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HomeMy WebLinkAboutContract 38851 C CONCESSION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FT. WORTH PARK AND RECREATION SPORTS ADVISORY COUNCIL, INC. STATE OF TEXAS § COUNTY OF TARRANT § THIS AGREEMENT is made and entered into by and between the City of Fort Worth, a home rule municipal corporation situated in Tarrant, Denton, Parker, and Wise Counties, Texas, acting herein by and through its duly authorized Assistant, City Manager, hereinafter called "City", and the Ft. Worth Park and Recreation Sports Advisory Council, Inc. (also known as Fort Worth Parks and Community Services Sports Advisory Council), a Texas non-profit corporation, acting herein by and through its duly authorized President, hereinafter called "Concessionaire." WITNESSETH : WHEREAS, the City of Fort Worth, Texas owns and operates numerous athletic facilities throughout the City for the use and benefit of the public; and WHEREAS, the Ft. Worth Park and Recreation Sports Advisory Council.. Inc. is a Texas non-profit corporation, incorporated for the purpose of representing amateur athletes and athletic organizations, promoting physical education and standardizing athletic rules and WHEREAS, the Ft. Worth Park and Recreation Sports Advisory Council, Inc. has demonstrated its commitment to the continuing improvement; development. operation and maintenance of Fort Worth Parks and Community Services Department athletic facilities and programs, and WHEREAS, the Ft. Worth Park and Recreation Sports Advisory Council, Inc. has heretofore entered into concession agreements with the City for designated Parks and Community Services Department athletic facilities and programs (City Secretary Contract Nos, 19902, 2"3440, 29987, and 37413). such agreements to be superseded by this concession agreement-, and WHEREAS, the City Council of Fort Worth has approved the execution of this concession agreement by adoption of Mayor and Council Communicatio"LIN on 1xNvlav 19, 2009- & F-- f R E C-�0 R D "CIP&L 3 ry Q 1 ' 5- TEAWY R E WO RTC 11, NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties, the City and the Concessionaire do hereby agree to the following: SECTION 1. City grants to Concessionaire a nonexclusive license and privilege to sell food, beverages, merchandise, signage and other permitted products and/or services at such Parks and Community Services Department community centers and athletic facilities as may be designated in writing by the Parks and Community Services Director of the City (Director). The concession must be open and operating at all times during league and tournament play at Gateway Park in accordance with the by-laws adopted by the executive Board of the Fort Worth Parks and Community Services Sports Advisory Council, Inc. and as approved by the City Parks and Community Services Director. SECTION 2. The primary term of this agreement shall be for a period of five (5) years beginning May 15, 2009 and ending May 14, 2014 unless terminated earlier as provided herein. SECTION 3. All items of merchandise, the prices to be charged, and the hours of operation for the concession operations shall be determined by the Concessionaire but shall be subject to the prior written approval of the Director. SECTION 4. Concessionaire agrees that it will ftimish adequate personnel to conduct the above referenced concession operations in a manner satisfactory to the Director. Such personnel shall be of good character, neatly dressed and shall at all times conduct themselves in a manner satisfactory to the Director. SECTION 5. The City of Fort Worth agrees to pay Concessionaire ten-thousand dollars annually to supplant funding lost from product rights at Parks and Community Services facilities other than Gateway Park: ar. additional en-thou sand. five-hundred dollars -4 to suppliant funding lost from 2 annual percentage of product sold at Parks and Community Services Department facilities other than Gateway Park for a total of$20,500 annually. Additionally, the City of Fort Worth agrees to pay Concessionaire the amount of$6,000 annually to supplant funds lost at Gateway Park beginning on March 1, 2010. Beginning with the 2010 contractual year, total payment to the Concessionaire to supplant funds lost from third party contractor will total $26,500. SECTION 6. Concessionaire covenants, agrees and declares that it will hold all of its net revenues from said concessions for the use and benefit of the public and that said funds will be divided as follows: twenty percent (20%) or an annual minimum guaranteed payment of two thousand dollars ($2,000), whichever is greater, shall be paid to the City's General Fund and eighty percent (80%) shall be deposited into a special account to be maintained by the Concessionaire but to be used solely for the operation of the Fort Worth Parks and Community Services Sports Advisory Council, Inc. and the improvement, operation or maintenance of Parks and Community Services athletic facilities and programs. All expenditures from said special account shall be made only with the written approval of the Director. Payments made to the City's General Fund shall be on an annual basis, with payment to be made within ninety (90) days of the end of each contract year. The concessionaire shall submit payment to the City of Fort Worth Parks and Community Services Department Administration office, to the attention of the Northeast Region Senior Administrative Assistant. SECTION 7. Concessionaire shall keep complete and accurate records, books and accounts according to customary and accepted business practices, and, generally accepted accounting principles. Concessionaire shall provide a detail of revenue for each concession location. Quarterly, on or before the tenth (I 01h) day of January, April, June and October. Concessionaire shall fu isle the Director or his or her designee, a signed statement showing the amount of all gross receipts from concession operations. Concessionaire agrees that the City will have the right to audit the financial and business records of Concessionaire that relate to this Agreement (collectively "Records") at any time during the Term, of this Agreement and for one (1) year thereafter in order to determine compliance with this Agreement, Throughout the Term of this Agreement and for one (1) year 3 thereafter, Concessionaire shall make 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 advance notice by the City and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Section shall survive expiration or earlier termination of this Agreement. SECTION 8. Concessionaire may, at its sole expense and with prior written consent of the Director, install signs in the areas where it operates its concessions. Provided however, such signs must be in keeping with the general aesthetic background of the park area and the size, type, color, location, manner of display and subject matter of the sign must be approved by the Director prior to installation. 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 injure any property in the installation, maintenance, or removal of such signs. SECTION 9. City and Concessionaire agree that City, acting by and through its authorized representatives, shall have at any and all times the full and unrestricted right to enter upon the premises occupied by any concession facility (without causing or constituting 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 is 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 10. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. Concessionaire shall comply with all federal, state, and local 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 4 shall obtain and keep in effect at its own cost and expense all licenses and permits necessary for its operations. SECTION 11. Concessionaire covenants and agrees that it shall not engage in any unlawful use of the Premises. Concessionaire further 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 by Concessionaire itself shall constitute an immediate breach of this Agreement. Concessionaire agrees to comply with all federal, state and local laws; all ordinances, rules and regulations of City; all rules and regulations established by the Director; and all rules and regulations adopted by the City Council pertaining to the conduct required at airports owned and operated by City, as such laws, ordinances, rules and regulations exist or may hereafter be amended or adopted. If City notifies Concessionaire or any of its officers, agents, employees, contractors, subcontractors, licensees or invitees of any violation of such laws, ordinances, rules or regulations, Concessionaire shall immediately desist from and correct the violation. SECTION 12. Concessionaire shall not discriminate on the basis of race, color, creed, religion, sex, age, military status, disability, sexual orientation or national origin in 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 (1986), 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 be discriminated against as prohibited by the to of such ordinance, SECTION 13. (a) Concessionaire shall not make or cause to be made any alterations, additions or improvements to City property without the prior written consent of the Director of the City of Fort Worth Parks and Community Services Department, Concessionaire shall present to the 5 Director plans and specifications for such alterations, additions and improvements at the time such approval is sought. (b) All alterations, additions and improvements to City property made with the written consent of the Director shall, upon completion and acceptance by the City become the property of the City. Concessionaire may be required to remove, at its expense, any alterations, additions or improvements not meeting specifications as approved by the City. (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 park property and any such contract or lien attempted to be created shall be void. Should any purported lien on City park property be created or filed Concessionaire, at its sole expense, shall liquidate and discharge same within ten(10) days after notice from City to do so. SECTION 14. (a) Either party may terminate this agreement without cause by the giving of thirty (30)days notice in 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 this Agreement terminated and to enter into and take full possession of the premises save and except 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 privileges of the Concessionaire hereunder shall cease and terminate and Concessionaire shall immediately vacate the premises. If Concessionaire fails to vacate the premises following termination of this agreement City may remove forcibly, if necessary, Concessionaire and its property from said premises and City shall incur no liability for such removal, (c) In the event of termination of this agreement by either party, with or without cause, it is specifically understood and agreed that all 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 Parks and Community Services Department and dedicated for use for City's sports and athletic facilities and prograrns, Likewise, in the event of dissolution of Concessionaire for any reason., such funds shall be so paid to the City and so deposited. Concessionaire shall also pay to the City's General 6 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 performance of this agreement shall become the property of the City upon the termination of this agreement. SECTION 16. CONCESSIONAIRE ASSUMES ALL RISKS OF WHATSOEVER NATURE INCIDENT TO OR ARISING OUT OF THE OPERATION OF ANY CONCESSION FACILITIES HEREUNDER. CONCESSIONAIRE AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONCESSIONAIRE'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) CONCESSIONAIRE'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONCESSIONAIRE, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THIS CONTRACT] OR THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONCESSIONAIRE AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. SECTION 16. 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 following insurance written by companies approved by the State of Texas and acceptable to City, The insurance shall be 7 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 keep in force during the term of this Agreement, Comprehensive General Liability Insurance, Including Personal Injury Liability, Independent Contractors Liability and Contractual Liability covering, but not limited to, the liability assumed under the indemnification provisions of this Agreement, with limits of liability for bodily injury (including death and property damage of not less than One Million Dollars ($1,000,000). Coverage shall be a Combined Single Limit Per Occurrence basis and the policy shall include Broad Form Property Damage Coverage with an insurance company satisfactory to City. The City of Fort Worth shall be named as an Additional Insured. The insurance policy shall include the following: 1) The term of insurance is for the duration of each Event, which includes the period from the right of access to set-up through the period allowed for removal of property; 2) The policy shall require that thirty (30) days prior to the cancellation or any material change in coverage, a notice shall be given to City by certified mail; 3) Insurers shall have no right of recovery or subrogation against the City of Fort Worth, it being the intention that the insurance policy shall protect all parties to the Agreement and be primary coverage for all losses covered by the policies; 4) Company issuing the insurance policy shall have no recourse against the City of Fort Worth for payment of any premiums or assessments for any deductibles which all 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 and/or 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 retention of whatever nature. Concessionaire hereby waives subrogation rights for loss or damage against City, its officers, agents, and employees for personal injury (including death), property damage or any other loss. 8 Concessionaire shall not do or permit to be done anything in or upon any portion of the Premises, or bring or keep anything therein or thereupon which will in any way conflict with the conditions of any insurance policy upon the Premises or any part thereof, or in any way increase 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 injure or annoy them. The City may terminate this Agreement immediately upon the failure of the Concessionaire to provide acceptable documentation of insurance as required by this Agreement. SECTION 17. It is expressly understood and agreed that Concessionaire shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Concessionaire shall have the exclusive right to control all details and day-to-day operations relative to the providing concessions under the terms of this Agreement and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Concessionaire acknowledges that the doctrine of respondeat 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 18. Concessionaire agrees that if it is a charitable organization entitled to any immunity or limitation of liability under the provisions of the Charitable Immunity 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 19. The provisions and conditions of this Agreement are solely for the benefit of the City and W Concessionaire, and any laxvful assign or successor of Concessionaire, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 9 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 20. Subject to the limitations contained herein, the covenants, conditions and agreements made and entered into by the parties hereunder are declared to be for the benefit of and binding on their respective successors, representatives and permitted assigns, if any. SECTION 21. It is agreed that in the event any covenant, condition or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall in no way affect any other covenant, condition or provision does not materially prejudice either Concessionaire or City in connection with the right and obligations contained in the valid covenants, conditions or provisions of this agreement. SECTION 22. 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, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. SECTION 23. 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 one party may from time to time notify the other in writing. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid- CITY.' Parks and Community Services Department 4200 South Freewav, Suite 2200 Fort Worth, Texas 76115-1499 !0 WITH COPY TO: City Attorney 1000 Throckmorton Street Fort Worth, Texas 76102 CONCESSIONAIRE: Fort Worth Parks and Community Services Sports Advisory Council, Inc. 6012 Reef Point Lane, Suite C Fort Worth, Texas 76135 SECTION 24. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. SECTION 25. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. SECTION 26. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. SECTION 27. This written instrument contains the entire agreement of the parties concerning the operation of concessions on City park premises and any prior or contemporaneous oral or written agreement which purports to vary from the terms hereof shall be void, 12 EXECUTED on this the day of 2009. ATTEST: CITY OF FORT WORTH By 6A k, By: 7" City Secretary arses Daniels City Ass' t City Managger APPROVED AS TO FORM AND LEGALITY: David Yett, city�ttorney B 0itract Authorizat, Ass ant City tomey 0, C— -,- FORT WORTH PARK AND COMMUNITY SERVICES SPORTS ADVISORY COUNCIL, INC. By: Pr�ident C\, R EC OR D J-11, FIC-64d CRIE w/ 13 ^ ^ COUNCIL ACTION: Approved on 5/19/2009 1 attachment found" GENERAL INFORMATION: DATE: Tuesday, May 19, 2009 REFERENCE NO': **C-23526 LOG NAME: 8O5PORT5 SUBJECT: Authorize Concession Contract for Parks and Community Services Department Facilities with the Ft. Worth Park and Recreation Sports Advisory Council, Inc. It is recommended that the City Council authorize the City Manager to enter into a five year contract with the Ft. Worth Park and Recreation Sports Advisory Council, Inc., to operate concessions at designated Parks and Community Services Department facilities. ' The purpose of this M&C is to seek City Council approval of contract with the Ft. Worth Park and Recreation Sports Advisory Council, Inc., (also known as the Fort Worth Parks and Community Services Sports Advisory Council or SAC) to sell food, beverages, merchandise and other services at Parks and Community Services Department (PACS) facilities. The SAC is a tax-exempt organization established in 1987 for the purpose of representing amateur athletes and athletic organizations, promoting physical education and standardizing athletic rules. The SAC has contracted with the City since 1990 to operate concessions at PAC5faci|ities. The SAC 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 PA[S during special events. Major contract terms include the following: ° of the contract will be for a period of five years, beginni � Concession operating Limes and prices will be subject to advance approval from the Parks and Community Services Department Director; � monies received by the [|�y un�er its cuntract with [oca �o|a Bot1|ing �ompany of F��VVorth �norder to offset revenues SA[ previously received from another beverage vendor; • All profits from concession operations will be deposited to special fund maintained by the SAC. Expenditures can only be made for the improvement, operation or maintenance of PACS facilities; • The City will receive 20 percent of the net revenue with a rn|n|,num guaranteed payment of$2,000.00 per year; • Any equipment installation at City facilities will be done at the sole expense of the SAC and equipment will become property o[the City; and • All operations will be subject to generally accepted accounting, auditing and business practices and will be covered by liability insurance. This program serves ALL COUN[ILDISTRICTS. ' ^ ' FISCAL INFQRMATION / CERTIFICATION: The Financial Management Services Director certifies that the Parks and Community Services Department is responsible for the collection and deposit of funds due to the City as its portion of the net revenue. Relative to the contracts payment noted in the discussion, the Financial Management Services Director also certifies that sufficient funds are available from the City's contract with Coca Cola Enterprises, Inc., d/b/a [oos Cola Bottling of North Texas (City Secretary Contract 3665O). FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers GG01 442273 0808080 $2,00.00 Submitted for City Manager's Office by: ' Charles Daniels (6183) Originating Department Head: RichardZava|a (5704) Additional Information Contact: Melody Mitchell (5719) ATTACHMENTS