HomeMy WebLinkAboutContract 29987 CITY ECRETARY' '
u CONTRACT NO'.
CONCESSION AGREEMENT
T
BETWEEN THE
CITE"OF FORT WORTH
AND THE
FORT WORTH PARKS AND COMMUNITY SERVICES SPORTS ADVISORY
C OUNCI G; I TC.
STATE OF TEXAS §
COUNTY OF TARRANT §
THIS AGREEMENT is made and entered into by and between the City f Fart
y Worth, a
hone rule municipal corporation situated in Tarrant, Denton and wise Counties
Texas, acting
herein by and through its duly authorized Assistant, City Manager, hereinafter called "
g � Xed Clty , and
the Fort worth Parks and Community Services Sports Advisory Council Inc. a Tex non-profit
corporation, acting herein by and through its duly authorized President, hereinafter called
"Concessionaire."
ITNESS� ETH
WMREAS, the City of Fort Worth, Texas awns and operates numerous athletic • . .
facilities
throughout the City for the use and benefit of the public; and
WBEREAS, the Fort Worth Parks and Community Services Sports Advisory Council
Inc., 1s a Texas non--profit corporation, incorporated for the ose of representing rese '
p P nt�ng amateur
athletes and athletic organisations; promoting physical education and standardizing
g athletic rules
and
wI ffiR AS, the Fort Worth Parks and C one uni ty Services S orts Advisory Council has
demonstrated its commitment to the continuin g i p rove nent, development, operation on and
maintenance of Fort worth Parks and.Community Services Department athletic facilities es and
programs; and
wBER.EAS, the Fort worth Parks and Community Services Sports Adviso ry Council has.
heretofore entered into concession agreements with the City for designated e
_ _ gnated Pans and
Community Services Department athletic facilities and programs (City Secretary Contract Nos.
1 9902 and 23440), such agreements to be superceded by this concession'agreement;gr , anal
VVTMRFAS, the City Council of Fort worth has approved the execution '
pp n of this
concession agreement by adoption of Ma or and Council Communication Number 19549 on
April 15, 2003,
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.. . .. .. ...... .
NOW9 THEREFORE, in consideration of the mutual covenants and agreements .of-the
parties,the City and the Concessionaire do hereby •
y gree to the following-
SECTION 1.
City grants to Concessionaire a '
nonexclusive license and privilege to sell food,
beverages, merchandise, si
dollars ($2,000), whichever is greater, shall be paid to the City's General Fund '
. tY and eighty p erc ent
(80%) shall be deposited into a special-account to be maintained b y the Concessionaire but to be
used solely for the operation of the Fort worth.Parks and Community Service `
. ty s Sports Advisory
Council, Inc. and the improvement, operation or maintenance of Parks and '
. Cornrn.�.ty Services
athletic facilities and programs. All expenditures from said special account produced by revenue
of Gateway Park concessions shall be made only with the written a pp roval o f the Di
rector of
Parks and Community Services. Payments made to the City's General Fund shall be on an
annual basis, with payment to be made within ninety(90) each.da s of the end of
Y contract year.
The concessionaire shall submit a ent to the i un •
p Ym C ty of Fort worth Parks and Community
Services Department Administration office, to the attention of the Northeast
ast Region Senior
Administrative Assistant.
SECTION 6.
Concessionaire shall keep complete and accurate records, books and accounts
ants accordrn.g
to customary and accepted business practices, and, g enerall y accepted accounting principles.
Concessionaire shall provide a detail of revenue for each ' '
. h concession location. Quarterly, on or
before the tenth. 1��' day of Tana. .
( Y January, April, June and October, Concessionaire shall
furna.sh the
Director or his or her designee, a signed statement showing he
g amount of all gross receipts from
concession operations.
Concessionaire agrees that the City ill have the t to audit .
tY �. d1t the finan.cral and business
records of Concessionaire that relate to this Agreement collective)
( y "Records") at any time'
during the Ternn of this Agreement and for one 1 year thereafter in
( } Y order to determine
compliance with this Agreement. Throughout the Terra. of
� this Agreement and for one (1) year
� Y
thereafter, Concessionaire shall rake all Records available to the Parks and ' •
Community Services
Department 4200 South Freeway, Suite 2200 Fort worth Texas 76115-1499 or at another
location in the City acceptable-to both parties following reasonable d vans e notice by the City
anal'shall otherwise cooperate fully with'the City during any audit. Notwithstanding any�.n
g to
e eon: ary ereln, this Section shall survive expiration or earlier termination of this Agreement.
gr nt. .
SECTION 7.
Concessionaire may, at its sole expense and with prior written cons
p of the Director,
install signs in the areas where it operates its concessions. Provided however ` a' '"k
u�
J�J
�� r
Y
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. Concessionaire will be responsible for any damage to the property and replace
such damages at their own expense. -Concessionaire 'covenants and agrees not to damage or
F -
mjure any property in the installation,maintenance, or removal of such signs.
SECTION S.
City and Concessionaire agree that City, acting by and through its authorized
representatives, shall have at any and all times the fall and unrestricted right to enter upon the
premises occupied by any concession facility without or •constitut'
9 ing a termination'of
the use or an interference of the use of the Premises by the Concessionaire) for the purpose of
inspecting same and doing any and all things with reference thereto which City i's obligated to do
as set forth in this Agreement or which may be necessary for the proper conduct and operation of
its public parks, provided' this shall not authorize or empower City to.direct the activities of the
Concessionaire or assume liability for Concessionaire's activities.
SECTION 9.
This Agreement will be subject to all applicable federal, state and local laws., ordinances
rule's and regulations, including, but not limited to, all provisions of the City's Charter and
ing
ordinances, as amended.
Concessionaire shall comply with all federal, state, and to laws, rules and regulations
as well as with all regulations, restrictions and requirements of the police, fire, and health
departments now or hereafter in effect which are applicable to its operations. Concessionaire
shall obtam' and keep in effect at its own cost and expense all licenses and permits necessary for
its operations.
SECTION 10.
Conc'essloonaire covenants and agrees that it shall not engage 'in any unlawful use of the
Premises. Concessionaire farther agrees that it shall not permit its officers, agents, servants,
employees, contractors,, subcontractors, patrons, licensees or invitees to engage in any unlawful
use of the Premises and Concessionaire immediately shall remove from the Premises any person
engaging in such unlawful activities. Unlawful use of the Premises b Concessionaire •*
y itself elf shall
4
constitute an innm ediate breach of this Agreement. Concessionaire agrees to comply with all
federal, state and local lags; all ordinances, rules and regulations •
gu tuns of C1ty, all rules and
regulations established b the Director; and all •
Y rules and regulations adapted by the City Council
tY
pertaining to the conduct required at airports owned and o erat
p ed by City, as such laws,
ordinances, rules and regulations exist or may •
Y ereafter be amended or adopted. If City notifies
Concessionaire or any of its officers, agents, employees,, contractors su bcantractors, licensees or
invitees of any violation of such lags, ordinances rules or re gulations, Concessionaire shall
immediately desist from and correct the violation..
SECTION 11.
Concessionaire shall not discriminate on the basis of race color, creed,
eed reb.g7on, see, age,
military status, disability, sexual orientation or national on •
gm. �.n the performance of this
Agreement. This Agreement is made and entered into with reference specifically
. to Division.3 of
Article III of Chapter.17 of the Code of the City of Fort worth 195 '
� ), as amended, an.ordinance
prohibiting discrimination in employment. Concessionaire hereby agrees that it will fully
comply with all provisions of same and that no employee or employee applicant has been or will
ll
be discriminated against as prohibited by the term s of such,ordi
nanc e.
SECTION 12.
(a) Concessionaire shall not make or cause to be made any alterations, additions on5 ar
iznprovernents to City property without the prior written consent of the Director of the City of
Fort worth Parks and Community Services Department.artment. Conc es sio nac
re
. shall present to the
Director plans and specifications for such alterations, . .
tans, addlt�ons and improvements at the time,
such approval is sought.
(b) All alterations, additions and improvements to Ci ty p r operty made with th the
written consent of the Director shall, upon completion and acceptance, p p ce by the City become the
property of the City. Concessionaire may be required to remove at its expense, any alterations
. . . . .. . ...
a itions' or imp rovern:ents not rneetin.g specifications as a roved b the Ci
pp y ty.
(c) Concessionaire agrees that it shall do no act nor make
any contract that may
create or be the foundation for any lien upon or interest in the City's tY park property and any such
-contract or lien attempted to be created shall be void. Should an purported .
. y purp ed hen on City park
Ty
1
property be created or filed Concessionaire, at its sole expense, shall liquidate and discharge
fie
sam e within ten (10) days after notice from City to do so.
SECTION 13.
(a) Either party may terminate this agreement without cause b '
�' y the giving of thirty-
(3 0) days notice ih writing to the other party.
(b) In the, event Concessionaire fails to comply with any of the terms and conditions
of this agreement, City shall have the right at once, and without notice to declare t
. hi s Agreement
terminated and to enter into and take full possession of the remises save and except ept such
personal property and equipment as may be owned by Concessionaire. In the event of such
cancellation of this agreement by the City, all rights and rivile es of the Concessi '
p g on.alre
hereunder shall cease and terminate and Concessionaire
shall immediately vacate the premises. If
Concessionaire fails to vacate the premises following termffiati on of this agreement City may
remove forcibly, if necessary, Concessionaire anal its property from said remises and City shall
p ty
incur no liability for such removal.
(c) In the event of termination of this agreement b either with or y ply, without
cause, it is specifically nderstood and a eed that a
y gi` 11 amounts. contained in the special fund
created pursuant to this agreement shall become property of the City and shall be immediately
paid by Concessionaire to the City, such funds to be deposited to an account of the he I'arks and
Community Services Department and dedicated for use for City's sports and athletic facilities
and programs. Likewise,in the event of dissolution of Concessionaire aire for any reason, such funds
shall be so paid to the City nd so deposited. Concessionaire }
ty p aire shall also pay to the City's general
Fund the percentage of net revenues specified in Section 5 hereof which has accrued to
the date
of termination. It is. Further provided that any and all equipment, personal property and
.fixtures
of the Concessionaire located on City property and used in the erformanc '
p e of this agreement
shall become the property of the City upon the termination of this agreement.
SECTION 14.
CONCESSIONAIRE A-SSUMEES ALL RISKS OF WHATSOEVER NATURE
INCD ENT TO OR ARISING OUT OF THE OPERATION OF ANY CONCESSION
FACILITIES HEREUNDER, CONCESSIONAIRE AGREES TO
AND HOLD THE CITY,, ITS OFFICERS AGENTS SERVAN '.E'MP O
YLES,
HARMLESS AGAINST
NST ANY"AT-D ALL CLAIMS LAWSUITS 9AC.A!IIONS {j{�/-'
I 1
` PENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR
PROPERTY DAMAGE OR' LOSS CLUDI
� NG ALLEGED DAMAGE OR LASS To
CONCESSIONAIRE'S BUSINESS AND ANy RESULTING LAST PROFITS) .AND1OR.
PERSONAL INKY, INCLUDING DEATH9 THAT MAY RELATE E T09 ARISE OUT
OF OR BE OCCASIONED BY (1)
CONCESSIONAIRE S BREACH OF ANY OF THE
TERMS OR PROVISIONS OF THIS AGREEME NT OR (ii) .
OMISSION OR INTE NTIONAL NUS COND CT OF` C ONCES
SIONAIRE, ITS
OFFICERS9 AGENTS9 ASSOCIATES,EMPLOY- EES CONTRACTORS 9 RS ( THAN
THE CITY) OR SUBCONTRACTORS, RELATED To THIS CONTRACT] OR THE
PERFORMANCE of THIS AGREEMENT; EXCEPT TAT T�� ����R
TY
PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY" T® B-�r�
�Y LIA,�[�iILITY,
RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR
ITS OFFICERS
9
AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF
JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONCESSIONAIRE AND
CITY9 RESPONSIBILITY, IF ARTY", SHALL BE APPORTIONED COMPARATIVELY
IN ACCORDANCE WITH THE LAWS OF THE STATE
OF'I`ExAS.
SECTION 15.
Prior to the time Concessionaire is entitled to '
any right of access to or use of the
Premises, Concessionaire shall procure, pay for and maintain the followin g insurance written by
condpanies approved by the State of Texas and acceptable to City. The
p ty insurance shall be
evidenced by delivery to City of executed certificates of insurance and/or certified copies of
policies as determined by City.
Concessionaire covenants and agrees to obtain and lee M* force during the term of this
Agreement, Comprehensive General Liabili ty Insuranc e, Including Personal Injury Llabl x
,
Independent Contractors Liability and Contractual Liability coverin g, bu t not limited to, the
liability assumed under the indemni"f.cation provisions of this Agreement, with limits of
. ............ ... . .. ... ...
for hodilv jWMin.cludin death and roe dam a e .
of not less than One billion Dollars
($1,000,000). Coverage shall be a Combined Single Limit Per Occurrence bas s and the poll
cy
shall include Broad Form,Property Damage Coverage with an insurance company rnpan.y satisfactory to
City. The City of Fort Worth shall be named as an Additional Insure
The insurance �r
ce policy shall include the � � .
1] The term of insurance is for the duration •
ion. of each event, which includes the penal
from the right of access to set-up through the period al lowed for removal of property,
2] The policy shall require that t hi rty (30) days prior to the cancellation or an y material
change "n coverage, a notice shall be given to Ci ty b y certified mail;
3] Insurers shall have no right of recovery or subrogation '
� �`y gatlon against the City of fort Worth
it being the intention that the insurance policy shall p rotect all parties to the
Agreement and be primary coverage for all losses covered by the policies;
4] Company issuing the insurance olio shall have .
policy ve n.o recourse against the City of Fort
Worth for payment of any premiums or assessments for an deductibles which. Y hall are
at the sole risk of Concessionaire;
5] The terms "Owner", "City"or City of Fort worth shall include all authorities,
Boards,
Bureaus, Commissions; Divisions, Departments, and Offices of the City and the
individual members, employees and agents thereof in their official capacities p es andlor
while acting on behalf of the City of Fort worth.; and
6] The policy clause "Other Insurance" shall not apply to any insurance coverage
currently held by City, to any future coverage, or to City's self-insured retenti
ty on. of
whatever nature.
Concessionaire hereby waives subrogation rights for loss or damage against
g City, its
officers, agents, and employees for personal injury (including death ro e]� property rty darn.age or any
other loss.
Concessionaire shall not do or permit to be done anything upon an portion g n or. P y p n of the
Premises, or bring or keep anything therein or thereupon which .
P w�11 m. any way conflict with the
conditions of any insurance policy upon the Prerni s es or an y P art thereof, or in any way r
ncrease
the rate of fire insurance upon the Premises or on property kept therein or in
any way obstruct or
interfere with the right of the other tenants of the Premises, or in'ure or annoy� y then.
The City may terminate this Agreement U'A]nediatel u the fail
y on p ere of the
Concessionaire to provide acceptable documentation of insurance as re .
required by this Agreement.
SECTION 16.
It is expressly understood and agreed that Concessionaire shall operate as `
p an m.dependent
contractor in each and every respect hereunder and not as an a t r "
gesent1-re or employee of
the City. Concessionaire shall have � � ��� � '
e the exclusive right to c ntrflr -�jt d.eta'Is and day-to-day
�� t. y day
t
operations relative to the providing concessions under the terms of this Agreement and shall be
solely responsible for the acts and omissions 0.f its officers, agents, servants, employees,,
contractors., subcontractors, licensees and invitees. Concessionaire acknowledges that the
doctrine of respondent superior will not apply as, between the City and Concessionaire, its
officers, agents, servants, employees, contractors,, subcontractors, licensees and invitees.
Concessionaire further agrees that nothing in this Agreement will be construed as the creation of
a partnership or joint enterprise between the City and Concessionaire.
SECTION 17.
Concessionaire agrees that if it is a charitable organization entitled to any immunity or
limitation of liability under the provisions of the Charitable hamnunity and Liability Act of 1987,
V.T.C.A. Civil Practice and Remedies Code, Section 84.001 et.seq., or other applicable law, that
Concessionaire hereby waives its right to assert or plead defensively. Any such immunity or
limitation. of liability as against City. Provided however, that this section shall not be construed
as a waiver or disclaimer of any such immunity or liability as against any party other than City.
SECTION 18.
'The provisions and conditions of this Agreement are solely for the benefit of the City and
Concessionaire, and any lawful assign or successor of Concessionatre, and are not intended to
create any rights, contractual or otherwise,to any other person or entity.
Concessionaire 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.
SECTION 19.
Subject to the Iffilitations contained herein, the covenants, conditions and agreements
made and entered into by the parties hereunder are declared to be for the benefit of and "bnding
on their respective successors,representatives and permitted assi p' s, if an.y.
SECTION 20.
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 14
Npiaftt i
tonditon or
t ..
7
provision shall in no way affect any other covenant, condition or rovision does not materially
y
prejudice either Concessionaire or City in connection with the right and obligations contained in
the valid covenants, conditions or provisions of this agreement.
SECTION 21.
Concessionaire 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, aris
. es
on the basis of any provision of this Agreement, venue for such. action shall .
�" al1 Zle �. state courts
located in Tarrant County, Texas or the United States District Court for the Northern District of
Texas—Fort worth Division.
SECTION 22.
All notices required or permitted under this Agreement may be given to a party personally or
by mail, addressed to such party at the address stated below or to such other address as on.e art
p y
may from time to time notify the other in writing. Any notice so given. shall be deemed to have
been received when deposited an the United States mail so addressed with
osta e
p g prepaid:
CITY:
Parrs and Community Services Department
4200 South Freeway, Suite 2200
Fort worth, Texas 76115-1499
WITH COPY TO:
Sarah Fullenwider
Assistant City Attorney
1000 Throck morton Street
Fort worth, Texas 76102
CONCESSIONAM:
Fort worth Parrs and Community Services Sports Advisory Council Inc.
6012 beef Point Lane, Suite C
Fort worth., Texas 76135
�R
10 IH2 .
SECTION 23.
It is expressly understood and agreed by the arties to this Agreement p gr ent that •�f the
performance of an obligations heret�n.der i civil�' g s delayed by reason. of war; civil commotion; acts of
God; inclement weather; governmental restrictions re gu lations, or interferences, fires; stnfes,
lockouts, national disasters; riots; material or labor restrictions• transportation problems,
or any
other circumstances which are reasonably beyond the control of the party obli gated or permitted
under the terms of this Agreement to do or perform the same regardless g of whether any such
circumstance is similar to any of those enumerated or not the so .
parry obligated or permitted
shall be excused from do'i performing san e during suc h period of delay, so that the time
period applicable to such design or construction requirement shall be extended .
q ended for a period of
time equal to the period such party was delayed.
SECTION 24.
It is understood that by execution of this Agreement, the City does not waive. ty axve or surrender
any of its governmental powers.
SECTION 25.
In the event of any dispute over the meaning or a pp lication of an y provision of this
Agreement, this Agreement shall be interpreted fain and .
�p y d reasonably, and nether more strongly
for or against any party,regardless of the actual drafter of this Agreement.
SECTION 26.
This written instrument contains the entire agreement of the parties concerning the
operation of concessions on City path premises and an y p rior or contemporaneous oral or written
agreement which purports to vary from the terms hereof shall be void.
EXECUTED on this the �-�- �4h
C_ day of 2004.
s
ATTEST: CITY FORT WORTH
By•
y. ViN
�it ylecretary •Ibby son
Assist ;, r
C on t
act �arltt 'ice 1 a' C]�I
^"T !
Date J
APPROVED AS TO FORM AND LEGALITY:
David Yett, City A ttomey
By:
Assistant C1 Attorney
FORT WORTH PAS AND C oMMUNlTY SERVICES
SPORTS ADVISORY COUNCIL,:INC,
By:
ldent .
...............
u s sr
12 �#
co AID
ity or Fort Worth, Texas
wed
1 entl on
and ou"Cl*l "ryommun*
IYD
..................
DATE REFERENCE NUMBER LOG NAME PAGE
4/15103 **C=1 9549 80SPO R TS 1 of 2
..........
SUBJECT C 0 N CESS 1 0 N CONTRACT F 0 R PARKS A N D
COMMUNITY SERVICES DEPARTMENT FACILITIES
W I T H THE F 0 R T W 0 R TH PARKS A N D C 0 M M U N I T Y
............................I.- SERVICES SPORTS ADVISORY CCU NCI Ll I NC.
REC 0 M M E N D A T 1 0 N :
I t is recommended that the City Council authorize the City Manager to enter into a five-year contract
with the Fort Worth Parks and Community Services Sports Advisory Council, Inc. (SA C) to
operate concessions at designated Parks and Community Services Department (P A C S) facilities.
D I SC U S S 10 N :
The S A C is a tax-exwVt organization established in April 1987 for the purpose of representing
amateur athletes and athletic organizations, promoting physical education and standardizing athletic rules.
The S A C has contracted with the City since A p r i l 1990 to operate concessions at P A C S facilities.
The S A C also serves in an advisory capacity in the implementation of improvements and the
development, operation and maintenance of athletic facilities and programs. They have also provided
numerous volunteers to assist P A C S during special events.
It is recommended that the City continue its relationship with S A C to sell food, beverages,
merchandise and other services at P A C S facilities. The term of the contract will be for a period of
five-years, beginning March 23, 2003, and ending March 22, 2008. Concession operating times and
prices wi I I be subject to advance approval from the P A C S d i rector. A I I profits f rom corK)ession
operations wi I I be deposited to a special fund maintained by the S A C. Expenditures can only be made
for the improvement,, operation or maintenance of P A C S facilities. The City will receive 20% of ft
net revenue, with a minimum guaranteed payment of $2,000 per year. Any equipment installed at City
faci I i ties wi I I be done at the sole expense of the S A C and wi I I become the property of the C ity. A I I
operations will be subject to generally accepted accounting, auditing and business practices, and will be
covered by public and product liability insurance.
This program servesall CO U N C I L DISTRICTS.
ce
ity oj"Forf Wodh, Texas
qvayor ana clouncit (' 'Wommu"Ication
DATE REFERENCE NUMBER LOG NAME PAGE
4115/03 **C=19549 80SPORTS 2of2
SUBJECT C 0 N C E S S 1 0 N CONTRACT F 0 R PAR K S A N D
CO MU N IT Y SERVICES DEPARTMENT F A C U I T I E S
W TH THE FORT WORTH . PAR-KS A N D COM M U N I T Y
ISERVICES SPORTS ADVI:.SORY C O U NCI L , I NC.
F I SC A L I N FOR M AT IC N /CERTI F I .CATIO N :
The F i nance D i rector oertif ies that the Parks and Community Services Department is responsible for
the collection and deposit of revenue received through this contract.
J P:k
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
GG01 442273 0808080
Joe Paniagua, 6140
................
originating Department Head:
Richard Zavala 5704 (from)
Adiflitional Information Contact: