HomeMy WebLinkAboutO-1992-1843
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ORDINANCE NO. 1843
AN ORDINANCE APPROVING AND AUTHORIZING A CONTRACT BETWEEN THE CITY
OF LA PORTE AND LAS HADAS MEXICAN RESTAURANT, INC., FOR CONCESSIONS
AT SYLVAN BEACH PAVILION~ MAKING VARIOUS FINDINGS AND PROVISIONS
RELATING TO THE SUBJECT~ FINDING COMPLIANCE WITH THE OPEN MEETINGS
LAW~ AND 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
contract, agreement or other undertaking described in the title of
this ordinance, in substantially the form as shown in the document
which is attached hereto and incorporated herein by this reference.
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 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, Article 6252-17, Texas Revised
Civil Statutes Annotated~ and that this meeting has been open to the
public 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 3. This Ordinance shall be effective from and after
its passage and approval, and it is so ordered.
PASSED AND APPROVED, this II~day of May, 1992.
CITY OF LA PORTE <'? d
BY~~
o an L. Ma one, Mayor
ATTEST: ~
(Ik d
Cherie Black
:~;dJ
Knox W. Askins .
City Attorney
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NOTICE TO OFFERERS
SEALED PROPOSALS ADDRESSED TO THE CITY SECRETARY OF THE CITY
OF LA PORTE, HARRIS COUNTY, TEXAS, AND MARKED "R.F.P. # 0041" WILL
BE ReCEIVED AT THE CITY HALL, P.O. BOX 1115,604 W. FAIRMONT PARK-
WAY, LA PORTE, TEXAS, 77572, UNTIL 4:00PM, APRIL 6,1992, FOR FOOD,
BEVERAGE AND CONCESSION ITEMS AT THE CITY OF LA PORTE SYLVAN
BEACH PAVILION,
PROPOSALS SHALL BE OPENED SO AS TO A VIOD DISCLOSURE OF CON-
TENTS TO COMPETING OFFERORS. ALL PROPOSALS THAT HAVE BEEN
SUBMITTED SHALL BE OPEN FOR PUBLIC INSPECTION AFTER CONTRACT
AWARD, CONFIDENTIAL INFORMATION CONTAINED IN THE PROPOSALS
SHALL NOT BE OPEN FOR PUBLIC INSPECTION.
EACH PROPOSAL MUST BE SUBMIITED IN DUPLICATE AND BE ACCOMPA-
NIED BY A CERTIFIED OR CASHIER'S CHECK, OR BID BOND IN THE AMOUNT
OF $1,000. FORMS FURNISHED BY THE CITY OF LA PORTE MAY BE OB-
l' AINED WITHOUT DEPOSIT FROM THE CITY SECRETARY, THE CITY RE-
SERVES THE RIGHT TO REJECT ANY AND/OR ALL PROPOSALS, TO WAIVE
ANY AND ALL TECHNICALITIES, AND TO ACCEPT ANY PROPOSALS OR
PART THEREOF, WHICH IN THE OPINION OF THE CITY COUNCIL, IS MOST
ADV ANT AGEOUS TO THE CITY.
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CITY OF LA PORTE
CHERIE BLACK - CITY SECRETARY
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RFP # 0041
SPECIFICATIONS
FOOD, BEVERAGE AND CONCESSION ITEMS
SYLVAN BEACH PAVILION
INTENT: To secure an agreement for the refreshment concessions at the Sylvan Beach
Pavilion.
1. All proposals must be on the form contained herein, signed in the space provided and ac-
companied by a surety bond, certified or cashier's check in the amount of $1,000 and
made payable to the City of La Porte and included in a sealed envelope marked "Sylvan
Beach Pavilion- RF.P. # 0041."
2. Letters of transmittal, fin'imcial statements and evidence of performance ability required
to be submitted must not conflict with any of the conditions or specifications.
3. The City reserves the right to accept or reject any or all proposals. The City Council of
the City of La Porte shall be the sole judge as to the best qualified offeror to serve in the
best interests of the public and may waive any informalities or technical errors that, in its
judgment, will best serve those of interest
The following criteria will'be used by the City to evaluate the proposals and to make a
selection:
1. Experience in the concession field,
2. Strength of financial condition.
3. Monthly percentage of gross sales proposed.
4, Price, size and content of items to be sold,
5. Equipment to be installed,
6, Ability to meet all other conditions specified.
4, In signing this proposal, the offeror agrees that he has, or they have carefully examined
the site of the concessions, the conditions and specifications, and understands the mean-
ing, intent and requirements of same and agrees further to enter into a written contract to
furnish the items and services called for in strict conformity with all requirements con-
tained herein or forfeit bid surety.
5. Each offeror shall submit a copy of their most recent amlited financial statement on a
form furnis~ed herewith and a statement showing: (a) bperating experience; (b) present
concession operations; (c) present other operations; (d) gross revenues; (e) business ref-
erences; (f) other qualifications. Each offeror must have actively engaged for a period of
at least one (1) year in the operation of the food and beverage business such as is con-
templated by these qualifications, and to have the ability to serve at least 750 persons at
anyone time.
The offeror, having familiarized himself with the notice to offeror, offeror's proposal
form, specifications, plans and form of agreement in connection with the refreshment
concession at the Sylvan Beach Pavilion, La Porte, Texas, hereby proposes to furnish the
services and the payment set forth herein according to said Notice to Offerors,
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RFP # 0041
In further and full consideration of the exclusive concession lease (subject to the right of
City to allow food service by approved caterers in addition to Concessionaire), granted
by the City by and under said Offerors, the subscriber agrees to pay to the City of La
Porte, after first deducting from gross receipts any Federal, State, Municipal or other
governmental body taxes, import, duty or fee which shall constitute a direct charge or
imposition on sales, (but not including ad valorem taxes, and taxes based on income or
employee wages, and like taxes), the percentages which the subscriber shall set forth in
his offer, upon the aforementioned gross sales, It is understood that reports of gross
sales shall be made monthly with said reports made to the City of La Porte. All pay-
ments shall be made monthly, payable to the City of La Porte and delivered to the Direc-
tor of Finance, or his designee, of the City of La Porte,
Concessionaire agrees to pay the City a monthly rale not less than or greater than the fol-
lowing:
~S~rcentage of gross sales of food and beverages, and any and all other items sold
by Concessionaire at Sylvan Beach Pavilion.
Further, as part of its bid, Concessionaire agrees to charge to the public the retail prices,
exclusive of any sales tax, as shown on Exhibit "Price List" attached hereto, incorporated
by reference herein, and made a part hereof for all purposes,
The following is the full name and address of the person, firm or corporation interested
in this proposal:
NAME ADDRESS
W-A""P~J;MqkAf\) ~Tllilr~"UT ,-:;r:::/vC.g.D4 {,(;fS;j fU;"rvIlUU'" Pa't"h~~~
L..~ P,l&L T e ,'-'(" G;-lt ~
(State of Corporation)
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(If not a corporation, state the form of business, whelher proprietorship, partnership, or
otherwise, and give names of all partners and their addresses.)
Also altached hereto and made a part hereof is Concessionaire's Statement of Qualifica-
tion under Paragraph 5 of Instructions to Offerors.
SPECIAL CONDITIONS AND SPECIFICATIONS
1, EXECUTION OF CONTRACT: The Contract shall be signed and returned by the SllC-
cessful offe.ror, together with the contract bond and certificates of insurance within ten
(10) days, not including Sundays, after the offeror has received notice that the contract
has been awarded. No proposal shall be considered binding upon the City until execu-
tion of the contract.
Failure to execute a contract and file an acceptable bond, as provided herein, within (10)
days, not including Sundays, after the offeror has received notice'that the contract has
been awarded, shall be just cause for the cancellation of the award and forfeiture of bid
bond surety.
2, ASSIGNMENT: The contractor shall not assign, transfer, convey, sublet or otherwise
dispose of the contract, or any part thereof, to any person, partnership, company or cor-
poration without prior written consent of the City of La Porte,
3, LAWS AND ORDINANCES: The contractor shall procure all permits and licenses, pay
all charges and fees necessary and incidental to the due and lawful conduct of the ser-
vices. He shall keep himself fully informed of all existing and future National, State and
Local laws, ordinances and regulations which in any manner affect the fulfillment of the
contract and comply with same.
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RFP # 0041
Concessionaire must have the ability to, and obtain from, the Texas Alcoholic Beverage
Commission, a temporary beer and wine permit, for each event, as required by the Pavil-
ion monthly work calendars or the Marketing Coordinator, of the City of La Porte, After
the first year of this contract, the Concessionaire will have the option of obtaining the ex-
clusive temporary mixed drink permit as well as the beer and win~ permit.
Contractor will be responsible for any and all additions and/or changes in equipment de-
sign and layout necessary to comply fully with local Heallh and Fire Department regula-
tions. Additional electrical service, plumbing or drain lines shall be approved by the
City of La P0I1e, prior to planning installation. Actual installation shall be according to
all applicable State laws, regulations and ordinances of City of La Porte, Contractor
must also provide approved filters for any and all exhaust systems that may be utilized or
installed.
4. INDEMNIFICATION AGREEMENT: City and Contractor shall enter into an "Indemni-
fication Agreement" in form auached hereto as Exhibit "A", incorporated by reference
herein, and made a part hereof for all purposes,
5, INSURANCE: Contractor shall maintain in effect at all times, insurance coverages as
enumerated in "Indemnification Agreement" in form aUached hereto as Exhibit" A", in-
corporated by reference herein, and made a part hereof for all purposes.
6. CONTRACT BOND: A Business Service Bond covering every and all requirements of
the contract, in the amount of $10,000 shall be furnished concurrent with the execution
of the contract. In lieu of a bond, a negotiable Certificate of Deposit from a bank in Har-
ris County, Texas, or a LeUer of Credit from a bank in I-hlrris County, Texas may be fur-
nished.
7, TERM OF CONTRACT: The term of the contract will be for a period of four (4) years,
with ..n option for the City to renew for a total of three (3) additional years.
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8, AUTHORITY OF THE FACILITY MANAGER: The City of La Porte shall decide any
and all questions which may arise as to the acceptability of services rendered and as to
the manner of performance; all questions which arise as to the interpretation of the con-
ditions and specifications, and all questions as to the acceptable fulfillment of the con-
tract. The City shall also have the authority to allow certain groups to obtain temporary
liquor or beer and wine licenses from the Texas Alcoholic Beverage Commission under
special circumstances.
9. SUSPENSION OF THE CONTRACT: If at any time, in the opinion of the City of La
Porte, the Concessionaire has failed to render services of proper quality, or has failed in
any other respect to perform as specified and intended in and by the terms of the con-
tract, notice thereof in writing will be served upon him; and should he neglect or refuse
to provide means for a satisfactory compliance with the agreement, as directed by the
City of La Porte, within the time specified in such notice, the City shall have the power
to suspend the operation of the contract. Upon such suspension, the Concessionaire's
control shall terminate and thereupon the City Council of the City of La Porte or its duly
authorized representative may employ other parties to carry the contract to completion in
such manner as the City Council may deem proper. Any excess cost arising therefrom
will be charged against the contractor and his sureties, who will be liable therefore. In
the event of such suspension and cancellation, all money due the contractor or retained
under terms of the contract shall be forfeited to the Pavilion, but such forfeiture will not
release the contractor or his sureties from liability for failure to fulfill the contract. The
contractor and his sureties will be credited with the amount of money so forfeited toward
any excess cost incurred, arising from the suspension of the contract and the completion
of it by the Pavilion as provided, and the contractor will be credited with any surplus re-
maining after all just claims for such completion have been paid.
In determination of the question whether there has been any such noncompliance with
the contract as to warrant the suspension of annulment thereof, the decision of the City
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RFP # 004J
with the approval of the City Council of the City of La POlte, shall be binding upon all
palties to the contract.
10. PUBLIC USE OF THE PAVILION: The aLLention of prospective offerors is directed to
the fact that the Pavilion is primarily for the use of the public for the purpose of attend-
ing conventions, trade shows, entertainment features, exhibits, social functions and other
types of events usually held in such a building. The public's rights to such use shall not
be infringed upon by any activity of the Concessionaire. The responsibility of the Con-
cessionaire shall be to render service to the public in a dignified manner. No undue pres-
sure, persuasion or hawking shall be done in any aLLempt to influence the public to use
the service of the Concessionaire.
II. LIMITATIONS ON OPERATIONS: The Concessionaire shall not infringe upon cater-
ing operators within the building. This concession contract shall be limited to service
from the specified stands, or use of vendors when authorized, The Concessionaire shall
have the right to.seek approval as a caterer, under prevailing standards for caterers to be
adopted by the City of La Porte, It is anticipated that the City will approve a number of
caterers, serving a variety of food types, at a percentage of gross receipts to be deter-
mined by City Council of the City of La P0I1e. The choice of caterers shall be at the
election of Lessee of the Pavilion.
The Concessionaire shall not interfere with the free distribution of food or drinks or any
other items of any nature. Free samples may be given away at trade shows and exhibi-
tions; and free food and beverages may be distributed by conventions at the discretion of
the City of La Porte.
The Concessionaire will be required to suspend or modify operations upon the request of
any Lessee, as approved by the City of La P0I1e, when it is in the best i!lterest of the
Lessee, or to comply with the terms of any agreement between the City and a Lessee.
12. FACILITIES AND EQUIPMENT: Prospective offerors are invited to inspect the loca-
tions and equipment and may do so during working hours by contacting the Marketing
Coordinator of the City of La POl1e, at 470-1381.
The Concessionaire will be responsible for maintaining the assigned premises and equip-
ment in good repair and the replacement of any equipment damaged or missing through
his operation. The cost of installing any new or added equipment, when approved by the
City of La Porte, will be borne by the Concessionaire and such equipment will be his
property. At the terminatfon of the contract, the Concessionaire may remove his own
equipment, but will be responsible for leaving the premises in their original state of re-
pair, less mftmal wear and tear, or replace or reimburse the City for any damaged or
missing equipment assigned to him. This will be done to the satisfaction of the City of
La P0I1e, prior to releasing the Concessionaire of his sureties from obligation,
City of La Porte shall furnish a stand location, with utility connections as now exist.
Concessionaire shall be responsible for drawing any and all additional connections to the
inner area of the stand and making all equipment connections to the inner area of the
stand and making all equipment connections in accordance with all building and health
codes, laws, statutes and ordinances.
13. UTILITIES: The City of La Porte will pay normal utility bills in connection with con-
cession operation, excluding telephone service.
14. ITEMS OF SALE: Price, size and content of all that is sold will be approved in writing
by the City of La P0I1e. Chewing gum and tobacco products shall NOT be sold. All
drinks must be served in plastic or paper cups.
Initial pricing shall be in accordance with Exhibit "Price List" attached hereto. The Con-
cessionaire may add, delete or make price adjustments from time to time, provided each
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RFP # 0041
item and price thereof is approved, in writing, by the City of La Porte.
No food, ice or other items may be cooked, prepared or bagged for sale or use at any fa-
cility other than City of La Porte owned facilities.
15. PRODUCT QUALITY AND BRAND. Quality of all products is to be of prime consid-
eration in the operation of this concession contract. Food, once heated, shall not be re-
heated at a later time and offered for sale to the public. A system shall be employed in
order to maintain properly sealed products and ensure product freshness at the time it is
served,
16. JANITORIAL SERVICE AND CLEANING. Concessionaire must pass Health Depart-
ment Inspections. Equally binding upon the Concessionaire are inspections conducted
by the Marketing Coordinator of the City of La Porte, of the facilities as deemed neces-
sary or desirable. The concession stand must be cleaned at the close of each event in
order to prevent the accumulation and spoilage of food residue. Each concession area
must be thoroughly cleaned and sanitized within 24 hours of operation when not in con-
tinuous use, Any and all tables used for any reason must also be cleaned after each
event.
17. UNIFORMS. All employees of the Concessionaire shall be neally attired in clean,
matching uniforms, as approved by the Marketing Coordinator of the City of La Porte,
identifying the Concessionaire. Hawkers shall prominently and professionally display
the prices of the products being sold. Each employee shall be properly identified with
name and/or numbered badge.
18. SIGNS. The number, size, and working location of advertising signs, except for identifi-
cation signs within the concession areas, must be approved by the Marketing Coordinator
of the City of La Porte. .
19. BID FORM AND ACCOUNTING. Proposal shall be based on a payment to the City of
a percentage of the gross receipts exclusive of sales tax.
Further, no proposal will be considered unless it is accompanied by: a resume of experi-
ence in the field contemplated; a liSt of any proposed additional equipment to be installed
and business credit references, all to be filed on accompanying forms,
The Concessionaire shall remit commissions due the City no later than ten (10) days fol-
lowing the month for which sales have been made along with reports of gross sales. Any
payments postmarked after the specified date' will incur a late charge of J 0% of the bal-
ance due. After payment is one month late, balance due will increase by J % each month
unLil paid in full. If, at any time, payments are 90 or more days in arrears, the City will
seek payment under the provisions of the contract bond,
The Concessionaire shall maintain accounting records in a manner acceptable to the Di-
rector of Finance, of the City of La Porte, These records shall in~lude, but are nOllim-
Hed to, separate records of all sales and purchases made by and for the concession opera-
tion.
The City reserves the right to make periodic audits of the accounts and inspections of the
Concessionaire's operations,
20, CONCESSIONAIRE'S LOCATIONS. The City will furnish to the Concessionaire the
sole and exclusive right to the use of sales stands and storage space designated in the
Pavilion during the term of the concession granted. The Concessionaire shall have all
rights of necessary ingress and egress to these storage spaces and sales stands.
21. RIGHT OF ENTRY: The City, its officers, agents and representatives shall be permitted
to enter the said premises at all reasonable times of the day to examine the same or to
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RFP # 0041
make such repairs therein as shall be deemed requisite by the City and may enter upon
and pass through and over said premises for the purpose of showing same to persons
wishing to lease the property. Keys allowing entry will be provided by the City of La
Porte.
22. DELIVERIES: Deliveries of all supplies, goods, wares, merchandise and equipment
shall be made at the service entrance of said building and a person under hire by the Con-
cessionaire will be on hand during deliveries to receive materials.
23. VENDING MACHINES: Placement and location of vending machines shall be made
with prior approval of the Marketing Coordinator of the City of La Porte.
24. CONCESSION EQUIPMENT: Each offeror shall submit, with his bid, a complete list
of equipment he proposes to furnish for the concession operation, stating brand names,
model numbers, quantity, year of manufacture and other identifying data to properly out-
line his proposed operation layout.
25, INST ALL A TION OF EQUIPMENT: Successful offeror shall have completed installa-
tion of all his equipment and be completely operational no later than May 21, 1992.
26. CONCESSION EMPLOYEES: Concessionaire's employees at the Pavilion shall have
working knowledge of preparing and serving food to the public, no less than two (2)
years of bartending experience and shall remain current with the T.A.B.C. Seller Train-
ing Certification. The City of La P0l1e shall have access to references and verification of
certification of all prospective concessions employees. A concessions manager, em-
ployed by Concessionaire shall be provided in a local office during normal business
hours to serve clients and potential clients of the Pavilion. All employees shall conduct
themselves professionally both in appearance and actions to the satisfac!ion of the Mar-
keting Coordinator of the City of La Porte,
27, GENERAL: The services callec;l for in this proposal shall be offered to the public at all
Limes that a reasonable d~mand for sU,ch services exists, during such times which the Syl-
van Beach Pavilion is open to the public and subject to the requirements set forth in the
proposal.
Where approval or directi'on of the City is required for items, prices or procedures not
specifically covered herein, such approval or direction will normally be made by the
City. Special promotional price or service changes will be allowed only following ap-
proval of the City of La Porte.
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RFP # 0041
STATEMENT OF OFFEROR'S QUALIFICATIONS
FINANCIAL STATEMENTS
Please attach to this application blank your most recent financial statement and a statement
of the amount of credit available to you with name of bank or banks,
OPERATING EXPERIENCE
Please state herein the number of years and the type of business operating experience which you
feel qualifies your company to operate the concessions referred to in the instructions to
applicants.
TYPE OF OPERATION
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YEARS
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LOCATION
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PRESENT AUDITORIUM OPERATIONS
Please list below, the auditoriums, coliseum arenas and other buildings where your company is
presently providing concession operations and how long you have been conducting such
operations.
LOCATION
11 IA-
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YEARS
LOCATION
YEARS
LOCATION
YEARS
PRESENT OTHER OPERATIONS
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Please indicate below what other types of business operations you company is now operating,
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and the location of each operation you feel pa11icularly qualifies your company to perform the
aforementioned concession operations for the Sylvan Beach Pavilion.
LOCATION
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1
YEARS
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YEARS
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LOCATION
YEARS
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RFP # 0041
GROSS REVENUES
Please indicate below the approximate average gross annual revenues which you have developed
in the pas l-Jl1~e calendar years from food and drink business operations.
$ . (p{f/ IJIl. g)
REFERENCES
Please indicate here, the names and addresses of persons in management capacity for Lessor of
any of your operations for reference and recommendation.
NAME ADDRESS
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NAME ,'lJ ADDRESS OPERATION
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OPERATION
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NAME ADDRESS
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OPERATION
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OPERATION
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OTHER QUALIFICATIONS
Please indicate on attached sheets any other qualifications which you feel particularly qualifies
your company to perform the concession operations set forth in the InstrucLions to Offerors,
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The above records of this firm's operaLions are cerLified Lo be Lrue and correct by the
signer of this application. .
NAME OF FIRM SUBMITT
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SIGNATURE:
TITLE:
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FOOD
Hot Dog
Chili Dog
Other types of sandwiches
Frito Pie
Pickle
Popcorn (320z.)
Popcorn (.85 oz.)
Chips
Pretzels
Nachos
Candy
Peanuts
BEVERAGES:
Beer (160z.)
Wine
Soft drinks (160z,)
(240z,)
(320z,)
Other beverages ~ -, "e.... C-Q(:) le r
SET UPS:
Ice (160z. bucket)
(32 oz. bucket)
, (53 oz. bucket)
Paper cups
eJfee
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RFP # 0041
EXHIBIT "PRICE LIST"
PRICE
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STATE OF TEXAS S
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COUNTY OF HARRIS S
INDEMNIFICATION AGREEMENT
THIS AGREEMENT, made this 3D day of n^~ , 1992, by the
undersigned Contractor. (hereinafter refe*td" to as "Indemnitor").
in favor of the City of La Porte, a municipal corporation, and
Harris County, Texas, and their respective legal representatives,
landlords, agents, employees, officers, and directors, (herein
collectively called the "Indemnitees").
In consideration of Indemnitees permitting the Indemnitor or its
agents, employees and representative (including subcontractors) to
enter upon and to place, construct or service equipment or material
upon premises owned or controlled by Indemnitees, and/or to use any
equipment owned or controlled by Indemnitees, Indemnitor agrees as
follows:
1.0 INDEMNITY. To the fullest ~xtent permitted by applicable law,
Indemnitor shall and does hereby agree to indemnify, protect, hold
harmless and defend the City of La Porte, a municipal corporation,
and Harris County, Texas, and their respective legal representa-
tives, landlords, agents, employees, officers, and directors,
(herein collectively called the "Indemnitees") from and against all
claims, demands, damages, injuries, losses, liens, causes of action,
suits, judgments, liabilities, costs, and expenses, including court
costs and attorney's fees, of any nature, kind or description
(including without limitation, claims for injuries to 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 Indemnitor, 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 Indemnitor, its
employees, agents and representatives, (including subcontractors on
Indemnitees premises, (b) the condition of the Indemnitees premises,
the adjoining land, or any of the driveways, streets, or alleys used
in connection with the services of Indemnitor, (c) the use of any
equipment by Indemnitor on Indemnitees premises, whether belonging
to Indemnitor, Indemnitees, or otherwise, or the condition of said
equipment, or (d) any act or omission of Indemnitor, any
subcontractor, any of their respective employees, agents, servants,
officers, directors, partners, or anyone directly or indirectly
employed by Indemnitor or any subco,ntractor, or anyone that either
Indemnitor or any subcontractor controls or exercises control over
(herein collectively called the "Liabilities"). THE OBLIGATIONS OF
INDEMNITOR 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.
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Indemnitor shall promptly advise Indemnitees in writing of any
action, administrative or legal proceeding or investigation as to
which this indemnification may apply, and Indemnitor, at
Indemnitor'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
Indemnitor to fully perform in accordance with this Indemnification
Agreement, Indemnitees, at its option, and without relieving
Indemnitor of its obligations hereunder, may so perform, but all
costs and expenses so incurred by Indemnitees in that event shall be
reimbursed by Indemnitor to Indemnitees, together with interest in
the same from the date any such expense was paid by Indemnitees
until reimbursed by Indemnitor, 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 eighteen
percent (18%) 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 employees' ~benefit acts. It is agreed with respect to any
legal limitations now or hereafter in effect and affecting the
validity or enforceability of the indemnification obligation under
this Section 1.0, 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 into conformity with the requirements of such
.' limitations, and as so modified, the indemnification obligation
shall continue in full force and effect.
2.0 INDEMNITOR'S INSURANCE. Indemnitor shall, at its sole cost and
expense, maintain in effect at all times insurance coverages with
limits not less than those set forth below in the Schedule of
Insurance Coverages with insurance companies licensed to do business
in the State of Texas (with a Best's rating of no less than A) and
acceptable to Indemriitees and under forms of policies satisfactory
to Indemnitees. All such policies shall be written on an occurrence
(not claims made) basis.
Schedule of Insurance Coverages
Coverage
Minimum Amounts ,and Limits
(A) Worker's compensation
Worker's Compensation
Employer's Liability
Statutory Limits
$500,000
The policy shall include a Waiver of Subrogation in favor of the
Indemnitees (as defined in Section 1.0 of this Agreement).
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(B) Commercial General Liability
Bodily Injury
(Occurrence Basis)
$1,000,000 each occurrence, or
equivalent, subject to a
$1,000,000 aggregate applicable
to the Project.
Property Damage
(Occurrence Basis)
$100,000 each occurrence, or
equivalent, subject to a
$1,000,000 aggregate applicable
to the Project.
This policy shall be on a form acceptable to Indemnitees, endorsed
to include the Indemnitees as additional insureds, contain a Waiver
of Subrogation in favor of the Indemnitees, and shall include the
following coverages:
( 1 )
( 2 )
( 3 )
( 4 )
( 5 )
( 6 )
Premises/Operations
Independent Contractors
Liquor and Product Liability
Broad Form Contractual Liability
but not limited to, the indemnity
Broad Form Property Damage
Personal Injury Liability with
exclusions removed
specifically in support of,
provisions contained herein
employee and
contractual
(C) Comprehensive Automobile Liability
Bodily Injury
Property Damage
$500,000 combined single limit
$500,000 combined single limit
2.01 Indemnitor)s Equipment Policy: Any such insurance policy
covering Indemnitor's or its subcontractors' equipment against loss
by physical damage shall include an endorsement waiving the
insurer's right of subrogation against the Indemnitees. Such
insurance shall be Indemnitor's and its subcontractors' sole and
complete means of recovery for any such loss. Should Indemnitor or
its subcontractors choose to self insure this risk, it is expressly
agreed that the Indemnitor and its subcontractors hereby waive any
claim for .damage or loss to said equipment in favor of the
Indemnitees.
2.02 Evidence of Insurance: Evidence of the insurance coverage
required to be maintained by the Indemnitor under this Agreement,
represented by Certificates of Insurance issued by the insurance
carrier, must be furnished to the Indemnitees prior to Indemnitor
commencing the Work. Such Certificates of Insurance shall specify
the additional insured status required by this Agreement, waivers of
subrogation, that all broad form general liability coverages are
provided and other requirements set forth in this Agreement, and
shall state that the Indemnitees will be notified in writing thirty
(30) days prior to the cancellation, change, reduction in coverage,
or non-renewal of such insurance at Indemnitees' address set forth
on the first page of the Agreement. Indemnitor shall provide to
Indemnitees a certified copy of any and all applicable insurance
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policies upon request of Indemnitees. Renewal policies, if
necessary, shall be delivered to Indemnitees at least ten (10) days
prior to the expiration of the previous policy. None of the
requirements contained herein as to types, limits or Indemnitees'
approval of insurance coverage to be maintained by Indemnitor is
intended to and shall not in any manner limit, qualify or quantify
the liabilities and obligations assumed by Indemnitor under the
Contract Documents or otherwise provided by law. In the event of
any failure by Indemnitor to comply with the provisions of this
Agreement, Indemnitees may, without in any way compromising or
waiving any right or remedy at law or in equity, on notice to
Indemn~tor, purchase such insurance, at Indemnitor's expense,
provided that Indemnitees shall have no obligation to do so and if
Indemnitees shall do so, Indemnitor shall not be relieved of or
.excused from the obligation to obtain and maintain such insurance
amounts and coverages. '
2.03 Subcontractor's Insurance: Insurance similar to that required
of Indemnitor shall be provided by all subcontractors (or provided
by Indemnitor on behalf of subcontractors) to cover their operations
performed under the Contract Documents. Indemnitor shall be held
responsible for any modification in these insurance requirements as
they apply to subcontractors. Indemnitor shall maintain
Certificates of Insurance from all subcontractors, enumerating,
among other things, the waivers in favor of, and insured status of,
the Indemnitees, as required herein, and make them available to
Indemnitees upon request. The term "subcontractor(s)" for the
purposes of this Agreement shall include subcontractors of any tier.
2.04 Release and Waiver: Indemnitor hereby releases, and shall
cause its subcontractors to release, Indemnitees and the other
Indemnitees fro~ any and all claims. or causes of action whatsoever
which Indemnitor and/or its subcontractors might otherwise now or
hereafter possess resulting in or from or in any way connected with
any loss covered or which should have been covered by insurance,
including the deductible portion thereof, maintained and/or required
to be maintained by Indemnitor and/or its subcontractors pursuant to
the Contract Documents. Indemnitees hereby waives all claims
against Indemnitor for damages caused by fire or other perils to the
extent o~ the insurance proceeds which Indemnitees is entitled to
retain from the policies described in this Agreement.
3.0 COMPLIANCE WITH LAWS. Indemnitor, in performing any labor or
using any equipment of Indemnitees premises, as contemplated in this
Agreement, will fully comply and ensure that its agents, employees,
representatives and subcontractors conduct their activities on
Indemnitees premises in a manner which will fully comply with all
safety and health standards established by any applicable federal,
state or municipal statute, regulations or ordinance, including,
without limitation, the federal Occupational Safety and Health Act,
as amended.
4.0 COSTS. Should it become necessary for Indemnitees to incur any
cost or expenses, whether direct or indirect, including, but not
limited to, attorney's fees, investigator's fees, collection costs,
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or court costs, in connection with any claim or demand for which
indemnification is provided by this Agreement, or in connection with
any attempt to recover losses incurred on such claims or demands, or
in connection with the enforcement of this Agreement, Indemnitor
agrees to fully reimburse Indemnitees for such costs and expenses.
5.0 SEVERABILITY. Any provision, covenant or agreement contained
in this Agreement which is found to be prohibited by law or void or
unenforceable shall not invalidate the remainder of this Agreement.
6.0 TERM OF AGREEMENT. This Agreement shall remain in full force
and effect contemporaneously with City of La Porte RFP i 0041,
contract for food, beverage and concession items at the City of La
Porte Sylvan Beach Pavilion, and any extensions thereof, and shall
remain effective as to losses, liabilities and expenses, including
claims therefor, arising prior to the date of expiration of said
contract, and any extensions thereof.
INDEMNITOR
(Contractor )"
INDEMNITEES
City of La Porte
By:G<~ T \k~~
Robert T. Herrera
City Manager
,.
Harris County, Texas