CM-2016-1240 - 11/14/2016CITY OF ROUND ROCK AGREEMENT FOR
® CARNIVAL OPERATION FOR 2016 CHRISTMAS TOWNE
WITH THOMAS CARNIVAL, INC.
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 THOMAS CARNIVAL, INC., whose address is P.O. Box 92469
(referred to herein as "Thomas Carnival, Inc." or the "Services Provider").
RECITALS:
WHEREAS, City has determined that there is a need for the delineated services; 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 JEFFECTIVE DATE, TERM, ALLOWABLE RENEWALS, PRICES FIRIM
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 tenninated 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 tenninate with
or without cause or may elect to continue with the services.
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2.01 PARTY OBLIGATIONS
Carnival Services. Services Provider shall provide carnival services for the City's 2016
Christmas Towne, consisting of a fully safe and operational carnival with rides and game
concessions (the "Carnival Services"). The Carnival Services shall consist of the following:
1. No less than twelve (12) Carnival rides. The specific Carnival Rides shall be
agreed upon between the Services Provider and the City's Parks and Recreation
Department.
6 2. No more than two (2) game concessions.
3. Food concessions. Any food the Services Provider desires to sell must be
approved in advance by the City's Parks and Recreation Department.
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
the following dates: December 2, 3, 4, 9, 10, 11, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and
25, 2016, and all Carnival Services shall be available for use on those dates by the public
beginning at 5:00 p.m. and ending no later than 11:00 p.m. (the "Hours of Operation"). A
reasonable closing time shall be determined on each of the above dates by the carnival
managV-. Factors to be considered by the carnival manager in determining a reasonable closing
time shall be the size of the crowd and the weather conditions_ The carnival manager shall
advise the City's Parks and Recreation Department's designated manager fifteen (15) minutes
prior to closing.
The dates set forth above may be changed as agreed upon by both the City's Parks and
Recreation Department and the Services Provider.
Location. All Carnival Services shall be provided within that area delineated by the
City's Parks and Recreation Department at the Dell Diamond (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
Providir ("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.
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Miscellaneous. Services Provider shall provide the City with the following:
1. 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.
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.
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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. 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:
1. 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 use/fuel.
2. Ten percent (10%) of game concessions income and food concessions income less
any amount of sales tax that Services Provider must remit to state or local
authorities.
Cervices Provider shall report daily sales to the City's Parks and Recreation Department
via e-mail at the end of each operating day.
Services Provider shall make the payments described in paragraphs 1, 2 and 3 above to
the City on December 5, 12, 19, and 26, 2016.
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 serjices 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:
1. 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 terniination 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 cinsistent 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.
5. 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 parry 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
represefitatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties under this Agreement without the other party'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.
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
s
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 S 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
party'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 fiiture 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 perfonnance 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 industa practices.
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17.01 INSURANCE
Services Provider shall meet all City of Round Rock Insurance Requirements as set forth
at: http://w�N,w.roundrocktexas.gov/wp-content/uploads/2014/12!corr®insurancem07.20112.pdf.
18.01 CITY'S REPRESENTATIVE
OCity 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
Rotuid Rock, TX 78664
512-218-5540
ricka(@Yound-rock.tx.us
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) tlu-ee 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:
John Nanschen
Thomas Carnival, Inc.
P.O. Box 92469
Austin, Texas 78709-2469
Notice to City:
City Manager AND TO Stephan L. Sheets
22.1 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.
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20.01 APPLICABLE LAR'; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either parry with respect to the enforcement of any or all of the teens 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.
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
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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 perforni all of the services, responsibilities and duties specified herein and
that sujh 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.
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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.
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City of Round Rock, Texas
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Printedacne: — z'
Title:_
Date Signed:
For City, Attest:l
By: �p
Sara L. White, City Clerk
For City, _ p roved as to orm:
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By:
Stephan . Sheets, City Attorney
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Thomas Carnival, Inc.
By: *4�1q-(6V4
Printed Name: J. o It
Title: re r, 1/1 - n-(
Date Signed:
City of Round Rock
ROUND ROCK
TEXAS Agenda Item Summary
Agenda Number:
Title: Consider executing an Agreement with Thomas Carnival, Inc. for carnival
operations for 2016 Christmas Towne.
Type: City Manager Item
Governing Body: City Council
Agenda Date: 11/11/2016
Dept Director: Rick Atkins, Director
Cost: $0.00
Indexes: General Fund
Attachments: LAF Thomas Carnival.pdf, Back-up Thomas Carnival.pdf
Department: Parks and Recreation Department
Text of Legislative File CM -2016-1240
Consider executing an Agreement with Thomas Carnival, Inc. for carnival operations for
2016 Christmas Towne.
The Parks and Recreation Department is requesting approval to enter into a contract with
Thomas Carnival for the following services:
1. Carnival rides consisting of: Century Wheel, Fun Slide, Wiggle Wurm, Crystal Lil's
House of Mirrors, LIToob, Happy Face Bounce, Pharaoh's Fury, Moby Dick, Fun Zone Fun
House, Wacky Cowboy Roller Coaster, Barnyard, Carousel
(any changes or substitutions to the above listed rides shall be approved by the City's
Parks and Recreation Department)
2. No more than two (2) game concessions
3. The carnival will provide two (2) food concessions stands
The carnival is in conjunction to the Rock N Lights out of car experience. The community
has enjoyed participating in this event for the past five (5) years. They are able to walk
through Christmas Towne and experience hands on free activities such as trek track, light
maze, arts and crafts. Families also delight in photo opportunities with a Christmas Tree
and ornaments. The event features a variety of options for free and affordable rides,
City of Round Rock Page 1 Printed on 1111012016
Agenda Item Summary Continued (CM -2016-1240)
games and food for the public.
80 Vendor/ 20 City split of revenue of funds collected after daily allowance for fuel and
taxes for carnival rides. 90 Vendor/ 10 City split of revenue of funds collected from game
and food concession.
Department official recommends approval of this item.
City of Round Rock Page 2 Printed on 1111012016