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HomeMy WebLinkAbout2021 0921Agenda Item No:1.5 CITY COUNCIL Agenda Item Report Meeting Date: September 21, 2021 Submitted by: Mayra Sullivan Submitting Department: City Secretary Item Type: Miscellaneous Agenda Section: Subject: Items of Community Interest Suggested Action: Attachments: 4 Agenda Item No:3.1 CITY COUNCIL Agenda Item Report Meeting Date: September 21, 2021 Submitted by: Blaine Crimmins Submitting Department: CVB/Communications Item Type: Presentation Agenda Section: Subject: Receive a presentation from the Convention & Visitors Bureau/Communications regarding "The Colony Culture: Andretti's Games" video. (Lanicek/Crimmins) Suggested Action: Attachments: 5 Agenda Item No:3.2 CITY COUNCIL Agenda Item Report Meeting Date: September 21, 2021 Submitted by: Joe Perez Submitting Department: General Admin Item Type: Presentation Agenda Section: Subject: Receive a presentation concerning outdoor kennel improvements to The Colony Animal Shelter made possible through a private donation. (Perez) Suggested Action: A longtime animal shelter volunteer donated $45,000 to go towards improving the outdoor kennel area of the shelter. After reviewing proposals, staff along with the donor's review and approval decided to go with MGM construction's proposal who happens to be located in The Colony. This presentation will include a 3d video flyover of the proposed improvements. MGM is also donating a portion of their labor/material in-kind towards the project. Although shelter staff is aware of the identify of the donor, the donor has expressed their desire to remain anonymous as possible and does not wish to be formally recognized publicly for their contribution to the shelter. Attachments: 6 Agenda Item No:3.3 CITY COUNCIL Agenda Item Report Meeting Date: September 21, 2021 Submitted by: Mayra Sullivan Submitting Department: City Secretary Item Type: Miscellaneous Agenda Section: Subject: Council to provide direction to staff regarding future agenda items. (Council) Suggested Action: Attachments: 7 Agenda Item No:4.1 CITY COUNCIL Agenda Item Report Meeting Date: September 21, 2021 Submitted by: Mayra Sullivan Submitting Department: City Secretary Item Type: Minutes Agenda Section: Subject: Consider approving City Council Regular Session meeting minutes for September 7, 2021. (Stewart) Suggested Action: Attachments: September 7, 2021 DRAFT Minutes.docx 8 Agenda Item No:4.2 CITY COUNCIL Agenda Item Report Meeting Date: September 21, 2021 Submitted by: Tina Stewart Submitting Department: City Secretary Item Type: Discussion Agenda Section: Subject: Consider accepting Jarred Alford's resignation from the Technologies Board. (Council) Suggested Action: Attachments: 9 Agenda Item No:4.3 CITY COUNCIL Agenda Item Report Meeting Date: September 21, 2021 Submitted by: Shannon Stephens Submitting Department: Fire Item Type: Resolution Agenda Section: Subject: Consider approving a resolution authorizing the City Manager to execute a communications service agreement with the City of Fort Worth to permit access for Fire Department to program Tarrant County fire operations talk groups into department radios. (Thompson) Suggested Action: These radio talk groups would permit TCFD ability to communicate with Tarrant County fire departments in the event of response into their jurisdictions for emergency response and assistance. This agreement was reviewed by Jeff Moore and Tina Stewart September 2, 2021 and it was determined it would need approval by City Council prior to authorization. Attachments: Government Entity - Mutual Aid - No Fee CSA 062921.docx Res. 2021-xxx City of Fort Worth Communications Service Agreement.doc 10 Communications System Agreement Page 1 of 11 COMMUNICATIONS SYSTEM AGREEMENT MUTUAL AID ACCESS (SINGLE USE) – GOVERNMENT ENTITY This COMMUNICATIONS SYSTEM AGREEMENT (the “Agreement”) is made and entered into by and between the City of Fort Worth (“Fort Worth” or “CFW”) acting herein by and through its duly authorized Assistant City Manager, and City of The Colony (“USER”), acting herein by and through its duly authorized _Fire Chief individually referred to as a “party,” collectively referred to herein as the “parties.” The CFW or Fort Worth shall include all employees, directors, officers, agents, and authorized representatives. USER shall include all employees, directors, officers, agents, and authorized representatives. RECITALS WHEREAS, this Agreement is made under the authority of Sections 791, Texas Government Code; and WHEREAS, each governing body, in performing governmental functions or in paying for the performance of governmental functions hereunder, shall make that performance or those payments from current revenues legally available to that party; and WHEREAS, each governing body finds that the subject of this Agreement is necessary for the benefit of the public and each has the legal authority to perform and to provide the governmental function or service which is the subject matter of this Agreement; and WHEREAS, each governing body finds that the performance of this Agreement is in the common interest of both parties and that the division of costs fairly compensates the performing party for the services or functions under this Agreement; and WHEREAS, Fort Worth owns, operates, and maintains Trunked Voice Radio Systems for the purpose of providing Public Safety voice radio communications and is the sole license holder of the CFW Trunked Voice Radio Systems with all privileges and responsibilities thereof; and WHEREAS, Fort Worth and USER may, in an emergency or under certain other circumstances, provide each other with public safety support or other mutual aid or emergency assistance; and WHEREAS, the parties wish to enter into this Agreement to establish the terms and conditions pursuant to which USER will be able access CFW’s radio systems in connection with the provision of mutual aid assistance between the parties. NOW THEREFORE, Fort Worth and USER agree as follows: 11 Communications System Agreement Page 2 of 11 1.Grant of License. Fort Worth hereby grants the USER specific permission to operate USER’s owned or leased field radio equipment or equipment attached and/or interfaced to the CFW Trunked Voice Radio Systems (the “Radio System”) infrastructure in mutual aid or emergency situations, provided, however, that such use must comply with the specific details and requirements for use as set forth in “Exhibit A, Terms of Use,” which is attached hereto, incorporated herein, and made a part of this Agreement for all purposes. Failure to comply with these specific details and requirements may result in the immediate withdrawal of the specified permissions. 2.Term. The Agreement shall become effective upon the signing of the Agreement by an Assistant City Manager of the City of Fort Worth (the “Effective Date”) and shall continue in full force and effect unless terminated in accordance with the provisions set forth herein and in Exhibit A. 3. Liability. With respect to the use of the Radio System, each party agrees to be liable for any damages or loss that may be caused by its own negligence, omission or intentional misconduct. For purposes of this Section 3, the term party shall include employees, directors, officers, agents, authorized representatives, subcontractors, consultants, and volunteers of the respective party. Nothing in the performance of this Agreement shall impose any liability for claims against either party other than for claims for which the Texas Tort Claims Act may impose liability. Further, this Agreement is not intended to affect the allocation of liability between the parties in connection with the provision of mutual aid assistance; liability for such mutual aid assistance shall be governed by the separate mutual aid agreement or state law provisions under which the assistance is being provided. 4.Independent Contractor. It is expressly understood and agreed that USER shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the CFW. Subject to and in accordance with the conditions and provisions of this Agreement, USER shall have the exclusive right to control the details of its operations and activities with respect to the use of the Radio System and shall be solely responsible for the acts and omissions of its employees, directors, officers, agents, authorized representatives, subcontractors, and consultants. USER acknowledges that the doctrine of respondeat superior shall not apply as between the CFW, its employees, directors, officers, agents, and authorized representatives, and USER and its employees, directors, officers, agents, authorized representatives, subcontractors, and consultants. USER further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between CFW and USER. This Agreement is not intended to affect the roles of the parties in connection with providing mutual aid assistance; coordination of mutual aid activities and chain-of-command issues shall be governed by the separate mutual aid agreement or state law provisions under which assistance is being provided. 5.Non-Appropriation of Funds. Fort Worth and USER will use best efforts to appropriate sufficient funds to support obligations under this Agreement. However, in the event that sufficient funds are not appropriated by either party’s governing body, and as a result, that party is unable to fulfill its obligations under this Agreement, that party (i) shall promptly notify 12 Communications System Agreement Page 3 of 11 the other party in writing and (ii) may terminate this Agreement, effective as of the last day for which sufficient funds have been appropriated. 6.Right to Audit. USER agrees that the CFW shall, at no additional cost to the CFW, during and until the expiration of three (3) years after termination of this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers, records, and communications of the USER involving transactions relating to this Agreement. USER agrees that the CFW shall have access during normal working hours to all necessary USER facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The CFW shall give USER reasonable advance notice of intended audits. 7. Assignment. USER shall not have the right to assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the CFW. Which such right shall be granted solely at the discretion of the CFW. Any assignment in violation of this provision shall be void. 8.No Waiver. The failure of either party to insist upon the performance of any provision or condition of this Agreement or to exercise any right granted herein shall not constitute a waiver of that party’s right to insist upon appropriate performance or to assert any such right on any future occasion. 9.Governmental Powers/Immunities. It is understood and agreed that by execution of this Agreement, neither CFW nor USER waives or surrender any of its governmental powers or immunities. 10.Amendments. No amendment to this Agreement shall be binding upon either party hereto unless such amendment is set forth in writing, dated subsequent to the date of this Agreement, and signed by both parties. 11.Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 12.Confidential Information. To the extent permitted by law, USER for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the CFW as confidential (“City Information”) and shall not disclose any such information to a third party without the prior written approval of the CFW, unless such disclosure is required by law, rule, regulation, court order, in which event USER shall notify CFW in writing of such requirement in sufficient time to allow CFW to seek injunctive or other relief to prevent such disclosure. USER 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. USER shall notify the CFW immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised. 13 Communications System Agreement Page 4 of 11 13.Force Majeure. The parties shall exercise their best efforts to meet their respective duties and obligations hereunder, but shall not be held liable for any delay in or omission of performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any state or federal law or regulation, acts of God, acts of omission, fires, strikes, lockouts, national disasters, wars, riots, material or labor restrictions, transportation problems, existing contractual obligations directly related to the subject matter of this Agreement, or declaration of a state of disaster or emergency by the federal, state, county, or City government in accordance with applicable law. 14.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: City of Fort Worth City of The Colony Attn: IT Solutions Director Attn: Fire Chief 200 Texas Street Address: 6800 Main Street Fort Worth TX 76102 The Colony, TX 75056 Facsimile: (817) 392-8654 Facsimile: (972) 624-2292 With Copy to the City Attorney At same address 15. Governing Law / Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. Venue for any action brought on the basis of this Agreement shall lie exclusively in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas – Fort Worth Division. In any such action, each party shall pay its own attorneys’ fees, court costs and other expenses incurred as a result of the action. 16.Signature Authority. The person signing this Agreement hereby warrants that he/she has the legal authority to execute this Agreement on behalf of his or her 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. 17.Entirety of Agreement. This written instrument, including all Exhibits attached hereto, contains the entire understanding and agreement between Fort Worth and USER 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 this Agreement. Any previously executed Communication System Agreement between the parties shall be terminated simultaneously with the final execution of this Agreement by both parties. 14 Communications System Agreement Page 5 of 11 18. Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. [Signature Page Follows] 15 Communications System Agreement Page 6 of 11 Agreed and Accepted: CITY OF FORT WORTH:CITY OF THE COLONY: By: ____________________________By: _________________________ Valerie Washington Name:_______________________ Assistant City Manager Title: ________________________ Date: ___________________________Date: ________________________ APPROVAL RECOMMENDED: By:_____________________________ Kevin Gunn Director CONTRACT COMPLIANCE MANAGER: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: ____________________________ Name: Alan Girton Title: Senior IT Manager APPROVED TO FORM APPROVED TO LEGALITY: AND LEGALITY: By: _____________________________By: __________________________ Taylor Paris Name: ________________________ Assistant City Attorney Title: _________________________ ATTEST:ATTEST: By: _______________________________By: __________________________ 16 Communications System Agreement Page 7 of 11 Ronald Gonzales Name: ________________________ Acting City Secretary Title: _________________________ Contract Authorization: M&C: ____________________________ Date Approved: ____________________ 17 Communications System Agreement Page 8 of 11 EXHIBIT A CATEGORY 1, TERMS OF USE The following definitions shall have the meanings set forth below and apply to this Agreement and the Terms of Use set forth herein: DEFINITIONS “Console System” shall mean all hardware and software associated with any dispatch console or set of consoles operated by the USER that are connected to the CFW Master Switch. “Interoperable Communications Governance Committee” (“Governance Committee”) shall mean that group of individuals tasked with maintaining and administering the Interoperable Communications Plan. The Governance Committee shall consist of ten to fifteen individuals with CFW selecting at least one representative and each classification of users selecting at least one representative. The Governance Committee shall determine and may periodically adjust the number of members and the method for selecting members for each classification of users with a goal of ensuring that the Governance Committee reflects the full range of user types. “Interoperable Communications Plan” (the “Plan”) means the plan developed and established by CFW and the Governance Committee to facilitate, enhance and simplify radio communications among all agencies utilizing the Radio System or connecting their Site Repeater Systems or Console Systems to the CFW Master Switch. The Plan is available upon request from CFW or can be found on the CFW website at http://fortworthtexas.gov/itsolutions/cfwradios/. “Master Switch” shall mean the primary processing and network infrastructure to which all Console Systems and Site Repeater Systems must connect in order to operate on the Radio System. The Master Switch is currently located at the CFW Eagle Mountain facility. “Over The Air Rekeying” (“OTAR”) shall mean the management and support of Subscriber Radio encryption keys via over-the-air, radio channel transmission. “Private Call” shall mean a feature that reserves channel resources specifically for conversations between two Subscriber Radios. “Site Repeater System” shall mean the base stations, shelter, tower and all site-specific hardware and software infrastructure associated with the provision of a radio site connected to the CFW Master Switch. “Subscriber Radio” shall mean a radio that has a unique identification number and is programmed to operate on the Radio System. The term shall include, but not be limited to, control stations (desk top radios), mobile radios, and portable radios. 18 Communications System Agreement Page 9 of 11 “Talk Group” shall mean a specific group of Subscriber Radios allowed to communicate privately within that group over shared infrastructure resources. TERMS OF USE 1. The installation and maintenance of the Radio System infrastructure equipment is the responsibility of CFW unless otherwise stated in this Agreement. 2. The CFW is the holder of the FCC (Federal Communications Commission) license(s) that the Radio System uses for its operation. This Agreement shall not be construed or interpreted to grant, convey, or otherwise provide USER with any rights whatsoever to the CFW FCC license(s) or to the Radio Frequency spectrum used by the Radio System. 3. The CFW makes no guarantee, either express or implied, as to radio signal strength or a specific level of radio coverage in a particular location. The USER is responsible for conducting appropriate and applicable in-building and geographical coverage testing to determine the expected radio coverage level for USER’s equipment. 4. USER will be responsible for the acquisition, programming, and maintenance of all equipment USER will be utilizing in connection with the Radio System infrastructure, including, but not limited to, Subscriber Radios, consoles, and special equipment. 5. In order to ensure hardware and software compatibility with the Radio System infrastructure, all Subscriber Radios and consoles intended for use by USER on the Radio System shall be compliant with Project 25 standards established by the Telecommunications Industry Association. The use of unauthorized radios on the Radio System may result in suspended operation of the radios and/or termination of the Agreement. 6. USER agrees to exclusively utilize antennas specifically approved by the radio manufacturer for use with the specific models of USER’s radios. The use of short, broad spectrum, or “stubby,” antennas is not recommended. USER shall be solely liable for coverage gaps in the event USER utilizes short broad spectrum or stubby antennas or other antennas not approved by the manufacturer for use with the specific models of USER’s radios. 7. No antenna gain greater than 3 DB will be allowed for mobiles and consolettes. 8. USER shall use due diligence in the maintenance and configuration of its Subscriber Radio equipment to ensure that no USER radio or console causes a degradation to the Radio System operation. The CFW shall have the right to remove from operation any field radio unit or equipment owned or leased by USER that is operating on, attached and/or interfaced to the CFW infrastructure, if CFW determines in its sole reasonable discretion that such equipment is causing interference or harm to the Radio System in any way. The CFW reserves the right to request that USER operated field radio units or equipment operating on, attached and/or interfaced to the infrastructure be tested for proper operation and/or repaired by an authorized radio repair facility approved by the CFW. The cost of such testing or repair will be the sole responsibility of USER. 19 Communications System Agreement Page 10 of 11 Furthermore, the CFW shall have the right to deactivate, without prior notification to or consent of USER, any field radio or other USER equipment suspected of causing interference, intentionally or unintentionally, to any other radios on the Radio System or to the Radio System’s overall operation. 9. In instances in which the parties are engaged in providing mutual aid assistance, USER’s radios may be used for voice radio communications over the Radio System infrastructure in accordance with the terms and conditions of this Agreement for as long as this Agreement remains in effect. This Agreement does not authorize regular use of the Radio System in situations that do not involve mutual aid assistance between the parties. 10. The CFW will be responsible for managing infrastructure loading and demand. CFW reserves the right, without notice to incumbent users, to enter into a similar agreement with other entities or to deny the addition of new Subscriber Radio equipment to any user of the Radio System. The CFW shall have sole discretion in determining whether to allow additional users or radios based on CFW’s determination of whether such addition to the Radio System can be made without adversely impacting the Radio System. 11. USER is prohibited from utilizing telephone interconnect on the Radio System. This prohibition shall include, but is not limited to, connecting to either the PSTN (Public Switched Telephone Network) or USER’s internal phone system(s) through a console patch into the Radio System or to any Subscriber Radio on the Radio System. 12. Due to the radio infrastructure resource allocations required by “Private Call,” USER is not permitted to utilize “Private Call” on the Radio System. 13. USER is prohibited from utilizing data communications on the Radio System without CFW’s explicit written permission. 14. The use of OTAR in association with Subscriber Radio encryption is prohibited without prior approval of CFW. Administration of encryption keys will be performed exclusively by CFW. USER may utilize and administer other encryption methods as required. 15. The CFW will enable the USER-provided Advanced System Key (ASK) for use with the USER’s Subscriber Radios only. The ASK will expire annually, and USER shall be responsible for requesting a renewal following expiration if one is required. USER will be responsible for safeguarding the security of the ASK to prevent theft and/or loss. USER agrees to notify CFW immediately upon the theft or loss of the ASK. 16. The CFW has established a coordinated Interoperable Communications Plan to apply to CFW and the users of its Radio System. USER agrees to comply with the Plan and include the Plan’s interoperable Talk Groups in the programming of its Subscriber Radios and Console Systems. 17. Roaming to other systems or the use of USER’s Talk Groups on other trunked systems that are interconnected to the Radio System is prohibited without prior approval by CFW. Roaming to 20 Communications System Agreement Page 11 of 11 other trunked systems will be limited to the Radio System’s interoperable Talk Groups, although this capability may be terminated by CFW if its use is determined to result in performance degradation to either the Radio System or the interconnected trunked system. 18. Either USER or CFW may terminate this Agreement for any reason, with or without cause, upon ninety (90) days written notice to the other party. The CFW further reserves the right to terminate this Agreement immediately, or deny access to the USER, upon notice of USER misuse of the Radio System. Notwithstanding the foregoing, the CFW, in its sole discretion, reserves the right to immediately deny access to the USER if such action is required to prevent the spread of a security breach or threatened security breach or due to an emergency, operational issue, or other critical incident between the Master Switch and the USER’s environment. The CFW will use best efforts to restore access to the USER as soon as possible once the security breach, emergency, operational issue, or critical incident is resolved. COMPLIANCE WITH LAWS 19. The USER shall comply with all current and future Federal, State, and Local laws, Ordinances, and Mandates, including Federal Communications Commission rules and regulations regarding proper use of radio communications equipment. The USER will also comply with the guidelines, or procedures set out in this Agreement. Furthermore, the USER is responsible for enforcing such compliance by its employees, directors, officers, agents, authorized representatives, subcontractors, and consultants for USER Subscriber Radio equipment. Furthermore, the USER will be responsible for payment of any fines and penalties levied against the CFW (as the license holder) as a result of improper or unlawful use of Subscriber Radio equipment owned or leased by USER. 20. Modification, reconfiguration, or exchange of Subscriber Radio equipment may be required in order for CFW to comply with Federal, State, and Local Laws and/ or Mandates imposed on CFW as the license holder. Following reasonable notice from CFW, USER shall be responsible for undertaking such modifications, reconfiguration, or exchange. In the event USER fails to undertake any necessary action, such failure shall be considered “misuse” under Paragraph 19, and CFW may terminate this Agreement immediately or deny access to USER. [End of Document] 21 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2021 - ________ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A COMMUNICATIONS SERVICE AGREEMENT FOR THE FIRE DEPARTMENT TO COMMUICATE WITH TARRANT COUNTY FIRE OPERATIONS TALK GROUPS THROUGH DEPARTMENT RADIOS, BY AND BETWEEN THE CITY OF THE COLONY AND THE CITY OF FORT WORTH; PROVIDING AN EFFECTIVE DATE 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, has duly reviewed and considered the COMMUNICATIONS SYSTEM AGREEMENT by and between the City of The Colony and the City of Fort Worth, for the purpose of permitting access for the Fire Department to communicate with Tarrant County Fire Operations talk groups through department radios. Section 2. That this Communications Service Agreement is found to be acceptable and in the best interest of the City and its citizens, and the City Manager is hereby authorized to execute the Contract on behalf of the City of The Colony, Texas, with the terms and conditions as stated therein. 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 THE 21st DAY OF SEPTEBER 2021. __________________________ Joe McCourry, Mayor City of The Colony, Texas ATTEST: ___________________________________ Tina Stewart, TRMC, CMC, City Secretary APPROVED AS TO FORM: ______________________________________ Jeff Moore, City Attorney 22 Agenda Item No:4.4 CITY COUNCIL Agenda Item Report Meeting Date: September 21, 2021 Submitted by: David Swain Submitting Department: Parks & Recreation Item Type: Resolution Agenda Section: Subject: Consider approving a resolution authorizing the City Manager to execute a License and Use Agreement with Triple T Amusements for the 2021, 2022 and 2023 American Heroes events, and authorize extended hours of operation. (Stansell) Suggested Action: Parks & Recreation recommends approval of this item. Attachments: AH Carnival Memo.pdf Triple T Amusements License Agreement 2021.pdf Res. 2021-xxx Triple T Amusements Resolution.doc 23 1 The Colony Parks & Recreation Memo To: Mayor and Council From: David Swain, Recreation Manager CC: Pam Nelson, Community Services Director Troy Powell, City Manager Lindsey Stansell, Special Events Supervisor Date: 9/13/2021 Re: American Heroes Carnival License Agreement Since moving the American Heroes festival to the Five Star Complex in 2010 we have included a carnival as part of the event. The carnival has been a great addition to the event and has been well received by the community. We'd like to once again have a carnival in 2021, and are proposing a three year license agreement with Triple T Amusements for carnival operations at the event. Triple T Amusements has provided the carnival for our event in 2017, 2018 and 2019, and we have been pleased with their performance. The American Heroes carnival will be in operation for three days (Friday - Sunday) each year, November 5 - 7, 2021; November 11 - 13, 2022; and November 10 - 12, 2023. Requested operating hours for the carnival are Fridays: 4pm - midnight; Saturdays: 12pm - midnight; and Sundays: 1pm - 10:30pm. The carnival will be located in the south parking lot at the Five Star Complex, just off of Blair Oaks. Per City ordinance, the carnival must be approved to be held on City property, and Council is also being asked to grant a waiver to allow the carnival to operate until 10:30pm on the above mentioned Sundays. City ordinance requires the carnival to close by 10pm on those nights. We have allowed the carnival to run until 10:30pm on those two nights in previous years and have received no complaints from the neighboring residents. The carnival is located in the south parking lot, which is not immediately adjacent to residential neighborhoods. If you have any questions please feel free to reach out to me or Lindsey in advance. Thanks! 24 __________________________________ LICENSE AND USE AGREEMENT – PAGE 1 THE STATE OF TEXAS § § LICENSE AND USE AGREEMENT COUNTY OF DENTON § THIS LICENSE and USE AGREEMENT (hereinafter referred to as “AGREEMENT”) is made and entered into on this the ___ day of __________, 2021, by and between the CITY OF THE COLONY, TEXAS (hereinafter referred to as the “CITY”), acting by and through its City Manager, and TRIPLE “T” AMUSEMENTS, a Texas sole proprietorship (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: 1. Purpose. CITY hereby grants SHOW a license, pursuant to the terms of this AGREEMENT, for the purpose of utilizing a site designated by the CITY at the COMPLEX for the following dates:  November 5 - 7, 2021, during the times mutually agreed to by the parties  November 11 - 13, 2022, during the times mutually agreed to by the parties  November 10 - 12, 2023, during the times mutually agreed to by the parties 2. Term. The term of this AGREEMENT shall be from November 5, 2021 through November 12, 2023. 3. Fee. For and in consideration of the above mentioned, the SHOW agrees to pay CITY twenty percent (20%) of gross ride tickets sold. 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. 25 __________________________________ LICENSE AND USE AGREEMENT – PAGE 2 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 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 precedin g, 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 on the following dates:  November 5 - 7, 2021  November 11 - 13, 2022  November 10 - 12, 2023 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 III, Temporary Circuses and Carnivals. F. SHOW shall be authorized to operate during the hours of 4pm – midnight on Fridays; noon – midnight on Saturdays; and 1pm – 10:30pm on Sundays. 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 26 __________________________________ LICENSE AND USE AGREEMENT – PAGE 3 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. 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 Hofmeister, 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: Tony Talley N/A Triple “T” Amusements P.O. Box 439 Maypearl, Texas 76064 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. 27 __________________________________ LICENSE AND USE AGREEMENT – PAGE 4 11. Binding 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 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. EXECUTED this ______ day of _________________, 2021. CITY OF THE COLONY, TEXAS By: TROY POWELL, CITY MANAGER ATTEST: By: TINA STEWART, CITY SECRETARY EXECUTED this ______ day of _________________, 2021. TRIPLE “T” AMUSEMENTS a Texas sole proprietorship By: Name: TONY TALLEY Title: PRESIDENT 28 __________________________________ LICENSE AND USE AGREEMENT – PAGE 5 LICENSEE’S ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF DENTON § This instrument was acknowledged before me on the ___ day of _____________, 2021, by Tony Talley, President of Triple “T” Amusements, a Texas sole proprietorship, on behalf of said sole proprietorship. Notary Public, State of Texas My Commission expires: 29 __________________________________ LICENSE AND USE AGREEMENT – PAGE 6 CITY’S ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF DENTON § This instrument was acknowledged before me on the _____ day of _______________, 2021, 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: 30 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2021 - _______ 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 TRIPLE “T” AMUSEMENTS FOR THE 2021, 2022, AND 2023 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 5-6, 2021; November 11-12, 2022; November 10-11, 2023 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 Triple “T” Amusements 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 Triple “T” Amusements attached as Exhibit A 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: Friday, November 5, 2021 Saturday, November 6, 2021 Sunday, November 7, 2021 Friday, November 11, 2022 Saturday, November 12, 2022 Sunday, November 13, 2022 Friday, November 10, 2023 Saturday, November 11, 2023 Sunday, November 12, 2023 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 21 st day of September 2021. 31 ______________________________ Joe McCourry, Mayor City of The Colony, Texas ATTEST: ___________________________________ Tina Stewart, TRMC, CMC, City Secretary APPROVED AS TO FORM: ___________________________________ Jeff Moore, City Attorney 32 Agenda Item No:6.1 CITY COUNCIL Agenda Item Report Meeting Date: September 21, 2021 Submitted by: Tina Stewart Submitting Department: City Secretary Item Type: Discussion Agenda Section: Subject: A. Council shall convene into a closed executive session pursuant to Section 551.071 of the Texas Government Code to seek legal advice from the city attorney regarding hotel project and Chapter 1205 declaratory judgment action concerning the City’s receipt of certain state tax revenues, including the state’s sales and use tax, hotel occupancy tax, mixed beverage taxes, and related matters. B. Council shall convene into a closed executive session pursuant to Section 551.074 of the Texas Government Code to deliberate the evaluation, reassignment, duties, discipline, or dismissal of the City Manager. C. Council shall convene into a closed executive session pursuant to Section 551.087 of the Texas Government Code regarding commercial or financial information the city has received from a business prospect(s), and to deliberate the offer of a financial or other incentive to a business prospect(s). Suggested Action: Attachments: 33 Agenda Item No:7.1 CITY COUNCIL Agenda Item Report Meeting Date: September 21, 2021 Submitted by: Tina Stewart Submitting Department: City Secretary Item Type: Discussion Agenda Section: Subject: A. Any action as a result of executive session regarding hotel project and Chapter 1205 declaratory judgment action concerning the City’s receipt of certain state tax revenues, including the state’s sales and use tax, hotel occupancy tax, mixed beverage taxes, and related matters. B. Any action as a result of executive session regarding the evaluation, reassignment, duties, discipline, or dismissal of the City Manager. C. Any action as a result of executive session regarding commercial or financial information the city has received from a business prospect(s). Suggested Action: Attachments: 34