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Ordinance No. 10,321ORDINANCE NO. 10,321 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A CONCESSIONS AGREEMENT WITH RPRS INVESTMENTS, LTD, DB /A BAYTOWN COMMISARY FOR THE OPERATION AND MANAGEMENT OF THE NEW WAYNE GRAY SPORTS COMPLEX CONCESSION STAND(S); AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Concessions Agreement with RPRS Investments, LTD, d/b /a Baytown Commisary for the operation and management of the new Wayne Gray Sports Complex concession stand(s). A copy of such agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 27`h day of April, 2006. City Clerk APPROVED AS TO FORM: G-VACIO RAMIREZ, SIV, City Attorney CALVIN MUNDINGER, Ma R:\Karen \FiieslCity Counci110rdinances12006Wpril 27\ ConcessionsAgreementordinance .doc ® CONCESSIONS AGREEMENT 9 THE STATE OF TEXAS § COUNTY OF HARRIS § This Concessions Agreement ( the "Agreement ") is made and entered into on this day of April, 2006, by and between the CITY OF BAYTOWN, a home -rule municipal corporation located in Harris and Chambers Counties, Texas (the "City") and RPRS Investments, LTD, d/b /a Baytown Commisary, a Texas limited partnership located in Harris County, Texas (the "Concessionaire "). For and in consideration of the Concessionaire's prompt and timely delivery of concession services as specified herein and in consideration of the mutual covenants, responsibilities and duties herein contained, the parties hereto do mutually agree as follows: I. GRANT OF LICENSE; RESTRICTED USE; DISCLAIMER OF WARRANTIES 1.01 License. The City does hereby grant an exclusive license to the Concessionaire for the use of certain real property and/or City- approved improvements during the term of this Agreement and any extension or renewal thereof; the property and improvements being more particularly described as the North Main concession stand located at the Wayne Gray Sports Complex, 5200 East Road, Baytown, Texas, and depicted in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes (the "Premises "). The City may, at its sole option, grant an exclusive license to the Concessionaire for the use of certain real property and/or City- approved improvements during the term of this Agreement and any extension or renewal thereof; the property and improvements being more particularly described as the lEast Road concession stand located at the Wayne Gray Sports Complex, 5200 East Road, lBaytown, Texas, and depicted in Exhibit "B," which is attached hereto and incorporated (herein for all intents and purposes. The grant of this additional license referred to in this paragraph shall be done by a statement in writing signed by the City Manager and shall be effective commencing on the dated stated therein. Should the City grant the license for the East Road concession stand, both the North Main and the East Road concession stands will be hereinafter referred to as the "Premises." 1.02 Restricted Use. The Concessionaire shall use the Premises only for the operation of concessions of food/beverage items and sports- related supplies approved by the Director of Parks and Recreation. The Concessionaire covenants and agrees it will not engage in any business or activity on the Premises or do anything in connection therewith which is inconsistent with the terms hereof. Furthermore, the Concessionaire shall not use the Premises in such manner as to constitute a nuisance or to violate any state, federal or local law. EMIT A Concessions Agreement, Page I 1.03 Times of Use. The Director of Parks and Recreation or his designee reserves the right to regulate the hours that Concessionaire may use the Premises; provided that the Director shall not require the Concessionaire to operate its concession services when there is no scheduled activity on the adult fields surrounding the North Main concession stand. 1.04 Reservation of Rights. This Agreement does not prohibit the City or the leagues with which it contracts from providing free or discounted food and beverage items from time to time in conjunction with special events at sites other than the four adult fields surrounding the North Main concession stand. During these special events, the Concessionaire will provide only those concessions operations, if any, as specified by the City Manager. It is expressly understood and agreed by Concessionaire that City has the right to operate any additional concessions other than those granted to Concessionaire. 1.05 Disclaimer of all Warranties. THE CITY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY NATURE, E N REGARDING C CTER WHATSOEVER, EXPRESS OR I PHYSICAL AND ENVIRONMENTAL CONDITION IM TA IONOF ANY OF INCLUDING, WITHOUT THE WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR pRPURPOSE S IN AND`AS ISE CONCESSIONAIRE ACCEPTS SUCH CONDITION, WITH ALL FAULTS. THE CONCESSIONAIRE, BY WAIVES ANY RIGHT LICENSE GRANTED HEREIN E XPRESSLY WA OR CLAIM AGAINST THE CITY FOR DAMAGES, RESCISSION OR OTHER REMEDY AT LAW OR IN CONDITION F THE TO OR RESULTING FROM THE PHYSICAL pREMISES, INCLUDING, WITHOUT LIMITATION, THE ENVIRONMENTAL CONDITION OF THE PREMISES. THE WAIVER AND EXCULPATION PROVIDED ABOVE SHALL BE RS BINDING ON ALL SUCCES P TORS OF THE PREMISES. E CONCESSIONAIRE AND ALL O 1.06 Inspections. The City, its officers, agents and representatives shall have the right to enter into and upon any and all parts of the Premises at all reasonable hours to: (a) inspect the Premises and Concessionaire's equipment and operations for the purposes of determining whether the Concessionaire is in compliance with the covenants and agreements contained herein; 49 (b) make repairs or alterations or additions as the City may deem necessary (but without any obligation to do so); or Concessions A reement, Page 2 0 (c) show the Premises to prospective tenants, purchasers or lenders. Any such entry will not be deemed to be an actual or constructive eviction. Such inspections will be conducted at such a time or in such a manner as to cause as little disruption or interference with the Concessionaire's activities and operations. II. CONCESSIONAIRE'S OBLIGATIONS 2.01 Professional Service, The Concessionaire shall provide professional and continuous food and beverage service to ball field patrons as directed by the City during regular seasons, playoffs, tournaments and special events. The Concessionaire agrees to comply with a high standard of service and quality of product. Candy and beverages shall be fresh and of good quality. All beverages and products shall be equal in quality to nationally advertised brands such as Coca -Cola, Planters, Hershey's, Mars, etc. - Bread and roll item shall be fresh and of good quality. Catsup, mustard and relish shall be furnished where hotdogs, hamburgers and cheeseburgers are sold. All food or food products shall be from approved sources only, as described in the Texas Food Establishment Rules. 2.02 Compliance with Laws and Regulations. The Concessionaire agrees to conduct the concession operations as detailed herein and to maintain the Premises in a sanitary and clean condition during Concessionaire's use of the Premises. The Concessionaire shall at all times comply with existing ordinances and state and federal law regarding health, safety and food establishments. The Concessionaire further agrees that the Premises and services it provides shall at all times be subject to inspection by the City. However, the City is under no duty or obligation to inspect the Premises or services. The Concessionaire shall obtain a Food Establishment Permit from the City, as necessary, and comply with all applicable regulations. 2.03 Timely Payment to City. The Concessionaire agrees to timely pay to the City the amounts established by Article VI hereof. 2.04 Personnel. The Concessionaire agrees to employ, direct, control, supervise, manage, discharge and compensate all employees performing services in furtherance of this Agreement. The Concessionaire shall staff the concession stands at the Premises with a sufficient number of employees. Such personnel shall be clean, neat and orderly in appearance and competent in discharging their responsibilities. The Concessionaire agrees that whenever the City shall inform the Concessionaire in writing that any persons performing any of the requisite work are, in the opinion of the City, incompetent, unfaithful or disorderly, such person or persons shall be discharged and not again employed by the Concessionaire for performance under this Agreement unless agreed to in writing by the City. The Concessionaire shall provide an on -duty / on -site Certified ® Food Manager during all operational hours. Concessions A reement, Page 3 2.05 Si na e. All company identification, advertising signage or other displays must be submitted and approved in writing by the City 'prior to use. Such identification, advertising signage shall be confined to the Premises unless otherwise permitted in writing by the City. Any signage allowed must be accurate, attractive, well - maintained and properly located. 2.06 Utilities. The Concessionaire shall be responsible for all utility costs, not specified in Section 7.01. The utility costs for which the Concessionaire is responsible shall include, but not be limited to, natural gas and telephone service. Any additional outlets for electrical, water, sewer or other utilities desired by the Concessionaire shall be installed at the Concessionaire's expense. In the event of a utility outage, for whatever reason, the City shall not be responsible for any loss sustained by the Concessionaire_ 2.07 Taxes Special Assessments Levies and Other Pa ents. The Concessionaire shall charge the applicable sales tax on all food, beverages, items and services sold at the Premises pursuant to this Agreement. Additionally, the Concessionaire shall pay all taxes, special assessments, levies or other payments assessed during the term or any renewal thereof of this Agreement pertaining to the Concessionaire's property. The Concessionaire agrees to pay all ad valorem taxes assessed by the various taxing units or all Concessionaire's property now or hereafter erected or placed on the Premises before such taxes become delinquent. Additionally, the Concessionaire shall furnish to the City and other taxing units receipts showing payment of such taxes or other payments. 2,08 Vacation of Premises. The Concessionaire will, prior to the end of this Agreement, or on termination of this Agreement, vacate the Premises without delay and peaceably deliver up unto the City the Premises in a good state of repair, unencumbered, vacant and in good condition, ordinary wear and tear excepted. In case the Concessionaire fails to vacate the Premises as provided in this Agreement, the City shall not be responsible for any damage that might occur to the Concessionaire by virtue of the City's forcible entering and dispossessing the Concessionaire and without prejudice to any remedies which might otherwise be used for possession or for arrears of payments. III. PRODUCTS AND EQUIPMENT 3.01 Food and Beverages. No food or beverages may be sold, offered for sale, or served by the Concessionaire unless and until the City approves in writing such food and beverage items along with their respective prices. The Concessionaire shall provide a minimum of the following at each concession stand: a. Hotdogs; b. Nachos; C. Three varieties of soft drinks; d. Bottled water; e. Sports drink, such as Gatorade or Powerade; f. A variety of candies (refrigerated if perishable); and Concessions A mement, Page 4 ® Two types of potato chips, pretzels, popcorn, etc. g• At the time of this Agreement, only those food and beverage items referenced in Exhibit "C" are approved for sale from the Premises at the prices therein stated. 3.02 Other Items or Services. The Concessionaire may be required by the City to sell items promoting the Wayne Gray Sports Complex, the City of Baytown, and/or the Baytown Girls Softball Association at prices established or approved by the City. No other item, product, or service may be sold, offered for sale or distributed by the Concessionaire unless the item, product or service and its price has been approved in writing by the City. Any items tendered to the Concessionaire but not sold shall be returned to the City in the same condition it was when tendered within three (3) days of receipt of a written request therefor. 3.03 Tobacco Products. The Concessionaire understands and agrees that no tobacco products shall be sold, offered for sale or distributed at or from the Premises. 3.04 Alcoholic Beverages. The Concessionaire shall not sell, offer for sale, display or advertise alcoholic beverages on the Premises. Should the City approve the sale of the Premises and Concessionaire desires to sell alcoholic alcoholic beverages on be renegotiated and approved by the City to establish beverages, this Agreement must guidelines for such sales and to establish the percentage of such sales to which the City shall be entitled. 3.05 Vending Machines. Vending machines shall not be used in conjunction with the concession operation without the prior written approval of the City Manager. 3.06 Glass Containers. The Concessionaire shall not sell beverages of any kind in glass containers. 3.07 jnYLn_t0rY. The Concessionaire shall be responsible for the inventory of food, beverages, products and supplies, a sufficient amount of which shall be kept on hand to ensure availability during hours of operation. 3.08 Egii ent. All equipment required for concession operation will be provided by the Concessionaire at its sole cost and expense and meet all applicable standards as described in the Texas Food Establishment Rules Section 229.165. The Concessionaire shall be for maintenance and repair of equipment used during concession operations. responsible The Concessionaire agrees to maintain all equipment in a good, safe workable, sanitary and clean condition acceptable to the City. The Concessionaire will be responsible for all set -up, breakdown and storage of its equipment. The Concessionaire may store in the concession building during the term of the Agreement or any renewal equipment thereof, however, the City assumes no responsibility for the safety of the items stored on the Premises. • 3.09 peb . The Concessionaire agrees that any and all deliveries, whether of product, equipment or otherwise, shall be made to the Premises only at times when no game, Concessions A reement, Page 5 practice, rental, or any other event is being conducted at the Wayne Gray Sports Complex. IV. PREMISES 4.01 Acceptance• The Concessionaire acknowledges that it has examined fully the Premises and that it is accepting said premises as it presently exists and as herein provided, regardless of any defects which may be discovered at a later time. In consideration for the privilege of use of the Premises, the Concessionaire specifically assumes any and all liability that may arise due to premise defects upon any or all improvements which exist on the Premises at the time of execution of this Agreement or any and all improvements which are constructed thereafter related to or arising out of the Concessionaire's use. The Concessionaire hereby accepts the Premises with full knowledge and recognition of the City's disclaimer of warranties, both express and implied, as expressed in Section 1.05. 4.02 Maintenance. The Concessionaire covenants and agrees that it will, at its own expense, keep and maintain the Premises '.in a good state of repair and maintenance during the initial term and any extension or renewal of this Agreement. The Concessionaire will do all work and make all maintenance repairs necessary, advisable, or requested by the City to keep the Premises from deteriorating in value or condition. The Concessionaire agrees to maintain the Premises and all areas used by the Concessionaire in a clean, neat, sanitary, safe and orderly manner and free of waste, rubbish and debris at all times. The Concessionaire shall be responsible for discarding all trash inside and immediately adjacent to the Premises in the proper dumpsters located in the parking lot of the Wayne Gray Sport Complex. The Concessionaire agrees to notify the City Manager without delay of any repair that requires action by the City and to provide prompt access to the Premises. 4.03 Inspection by City and Re uired Maintenance. The City shall have the right and privilege, through its agents and officials to make inspections of the Premises and thereafter to require the Concessionaire to make maintenance repairs that in the City's opinion are necessary. The Concessionaire agrees and covenants that it shall commence maintenance repairs within thirty (30) days from the date that notice of the required repairs are received. Such repairs shall be made in an expeditious and worker -like manner. In the event that the Concessionaire shall fail to commence such repairs within the time provided, it is understood and agreed that the City may, within its discretion, make such repairs at the Concessionaire's sole cost and expense. The cost of such repairs shall be paid by the Concessionaire within ten (10) days following the completion of said repairs. 4.04 Repairs. The City, at its sole cost and expense, shall maintain and repair the foundation, the building structure, exterior walls, roof, exterior windows, exterior doors and exterior mounted HVAC units. The City shall also maintain, at its sole cost and expense, the grounds and the landscaping materials adjacent to Premises. At all times during the term of this Agreement, the City shall make reasonable efforts to fix or repair any defect in the Concessions Agreement, Page 6 building, structure, exterior walls, roof, exterior windows and exterior doors of the Premises upon receipt of written notice from the Concessionaire that such repairs are necessary. The Concessionaire shall not be entitled to damages, actual or consequential, arising out of or in connection with any repairs requested or required to be made by the City pursuant to this Agreement; provided, however, if (i) the damages were caused by the sole proximate cause of the City, (ii) the damages cause the Concessionaire's operations to be completely closed during a period in which it is required to be open pursuant to thie Agreement, and (iii) the City fails to prosecute the required repairs with reasonable diligence after receipt of notice from the Concessionaire as required herein, the Concessionaire may be entitled to actual damages but not lost profits, whether actual or anticipated. 4.05 Improvements. It is agreed that no improvements to park property will be necessary in order for the Concessionaire's concession service to be operational: Should circumstances change and the Concessionaire desire to install or construct at its expense improvements on the City's park property, the Concessionaire must obtain the written approval of the Parks and Recreation Advisory Board as well as the City Manager of all plans and specifications associated therewith prior to such installation or construction. Improvements shall include, but not be limited to, the addition of all necessary equipment and incidentals for the proper storing, heating, cooling and serving food and beverages approved by the City, as well construction activities. All installation and construction activities will be in compliance with the relevant codes of City and other federal, state and local laws, ordinances, rules and regulations. The complete cost of developing all the necessary plans and specifications, excavations(s), location and platting of utility lines and construction of the proposed improvements shall be borne entirely by the Concessionaire at no expense to City whatsoever. Additionally, unless waived in writing by the City Manager based upon the scope of work proposed by the Concessionaire, the Concessionaire shall, without cost to the City, furnish the City with payment and performance bonds (or the Concessionaire's contractor shall supply same to the City), written by a surety acceptable to the City in an amount equal to the estimated cost of constructing the proposed improvements guaranteeing the work, guaranteeing the completion of work, free and clear of liens, according to the approved plans and specifications. All alterations and improvements on or in the Premises at the commencement of the term or those that may be erected or installed during the term, shall become part of the Premises and the sole property of the City, except that all moveable trade fixtures installed by the Concessionaire shall be and remain the property of the Concessionaire. The Concessionaire specifically agrees to keep and maintain any and all improvements throughout the term of this Agreement, ordinary wear and tear excepted. The Concessionaire shall use its best efforts to complete construction of any improvements in a timely manner. 4.06 Dan emus or Hazardous Conditions. The Concessionaire is solely responsible for the inspection of the Premises during the term of this Agreement and any renewal thereof. Should the Concessionaire become aware of an existing or developing hazardous or • dangerous condition on the Premises, the Concessionaire shall immediately notify the City, take necessary precautions and remedy such hazardous or dangerous condition at its Concessions A reement, Page 7 • sole cost and expense if the dangerous or hazardous condition is a result of the Concessionaires operations. V. TERM 5.01 Initial 1 Term. The Initial Term of this Agreement shall commence on the date the Agreement is executed by the City Manager and shall terminate two years thereafter, unless terminated earlier in accordance with this Agreement. 5.02 Renewal Terms. After the expiration of the Initial Term, the City and the Concessionaire may extend the Initial Term for a period of two years upon the same or similar terms and conditions if agreed to in writing by both parties. If the Agreement is extended for the first additional period of two years, the City and the Concessionaire may extend the Agreement for a second additional period of two years upon the same or similar terms and conditions if agreed to in writing by both parties. If the Agreement is extended for the second additional period of two years, the City and the Concessionaire may extend the Agreement for a third additional period of two years upon the same or similar terms and conditions if agreed to in writing by both parties. If the Agreement is extended for the third additional period of two years, the City and the Concessionaire may extend the Agreement for a fourth additional period of two years upon the same or similar terms and conditions if agreed to in writing by both parties. In each case, the Agreement may be extended only if a. the Concessionaire is not in default of any provision under this Agreement; b. either party gives written notice of its desire to renew the Agreement at least ninety (90) days prior to the expiration of the then - current term; and c. the parties come to an agreement as to the terms that will govern the renewal period at least sixty (60) days prior to the expiration of the then - current term. All of the terms and conditions hereof shall apply during the renewal term(s), unless otherwise modified in writing by the parties hereto. It is expressly understood and agreed that the consideration specified in Article VI hereof will be reviewed by the City each renewal period. 5.03 Removal of Property. Upon expiration or termination of this Agreement, the City shall have the right to remove from the Premises the Concessionaire's personnel, property and equipment. The Concessionaire is also obligated to leave the Premises in a safe condition and to repair damage, if any, to the Premises. Concessions A reement, Page 8 ® vI. CONSIDERATION 6.01 Consideration for the Sale of Food and Bevera es. In consideration of the privileges concerning the sale of food and beverages herein granted, the Concessionaire shall pay to the City fifteen percent (15 %) of gross receipts from food and beverage sales per term of this Agreement. Such payment shall be due and payable to the City on a monthly basis no later than fifteen (15) days following the end of each month. Payment may be made to the City's Director of Parks and Recreation. Along with such payment, the Concessionaire shall submit to the Director of Parks and Recreation a report of the gross receipts received from food and beverage sales at the Premises and a copy of the sales and use tax return for the corresponding month, which was submitted to the Texas Comptroller of Public Accounts. The term "gross receipts" as used in this section shall mean the total price paid, less sales tax, to the Concessionaire by all persons purchasing the food or beverages. 6.02 Consideration for the Sale of Other Items. a. Except as provided in subsection (b), in consideration of the rights and privileges for the sale of items other than food and beverages described in Section 3.01 herein granted, Concessionaire shall pay to the City fifty percent (50 %) of gross receipts. Such payment shall be due and payable to the City on a monthly basis no later than fifteen (15) days following the end of each month. Payment may be made to the City's Director of Parks and Recreation. Along with such payment, the Concessionaire shall submit to the Director of Parks and Recreation a report of the gross receipts received from other items sold at the Premises and a copy of the sales and use tax return for the corresponding month, which was submitted to the Texas Comptroller of Public Accountst. The term "gross receipts" as used in this section shall mean the total price paid, less sales tax, to the Concessionaire by all persons purchasing commodities offered or using services provided by the Concessionaire other than those addressed in Section 3.01. b. For the sale of items described in Section 3.02 herein granted, Concessionaire shall pay to the City the cost of such items as specified by the City prior to the sale plus fifty percent (50 %) of any additional money collected above such costs. Such payment shall be due and payable to the City on a monthly basis no later than fifteen (15) days following the end of each month. Payment may be made to the City's Director of Parks and Recreation. Along with such payment, the Concessionaire shall submit to the Director of Parks and Recreation a report of the gross receipts received from items described in Section 3.02 sold at the Premises and a copy of the sales and use tax return for the corresponding month, which was submitted to the Texas Comptroller of Public Accounts.t. The term • "gross receipts" as used in this section shall mean the total price paid, less sales tax, to the Concessionaire by all persons purchasing commodities offered or using Concessions A Bement, Page 9 ® services provided by the Concessionaire other than those addressed in Section 3.01. 6.03 Audit. The City shall have the right to examine and inspect and audit all records and files of the Concessionaire relating to this agreement. Such records shall be kept accurate and complete and available for inspection by the City, its agents and employees at any reasonable time. The Concessionaire shall retain such records for a period of five years. 6.04 Electrical Costs. The Concessionaire shall pay to the City an amount of FIFTY AND N01100 DOLLARS ($50.00) per month for each month or part thereof during which Concessionaire uses the Premises to defray the City's electrical costs. Such payment shall be due and payable to the City on a monthly basis no later than fifteen (15) days following the end of each month for which payment is due. 6.05 Prom 2LPayment. The Concessionaire's license granted herein along with all of its obligations hereunder are expressly contingent upon the prompt payment of the compensation specified in this article, and the use of the Premises by the Concessionaire is obtained only on the condition that fees specified herein are paid on time. Payment of these fees shall be independent covenants. At any time after the City's receipt of a check from the Concessionaire pursuant to this Agreement, such check is not honored by the drawing financial institution due to insufficient funds or is otherwise dishonored twice for any reason, the City may at any time thereafter, at the City's sole option, require that all fees and other sums due from the Concessionaire hereunder be paid either by cashier's check or money order. Failure to pay any fee as and when required will not only be considered a breach of this Agreement but also result in interest, as specified in the amount of one percent per month, being charged on the delinquent payments commencing on the date the payment first becomes overdue. VII. CITY'S OBLIGATIONS 7.01 Utilities. Water and sewer utilities, existing on the effective date of this Agreement, to the Premises shall be provided by the City without cost to the Concessionaire. Electrical services will also be provided for the compensation specified in Section 6.05. 7.02 Trash Receptacles. The City shall provide an adequate number of trash receptacles for the public and be responsible for their maintenance and the disposal of their contents. VIII. INSURANCE 8.01 Concessionaire's Insurance. From and after the Effective Date and throughout the Term of this Agreement, the Concessionaire will keep and maintain, or cause to be kept and maintained, in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the construction, operation; Concessions A eement, Page 10 ® repair, or maintenance of the Premises and all activities associated therewith, whether such construction, operation, repair or maintenance be performed by the Concessionaire, its agents, representatives, employees, subcontractors, assigns, or anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable. The Concessionaire's insurance coverage shall be primary insurance with respect to the City, its officials, employees and agents. Any insurance or self - insurance maintained by the City, its officials, employees or agents shall be considered in excess of the Concessionaire's insurance and shall not contribute to it. Further the Concessionaire shall cause all subcontractors to furnish separate certificates and endorsements for each such person or entity. All coverages for subcontractors shall be subject to all of the requirements stated herein. 8.02 Policies and. Minimum Limits. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: Commercial General Liability ➢ General Aggregate: $1,000,000 ➢ Per Occurrence: $1,000,000 ➢ Owners' and Contractors' Protective Liability: $1,000,000, during construction and all renovations thereafter of the Premises Improvements. ➢ Products & Completed Operations Aggregate: $1,000,000 ➢ Personal & Advertising Injury: $1,000,000 ➢ Liquor Liability Endorsement (only required if alcoholic beverages are sold for consumption on or off the Premises) ➢ Coverage shall be at least as broad as ISO CG 00 01 10 93 ➢ No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. ➢ Coverage shall include pollution coverage up to the policy limits. Workers' Compensation ➢ Statutory Limits ➢ Employer's Liability $500,000 ➢ Waiver of Subrogation required. 8.03 Additional Coverages. If the activities or operations to be conducted or conducted on the Premises change, the City Manager in his sole discretion may insist that the Concessionaire obtain additional coverages with limits deemed appropriate by the City's risk manager. 8.04 Requirements Applicable to all Policies. Prior to any work being performed on the site, the Consultant shall file with the City valid Certificates of Insurance and endorsements acceptable to the City for itself and its subcontractors. Such Certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the City via certified mail, return receipt requested. The following shall be applicable to all policies of insurance required herein: Concessions A reement, Page 1 1 ® a. Insurance carrier for all liability policies must have an A.M. Best Rating of B +: VI or better. is b. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. C. Liability policies must be on occurrence form. d. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. e. The City and its officers and employees are to be added as Additional Insured to liability policies. f. Upon request, and without cost to the City, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the City. g. Upon request, and without cost to the City, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to the City. IX. INDEMNITY AND RELEASE. 9.01 INDEMNITY. THE CONCESSIONAIRE HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, PROTECT AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES (THE "THE CITY PARTIES") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEY'S FEES, FOR ANY INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO ANY PROPERTY INCURRED IN CONNECTION WITH ALL CLAIMS, INCLUDING ANY ACTION OR PROCEEDINGS BROUGHT, THEREON ARISING FROM, AS A RESULT -OF, OR IN ANY WAY RELATED TO THE CONCESSIONAIRE'S AND ITS SUBTENANTS', ASSIGNEES', OFFICERS', AGENTS', EMPLOYEES', CONTRACTORS', GUESTS', AND /OR INVITEES' Concessions Aereement, Page 12 (THE "THE CONCESSIONAIRE PARTIES") USE OR OCCUPANCY OF THE PREMISES AND /OR PREMISES IMPROVEMENTS OR ANY OF THE ACTIVITIES OF ANY SUCH THE CONCESSIONAIRE PARTIES IN OR ON THE PREMISES, OR THE DESIGN OR CONSTRUCTION OF THE PREMISES IMPROVEMENTS, WHERE SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED ' BY THE JOINT NEGLIGENCE OF THE CITY PARTIES AND ANY OTHER PERSON OR ENTITY AND /OR BY THE JOINT OR SOLE NEGLIGENCE OF THE CONCESSIONAIRE PARTIES. IT IS THE EXPRESS INTENTION OF BOTH THE CITY AND THE CONCESSIONAIRE THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY THE CONCESSIONAIRE TO INDEMNIFY, HOLD HARMLESS, PROTECT, AND DEFEND THE CITY PARTIES FROM (I) THE CONSEQUENCES OF THE NEGLIGENCE OF THE CITY PARTIES, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE WITH THAT OF ANY OTHER PERSON OR ENTITY OF ANY SUCH INJURY, DEATH OR DAMAGE AND /OR (II) THE CONCESSIONAIRE PARTIES' SOLE AND /OR CONCURRENT NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FROM THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT OR LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY. 9.02 Counsel. In the event that any action or proceeding is brought against the City by reason of any of the above, the Concessionaire further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the City. 9.03 Evergreen. Notwithstanding anything to the contrary contained in this Agreement, the indemnity provided in this section shall not terminate upon the termination or expiration of this Agreement, but shall continue in full force and effect. 9.04 Release. By this Agreement, the City does not consent to litigation and expressly revokes any consent to litigation that it may have granted by the terms of this Agreement, any charter, or applicable state law. The Concessionaire assumes full responsibility for the work to be performed and releases, relinquishes, and discharges the City, its officers, agents and employees from all claims, demands and causes of action of every kind and character for any injury to, including, but not limited to, death of any person (whether third persons, the Concessionaire, or employees of either of the parties). This release includes the cost of defense of any claim and any loss of or damage to property (whether Concessions A eement, Page 13 property of the parties or of third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Concessionaire's work to be performed under this Agreement whether or not said claims, demands, and causes of action are covered in whole or in part by insurance. X. LIENS 10.01 No Lien against City Property. The Concessionaire covenants and agrees that it will have no power to do any act or make any contract that creates any lien upon City property; and upon such purported lien being created or filed of record, the Concessionaire, at its sole cost and expense, shall liquidate and discharge same immediately. XI. DEFAULT AND TERMINATION 11.01 Events of Default. The following events shall be deemed to be events of default by the Concessionaire under the Agreement: a. the Concessionaire shall fail to comply with any term, provision or covenant of this Agreement or the Agreement, and shall not cure such failure within the following specified number of days after written notice thereof to the Concessionaire: five (5) days if said default relates to any payments under this Agreement; or 2. ten (10) days if said default is of any other nature under this Agreement. b. the Concessionaire shall desert or vacate any substantial portion of the premises as determined by the City for a period of five (5) days or more; or C. a receiver is appointed on account of its insolvency, which could impair or frustrate the Concessionaire's performance of this Agreement, and the Concessionaire or its successor in interest fails to provide adequate assurance of future performance, in accordance with the terms and conditions hereof. 11.02 Remedies upon Default. Upon the occurrence of any event of default specified hereinabove, the City shall have an option to pursue one or more of the following remedies without any notice or demand whatsoever: a. Terminate this Agreement, in which event the Concessionaire shall immediately surrender the Premises to the City; and if the Concessionaire fails to do so, the Concessions A reement, Page 14 ® City may, without prejudice to any other remedy which it may have for possession, enter upon and take possession and expel or remove the Concessionaire and any other person who may be occupying said Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim of damages therefor; and the Concessionaire agrees to pay to CITY on demand the amount of any loss and/or damage which CITY may suffer by reason of such termination, whether through inability to contract with a new concessionaire for the Premises on satisfactory terms or otherwise for a period not to exceed sixty (60) days. b. Enter upon and take possession of the Premises and expel or remove the Concessionaire and any other person who may be occupying the Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim of damages therefor; and if the City so elects, relet the Premises on such terms as the City shall deem advisable and receive the terms as the City shall deem advisable and receive the rent or payments therefrom; and the Concessionaire agrees to pay to the City on demand any deficiency that may arise by reason of such reletting for a period not to exceed sixty (60) days. C. Enter upon the Premises, by force if necessary, without being liable for prosecution or any claim of damages therefor, and do whatever the Concessionaire is obligated to do under the terms of this Agreement, and the Concessionaire agrees to reimburse the City on demand for any expenses which the City may incur in thus effecting compliance with the Concessionaire's obligations under the Agreement and the Concessionaire further agrees that the City shall not be liable for any damages resulting to the Concessionaire from such action. 11.03 No Election of Remedies. No reentry or taking possession of the Premises by the City shall be construed as an election on its part to terminate this Agreement, unless a written notice of such intention be given to the Concessionaire. Notwithstanding any such reletting or reentry or taking possession, the City may at any time thereafter elect to terminate this Agreement for a previous default. Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other remedies herein provided or any other remedies provided by law or equity, nor shall the pursuit of any remedy herein provided constitute a forfeiture or waiver of any payment due to the City hereunder or of any damages accruing to the City by reason of the violation of any of the terms, provisions and covenants herein contained. 11.04 No No waiver by the City of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or constitute a waiver of any other violation or breach of any of the terms, provisions and covenants herein contained. Forbearance by the City to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default. The loss or damage that the City may suffer by reason of termination of this Agreement Concessions A reement, Page 15 ® or the deficiency from any reletting as provided for above shall include the expenses of repossession and any repairs or remodeling undertaken following possession. 11.05 Additional Remedies. Should the City at any time terminate this Agreement for any default, in addition to any other remedy the City may have, the City may recover from the Concessionaire all damages the City may incur by reason of such default, including cost of recovering the Premises and reasonable attorney's fees expended by reason of default. 11.06 Termination without Cause. The City may, at its option and without prejudice to any other remedy it may be entitled at law or in equity, or otherwise under this Agreement, terminate the Agreement, in whole or in part, without cause by giving at least thirty (30) days prior written notice thereof to the Concessionaire. Upon contract termination, the Concessionaire shall deplete existing inventory and vacate the concession area. The parties agree that the Agreement shall terminate on the date specified on the notice and that the Concessionaire shall be responsible for any fees due and owing up to and through the termination date specified on the notice. XII. MISCELLANEOUS 12.01 Choice of Law. This Agreement is entered into subject to the charter and ordinances of the City, as they may be amended from time to time, and is subject to and is to be constructed, governed and enforced under the laws of the State of Texas. 12.02 Venue. The parties to this Agreement agree and covenant that this Agreement will be enforceable in Baytown, Harris County, Texas; and that if legal action is necessary to enforce this Agreement, exclusive venue will lie in Harris County, Texas. 12.03 Permits. The Concessionaire shall obtain and keep in effect at its own cost and expense all licenses and permits necessary for its operation under this Agreement. 12.04 Inde endent Contractor. The Concessionaire covenants and agrees that it is an independent contractor and not an officer, agent, servant or employee of the City; that the Concessionaire shall have exclusive control of and exclusive right to control the details of the work performed hereunder and all persons performing same, and shall be responsible for the acts and omissions of its officers, agents, employees, contractors, subcontractors and consultants; that the doctrine of respondeat superior shall not apply as between the City and the Concessionaire, its officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be construed as creating a partnership or point enterprise between the City and the Concessionaire. 12.05 age . The Concessionaire shall comply with all Occupational Safety and Health Act (OSHA) Standards and any other federal, state or local rules and regulations applicable to ® construction or maintenance activities in the State of Texas. City safety personnel or any supervisor may, but are not required to, order that the service be stopped in a condition of Concessions Agreement, Page 16 immediate danger is found to exist. Nothing contained herein shall be construed to shift responsibility or risk of loss for injuries or damages sustained as a result of a violation of these safety articles from the Concessionaire to the City. The Concessionaire shall remain solely and exclusive responsible for compliance with all safety requirements and for the safety of all persons and property at the Premises 12.06 E ual Em to ment O )rtuaLty. The Concessionaire shall not discriminate against any employee or applicant for employment because of race, age, color, religion, sex, disability, ancestry, national origin or place of birth. The Concessionaire shall take action to ensure that applicants are employed and treated without regard to their race, age, color, religion, sex, disability, ancestry, national origin or place of birth. This action shall include but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection of training including apprenticeship. No person, firm, corporation, organization, association, league or group shall be denied use of or access to the Premises or concession operation because of race, sex, color, religion, national origin or disability. 12.07 Notices. All notices required or permitted to be given hereunder may be given by letter sent via registered or certified mail, return receipt requested, telegram, or any other form of written communication and shall be deemed to be duly served and given for all purposes: (a) To the City when received at: City of Baytown Attn: City Manager P.O. Box 424 Baytown, Texas 77522 Fax: 281- 420 -6586 (b) To the Concessionaire when received at the Concessionaire's office: RPRS Investments, LTD, d/b /a Baytown Commisary Attn: Jack Adcox 623 W. Texas Avenue Baytown, TX 77520 Fax: 281 -837 -6943 as the case may be. Any party may change the address for the giving of notices to it by giving at least fifteen (15) days written notice of the new address to the other party, provided that the new address must be at a place in the United States where the mails and either mailgrams or telegrams or similar communications are regularly received. Notice given by mail shall be deemed given three (3) days after the date of the mailing of the same to the above - referenced address. Concessions A reement, Page 17 12.08 Force Maieure. Neither the City nor the Concessionaire shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations hereunder by reasons of strikes, boycotts, labor disputes, embargoes, shortage of material, acts of God, acts of public enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellion, sabotage, or any other circumstances for which it is not responsible or which is not in its control, and the time for performance shall be automatically extended by the period the party is prevented from performing its obligations hereunder. 12.09 Successors and Assigns. The City and the Concessionaire will each bind themselves, their successors, executors, administrators and assigns to the other party to this Agreement. The Concessionaire will not assign, sublet, subcontract or transfer any interest in this Agreement without the written consent of the City. No assignment, delegation of duties or subcontract under this Agreement will be effective without the written consent of the City. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. 12.10 Severabili Y . If any of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Agreement are for any reason held to be invalid, void or unenforceable, the remainder of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 12.11 Entire Agreement. This Agreement embodies the complete agreement of the parties hereto, superseding all oral or written previous and contemporary agreements between the parties relating to matters herein; and except as otherwise provided herein, cannot be modified without written agreement of the parties. 12.12 Headin s. The headings as to contents or particular articles or sections herein are inserted only for convenience, and they are in no way to be construed as a part of this Agreement or as a limitation on the scope of the particular sections to which they refer. 12.13 Gender and Name. Words of any gender used in this Agreement shall be held to include any other gender, and words in the singular number shall be held to include the plural when the sense requires. 12.14 No Third Party Beneficiaries. This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the City and the Concessionaire only. 12.15 Authority to Enter Contract. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of the entities he represents. Concessions Agreement, Page 18 • 12.16 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 12.17 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 12.18 Multiple Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CONCESSIONAIRE RPRS Investments, LTD, d/b /a Baytown Commisary (Signature) (Printed Name) (Title) CITY City of Baytown GARY JACKSON, City Manager ATTEST: • LORRI COODY, City Clerk Concessions Agreement, Page 19 0 APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney STATE OF TEXAS § COUNTY OF HARRIS § Before me on this day personally appeared in his capacity as of RPRS Investments, LTD, d/b /a Baytown Commisary, on behalf of such limited partnership, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this day of , 2006. Notary Public in and for the State of Texas . R:\ Karen \Files \Contmct,\Concession Contract\Concessions AgreementFINAL.doc Concessions Agreement, Page 20 H !Eo �3 a 0 0 r Q Q N O N^ 1 7 O 3 X z N C N (D Ch a► 0N b N O N ul �O • Exhibits "A" and "B" 1� — • 0 Exhibit "C" Menu Item Price Big Kahuna Burger — %z ound $ 5.75 Small Kahuna Burger — 1/3 pound $ 4.00 Kid -size Burger — 1/5 pound $ 3.25 Sausage on a Stick — 4 oz. $ 2.50 Sausage on a Stick — 6 oz $ 3.25 Hot Dos $ 1.00 Chili with Cheese and Onions $ 0.50 Chicken Tenders — Small $ 3.50 Chicken Tenders — Large $ 5.00 Nachos $ 5.50 French Fries — 6 oz. $ 1.00 Onion Rings $ 1.50 Pizzas $ 3.25 Cheese Sticks $ 5.50 Hot Wins $ 5.25 Jal Stuffers $ 6.50 Corn Dos $ 3.00 Ice Cream $ 1.00 Po corn $ 1.50 Frito Pie $ 1.00 Sno Cone — Small $ 1.75 Sno Cone — Medium $ 2.25 Sno Cone — Large $ 3.25 Assorted Candy $ 0.50 -- $1.00 Soft Drink Small $ 1.25 Soft Drink Medium $ 1.75 Soft Drink (Large) $ 2.75 Bottled Water $ 1.50 S orts Drink $ 1.50 Exhibit "C," Page Solo CONCESSIONS AGREEMENT THE STATE OF TEXAS § COUNTY OF HARRIS § r� This Concessions Agreement ( the "Agreement") is made and entered into on this day of'W 2006, by and between the CITY OF BAYTOWN, a home-rule municipal corporation located in Harris and Chambers Counties,Texas (the"City")and RPRS Investments, LTD, d/b/a Baytown Commisary, a Texas limited partnership located in Harris County, Texas (the "Concessionaire"). For and in consideration of the Concessionaire's prompt and timely delivery of concession services as specified herein and in consideration of the mutual covenants, responsibilities and duties herein contained, the parties hereto do mutually agree as follows: I. GRANT OF LICENSE; RESTRICTED USE; DISCLAIMER OF WARRANTIES 1.01 License. The City does hereby grant an exclusive license to the Concessionaire for the use of certain real property and/or City-approved improvements during the term of this Agreement and any extension or renewal thereof; the property and improvements being more particularly described as the North Main concession stand located at the Wayne Gray Sports Complex, 5200 East Road, Baytown, Texas, and depicted in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes (the "Premises"). The City may, at its sole option, grant an exclusive license to the Concessionaire for the use of certain real property and/or City-approved improvements during the term of this Agreement and any extension or renewal thereof, the property and improvements being more particularly described as the East Road concession stand located at the Wayne Gray Sports Complex, 5200 East Road, Baytown, Texas, and depicted in Exhibit"B,"which is attached hereto and incorporated herein for all intents and purposes. The grant of this additional license referred to in this paragraph shall be done by a statement in writing signed by the City Manager and shall be effective commencing on the dated stated therein. Should the City grant the license for the East Road concession stand, both the North Main and the East Road concession stands will be hereinafter referred to as the "Premises." 1.02 Restricted Use. The Concessionaire shall use the Premises only for the operation of concessions of food/beverage items and sports-related supplies approved by the Director of Parks and Recreation. The Concessionaire covenants and agrees it will not engage in any business or activity on the Premises or do anything in connection therewith which is inconsistent with the terms hereof. Furthermore, the Concessionaire shall not use the Premises in such manner as to constitute a nuisance or to violate any state, federal or local law. Concessions Agreement,Page 1 1.03 Times of Use. The Director of Parks and Recreation or his designee reserves the right to regulate the hours that Concessionaire may use the Premises; provided that the Director shall not require the Concessionaire to operate its concession services when there is no scheduled activity on the adult fields surrounding the North Main concession stand. 1.04 Reservation of Rights. This Agreement does not prohibit the City or the leagues with which it contracts from providing free or discounted food and beverage items from time to time in conjunction with special events at sites other than the four adult fields surrounding the North Main concession stand. During these special events, the Concessionaire will provide only those concessions operations, if any, as specified by the City Manager. It is expressly understood and agreed by Concessionaire that City has the right to operate any additional concessions other than those granted to Concessionaire. 1.05 Disclaimer of all Warranties. THE CITY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY NATURE, KIND OR CHARACTER WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PREMISES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THE CONCESSIONAIRE ACCEPTS SUCH PREMISES IN AN "AS IS" CONDITION, WITH ALL FAULTS. THE CONCESSIONAIRE, BY ITS ACCEPTANCE OF THE LICENSE GRANTED HEREIN EXPRESSLY WAIVES ANY RIGHT OR CLAIM AGAINST THE CITY FOR DAMAGES, RESCISSION OR OTHER REMEDY AT LAW OR IN EQUITY WITH RESPECT TO OR RESULTING FROM THE PHYSICAL CONDITION OF THE PREMISES, INCLUDING, WITHOUT LIMITATION, THE ENVIRONMENTAL CONDITION OF THE PREMISES. THE WAIVER AND EXCULPATION PROVIDED ABOVE SHALL BE BINDING ON ALL SUCCESSORS AND ASSIGNS OF THE CONCESSIONAIRE AND ALL OPERATORS OF THE PREMISES. 1.06 Inspections. The City, its officers, agents and representatives shall have the right to enter into and upon any and all parts of the Premises at all reasonable hours to: (a) inspect the Premises and Concessionaire's equipment and operations for the purposes of determining whether the Concessionaire is in compliance with the covenants and agreements contained herein; (b) make repairs or alterations or additions as the City may deem necessary (but without any obligation to do so); or Concessions Agreement,Page 2 (c) show the Premises to prospective tenants,purchasers or lenders. Any such entry will not be deemed to be an actual or constructive eviction. Such inspections will be conducted at such a time or in such a manner as to cause as little disruption or interference with the Concessionaire's activities and operations. II. CONCESSIONAIRE'S OBLIGATIONS 2.01 Professional Service. The Concessionaire shall provide professional and continuous food and beverage service to ball field patrons as directed by the City during regular seasons, playoffs, tournaments and special events. The Concessionaire agrees to comply with a high standard of service and quality of product. Candy and beverages shall be fresh and of good quality. All beverages and products shall be equal in quality to nationally advertised brands such as Coca-Cola, Planters, llershey's, Mars, etc. Bread and roll item shall be fresh and of good quality. Catsup, mustard and relish shall be furnished where hotdogs, hamburgers and cheeseburgers are sold. All food or food products shall be from approved sources only, as described in the Texas Food Establishment Rules. 2.02 Compliance with Laws and Regulations. The Concessionaire agrees to conduct the concession operations as detailed herein and to maintain the Premises in a sanitary and clean condition during Concessionaire's use of the Premises. The Concessionaire shall at all times comply with existing ordinances and state and federal law regarding health, safety and food establishments. The Concessionaire further agrees that the Premises and services it provides shall at all times be subject to inspection by the City. However, the City is under no duty or obligation to inspect the Premises or services. The Concessionaire shall obtain a Food Establishment Permit from the City, as necessary, and comply with all applicable regulations. 2.03 Timely Pyment to City. The Concessionaire agrees to timely pay to the City the amounts established by Article VI hereof. 2.04 Personnel. The Concessionaire agrees to employ, direct, control, supervise, manage, discharge and compensate all employees performing services in furtherance of this Agreement. The Concessionaire shall staff the concession stands at the Premises with a sufficient number of employees. Such personnel shall be clean, neat and orderly in appearance and competent in discharging their responsibilities. The Concessionaire agrees that whenever the City shall inform the Concessionaire in writing that any persons performing any of the requisite work are, in the opinion of the City, incompetent, unfaithful or disorderly, such person or persons shall be discharged and not again employed by the Concessionaire for performance under this Agreement unless agreed to in writing by the City. The Concessionaire shall provide an on-duty / on-site Certified Food Manager during all operational hours. Concessions Agreement,Page 3 2.05 Sig_nag_e. All company identification, advertising signage or other displays must be submitted and approved in writing by the City prior to use. Such identification, advertising signage shall be confined to the Premises unless otherwise permitted in writing by the City. Any signage allowed must be accurate, attractive, well-maintained and properly located. 2.06 Utilities. The Concessionaire shall be responsible for all utility costs, not specified in Section 7.01. The utility costs for which the Concessionaire is responsible shall include, but not be limited to, natural gas and telephone service. Any additional outlets for electrical, water, sewer or other utilities desired by the Concessionaire shall be installed at the Concessionaire's expense. In the event of a utility outage, for whatever reason, the City shall not be responsible for any loss sustained by the Concessionaire. 2.07 Taxes, Special Assessments, Levies, and Other Payments. The Concessionaire shall charge the applicable sales tax on all food, beverages, items and services sold at the Premises pursuant to this Agreement. Additionally, the Concessionaire shall pay all taxes, special assessments, levies or other payments assessed during the term or any renewal thereof of this Agreement pertaining to the Concessionaire's property. The Concessionaire agrees to pay all ad valorem taxes assessed by the various taxing units or all Concessionaire's property now or hereafter erected or placed on the Premises before such taxes become delinquent. Additionally, the Concessionaire shall furnish to the City and other taxing units receipts showing payment of such taxes or other payments. 2.08 Vacation of Premises. The Concessionaire will,prior to the end of this Agreement, or on termination of this Agreement, vacate the Premises without delay and peaceably deliver up unto the City the Premises in a good state of repair,unencumbered,vacant and in good condition, ordinary wear and tear excepted. In case the Concessionaire fails to vacate the Premises as provided in this Agreement, the City shall not be responsible for any damage that might occur to the Concessionaire by virtue of the City's forcible entering and dispossessing the Concessionaire and without prejudice to any remedies which might otherwise be used for possession or for arrears of payments. III. PRODUCTS AND EQUIPMENT 3.01 Food and Beverages. No food or beverages may be sold, offered for sale, or served by the Concessionaire unless and until the City approves in writing such food and beverage items along with their respective prices. The Concessionaire shall provide a minimum of the following at each concession stand: a. Hotdogs; b. Nachos; C. Three varieties of soft drinks; d. Bottled water; e. Sports drink, such as Gatorade or Powerade; f. A variety of candies(refrigerated if perishable); and Concessions Agreement,Page 4 g. Two types of potato chips,pretzels,popcorn, etc. At the time of this Agreement, only those food and beverage items referenced in Exhibit "C"are approved for sale from the Premises at the prices therein stated. 3.02 Other Items or Services. The Concessionaire may be required by the City to sell items promoting the Wayne Gray Sports Complex, the City of Baytown, and/or the Baytown Girls Softball Association at prices established or approved by the City. No other item, product, or service may be sold, offered for sale or distributed by the Concessionaire unless the item, product or service and its price has been approved in writing by the City. Any items tendered to the Concessionaire but not sold shall be returned to the City in the same condition it was when tendered within three (3) days of receipt of a written request therefor. 3.03 Tobacco Products. The Concessionaire understands and agrees that no tobacco products shall be sold, offered for sale or distributed at or from the Premises. 3.04 Alcoholic Beverages. The Concessionaire shall not sell, offer for sale, display or advertise alcoholic beverages on the Premises. Should the City approve the sale of alcoholic beverages on the Premises and Concessionaire desires to sell alcoholic beverages, this Agreement must be renegotiated and approved by the City to establish guidelines for such sales and to establish the percentage of such sales to which the City shall be entitled. 3.05 Vending Machines. Vending machines shall not be used in conjunction with the concession operation without the prior written approval of the City Manager. 3.06 Glass Containers. The Concessionaire shall not sell beverages of any kind in glass containers. 3.07 Inventory. The Concessionaire shall be responsible for the inventory of food, beverages, products and supplies, a sufficient amount of which shall be kept on hand to ensure availability during hours of operation. 3.08 Equipment. All equipment required for concession operation will be provided by the Concessionaire at its sole cost and expense and meet all applicable standards as described in the Texas Food Establishment Rules Section 229.165. The Concessionaire shall be responsible for maintenance and repair of equipment used during concession operations. The Concessionaire agrees to maintain all equipment in a good, safe workable, sanitary and clean condition acceptable to the City. The Concessionaire will be responsible for all set-up, breakdown and storage of its equipment. The Concessionaire may store equipment in the concession building during the term of the Agreement or any renewal thereof; however, the City assumes no responsibility for the safety of the items stored on the Premises. 3.09 Delivery. The Concessionaire agrees that any and all deliveries, whether of product, equipment or otherwise, shall be made to the Premises only at times when no game, Concessions Agreement.Page 5 practice, rental, or any other event is being conducted at the Wayne Gray Sports Complex. IV. PREMISES 4.01 Acceptance. The Concessionaire acknowledges that it has examined fully the Premises and that it is accepting said premises as it presently exists and as herein provided, regardless of any defects which may be discovered at a later time. In consideration for the privilege of use of the Premises, the Concessionaire specifically assumes any and all liability that may arise due to premise defects upon any or all improvements which exist on the Premises at the time of execution of this Agreement or any and all improvements which are constructed thereafter related to or arising out of the Concessionaire's use. The Concessionaire hereby accepts the Premises with full knowledge and recognition of the City's disclaimer of warranties,both express and implied, as expressed in Section 1.05. 4.02 Maintenance. The Concessionaire covenants and agrees that it will, at its own expense, keep and maintain the Premises in a good state of repair and maintenance during the initial term and any extension or renewal of this Agreement. The Concessionaire will do all work and make all maintenance repairs necessary, advisable, or requested by the City to keep the Premises from deteriorating in value or condition. The Concessionaire agrees to maintain the Premises and all areas used by the Concessionaire in a clean, neat, sanitary, safe and orderly manner and free of waste, rubbish and debris at all times. The Concessionaire shall be responsible for discarding all trash inside and immediately adjacent to the Premises in the proper dumpsters located in the parking lot of the Wayne Gray Sport Complex. The Concessionaire agrees to notify the City Manager without delay of any repair that requires action by the City and to provide prompt access to the Premises. 4.03 Inspection by City and Required Maintenance. The City shall have the right and privilege, through its agents and officials to make inspections of the Premises and thereafter to require the Concessionaire to make maintenance repairs that in the City's opinion are necessary. The Concessionaire agrees and covenants that it shall commence maintenance repairs within thirty (30) days from the date that notice of the required repairs are received. Such repairs shall be made in an expeditious and worker-like manner. In the event that the Concessionaire shall fail to commence such repairs within the time provided, it is understood and agreed that the City may, within its discretion, make such repairs at the Concessionaire's sole cost and expense. The cost of such repairs shall be paid by the Concessionaire within ten(10) days following the completion of said repairs. 4.04 Repairs. The City, at its sole cost and expense, shall maintain and repair the foundation, the building structure, exterior walls, roof, exterior windows, exterior doors and exterior mounted HVAC units. The City shall also maintain, at its sole cost and expense, the grounds and the landscaping materials adjacent to Premises. At all times during the term of this Agreement, the City shall make reasonable efforts to fix or repair any defect in the Concessions Agreement,Page 6 building, structure, exterior walls, roof, exterior windows and exterior doors of the Premises upon receipt of written notice from the Concessionaire that such repairs are necessary. The Concessionaire shall not be entitled to damages, actual or consequential, arising out of or in connection with any repairs requested or required to be made by the City pursuant to this Agreement; provided, however, if(i) the damages were caused by the sole proximate cause of the City, (ii) the damages cause the Concessionaire's operations to be completely closed during a period in which it is required to be open pursuant to thie Agreement, and (iii) the City fails to prosecute the required repairs with reasonable diligence after receipt of notice from the Concessionaire as required herein, the Concessionaire may be entitled to actual damages but not lost profits, whether actual or anticipated. 4.05 Improvements. It is agreed that no improvements to park property will be necessary in order for the Concessionaire's concession service to be operational. Should circumstances change and the Concessionaire desire to install or construct at its expense improvements on the City's park property, the Concessionaire must obtain the written approval of the Parks and Recreation Advisory Board as well as the City Manager of all plans and specifications associated therewith prior to such installation or construction. Improvements shall include,but not be limited to, the addition of all necessary equipment and incidentals for the proper storing, heating, cooling and serving food and beverages approved by the City, as well construction activities. All installation and construction activities will be in compliance with the relevant codes of City and other federal, state and local laws,ordinances,rules and regulations. The complete cost of developing all the necessary plans and specifications, excavations(s), location and platting of utility lines and construction of the proposed improvements shall be borne entirely by the Concessionaire at no expense to City whatsoever. Additionally, unless waived in writing by the City Manager based upon the scope of work proposed by the Concessionaire, the Concessionaire shall, without cost to the City, furnish the City with payment and performance bonds (or the Concessionaire's contractor shall supply same to the City), written by a surety acceptable to the City in an amount equal to the estimated cost of constructing the proposed improvements guaranteeing the work, guaranteeing the completion of work, free and clear of liens, according to the approved plans and specifications. All alterations and improvements on or in the Premises at the commencement of the term or those that may be erected or installed during the term, shall become part of the Premises and the sole property of the City, except that all moveable trade fixtures installed by the Concessionaire shall be and remain the property of the Concessionaire. The Concessionaire specifically agrees to keep and maintain any and all improvements throughout the term of this Agreement, ordinary wear and tear excepted. The Concessionaire shall use its best efforts to complete construction of any improvements in a timely manner. 4.06 Dangerous or Hazardous Conditions. The Concessionaire is solely responsible for the inspection of the Premises during the term of this Agreement and any renewal thereof. Should the Concessionaire become aware of an existing or developing hazardous or dangerous condition on the Premises, the Concessionaire shall immediately notify the City, take necessary precautions and remedy such hazardous or dangerous condition at its Concessions Agreement.Page 7 sole cost and expense if the dangerous or hazardous condition is a result of the Concessionaires operations. V. TERM 5.01 Initial Term. The Initial Term of this Agreement shall commence on the date the Agreement is executed by the City Manager and shall terminate two years thereafter, unless terminated earlier in accordance with this Agreement. 5.02 Renewal Terms. After the expiration of the Initial Term, the City and the Concessionaire may extend the Initial Term for a period of two years upon the same or similar terms and conditions if agreed to in writing by both parties. If the Agreement is extended for the first additional period of two years, the City and the Concessionaire may extend the Agreement for a second additional period of two years upon the same or similar terms and conditions if agreed to in writing by both parties. If the Agreement is extended for the second additional period of two years, the City and the Concessionaire may extend the Agreement for a third additional period of two years upon the same or similar terms and conditions if agreed to in writing by both parties. If the Agreement is extended for the third additional period of two years, the City and the Concessionaire may extend the Agreement for a fourth additional period of two years upon the same or similar terms and conditions if agreed to in writing by both parties. In each case, the Agreement may be extended only if a. the Concessionaire is not in default of any provision under this Agreement; b. either party gives written notice of its desire to renew the Agreement at least ninety(90) days prior to the expiration of the then-current term; and C. the parties come to an agreement as to the terms that will govern the renewal period at least sixty(60)days prior to the expiration of the then-current term. All of the terms and conditions hereof shall apply during the renewal term(s), unless otherwise modified in writing by the parties hereto. It is expressly understood and agreed that the consideration specified in Article VI hereof will be reviewed by the City each renewal period. 5.03 Removal of Property. Upon expiration or termination of this Agreement, the City shall have the right to remove from the Premises the Concessionaire's personnel, property and equipment. The Concessionaire is also obligated to leave the Premises in a safe condition and to repair damage, if any,to the Premises. Concessions Agreement.Page 8 VI. CONSIDERATION 6.01 Consideration for the Sale of Food and Beverages. In consideration of the privileges concerning the sale of food and beverages herein granted, the Concessionaire shall pay to the City fifteen percent (15%) of gross receipts from food and beverage sales per term of this Agreement. Such payment shall be due and payable to the City on a monthly basis no later than fifteen (15) days following the end of each month. Payment may be made to the City's Director of Parks and Recreation. Along with such payment, the Concessionaire shall submit to the Director of Parks and Recreation a report of the gross receipts received from food and beverage sales at the Premises and a copy of the sales and use tax return for the corresponding month, which was submitted to the Texas Comptroller of Public Accounts. The term "gross receipts" as used in this section shall mean the total price paid, less sales tax, to the Concessionaire by all persons purchasing the food or beverages. 6.02 Consideration for the Sale of Other Items. a. Except as provided in subsection (b), in consideration of the rights and privileges for the sale of items other than food and beverages described in Section 3.01 herein granted, Concessionaire shall pay to the City fifty percent (50%) of gross receipts. Such payment shall be due and payable to the City on a monthly basis no later than fifteen (15) days following the end of each month. Payment may be made to the City's Director of Parks and Recreation. Along with such payment, the Concessionaire shall submit to the Director of Parks and Recreation a report of the gross receipts received from other items sold at the Premises and a copy of the sales and use tax return for the corresponding month, which was submitted to the Texas Comptroller of Public Accountst. The term "gross receipts" as used in this section shall mean the total price paid, less sales tax,to the Concessionaire by all persons purchasing commodities offered or using services provided by the Concessionaire other than those addressed in Section 3.01. b. For the sale of items described in Section 3.02 herein granted, Concessionaire shall pay to the City the cost of such items as specified by the City prior to the sale plus fifty percent(50%) of any additional money collected above such costs. Such payment shall be due and payable to the City on a monthly basis no later than fifteen (15) days following the end of each month. Payment may be made to the City's Director of Parks and Recreation. Along with such payment, the Concessionaire shall submit to the Director of Parks and Recreation a report of the gross receipts received from items described in Section 3.02 sold at the Premises and a copy of the sales and use tax return for the corresponding month, which was submitted to the Texas Comptroller of Public Accounts.t. The term "gross receipts" as used in this section shall mean the total price paid, less sales tax, to the Concessionaire by all persons purchasing commodities offered or using Concessions Agreement.Page 9 services provided by the Concessionaire other than those addressed in Section 3.01. 6.03 Audit. The City shall have the right to examine and inspect and audit all records and files of the Concessionaire relating to this agreement. Such records shall be kept accurate and complete and available for inspection by the City, its agents and employees at any reasonable time. The Concessionaire shall retain such records for a period of five years. 6.04 Electrical Costs. The Concessionaire shall pay to the City an amount of FIFTY AND NO/100 DOLLARS ($50.00) per month for each month or part thereof during which Concessionaire uses the Premises to defray the City's electrical costs. Such payment shall be due and payable to the City on a monthly basis no later than fifteen (15) days following the end of each month for which payment is due. 6.05 Prompt Payment. The Concessionaire's license granted herein along with all of its obligations hereunder are expressly contingent upon the prompt payment of the compensation specified in this article, and the use of the Premises by the Concessionaire is obtained only on the condition that fees specified herein are paid on time. Payment of these fees shall be independent covenants. At any time after the City's receipt of a check from the Concessionaire pursuant to this Agreement, such check is not honored by the drawing financial institution due to insufficient funds or is otherwise dishonored twice for any reason, the City may at any time thereafter, at the City's sole option, require that all fees and other sums due from the Concessionaire hereunder be paid either by cashier's check or money order. Failure to pay any fee as and when required will not only be considered a breach of this Agreement but also result in interest, as specified in the amount of one percent per month, being charged on the delinquent payments commencing on the date the payment first becomes overdue. VII. CITY'S OBLIGATIONS 7.01 Utilities. Water and sewer utilities, existing on the effective date of this Agreement, to the Premises shall be provided by the City without cost to the Concessionaire. Electrical services will also be provided for the compensation specified in Section 6.05. 7.02 Trash Receptacles. The City shall provide an adequate number of trash receptacles for the public and be responsible for their maintenance and the disposal of their contents. VIII. INSURANCE 8.01 Concessionaire's Insurance. From and after the Effective Date and throughout the Term of this Agreement, the Concessionaire will keep and maintain, or cause to be kept and maintained, in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the construction, operation, Concessions Agreement.Page 10 repair, or maintenance of the Premises and all activities associated therewith, whether such construction, operation, repair or maintenance be performed by the Concessionaire, its agents, representatives, employees, subcontractors, assigns, or anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable. The Concessionaire's insurance coverage shall be primary insurance with respect to the City, its officials, employees and agents. Any insurance or self-insurance maintained by the City, its officials, employees or agents shall be considered in excess of the Concessionaire's insurance and shall not contribute to it. Further the Concessionaire shall cause all subcontractors to furnish separate certificates and endorsements for each such person or entity. All coverages for subcontractors shall be subject to all of the requirements stated herein. 8.02 Policies and Minimum Limits. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: Commercial General Liability ➢ General Aggregate: $1,000,000 ➢ Per Occurrence: $1,000,000 ➢ Owners' and Contractors' Protective Liability: $1,000,000, during construction and all renovations thereafter of the Premises Improvements. ➢ Products& Completed Operations Aggregate: $1,000,000 ➢ Personal&Advertising Injury: $1,000,000 ➢ Liquor Liability Endorsement(only required if alcoholic beverages are sold for consumption on or off the Premises) ➢ Coverage shall be at least as broad as ISO CG 00 01 10 93 ➢ No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. ➢ Coverage shall include pollution coverage up to the policy limits. Workers' Compensation ➢ Statutory Limits ➢ Employer's Liability$500,000 ➢ Waiver of Subrogation required. 8.03 Additional Coverages. If the activities or operations to be conducted or conducted on the Premises change, the City Manager in his sole discretion may insist that the Concessionaire obtain additional coverages with limits deemed appropriate by the City's risk manager. 8.04 Requirements Applicable to all Policies. Prior to any work being performed on the site, the Consultant shall file with the City valid Certificates of Insurance and endorsements acceptable to the City for itself and its subcontractors. Such Certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days'prior written notice has been given to the City via certified mail, return receipt requested. The following shall be applicable to all policies of insurance required herein: Concessions Agreement,Page 11 a. Insurance carrier for all liability policies must have an A.M. Best Rating of B+: VI or better. b. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. C. Liability policies must be on occurrence form. d. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested,has been given to the City. e. The City and its officers and employees are to be added as Additional Insured to liability policies. f. Upon request,and without cost to the City, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the City. g. Upon request, and without cost to the City, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to the City. IX. INDEMNITY AND RELEASE. 9.01 INDEMNITY. THE CONCESSIONAIRE HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, PROTECT AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES (THE "THE CITY PARTIES") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEY'S FEES, FOR ANY INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO ANY PROPERTY INCURRED IN CONNECTION WITH ALL CLAIMS, INCLUDING ANY ACTION OR PROCEEDINGS BROUGHT, THEREON ARISING FROM, AS A RESULT OF, OR IN ANY WAY RELATED TO THE CONCESSIONAIRE'S AND ITS SUBTENANTS', ASSIGNEES', OFFICERS', AGENTS', EMPLOYEES', CONTRACTORS', GUESTS' AND/OR INVITEES' Concessions Agreement,Page 12 (THE "THE CONCESSIONAIRE PARTIES") USE OR OCCUPANCY OF THE PREMISES AND/OR PREMISES IMPROVEMENTS OR ANY OF THE ACTIVITIES OF ANY SUCH THE CONCESSIONAIRE PARTIES IN OR ON THE PREMISES, OR THE DESIGN OR CONSTRUCTION OF THE PREMISES IMPROVEMENTS, WHERE SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY PARTIES AND ANY OTHER PERSON OR ENTITY AND/OR BY THE JOINT OR SOLE NEGLIGENCE OF THE CONCESSIONAIRE PARTIES. IT IS THE EXPRESS INTENTION OF BOTH THE CITY AND THE CONCESSIONAIRE THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY THE CONCESSIONAIRE TO INDEMNIFY, HOLD HARMLESS, PROTECT, AND DEFEND THE CITY PARTIES FROM (I) THE CONSEQUENCES OF THE NEGLIGENCE OF THE CITY PARTIES, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE WITH THAT OF ANY OTHER PERSON OR ENTITY OF ANY SUCH INJURY, DEATH OR DAMAGE AND/OR (In THE CONCESSIONAIRE PARTIES' SOLE AND/OR CONCURRENT NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FROM THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT OR LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY. 9.02 Counsel. In the event that any action or proceeding is brought against the City by reason of any of the above, the Concessionaire further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the City. 9.03 Evergreen. Notwithstanding anything to the contrary contained in this Agreement, the indemnity provided in this section shall not terminate upon the termination or expiration of this Agreement,but shall continue in full force and effect. 9.04 Release. By this Agreement,the City does not consent to litigation and expressly revokes any consent to litigation that it may have granted by the terms of this Agreement, any charter, or applicable state law. The Concessionaire assumes full responsibility for the work to be performed and releases, relinquishes, and discharges the City, its officers, agents and employees from all claims, demands and causes of action of every kind and character for any injury to, including, but not limited to, death of any person (whether third persons, the Concessionaire, or employees of either of the parties). This release includes the cost of defense of any claim and any loss of or damage to property (whether Concessions Agreement,Page 13 property of the parties or of third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Concessionaire's work to be performed under this Agreement whether or not said claims, demands, and causes of action are covered in whole or in part by insurance. X. LIENS 10.01 No Lien against City Property., The Concessionaire covenants and agrees that it will have no power to do any act or make any contract that creates any lien upon City property; and upon such purported lien being created or filed of record, the Concessionaire, at its sole cost and expense,shall liquidate and discharge same immediately. XI. DEFAULT AND TERMINATION 11.01 Events of Default. The following events shall be deemed to be events of default by the Concessionaire under the Agreement: a. the Concessionaire shall fail to comply with any term, provision or covenant of this Agreement or the Agreement, and shall not cure such failure within the following specified number of days after written notice thereof to the Concessionaire: 1. five (5) days if said default relates to any payments under this Agreement; or 2. ten(10)days if said default is of any other nature under this Agreement. b. the Concessionaire shall desert or vacate any substantial portion of the Premises as determined by the City for a period of five (5)days or more; or C. a receiver is appointed on account of its insolvency, which could impair or frustrate the Concessionaire's performance of this Agreement, and the Concessionaire or its successor in interest fails to provide adequate assurance of future performance, in accordance with the terms and conditions hereof. 11.02 Remedies upon Default. Upon the occurrence of any event of default specified hereinabove, the City shall have an option to pursue one or more of the following remedies without any notice or demand whatsoever: a. Terminate this Agreement, in which event the Concessionaire shall immediately surrender the Premises to the City; and if the Concessionaire fails to do so, the Concessions Agreement.Page 14 City may, without prejudice to any other remedy which it may have for possession, enter upon and take possession and expel or remove the Concessionaire and any other person who may be occupying said Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim of damages therefor; and the Concessionaire agrees to pay to CITY on demand the amount of any loss and/or damage which CITY may suffer by reason of such termination, whether through inability to contract with a new concessionaire for the Premises on satisfactory terms or otherwise for a period not to exceed sixty(60)days. b. Enter upon and take possession of the Premises and expel or remove the Concessionaire and any other person who may be occupying the Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim of damages therefor; and if the City so elects, relet the Premises on such terms as the City shall deem advisable and receive the terms as the City shall deem advisable and receive the rent or payments therefrom; and the Concessionaire agrees to pay to the City on demand any deficiency that may arise by reason of such reletting for a period not to exceed sixty(60) days. C. Enter upon the Premises, by force if necessary, without being liable for prosecution or any claim of damages therefor, and do whatever the Concessionaire is obligated to do under the terms of this Agreement, and the Concessionaire agrees to reimburse the City on demand for any expenses which the City may incur in thus effecting compliance with the Concessionaire's obligations under the Agreement and the Concessionaire further agrees that the City shall not be liable for any damages resulting to the Concessionaire from such action. 11.03 No Election of Remedies. No reentry or taking possession of the Premises by the City shall be construed as an election on its part to terminate this Agreement, unless a written notice of such intention be given to the Concessionaire. Notwithstanding any such reletting or reentry or taking possession, the City may at any time thereafter elect to terminate this Agreement for a previous default. Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other remedies herein provided or any other remedies provided by law or equity, nor shall the pursuit of any remedy herein provided constitute a forfeiture or waiver of any payment due to the City hereunder or of any damages accruing to the City by reason of the violation of any of the terms, provisions and covenants herein contained. 11.04 No Waiver. No waiver by the City of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or constitute a waiver of any other violation or breach of any of the terms, provisions and covenants herein contained. Forbearance by the City to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default. The loss or damage that the City may suffer by reason of termination of this Agreement Concessions Agreement,Page 15 or the deficiency from any reletting as provided for above shall include the expenses of repossession and any repairs or remodeling undertaken following possession. 11.05 Additional Remedies. Should the City at any time terminate this Agreement for any default, in addition to any other remedy the City may have,the City may recover from the Concessionaire all damages the City may incur by reason of such default, including cost of recovering the Premises and reasonable attorney's fees expended by reason of default. 11.06 Termination without Cause. The City may, at its option and without prejudice to any other remedy it may be entitled at law or in equity, or otherwise under this Agreement, terminate the Agreement, in whole or in part, without cause by giving at least thirty (30) days prior written notice thereof to the Concessionaire. Upon contract termination, the Concessionaire shall deplete existing inventory and vacate the concession area. The parties agree that the Agreement shall terminate on the date specified on the notice and that the Concessionaire shall be responsible for any fees due and owing up to and through the termination date specified on the notice. XII. MISCELLANEOUS 12.01 Choice of Law. This Agreement is entered into subject to the charter and ordinances of the City, as they may be amended from time to time, and is subject to and is to be constructed, governed and enforced under the laws of the State of Texas. 12.02 Venue. The parties to this Agreement agree and covenant that this Agreement will be enforceable in Baytown, Harris County, Texas; and that if legal action is necessary to enforce this Agreement, exclusive venue will lie in Harris County,Texas. 12.03 Permits. The Concessionaire shall obtain and keep in effect at its own cost and expense all licenses and permits necessary for its operation under this Agreement. 12.04 Independent Contractor. The Concessionaire covenants and agrees that it is an independent contractor and not an officer, agent, servant or employee of the City; that the Concessionaire shall have exclusive control of and exclusive right to control the details of the work performed hereunder and all persons performing same, and shall be responsible for the acts and omissions of its officers, agents, employees, contractors, subcontractors and consultants; that the doctrine of respondeat superior shall not apply as between the City and the Concessionaire, its officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise between the City and the Concessionaire. 12.05 Safe . The Concessionaire shall comply with all Occupational Safety and Health Act (OSHA) Standards and any other federal, state or local rules and regulations applicable to construction or maintenance activities in the State of Texas. City safety personnel or any supervisor may, but are not required to, order that the service be stopped in a condition of Concessions Agreement,Page 16 immediate danger is found to exist. Nothing contained herein shall be construed to shift responsibility or risk of loss for injuries or damages sustained as a result of a violation of these safety articles from the Concessionaire to the City. The Concessionaire shall remain solely and exclusive responsible for compliance with all safety requirements and for the safety of all persons and property at the Premises 12.06 Equal Employment Opportunity. The Concessionaire shall not discriminate against any employee or applicant for employment because of race, age, color, religion, sex, disability, ancestry,national origin or place of birth. The Concessionaire shall take action to ensure that applicants are employed and treated without regard to their race, age, color, religion, sex, disability, ancestry, national origin or place of birth. This action shall include but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection of training including apprenticeship. No person, firm, corporation, organization, association, league or group shall be denied use of or access to the Premises or concession operation because of race, sex, color, religion, national origin or disability. 12.07 Notices. All notices required or permitted to be given hereunder may be given by letter sent via registered or certified mail, return receipt requested, telegram, or any other form of written communication and shall be deemed to be duly served and given for all purposes: (a) To the City when received at: City of Baytown Attn: City Manager P.O. Box 424 Baytown,Texas 77522 Fax: 281-420-6586 (b) To the Concessionaire when received at the Concessionaire's office: RPRS Investments, LTD,d/b/a Baytown Commisary Attn: Jack Adcox 623 W. Texas Avenue Baytown,TX 77520 Fax: 281-837-6943 as the case may be. Any party may change the address for the giving of notices to it by giving at least fifteen (15) days written notice of the new address to the other party, provided that the new address must be at a place in the United States where the mails and either mailgrams or telegrams or similar communications are regularly received. Notice given by mail shall be deemed given three (3) days after the date of the mailing of the same to the above-referenced address. Concessions Agreement,Page 17 12.08 Force Majeure. Neither the City nor the Concessionaire shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations hereunder by reasons of strikes, boycotts, labor disputes, embargoes, shortage of material, acts of God, acts of public enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellion, sabotage, or any other circumstances for which it is not responsible or which is not in its control, and the time for performance shall be automatically extended by the period the party is prevented from performing its obligations hereunder. 12.09 Successors and Assigns. The City and the Concessionaire will each bind themselves, their successors, executors, administrators and assigns to the other party to this Agreement. The Concessionaire will not assign, sublet, subcontract or transfer any interest in this Agreement without the written consent of the City. No assignment, delegation of duties or subcontract under this Agreement will be effective without the written consent of the City. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. 12.10 Severability. If any of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Agreement are for any reason held to be invalid, void or unenforceable, the remainder of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 12.11 Entire Agreement. This Agreement embodies the complete agreement of the parties hereto, superseding all oral or written previous and contemporary agreements between the parties relating to matters herein; and except as otherwise provided herein, cannot be modified without written agreement of the parties. 12.12 Headings. The headings as to contents or particular articles or sections herein are inserted only for convenience, and they are in no way to be construed as a part of this Agreement or as a limitation on the scope of the particular sections to which they refer. 12.13 Gender and Name. Words of any gender used in this Agreement shall be held to include any other gender, and words in the singular number shall be held to include the plural when the sense requires. 12.14 No Third Party Beneficiaries. This Agreement shall not bestow any rights upon any third party,but rather, shall bind and benefit the City and the Concessionaire only. 12.15 Authority to Enter Contract Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of the entities he represents. Concessions Aereement,Page 18 12.16 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 12.17 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 12.18 Multiple Ori ig n&. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day and year first written above. CONCESSIONAIRE RPRS Investments, LTD, d/b/a Baytown Commisary (Si e) � a (Pr' ted Name) 4e,v. (Title) CITY City of Baytown tGARY JAC N, City Manager Y, City Clerk Concessions Agreement.Page 19 APPROVED AS TO FORM: I MACTO RAMIREZ, SR., City ttorney STATE OF TEXAS § COUNTY OF HARRIS § B e me on this day personally appeared in his capacity as of RPRS Investments, LTD, d/b/a Baytown Co isary, on behalf of such limited partnership, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. 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O O Alm Exhibit "C" Menu Item Price Big Kahuna Burger— 'h ound $ 5.75 Small Kahuna Burger— 1/3 pound $ 4.00 Kid-size Burger— 115 pound $ 3.25 Sausage on a Stick—4 oz. $ 2.50 Sausage on a Stick—6 oz $ 3.25 Hot Dos $ 1.00 Chili with Cheese and Onions $ 0.50 Chicken Tenders— Small $ 3.50 Chicken Tenders—Large $ 5.00 Nachos $ 5.50 French Fries—6 oz. $ 1.00 Onion Rings $ 1.50 Pizzas $ 3.25 Cheese Sticks $ 5.50 Hot Wins $ 5.25 Jal Stuffers $ 6.50 Corn Dos $ 3.00 Ice Cream $ 1.00 Po corn $ 1.50 Frito Pie $ 1.00 Sno Cone— Small $ 1.75 Sno Cone—Medium $ 2.25 Sno Cone—Large $ 3.25 Assorted Candy $ 0.50 -- $1.00 Soft Drink Small $ 1.25 Soft Drink Medium $ 1.75 Soft Drink(Large) $ 2.75 Bottled Water $ 1.50 Sports Drink $ 1.50 Exhibit"C;'Page Solo