CM-2022-137 - 6/17/2022CITY OF ROUND ROCK AGREEMENT FOR
CARNIVAL OPERATIONS
THE _TRAIN QUEST, LLC
THE STATE OF TEXAS §
CITY OF ROUND ROCK §
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS §
KNOW ALL BY THESE PRESENTS:
THIS AGREEMENT (referred to herein as the "Agreement") is for carnival operations,
and is made by and between the CITY OF ROUND ROCK, a Texas home -rule municipality,
whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (referred to
herein as the "City"), and TRAIN QUEST, LLC, whose mailing address is 9802 Colfax Drive,
Austin, Texas 78724 (referred to herein as the "Services Provider").
RECITALS:
WHEREAS, City has determined that there is a need for carnival operations services for
its Frontier Days Event on July 4, 2022; and
WHEREAS, City desires to contract for such services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, TERM, ALLOWABLE RENEWALS, PRICES FIRM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be until services are successfully performed by the
Services Provider.
City reserves the right to review the services at any time, and may elect to terminate with
or without cause or may elect to continue with the services.
614, 2,() 2 2---/27
4880-3713-308 ss2
2.01 PARTY OBLIGATIONS
Carnival Services. Services Provider shall provide carnival services for the City's
Frontier Days 2022, consisting of a fully safe and operational carnival with rides (the "Carnival
Services"). The Carnival Services shall consist of the following Carnival Rides: 1) Barrel of
Fun; 2) 16-Seat Carnival Swing Ride; 3) Icicle Pirate Ship; 4) Wizzer Carnival Ride; S)
Trackless Train; 6) Paddle Boat with 20x20 Foot Pool; 7) Parachute Ride; 8) Kingdom II
Bouncer; and 9) Giant Water Tag Maze "Game" for 10 Players.
Any changes in the Carnival Services set forth above shall be subject to the approval of the City.
Carnival Services shall be provided in a safe and courteous manner consistent with the prevailing
level of professional skill and standard of care in the carnival services industry. The City shall
have full right of censorship over all Carnival Services, and should any of the Carnival Services
be found to be contrary to the standards of the community, Services Provider shall immediately
close the attraction at the request of the City.
Dates and Hours of Operation. Services Provider shall provide Carnival Services on
July 4, 2022, between the hours of 12:00 p.m. until the completion of Frontier Days activities.
Location. All Carnival Services shall be provided within that area delineated by the
City's Parks and Recreation Department at Old Settlers Park (the "Premises"). The Premises
shall be clear of refuse or other objectionable matter so that the Carnival Services can be set up
properly and the public is able to visit the Carnival Services safely and conveniently.
Personnel. Services provider shall provide all personnel and management for the
Carnival Services. At all times during the Hours of Operation, or when otherwise on the
Premises, all employees, contractors, subcontractors, or other persons affiliated with Services
Provider ("Personnel") shall wear uniforms readily identifying them as Personnel. City shall
have the right at its own expense to provide ticket checkers to monitor Carnival Services' sales.
Miscellaneous. Services Provider shall provide the City with the following:
Copies of all permits, licenses, or authorizations required by any and all federal,
state, and local laws, statutes, and regulations for the provision of the Carnival
Services.
2. A schedule of fees, fares, admissions and prices to be charged by Services
Provider. All such fees, fares, admissions and prices are subject to approval by
the City.
3. Copies of all documents reflecting insurance coverage required by the City.
4. A list of all Service Provider's Personnel and their social security numbers.
The City shall provide Services Provider at the City's expense with the following:
1. A non-exclusive local license required to use the Premises to operate the Carnival
Services during the dates specified herein.
2. Portable toilets for customers and a water source.
3. Security in conformance with the City's current practice and policies.
Set up and take down. Services provider shall be solely responsible for setting up and
taking down all equipment and materials necessary to provide the Carnival Services in a timely
manner. Times for set-up and take down shall be agreed upon in advance of July Yd by both
parties. Services Provider shall remove any and all trash, garbage or other waste generated by
the Carnival Services. If the Service Provider's use of the Premises causes excessive damage to
the Premises, as may reasonably be determined by the City, Services Provider shall reimburse
City for all costs incurred by City in restoring or remedying such damage within ten (10) days
from receiving a demand for payment of such costs.
3.01 PAYMENT OF REVENUES
Payment of Revenues. In consideration for the obligations of the City under this
Agreement, Services Provider shall remit an amount equal to twenty percent (20%) of Carnival
Ride Income. Carnival Ride Income is defined as the gross carnival ride ticket sales, less any
amount of sales tax that Services Provider must remit to state or local authorities, and less $200
per operating day to account for carnival generator uselfuel.
Services Provider shall report the sales to the City's Parks and Recreation Department via
e-mail at the end of the operating day.
Services Provider shall make the payment on July 5, 2022 or on an alternate dated agreed
upon by the parties.
Review of Records. The City shall have the right at any time to review or audit the
Service Provider's books, statements, and records related to the amounts attributable to the
Carnival Services and recalculate any amount determined to be payable under this Agreement.
Any additional amount due to the City as a result of the City's review shall be paid within ten
(10) days following written notice to Services Provider.
Supplemental Agreements. The terms of this Agreement may be modified by written
Supplemental Agreement hereto, duly authorized by City Council or City Manager action, if City
determines that there has been a significant change in (1) the scope, complexity, or character of
the services to be performed; or (2) the duration of the work. Any such Supplemental
Agreement must be executed by both parties within the period specified as the term of this
Agreement. Services Provider shall not perform any work or incur any additional costs prior to
the execution, by both parties, of such Supplemental Agreement.
4.01 TERMINATION
This Agreement may be terminated subject to the following conditions:
By City for reasons of its own, with or without cause, and not subject to the
mutual consent of any other party, such written termination notice to be given to
the other party not less than ten (10) days prior to termination.
2. By mutual agreement and consent of the parties, such agreement to be in writing.
3. By either party for failure by the other party to perform the services set forth
herein in a satisfactory manner, such termination notice to be given in writing to
the other party.
4. By either party for failure by the other party to fulfill its obligations herein.
5. By satisfactory completion of all services and obligations described herein.
Should City terminate this Agreement as herein provided, no fees other than fees due and
payable at the time of termination shall thereafter be paid to the City. Termination under this
section shall not relieve the terminated party of any obligations or liabilities which occurred prior
to cancellation. Upon City's delivery of the referenced notice to Services Provider, Services
Provider shall discontinue all services in connection with the performance of this Agreement and
shall proceed to cancel promptly all existing orders and contracts insofar as such orders and
contracts are associated with this Agreement. The parties agree that Services Provider is not
entitled to compensation for services it would have performed or revenue it would have received
under the Agreement.
5.01 INDEPENDENT CONTRACTOR STATUS
Services Provider is an independent contractor, and is not City's employee. Services
Provider's employees or subcontractors are not City's employees. This Agreement does not
create a partnership, employer -employee, or joint venture relationship. No party has authority to
enter into contracts as agent for the other party. Services Provider and City agree to the following
rights consistent with an independent contractor relationship:
1. Services Provider has the right to perform services for others during the term
hereof.
2. Services Provider has the sole right to control and direct the means, manner and
method by which services required by this Agreement will be performed.
3. Services Provider has the right to hire assistants as subcontractors, or to use
employees to provide the services required by this Agreement.
4. Services Provider or its employees or subcontractors shall perform services
required hereunder, and City shall not hire, supervise, or pay assistants to help
Services Provider.
S. Neither Services Provider nor its employees or subcontractors shall receive
training from City in skills necessary to perform services required by this
Agreement.
6. City shall not require Services Provider or its employees or subcontractors to
devote full time to performing the services required by this Agreement.
7. Neither Services Provider nor its employees or subcontractors are eligible to
participate in any employee pension, health, vacation pay, sick pay, or other
fringe benefit plan of City.
6.01 NON -SOLICITATION
All parties hereto agree that they shall not directly or indirectly solicit for employment,
employ, or otherwise retain staff of the other during the term of this Agreement.
7.01 WARRANTIES
Services Provider warrants that all services performed hereunder shall be performed
consistent with generally prevailing professional or industry standards, and shall be performed in
a professional and workmanlike manner. Services Provider further warrants that all equipment,
machinery, and materials provided pursuant to this Agreement meet or exceed all state, federal
and local laws, rules and regulations and that all Personnel have all required training and
certifications necessary to operate such equipment, machinery and materials.
8.01 INDEMNIFICATION
Services Provider agrees to hold harmless, exempt, and indemnify City, its officers,
agents, directors, servants, representatives and employees, from and against any and all suits,
actions, legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities
and claims of any character, type, or description, including but not limited to any and all
expenses of litigation, court costs, attorneys fees and all other costs and fees incident to any work
done or services provided by Services Provider as a result hereof.
In no event shall either party be liable to the other for special or consequential damages,
statutory or otherwise.
9.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
s
assign any rights or delegate any duties under this Agreement without the other parry's prior
written approval.
10.01 LOCAL, STATE AND FEDERAL TAXES
Services Provider shall pay all income taxes, and FICA (Social Security and Medicare
taxes) incurred while performing services under this Agreement.
If requested, City shall provide Services Provider with a certificate from the Texas State
Comptroller indicating that City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
11.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Services Provider, its consultants, agents, employees and subcontractors shall use best
efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the
City of Round Rock, as amended, and with all applicable rules and regulations promulgated by
local, state and national boards, bureaus and agencies. Services Provider shall further obtain all
permits, licenses and the like required in the performance of the services contracted for herein,
and same shall belong solely to City at the expiration of the term of this Agreement.
In accordance with Chapter 2270, Texas Government Code, a governmental entity may
not enter into a contract with a company for goods or services unless the contract contains
written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott
Israel during the term of the contract. The signatory executing this Agreement on behalf of
Services Provider verifies Service Provider does not boycott Israel and will not boycott Israel
during the term of this Agreement.
12.01 GRATUITIES AND BRIBES
City may, by written notice to Services Provider, cancel this Agreement without liability
if it is determined by City that gratuities and/or bribes in the form of entertainment, gifts, or
otherwise were offered or given by Services Provider or its agents or representatives to any City
officer, employee or elected representative with respect to the performance of this Agreement.
In addition, Services Provider may be subject to penalties stated in Title 8 of the Texas Penal
Code.
13.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
parry's intent to perform hereunder, then and in that event, demand may be made to the other
party for written assurance of intent to perform. In the event that no written assurance is given
within the reasonable time specified when such demand was made, then and in that event the
demanding party may treat such failure as an anticipatory repudiation of this Agreement.
14.01 SERVICES OBTAINED FROM ALTERNATE SOURCES
If Services Provider cannot provide the services as specified, City reserves the right and
option to obtain the services from another source or sources.
15.01 DEFAULT
If Services Provider abandons or defaults under this Agreement and is a cause of City
purchasing services elsewhere, then Services Provider agrees that it may be charged the
difference in cost, if any, and that it will not be considered in the re -advertisement of the service
and that it may not be considered in future advertisements for the same type of work unless the
scope of work is significantly changed.
Services Provider shall be declared in default under this Agreement if it does any of the
following:
1. Fails to make any payment in full when due;
2. Fails to fully, timely and faithfully perform any of its material obligations under
this Agreement;
3. Fails to provide adequate assurance of performance under "Right to Assurance"
section herein; or
4. Becomes insolvent or seeks relief under or is involuntarily brought under the
bankruptcy laws of the United States.
16.01 STANDARD OF CARE
Services Provider represents that it is specially trained, experienced and competent to
perform all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Services Provider or designated
subconsultants, in a manner according to generally accepted industry practices.
17.01 INSURANCE
Services Provider shall meet all City of Round Rock Insurance Requirements as set forth
at: http://www.roundrocktexas.gov/wp-content/uploads/2014/12/corr insurance�07.20112.pdf.
18.01 CITY'S REPRESENTATIVE
City hereby designates the following representative(s) authorized to act in its behalf with
regard to this Agreement:
Rick Atkins
Director, Parks & Recreation Department
301 West Bagdad, Suite 250
Round Rock, TX 78664
512-218-5540
rickaAround-rock.mus
19.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given (1) when delivered personally to the recipient's address as
stated in this Agreement; or (2) three days after being deposited in the United States mail, with
postage prepaid to the recipient's address as stated in this Agreement.
Notice to Services Provider:
Phillis Rand
The Train Quest, LLC
9802 Colfax Drive
Austin, Texas 78724
Notice to City:
City Manager AND TO Stephan L. Sheets
221 E. Main Street City Attorney
Round Rock, Texas 78664 309 E. Main Street
Round Rock, Texas 78664
Nothing herein shall be construed to restrict the transmission of routine communications
between representatives of City and Services Provider.
20.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
A. This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
B. In accordance with Chapter 2271, Texas Government Code, a governmental entity
may not enter into a contract with a company for goods and services unless the contract contains
written verification from the company that it. (1) does not boycott Israel; and (2) and will not
boycott Israel during the term of the contract. The signatory executing this Agreement on behalf
of Services Provider verifies the Services Provider does not boycott Israel and will not boycott
Israel during the term of this Agreement.
21.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Services Provider and City. This Agreement may only be amended or supplemented by mutual
agreement of the parties hereto in writing, duly authorized by action of the City Manager or City
Council.
22.01 DISPUTE RESOLUTION
City and Services Provider hereby expressly agree that no claims or disputes between the
parties arising out of or relating to this Agreement or a breach thereof shall be decided by any
arbitration proceeding, including without limitation, any proceeding under the Federal
Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute.
23.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
24.01 MISCELLANEOUS PROVISIONS
Standard of Care. Services Provider represents that it employs trained, experienced and
competent persons to perform all of the services, responsibilities and duties specified herein and
that such services, responsibilities and duties shall be performed in a manner according to
generally accepted industry practices.
Time is of the Essence. Services Provider understands and agrees that time is of the
essence and that any failure of Services Provider to fulfill obligations for each portion of this
Agreement within the agreed timeframes will constitute a material breach of this Agreement.
Services Provider shall be fully responsible for its delays or for failures to use best efforts in
accordance with the terms of this Agreement. Where damage is caused to City due to Service
Provider's failure to perform in these circumstances, City may pursue any remedy available
without waiver of any of City's additional legal rights or remedies.
Force Majeure. Neither City nor Service Provider shall be deemed in violation of this
Agreement if it is prevented from performing any of its obligations hereunder by reasons for
which it is not responsible as defined herein. However, notice of such impediment or delay in
performance must be timely given, and all reasonable efforts undertaken to mitigate its effects.
Multiple Counterparts. This Agreement may be executed in multiple counterparts, any
one of which shall be considered an original of this document; and all of which, when taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Services Provider have executed this Agreement
on the dates indicated.
City of Round Rock, Texas
_0--n
By:! 24444V W ,
Printe Nan r t t
Title: St l !"
Date Signed: a
For City, Attest:
For City, Approved as to Form:
By.
ets, City Attorney
The Train Qu t, LLC
By:
Pried Name: n,
Title:_Cr_
Date Signed: OS l3 2,1
Exhibit "A"
INVOICE
6-g-, The Train Quest LLC@ INVO257
(no1!Phillis Rand CEO DATE
G 04/17/2022
AK-
9802 Colfax Drive
TAustin Texas 78724 DUE DATE
(512) 971-2664 04/17/2022
QUEST thetrainquest@gmail.com BALANCE DUE
USD $0.00
BILL TO
City of Round Rock Parks & Recreation
301 W. Baghdad Ave.
Round Rock Texas 78664
Attn: Dawn Moonan
(512) 218-5499
rheaney@roundrocktexas.gov
DESCRIPTION
RATE
OTY
AMOUNT
Barrel of Fun
$0.00
1
$0.00
16 Seat Carnival Swing Ride
$0.00
1
$0.00
lcicle Pirate Ship
$0.00
1
$0.00
Wizzer Carnival Ride
$0.00
1
$0.00
Trackless Train
$0.00
1
$0.00
---------------------------------------------------------------------------------------------------------------------------------------
Paddle Boat with 20x20ft Pool
$0.00
1
$0.00
..........................................-----------------------
Parachute Ride
--------------------------------------------------------------------------------
$0.00
1
$0.00
Kingdom II Bouncer
$0.00
1
$0.00
Giant Water Tag Maze "Game' 10 Players
$0.00
1
$0.00
SUBTOTAL.
$0.00
TAX (8.25%)
$0.00
Payment Info
TOTAL
$0.00
Page 1 of 5
Exhibit "A"
BALANCE DUE
USD $0.00
BY CHECK
The Train Quest LLC
The Train Quest LLC® will rent the following items above
to: Round Rock Parks and Recreation Department" Frontier
Days" July the 4th 2022
BY BOOKING AND PAYING FOR OUR RENTAL ITEMS YOU
ARE MAKING AN AGREEMENT THAT
YOU HAVE READ AND UNDERSTAND THE FOLLOWING
BOOKING POLICIES.
• The renter agrees that The Train Quest, LLC holds no
liability for any damages or injuries caused by the use of
rental items to renter or any third party. The renter
assumes all risk of personal property damage or personal
injury. If accidents involving The Train Quest, LLC rental
items occur while it is in the renter's possession the renter
needs to make The Train Quest, LLC aware by written
statement of details of occurrence of event including a
police report, names, and addresses of witnesses.
• The renter is responsible for loss or damage of rental
items and will pay for the cost of replacement, repair, or
cleaning. The cost of repair and replacement value will be
assessed within 5 days of return and presented in a
separate invoice payable in 14 days.
• All equipment must be Used according to our Safety
Guide on our website set forth. To view our Safety Guide,
click here
• *We do not issue refunds for deposits or payments.*
• We require a 50% deposit for all rentals. We do not issue
refunds for deposits or payments however, we do issue
rescheduling and rain checks for bad weather and will
apply your payment towards any future rentals or events.
Rescheduling requires a 3 day notice in advance of the
event. You have 6 months to use your payment on file.
. Equipment will be reserved upon receipt of a booking
email confirmation and a 50% deposit for items. The final
50% rental charge plus delivery fees must be paid on the
day of delivery. We do not take checks upon delivery of
Page 2 of 5
Exhibit "A"
items.
• Once rental equipment is packed up for delivery, out for
delivery, or set up and installed for your event, you cannot
request a rain check or reschedule the use of equipment.
Please call ahead or email us 3 days before your event to
alert us of any changes.
• Our staff will contact you about unfavorable weather
conditions and determine if an event can be moved inside
or needs to be rescheduled.
• Our delivery fee is $45.00 for up to 25 miles from our
warehouse. if your delivery location is over 25 miles, a
charge of $0.55 per mile per round trip will be charged.
This safety guide is for our bounce houses, water slides,
carnival games and all of our other party and event
supplies. Please adhere to the terms of our safety
guidelines as closely as possible. You should also read our
terms and conditions, as these form the basis of your
contract with us.
If you have any questions or require any clarity about our
party rental safety guidance, please contact us.
Although our equipment may be used by children, the
person or organization renting the equipment must include
a competent adult.
The play equipment must also be supervised by a
responsible adult.
The organization or individual renting our equipment is
responsible for ensuring its safe use and for preventing
injury or damages to our products or the people using our
products.
Chewing gum, food and drink must not be used on our
bounce houses, inflatable slides, carnival rides or party
games, as this creates a choking hazard. Avoiding food,
drink and chewing gum will also help to keep our inflatable
play equipment and event supplies clean.
Do not use party poppers, face paints, silly string,
streamers or other messy products on or near inflatables.
Do not use the inflatable or party games if your clothes or
hands are muddy or otherwise unclean.
Page 3 of 5
Exhibit "A"
Do not smoke or use barbecues near to inflatables or party
games.
All sharp objects must be removed before use of bounce
houses, water slides and other inflatables. This includes
jewellery, badges, toys, glasses and footwear. This
prevents damage to other people on the inflatable, as well
as to the inflatable itself.
Do not use inflatables in ways they were not intended to be
used. This includes sitting on bounce house walls,
climbing on the roofs, or bouncing on the front safety step.
Pets are not allowed on any of our inflatables and must be
kept away from our other party equipment.
Pockets should be emptied before use of bounce houses
and other inflatables.
Individual items have their own safe capacity restrictions,
which must not be exceeded.
Children must not fight, push, or misbehave on the bounce
house, or act in a way that could lead to injury to others.
Somersaulting is forbidden.
Do not allow young children and older children to use
bounce houses at the same time as each -other.
Clear the inflatable of people during times of inflation and
deflation.
Evacuate the inflatable if the blower stops working. Then
check your circuit breakers and ensure that the blower
tube is correctly attached and there are no obstructions.
If the blower overheats, turn it off at the electricity outlet
and then turn it on again. The blower should restart within
two or three minutes. If it does not, please call us on (512)
971-2664.
We will seek prosecution in the event of lost or stolen
inflatables and party supplies, and will charge a repair or
cleaning fee if our products are collected in an
unreasonably dirty or damaged condition.
Page 4 of 5
Exhibit "A"
x
Round Rock Parks and Recreational Departments
Representative
Date
*Please Sign and Copy
Page 5 of 5
City of Round Rock
ROUND ROCK
TEXAS Agenda Item Summary
Agenda Number:
Title: Consider executing an Agreement with Train Quest, LLC for Carnival Operations
for the City's 4th of July Event.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 6/17/2022
Dept Director: Rick Atkins, Parks and Recreation Director
Cost:
Indexes:
Attachments: LAF - Agreement with Train Quest, LLC for Carnival Operations for the 4th of July
06 07 22, The Train Quest, LLC
Department: Parks & Recreation
Text of Legislative File CM-2022-137
Consider executing an Agreement with Train Quest, LLC for Carnival Operations for the City's 4th of Jul,
Event.
City of Round Rock page 1 of 1