HomeMy WebLinkAboutResolution No. 2012-063
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER
TO EXECUTE A LICENSE AND USE AGREEMENT WITH
CARNIVAL AMERICANA, INC. FOR THE 2012 AMERICAN
HEROES EVENT; AUTHORIZING CARNIVAL OPERATING
HOURS; PROVIDING AN EFFECTIVE DATE
WHEREAS, the City of The Colony is hosting the American Heroes event to be
held at the Five Star Complex on November 10, 2012; and,
WHEREAS, The Colony City Council has determined it to be in the best interest
of its citizens to enter into a License and Use Agreement with Carnival Americana, Inc.
for the purpose of operating a carnival in conjunction with the American Heroes event.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF THE COLONY, TEXAS:
Section 1. That the City Council of the City of The Colony, Texas hereby
authorizes the city manager to execute a License and Use Agreement with Carnival
Americana, Inc. for the purpose of operating a carnival at the Five Star Complex.
Section 2. That the City Council of the City of the Colony, Texas hereby
authorizes the carnival to operate these days and during the hours of 3:00 pm - 10:30 pm
on Thursday November 8, 2012; 3:00 pm - midnight on Friday November 9, 2012; noon-
midnight on Saturday November 10, 2012; and 1:00 pm 10:30 pm on Sunday
November 11, 2012.
Section 3. That this resolution shall take effect immediately from and after its
passage.
PASSED AND APPROVED by the City Council of the City of The Colony,
Texas, this 4t" day of September, 2012.
J McCour (Colony, Mayor
ity of The Texas
JTE T:
rChristie Wilson, TRMC, City Secretary
-A44?D AS T FORM:
Jeff Moore, City Attorney
THE STATE OF TEXAS §
§ LICENSE AND USE AGREEMENT
COUNTY OF DENTON §
THIS LICENSE and USE A EEME T (hereinafter referred to as "AGREEMENT") is
made and entered into on this the day of 2012, by and between the CITY OF
THE COLONY, TEXAS (hereinafter referred to a the "CITY"), acting by and through its City
Manager, and CARNIVAL AMERICANA, an Oregon corporation (hereinafter referred to as
"SHOW"), acting by and through its duly authorized representative.
WITNESSETH:
WHEREAS, the CITY owns a recreational site commonly referred to as The Colony
Five Star Complex ("COMPLEX"); and
WHEREAS, the CITY desires to have a carnival temporarily located at the COMPLEX;
and,
WHEREAS, SHOW desires to be the exclusive vendor for conducting rides and shows
at the COMPLEX; and
WHEREAS, the CITY and SHOW agree to enter into this License and Use Agreement
for the purposes of allowing the SHOW to be the exclusive vendor to present rides and
sideshows at the COMPLEX under the terms and conditions set forth herein.
NOW THEREFORE, FOR AND IN CONSIDERATION of the mutual agreements
contained herein, the parties hereto do hereby agree as follows:
I. Purpose. CITY hereby grants SHOW a license, pursuant to the terns of this
AGREEMENT, for the purpose of utilizing a site designated by the CITY at the COMPLEX
from November 8 -11, 2012, during the times mutually agreed to by the parties.
2. Term. The term of this AGREEMENT shall be from November 8, 2012 through
November 11, 2012.
3. Fee. For and in consideration of the above mentioned, the SHOW agrees to pay
CITY fifteen percent (15%) of gross ride tickets sold with a guarantee of one thousand five
hundred dollars ($1,500.00), whichever is greater. SHOW will provide a detailed financial
report and payment to the CITY within ten (10) days of the conclusion of the event.
4.1 CITY'S Obligations and Responsibilities.
A. CITY will obtain, furnish and designate a suitable location for the operation of
such unit, which location is known as fairgrounds, same to be cleared of brush, refuse and other
objectionable matter and to be in such good condition that the attraction equipment may be
LICENSE AND USE AGREEMENT -PAGE 1
safely set up and so that the SHOW attractions may exhibit safely without discomfort to
themselves or to the public.
B. CITY agrees not to book or contract any attraction similar to the one operated by
SHOW. Also, that any attraction shall not appear in said CITY six (6) weeks preceding, or six
(6) weeks following the above mentioned period.
C. CITY agrees to furnish trash dumpsters with full service or the equivalent of the
same.
D. CITY agrees to furnish a suitable location for all trailers and support equipment
used by associates and employees of the SHOW.
E. CITY agrees to furnish six (6) portable restrooms.
4.2 SHOW'S Obligations and Responsibilities.
A. SHOW agrees to present a combination of vendors for conducting rides,
sideshows and concessions that may be available to SHOW, in the CITY COMPLEX for the
period commencing November 8, 2012 through November 11, 2012.
B. SHOW shall have and hold the exclusive on rides and shows during the life of
this contract in the area of the COMPLEX designated by the CITY.
C. SHOW shall furnish, without expense to the CITY, all shows, riding devices and
concession stands, postering paper, tickets, press notices, cuts, also promoter or press agent, if
required.
D. SHOW shall furnish and pay for all licenses, permits and taxes that may be
required by law to operate the rides, shows, concessions, bill postering and water.
E. SHOW agrees to abide by all requirements set forth in The Colony Code of
Ordinances, Part II, Chapter 4, Amusements, Article 111, Temporary Circuses and Carnivals.
F. SHOW shall be authorized to operate during the hours of 3pm - 10:30pm on
Thursday, November 8; 3pm - midnight on Friday, November 9; noon - midnight
on Saturday, November 10; and lpm - 10:30pm on Sunday, November 11, 2012.
5. In the case of death or sickness of any performer, the SHOW is to have reasonable
time in which to replace such performer or to substitute another act in its place. SHOW shall not
in any way be liable for any damages or expenses caused by the failure or delay in the presenting
of one of its units as hereinafter provided if caused by war, wrecks, strikes, governmental
regulations, labor difficulties, transportation difficulties, excessive railroad rates, or adverse
weather conditions, or any other accidents or circumstances which the SHOW has no control
over.
LICENSE AND USE AGREEMENT - PAGE 2
6. Termination. Either party may terminate this AGREEMENT after a twenty-one
(21) day written notice has been provided to each party to the agreement.
7. Notice. When notice is permitted or required by this AGREEMENT, it shall be in
writing and shall be deemed delivered when delivered in person or when placed, postage prepaid
in the United States mail, certified return receipt requested, and addressed to the parties at the
address set forth below. Either party may designate from time to time another and different
address for receipt of notice by giving notice of such change or address.
TO THE CITY: WITH A COPY TO:
Troy Powell, City Manager Jeff Moore, City Attorney
City of The Colony Brown and Hofineister, L.L.P.
6800 Main Street 740 East Campbell Road, Suite 800
The Colony, Texas 75056 Richardson, Texas 75081
TO SHOW: WITH A COPY TO:
Alan Cockerham Robert Kelsoe
Carnival Americana, Inc. 5220 Spring Valley Road
P.O. Box 1000 Suite 500
Fort Worth, Texas 76101 Dallas, TX 75254
8. Insurance. SHOW shall furnish a Certificate of Insurance showing CITY as
additional insured and/or the owner or lessee of any premises used by the named insured but only
in respect to accidents arising out of the business operations of the named insured at the carnival
site.
9. Hold Harmless. SHOW shall indemnify and hold harmless the CITY, its
officials, officers, employees, and agents from and against any claims, demands, damages,
liability, expenses (including attorney's fees), fines, penalties, suits, proceedings, actions, and
causes of action of any and every kind and nature arising or growing out of, or in any way
connected with SHOW, SHOW'S officers, employees, participants, agents, invitees, or guests
use of the subject COMPLEX, except for claims, demands, damages, expenses (including
attorney's fees), fines, suits, proceedings, actions and causes of action arising from the negligent
or willful act or omission of the CITY or its contractors, agents, or employees.
10. Governing law. This LICENSE is governed by the laws of the State of Texas,
and venue for any action shall be in Denton County, Texas.
11. Bindinp, effect. This LICENSE shall be binding upon and inure to the benefit of
the executing parties and their respective heirs, personal representatives, successors and assigns.
12. Entire Agreement. This LICENSE embodies the entire agreement between the
parties and supersedes all prior agreements, licenses, understandings, if any, relating to the
LICENSE AND USE AGREEMENT-PAGE 3
i
property and the matters addressed herein and may be amended or supplemented only by written
instrument executed by the party against whom enforcement is sought.
13. Legal construction. The provisions of this LICENSE are hereby declared
covenants running with the property and are fully binding on all successors, heirs, and assigns of
LICENSEE who acquires any right, title, or interest in or to the property or any part thereof.
Any person who acquires any right, title, or interest in or to the property, or any part hereof,
thereby agrees and covenants to abide by and fully perform the provisions of this LICENSE with
respect to the right, title or interest in such property.
i
EXECUTED this day of '2012.
CITY OF THE COLONY, TEXAS
By:
TROY -O LL, C Y MANAGER
ATTEST: ~
By:
C STIE WILSON, CITY SECRETARY
EXECUTED this >f" day of '2012.
CARNIVAL AMERICANA
an Oregon corporation
"
By:
Nam ALAN COCKERHAM
Title: PRESIDENT
LICENSE AND USE AGREEMENT- PAGE 4
LICENSEE'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the day of ~PT- , 2012,
by Alan Cockerham, President of Carnival Americana, Inc., an Oregon corporation, on behalf of
said corporation.
PU ANDREW KROUNDTREE Notary Public, State of Texas
* NOTARY PUBLIC
STATE OF TEXAS
A~OFMY COMM. EXP. 12/27/14
4 My Commission expires:, z'~
LICENSE AND USE AGREEMENT-PAGE 5
I
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the day of (1 ~l t ~S1
2012, by Troy Powell, City Manager of the City of The Colony, Texas, a Texas municipality, on
behalf of said municipality.
Notary Public, State of Texas
My Commission Expires:
LISA CAF HENDERS0N
MY COMh1lSSIOP! EXF'I@ES
(ktobw 1, 2012
LICENSE AND USE AGREEMENT - PAGE 6