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Home My WebLink AboutRES 1990-005 CITY OF GRAPEVINE, TEXAS RE50LUTION NO. 90-05 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS DECLARING THE CONCESSION AGREEMENT BETWEEN THE CITY OF GRAPEVINE, TEXAS AND AUSTIN RANCH ENTERPRISES, INC. WHICH WAS APPROVED BY THE CITY COUNCIL BY RESOLUTION NO. 88-48 ON DECEMBER 6, -i-9'$'9-; �`�$� ��" NULL AND VOID AND OF NO FORCE AND EFFECT; �p�'I�ja RESERVING THE RIGHT TO TAKE ANY AND ALL NECESSARY LEGAL ACTION IN THE EVENT AN � IMPROPER OR ILLEGAL USE WAS MADE UNDER THE CONCESSION AGREEMENT; DIRECTING THE CITY MANAGER OR HIS DESIGNEE TO SEND A COPY OF THIS RESOLUTION TO THE U.S. ARMY CORPS OF ENGINEERS; PROVIDING A SEVERABILITY CLAUSE; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Grapevine, Texas (the "City" ) approved a concession agreement (the "Concession Agreement" ) , a copy of which is attached hereto as Exhibit "A" , to be entered into by and between the City and Austin Ranch Enterprises, Inc. ( "Austin Ranch" ) upon the adoption of Resolution No. 88-48 on December 6, 1988; and WHEREAS, the City forwarded the Concession Agreement to Austin Ranch for execution following the adoption of Resolution No. 88-48; and WHEREAS, Austin Ranch has declined to enter into the Concession Agreement with the City as evidenced by its letter ��- � attached hereto as Exhibit "B" ; and WHEREAS, Austin Ranch contends it has never used nor `�" attempted to use the property subject to the Concession Agreement; and WHEREAS, the City Council desires to declare the Concession Agreement null and void and of no force and effect. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1. That all of the above premises are found to be true and correct and are incorporated into the bodg of this resolution as if copied in their entirety. Section 2 . That the Concession Agreement attached hereto as Exhibit "A" is hereby declared null and void for all purposes and of no force and effect. Section 3. The City reserves the right to take any and all necessary legal action in the event it is discovered any improper or illegal use was made of the property subject to the Concession Agreement. �..., Section 4 . The City Manager, or his designee, is hereby authorized and directed to send a copy of this resolution to the U.S. Army Corps of Engineers . Section 5 . If any section, article, paragraph, sentence, clause, phrase or word in this resolution, or application thereto any person or circumstances is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this resolution; and the City Council hereby declares it would have passed such remaining portions of the resolution despite such invalidity, which remaining portions shall remain in full force and effect. 0347L Section 6 . That this resolution shall take effect from and after its passage and approval by the City Council. PASSED AND APPROVED by the City Council of the City of Grapevine, Texas on this the 6th day of Februarv , 1990 . � �,,, Mayor, City of Grapevine, Texas � ATTEST: City Secretary - City of Grapevine, Texas [SEAL] APPROVED AS TO FORM: City Attorney City of Grapevine, Texas �� :-� � - 2 - 0347L E�HIBIT "A" TO RESOLUTION NO. 90-05 . ar CONCESSION AGREEMENT � STATE OF TEXAS �rr COUNTY OF TARRANT WHEREAS, the City of Grapevine acting by and through its duly authorized Mayor, entered into a lease granted to the City by the Secretary of the Army, identified as Lease No. DACW 63-1-76-0412 for a period of 25 years, commencing on August 1, 1975 and ending July 31, 2000, to use and occupy an area of Tarrant County, Texas, Grapevine Lake Project, for public park and recreational purposes; and WHEREAS, the lease authorizes the City of Grapevine, hereinafter referred to as "the City", to enter into concession agreements with third parties providing needed services to the public, subject to the approval of the District Enqineer, U.S. Army Corps of Engineers, Fort Worth District, hereinafter referred to as the "District Engineer". e�.:�; � NOW THEREFORE, For and in consideration of the premises and covenants hereinafter set forth and in accordance with the above quoted authority, the City, party of the first part, acting by and through its duly authorized Mayor, hereby grants to AUSTIN RANCH ENTERPRISES, INC., party of the second part, hereinafter referred to as "concessionaire", authority to operate commercial activities on a tract of land more particularly outlined as set out in Exhibit "A", attached hereto, and made a part hereof, for a term of 3 years, commencing on the 6th day of December, 1988 and ending on the 6th day of December, 1991, and hereafter at such other site or sites under such teins and conditions, including compensation amounts, payable to the City, as may be agreed upon in the future between the City and the �...,, concessionaire, and approved in writiny by the District �ngineer. � �. It is expressly understood and agreed that this agreement is �� subject to all the terms, conditions, privileges and obligations incorporated in the lease granted to the City by the Secretary of �� the Army under Lease No. DACW 63-1-76-0412 and such terms are as binding on the concessionaire as if they were fully set forth I herein. This agreement is further granted subject to the following conditions: 1 ', That the concessionaire shall pay to the City compensation ', for the concession privileges herein authorized in a sum equal to I $1,000.00 per year, payable each year on or before November 1. The City and Corps of Enqineers shall have the right to perform audits of the concessionaire's records and accounts. The concessionaire shall make a financial report to the City for each year of operation, beginning when the improvements of the lease area are complete and the business is open to the public. The concessionaire shall also pay to the City on demand, any �� sum that may have to be expended after the expiration, revocation, or termination of this agreement in restoring the �� premises to as good of order and condition as that existing upon the date of commencement of the terms of this aqreement, damaqe beyond the control of the concessionaire and due to normal wear and tear excepted. - 2 The concessionaire is authorized to conduct commercial activities in the leased area that have been approved by the � - City and approved in writing by the District Engineer. The area shall be occupied and used solely for the conduct of business in connection with the recreational development of the area for the general public. Business shall include and is limited to the following: rental and fee usage of the equestrian trails by the public, and the sale of food and beverages at the cookout �;� stations located on the trail. �� -2- , � �,. 3 That said business shall be initiated in a manner � satisfactory to the City commencing on the effective date of this instrument, and thereafter the concessionaire shall conduct such permitted activities as the City shall at any time specify. However, it is expressly agreed that no sales with any element of chance shall be made on the premises. 4 There shall be a no time any permanent or temporary buildings allowed on the premises. Temporary cookout stations and temporary corrals will be allowed. There shall be no overnight quartering of horses allowed at any time. The premises shall not be used for grazing of livestock. An animal retention fence shall be located according to the plans, and necessary cattleguards and/or gates shall be installed. ",�,.:� 5 All prices to be charged for merchandise and rented � equipment, entrance fees or services shall be subject to the approval of the City and the District Engineer and a schedule of such prices shall be submitted to the City for its approval prior to the commencement of operations, and prior to any changes made after operations begin. The concessionaire shall, at all times, keep a �chedule of such prices posted in a conspicuous place on the occupied premises. � 6 The concessionaire shall comply with all Federal laws and regulations and with all the laws, ordinances, and regulations of the State and_ County wherein the demised premises are located with regard to construction, sanitation, licenses or permits to do business, and all other matters. The City or the District �"`°"�' Engineer, upon finding that a violation exists that constitutes a health or safety hazard, may suspend the use of the operation or facility until such violation is corrected. -3- � 7 �� That any and all taxes which may be lawfully imposed by the State or its political subdivisions upon the property or business of the concessionaire on the said premises shall be paid promptly '"""� I by the concessionaire. 8 That the concessionaire shall not sell, store, or dispense, or permit the sale, storage, or dispensing on the said premises of any alcoholic beverages, including beer, unless prior written approval by the District Engineer has been obtained. The concessionaire shall not install or permit to be installed or operated any devices or conduct any activities thereon which, in the opinion of the City are contrary to go'od morals or are otherwise objectionable. 9 That the concessionaire shall not permit. or suffer any �� offensive use of the said premises, or the commission of waste thereon. The concessionaire shall keep the area in good order �� and in a clean, sanitary, and safe condition, and shall at all times maintain all structures and equipment in a condition satisfactory to the City and the District Engineer. The concessionaire shall be responsible for the removal of all refuse, litter, debris, etc. , that may accumulate in the concession area from any cause or for any reason. Such cleaning of the area will conform to standards of frequency and quality which are established by the Corps of Engineers and the City of Grapevine. The Concessionaire shall permit no loud music or radios on the premises. The Concessionaire shall maintain an adequate staff to operate the concession and who shall be properly supervised. The employees of the Concessionaire shall serve the patrons of the Concession promptly and courteously. �� -4- . � 10 � That the concessionaire shall not transfer, sublease, or assign this agreement or any privileges hereunder, nor any � interest whatsoever in connection with this agreement without permission in writing from said City and the District Engineer. It is further understood and agreed that this contract is and shall be deemed to be a personal contract by and between the City of Grapevine and AUSTIN RANCH ENTERPRISES, INC. , Concessionaire, and the benefits and obligations hereof shall not inure to the benefit of Concessionaire's heirs, personal representatives or assigns, and in the event of death of Concessionaire during the term of this contract, said contract shall terminate automatically as if the term thereof had expired. 11 That no attempt shall be made by the concessionaire forbid the full and free use by the public of the water areas of the � reservoir or the public use areas that may be developed upon the said premises in accordance with the purpose and intent of the � Act of Congress approved 22 December, 1944, as amended. 12 That if the display of lights and signals on any work hereby authorized is not otherwise provided for by law, such lights and signals as may be prescribed by the District Engineer shall be installed and maintained at the expense of the concessionaire. There shall be no advertising signs or advertising matter displayed either inside � or outside of the portions of the structure occupied by Concessionaire without prior approval of the City. 13 That this agreement may be terminated by either party at any ,R,.,� time by giving forty-five (45) day� notice in writing to the other party. Termination may be made by either, with or without cause. �w+ � _ -5- . � 14 �� That the use and occupation of the premises shall be subject to the general supervision and approval of the City and to such rules and regulations as may be prescribed by it from time to `""'� time. The City shall have a representative perform regular compliance inspections of all subleased premises and shall prescribe corrective action for all non-compliance. The District Engineer also reserves the right to perform periodic inspections of all concession premises and to require the City to notify concessionaires of deficiencies and prescribe corrective measures. This concession agreement may be terminated by the City or the District Engineer upon failure of the concessionaire to correct said deficiencies, within a reasonable time as ' determined by the City and the District Engineer. 15 That the right is hereby reserved to the City and to the United States, its officers, agents and employees to enter upon � the said premises at any time for inspection and for any purpose necessary or convenient in connection with government work, to +�� remove material, except property of the concessionaire required or necessary for such work, to flood the premises whenever , necessary, to manipulate the level of the reservoir or pool in ', any manner whatsoever, and to draw the reservoir or pool to any extent at any time, and the concessionaire shall have no claim for damages of any character on account thereof against the City or the United States or any officer, agent or employee .thereof. 16 ', That the right is hereby reserved to the county and state and the United States, its officers, agent, and employees to construct or to permit the construction of facilities suitable for communication, electrical distribution or transmission, water supply, sewage disposal, access roads, and similar purposes on � the premises, and the concessionaire shall have no claim for compensation or damages of any character on account thereof. .�r -6- , � � � 14 If the concessionaire should default in the payment of any installment of the rent or of any taxes or assessments levied on 1Y�rr the property or of any other sum provided for usnder this Contract, as the same becomes due and payable, or shonld any execution be issued against concessionaire, baatkruptcy proceedings as begun by or against concessionaire, or an assignment be made by concessionaire for the ber�efit of creditors, or should the premises be placed in the possession of a receiver, then and in any such case the entire rent for the balance of the term shall, at the option of the City, at once become due and payable as if by the terms of this commtract it were all payable in advance. The concessionaire hereby gives to the City a lien upon all of its property now or at any time hereafter placed in and upon the said premises, to secure the prompt payment of the amounts herein stipulated to be paid for the use of said premsises, all �`"" exemptions of such property or any of it being hereby waiwed. � 18 That the concessionaire shall be responsible for any damage that may be caused to property of the City or government property by the activities of the concessionaire under this agreement and shall exercise due diligence in the protection of all improvements, and other property of the City or of t�e United States which may be located on the said premises against fire or damage from any an all other causes. 19 That neither the City nor the United States shall be responsible for damages to property or injuries to persons which may arise from or be incident to thc use and occupation of the said premises, nor for damaqes to the property of the ,,�� concessionaire, or for injuries to the person of the concessionaire, or for damages to the property or injuries to the ,� person of the concessionaire's officers, agents, servants, or -7- ' r employees or others who may be on said premises at their �� invitation or the invitation of any one of them, arising from or incident to the flooding of the said premises by the Government w�i or flooding from any other cause, or arising from or incident to any other Governmental activity, and the concessionaire shall hold the City and the United States harmless from any and all such claims. 20 IThat on or before the date of expiration of this agreement I� of its termination by either party, the concessionaire shall at I the concessionaire's cost vacate the premises, remove the property of the concessionaire therefrom, and restore the premises to as good order and condition as that existing upon the date of commencement of the terms of this agreement, damages beyond the control of the concessionaire and due to fair wear and tear excepted. If, however, this agreement is revoked, the concessionaire shall vacate the premises, remove the property of �III►� the concessionaire therefrom, and restore the premises to the condition aforesaid within such time as the City may designate. �"� In either event, if the concessionaire shall fail or neglect to remove the property of the concessionaire and so restore the premises, then, at the option of the City, the property of the concessionaire shall either become the property of the City, without compensation therefore, or the City may cause it to be removed and the premises to be restored at the expense of the concessionaire, and no claim for damaqes against the City or its officers or agents shall be created by or made on account of each removal and restoration work. 21 Notice shall be deemed to have been given if and H�hen enclosed in a properly sealed envelope and addressed and deposited postage prepaid and certified in a post office or �,� branch post office regularly maintained by the United States ' wr.l� _�_ • ' � . � Government and addressed to the City at P.O. Box 729, Grapevine, � Texas 76051, and to the concessionaire at P.O. Box 638, Grapevine, Texas 76051. i�rr 22 That the concessionaire will fully indemnify and save whole and harmless the City and Corps of Engineers from all claims or cause of action against it that may arise in connection with the maintenance and operation of the entire premises, which include all areas included in or adjacent to and used in connection with operation of the above described operation located an the Grapevine Lake Project, and that prior to commencing operations under this agreement, the concessionaire will obtain from a reputable insurance company, acceptable to the City and carry liability or indemnity insurance so indemnifying the City and Corps of Engineers, providing for limits not less that $1,000,000 per person in any one claim, and an aggregate limit of $3,000,000 �,,q for any number of persons or claims arising from any one accident with respect to bodily injuries or death resulting therefrom, � and/or damage to property suffered by any person or persons resulting from the operations of the concessionaire under the terms of this agreement. It is further agreed that the City does not guarantee police protection and will not be liable for any loss and damage . sustained by concessionaire as a result of criminal activity on the premises. Concessionaire shall also provide evidence of Worker's Compensation insurance 'for all employees working in the concession area. 23 That the storage, display or sale of fireworks or explosives on the premises is hereby prohibited. � �r . _ -9- ' � 2 4 �,� That the lessee shall not discriminate against any person or persons because of race, creed, color, sex, age or national �ll� origin in the conduct of operations on the leased premises. 25 That in the event the concessionaire shall default in performance of any covenant or agreement contained herein, the City shall notify the concessionaire of such default and in the ' event this default is not cured within ten (10) days, this agreement may be terminated by the City. 26 That the Director Parks and Recreation is'designated by the City Manager as the City's agent responsible for administering the Contract on behalf of the City. 2 7 �� That in the month of September during each year to the terrn �� of this contract, the parties hereto mutually agree the review the terms and conditions of this contract, and the concessionaire's record of operations. In the event that the concessionaire's operation is satisfactory to the City Manager or his representative, Concessionaire shall be notified by letter and shall continue in operation in the same manner. The City reserves the right of recommend changes in the concessionaire's operating procedure hereunder so as to effect the intents and purposes of this contract. � 28 The Concessionaire shall maintain all equipment including kitchen equipment located in the Concession, at its sole cost and expense whether owned by the Concessionaire or the City. This constitutes the entire agreement between the parties, �� and all previous agreements, if any, are either merged herein or rescinded. �� -10- . . r EXECUTED on this the day of , 1989. � APPROVED: �`rr' William D. Tate, Mayor ATTEST: Linda Huff, City Secretary EXECUTED on this the day of , 1989. APPROVED: Philip E. Whittlesey, Jr. President Austin Ranch Enterprises, Inc. 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