HomeMy WebLinkAboutO-1999-2372
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ORDINANCE NO. 99- ~31 ~
AN ORDINANCE APPROVING AND AUTHORIZING A CONCESSION AGREEMENT
BETWEEN THE CITY OF LA PORTE AND LINDA DARNELL WITT, TO OPERATE
AND MANAGE THE SYLVAN BEACH PARK PIER; AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONCESSION AGREEMENT; MAKING VARIOUS
FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING
COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING AN EFFECTIVE
DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE:
Section 1. The City Council hereby approves and authorizes the Concession
Agreement in substantially the form as shown in the document which is attached hereto
and incorporated herein by this reference, by and between the City of La Porte and Linda
Darnell Witt, for operation and management of the Sylvan Beach Park pier in accordance
with the rules, covenants and conditions set out in said Concession Agreement. The City
Manager is hereby authorized to execute such document and all related documents on
behalf of the City of La Porte. The City Secretary is hereby authorized to attest to all such
signatures and to affix the seal of the City to all such documents
Section 2, The City Council hereby grants Linda Darnell Witt an exclusive
contract as concessionaire of the Sylvan Beach Park pier for the City of La Porte
consistent with the terms of the Concession Agreement and this Ordinance.
Section 3. The City Council officially finds, determines, recites, and declares that
a sufficient written notice of the date, hour, place and subject of this meeting of the City
Council was posted at a place convenient to the public at the City Hall of the City for the
time required by law preceding this meeting, as required by the Open Meetings Law,
Chapter 551, Texas Government Code; and that this meeting has been open to the public
ORDINANCE NO. 9~31 ~
Page 2
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as required by law at all times during which this ordinance and the subject matter
thereof has been discussed, considered and formally acted upon. The City Council
further ratifies, approves and confirms such written notice and the contents and posting
thereof.
Section 4. This Ordinance shall be effective from and after its passage and
approval, and it is so ordered.
PASSED AND APPROVED, this /3fL day of Dfl-e /.1 f!J~12.
,1999.
CITY OF LA PORTE
By: ll/h~~-{
oJman L. Malone,
Mayor
ATTEST:
~.La fit/IN!
M rtha A. Gillette,
City Secretary
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CONCESSION AGREEMENT
THE STATE OF TEXAS I
I
COUNTY OF HARRIS I
This Agreement made and entered into by and between the City of La Porte, a
body corporate and politic under the laws of the State of Texas, hereinafter referred to
as the "City", and Linda Darnell Witt, hereinafter referred to as the "Concessionaire".
WITNESSETH
WHEREAS, the Concessionaire desires to assist the City in providing a fishing
pier to be made available for the enjoyment and benefit of the public at Sylvan Beach
Park, and
WHEREAS, The Concessionaire has requested the City to use said pier for the
purposes hereinabove described, to be used by the general public, and
WHEREAS, The City desires to provide quality recreational opportunities for the
general public, and desires to permit the Concessionaire to use the said pier according
to the rules, covenants, and conditions hereinafter stated,
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
That in consideration of the mutual covenants and agreements to both parties, it
is agreed as follows:
I.
Subject to the terms and provisions herein set forth, the City has granted and by
these presents grants to the Concessionaire, for a term of three hundred two (302)
days, beginning January 3. 2000, and ending (unless sooner ended in accordance with
the provisions hereof) October 31. 2000, the right and privilege to operate the 1,100
foot fishing pier at Sylvan Beach Park, said fishing pier being more particularly
described on Exhibit "A" attached hereto.
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II.
The Concessionaire and employees shall operate the fishing pier concession in
Sylvan Beach Park in its entirety and the Concessionaire shall make no sale, exchange
or assignment of rights under this Agreement, either in whole or in part, without the prior
written approval of the City Council of the City of La Porte.
III.
As consideration for this concession, the Concessionaire shall pay, without
demand, a monthly concession fee in an amount equal to two-thirds (2/3) of the gross
user fees collected for the use of the pier. Gross User fee is defined as the total gate
receipts less any federal, state, and/or local taxes. The concession fee will be due and
payable on or before the 10th day of each month for the preceding month's activity.
The Concessionaire agrees to maintain documentation, on forms to be developed and
provided by the City and adhere to guidelines established by the City, of daily use and
payments received. The Concessionaire agrees to furnish to the City any and all
reports which City may require covering all receipts and income of the concession, and
agrees that her books and other records may be examined by the City or City Auditor or
any other officer of the City at any reasonable time. The Concessionaire agrees to
keep and maintain said records and books in La Porte. The Concessionaire may, on a
daily basis, report and deposit with the City all admission revenues generated by the
pier operation. The City shall remit to the Concessionaire the amount due to the
Concessionaire pursuant to this agreement on a monthly basis.
IV.
The Concessionaire shall operate and manage the fishing pier. Admission rates
will be set through negotiation with the City and shall be reasonable and equal to those
charged by concessionaires in comparable facilities. The Concessionaire agrees to
conform to the rates as set. The Concessionaire shall post a schedule of such fees,
rates, and prices at all times in a conspicuous place on the premises.
V.
During the term of this Agreement, Concessionaire's and City's obligations
hereunder, in addition to others specified herein, shall be as follows:
(a) The Concessionaire will abide by all applicable federal, state, and
municipal laws, ordinances, rules and regulations. Concessionaire must
obtain, at her own expense, all licenses and permits required for the
operation of said fishing pier and make the same accessible at all times to
city, county, state, and federal officers. Concessionaire agrees to pay all
federal and state permit and lease fees. The City agrees to pay required
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state permit and lease fees from the Concessionaire's share of collected
receipts according to the following formula:
15% of total permit fee for each of the months of June, July, August, &
September of each year of the agreement.
5% of total permit fee for each of the months of October, January,
February, March, April, & May for the term of the agreement.
The payment schedule specified above shall begin in the month following
the date this agreement is executed and continue until the agreement is
terminated.
(b) The Concessionaire will pay all applicable local, state, and federal taxes
incident to the operation of said fishing pier.
(c) The Concessionaire will place no vending machine in the area of the
fishing pier without the prior written approval of the City Parks &
Recreation Director or his designated representative.
(d) The Concessionaire will abide by such opening and closing hours of the
fishing pier as the Commissioners Court of Harris County and the City
may, from time to time, prescribe and will post such hours of opening and
closing at the fishing pier.
(e) The Concessionaire agrees to open the pier to the public, at no charge,
on the following dates: (a) Sylvan Beach Day; (b) Bay Day; and (c) three
(3) other dates to be determined by the City and/or Harris County, and
coordinated with the Concessionaire.
(f) The Concessionaire will sell no beer, wine, liquor, or other such alcoholic
beverages on the fishing pier.
(g) The Concessionaire will keep the fishing pier and the entrance thereto in a
neat, clean, and sanitary condition.
(h) The Concessionaire will be responsible for all routine or minor
maintenance of the pier. The City will be responsible for all major repairs
to the pier. For purposes of this Agreement, a Major Repair shall be
defined as: any purchase of materials and labor in excess of $200.00 for
any particular event, including normal wear and tear, requiring repair of
the pier.
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(i) The Concessionaire will not permit on the pier, or in the immediate vicinity
of the pier, any disorderly conduct or practice in violation of any federal,
state, or municipal laws, rules, regulations, or ordinances; of a sort likely
to bring discredit upon the City or its governing body.
0) The Concessionaire will treat the public with courtesy and respect at all
times, Complaints will be investigated by the Parks & Recreation Director
or his designated representative and, if found to be just, be resolved to
the satisfaction of said Director.
(k) The Concessionaire will neither place, nor cause to be placed, any sign,
projection, advertisement, or device of any kind whatsoever on the fishing
pier or on the streets adjacent thereto without prior written consent of the
City.
(I) The Concessionaire will be responsible for all costs and expenses
incidental to operating the fishing pier.
(m) The City will provide electrical and water utilities to the pier, and shall be
responsible for maintenance and repair of electrical systems for the pier.
The City will be responsible for payment of water utility costs. The
Concessionaire will be responsible for payment of electrical utility costs.
(n) The City will be responsible for providing a facility for ticket sales at the
entrance to the pier. Said facility shall be of a design mutually approved
by the City and the Concessionaire. The Concessionaire will be
responsible for maintenance and repair of said facility for the duration of
this Agreement. The Concessionaire will be responsible for providing any
barricades required to limit access to the pier and to direct patrons to the
facility for ticket sales or other purpose.
(0) The City will be responsible for providing trash receptacles for the pier and
entrance to the pier; the Concessionaire will be responsible for providing
plastic liners for the receptacles.
(p) It is expressly the Concessionaire's responsibility and duty to remove and
properly dispose of the trash and garbage resulting from the public use of
the fishing pier and seeing to it that the same is put in suitable closed
containers. Containers shall be picked up and hauled away at least twice
a week.
VI.
The Concessionaire shall permit the City's officers, employees, and agents to
enter into and upon the fishing pier for the purpose of inspecting and examining the
condition thereof.
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VII.
The Concessionaire shall not by virtue hereof be deemed to have become a
tenant of the City, nor to have been given or accorded as against the City the
possession of any part of said fishing pier, but to such of the pier as the Concessionaire
is hereunder entitled to use, the Concessionaire shall be deemed merely to be a
licensee permitted to enter therein solely for the purpose of exercising therein the rights
and privileges hereby granted.
VIII.
The Concessionaire shall keep and maintain during the term hereof, a
comprehensive general liability policy, with the City and Harris County named as
additional insured, with limits of liability of not less than one million dollars
($1,000,000.00) combined single limit bodily injury and property damage per
occurrence. The Concessionaire shall annually furnish the City with a certificate of
insurance evidencing such coverage. The City and Harris County are to receive at
least thirty (30) days prior written notice of cancellation of said policies. Such insurance
shall include contractual liability insuring the indemnity agreements contained herein.
Failure to maintain insurance will result in automatic and immediate termination of this
Agreement.
IX.
To the fullest extent permitted by applicable law, Concessionaire shall and does
hereby agree to indemnify, protect, hold harmless and defend the City of La Porte and
Harris County, Texas, and their respective heirs, legal representatives, partners,
agents, employees, directors, shareholders, subsidiaries, and affiliated companies if
Indemnities and of any of their respective partners, (herein collectively called the
"Indemnitees") from and against all claims, demands, damages, injuries, losses, liens,
causes of action, suit, judgements, liabilities, costs, and expenses, including court costs
and attorney's fees, of any nature, kind or description (including without limitation,
claims for injuries or death of any person, or damages to or loss of any property) of any
person or entity (including but not limited to employees, agents, and subcontractors of
Concessionaire, and their dependents, and personal representatives, or other third
parties), directly or indirectly arising out of, caused by, in connection with, or resulting
from (in whole or in part), (a) the presence or activity of Concessionaire, its employees,
agents, and representatives, (including subcontractors on Indemnitee's premises, (b)
the condition of the Indemnitee's premises, the adjoining land, or any of the driveways,
streets, or alleys used in connection with the services of the Concessionaire, (c) the use
of any equipment by Concessionaire on Indemnitee's premises, whether belonging to
Concessionaire, Indemnitee, or otherwise, or the condition of said equipment, or (d) any
act or omission of Concessionaire, any Subcontractor, any of their respective
employees, agents, servants, officers, directors, partners, or anyone directly or
indirectly employed by Concessionaire or any Subcontractor, or anyone that either
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Concessionaire or any Subcontractor controls or exercises control over (herein
collectively called the "Liabilities").
THE OBLIGATIONS OF CONCESSIONAIRE UNDER THIS INDEMNIFICATION
SHALL APPLY TO LIABILITIES EVEN IF SUCH LIABILITIES ARE CAUSED IN
WHOLE OR IN PART BY THE SOLE OR CONCURRENT NEGLIGENCE OF ANY
INDEMNITEE, AND WHETHER OR NOT SUCH SOLE OR CONCURRENT
NEGLIGENCE WAS ACTIVE OR PASSIVE. Concessionaire shall promptly advise
Indemnitees in writing of any action, administrative or legal proceeding or investigation
as to which this indemnification may apply, and Concessionaire, at Concessionaire's
expense, shall assume on behalf of Indemnitees (and the other Indemnitees) and
conduct with due diligence and in good faith the defense thereof with counsel
satisfactory to Indemnitees; provided, however that Indemnitees shall have the right, at
its option, to be represented therein by advisory counsel of its own selection and at its
own expense. In the event of failure by the Concessionaire to fully perform in
accordance with this Indemnification Agreement, Indemnitees, at its option, and without
relieving Concessionaire of its obligations hereunder, may so perform but all costs and
expenses so incurred by Indemnitees in that event shall be reimbursed by
Concessionaire to Indemnitees, together with interest on the same from the date any
such expense was paid by Indemnitees until reimbursed by Concessionaire, at the
highest lawful rate of interest allowed under applicable usury laws of the State of Texas
(or if no maximum rate is applicable, at the rate of ten percent (10%) per annum). This
indemnification shall not be limited to damages, compensation or benefits payable
under insurance policies, worker's compensation acts, disability benefit acts or other
employee's benefit acts. It is agreed with respect to any legal limitations now or
hereafter in effect and affecting the validity of enforceability of the indemnification
obligation under this Section, such legal limitations are made a part of the
indemnification obligation and shall operate to amend the indemnification obligation to
the minimum extent necessary to bring the provision in to conformity with the
requirements of such limitations, and so modified, the indemnification shall continue in
full force and effect.
x.
It is expressly understood and agreed that the City may terminate this Agreement
without cause at any time by giving the Concessionaire at least ninety (90) days written
notice of its intention to do so, specifying therein the effective date of such termination.
It is expressly agreed that the Concessionaire may terminate this Agreement prior to
the expiration of the term set forth above without cause upon ninety (90) days written
notice to the City. Notifications pertaining to any part of this Agreement shall be made
as follows:
THE CITY:
City of La Porte
P.O. Box 1115
La Porte, Texas 77572-1115
Attention: Director of Parks and Recreation
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THE CONCESSIONAIRE:
Ms. Linda Darnell Witt
723 South 4th Street
La Porte, Texas 77571
HARRIS COUNTY:
The Honorable Jim Fonteno,
Commissioner, Precinct 2
Harris County Commissioner's Court
7330 Spencer Highway
Pasadena, Texas 77505
XI.
The Concessionaire shall not allow any liens or any other encumbrances to
attach to the leased premises.
XII.
Whenever the terms of this Agreement conflict with the terms of the Agreement
with the City and Harris County, Texas, dated Aoril 12. 1994 (attached hereto),
amended and extended, the parties agree that the terms of the Harris County
Agreement control, to the extent of such conflict only. Otherwise, this Agreement is to
be construed in relationship with the Harris County Agreement insofar as possible.
XIII.
The provisions of this Agreement which assign certain rights to the City, shall be
construed to also be shared by Harris County insomuch as they are in accordance with
the terms of the Agreement between the City and Harris County, Texas, dated Aoril12.
1994.
The foregoing does not apply to Section X, which allows the City
unilaterally to terminate this Agreement without cause, and also does not apply
to Section III, which governs payment. The City's and Harris County's writes and
obligations regarding payment are more specifically set forth in the Agreement
between the City and Harris County dated April 12. 1994.
XIV.
This instrument contains the entire Agreement between the parties related to the
rights herein granted and obligations herein assumed. Any oral or written
representations or notifications concerning this instrument shall be of no force or effect
excepting a subsequent modification in writing signed by both parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
multiple copies on this the 13N- day of IJeL8Y1Aey, 1999 to become effective as
provided above.
"CITY"
CITY OF LA PORTE
A municipal corporation
ATTEST:
BY:~~\.~
TITLE: C ~~I J1A1J~ (-?t
MAR HA GILLETT
CITY SECRETARY
"CONCESSIONAIRE"
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,._,./: A r--') J '\ .....w.J
BY~ /V'oJl Q , I l ---A. , u..x..,
V -'} Linda Darnell Witt
TITLE:
Concessionaire
ATTEST:
Title:
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CONCESSION AGREEMENT
EXHIBIT "A"
The 1,100 foot pier referred to in this agreement shall be the pier located on the
following described premises situated in Harris County, Texas, to-wit:
A 20 feet wide strip of land 10 feet on both sides of the herein described
centerline out of the Sylvan Beach Park on Galveston Bay in the City of
La Porte, Texas, out of the Johnson Hunter Survey, Abstract 35, Harris
County, Texas, and being more particularly described as follows:
Beginning at a set P.K. Nail marking the intersection of the centerline of
an existing wooden fishing pier and a wooden bulkhead.
Thence, in a Northwesterly direction, along the centerline of said wooden
fishing pier extended, a distance of 49.41 feet to a set P.K. Nail on the
southeast side of an existing parking lot for the POINT OF TERMINUS.
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