2-Sample Contract Form Concession Services.pdf

THIS IS A SAMPLE CONTRACT FORM ONLY. THE ACTUAL CONTRACT MAY OR MAY NOT CONTAIN THE

PROVISIONS HEREIN, DEPENDING ON THE SCOPE OF SERVICES.

Company Name

Concession Services Contract - XXXXX

Rev. 2-1-17

CONCESSION SERVICES CONTRACT

STATE OF TEXAS §

COUNTY OF DALLAS §

This Contract is made and entered into this ____ day of ________, 20__, between the

CITY OF DALLAS, a municipal corporation, of Dallas County, Texas, (hereinafter called

"City") and ______________________, a ____________ authorized to conduct business in the

State of Texas, with a local office at ______________________________ (hereinafter called

"Concessionaire").

W I T N E S S E T H:

WHEREAS, City desires to provide __________________________, for the use of its employees and other persons at the _________________________, Dallas, Texas; and

WHEREAS, Concessionaire has agreed to provide these services in accordance with the specifications and with Concessionaire's proposal presented to City in response thereto;

NOW THEREFORE, City and Concessionaire, in consideration of the terms, covenants, and conditions contained in this Contract, hereby agree as follows:

1. CONCESSION PRIVILEGES

(a) City hereby grants to Concessionaire the non-exclusive right to provide

___________________, at _______________. The rights granted under this Contract shall not be construed so as to prevent or prohibit City from engaging the services of a concessionaire of its own choosing to stage __________ or other special events. Concessionaire, however, shall be considered a preferential ______________ service, and the Director of ________________ or

Director’s designee (hereinafter called the "Director") has the right (but not the obligation) to recommend Concessionaire as first choice for a _______________ event if Concessionaire demonstrates the capabilities.

(b) The terms and conditions of Concessionaire's performance under this Contract shall be as set forth in the Request for Proposals for ___________________, attached to and made a part of this Contact as Exhibit A, and Concessionaire's Proposal, attached to and made a part of this Contract as Exhibit B. In the event of a conflict between the provisions of this

Contract, Exhibit A and Exhibit B, the terms of this Contract shall control; in the event of a conflict between the provisions of Exhibit A and Exhibit B, the terms of Exhibit A shall control.

(c) Concessionaire hereby accepts such responsibilities and agrees to provide such services at the _____________________ in accordance with Exhibits A and B and the terms of this Contract.

2. TERM

The term of this Contract shall be for a ______ months, commencing on _________ and ending on __________, unless sooner terminated as otherwise provided in this Contract.

3. PAYMENT

For the consideration of the grant of concession privileges provided for in this Contract, Concessionaire covenants and agrees to pay to City __% of gross receipts on __________ at

______________ location. The term “gross receipts” means all revenues generated from sales made in the course of Concessionaire’s operations under this Contract, before the deduction of taxes, expenses or other fees or charges. Concessionaire shall make the percentage payments

(accompanied by the monthly gross receipts statement) to City on or before the _____ day of each month following the prior month’s sales. Checks shall be made payable to

____________________________ and shall be forwarded to the office of the Director unless otherwise directed in writing. A ___% late fee shall be assessed if payment is received later than the ____ day of each month.

4. EQUIPMENT AND MAINTENANCE

(a) City will provide space for ____________ where available and such space for

____________ as may be required, with the understanding that City is to retain control of all assigned areas when needed for other purposes as required by tenants or City. Items of

______________ will be turned over for the use of Concessionaire.

(b) Concession furnishings shall be of such quality, design, and finish as will be in keeping, in the opinion of the Director, with the general decor of the ___________. All such expenditures by Concessionaire must be approved in writing by the Director before the purchase and installation.

(c) Maintenance, repair, alteration and replacement of all City equipment and furnishings shall be at the expense of City. All alterations and replacements of concession equipment and furnishings must be approved by the Director.

(d) Any and all temporary concession stands/bars shall be of first-class quality. Final approval of design and decor rests with the Director.

5. QUALITY OF SERVICE

(a) It is the intention of City that the concession service be of the highest quality attainable. All concession areas are to be kept clean, orderly and sanitary at all times and in strict accordance with all applicable laws, ordinances, rules and regulations.

(b) All _____________ and the like sold or kept for sale shall be of the highest quality, wholesome and shall conform in all respects to the federal, state and municipal food and other laws, ordinances and regulations. No imitation, adulterated or misbranded article shall be sold or kept for sale; and all merchandise kept on hand shall be stored and handled with due regard for sanitation. Left-over perishable merchandise shall not be sold at any time.

(c) All merchandise for sale shall be subject to inspection and approval or rejection by the Director and duly authorized representatives of appropriate governmental agencies.

(d) Operating hours ____________ through _________ for ______________ shall be in accordance with Exhibit A. Hours may be adjusted as required by the operating load or by

City, with the approval of the Director.

(e) The Director shall have the right to reject the character of service and require that undesirable practices be discontinued or remedied. Failure of Concessionaire to take prompt, appropriate action after notification from the Director will result in the cancellation of this contract.

(f) Concessionaire shall constantly endeavor to improve the operation with a view toward developing maximum gross receipts potential and service to City's patrons.

6. OPERATING CONDITIONS

(a) City will furnish without charge to Concessionaire, for the period of this Contract, storage space for stock and equipment where available.

(b) Location of all concession stands, whether temporary or permanent, and location of storage space required by Concessionaire shall be approved by the Director. Concessionaire shall acquire no rights to such locations once assigned, and City reserves the right to require

Concessionaire to move temporary stands and equipment when events or other City needs require the use of them.

(c) City shall furnish all electricity, water and drainage service. Notwithstanding any other provision of this Contract to the contrary, City shall not be liable or responsible for any failure of Concessionaire to furnish the services set forth above occasioned by a strike or other work stoppage; federal, state or local government action; a breakdown or failure of apparatus, equipment or machinery employed in supplying the services; any temporary stoppage for the repair, improvement, or enlargement of the existing facilities or equipment or any act or condition beyond City’s control.

(d) Representatives of City shall have the right to enter upon and have access to all spaces occupied by Concessionaire during the time events are in operation and all times when concession employees are present.

(e) Concessionaire shall submit proposals concerning ____________ items to be sold, suggested prices and recommended locations for the review and approval of City.

(f) City shall not be responsible for any goods, merchandise or equipment of

Concessionaire stored at City nor will it be responsible for damage resulting from a power failure, flood, fire explosion or other causes.

7. CLEANING AND MAINTENANCE

(a) Concessionaire shall pick up, clean up, and dispose of all litter for all space assigned or used in the operation of the concession, including but not limited to table tops in the dining area. Concessionaire shall also clean and keep concession areas free of debris during the work day. City shall provide carpet cleaning services as required.

(b) Concessionaire shall keep all premises and the surrounding areas used by it during the term of the Contract neat, clean and in a sanitary condition. Stands and related concession areas shall be cleaned thoroughly each day. Laws, ordinances, and regulations of all governmental bodies pertaining to the operation of _________ establishments shall apply and be complied with by Concessionaire. Concessionaire shall place all refuse and waste materials in

City containers and remove the containers when full to the waste storage area. Waste will be kept in closed containers until removed.

(c) Concessionaire and its employees shall not erect, maintain or keep at

___________________ location any structure or equipment of any kind, whether temporary or otherwise, except with the written consent of the Director. Concessionaire shall not make any alterations in, or additions to, nor post any signs upon any part of said premises or permit signs to be posted for advertising of goods of any nature on said premises or on Concessionaire's employees or equipment without prior permission of the Director.

(d) Concessionaire shall not remove any article, piece of equipment or other property furnished to the concession area without the prior express written permission of the Director.

8. CONCESSIONAIRE EMPLOYEES

(a) Concessionaire shall not employ any person or persons in or about any building conducted by it who shall use improper language or act in a boisterous or discourteous manner, and shall upon request of the Director immediately remove any employee deemed unsuitable.

Any employee so removed shall never again be employed by Concessionaire at

_________________ location without the prior written consent of the Director.

(b) Concessionaire shall train and closely supervise all concession employees so that they are aware of and habitually practice the high standards of cleanliness, courtesy and service required.

(c) Concessionaire will provide an adequate number of personnel in the facility to properly service and attend to the patrons ___________ through _______, and weekends as may be required.

(d) Concessionaire's employees shall at all times be neatly and cleanly uniformed at the expense of Concessionaire and subject to approval by City. Concessionaire must meet the sanitary standards prescribed for concessions help. All employees must be supplied with clean uniforms.

(e) Concessionaire's employees shall at all times reflect personal cleanliness.

Unshaven, unkempt and unclean employees will not be tolerated.

(f) Unless the concessions are personally operated by Concessionaire, Concessionaire shall employ at all times during the operation of the concessions a manager who is satisfactory to the Director. If at any time the Director finds that the concession manager or his alternate is unsatisfactory, Concessionaire shall within ten (10) days replace the manager with one who is satisfactory to the Director.

(g) Concessionaire's employees shall at all times be polite and courteous in their dealings with the patrons of _________________________.

9. PRICE AND QUALITY OF MERCHANDISE

(a) As a matter of general policy, prices shall not be higher than those charged at comparable ______________ in the Dallas area for the same quality merchandise. Prices must be posted on displays permanently on all stands and Concessionaire's equipment. The Director shall be the sole judge for sign quality and size of letters and propriety of any advertising proposed.

(b) Concessionaire shall provide to City a detailed price schedule for all items it proposes to sell, showing size, weight and amount of items. This includes items sold in the

________________ area. All prices finally adopted will require the approval of the Director.

(c) The Director and Concessionaire shall periodically review the general price structure of all _________ sold and Concessionaire may in writing, with the approval of the

Director, for good cause increase or decrease the maximum price or size of any article or articles offered for sale. Concessionaire shall submit all requests for price increases in writing to the

Director.

(d) The Director, after review and approval by the ________________, may decrease the percentage of return in order to defer price increases.

(e) All merchandise kept for sale shall be subject to inspection and approval or rejection by the Director during all times that the concession is in operation. Rejected merchandise shall be immediately removed and shall not be returned for sale.

10. OBSERVANCE OF LAWS, RULES AND REGULATIONS

(a) Concessionaire shall at all times comply with all applicable laws, rules, regulations and orders of the Federal Government, State of Texas and the City of Dallas.

(b) Concessionaire shall also abide by all rules, regulations and directives prescribed for the concession area by City.

11. PERMITS, LICENSES AND TAXES

All requirements of Federal, State and local laws and regulations pertinent to or affecting

___________________, and other goods or merchandise served or sold must be complied with.

Concessionaire must, at its own expense, procure and keep in force during the entire period of this Contract all permits and licenses required by such laws and regulations.

12. INSURANCE

CONCESSIONAIRE shall procure and maintain in full force and effect during the entire period of this Contract insurance coverages in accordance with the provisions of Exhibit C.

13. INDEMNITY

Concessionaire agrees to defend, indemnify and hold City, its officers, agents and employees, harmless against any and all claims, lawsuits, judgments, costs, and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by Concessionaire’s breach of any of the terms or provisions of this Contract, or by any negligent or strictly liable act or omission of Concessionaire, its officers, agents or employees, in the performance of this Contract; except that the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole negligence or fault of City, its officers, agents, employees or separate Concessionaire s, and in the event of joint and concurrent negligence or fault of both Concessionaire and City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the

State of Texas, without, however, waiving any governmental immunity available to City under Texas law and without waiving any defenses of the parties under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity.

Concessionaire and City acknowledge and agree that the provisions of this Section 13 shall survive the termination or expiration of the term of this Contract.

14. CONCESSIONAIRE RECORDS AND AUDIT

(a) Concessionaire must keep full and complete records of concession operations satisfactory to City, including the use of an inventory control system and original invoices of all concession items and materials brought on the premises. Concessionaire must submit a sales statement with settlement for all sums due to City. No materials shall be brought on the premises without such invoices.

(b) Concessionaire shall submit a monthly statement of gross receipts to the Director no later than the ______ of each month covering the entire preceding month. This statement shall contain information as required by this Contract and the Director and be on forms approved by

City and signed by an executive officer or his authorized representative.

(c) City shall at all times have the right to examine books, papers and records of

Concessionaire relative to the gross receipts and invoices to support the gross receipts and all aspects of the concession operations pertaining to City. Concessionaire will be required to keep all books and records pertaining to the concession operation in an office within the City of

Dallas.

(d) Concessionaire shall also be required to submit other financial statements pertaining to the concession operations which may from time to time during the term of this

Contract be required by City.

15. DEFAULT BY CONCESSIONAIRE

(a) In the event that Concessionaire shall fail to perform, keep and observe any of the terms, covenants and conditions of this Contract to be performed, kept or observed, City shall give Concessionaire written notice of such default; and in the event said default is not remedied to the satisfaction and approval of the City within thirty (30) days of receipt of such notice by

Concessionaire, Concessionaire will be declared in default and City will terminate this Contract, without prejudice to any other remedy City may have at law, in equity or elsewhere in this

Contract. At the direction of City, Concessionaire shall vacate City Hall and Oak Cliff Municipal

Center and shall have no right to further operate the concession.

(b) Within forty-eight (48) hours after termination of this Contract under this section, Concessionaire, under the supervision of City, shall remove all equipment and supplies to which it is properly entitled, as specified in this Contract.

(c) Concessionaire in accepting this Contract agrees that City shall not be liable to prosecution for damages in the event that the City declares Concessionaire in default of this

Contract.

16. TERMINATION FOR CONVENIENCE

The Director may, without prejudice to any other remedy City may be entitled to at law, in equity or elsewhere under this Contract, terminate this Contract in whole or in part for the convenience of City by giving at least thirty (30) days prior written notice thereof to

Concessionaire with the understanding that all concession operations shall cease upon the date specified in such notice. Concessionaire shall not, however, be entitled to lost or anticipated profits should City choose to exercise its option to terminate for convenience.

17. NOTICES

All notices or payments required or permitted under this Contract shall be personally delivered or mailed to the respective parties by depositing same in the United States mail at the address shown below, unless and until either party is otherwise notified in writing by the other party, at the following address;

If intended for City, to:

________________, Director

City of Dallas

_______________ Department

1500 Marilla Street, Room ___

Dallas, Texas 75201

If intended for Concessionaire, to:

18. SUBORDINATION

This Contract is made subject to the provisions of the charter and ordinances of the City of Dallas and all applicable laws of the State of Texas.

19. CONFLICT OF INTEREST OF CITY EMPLOYEES

A. Concessionaire and its employees, agents or associates are required to make regular, timely, continual and full disclosures to the Director of all significant outside interests and responsibilities that may give rise to a direct or indirect conflict of interest, including, but not limited to, any and all significant outside interests and responsibilities that could reasonably be expected to impair independence of judgment in Concessionaire’s performance of all of the services under this Contract. Such disclosures must be made no later than ten (10) days following the event giving rise to the potential or actual conflict of interest for the duration of the

Contract term. A potential or actual conflict of interest exists when commitments and obligations to the City or widely recognized professional norms are likely to be compromised in

Concessionaire’s performance of its duties under this Contract by the existence of

Concessionaire’s other professional relationships, contracts, obligations, or commitments.

Failure to disclose such a conflict of interest may result in the City’s immediate termination of this Contract by the City Manager.

B. The following section of the Charter of the City of Dallas shall be one of the conditions, and a part of, the consideration of this Contract, to wit:

“CHAPTER XXII. Sec. 11. FINANCIAL INTEREST OF EMPLOYEE OR OFFICER

PROHIBITED.

(a) No city official or employee shall have any financial interest, direct or indirect, in any contract with the city, or be financially interested, directly or indirectly, in the sale to the city of any land, materials, supplies or services, except on behalf of the city as a city official or employee. Any violation of this section shall constitute malfeasance in office, and any city official or employee guilty thereof shall thereby forfeit the city official’s or employee’s office or position with the city. Any violation of this section, with knowledge, express or implied, of the person or corporation contracting with the city shall render the contract involved voidable by the city manager or the city council.

(b) The alleged violations of this section shall be matters to be determined either by the trial board in the case of employees who have the right to appeal to the trial board, and by the city council in the case of other employees.

(c) The prohibitions of this section shall not apply to the participation by city employees in federally-funded housing programs, to the extent permitted by applicable federal or state law.

(d) This section does not apply to an ownership interest in a mutual or common investment fund that holds securities or other assets unless the person owns more than 10 percent of the value of the fund.

(e) This section does not apply to non-negotiated, form contracts for general city services or benefits if the city services or benefits are made available to the city official or employee on the same terms that they are made available to the general public.

(f) This section does not apply to a nominee or member of a city board or commission, including a city appointee to the Dallas Area Rapid Transit Board. A nominee or member of a city board or commission, including a city appointee to the Dallas Area Rapid

Transit Board, must comply with any applicable conflict of interest or ethics provisions in the state law and the Dallas City Code.”

20. GIFT TO PUBLIC SERVANT

(a) City may terminate this Contract immediately if Concessionaire has offered, conferred, or agreed to confer any benefit upon a City employee or official that the City employee or official is prohibited by law from accepting.

(b) For purposes of this section, “benefit” means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported in accordance with law.

(c) Notwithstanding any other legal remedies, City may require Concessionaire to remove any employee of the Concessionaire from the operation under this Contract who has violated the restrictions of this section or any similar state or federal law, and obtain reimbursement for any expenditures made to Concessionaire as a result of the improper offer, agreement to confer, or conferring of a benefit to a City employee or official.

21. EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION

(a) Concessionaire shall not discriminate against any employee or applicant for employment because of race, age, color, ancestry, national origin, place of birth, religion, sex, sexual orientation, gender identity and expression, military or veteran status, genetic characteristics, or disability unrelated to job performance. Concessionaire shall take affirmative action to insure that applicants are employed and that employees are treated during their employment without regard to their race, age, color, ancestry, national origin, place of birth, religion, sex, sexual orientation, gender identity and expression, military or veteran status, genetic characteristics, or disability unrelated to job performance. This action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection of training, including apprenticeship. Concessionaire shall also comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. §§12101-12213, as amended. Concessionaire agrees to post in conspicuous places a notice, available to employees and applicants, setting forth the provisions of this non-discrimination clause.

(b) Concessionaire shall, in all solicitations or advertisements for employees placed by or on behalf of Concessionaire, state that all qualified applicants will receive consideration for employment without regard to race, age, color, ancestry, national origin, place of birth, religion, sex, sexual orientation, gender identity and expression, military or veteran status, genetic characteristics, or disability unrelated to job performance.

(c) Concessionaire shall furnish all information and reports required by the City

Manager or his designee and shall permit the City Manager or his designee to investigate its payrolls and personnel records which pertain to current professional services contracts with City for purposes of ascertaining compliance with this equal employment opportunity clause.

(d) Concessionaire shall file compliance reports with City as may be required by the

City Manager or his designee. Compliance reports must be filed within the time, must contain information as to the employment practices, policies, programs, and statistics of Concessionaire, and must be in the form that the City Manager or his designee prescribes.

(e) If Concessionaire fails to comply with the equal employment opportunity provisions of this Contract, it is agreed that City at its option may do either or both of the following:

(1) Cancel, terminate or suspend this Contract in whole or in part;

(2) Declare Concessionaire ineligible for further City contracts until it is determined to be in compliance.

22. ASSIGNMENT

Concessionaire shall not sell, assign, transfer or convey this Contract, in whole or in part, without the express prior written consent of the Director; and as a condition of any such consent, Concessionaire shall remain liable for completion of the Contract in the event of default by the successor concessionaire or assignee.

23. SEVERABILITY

If any provision of this Contract is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Contract, the legality, validity, and enforceability of the remaining provisions of this Contract shall not be affected thereby.

24. INDEPENDENT CONTRACTOR

In the execution of this Contract and rendering of services prescribed by this Contract, City and Concessionaire do not change the independent status of Concessionaire, and no provision of this Contract, act of Concessionaire in the performance of this Contract, or act of

City in the performance of this Contract shall be construed as making Concessionaire the agent, servant, or employee of City. Concessionaire shall exercise independent judgment in performing under this Contract and is solely responsible for setting working hours, prioritizing the work under this Contract and determining how the Contract is to be performed. No term or provision of this Contract or act of Concessionaire in the performance of this Contract shall be construed as making Concessionaire the agent, servant or employee of City, or making Concessionaire or any of Concessionaire’s employees eligible for the fringe benefits, such as retirement, insurance and worker’s compensation, which City provides its employees.

25. VENUE

The parties to this Contract agree that the obligations created under this Contract shall be performed in Dallas, Texas, and that venue of any action brought under this Contract shall lie exclusively in Dallas County, Texas.

26. CAPTIONS

The captions to the various clauses of this Contract are for informational purposes only and shall not alter the substance of the terms and conditions of this Contract.

27. COUNTERPARTS

This Contract may be executed, including electronically, in one or more counterparts, each of which when so executed shall be deemed to be an original and constitute one and the same instrument. If this Contract is executed in counterparts, then it shall become fully executed only as of the execution of the last such counterpart called for by the terms of this Contract to be executed.

28. SUCCESSORS AND ASSIGNS

This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and, except as otherwise provided in this Contract, their assigns.

29. GOVERNING LAW

This Contract shall be governed by governed by and construed in accordance with the laws and court decisions of the State of Texas, without regard to conflict of law or choice of law principles of Texas or of any other state.

30. CERTIFICATION OF EXECUTION

The person or persons signing and executing this Contract on behalf of Concessionaire, or representing themselves as signing and executing this Contract on behalf of Concessionaire, do hereby warrant and certify that he, she or they have been duly authorized by Concessionaire to execute this Contract on behalf of Concessionaire and to validly and legally bind

Concessionaire to all terms, performances and provisions herein set forth.

31. ENTIRE AGREEMENT

This Contract embodies the complete agreement between the parties to this Contract and supersedes all oral or written previous and contemporary agreements between the parties relating to matters contained herein. Except as otherwise provided in this Contract, this Contract cannot be modified without written supplemental agreement of the parties.

EXECUTED this the ___ day of _________, 20__, by CITY, signing by and through its City

Manager, duly authorized to execute same by Resolution No. __________, adopted by the City

Council on _____________, 20__, and by CONCESSIONAIRE, acting through its duly authorized officials.

APPROVED AS TO FORM: CITY OF DALLAS

LARRY E. CASTO T. C. BROADNAX

City Attorney City Manager

BY___________________________ BY____________________________

Assistant City Attorney Assistant City Manager

CONCESSIONAIRE:

a _______________ corporation

BY___________________________

PRINTED

NAME________________________

TITLE ________________________