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HomeMy WebLinkAboutO-2010-3264 concession operations at the Sylvan Beach Fishing Pier/agreement Linda Darnell G REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: Julv 26. 20 I 0 Appropriation Requested By: Stephen L. Barr Source of Funds: Department: Parks & Recreation Acc 't Number: Report: _Resolution: _Ordinance: -X- Amount Budgeted: N/A Exhibits: Ordinance Amount Requested: N/A Exhibits: Agreement Budl1eted Item: YES NO Exhibits: SUMMARY & RECOMMENDATION The City of La Porte through the Parks & Recreation Department has worked with Linda Witt and the Witt family to provide concession services at the Sylvan Beach Fishing Pier since its opening in January 1995. As you may recall, the Sylvan Beach Fishing Pier was destroyed by Hurricane Ike in September 2008. The current concession contract with Ms. Witt expired on October 31, 2009 but was not renewed at that time because the pier was inoperative. Now the pier is ready to be operated again. Since the inception of their contract the Witt family has provided reasonable service for patrons of the pIer. The new agreement before you is for a one (1) year term, with a three (3), one (1) year extensions. The concession operation with Linda Witt is in conjunction with the Harris County Agreement for operation of the Bait Camp at Sylvan Beach. Under terms of the Agreement, Ms. Witt pays electrical costs for the pier, and also pays for the Texas General Land Office Coastal Lease fee out of their 1/3 share of the revenues generated. As before, the other 2/3 shares of revenue generation (1/3 City and 1/3 County shares) will go into the escrow fund for repair of catastrophic damage to the pier, and for Sylvan Beach Park improvements. The pier escrow fund has been depleted by the restoration project. It is operated through the City's agreement with Harris County and is adjusted annually for inflation. Once the escrow amount has been reached, at some point in the future, the remainder will be set aside for future improvements for Sylvan Beach. Except for the length of term, the base concession agreement proposed has no major changes from the current Agreement. Staff recommends approval of the proposed Concession Agreement. Action ReQuired bv Council: Consider approval of an Ordinance authorizing the City Manager to execute an Agreement with amell Witt for concession operations at the Sylvan Beach Fishing Pier. Ron Bottoms, City Manager 7 4l /to Date 9ytva1 EeOOl pa- Gn:Ession Pqrwrert Clrd"narce ORDINANCE NO 10 - &;2. (p t.{ AN ORDINANCE APPROVING AND AUTHORIZING A CONCESSION AGREEMENT BElWEEN THE CITY OF LA PORTE AND LINDA DARNELL WITT TO OPERATE AND MANAGE THE SYLVAN BEACH PARK PIERi AUTHORIZING THE CITY MANAGER TO EXECUTE THE SAID CONCESSION AGREEMENTi MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECTi FINDING COMPLIANCE WITH THE OPEN MEETINGS LAWi PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE cm COUNCIL OF THE cm 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 concession 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 Will 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 suffjc~ent written notice of the date, hour, place and subject of Sylvan Beach Pier Concession Agreement Ordinance 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 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 ~fI? day of July, 2010. CITY OF LA PORTE By: Q;t;~ Daryl Leonard, Mayor Pro Tern ATTEST: LfnfUdt# r1dtI Martha Gillett, City Secretary AP;;::7~ Knox W. Askins, City Attorney Sylvan Beach Pier Concession Agreement Ordinance ORDINANCE NO 10 - 3d & vi 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 THE 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 concession 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 Will 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 Sylvan Beach Pier Concession Agreement Ordinance 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 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~ day of July, 2010. CITY OF LA PORTE By: ATIEST: ~ctr~ APPROVED AS TO FORM: m~k)~ Knox W. Askins, City Attorney CONCESSION AGREEMENT THE STATE OF TEXAS ~ ~ COUNTY OF HARRIS ~ 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". W!!NESSE!H 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, 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. The term of the contract shall be for one (1) year beginning August 1, 2010, and ending (unless sooner ended in accordance with the provisions hereof) July 31,2011, with the option for the City to renew for a total of three (3) additional one year periods, 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 Pier Concession Agreement, REVISED, 0710 Concession Agreement, page 1 of 9 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 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, Pier Concession Agreement, REVISED, 0710 Concession Agreement, page 2 of 9 & 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. (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. Pier Concession Agreement, REVISED, 0710 Concession Agreement, page 3 of 9 U) 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. Pier Concession Agreement, REVISED, 0710 Concession Agreement, page 4 of 9 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 "Indemniteesn) 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 Concessionaire or any Subcontractor controls or Pier Concession Agreement, REVISED, 0710 Concession Agreement, page 5 of 9 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, atthe rate often 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 Parks & Recreation Department 1322 S. Broadway La Porte, Texas 77571 Attention: Director of Parks and Recreation Pier Concession Agreement, REVISED, 0710 Concession Agreement, page 6 of 9 THE CONCESSIONAIRE: Ms. Linda Darnell Witt 422 South Blackwell Street La Porte, Texas 77571 HARRIS COUNTY: The Honorable Sylvia Garcia, 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 April 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 April 12, 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 rights 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. Pier Concession Agreement, REVISED, 0710 Concession Agreement, page 7 of 9 IN WITNESS WHE~f, thecrurt~s hereto have executed this Agreement in multiple copies on this the~y of ,2010 to become effective as provided above. "CITY" CITY OF LA PORTE A al corporation BY: j(Cf -e/-tl,t I ATTEST: .. APO~tV KNOX W. ASKI NS CITY ATTORNEY BY: TITLE: Concessionaire Pier Concession Agreement, REVISED, 0710 Concession Agreement, page 8 of 9 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. Pier Concession Agreement, REVISED, 0710 Concession Agreement, page 9 of 9