HomeMy WebLinkAboutResolution No. 08-010
RESOLUTION NO. 08-0 (0
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF
THE BB OWEN PARK CONCESSIONAIRE AGREEMENT BY AND
BETWEEN THE CITY OF THE COLONY AND INFRARED COMBAT
ZONE ADVENTURE PARKS TO INCLUDE OUTDOOR LASER TAG
AND GROUP ACTIVITIES AND CONCESSIONS ONLY, WHICH IS
ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT
"A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE
CONTRACT; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the City and Concessionaire have entered into an Agreement such that the
Concessionaire is to provide outdoor laser tag and activities and concessions at BB Owen Park;
and
WHEREAS, the City has determined that it is in the best interest of the City to enter into
an Agreement with Infrared Combat Zone Adventure Parks, which is attached hereto and
incorporated herein by reference as Exhibit "A", under the terms and conditions provided
therein.
THEREFORE, BE IS RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, THAT:
Section 1. The Agreement, which is attached and incorporated hereto as Exhibit "A",
having been reviewed by the City Council of the City of The Colony, Texas, and found to be
acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all
things approved, and the City Manager is hereby authorized to execute the Agreement on behalf
of the City of The Colony, Texas.
Section 2. That this Resolution shall take effect immediately from and after its adoption
and it is so resolved.
PASSED, APPROVED, AND EFFECTIV
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nstIe WIlson, City Secretary
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ST ATE OF TEXAS
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BB OWEN PARK
CONCESSIONAIRE LICENSE
COUNTY OF DENTON
This agreement, entered into by and between the City of The Colony, a Home Rule
municipal corporation of the State of Texas, hereinafter called "City," and Infrared Combat
Zone Adventure Parks, hereinafter called "Concessionaire."
Witnesseth
WHEREAS, the City desires to have provided outdoor laser tag and other supervised
group activities, as well as quality food and beverage service through concession operations in
BB Owen Park, City owned public park; and
WHEREAS, the Concessionaire is willing and able to provide such outdoor laser tag and
group activities, along with food and beverage services, in said buildings and facilities; and
WHEREAS, Concessionaire is desires to obtain a license to operate a concession
building for a food and beverage concession and provide rental of equipment and supervision of
outdoor laser tag, team building, and other related activities on such premises.
NOW, THEREFORE, in consideration of the promises, covenants, terms and conditions
herein contained, the parties mutually agree:
1.00 Licensed Premises. The City of The Colony hereby grants an exclusive license for that
portion of BB Owen Park located at 5700 Squires, The Colony, Texas, identified as the
undeveloped wooded area east and north of softball fields as shown on the aerial photo, which is
attached hereto and incorporated herein as Exhibit "A".
2.00 Term of A2reement. The term of this licensed agreement shall be for a period of five
(5) years, commencing on January 7, 2008, and terminating on January 6th, 2012, unless sooner
terminated as hereinafter provided. Furthermore, Concessionaire shall have an option to renew
this agreement for one or more additional term(s) of five (5) years (60 months) (the "Renewal
Term"), unless sooner terminated as provided herein.
3.00 Renewal Terms.
3.01 During each Renewal Term the lease will continue as written except that the base
rent will be adjusted to reflect increases in the Consumer Price Index for "Dallas Fort Worth
Area, All Items," issued by the Bureau of Labor Statistics of the Unites States Department of
Labor.
3.02 The option to extend for the Renewal Term(s) must be exercised by written notice
delivered to the Community Services Director or designee ninety (90) days prior to the
Termination Date.
CONCESSIONAIRE AGREEMENT -Page 1
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4.00 Rental Terms
4.01 Concessionaire shall pay as rental:
(a) The base rent of $150.00 a month for use of the existing concession stand during
softball season(s) and the base rent of $100.00 a month for use of existing concession
stand when softball leagues are not in session, plus three percent (3%) of gross sales to be
paid each month to The Colony Parks and Recreation Department Administration Offices
(hereinafter, "PARD") located at 5151 North Colony Boulevard, The Colony, Denton
County, Texas. Payments shall be due and payable on the first (15t) day of each month.
Payments received after the fifth (5th) day of each month shall bear an interest rate of ten
percent (10%). Failure to pay shall constitute breach of contract and shall be grounds for
termination by the City.
(b) "Gross Sales" means the entire amount of the sales price, whether for cash or
otherwise, of all sales of merchandise (including gift and merchandise certificates),
services, and all other receipts of all business conducted in or from the Premises. Each
sale on installment or credit will be treated as a sale for the full price in the month during
which the sale was made, irrespective of when Concessionaire receives payment from its
customer. Gross Sales, however, will not include any sums collected and paid out for any
sales or excise tax.
5.00 Gross Income Statement. Concessionaire shall present a statement of the gross income
of the concession with each monthly payment to the City through the Parks and Recreation
Department Administrative Offices located at 5151 N. Colony Blvd, The Colony, Texas. Failure
to comply shall constitute a material breach of this agreement.
6.00 Inspection of Records. Concessionaire shall keep accurate records of all sales and
receipts in accordance with such bookkeeping systems as City may approve; and City shall have
the right to inspect the books, records and inventories of the Concessionaire at any scheduled
reasonable time for the purpose of ascertaining the correct amounts due the City under the terms
of this agreement.
7.00 Performance Security. Concessionaire shall deposit with the director of finance,
without interest, legal tender or a certified or cashier's check in an amount equal to two (2)
months base rent as security for the full and faithful performance of this agreement by
Concessionaire and which may be used by City for the purpose of remedying any default in the
performance of any of the terms of this agreement. In lieu thereof, Concessionaire may post
bond in said sum, executed by a surety or sureties licensed or authorized in Texas and approved
in writing by the director of finance, naming City as obligee and Concessionaire as principal.
Said security or the balance thereof shall be returned to Concessionaire only after Concessionaire
has fully performed this agreement or upon termination of this Agreement.
8.00 Scope of Concession
CONCESSIONAIRE AGREEMENT -Page 2
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8.01 Concessionaire shall comply with all federal, state, and local rules, regulations,
codes and laws, and shall obtain all necessary permits, if any, for operation of concession
activities and improvements to the Premises.
8.02 Concessionaire shall have use of the Premises from dawn till dusk for supervised
laser tag and other related team building and group activities. Special events may be held after
dark with special approval by PARD. Concessionaire may utilize the concession stand to sell
food and drinks after dusk during adult softball games.
8.03 Concessionaire may sell food, beverage and souvenir items and/or safety gear
necessary for activities conducted during laser tag events and softball games. The sale of any
and all equipment similar in any way to firearms shall be completely prohibited.
8.04 The prices charged by Concessionaire for services, food and drinks shall be
reasonable and shall not be in excess of prices prevailing elsewhere for the same kind and quality
of service.
8.05 At no time shall Concessionaire consume, sell or give away any alcoholic
beverages on the premises. Tobacco products may not be sold or given away, but may be
consumed in areas as may be authorized and/or designated by the City only.
8.06 Concessionaire shall not permit any paintball or other discharge or use of
projectile for any activities conducted within the premises unless authorized by the City.
8.07 Concessionaire shall not use or permit the premises to be used for any other
purpose, or for any unlawful, immoral or indecent activity. Concessionaire shall confine its
activities to the area permitted under the terms of this agreement.
8.08 Concessionaire shall obtain and maintain current health/food handler permits, as
required by law.
8.09 Concessionaire shall provide supervision and appropriate signage for activities
conducted on the Premises to ensure safe operations, as approved by the City.
8.10 Concessionaire shall provide and maintain at its sole expense a 4-wheel drive
vehicle on site at all times to assist public safety personnel in responding to emergencies.
9.00 Alteration. Repairs or Improvements
9.01 Concessionaire shall be responsible for all repairs and maintenance of any
improvements and/or alterations made to the Premises. However, in no event shall
Concessionaire make such repairs and/or maintenance without first obtaining the prior written
consent of the Community Services Director or designee. Requests to make any alterations,
repairs or improvements shall be in writing. Any such permitted alterations, repairs or
improvements shall be made at the expense of Concessionaire and shall become the property of
City.
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TM 23385,76,000
9.02 Concessionaire shall be required to obtain proper permits for signage. All signage
shall be consistent with existing park identification signage or typical information signage in
accordance with City ordinances or policies and procedures.
9.03 Concessionaire shall post and maintain signs throughout the Premises which must
notify park users that play is in progress.
9.04 Concessionaire shall clearly delineate with markers approved by the City all
play/site boundaries.
9.05 Concessionaire shall provide a method of restnctmg access of unauthorized
vehicles from the north to the site. Concessionaire shall work with Community Services
Director to find a reasonable method and effective method to restrict access.
10.00 Maintenance of Concession Area
10.01 Concessionaire shall be responsible for the reasonable and proper care of the
concession building and shall repair, or cause to be repaired, any damages to said property
caused by Concessionaire, its employees, agents, guests or patrons.
10.02 Concessionaire shall keep and maintain the building and the said area in a clean
and sanitary condition and shall comply with the rules and regulations of the City.
10.03 Concessionaire shall provide adequate heavy-duty garbage bags for placement in
trash receptacles which will be provided by the City for Concessionaire's activities.
Concessionaire shall empty trash receptacles and shall keep the concession area in a clean and
orderly manner free of trash and debris.
10.04 Concessionaire shall maintain proper Material Safety Data Sheets ("MSDS") on-
site for all hazardous materials. Concessionaire shall provide and file with the City with a
detailed hazardous material storage and handling plan.
10.05 All interior and exterior insect/pest control measures must be handled by a
licensed chemical applicator after approval by the City.
11.00 Utilities. Taxes and Other Char2es. Concessionaire shall contract for and pay for its
telephone services, taxes, or other charges incurred or assessed against the operation of the
concession herein granted. The City shall provide water, sewer, electricity, and dumpster access
to the Concessionaire, as part of the monthly rental payments for the sole purpose of operating
said concession.
12.00 Compliance with Laws. Concessionaire shall observe and comply with all federal, state,
and local laws, statutes, ordinances, rules and regulations. The City shall provide Concessionaire
with written notice of any infraction(s) and permit Concessionaire thirty (30) days to correct any
such violation(s).
CONCESSIONAIRE AGREEMENT -Page 4
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13.00 Equipment.
13.01 Concessionaire shall furnish and install, at its sole expense and only after
approval by the City, any equipment, materials, furniture, supplies, or other fixtures, required for
the proper operation of the concession, its operations and its activities.
13.02 Concessionaire shall provide any building or site upgrades necessary to
accommodate equipment.
13.03 Concessionaire's equipment shall be placed and installed only upon the written
approval of the Community Services Director or designee.
13.04 The City shall not be responsible for the security of equipment/supplies provided
by the Concessionaire for their operations.
13.05 The City shall be responsible for ensuring that existing security lighting at the
facility is maintained.
14.00 Obli2ations of the City. City shall provide the following:
(a) Use of the concession building and adjacent grounds for operation of
Concessionaire's business.
(b) Water, electric, sewer service for the building.
( c) Maintenance to the building and grounds that are not under
provided are not the responsibility of the Concessionaire as
improvements/modifications made by the Concessionaire.
the license as
a result of
(d) Dumpster use for Concessionaire and customers' trash.
(e) City shall provide promotion of services offered by Concessionaire m City's
marketing materials for the Park whenever feasible.
15.00 Hours of Operation. Concessionaire may operate said concession from dawn until dusk.
Concessionaire may operate said concession before and beyond these hours for the purpose of
selling food and beverage concessions for softball games. Any other uses beyond hours
designated above must receive written approval of the City.
16.00 Destruction of Premises. If during the term of this agreement the demised premises are
destroyed or damaged by acts of God, war or other catastrophe, so that the same is unfit for
occupancy or use, the rentals shall abate until such time that said premises shall have been duly
repaired and restored by City, whereupon the lessee at his option may terminate this lease or
continue thereunder pursuant to the terms and conditions of this agreement. A prorated portion
of any rental prepaid, prior to such destruction or damage as is contemplated by this paragraph,
CONCESSIONAIRE AGREEMENT -Page 5
TM 23385,76,000
shall be refunded for the period Concessionaire was not allowed the use of the premises.
17.00 Sublettin2 and Assi2nment. Concessionaire shall not assign the whole or any part of
the license granted herein, nor assign, hypothecate, or mortgage the lease and concession
agreement, or any or all of its rights hereunder without the prior written consent of the City
Council.
18.00 Indemnitv. Concessionaire shall indemnify and hold harmless the City of The Colony,
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 Concessionaires, its officers, employees, participants, agents, invitees, or guests
use of or operation of the Premises, 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 of The Colony or its contractors, agents, or employees.
19.00 Indemnification Liabilitv Insurance. Concessionaire, at its cost, agrees to maintain
during the term of this Agreement commercial general liability insurance, including personal
injury liability, premises operations liability, and contractual liability, covering, but not limited
to, the liability assumed under the indemnification provisions of this Agreement, with limits of
liability for bodily injury, death and property damage or destruction of not less than $1,000,000.
Coverage must be on an "occurrence" basis, and such insurance shall provide that the issuing
company waives all right of recovery by way of subrogation against the City of The Colony in
connection with any damage covered by the policy. Such insurance shall name the City of The
Colony as an additional insured against liability from claims resulting from Concessionaires'
activities, such as practices, competitions, social activities, and fund-raising activities.
Concessionaire will furnish the City of The Colony at the beginning of each calendar year a
Certificate of Insurance evidencing coverage. If such commercial general liability insurance
contains a general aggregate limit, it shall apply separately to The Colony Parks and Recreation
Department. Concessionaire shall also maintain throughout the term of this Agreement worker's
compensation and employers liability insurance in the amount required by all applicable federal
and state laws. The policy or certificate evidencing the policy shall be filed with Community
Services Director or designee before the commencement of the Agreement. Indemnification
Liability Insurance shall cover premises during the concessionaire's operation of premises, and
will apply at all times to any improvements/structures concessionaire adds to the premises under
the terms of this agreement.
20.00 Breach of Contract. In the event of any breach of any of the terms or provisions of this
agreement, City or the Concessionaire shall have, in addition to any other recourse, the right to
terminate this agreement, after 30 days written notice of breach, to enter and obtain possession
of the entire premises, to remove and exclude any and all persons from the premises, and to
remove and exclude all property of Concessionaire therefrom, all without service of notice or
resort to legal process and without any legal liability on its part.
20.00 Local Rules and Re2ulations
CONCESSIONAIRE AGREEMENT -Page 6
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21.01 The Concessionaire agrees to abide by all municipal, county, state and federal
laws, ordinances, rules and regulations to obtain all necessary and proper licenses, permits and
authorizations, and to comply with the requirements of any duly authorized person acting in
connection therewith. The Concessionaire shall pay all taxes of every nature and description
arising out of or in any manner connected with the sale of its products.
21.02 In addition to other rights granted to the City herein, Concessionaire agrees that
should its operation or any portion thereof be shut down for its failure to comply with the
requirements of the Health Department of the State of Texas, and such shutdown could have
reasonably been averted by Concessionaire, its agents or employees, Concessionaire shall pay to
the City as liquidated damages, and not as any penalty therefor, the sum of $15 per day for each
day said shutdown continues.
22.00 Inspection by City. City shall have the right to make inspections at any reasonable time
to insure compliance with this agreement.
23.00 Surrender of Premises Upon Termination or Expiration.
23.01 Upon the termination of this agreement Concessionaire shall peaceably surrender
and abandon its operation to the City, including all improvements or additions thereto, in good
order and condition, except reasonable wear and tear.
23.02 At the expiration or earlier termination of this agreement, the Concessionaire shall
promptly surrender possession of the premises to the City and shall deliver to the City all keys
that it may have to any and all parts of the concession premises.
24.00 Termination of A2reement. In the event the facility shall be destroyed by fire or so
much damaged as to render it untenantable without the fault of the Concessionaire, or its
employees, agents, and/or subcontractors, or by anyone directly or indirectly employed by any of
them, or by anyone for whose acts or omissions any of them may be liable, either the
Concessionaire or the City may, within 30 days thereafter, elect to terminate the agreement and
the term hereby granted by giving the other written notice of the same by registered or certified
mail, such notice to the City to be directed to the City and to the Concessionaire at its business
address, and thereupon the rent to cease upon the Concessionaire paying all rent that has accrued.
("Rent" is defined as the monthly payment outlined herein). In the event of termination by
reason of fire, neither Concessionaire nor the City shall be liable to the other for damages
resulting from such fire unless the same was caused by the willful or negligent act or misconduct
of one of the parties or its employees, agents, and/or subcontractors, or by anyone directly or
indirectly employed by any of them, or by anyone for whose acts or omissions any of them may
be liable, and the City shall not be liable to the Concessionaire for the purchase of any equipment
in the amortization account.
25.00 Cancellation of A2reement. Upon consultation with the City Manager and the
Community Services Director or designee, the City shall have the right to cancel this license at
its sole option, for any reason whatsoever, upon at least ninety (90) days written notice by
CONCESSIONAIRE AGREEMENT -Page 7
TM 23385,76,000
registered or certified mail to the Concessionaire. Concessionaire shall also have the right to
terminate this agreement by giving the City ninety (90) days written notice.
26.00 Holdin2 Over. If Concessionaire shall, with the consent of the City, hold over after the
expiration or sooner termination of the term of this agreement, the resulting agreement shall,
unless otherwise mutually agreed, be for an indefinite period of time on a month-to-month basis.
During such month-to-month operation, Concessionaire shall pay to the City the sum
hereinbefore set forth, unless a different rate shall be agreed upon, and shall be bound by all of
the additional provisions of this agreement insofar as they may be pertinent.
27.00 Advances by City for Concessionaire. If Concessionaire shall fail to do anything
required to be done by it under the terms of this license agreement (other than a failure to make
the payments herein required) the City may, at its sole option but without any obligation to do so,
do or perform such act or thing upon behalf of the Concessionaire and, upon notification to
Concessionaire of the cost thereof incurred by the City the Concessionaire shall promptly pay to
the City the full amount of costs or expenses incurred.
28.00 Liens and Encumbrances. The Concessionaire shall keep the concession premises,
facilities and nonrental equipment free and clear of any liens and encumbrances not arising or
growing out of the use of the facilities, equipment, and/or trade fixtures in or on the concession
premises and/or the occupancy of the said concession premises by Concessionaire. At the
request of the City, Concessionaire shall furnish the City with written proof of payment of any
item, which would or might constitute the basis for such lien on the concession premises if not
paid.
29.00 Notices. 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:
Dale Cheatham, City Manger
City of The Colony
6800 Main Street
The Colony, Texas 75056
Robert E. Hager, City Attorney
NICHOLS, JACKSON, DILLARD,
HAGER & SMITH, LLP
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
TO CONCESSIONAIRE:
WITH A COPY TO:
Howard Hull, Owner
Infrared Combat Zone Adventure Parks
5952 Sandhill Circle
The Colony, TX 75056
Robin Hull, Owner
Same as Concessionaire
CONCESSIONAIRE AGREEMENT -Page 8
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30.00 Joint and Several Liability. Each and every party who signs this agreement as
Concessionaire, other than in a representative capacity, shall be jointly and severally liable
hereunder.
32.00 Waiver. Failure of the City to enforce at any time any of the proVIsIons of this
agreement, or to require at any time performance by Concessionaire of any of the provisions
hereof, shall in no way be construed to be a waiver of such provisions nor in any way to affect
the validity of this agreement or any part thereof, or the right of the City to thereafter enforce
each and every such provision.
33.00 Approval of Consent. Whenever by the terms of this agreement, the approval or consent
of the City is required, such approval or consent shall be ineffective unless given in writing,
signed by the City Manager of the City of The Colony, his authorized representative or other
party duly authorized by the City.
34.00 Governin2 law. This Agreement is governed by the laws of the State of Texas, and
venue for any action shall be in Denton County, Texas.
35.00 Bindin2 effect. This Agreement shall be binding upon and inure to the benefit of the
executing parties and their respective heirs, personal representatives, successors and assigns.
36.00. Entire A2reement. This Agreement 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.
37.00 Le2al construction. The provisions of this Agreement are hereby declared covenants
running with the property and are fully binding on all successors, heirs, and assigns of
Agreement 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 Agreement with respect
to the right, title or interest in such property.
38.00 Nondiscrimination. Concessionaire hereby agrees that it (a) will not discriminate
against any employee or applicant for employment because of race, color, religion or national
origin; (b) will take affirmative action to ensure that applicants are employed and that employees
are treated during employment without regard to their race, color, religion or national origin; (c)
will in all solicitations or advertisements for employees placed by or on behalf of the
Concessionaire state that all qualified applicants will receive consideration for employment
without regard to race, color, religion or national origin; and (d) will include these provisions in
every subcontract or sublease let by or for it.
CITY:
CONCESSIONAIRE:
City of The Colony, Texas
Howard Hull Infrared Combat
CONCESSIONAIRE AGREEMENT -Page 9
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By: ';)~ ~
City Manager
Its:
6800 Main Street
The Colony, Texas 75056
Robert E. Hager, City
Director
CONCESSIONAIRE AGREEMENT -Page 10
By:
Title:
Address:
Approved as to Content:
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The Colony Community Services
TM 23385,76,000