Loading...
HomeMy WebLinkAboutResolution No. 2010-063RESOLUTION NO. 2010-063 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, AMENDING THE TERMS AND CONDITIONS OF THE BB OWEN PARK CONCESSIONAIRE LICENSE AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND LASERTAG - DFW (CONCESSIONAIRE), FORMERLY KNOWN AS INFRARED COMBAT ZONE ADVENTURE PARKS, TO INCLUDE OUTDOOR LASER TAG AND GROUP ACTIVITIES, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City and Concessionaire have entered into an amended Concessionaire License Agreement such that the Concessionaire is to provide outdoor laser tag activities at BB Oven Park; and WHEREAS, the City has determined that it is in the best interest of the City to enter into an amended Agreement with Lasertag - DFW, 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 EFFECTIVE this 20th day of July, 2010. ~ G Joe McCou , Mayor AT J EyC°?T: Christie Wilson, City Secretary AS TO FORM: -APPI~ .,s eff Moore, City Attorney > 1 r Y r`,' STATE OF TEXAS § § 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 Lasertag-DFW (formerly known as Infrared Combat Zone Adventure Parks), hereinafter called "Concessionaire." Witnesseth WHEREAS, the City desires to have provided outdoor laser tag and other supervised group activities in BB Owen Park (hereinafter called "Park"), a City owned public park; and WHEREAS, the Concessionaire is willing and able to provide such outdoor laser tag and other group activities, in the Park; and WHEREAS, Concessionaire desires access to the restroom facilities for concessionaire's customers, and electrical connections for Concessionaire's battery chargers and personal computing equipment at the restroom facility within the Park; and WHEREAS, Concessionaire desires to obtain a license to operate and provide rental of equipment and supervision of outdoor laser tag, team building, and other related activities on such premises, and desires first right of refusal for concessions and any other contracted activities in said Park; 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 Agreement. The term of this licensed agreement shall be for a period of five (5) years, commencing on July 20, 2010 and terminating on January 6, 2013, 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 CONCESSIONAIRE AGREEMENT -Page I 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. 4.00 Rental Terms 4.01 Concessionaire shall pay as rental: (a) The base rent of $100.00 a month for use of the existing concession stand 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 (1St) day of each month. Payments received after the fifth (5t) 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 fi•om 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 has previously deposited 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. CONCESSIONAIRE AGREEMENT -Page 2 8.00 Scope of Concession 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. 8.03 Concessionaire may sell 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, and equipment shall be reasonable and shall not be in excess of prices prevailing elsewhere for the same kind and quality of goods and services. 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 pen-nit 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 teens of this agreement. 8.08 Concessionaire shall provide supervision and appropriate signage for activities conducted on the Premises to ensure safe operations, as approved by the City. 8.09 Concessionaire shall provide and maintain at its sole expense a 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. CONCESSIONAIRE AGREEMENT -Page 3 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 restricting 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 restrooms during the concessionaire's use of 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 may not store any items in or around the concession building when concessionaire is not present. 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 Charges. 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 infi-action(s) and permit Concessionaire thirty (30) days to correct any such violation(s). CONCESSIONAIRE AGREEMENT -Page 4 13.00 Equipment. 13.01 Concessionaire shall provide any building or site upgrades necessary to accommodate equipment. 13.02 Concessionaire's equipment shall be placed and installed only upon the written approval of the Community Services Director or designee. 13.03 The City shall not be responsible for the security of equipment/supplies provided by the Concessionaire for their operations. 13.04 The City shall be responsible for ensuring that existing security lighting at the facility is maintained. 14.00 Obligations 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- the license as provided are not the responsibility of the Concessionaire as a result of improvements/modifications made by the Concessionaire. (d) Dumpster use for Concessionaire and customers' trash. (e) City shall provide promotion of services offered by Concessionaire in City's marketing materials for the Park whenever feasible. 15.00 Hours of Operation. Concessionaire may operate said concession fi•om dawn until dusk. 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 terins and conditions of this agreement. A prorated portion of any rental prepaid, prior to such destruction or damage as is contemplated by this paragraph, shall be refunded for the period Concessionaire was not allowed the use of the premises. 17.00 Sublettinp, and Assip-nment. 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. CONCESSIONAIRE AGREEMENT -Page 5 18.00 Indemnity. 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 Liability 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. 21.00 Local Rules and Reitulations. 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. 22.00 Inspection by City. City shall have the right to make inspections at any reasonable time to insure compliance with this agreement. CONCESSIONAIRE AGREEMENT -Page 6 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 Agreement. 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 Agreement. 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 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 Holding 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. CONCESSIONAIRE AGREEMENT -Page 7 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: Troy Powell, City Manager City of The Colony 6800 Main Street The Colony, Texas 75056 WITH A COPY TO: Jeff Moore, City Attorney Brown & Hofineister, LLP 740 East Campbell Road, Suite 800 Richardson, Texas 75081 TO CONCESSIONAIRE: Howard Hull, Owner Lasertag - DFW 5952 Sandhill Circle The Colony, TX 75056 WITH A COPY TO: Robin Hull, Owner Same as Concessionaire 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. 31.00 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. 32.00 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. 33.00 Governing law. This Agreement is governed by the laws of the State of Texas, and venue for any action shall be in Denton County, Texas. CONCESSIONAIRE AGREEMENT -Page 8 34.00 Binding 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. 35.00. Entire Agreement. 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. 36.00 Legal 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. 37.00 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. CONCESSIONAIRE AGREEMENT -Page 9 CITY: City of The Colony, Texas CONCESSIONAIRE: Howard Hull Lasertag-DFW B It By: VI Title: 0 Gli iQ Eli, Address: e1 Jlh;/1 Th,g Approved as to Form: Jeff oore; (ity Attorney Approved as to Content: ~J~ Iv .ommunity Services Director CONCESSIONAIRE AGREEMENT -Page 10 The Colony, Texas 75056