HomeMy WebLinkAboutContract 42830 ' CITY SECRETARY
CONTRACT NO.am
CONTRACT FOR EXCLUSIVE CONCESSION AND ALCOHOLIC BEVERAGE SERVICES
AT THE WILL ROGERS MEMORIAL CENTER
This EXCLUSIVE CONCESSIONS AND ALCOHOLIC BEVERAGE SERVICES
AGREEMENT is entered into this 2 day of C�,N , 2012 ("Effective Date"), by and
between the CITY OF FORT NORTH, a home-rule municipal corporation situated in portions of
Tarrant, Denton, and Wise Counties, Texas, acting by and through Susan Alanis, its duly authorized
Assistant City Manager, and COBURN CATERING SERVICE,INC.,a Texas Corporation, acting by
and through Jerrell Coburn, its duly authorized President and CEO.
1. DEFINITIONS.
As used herein,the following terms will have the meaning ascribed to such term below:
A. ACCOUNTING PERIOD: Means and includes a calendar month, which twelve
calendar months occur each fiscal year,for a total of 365 days.
B. AGREEMENT: Means this Exclusive Concession and Alcoholic Beverage Services
Agreement executed between Operator and City and includes all exhibits attached hereto
and any documents incorporated herein by reference.
C. ALCOHOLIC BEVERAGES : Means and includes wine, distilled spirits, and beer.
D. CENTER: Means and includes the facility known as Will Rogers Memorial Center
located at 3401 W. Lancaster, Fort Worth, Texas, 76107.
E. CITY: Means and includes the City of Fort Worth, Texas and its officers,
representatives, agents, and employees.
F. CONCESSION PREMISES: Means and includes all permanent concession areas,
kitchen, office, bars and storage areas as designated on Exhibit A, which is attached
hereto and incorporated herein by reference, and all temporary areas necessary to
provide concession services as mutually agreed upon between the parties.
F. CONCESSION SERVICES: Means and includes the sale of food, drinks
(including Alcoholic Beverages), and other items approved by the Director at
concession stands, vending machines, and at other areas designated by the
Director. The right to sell Concession Services may or may not include
employees' assembly rooms or work areas. Other services that 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 or Director.
G. DIRECTOR: Means and includes the Public Events Director of the City of Fort Worth,
Texas or his/her authorized representative or designee.
H. EVENTS): Means and includes any performance, production, show, or activity
scheduled in the Center.
-- - OFFICIAL RECO RD
CITY SECRETARY
Exclusive Concession and Alcoholic Beverage Services r 1 PoRTH, TX x
I. FOOD SERVICE AREA: Means and includes any space, whether it is permanent,
temporary, or portable,within the Center where food and/or beverage is either produced
or served.
J. GROSS RECEIPTS: Means and includes the total amount of money received or
to be received by Operator or by any agent, employee, or subcontractor of
Operator 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 that 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.
K. IMPROVEMENTS AND MAINTENANCE FUND: Means and includes
payments made to City by operator for placement in a separate fund to be used
for the purposes of improving concession operations, purchase of improvements
or equipment, and for advertising, marketing, and promotion of usage of
facilities at Center.
L. LICENSEE: Means and includes any person or entity that may from time-to-
time enter into any agreement for the use of the Center for a particular purpose.
M. NON-ALLOWABLE EXPENSES: Means and includes expenses that specifically may
not be charged against Gross Receipts.
N. OPERATOR: Means and includes Coburn Catering Service, Inc., and/or its
members, managing members, officers, servants, managers, proprietors, directors,
employees, representatives, agents, subsidiary organizations, parent organizations,
successor entities, assigns, predecessors, stockholders, administrators, contractors,
and related companies.
O. PARTIES: Means and includes operator and City.
P. STAFF CATERING: Means and includes the catering services provided to the staff or
volunteers of an equestrian or livestock show or convention that is not available to
attendees or general public.
Q. THIRD-PARTY VENDOR: Means and includes an independent provider of specialty
food items that may be given permission to directly sale specialty or food items.
R. VENDING: Food service vending from automatic machines.
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2. SCOPE OF SERVICES.
Operator hereby agrees to provide City with Concession Services and related catering operations
at the Center in accordance with the terms of this Agreement and the terms and conditions of the RFP (as
hereinafter defined).
3. TERM and TERMINATION.
3.1. Primary Term
The primary term of this Agreement shall be for a period of five (5)years, beginning February 6,
2012, and ending January 12, 2017, unless terminated sooner pursuant to the terms of this Agreement.
Upon expiration of the primary 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 120 days.
3.2. Renewal Options
In addition to the primary term, City may, at its sole discretion, renew this Agreement for up to
five additional, one-year terms on the same terms and conditions. In connection with any renewal,
Operator shall provide notice of its desire to renew the primary term of the Agreement at least one (1)
year prior to the expiration date (as the same may from time to time be extended). The City will, within
thirty (30) days from receipt of the notice to extend, notify Operator if the term shall be extended for an
additional one (1) year period. No notice shall otherwise be required to effect a termination by its own
terms. Upon expiration of any of the renewal terms, 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 120 days.
3.3. Termination at Will
City or Operator may terminate this Agreement at any time and for any reason by providing the
other party with one hundred twenty(120) days written notice of termination. The effective date of such
notice shall begin three (3) days after the date of posting with the United States Postal Service with said
notice being sent to the last known address. Upon termination of the Agreement, 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, provided such period shall not exceed 120 days from the effective date of
termination.
3.4. Termination for Cause
In the event of breach or default of any provision of this Agreement by Operator, City has the
right to do the following: (1) terminate this Agreement immediately by giving written notice to the
Operator or (2) permit Operator the opportunity to cure the default. If City permits the Operator the
opportunity to cure the default, then City will send written notice to Operator detailing the default or
breach, and Operator will have thirty (30) days to cure any such default or breach. If more than thirty
(30) days are required to cure such default or breach, then a reasonable time in excess of said days may
be established, provided the Parties agree in writing as to the time period to be substituted. In the event
such default or breach is not cured within the specified time, City may terminate this Agreement.
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3.5 Duties and Obligations of the Parties.
In the event that this Agreement is terminated prior to the expiration of the primary term or any
renewal term, operator shall pay City commissions for services actually rendered up to the effective date
of termination, and operator shall continue to provide City with services in accordance with this
Agreement up to the effective date of termination.
4. COMPENSATION.
For the rights and privileges granted herein, operator shall pay City, through its Director, each
month during the term hereof,the following amounts:
Year 1:
A. Twenty-five (25%) percent of Gross Receipts on all basic concession items sold, including,
but not limited to, all soft drinks, peanuts, popcorn, cotton candy, chips, doughnuts, hamburgers,
pretzels, sandwiches,hot dogs, French fries, chili dogs, coffee, barbecue, and pizza.
B. Twenty-five (25%) percent of Gross Receipts on all Alcoholic Beverages served through
concessions, catering, and all other activities.
C Fifty (50%) percent of revenue received from sales by Third-Party Vendors. All third-
party vendors must be approved by the Director or his/her designee.
Year 2:
A. Twenty-six(26%) percent of Gross Receipts on all basic concession items sold, including, but
not limited to, all soft drinks, peanuts, popcorn, cotton candy, chips, doughnuts, hamburgers,
pretzels, sandwiches,hot dogs,French fries, chili dogs, coffee, barbecue, and pizza.
B. Twenty-six (26%) percent of Gross Receipts on all Alcoholic Beverages served through
concessions, catering, and all other activities.
C Fifty (50%) percent of revenue received from sales by Third-Party Vendors. All third-
party vendors must be approved by the Director or his/her designee.
Year 3 and be ond:
A. Twenty-seven (27%) percent of Gross Receipts on all basic concession items sold, including,
but not limited to, all soft drinks, peanuts, popcorn, cotton candy, chips, doughnuts, hamburgers,
pretzels, sandwiches,hot dogs,French fries, chili dogs, coffee, barbecue, and pizza.
B. Twenty-seven (27%) percent of Gross Receipts on all Alcoholic Beverages served through
concessions, catering, and all other activities.
C Fifty (50%) percent of revenue received from sales by Third-Party Vendors. All third-
party vendors must be approved by the Director or his/her designee.
The City agrees to meet periodically with operator at operator's request to discuss new concession, food,
and beverage items to be provided at the Center and proposed improvements to the Concession Premises.
If deemed appropriate by City and operator, the percentages in this Section 4 may be renegotiated as a
result of the new items or improvements proposed by operator, in which event the Parties may execute an
amendment to this Agreement modifying such amounts. r
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5. NOTICE PLACE AND MANNER OF PAYMENTS.
All payments due 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, but not limited to, attorney's fees, incurred or expended
by City in collection of said delinquent amounts due, including, but not limited to, service charges.
5. LETTER OF CREDIT
The Operator shall provide City with a Letter of Credit in the amount of $100,000.00 for the
faithful performance of duties as specified by the terms defined in the scope of work section of this
Agreement no later than thirty (30) calendar days prior to the Agreement's Effective Date. The bank and
the terms of the Letter of Credit must be acceptable to City prior to the Effective Date.
7. CONCESSION PREMISES AND RIGHTS.
7.1. Premises.
City will make available to Operator the Concession Premises, which are subject to the
supervision of the Director, for the purposes of performing this Agreement, and except as otherwise
provided herein, will be in the exclusive control of Operator, subject to any exclusions in this section 7.
7.2. Portable Locations.
City will permit portable concession stands to be located throughout the Center. The
Director and Operator will agree upon the number and locations of these temporary stands at least
twenty-four(24)hours before each event.
7.3. Food and Beverage 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 Concession Services customarily handled by a concessionaire at any
and all Events held at the Center except that City retains the right to:
1. Grant permission for food and beverage items of sample size to be given away at
the Center to 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:
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
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Stock Show and such other non-ticketed, private events that the Stock Show may
from time to time host within the Center, all Concession Services rights will be
granted to the Stock Show. The Stock Show will have full authority to enter into
contracts with vendors for various goods and services during its lease of the Center
for the Stock Show. In the event operator is not the contractor to the Stock Show,
Operator agrees that 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 and No Cents ($1,000.90)
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.
C4 Jewel Charity Ball. During the Jewel Charity Ball, City retains the rights
for Alcoholic Beverage services.
3. The City,through its Director, retains all rights to the Concession Premises, food,
beverage, and Alcoholic Beverage services and privileges in the Backstage Club and Centennial
Room or other spaces that may be designated as restaurant/bar operations at the Center. City
agrees to discuss any such restaurant/bar operations with operator prior to commencing
operations and such space must be permitted in such a way as to not interfere with the operator's
ability to license and/or operate alcoholic beverage services in areas not specifically designated to
said restaurant/bar operations.
4. The City, through its Director, retains the right to promulgate reasonable rules
and regulations for operator necessary for the operation of the Center.
5. The City,through its Director,retains the right to reasonably restrict the length of
time before and after the time of the performance or function for Events, in order to ensure that
sales will not interfere with the conduct of the performance or function being served.
6. The City, through its Director, retains the right to approve the form and price of
products; provided that, 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 that limits or restricts or otherwise
contravene any agreement between operator and a service provider for Concession Services,
unless such agreements are approved in writing by operator, which approval will not be
unreasonably withheld, conditioned, or delayed.
7. 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.
8. All concessions items, including, but not limited to, programs, novelties, song
books, autographed pictures, records. tapes, T-shirts, etc., carried by traveling shows and not
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normally stocked by Operator, and additional stands set up on a temporary basis for this purpose
are considered as subcontracts retained by City.
9. The Director reserves the right to allow outside vendors to provide unique
specialty items during certain events; provided that, when so permitted, Operator is able to reach
mutually agreeable, commercially prevailing, and reasonable terms with such vendor, including,
without limitation, those regarding the sub-contract and the percentage of the vendor's gross sales
that is to be split equally by Operator and City.
10. Operator shall not sell space for either temporary or permanent signs.
11. 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 fountain service soft drinks and beverages that are to be sold in
individual containers by Operator must be purchased from Coca Cola, including, but not limited
to, bottled water. Unbranded brewed coffee, iced tea, fresh squeezed juice or individual
containers of unflavored milk are permitted exceptions to the "Pouring Rights Agreement."
12. 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 its own, that could compromise the terms of existing City of Fort worth Public
Events Department and/or will Rogers Memorial Center agreements. In regards to product
exclusivity, Operator has the right to negotiate with such vendors for the purposes of maintaining
comparable quality and pricing with existing purveyors of similar products. If no agreement with
vendor can be negotiated, Operator will not be bound to the exclusive use of said product.
7.4. ALCOHOLIC BEVERAGES
Alcoholic Beverage sales will be allowed unless the Licensee leasing the Center requests
the Director to prohibit the sale of Alcoholic Beverages during Licensee's event, and the Director concurs
with the request. 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, Back Stage Club, Centennial Room, or
other areas referenced in Section 7.
8. REPORTS/AUDITS.
8.1. Event Reports
Operator shall furnish a monthly report of Gross Receipts to the Director or each Event.
This report shall 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. on the first business
day after the end of the month. The report shall be signed by Operator or Operator's designated
representative. The Director 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. on the second(2nd) business day after the Event.
8.2. Cash Registers
Cash registers must be used at each point of sale by Operator to record sales. and the tape
from each register used for an event xk ill he attached to the corresponding concession report. The location
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of the register shall be written on the tape, and it must 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.
8.3. Bank Accounts
Operator shall establish, in its own name, a separate commercial account at a local bank
in Fort Worth, Texas, which shall be exclusively used for the initial deposit of all receipts involved in
Operator's operations with the Center.
8.4. Accounting Records E ui ment and Reports
Operator shall keep true, accurate, complete, and auditable records, in a form consistent
with operator's general corporate accounting requirements satisfactory to the Director. operator further
agrees that the Director 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 operation 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 including,
but not limited to, original invoices, sales checks or slips, cash register and adding machine tapes, and
analogous supporting data.
Operator shall, upon the receipt of a written reasonable request from the Director, prepare
and submit such reports and analysis of the operation of the concessions under this Agreement in such
form and content as City may reasonably require in the administration of this Agreement.
Operator shall deliver all data, reports, and documents that result from its services to the
Director in such form as described in the Scope of Work section of this Agreement.
8.5. Audits
Operator agrees that City shall,until the expiration of three (3)years after final payment
under this Agreement, have access to and the right to examine at reasonable times any directly pertinent
books, documents, papers and records of operator involving transactions relating to this Agreement at
no additional cost to City. Operator agrees that City shall have access during normal working hours to
all necessary facilities and shall be provided adequate and appropriate work space in order to conduct
audits in compliance with the provisions of this section. 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 City shall, until expiration of three(3)years after
final payment of the subcontract, have access to and the right to examine at reasonable times any directly
pertinent books, documents, papers and records of such subcontractor involving 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 audits in
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compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of
intended audits.
9. OPERATIONS.
9.1. Occuancy of Premises
Operator agrees to improve, equip, and maintain the concession premises as provided in
this Agreement.
9.2. Hours of Operation
Except as otherwise provided in this Agreement, operator agrees to operate the
concessions when any event or attraction is scheduled in the Center unless prior approval not to operate is
granted by the Director. operator shall have the concession stands open and in operation a reasonable
time before, during, and after all events as determined by the Director, but in no event, later than five (5)
minutes prior to the time doors are opened to admit the public to the Event.
9.3. 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 information 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 provided. 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. Director and operator shall notify the other of cancellations of
previously 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
City nor operator shall be liable to the other for the failure to deliver notices of such cancellation. City
makes no representation or warranty that an event will not be subject to cancellation.
10. PERSONNEL
10.1. Employees
Operator shall be entitled to employ such employees on the premises as are necessary to
perform the services required of it hereunder. operator agrees to employ, train, and supervise personnel
with appropriate qualifications and experience and in sufficient number to provide all the services
appropriate for the concessions granted herein with a minimum of delay for the patrons. 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 employee 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.
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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 herein. Operator
agrees to replace any employee or subcontractor that City, in its reasonable opinion, finds unacceptable,
provided that Operator can do so without violating applicable legal requirements.
In the event Operator does not provide sufficient personnel to service an event, City
reserves the right to obtain additional personnel at the cost of Operator.
10.2. Mana er
Operator shall employ a manager who is reasonably satisfactory to the Director at all
times during the operation of this Agreement. If, at any time, the Director finds that 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, to the extent permitted by law, Operator shall replace such manager 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 such
substitute manager. Failure to remove or replace the manager per the terms of this paragraph will
constitute a breach of this Agreement.
11. SOLICITATION of BUSINESS DELIVERIES OTHER SALES
11-1. Solicitation of Business
Operator's solicitation of business shall be made from the stands, booths, or other
locations specifically indicated in the Concession Premises unless otherwise assigned to Operator 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 walking vendors.
11.2. Deliveries
Deliveries of all supplies, goods, wares, merchandise, and equipment to 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. Operator is responsible for accepting all deliveries to
his/her operation and shall schedule deliveries outside event hours in the facility, whenever possible.
11.3. Restrictions on Sales bOthers
City shall prohibit, and will use its best efforts to prevent vendors and peddlers not
employed by Operator from vending or distributing their wares upon the premises under the control of
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.
11.4. Conduct of Other Business
The Concession Premises used by Operator in the Center shall be used solely for the
transaction of business directly related to the obligations of this Agreement. Foods and beverages
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prepared or stored in the Concession Premises may not be sold for consumption off premise, without
written approval of the Director. In the event permission is granted, a mutually agreed fee payable to City
shall be determined. It is the intent that relief may be granted from the restrictions of this section in
instances of inventory problems arising from conditions beyond the control of operator.
12. MERCHANDISE
12.1. 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. operator must
display, in a conspicuous location, prices at all stands and on vendor'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.
12.2 Price Schedule
Operator shall establish prices for products that are comparable with the prices charged
for similar products sold at comparable facilities within Tarrant County and submit proposed prices to the
Director for approval.
Within fifteen (15) days of the execution of this Agreement, 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.
Operator shall provide an up-to-date "Price Schedule" to the Director on a not-less-than
quarterly basis. In the event that Operator and the Director cannot agree on the size of price increases,
then 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 Operator desires to substitute any article for an article listed in the approved "Price
Schedule,"the written approval of the Director must be obtained.
12.3. Consumable Merchandise
Operator will offer customers food, drink, and other consumable merchandise of first
quality and standard quantity. 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 in paper or plastic cups, or plastic bottles (provided all lids have been removed where
directed by the Director).
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12.4. 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 and considered on an event-by-
event basis only and at such times and in such locations approved by the Director.
12.5. 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.
12.6. Temporary_ or Portable Concession Stands
Operator shall acquire no rights to locations of temporary or portable concession stands,
unless approved by the Director. City reserves the right to require 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.
12.7. Recycling
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, quality, quantity and availability to
Operator's standard products. The Director shall, from time-to-time, review 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 using recycled products in approving reasonable
price or other adjustments to the provisions of the Agreement.
13. OTHER SERVICE.
13.1. other Services
In addition to normal concession and catering functions, operator shall provide various
specialized services associated with convention/trade show activities including, 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 Licensees. 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 normally fall
into the following areas, and for which operator shall pay catering rates are as follows:
Exclusive Concession and Alcoholic Beverage Services 12 of 28
1. Food/non-alcoholic beverage items provided 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.
C. Personnel Service: On various occasions, 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 in this Agreement.
D. Staff Caterin : On various occasions, Operator shall provide catering services to staff
and volunteers of facility Licensees during equestrian or livestock shows and conventions that are
not available to the attendees or the general public.
14. CLEANING AND SANITATION.
14.1. Operator shall be responsible for:
A. Cleaning and sanitation of all food service production, storage, and service
areas, including, but not limited to, 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, during Events, and following each Event.
C. 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.
14.2. 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 notification in
accordance with the notification provision may result in the cancellation of this Agreement.
15. IMPROVEMENT OF THE PREMISES
15.1. Investment in the Center
Within the primary term of the Agreement, Operator agrees to invest $1 00,000.00 in
mutually agreed upon equipment and permanent improvements to service the patrons of the Center.
Operator shall provide the Director with written documentation pertaining to all such mutually agreed
Exclusive Concession and Alcoholic Beverage Services 13 of 28
r
upon equipment and improvements prior to purchase. All such equipment and improvements shall
become the sole property of City upon the later of(i)the expiration or termination of this Agreement, and
(ii) the date on which City fulfills its obligation to cause payment to be made to Operator in an amount
equal to the unamortized portion of Operator's investment. All interest credited to the account shall
become the property of Operator.
Operator shall purchase and install only new or, with the permission of the Director, good
used fixtures, furnishings and trade equipment on the Concession Premises, throughout the term of this
Agreement. All facilities and equipment necessary to prepare and handle the merchandise offered for sale
will be of a quality consistent with that utilized in similar facilities, similarly situated. The Operator and
the Director shall jointly prepare an inventory list of all fixtures, furnishings, trade, equipment, and
portable equipment on the Center property within sixty (60) days following the Effective Date and shall
attach such list to this Agreement as an exhibit through an addendum. Such inventory listing shall be
maintained throughout the term of the Contract.
Any Investments will be amortized over the term of the initial contract. The City agrees
to cause payment to be made to Operator in an amount equal to the unamortized portion of investment if
this contract expires or terminates for any reason.
15.2. Imp rovements and Maintenance Fund
In addition to the investment in 15.1, Operator shall establish an Improvements and
Maintenance Fund to be used, as mutually agreed upon by Operator and City, for repairs and maintenance
of equipment and facilities, purchases of improvements, and/or equipment designed to improve food and
beverage operations at the City. The funds will be held by the Operator and accrued in a separate account
at the rate of 1%of total gross sales through the initial five year term.
15.3. Buildin2 Services
City will furnish building services as set forth in this Section but will not supply the labor
or materials for Operator's equipment installations:
A. Utilities: 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). City shall provide all such utilities to Operator at no
cost to Operator. City shall also be responsible for designating a point of garbage
disposal to which Operator shall deposit all garbage generated in connection with the
Concession Services hereunder. City shall have such garbage removed and shall be
responsible for the payment of such removal.
B. Equipment: City will furnish existing equipment. All other permanent
and portable equipment will be furnished by Operator in accordance with the provisions
of this Agreement.
15.4. Desian Control
Any equipment, construction, and improvement plans, proposals, materials, colors, and
designs of any improvements shall be submitted to the Director for approval and Operator shall not
Exclusive Concession and Alcoholic Beverage Services 14 of 28
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 improvements 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
Improvements and Maintenance Fund monies will become the property of City.
16. MAINTENANCE OF PROPERTY.
16.1. Utilities
City shall provide water, gas, garbage removal, and electrical utilities to Operator at no
cost to operator. City shall also provide existing internet and telephone infrastructure in"as-is" condition
at no expense to Operator, although Operator shall pay for its own telephone and internet services and
charges.
16.2. Right to Enter, Inspect, and Make Repairs
City and its authorized officers, employees, agents, contractors, subcontractors, and other
representatives shall have the right, at such times as may be reasonable under the circumstances and with
as little interruption of 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 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
Operator is obligated, but has failed to do so, after the Director has given the
Operator reasonable notice to do so, in which event 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
City except where occasioned by the negligence or misconduct of the
Operator.
16. 3. Maintenance and Re air
Operator shall, at its sole expense, maintain, repair, and replace, if necessary, all
equipment and furnishings utilized in connection with the Concession Services hereunder (normal wear
and tear excepted), with the exception of maintenance, repair, or replacement of any structural
components of the Center, including, without limitation,the permanent existing water, gas, or sewer lines,
electrical service, and telephone infrastructure to the various facilities (which such items shall be the sole
responsibility of City). 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. 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, Operator shall leave the Concession Premises and its equipment and appurtenances in
Exclusive Concession and Alcoholic Beverage Services 15 of 28
at least the same condition as that which existed at the commencement of the contract, plus any additions,
normal wear and tear excepted.
16.4. Janitorial Service
Operator shall provide its own janitorial service (subject to approval of the Director) for
pick-up, clean-up, and disposal of all litter (to the point designated by the Director pursuant to this
Agreement for all space assigned or used in operation. Operator shall also clean and keep service areas
free of debris at all times, particularly prior to, during, and after events.
16.5. Cleanliness of Work Areas
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. Operator shall comply with all laws, ordinances, and
regulations of all governmental bodies pertaining to the operation of food serving establishments.
16.6. Cleanliness of Food Service Areas
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 Area will be the responsibility of Operator. Operator shall employ the necessary
personnel before, during, and after the hours of each Event 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.
16.7. 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, City will be responsible for
the removal of debris in areas normally considered public areas, i.e., seating areas in the Center, corridors,
etc.,except when utilized for food service purposes.
16.8. 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. City shall be responsible for treatment of all other areas within the Center.
17. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION.
-
Operator hereby warrants to 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 City in writing. Operator, for itself and its officers,
agents. and employees, further agrees that it shall treat all information provided to it by City as
Exclusive Concession and Alcoholic Beverage Services 16 of 28
confidential and shall not disclose any such information to a third party without the prior written
approval of 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 City immediately if the 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 an agent, representative or employee of 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 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
creating a partnership or joint enterprise between City and operator.
19. LIABILITY,INDEMNIFICATION,AND RELEASE
19.1 Liabili
OPERATOR SMALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PR OPER T Y
LOSS, PROPERTY DAMAGE,AND/OR PERSONAL INJURY, INCLUDING, BUT NOT LIMITED
To, DEATH, TO ANY AND ALL PERSONS, OF ANY MIND OR CHARA CTER, WHETHER REAL
OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS), ERRORS, OR
OMISSION(S),MALFEASANCE, OR INTENTIONAL MISCONDUCT OF OPERATOR.
19.2 INDEMNITY
OPERATOR COTENANTS AND AGREES To, AND DOES HEREBY INDEMNIFY,
HOLD HARMLESS AND DEFEND,A T ITS O WN EXPENSE, THE CITY FROM AND A GAINST
ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS,
LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO ATTORNEY'S
FEES AND COSTS OF DEFENSE), PROCEEDINGS., DEMANDS, DAMAGES, LIABILITIES,
AND/OR SUITS OF ANY KIND OR NATURE, INCL UDING, BUT NOT LIMITED TO, THOSE
FOR PROPERTY LOSS (INCL UDING, B UT NOT LIMITED TO, WORKERS' COMPENSA TION
ACT LIABILITY, L OST PR OFITS, AND PR OPER T Y DAMA GE) AND/OR PERSONAL INJUR Y
(INCL UDING, B UT NOT LIMITED TO, DEA TH) TO ANY AND ALL PERSONS, OR OTHER
HARM FOR WHICH RECO Y.ER Y OF DAMA GES IS SO UGHT, OF WHA TSOE TIER KiTND OR
CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION
WITH THIS A GREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS, ERR DRS,
OR OMISSIONS,MALFEASANCE, OR INTENTIONAL MIDSCOND UCT OF OPERA TOR..
19.3 Release
Operator agrees to and shall release City from and against any and all liability for injury, death,
damage, or loss to persons or property sustained or caused by Operator in connection with or incidental
to performance under this Agreement.
Exclusive Concession and Alcoholic Beverage Services 17 of 28
19.4 Release and Indemnity by operator's Contractors and Subcontractors
Operator shall require all of its contractors and subcontractors to include in their contracts and
subcontracts a release and indemnity in favor of City in substantially the same form,as above.
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 City. If City grants consent to an assignment, the
assignee shall execute a written Agreement with City and operator under which the assignee agrees to be
bound by the duties and obligations of operator under this Agreement. operator and assignee shall be
jointly liable for all obligations under this Agreement prior to the assignment. If City grants consent to a
subcontractor, the subcontractor shall execute a written Agreement with operator referencing this
Agreement under which the subcontractor shall agree to be bound by the duties and obligations of
Operator under this Agreement as such duties and obligations may apply. operator shall provide City
with a fully executed copy of any such subcontract.
21. INSURANCE.
Operator shall provide 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
$5009000 Bodily Injury per person
$190009000 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
$1001000 Each accident/occurrence
$100,000 Disease-per each employee
$500,000 Disease- policy limit
Exclusive Concession and Alcoholic Beverage Services 18 of 28
4. Liquor Liability:
The policies of insurance shall protect 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 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;
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:
$19000,000 Each Common Cause
$I,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 Ivey Rating Guide or with such other financially sound insurance
carriers acceptable to 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 coverage 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 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 coverages, 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 City.
i. Any failure on part of City to request required insurance documentation shall not constitute a
waiver of the insurance requirement specified herein.
Exclusive Concession and Alcoholic Beverage Services 19 of 28
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
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 City based upon changes in statutory law, court decision or the claims history of the
industry as well as of the contracting party 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 been 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 Operator has obtained all required insurance
shall be delivered to City prior to Operator proceeding with any work pursuant to this Agreement. All
policies shall be endorsed to name City 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 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 reduction in limits of coverage shall be provided to 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, ordinances, rules and
regulations. If 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
INDEMNIFYAND DEFEND City and hold City harmless from such claim.
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, return receipt requested, addressed as
follows:
Exclusive Concession and Alcoholic Beverage Services 20 of 28
To The CITY: To OPERATOR:
City of Fort Worth Coburn Catering Service, Inc.
Attn: Director of Public Events Attn: Jerrell Coburn
1000 Throckmorton 801 N. Main Street
Fort Worth Tx 75102-6311 Fort Worth, Texas
Facsimile: (817)392-2756 Facsimile: (817)336-0417
25. GOVERNMENTAL POWERS.
It is understood and agreed that by execution of this Agreement, City does not waive or surrender
any of its governmental powers.
26. NO WAIVER.
The failure of 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 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 1 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.
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 control (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.
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 interpretation of this Agreement or exhibits hereto.
Exclusive Concession and Alcoholic Beverage Services 21 of 28
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 that is executed by
an authorized representative and delivered on behalf of such party.
33. DOCUMENTS INCORPORATED.
The Request for Proposals for Exclusive Concession and Alcoholic Beverage Services at will
Rogers Memorial Center (RFP No. 11-0190), issued June 29, 2011 ("RFP"), and Operator's response to
the RFP dated July 28, 2011 ("RFP Response") are hereby incorporated by reference and made a part of
this Agreement. However, the Parties acknowledge that the exceptions set forth in section 17.7 of
Operator's RFP Response (Acceptance of Conditions) have been resolved prior to the execution of this
Agreement. Therefore, section 17.7 of Operator's RFP Response is deleted in its entirety and shall not be
binding on the Parties.
In the event of a conflict between Sections 1-41 herein (including any attached exhibits) and the
RPP and RFP Response, Sections 1-41 shall control over the RFP and RFP Response.
34. ENTIRETY OF AGREEMENT.
This Agreement, including the schedule of exhibits attached hereto and any documents
incorporated herein by reference, contains the entire understanding and agreement between 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.
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 contained; 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 covenants, conditions
or provisions of this Agreement.
37. PUBLIC INFORMATION ACT CLAUSE.
Operator understands and acknowledges that City is a public entity under the laws of the State of
Texas and as such, all documents held by City are subject to disclosure under Chapter 552 of the Texas
Government Code. Operator shall clearly indicate to City what information it deems proprietary. If 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, City will notify Operator prior to disclosure of such documents, and give
Exclusive Concession and Alcoholic Beverage Services 22 of 28
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, 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.
38. TAXES AND FEES.
Operator covenants and agrees to pay promptly all lawful general taxes, special-assessments,
excises, license fees, and permit fees that arise solely on account of Operator'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 City's performance of the obligations in this Agreement, Operator acknowledges and agrees
that City is a governmental entity, and because of statutory, constitutional, and City Charter provisions, it
cannot commit to the funding of City's obligations described herein beyond each fiscal year. Therefore,
the funding obligations of City described herein are subject to and conditioned upon the Fort Worth City
Council 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 City shall have the
right to take possession of the Concession Premises subject to the provisions of Article 16.2.
Exclusive Concession and Alcoholic Beverage Services 23 of 28
IN WITNESS WHEREOF,the Parties have executed this Agreement on the Effective Date.
CITY o RT Wo TH: COB CATE SERVI ,INC.
By: By:
Sus n Alanis Jerrell Coburn
sistant City Manager /President and CEO
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APPROVED AS TO FORM AND LEGALITY:
By:
Tesistant Wallach
A City Attorney
AGREEMENT AUTHORIZATION:
M&C: C-25264
Date Approved: November 1, 2011
OFFICIAL RECORD.
CITY SECRETARY ,
FT. WORTH, TX
Exclusive Concession and Alcoholic Beverage Services
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City of Fort Worth, Texas
Mayor and Council Communication... ................. ... ... . ..... ............ ....
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GOUNCIL ACTION: A`pproved on '11t'!l2Q1'I
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DATE: Tuesday, November 01, 2011 REFERENCE NO.: C-25264
LOG NAME: 25WRMC-CONCESSION AND ALCOHOL SERVICE2011
SUBJECT:
Authorize Execution of 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 Five
Years (COUNCIL DISTRICT 7)
RECOMMENDATION:
It is recommended that the City Council authorize execution of a 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 five years to begin on February 1, 2012 and expire on January 31, 2017 with options
to renew for five one-year terms.
DISCUSSION:
On June 29, 2011, a Request for Proposals (R FP) No. 11-0 190 was issued for exclusive Concession and
Alcoholic Beverage Services at Will Rogers Memorial Center(WRIVIC). On July 13, 2011, apre-proposal
Conference was held that was attended by representatives of six firms. The deadline for submission of the
proposals was July 28, 2011.
Coburn's Catering Service, Inc. (Coburn's), is being recommended as the exclusive Concession and
Alcoholic Beverage Services Provider based on the best value to the City. Factors such as overall
commission, experience, financial stability and the proposed business plan were considered by the
evaluation team. All events produced by the Southwestern Exposition and Livestock Show will be
excluded from the Agreement. The City will retain the food, beverage and alcoholic beverage rights for the
Backstage Club and the Centennial Room.
Coburn's is a Fort Worth, family-owned and operated concession and catering company established in
1946, has operated in the facility during the Stock Show and possesses the equipment required to provide
concession and alcoholic beverage services.
Coburn's will pay the City the following commissions:
Year 1:
. 25 percent of gross receipts of Alcoholic Beverages and Mixed Drinks
. 25 percent of food and non-alcoholic beverages at permanent or temporary concession stands
. 50 percent of revenue from third party vendors
Year 2:
. 26 percent of gross receipts of Alcoholic Beverages and Mixed Drinks
Logname: 25WRMC-CONCESSION AND ALCOHOL SF,RViC'F.2O11 nanP I „fz
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■ 26 percent of food and non-alcoholic beverages at permanent or temporary concession stands
50 percent of revenue from third party vendors
Year 3-5:
• 27 percent of gross receipts of Alcoholic Beverages and Mixed Drinks
• 27 percent of food and non-alcoholic beverages at permanent or temporary concession stands
■ 50 percent of revenue from third party vendors
Coburn's will invest $100,000.00 for equipment, infrastructure, and concession upgrades to enhance the
operation and will dedicate an additional one percent of gross receipts for a Maintenance and
Improvement Fund to be used for the maintenance and improvements of the catering and concession
facilities. The Public Events Department will also invest in upgrading the concessions and catering
infrastructure to insure an outstanding guest experience at the WRMC.
Catering at the facility will remain open to approved caterers who meet the established criteria, have the
capacity to provide health permits, liability insurance, have the ability to contract with the City and agree to
pay the established commission based on gross receipts less sales tax.
ADVERTISEMENT—The RFP was advertised in the Fort Worth Star_Telegram on June 29, 2011, July 5,
2011, July 13, 2011, and July 20, 2011. Three responses were received from AMAcore, LLC, Coburns
Catering Service, Inc., and The Coffee Spot.
M/WBE —A waiver of the goal for MIWBE subcontracting requirements was requested by the Public
Events Department and approved by the MIWBE Office because the purchase of goods and services is
from sources where subcontracting or supplier opportunities are negligible.
CONTRACT TERM — Upon City Council's approval, the Contract will begin on February 1, 2012 and end
on January 1, 2017 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 five additional one-year terms 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.
The Will Rogers Memorial Center is located in COUNCIL DISTRICT 7, but will serve Fort Worth residents
in ALL COUNCIL DISTRICTS.
FISCAL INFORMATION /CERTIFICATION:
The Financial Management Services Director certifies that the Public Events Department will be
responsible for the collection of funds due to the City under this contract.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
CERTIFICATIONS:
Submitted for City Manager's office by: Susan Alanis (8180)
Originating Department Head: Kirk Slaughter (2501)
Logname: 25WRMC-CONCESSION AND ALCOHOL SERVICE2011 Page 2 of 3
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Additional Information Contact: Betty Tanner (2502)
ATTACHMENTS
1. MWBE Concessions and Alcoholic Bev at WRMC. df (CFW Internal)
Lmmame: 25WRMC-CONCESSION AND ALCOHOL SERVICE2011 PaorP 3 of 3