consumable merchandise offered for sale shall be as approved in advance by the Director, provided that the Director shall not withhold or delay his/her approval where such items are comparable (in price and quality) to those offered at agreed upon similar venues which are similarly situated. The OPERATOR shall provide an up-to-date "Price Schedule" to the Director on a not - less -than quarterly basis In the event that the OPERATOR and the Director cannot agree on the size of price increases, then the OPERATOR shall be entitled to increase prices by an amount equal to the increase in the Consumer Price Index (CPI) for food for the Dallas -Fort Worth area as published by the United States Department of Labor, Bureau of Labor Statistics for the most recent period. If the OPERATOR desires to substitute any article for an article listed in the approved "Price Schedule", the written approval of the Director must be obtained. 11.3. Consumable Merchandise OPERATOR will offer customers food, drink and other consumable merchandise of first quality and standard quantity at concession locations Consumables shall be wholesome and pure and shall conform in all respects to federal, state and local food laws, ordinances and regulations. All merchandise kept for sale shall be subject to inspection by representatives of appropriate governmental agencies. Unless otherwise approved by the Director, all ALCOHOLIC BEVERAGES shall be sold in paper or plastic cups, and non-alcoholic beverages m paper or plastic cups, or plastic bottles (provided all lids have been removed where directed by the CENTER). 11.4. Non -Consumable Merchandise OPERATOR agrees that the sale of non -consumable merchandise is not allowed without the prior written consent of the Director. Such approval shall be required a nd considered on an event -by - event basis only and at such times and in such locations approved by the Director. Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 8 of 23 11.5. Advertising All merchandise offered for sale shall be handled without the use of special advertising, signs, displays or oral trade names unless otherwise approved by the Director. OPERATOR shall not cause or permit the advertising in the CENTER and its adjacent grounds, whether for display, advertising or otherwise, without the prior written approval of the Director. 11.6. Temporary Or Portable Concession Stands The OPERATOR shall acquire no rights to locations of temporary or portable concession stands, unless approved by the Director. The CITY reserves the right to require the OPERATOR to move temporary or portable stands and equipment when the needs of events in the facilities so require. Unless approved in advance by the Director, all portable stands will be returned to the storage areas immediately upon the conclusion of the event being served. 11.7. Recycling The OPERATOR shall use its best efforts to use recycled products and/or products such as, but not limited to cups, plates, containers utensils and paper products that can be recycled whenever practicable; provided the same are available at comparable prices, quali ty, quantity and availability to OPERATOR'S standard products. The Director shall, from time -to-time, review the OPERATOR'S use of recycled or recyclable products, and make recommendations as to the use of such products. Consistent with the foregoing, the Director will take into account the cost of usmg recycled products in approving reasonable price or other adjustments to the provisions of the AGREEMENT. 12. OTHER SERVICE. 12.1. Other Services In addition to normal concession and catering functions, the OPERATOR shall provide various specialized services associated with convention/trade show activities included, but not limited to, the following: A. Room Service. The distribution of various snack -type items, at catering rates, in the meeting rooms and office areas utilized by lessees. This type of service is similar in function to the room service normally associated with hotels B. Exhibitor Services. Services usually associated with convention/trade shows in which various areas within the CENTER are utilized for display purposes. Exhibitor services nonnlally fall into the following areas, and for which OPERATOR shall pay catering rates, are as follows 1. Food/non-alcoholic beverage items pro vided to exhibitors as method of entertaining clients. 2. Product storage and/or refrigeration and delivery of it. 3. Product preparation: This area would involve the preparation, i.e., cooking, assembly, etc., of exhibitor product with appropriate delivery when required. Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 9 of 23 C. Personnel Service. On various occasions, the OPERATOR may be called upon to provide personnel for special purposes such as bar tending wait/host staff, or other activities. The special personnel services are not to be confused with the normal personnel required to meet the responsibilities of providing reasonable good quality and efficient service to the tenant in fulfillment of the obligations set forth m this AGREEMENT. D. Staff Catering. On various occasions, the OPERATOR shall provide catering services to staff and volunteers of facility lessees during equestrian or livestock shows and conventions that are not available to the attendees or the general public. 13. CLEANING AND SANITATION. 13.1. The OPERATOR shall be responsible for: A. Cleaning and sanitation of all food service production, storage, and service areas, including equipment, floors, walls, ceilings, and shelving. B. Cleaning of table tops, floors, emptying waste receptacles located in FOOD SERVICE AREAS and other related sanitation functions within the FOOD SERVICE AREAS prior to events, durmg events and following each event. Cleaning and sanitizing all trash and garbage receptacles in the FOOD SERVICE AREAS. D. Cleaning receiving dock areas where food and beverages are delivered (to the extent necessitated by OPERATOR'S use) including the return of all pallets, storage containers, linens, and other equipment used in the conduct of operating the food service. E Arranging for the removal of grease in a manner to avoid collection and spillage. 13.2. The Director shall have the right to reject the character of service and require that undesirable practices be discontinued or remedied Failure to take satisfactory action after not ification in accordance with Article 24 may result in the cancellation of the AGREEMENT. 14. IMPROVEMENT AND MAINTENANCE OF THE PREMISES 14.1 Maintenance Fund The OPERATOR will maintain an Improvement and Maintenance Fund (MAINTENANCE FUND) equal to 1% of the annual GROSS RECEIPTS during the initial term of the agreement to be used for the maintenance and improvement of the catering and concession facilities. It is agreed and understood that the following special conditions will apply to the administration and use of said Improvement and Maintenance Fund as follows: a. The amount paid into the MAINTENANCE FUND shall be placed into an account administered by OPERATOR at the end of each mo nth. b. One half of the fund shall be spent on purposes suggested by OPERATOR. One-half of the fund shall be spent on purposes suggested by CITY. c. Either party may agree to spend any or all of their allowance for purposes suggested by the other party. Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 10 of 23 e. OPERATOR shall furnish CITY with an itemized list of expenditures from the MAINTENANCE FUND at the conclusion of the calendar year. CITY shall have the right to inspect all books and records related to the MAINTENANCE FUND or the account in which same is kept at any reasonable time f. Any improvements upon the FOOD SERVICE AREA which are constructed from such funds shall be and become the absolute property of CITY, subject to the terms of this agreement. g. Any amount remaining in the MAINTENANCE FUND at the termination of this agreement shall become the exclusive property of the CITY without limitation of any kind. OPERATOR shall promptly pay said amount to CITY upon demand upon the termination of the agreement. 14.2. Building Services The CITY will furnish building services as set forth in this Article but will not supply the labor or materials for the OPERATOR'S equipment installations. A. Equipment: The CITY will furnish existing equipment; all other permanent and portable equipment w ill be furnished by OPERATOR in accordance with the provisions of this AGREEMENT. 14.3. Design Control Any equipment, construction and improvement plans, proposals, materials, colors and designs of any improvements shall be submitted to the Director for approval and the OPERATOR shall not commence the construction or installation of any improvements on the Concession Premises or CENTER without the prior written approval of the Director. All proposed future changes of the improvement s and equipment shall be submitted and approved in the same manner for the full term of this AGREEMENT. All equipment, permanent improvements, if any, or other items purchased with Fund monies will become the property of the CITY. 15. MAINTENANCE OF PROPERTY. 15.1. Utilities The CITY will furnish standard outlets and connections as have been installed, for hot and cold water, natural gas and electricity in the Concession Premises (including the concession stands). The CITY shall provide all such utilities to the OPERATOR at no cost to the OPERATOR. The CITY shall also be responsible for designating a point of garbage disposal to which the OPERATOR shall deposit all garbage generated in connection with the CONCESSION SERVICES hereunder. The CITY shall have such garbage removed and shall be responsible for the payment of such removal. The CITY shall also provide existing internet and telephone infrastructure in ` as -is" condition at no expense to the OPERATOR, although the OPERATOR shall pay for its own telephone and internet services and charges. Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 11 of 23 15.2. Right To Enter, Inspect And Make Repairs The CITY and its authorized officers, employees, agents, contractors, subcontractors and other representatives shall have the righ t, at such times as may be reasonable under the circumstances and with as little interruption of the OPERATOR'S operations as is reasonably practicable, to enter upon and in the Concession Premises for the following purposes: A. Inspection: To inspect such premises to determine whether the OPERATOR has complied and is complying with the terms and conditions of this AGREEMENT. B. Maintenance: To perform maintenance and repairs in any case where the OPERATOR is obligated, but has failed to do so after the Director has given the OPERATOR reasonable notice to do so, in which event the OPERATOR shall reimburse the CENTER for the reasonable cost thereof promptly upon demand. C. Access: To gain access to the mechanical, electrical, utility and structural systems of the CENTER for the purpose of maintaining and repairing such systems; the maintenance and repair of the same being the sole responsibility of the CITY except where occasioned by the negligence or misconduct of the OPERATOR. 15. 3. Maintenance And Repair The OPERATOR shall, at its sole expense, maintain, repair and replace, if necessary, all OPERATOR'S equipment and furnishings utilized in connection with the CONCESSION SERVICES hereunder. The CITY shall maintain repair and replace CITY S equipment and furnishings utilized in connection with the CONCESSION SERVICES HEREUNDER and any structural components of the CENTER, including without limitation the permanent existing water, gas or sewer lures, electrical service and telephone infrastructure to the various facilities. The foregoing exception is not applicable where such repair or replacement is on account of the actions of OPERATOR or its officers, agents or employees. The Director must approve any material alteration or replacement of equipment or furnishings in advance. The OPERATOR shall not engage in any waste, injury or damage upon or to the CENTER or its equipment and appurtenances At the expiration of this AGREEMENT, the OPERATOR shall leave the Concession Premises and its equipment and appurtenances in at least the same condition as that which existed at the commencement of the AGREEMENT, plus any additions, less normal wear and tear 15.4. Janitorial Service The OPERATOR shall provide its own janitorial service (subject to approval of the Director) for pick-up clean-up and disposal of all litter for all space assigned or used in operation The OPERATOR shall also clean and keep service areas free of debris at all times, particularly prior to, durmg, and after events. 15.5. Cleanliness Of Work Areas The OPERATOR shall keep neat, clean and maintain in a sanitary condition the Concession Premises and the surrounding areas used by OPERATOR. The related FOOD SERVICE AREAS shall be cleaned thoroughly prior to, during and after an event. The OPERATOR shall comply with all laws ordinances, and regulations of all governmental bodies pertaining to the operation of food serving establishments. Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 12 of 23 15.6. Cleanliness Of Food Service Areas The OPERATOR shall keep each stand, commissary and work area, as well as the condiment stands and immediate vicinity on the concourse, clean and free from all rubbish. Repair for damage done by OPERATOR or its agents and employees to floors, walls, windows or other property in such radius and other FOOD SERVICE AREAS will be the responsibility of the OPERATOR. The OPERATOR must employ the necessary personnel before, during, and after the hours of each ev ent to comply with these provisions subject to the approval of the Director. The OPERATOR shall provide sufficient waste receptacles at each location and make certain that they are kept clean and promptly serviced during and after each event. 15.7. Waste Removal Waste foods and supplies will be kept in closed containers until removed from the CENTER. Such removal shall be made during and after each event. However the CITY will be responsible for the removal of debris in areas normally considere d public areas, i.e seating areas in the CENTER corridors, etc., except when utilized for food service purposes. 15.8. Rodent & Pest Control OPERATOR shall keep the Concession Premises free from infestations of pests and rodents and shall be responsible for the payment of extermination services to maintain a rodent and pest free Concession Premises. The CITY shall be responsible for treatment of all o ther areas within the CENTER. 16. TERMINATION. 16.1. Written Notice. The CITY may terminate this AGREEMENT at any time and for any reason by providing the other party with 30 days written notice of termination. 16.2 Duties and Obligations of the Parties. In the event that this AGREEMENT is terminated prior to the Expiration Date, the OPERATOR shall pay CITY commissions for services actually rendered up to the effective date of termination and OPERATOR shall continue to provide the CITY with services in accordance with this AGREEMENT up to the effective date of termination. 17. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. OPERATOR hereby warrants to the CITY that OPERATOR has made full disclosure in writing of any existing or potential conflicts of interest related to OPERATOR'S services under this AGREEMENT. In the event that any conflicts of interest arise after the Effective Date of this AGREEMENT, OPERATOR hereby agrees immediately to make full disclosure to the CITY in writing. OPERATOR for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the CITY as confidential and shall not disclose any such information to a third party without the prior written approval of the CITY. OPERATOR shall store and maintain CITY Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt CITY Information in any way. OPERATOR shall notify the CITY immediately if the Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 13 of 23 security or integrity of any CITY information has been compromised or is believed to have been compromised. 18. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that OPERATOR shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the CITY. Subject to and in accordance with the conditions and provisions of this AGREEMENT, OPERATOR 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 officers, agents, servants, employees, contractors and subcontractors. OPERATOR acknowledges that the doctrine of respondeat superior shall not apply as between the CITY, its officers, agents, servants and employees and OPERATOR, its officers, agents, employees, servants, contractors and subcontractors. OPERATOR further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between CITY and OPERATOR. 19. LIABILITY AND INDEMNIFICATION. OPERATOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF OPERATOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. OPERATOR COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OPERATOR'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OFANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF OPERATOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 20. ASSIGNMENT AND SUBCONTRACTING. OPERATOR 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 OPERATOR under which the assignee agrees to be bound by the duties and obligations of OPERATOR under this AGREEMENT. The OPERATOR 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 OPERATOR referencing this AGREEMENT under which the subcontractor shall agree to be bound by the duties and obligations of the OPERATOR under this AGREEMENT as such duties and obligations may apply. The OPERATOR shall provide the CITY with a fully executed copy of any such subcontract. Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 14 of 23 21. INSURANCE OPERATOR shall provide the CITY with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this AGREEMENT: BASIC INSURANCE REQUIREMENTS The OPERATOR shall procure and maintain at all times, in full force and effect, a policy or policies of insurance to provide the types and limits of coverage specified herein 1. Commercial General Liability (CGL) Insurance Policy $1,000,000 each occurrence $2,000,000 aggregate limit 2. Automobile Liability Insurance Policy $1,000,000 each accident on a combined single limit basis or $250,000 Property Damage $500,000 Bodily Injury per person $1,000 000 Bodily Injury per occurrence A commercial business policy shall provide coverage on "Any Auto", defined as autos owned, hired and non -owned 3. Workers' Compensation Insurance Policy Statutory limits Employer s liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Disease - policy limit 4. Liquor Liability: The policies of insurance shall protect the CITY and the CENTER premises as additional insureds for and against damages, judgments claims, liens, costs and expenses arising under Texas law or under any other present or future law, statute or ordinance of the CITY or other governmental authority having jurisdiction at the CENTER by reason of any storage, sale or use of ALCOHOLIC BEVERAGES on or from the premises and shall include the following Bodily injury or property damage for which any insured may be held liable by reason of: a) Causing or contributing to the intoxication of any person; Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 15 of 23 b) The furnishing of ALCOHOLIC BEVERAGES to a person under the legal drinking age or under the influence of alcohol; or c) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of ALCOHOLIC BEVERAGES. and shall be in the following limits* $1,000,000 Each Common Cause $1,000,000 Aggregate Limit GENERAL INSURANCE REQUIREMENTS: a. The CITY, its officials, employees agents and officers shall be endorsed as an "Additional Insured' to all policies except Employers Liability coverage under the Workers Compensation policy. b. All policies shall be written on an occurrence basis If insurance policies are not written for specified coverage limits an Umbrella or Excess Liability insurance for any differences is required Excess Liability shall follow form of the primary coverage. c. All policies shall be written by an insurer, with an A - VIII or better rating by the most current version of the A. M Best Key Rating Guide or with such other financially sound insurance carriers acceptable to the CITY. d. Deductibles shall be listed on the Certificate of Insurance and shall be on a "per occurrence" basis unless otherwise stipulated herein . e If coverage is underwritten on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the AGREEMENT and the certificate of insurance shall state that the coverage is claims -made and the retroactive date. The insurance cove rage shall be maintained for the duration of the AGREEMENT and for five (5) years following completion of the service provided under the AGREEMENT or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the CITY shall evidence such insurance coverage . f. Certificates of Insurance shall be delivered to the City of Fort Worth 3401 W Lancaster Avenue, Fort Worth, Texas 76107, evidencing all the required cov erages, including endorsements. g• The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to the Risk Manager and/or Public Events Department 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. h All policies shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the CITY. i. Any failure on part of the CITY to request required insurance documentation shall not constitute a waiver of the msurance requirement specified herein. j. The CITY shall be entitled, upon request and without expense, to receive certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 16 of 23 or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. k. The CITY, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by the CITY based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting parry to the City of Fort Worth. The CITY shall be required to provide prior notice of ninety (90) days . 1. Thirty (30) days notice of cancellation or non -renewal is required and shall contain the following language 'This insurance shall not be canceled, limited in scope or coverage, cancelled or non - renewed, until after thirty (30) days prior written notice has b een given to the City of Fort Worth. A ten days notice shall be acceptable in the event of non -payment of premium. 21.1 Certificates. Certificates of Insurance evidencing that the OPERATOR has obtained all required insurance shall be delivered to the CITY prior to OPERATOR proceeding with any work pursuant to this AGREEMENT. All policies shall be endorsed to name the C1TY as an additional insured thereon as its interests may appear. The term CITY shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services. Any failure on the part of the CITY to request required insurance documentation shall not constitute a waiver of the insurance requirement. A minimum of thirty (30) days notice of cancellation or re duction in limits of coverage shall be provided to the CITY. Ten (10) days notice shall be acceptable in the event of non- payment of premium. Such terms shall be endorsed onto OPERATOR'S insurance policies Notice shall be sent to the Risk Manager City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the CITY Attorney at the same address. 22. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. OPERATOR agrees to comply with all applicable federal, state and local laws, or dinances, rules and regulations If the CITY notifies OPERATOR of any violation of such laws, ordinances, rules or regulations, OPERATOR shall immediately desist from and correct the violation. 23. NON-DISCRIMINATION COVENANT. OPERATOR, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of OPERATOR'S duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by OPERATOR, its personal representatives, assigns, subcontractors or successors in interest, OPERATOR agrees to assume such liability and to indemnify and defend the CITY and hold the CITY harmless from such claim. Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 17 of 23 24. 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 (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, retu rn receipt requested, addressed as follows: To The CITY: City of Fort Worth Attn: Director of Public Events 1000 Throckmorton Fort Worth TX 76102-6311 Facsimile: (817) 392-2756 To OPERATOR: Coburn's Catering Service Inc. Attn Jerrell Coburn 801 N Main Street Fort Worth, TX 76164 Facsimile* (817) 336-0417 25. 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. 26. NO WAIVER. The failure of the CITY or OPERATOR 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 OPERATOR'S respective right to insist upon appropriate performance or to assert any such right on any future occasion. 27. GOVERNING LAW / VENUE This AGREEMENT shall be construed in accordance with the internal 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. 28. 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. 29. FORCE MAJEURE. The CITY and OPERATOR shall exercise their best efforts to meet their respective duties and obligations as set forth in this AGREEMENT, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable cont rol (force majeure), including but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 18 of 23 30. HEADINGS NOT CONTROLLING. Headings and titles used in this AGREEMENT are for reference purposes only and shall not be deemed a part of this AGREEMENT. 31. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised 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 interpr etation of this AGREEMENT or exhibits hereto. 32. AMENDMENTS / MODIFICATIONS / EXTENSIONS. No extension, modification or amendment of this AGREEMENT shall be binding upon a party hereto unless such extension, modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such party. 33. ENTIRETY OF AGREEMENT. This AGREEMENT, including the schedule of exhibits attached hereto, the REQUEST FOR PROPOSAL (RFP) and Response to the RFP and any documents incorporated herein by reference, contains the entire understanding and AGREEMENT between the CITY and OPERATOR 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. 34. DEFINITIONS. As used herein, the following tennis will have the meaning ascribed to such term below: A. ACCOUNTING PERIOD: Refers to a calendar month, which twelve calendar months occur each fiscal year, for a total of 365 days. AGREEMENT: shall refer to the license agreement or contract executed between the Operator and the City in accordance with these specifications and the Operator's proposal submitted to the City, which will be incorporated into the License Agreement. C. ALCOHOLIC BEVERAGE• Includes wine, distilled spirits, and beer. D. CENTER shall refer to the facility known as Will Rogers Memorial Center located at 3401 W Lancaster, Fort Worth, Texas, 76107. E. CITY shall refer to the City of Fort Worth, Texas. G. CONCESSION SERVICES• The sale of food, drinks (including alcoholic beverages), and other items approved by the Director of the Public Events Department (Director) or his designee at concession stands, vending machines and at other areas designated by the Director or his designee. Right to sell Concession Services may or may not include employees' assembly rooms or work Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 19 of 23 areas. Other services which may be required to be performed by Operator shall include, but are not limited to, operation of cafeteria, and other food and beverage service operations as may reasonably be required by the Licensee, Director or his designee. H. DIRECTOR OR HIS DESIGNEE shall refer to the Public Events Director of the City of Fort Worth Texas or his authorized representative. I. EVENTS shall refer to any performance, production, show or activity sc heduled in the Will Rogers Memorial Center. J. FOOD SERVICE AREA: Refers to any space whether it is permanent, temporary or portable within the Will Rogers Memorial Center where food and/or beverage is either produced or served. K. GROSS RECEIPTS: Refers to the total amount of money received or to be received by Operator 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 service rights granted under the Agreement, provided, however that any sales taxes and/or alcoholic beverage taxes imposed by local or federal law which are separately stated to and paid by a purchaser of any item sold by Operator or anyone acting by or on behalf of Operator 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 or to be paid by a purchaser of any services provided by Operator, including but not limited to rental equipment, labor, and coat check The sale of any goods, food, beverage or other items that are returned by the purchaser and accepted by Operator exclusive of any sales tax may be deducted from Gross Receipts. L IMPROVEMENTS AND MAINTENANCE FUND: Payment made to City by Operator placed in a separate fund to be used for the purposes of improving concessions operations, purchase of improvements or equipment and for advertising, marketing and promotion of usage of facilities at Center. M. LICENSEE shall refer to any person or entity that may from time to time enter mto any agreement for the use of the Will Rogers Memorial Center for a particular purpose. N. EQUESTRIAN / LIVESTOCK EVENT* Event where an Association rents the Equestrian Center for the multiple days for the purpose of providing day long competitions for the run of the show Equestrian / Livestock events, for the purpose of this definition do not include ticketed entertamme nt events, including but not limited to professional bull rides and rodeos. O. NON -ALLOWABLE EXPENSES• Expenses that are specifically not allowable expenses that cannot be charged against gross receipts. P. OPERATOR shall refer to that party selected by the City to provide the services set forth herein Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 20 of 23 Q. STAFF CATERING: Shall refer to the catering services provided to the staff or volunteers of an equestrian or livestock show or convention that is not available t o attendees or general public. R. THIRD PARTY VENDOR: Shall refer to an independent provider of specialty food items that may be given permission to directly sale specialty or food items. S. VENDING: Food service vending from automatic machines. 35. SIGNATURE AUTHORITY. The person signing this AGREEMENT 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 authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this AGREEMENT. 36. INVALIDITY OF PROVISIONS. 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 herein contamed; provided, however, that the invalidity of any such covenant condition or provision does not materially prejudice either OPERATOR or City in connection with the rights and obligations contained in the valid cove nants, conditions or provisions of this AGREEMENT. 37. PUBLIC INFORMATION ACT CLAUSE OPERATOR understands and acknowledges that the City is a public entity under the laws of the State of Texas and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. OPERATOR shall clearly indicate to the City what information it deems proprietary. If the City is required to disclose any documents that may reveal any OPERATOR Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, the City will notify OPERATOR prior to disclosure of such documents, and give OPERATOR the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to OPERATOR's information to those persons within its organization who have a need to know for purposes of management of this Agreement. The City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information The City will use its best efforts to secure and protect Company's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by OPERATOR will be protected from public disclosure if release is required by law The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 21 of 23 38. TAXES AND FEES. The OPERATOR covenants and agrees to pay promptly all lawful general taxes, special - assessments, excises, license fees, and permit fees which arise solely on account of the Concessionaire's operation in the CENTER and take out and keep current all licenses, municipal, state or federal, required covenants and agrees not to permit any of said taxes, assessments, excises fees or charges to become delinquent. 39. OTHER REMEDIES. Any termination of this AGREEMENT as provided in this Article will not relieve OPERATOR from paying any sum or sums due and payable to City under the AGREEMENT at the time of termination, or any claim for damages then or previously accruing against OPERATOR 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 OPERATOR 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. 40. FISCAL FUNDING. As to the City's performance of the obligations in this Agreement, the OPERATOR acknowledges and agrees that the City is a governmental entity, and because of statutory, constitutional and City Charter provisions, it cannot commit to the funding of the City's obligations described herein beyond each fiscal year Therefore, the funding obligations of the City described herein are subject to and conditioned upon the City Council of the City appropriating for each fiscal year sufficient funds to satisfy such obligations. 41. SURRENDER OF POSSESSION. No notice to quit possession at the expiration date of the term of this AGREEMENT shall be necessary. OPERATOR covenants and agrees that at the expiration date of the term of this AGREEMENT or at the earlier termination thereof, it will peaceably surrender possession of the Concession Premises and applicable licenses in good condition reasonable wear and tear, and acts of God excepted, and the City shall have the right to take pos session of the Concession Premises subject to the provisions of Article 15.2. [SIGNATURE PAGE FOLLOWS] Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 22 of 23 IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT in multiples this DIS —te day of �Ns)....„,3QA,\ , 2010. CITY OF FORT WORTH: usan Alanis Assistant City Manager Date: 0 RECOMMENDED: I A 4, By: ' 1 Kirk N. Slaughter Director of Public Events APPROVED?'AS TO FORM AND LEGALITY: By: i( Cherl K. Byle Assistant City Attorney ATTEST: By: Marty Hendrix City Secretary AGREEMENT AUTHORIZATION: M&C: Q (vfri Date Approved: I 2. 14-10 COBURN'S CATERING SERVICE INC. /Th By: Name: J Coburn Title: resident Date: jN%¶000c�oo K� i lc? 0�-0 0�'4a�°mocl o° /f Nikvim. r lisb.aolc;P# #(.> Contract for Exclusive Concession and Alcoholic Beverage Services at Will Rogers Memorial Center Page 23 of 23 rat 47 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Nxhibit "A' Concession Premises i i 1E1111II117II' TA IH111E11Ifllli .;1111111111 i 'II 4t r' rF 01 e., n.t,tt%ASAc s>r1r. ' �' ;. 7..� 1 k r .i 4 .t Seepag0?'i : `iliiI;Wili; nu. I z ? 1, r Rftmn F: ft9P r .•aHH«n13}1HNiul!{ a • .,:).„ %A..ru+• lvrvrft+tw WI 1: tfy �iiH 1,1:.1Mi LPr_ j '� ollscupt f tans . Ijjjjjj Hu.0 1 (, artnr^u Ic I.n :no Li1 ter r I •I I I I 14.14 1_I 1 T • L (v t: ;r r L IE 1� t }. WILL ROGERS MEMORIAL CENTER t]tja,{,riiq:lr{ Iljiiati =I{p1 i{lijltL'll„ uu ;11 I ,I 11 1.H1 ! l i ltn, {1i.w �ylrJ HiH I - 3401 Kest la ostes • Fat Wain, Tezns 76)0? • 1317) 391S1IDW {7469) • Fix {8I1) 397.8170 YU1 e tallIffifittill 44r... �. 3enm EiirRHI L"TS• 9fi. s.i?'rtmF11 1HMI?! ELM -RIMS! El ilizal :tree, .zrtn Ca Hf itr�.l 1I{ I 1 p1 r1) t 4 M K W j •.--I, .''..Li Lirutt:.. ! 4 •-�i l t T • ' l I i r l.I;'!i f`,IIl . 1 1t E tt f 11RL:111 p1 1 'Illy r y Q Eli :1] . n 1! Jr. ti; lift H "•-i4Kt tE,ir. i k flan' 11- H i{ 1 i 1 i 1 71 ?'�1wnhC.'ii HL1:3IEiTE! 67!Ei!1HI.11 tt ,E�,C t t t,sr:.I 1"1 i t 1 101 ' I *1'"" 1' !.i'7'-+'1?ilt 'i EFi�fTFil i✓: k ^1� t_t.i{ 1 ..rw-, . 1 _ I .11 . I W ."F.. • •. Lelia'+1: u.m t.tt 0 AMIE ASSOI MARK 0 tom" ,, b: 1%1 r _� �. .__—'-1 �,• _.., .___— .I r-- — : 6 W-✓'..,..._.. ,ar, 1 li;i1111:171; 1�11 c. • r - r I 1 1 • �............._.!i;1.:71•C:u1 G:;La(ri.lil!ai:!11d11n1.a ..� •AV .HSV 1 (:Pi1t:.i1.1Ca:.:.:• IIjj r1 • O21 t431Vt,. f ! v,.JC ri-; • • DRItWORTH Q WIIl RODERS STATUE 0 JOHN )USTPN STATUE Q MIDNIGHT SIAIUE {j SOUTHWESTERN EXPOSITION HISTO Concession Stands = X Kitchen = 0 Will ROGERS AUDITORIUM ;'.?SG pmmtcmt -V% 111••tdH2Oilr i :nl/l?ti✓ ei AMON 6, CARTER JR. EXHIBITS NMI 1I700E11 u. It. fil�.il! OWT :a,rcr:t) h b&ta- Offices = O tstrettot I nttM t>M9 Aar. ::a trc,:4.i ARENA :�na 1Sm:t' e , 4& 1 iIl' 4 ; At/ L4lM1a�CyC tRrtAt1V:' 0 R101ARDS0N4ASS BUUDWHG Oa: 21 S CUY) e h. 776��Tt�,trzce,El' 10- 1 10 gnitect>ta i:41.1 .t14 2 Gti 111T4 dr`;, 11:R:'i I1:1:4.`I":1 IC &O3 •q II, Itie rrl,,;uly! Edikt tt 6!• , !it/?1t+<Ie tat: :4a'e9TM Q W. R. WATT ARENA 99? 47741•nh11 :An, O CHARSH t KIT MONCRIET BUILDING 655 t7n4.•Ern 91r : 1 SI/ t1S:F'elez 11'Al rx• ,. •'d•'n1; -:witch::. 3 au-ti Eame,.,I^.0 o- 3^1i* e'Ja1Ct, rEt• Ir •rilh$.' II) UVESIOCX BARNS '.7.0Yf0 :fi! 25 are.. E m]rc1tw 144,7 i RCEl tn!r i • t t . 74.1 tulrre+ ! .com •.a ire :.i;YO 1;1 1!rkvi yr.L.±�: shn.S;,1'r:7 4a;; ",n; titr5 b,tr • i t itiirtml tS! tt$'. •rift •21$tyq it•, ::ten r)It1 M.N:Ij;xt Tc •:r4!•r {}'- -dZd /vac Gla/ dorriefl er-.i5 eic• in{07A) 1:2,e77962.,,C151/Z EXHIBIT A CONCESSION PREMISES (CONTINUED) DETAIL OF COLISEUM 'AGE 2 OF 3 r C 0 EXHIBIT fi CONCESSION PREMISES (CONTINUED) DETAIL OF TOWER HALLWAY PAGE 3 OF 3 JJ • City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 12/14/2010 DATE: Tuesday, December 14, 2010 LOG NAME: 25WRMC-CONCESSION AND ALCOHOL SERVICE SUBJECT: Authorize a Contract with Coburn's Catering Service, Inc., to Provide Exclusive Concession and Alcoholic Beverage Services at the Will Rogers Memorial Center for a Period of Six Months (COUNCIL DISTRICT 7) REFERENCE NO.: **C-24648 RECOMMENDATION. It is recommended that the City Council authorize the City Manager to contract with Coburn's Catering Service, Inc., to provide exclusive concession and alcoholic beverage services at the Will Rogers Memorial Center for a term of six months to begin on January 1, 2011 and expire on June 30, 2011 with options to renew for up to seven additional months. DISCUSSION: The contract between the City of Fort Worth and Aramark Sports and Entertainment (Aramark) for the concession and alcoholic beverage services expired on August 31, 2010. Aramark agreed to hold over until December 31, 2010 to allow the City an opportunity to solicit competitive bids for a new provider. On August 11, 2010, a Request for Proposals (RFP) No. 10-0303 was issued for food, beverage and alcoholic beverage services and related concession and catering services at Will Rogers Memorial Center. Based on the business model at the Fort Worth Convention Center, exclusive catering was made a component of the RFP at the Will Rogers Memorial Center. On November 2, 2010, the City Council rejected all bids based on the business model that included the exclusive catering component. In order to allow staff an opportunity to develop a new request for proposals based on an updated business model, it was necessary to obtain an operator for a short term basis in order to provide the concession and alcoholic beverage services for the facility's users. Coburn's Catering Service, Inc. (Coburn's) currently serves as the concessionaire and alcoholic beverage provider for the Fort Worth Stock Show and Rodeo. They are a Fort Worth, family owned and operated concession and catering company. Coburn's has operated in the facility during the Stock Show and possesses the equipment required to provide concession and alcoholic beverage services. Coburn's has agreed to provide the services at the same rate that had been previously offered by Trinity F&B Services, Inc. Coburn's Catering Service, Inc., will pay the City the following commissions: 25% of gross receipts of Alcoholic Beverages & Mixed Drinks 25% of food and non-alcoholic beverages at permanent or temporary concession stands 50% of revenue from Third party Vendors Logname: 1d2 Catering at the facility will remain open to approved caterers who meet the established criteria, agree to pay the established commission based on gross receipts less sales tax, and have the capacity to provide health permits and liability insurance as well as have the ability to contract with the City. Council policy restricts the licensing for the sale of alcoholic beverages to one provider. In 2011 due to the transition of providers, the City will retain the rights to work through these and other related issues to insure event requirements are met CONTRACT TERM — Upon City Council's approval, the contract will begin on January 1, 2011 and end on June 30, 2011 and excludes the approximately 30 days each year in January and February that the facility is leased to the Southwestern Exposition and Livestock Show. RENEWAL OPTIONS — This contract may be renewed for up to seven additional months at the City's sole option. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City s obligations during the renewal term M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by Public Events Department and approved by the M/WBE Office because the purchase of goods and services is from sources where subcontracting or supplier opportunities are negligible. The Will Rogers Memorial Center is located in COUNCIL DISTRICT 7, but serves Fort Worth residents in ALL COUNCIL DISTRICTS. FISCAL INFORMATION / CERTIFICATION: The Financial Management Services Director certifies that the Public Events Department is responsible for the collection and deposit of funds due to the City. FUND CENTERS TO Fund/Account/Centers FROM Fund/Account/Centers CERTIFICATIONS: Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: Susan Alanis (8180) Kirk Slaughter (2501) Betty Tanner (2502) ATTACHMENTS 1. MWBE Concessions at WRMC.pdf (CFW Internal) Logname: 1d2 City of Fort Worth Departmental Request for Waiver BE/WBE Subcontracting/Supplier Goa Public Events DEPARTMENT NAME: Food. Beverage "& Alcoholi Rogers Memorial Center NAI IE OF PROJECT/BID; PROD Prior to advertise wire ments should not of the conditions listed bel son (s) for requesting':a $ N/A ESTIMATED COST age Services and Related Concessio NAG onfractingLinauaging :tiepartuient shall d pplied. IvIBE/WBE requirements may lie iaived"upor xists the :aontractii nglmanagirig department shall no If the contracting/managing 'departn er may appeal to the City. Manager, or desi PROPOSAL DATE bidlproposal is "one, which. rovsl of the M/WB nager via this=form, stal Please Check Applicable Reason: A public or administrative erriergency exists provided with unusual: immediacy, or chase of goods or ser negligible; or e application of the provisions of this ordinancewill unduly delay acquisition of the goods or services; or E; Waiver is-solicite rig department's projec The Pu food; bev users. W, project ai the MBE; lic. aciut�y or> earvltce" v� ventsDepartent "is see ;e arici alcoholic beverage service host:iainy evcnttseachyear tr lie opportunities for subcoz trac E Subcontract igf Stipp]ier Goy ve request; iified ven at'.tYie, Wil atnrequire txg are "ne rs to sulirrut proposals" to "provide exclusive>-. ogers- Memorial center for facili . ese" services: This is a revenue produei ig? �giblc; ' We resgecttliv=reciuest-a waiver ip needd FIDE USE ONLY; Approved: ature o E Autho so el of Approved Signature of M/WBE Au orized Personnel a