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TABLE OF CONTENTS DEFINITION OF TERMS AND ABBREVIATIONS ..................................................................................... 3 SECTION 1. GENERAL INFORMATION ........................................................................................ 4 1.1 Project Scope and Overview of the Elm Form Athletic Complex .................................... 4 1.2 Goals for the Operation and Management of the Elm Fork Athletic Complex (EFAC) ... 4 1.3 Restrictions Maintaining Tax-Exempt Status for Bonds Issued for EFAC ....................... 6 SECTION 2. SPECIFICATIONS FOR OPERATIONAL MANAGEMENT OF EFAC...................... 7 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17 2.18 General Scope ................................................................................................................. 7 Facility Activities............................................................................................................... 7 Facility Management and Operations .............................................................................. 7 Insurance ......................................................................................................................... 8 Bonding ............................................................................................................................ 9 Observance of Laws, Rules and Regulations .................................................................. 9 Permits, Licenses and Taxes ........................................................................................... 9 Fire Protection and Prevention ........................................................................................ 9 Protection and Damage ................................................................................................... 9 Other Contracts.............................................................................................................. 10 Alterations and Improvements ....................................................................................... 10 Property ......................................................................................................................... 11 Access to the Facility ..................................................................................................... 11 Liens .............................................................................................................................. 11 Labor Force.................................................................................................................... 11 Wage Rates ................................................................................................................... 12 Complaints and Non-Performance ................................................................................ 12 Reports, Audits and Review .......................................................................................... 12
SECTION 3. PROPOSAL PROCESS ........................................................................................... 13 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 Specification Review and Clarification ........................................................................... 13 Proposal Submission ..................................................................................................... 13 Required Documentation ............................................................................................... 13 Format for Proposal ....................................................................................................... 15 Oral Presentations ......................................................................................................... 16 Disqualification of Proposer ........................................................................................... 16 Due Date ........................................................................................................................ 16 Public Information .......................................................................................................... 16
SECTION 4. SELECTION PROCESS ........................................................................................... 17 4.1 4.2 4.3 4.4 4.5 Request for Proposals ................................................................................................... 17 Selection Process Estimated Schedule ......................................................................... 17 Criteria for Review and Evaluation ................................................................................ 17 Evaluation of Proposals ................................................................................................. 18 Contract Award .............................................................................................................. 19
SECTION 5. CONTRACT .............................................................................................................. 19 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 Award of Contract .......................................................................................................... 19 Assignment of Contract ................................................................................................. 19 Indemnity ....................................................................................................................... 20 Default ............................................................................................................................ 20 Termination for Convenience ......................................................................................... 21 Notices ........................................................................................................................... 21 Miscellaneous ................................................................................................................ 21 Conduct of Work ............................................................................................................ 22
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To date, the City has allocated approximately $31.4 million in funding for land acquisition and development of EFAC. Construction of this complex is currently underway. The current schedule projections are that the Facility will be ready for play in September 2013.
1.2
Goals for the Operation and Management of the Elm Fork Athletic Complex (EFAC)
A. The City of Dallas seeks a qualified Operator that will work with the City to manage and operate EFAC as a premier soccer venue that primarily serves Dallas youth and citizens and to market the Facility for regional, national and international tournaments not exclusively for soccer, but for other sports as well, including rugby, lacrosse, field hockey, cricket and archery. A sampling of the events and tournaments associated with soccer, for which the complex will be an ideal site, include: Adidas Showcase Tournament American Youth Soccer Association Dallas Cup Dallas Mens Select Soccer League (DMSSL) Cinco de Mayo Cup DMSSL Labor Day Tournament
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Kyle Owen Memorial Tournament Lacross USA Gameday USA NDP Lacrosse North American Memorial Day Cup North Texas State Soccer Association (NTSSA) State Cup Score Tournaments Thanksgiving Invitational Tournament USA Field Hockey USA Ultimate Frisbee United States Youth Soccer (USYS) Youth National Championships USYS ODP National Championships USYS Region III Championships US Adult Soccer Association (USASA) Region III National Cup USASA National Cup USASA Veterans Cup
B. The availability and cost of water for irrigation is an important concern at EFAC. Peak summertime water demand is estimated to be 2.6 million gallons per week. Water demand is estimated to be 125 million gallons annually. The City wishes Proposers to submit three options in their proposals to address irrigation requirements. (1) Contractor irrigates using potable water a) The current phase, when completed, will sell City potable water to the Contractor. b) Contractor is responsible for attaining variances from DWU to exceed water usage restrictions during drought periods. (2) Contractor finances construction of water well(s), irrigation pond(s) and all related apparatus to provide well water. a) The current irrigation system including valves and conduits, sprinkler heads and controls, as installed, will accommodate the conversion of the system for well water use. b) Preliminary study indicates that three aquifers are available for water well at different depths. i. Paluxy Well with an estimated depth of 500 feet will produce 200-250 gpm. ii. Trinity Well with an est depth of 2300 feet will produces 400 to 450 gpm. c) In addition to the well, an irrigation pond(s), pumping equipment with associated piping, and filtration will be required. d) Adequate land is available for construction of irrigation pond(s). e) This option also requires that: i) Contractor performs construction in accordance with Section 2.10 of these specifications. ii) Water conservation and reclamation infrastructure and methods shall be included in the plan. iii) The City will not charge the Contractor for water usage. (3) Contractor shall finance the construction of a wet well in the Trinity River which will fill the existing irrigation pond located at the southeast corner of the LB Houston Sports Complex by providing the following:
Operation and Management of the Elm Fork Athletic Complex Page 5 of 22
a) Obtain Right of Way for water line from LB Houston to EFAC; b) Install appropriately-sized water line and transfer pump, and filter system, at existing irrigation pond; c) Install new water line from LB Houston, approximately one mile, and tie into existing irrigation pump houses at EFAC; d) Disconnect existing potable water lines from the potable water system, in accordance with federal, state and local codes. e) Pay water fees to DWU at the going rate for non-treated water per existing agreement between DWU and the Dallas Park Department. (4) Water conservation and reclamation methods shall be included in all three plans. (5) Dallas Water Utility Rates apply for all water usage from their facilities, including the Trinity River non-potable water option. (6) At the end of each contract term, the City may renegotiate water source and rates with Contractor (7) City reserves the right to provide non-potable water to the complex at a future date. C. Proposers should address the following considerations in their proposals: (1) Additional Soccer Goals When the current phase of construction is completed, the ten international-size fields will be lit and equipped with portable soccer goals. The Contractor will be required to provide additional goals for the five youth flexible fields and four adult-size flexible fields. Depending on programming needs, these flexible fields may be configured to accommodate other uses such as cricket, lacrosse, and other field sports. (2) Field Lights Proposers may, at their own expense, and in accordance with Section 2.10 of these specifications, provide lighting for the five youth flexible fields and four adult-size flexible fields. (3) Signage Contractor will be required to create and implement, in accordance with Section 2.10 of these specifications and at their expense, a signage package including way-finding signs, traffic control signs, park identification signs, facility identification signs, informational kiosks, regulatory signs and sponsorship signs (if applicable) based on the intended use of the Facility. D. Due to its immense potential the City envisions additional future development at EFAC. Currently the funding is not available and specific plans have not been made, but examples of possibilities include a championship field surrounded by tiered seating, additional parking spaces, nature area, maintenance building, concession complex, and Goodnight Lane entrance, Proposers are encouraged to propose options for additional capital improvements, including operating subsidy and revenue sharing arrangements.
1.3
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Federal income tax law permits EFAC to be managed by the Operator if the management agreement is structured to comply with the guidelines under Revenue Procedure 97-13 (Qualifying Management Agreement). These guidelines include limitations on the term and the type of compensation paid (e.g., periodic fixed fee per month) under the qualifying management agreement. The City welcomes any proposals that may be structured to comply with these guidelines. In addition, the City may be able to employ alternative solutions with the management of EFAC. The City welcomes creative structuring alternatives in submitted proposals.
2.2
Facility Activities
A. Service Standard: As a City sports venue constantly in the public eye, every aspect of operation for the Facility shall produce and maintain exemplary service standards. Each employee and contracted employee is expected to contribute to an efficient, responsive, positive and safe environment for public enjoyment. B. Marketing: Progressive marketing strategies, including the marketing and selling of sponsorships and naming rights shall be developed to promote the use of the Facility as a premier venue for local, regional, national and international tournaments in soccer, as well as other sports. Additionally, the City is interested in the Operators experience and capabilities in marketing national and international soccer matches for play in the Cotton Bowl stadium at Fair Park.
2.3
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maintenance of the Facility. E. Cleanliness: The Operator shall provide all housekeeping, janitorial, and trash/refuse disposal services necessary for the operation of the Facility. F. Maintenance and Repair: The Operator shall maintain the Facility in good repair, including all athletic fields and associated equipment and systems, building equipment and systems, electrical, mechanical, plumbing, heating/air conditioning systems, gates and doors, light fixtures and bulbs, security equipment, etc. The Operator shall perform routine repair and maintenance of Facility structures, scoreboards, interior and exterior lighting, irrigation systems, termites and pest extermination, exterior grounds and all public and common areas of the Facility to keep them in a neat, safe, clean, operational, sanitary and attractive condition. Grounds maintenance methods shall comply with USGA standards. The Operator will be required to provide a maintenance facility for the storage of maintenance equipment, vehicles and supplies. G. Utilities: The Operator shall pay the cost of all utility services and initial connection charges, including but not limited to water, gas and electricity used in connection with or chargeable against the Facility for the duration of the term of the contract. The Operator shall be responsible for the installation, maintenance and expense of a security system and its own telephone services serving the Facility. H. Policies: The Operator shall develop proposed operating policies, procedures and rental rates for the Facility to be approved by the City. The Operator shall submit any changes to operating policies, procedures and rental rates for prior approval of the Director; such approval will not be unreasonably withheld. The City reserves the right to approve all rates. I. Operating Account: The Operator shall deposit all funds generated from the operation of the facilities in a special bank account with a federally insured commercial bank or savings & loan institution that is located within the City limits of Dallas, Dallas County, Texas. This bank account and the balance of funds shall be used solely for purposes of making payments for costs required to perform this Contract. Annual Operating Budget: The Operator shall submit annual operating budgets for the upcoming fiscal year to the Director for review, at a date to be determined each year by the Director. Such budgets shall include detailed information regarding estimated income to be received from all sources and a clearly detailed budget of expenditures. The Operator shall pay for operational costs of the facilities through revenue generated there-from. The Operator shall have the obligation to pay all charges for water, electricity, gas and sewer service used in the Facility and all charges for telecommunication services. The City shall in no event be liable to pay for any interruption for failure of such utilities and service.
J.
K. Business Inclusion and Development (BID) Plan: The Operator shall abide by the City's Business Inclusion and Development Plan (BID), formerly known as the Good Faith Effort Plan, for the utilization of certified minority and women-owned business enterprises. L. Use: The Facility shall be used by the Operator solely for the conduct of the described Specifications unless otherwise approved by the Director.
2.4
Insurance
Operator will be required to purchase and maintain, during the term of the contract, insurance as described in Attachment 1 and agree to the indemnification statement therein.
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2.5
Bonding
Contractor will be required to post payment and performance bonds in the amount of 25% of the annual operating costs. Proposed annual operating cost estimates will be used to calculate the bond value for the first year. The payment and performance bond must be submitted within 10 business days after award of contract. Separate payment and performance bonding may be required for capital improvement projects.
2.6
2.7
2.8
2.9
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2.12 Property
A. Ownership: All property furnished by the City under the Contract shall remain the property of the City. Maintenance, repair, alteration, addition and replacement of all structures, equipment and furnishings supplied by the City or Operator during the Contract shall be at the expense of the Operator. Upon termination of the Contract, the Operator shall render an accounting of all such property which has come into its possession under the Contract. Any property contained within the Facility that is lost or damaged, resulting from improper use or negligence by Operator personnel, shall be replaced or repaired at the sole expense of the Operator. All alterations, additions and replacements of structures, equipment and furnishings shall be approved by the Director. B. Loss or Damage: The City shall not be responsible for any goods, merchandise or equipment stored at the Facility, nor shall it be responsible for loss or damage resulting from a power failure, flood, fire, explosion, theft, accident and/or any other cause. C. Use: The Facility and all City property shall be used only official performance of this Contract.
2.14 Liens
The Operator recognizes and understands that no liens may be secured against public property as a matter of law, and agrees to keep the premises and all fixtures and purchased property located thereon free from any and all claims or purported liens arising out of any work performed, materials furnished, or obligations incurred by the Operator, its on-site management, employees, and subcontractors, and shall reimburse the City for any attorney's fees incurred in the defense of proceedings to enforce or foreclose such liens including actions brought by the City to remove any such unlawful liens.
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misconduct him/herself or be incompetent, disrespectful, intemperate, dishonest, or otherwise objectionable or neglectful in the proper performance of his/her duties or who neglects or refuses to comply with or carry out the directions of the Operator. Operator agrees that all Operator or Sub-contractor employees shall submit to, and pass a police background investigation and/or a polygraph examination upon request. C. Environmental Policy: Contractors employees shall be familiar with the Citys environmental policy, especially with regard to spill response and proper chemical storage. The City will provide the Contractor with the necessary information to share with their employees. D. Supervision by Operator: (1) All supervisory and working supervisory personnel shall understand and speak English fluently, able to understand instructions and communicate to those being supervised the nature of the job and what is to be accomplished. When the work of the Contract is being carried out, the Operator or an authorized competent representative shall be present on the work site at all times, or as otherwise specified by individual locations within these specifications. The personnel employed by the Operator shall be capable employees, qualified in such work. At all times, the Operator shall staff the Facility with trained and experienced personnel. A fully qualified work force shall be on board at the inception of the Contract and shall be maintained throughout the term of the contract. All personnel shall receive close and continuing first line supervision by the Operator. All Operator and Sub-contractor employees shall be at least 16 years of age. Each employee shall be a citizen of the United States of America, or an alien who has been lawfully admitted for permanent residence, as evidenced by Alien Registration Receipt card or who presents other evidence from the Immigration and Naturalization Service that employment shall not affect his immigration status. Acceptable evidence shall consist of a birth certificate or appropriate naturalization papers. The Operator shall ensure that all employees assigned are in good general health, without physical defects or abnormalities which would interfere with the performance of duties. They shall be free from any communicable disease.
(2)
(3)
(4)
(5) (6)
(7)
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B. Independent Audit: An audit for the most recently completed fiscal year shall be submitted annually as soon as the audit is completed but no later than 6 months after the completion of Citys fiscal year on September 30. The audit of financial statements shall be conducted by a certified professional accountant in accordance with generally accepted accounting principles; reviews or compilations are not acceptable substitutions for the audited financial statements. C. Audit and Review: City may review any and all of the services performed by Operator under this Contract. City is granted the right to audit, at Citys election, all of Operators records and billings relating to the performance of this Contract. Operator agrees to retain such records for a minimum of three (3) years following completion of this Contract. Any payment, settlement, satisfaction, or release made or provided during the course of performance of this Contract shall be subject to Citys rights as may be disclosed by an audit under this section.
3.2
Proposal Submission
A. Sealed proposals are to be submitted by the Proposers responding to the Operational Management Specifications no later than 2:00 p.m. on the due date specified on the RFP Signature Page. Proposals shall be delivered by mail or in person to the Business Development and Procurement Services office at Dallas City Hall, 1500 Marilla St, Room 3FN, Dallas, TX 75201. B. It may be necessary for the City to request supplemental information from individual respondents after proposals have been submitted and reviewed. Such information will be requested in writing by the Buyer to the specific respondent and will be used by the City in evaluating the proposal. This information will not be shared with other respondents during the evaluation and award process.
3.3
Required Documentation
Documents that shall be submitted as part of the proposal process include: A. Evidence of Qualifications: To provide information with regard to these minimum qualifications, the following shall be submitted with the proposal: (1) A cover page that indicates the following information:
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a) Proposers entity name and mailing address b) Proposers current legal status (corporation, partnership, sole proprietor, etc.) c) Federal ID number or social security number d) Primary Contact Person and Alternate Contact Persons name, title, phone number, fax number and email address e) Signature of authorized corporate officer for each entity proposing individually or as a partnership or team (2) A one-page Statement of Interest that briefly describes the Proposers unique qualifications as they pertain to this particular project. A Narrative Summary of not more than four (4) pages in length that includes the nature and structure of the proposed management and operation agreement and how the proposal addresses each of the goals. This narrative summary shall include details regarding the Proposers plan for maintenance, management, operations and marketing of the Facility. A one-page Statement of Qualifications to include summary of relevant background and experience in managing, operating and marketing comparable facilities. Certification of the ability to begin full operations upon award of Contract. A proposed organizational chart, job descriptions and the qualifying experience required for each position. Additionally, bios and resumes of key personnel who would manage the Facility should be included. This section of the proposal shall not exceed five (5) pages. A one (1) to two (2) page description of Proposers office, location, permanent staff size, and any additional material that would support the Proposers ability to perform the demands of a Contract. A preliminary Operating Pro Forma showing the methodology for maintenance and operations of the Facility. This section of the proposal shall not exceed three (3) pages. A preliminary rental and use fee schedule that includes rates for different types of events. This section of the proposal shall not exceed two (2) pages. A ticket sales plan that addresses both rentals and Proposers own events (if the Proposer generates its own events). Any ticket surcharge that is planned to be charged shall be outlined in the plan. This section of the proposal shall not exceed two (2) pages. A Facility Utilization and Marketing Plan for maximizing overall usage of the Facility, giving particular emphasis to marketing sponsorship and naming rights and marketing the Facility as a premier venue for local, regional, national and international athletic events and competitions. Additionally, a marketing plan that would bring national and international soccer matches to the Cotton Bowl stadium at Fair Park. This section of the proposal shall not exceed three (3) pages. A financial statement, including the Proposers assets and liabilities at the close of the most recent accounting period. Said statement is to be certified by a certified public accountant. In addition, the Proposer shall submit financial statements for each of three years preceding the most current statement.
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
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(12)
Proposed annual operating budgets for the periods January 1, 2013 through December 31, 2013, and January 1, 2014 through December 31, 2014. Each budget shall show a detailed breakdown of both anticipated expenses and revenues, to include any proposed management fee to be paid to the City or a plan for shared revenues, concession fees, etc. Include a proposed annual operating budget for each of the three scenarios described in Section 1.2 B above. Listing of key tasks to be completed by Proposer upon signing of Contract and prior to assuming on-site management responsibility for the Facility. Include proposed timeline and estimated costs. Description of plan to address anticipated uses for the Facility for 2013 and beyond. Background materials such as letters of support and information pertaining to Proposers qualifications, facility management, operation and marketing experience. This section of the proposal shall not exceed five (5) pages. A manual of proposed operational procedures or a sample manual of operating procedures for a facility currently under the management of the Proposer. A descriptive list of items of equipment and furnishings, including costs that the Proposer proposes to provide in compliance with these Specifications. A list of no less than four (4) clients, with names and phone numbers of contacts, that can attest to the Proposers capacity to provide the services requested in this Proposal. Ideally, the references should include clients to whom the Proposer has provided operational management services within the past three (3) years.
(13)
(14) (15)
(16)
(17)
(18)
B. Other Documents: (1) (2) (3) (4) (5) (6) (7) (8) Conflict of Interest form Business Information Form Environmental Affidavit BID Affidavit (BDPS-FRM-203) * Ethnic Workforce Composition Report (BDPS-FRM-204) * Affidavit History of M/WBE Utilization Form (BDPS-FRM-205) * Affidavit Type of Work by Prime and Sub-consultant (BDPS-FRM-206) * Affirmative Action Plan (see BDPS-PRO-204)
* Forms 203, 204, 205 and 206 will be scored: see Section 4.3 D C. If the Proposer has any concerns regarding its ability or willingness to meet with any terms and conditions expressed in this RFP or in the attached sample contract, please include a statement that addresses the particular terms and any alternative language preferred by the Proposer. D. City reserves the right to require additional information as deemed necessary to ascertain the qualifications of the Proposer.
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3.4
3.5
Oral Presentations
If deemed necessary, the City may, after the initial proposal evaluations, schedule oral presentations with any or all Proposers.
3.6
Disqualification of Proposer
Proposer may be disqualified for any of the following reasons: A. Reason to believe collusion exists among the Proposers B. The Proposer is involved in litigation against the City C. The Proposer is in arrears on an existing Contract or has failed to perform on a previous Contract with the City D. Failure to complete RFP forms as requested E. Failure to meet Specifications F. The decision of the City as to the acceptability of the qualifications of the Proposer shall be final.
3.7
Due Date
Sealed proposals are to be received at the Business Development and Procurement Services office at Dallas City Hall, 1500 Marilla St., Room 3FN, Dallas, TX 75201 by the time and date identified on the RFP Signature Page, or as updated by addendum. Follow the instructions in the official advertisement and City of Dallas website, www.bids.dallascityhall.org, from which the RFP Packet is downloaded from for instructions to address any questions you may have concerning the RFP.
3.8
Public Information
All information, documentation, and other materials submitted in response to this RFP are are subject to public disclosure under the Texas Public Information Act after the solicitation is completed and contract executed with the selected Proposer.
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4.2
4.3
(2)
(3)
(4)
(5) B.
Proposers plan for the management and operations of EFAC (Max 35 points):
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(1)
The proposed plan for the management and operations of the Facility and how it works toward achieving the Citys goals for the long-term management and operations of EFAC; Value of the Proposers financial contribution to the project, both short and long-term, including effects of each of the three scenarios described in Section 1.2 B above; Sound fiscal plan for current and future management, operation and maintenance of the Facility; Strategy to maximize the use of the Facility and emphasize its attractiveness as a premier venue for high-profile sporting events.
(2)
(3)
(4)
C.
Proposers plan for operating subsidy from the City and/or revenue-sharing with the City over the contract term and extensions. Revenue sharing options can include options for capital improvements over the life of the contract. (Max 15 points) Demonstrated inclusion and commitment to and understanding of the Citys Business Inclusion and Development (BID) Plan (Max 15 points) It is the policy of the City of Dallas to involve Minority and Women Business Enterprises (M/WBE) to the greatest extent feasible on the Citys construction, procurement and professional services contracts. The following information shall be submitted with the proposal and shall include: (1) (2) (3) Affirmative Action Plan or Policy 1 point Ethnic Workforce Composition Report (BDPS-FRM-204) 1 point RFP/RFQ Contractors Affidavit History of M/WBE Utilization Form (BDPS-FRM-205) documenting the history of M/WBE utilization on previous contracts 4 points RFP/RFQ Contractors Affidavit Type of Work by Prime and Sub-consultant Form (BDPS-FRM-206) which includes a significant number of diverse M/WBE firms in meaningful roles on the project 7 points a) The name, address and telephone number of each M/WBE b) The description of the work to be performed by each M/WBE; and c) The approximate dollar amount/percentage of the participation (5) Business Inclusion and Development Affidavit (BDPS-FRM-203) which demonstrates the intent to comply with the policy and evidence of M/WBE inclusion to meet the BID goal for the project. The BID Affidavit exhibits evidence of acknowledgement of the City of Dallas BID Plan 2 points
D.
(4)
4.4
Evaluation of Proposals
The City will evaluate the proposals and submit a recommendation to the Park Board and City Council for approval. The City may, in its sole discretion, expand or reduce the criteria upon which it bases its final decision regarding the selection of an Operator. The final selection, if any, will be the proposal which best meets the requirements set by the City.
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4.5
Contract Award
Upon selection of a successful Proposer, the City and the Proposer will negotiate a final contract, based on the terms outlined in this RFP. A sample agreement, with the general terms for the final contract, is attached as Sample Contract for Services. By submitting a proposal, the Proposer agrees to be bound by these terms and conditions unless otherwise noted in the Submittal. The final contract is subject to Park Board and City Council approval.
Section 5 - Contract
5.1 Award of Contract
A. The City intends to award this Contract in its entirety to the Proposer determined to be most advantageous to the City. B. The City of Dallas reserves the right to reject any and all proposals and to waive any and all irregularities and formalities where it is in the best interest of the City and the Facility. The submission of a proposal not in keeping with the City's goals and which could adversely affect the City of Dallas' public image shall not be accepted. The City reserves the right to withhold the award of the Contract for a reasonable period of time and no award shall be made until investigations are completed as to the capabilities of Proposers. C. The Contract Documents shall be drafted by the City Attorney's Office and tailored for this overall operational agreement. The Operator shall be required to sign the Contract prior to City Council approval, and provide all documents required within fifteen (15) days after award of the Contract by City Council. The Contract shall be governed by and construed in accordance with the Charter and ordinances of the City, as amended, and all applicable State and Federal Laws. The obligations of the parties to the Contract shall be performable in the City of Dallas, Dallas County, Texas, and if legal action is necessary in connection therewith, exclusive venue shall lie in Dallas County, Texas. D. The City's Contract shall be with the successful Proposer only, and shall not include any third party arrangement. E. In the event that the successful Proposer does not fulfill the immediate obligations of the Contract (acquisition of proper insurance, etc) within fifteen (15) days following contract execution, the award of the Contract may then be made to the next most advantageous responsive and responsible Proposer, or the City of Dallas may, as its exclusive option, decide to request for new proposals.
5.2
Assignment of Contract
A. No Assignment: The Operator shall not assign, transfer, sublet, convey or otherwise dispose of the Contract or any part therein or its right, title or interest therein or its power to execute the same to any other persons, firm, partnership, company or corporation without the prior written consent of the Director. Should the Operator assign, transfer, sublet, convey or otherwise dispose of its right, title or interest or any part thereof in violation of this section, the City, at its discretion, may cancel the Contract and all rights, title and interest of the Operator shall therein cease and terminate, and the Operator shall be declared in default. B. Sub-Contracting: The Operator may further sub-contract any portion of the Contract, but shall first obtain written approval from the Director. Any such Sub-contractors shall be prepared to meet the same guidelines and standards set forth in this specification. If any Subcontractor intends to use its own Sub-contractor(s), every effort shall be made to hire minority and women-owned firms, and the Sub-contractor shall specifically agree to make all
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reasonable efforts to meet or exceed the City's BID goals for the utilization of such firms.
5.3
Indemnity
A. The Operator shall agree to defend, indemnify and hold the 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 that may arise out of or be occasioned by the Operator's intentional or negligent breach of any of the terms or provisions of this contract, or by any other negligent or strictly liable act or omission of the Operator's, its officers, agents, employees, tenants, or subcontractors, in the performance of this contract; except that the liability resulting from the sole negligence of the City, its officers, agents, or employees. In the event of joint and concurrent negligence of the City and the Operator responsibility, if any, shall be apportioned comparatively in accordance with the law of the State of Texas, without waiving any governmental immunity available to the City under Texas law and without waiving any defense 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. B. Anything herein to the contrary notwithstanding, the City shall not be liable or responsible for any failure to furnish the services set forth above occasioned by strike or other work stoppage. Federal, State, or local government action, breakdown, or failure of apparatus, equipment or machinery employed in supplying the said services, any temporary stoppage for the repair, improvement or enlargement thereof or any act or condition beyond its reasonable control.
5.4
Default
A. Events of Default: The following events shall be deemed to be events of default by Operator under this Contract: (1) Operator shall become insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors. (2) Operator attempts to assign the Contract without the prior written consent of the Director; or (3) Operator shall fail to perform, keep or observe any term, provision or covenant of the Contract to be performed, kept or observed. B. If an event of default occurs, the Director shall give the Operator written notice of the default. If the default is not corrected to the satisfaction and approval of the Director within thirty (30) days of receipt of such notice by the Operator, the City may immediately replace the Operator. The City shall not pay any expense to the Operator resulting from this action. C. At the direction of the Director, the Operator shall vacate the facilities and shall have no right to further operate under the Contract. D. Within forty-eight (48) hours after such demand by the City, the Operator, under the supervision of the Director, shall remove all equipment and supplies to which he is properly entitled, as specified herein. E. The Operator in accepting the Contract agrees that the City shall not be liable to prosecution for damages or lost anticipated profits in the event that the City cancels or terminates this Contract. F. No waiver by the City of any default or breach of any covenant, condition, or stipulation
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herein contained shall be treated as a waiver of any subsequent default or breach of the same or any other covenant, condition, or stipulation hereof.
5.5
5.6
5.7
Miscellaneous
A. Operator shall thoroughly familiarize itself with the provisions of these Specifications and the nature of the proposed Facility. After executing the Contract, no consideration shall be given to any claim of misunderstanding. B. In the event that either party hereto is prevented from completing its obligations under the Contract by act of God, strike, lockout, material or labor restrictions by any governmental authority, civil riot, flood or any cause beyond the control of the parties hereto, then such party shall be excused from such performance for such period of time as is reasonably necessary after such occurrence to remedy the effects thereof. C. The section headings in these Specifications are for convenience in reference and are not intended to define or limit the scope of any of the conditions, terms or provisions of these Specifications. D. Should any question arise as to the proper interpretation of the terms and conditions of these Specifications, the decision of the City Attorney shall be final. E. No notice to the Operator to quit possession at the expiration date of the term of this Agreement shall be necessary. Operator covenants and agrees that at the expiration date of the term of the Contract, or at the earlier termination hereof, it shall peaceably surrender possession of the premises in good condition, reasonable wear and tear, and acts of God excepted, and the City shall have the right to take possession of the Facility or any portion thereof without being liable for prosecution or any claim of loss or damages thereof. F. The Operator shall not allow the distribution of campaign or political literature of any kind by any employee at any time at the Facility.
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5.8
Conduct of Work
Any work which is unsatisfactory to the Director shall be called to the attention of the Operator and the Operator shall be required to properly service the areas in question by commencement of work the following day, and to take steps to improve the overall results in the future. Failure by the Operator to comply with such requests shall result in the corrective work being done by others with the cost charged to the Operator, and deductions being imposed as stated in Complaints and Non-performance, or in termination of the Contract.
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