HomeMy WebLinkAboutContract 26885 CITY SECRETARY
FACILITY LICENSE CONTRACT No.
FACILITY LICENSE AGREEMENT NO.120
This FACILITY LICENSE(the"License")is to be used solely for the purpose of naming the location of the Facility identified herein and to add said
Facilityto the Agreement for Placement of a City ofFort Worth.Water Department Customer Service Facility in Minyard Food Stores(the"Agreement")
between Minyard Food Stores,Inc.and the City of Fort Worth,Texas.Further,the purpose of this License is to define and list the applicable dates,fees,
construction plans,drawings,specifications and related documents applicable to the development and operation of the Facility.This License is,to the
extent provided under the Agreement,hereby made a part of the Agreement and is subject to the terms,conditions,and consideration thereunder.
Licensed Location: Carnival Food Store#120 Minyard Reference Number#120
Address: 102 N.W. 28`h,Forth Worth,Texas 76106
1. License Commencement Date:
2. License Fee&Initial Term Commencement Date:
3. Initial Term End Date:
4. Number of Square Feet: Approximately 180 sf(10'x 18')
5. Annual License Fee: $13,200.00
6. Monthly Payment of License Fee: $1,100.00
7. Number of Option Terms: I for 5 years
8. Annual License Fee during Option Term: Same terms and conditions as the initial term,except that the annual License Fee
shall be increased by an amount equal to the CPI increase between December
1997 and December 2002,not to exceed a total increase of fifteen percent(15%)
or increase by less than five percent(5%). Said Option Term for this Facility
License must be exercised in writing by Fort Worth no later than one hundred
twenty(120)days prior to the Initial Term End Date outlined above.Should Fort
Worth fail to provide such written notice,the Option Term shall be waived and
of no further force or effect. Should the Annual License Fee for the Initial Term
be reduced as provided for in Section 11 herein below,the Annual License Fee
for the Option Term shall be calculated as if there was no reduction.
9. List of drawings,plans,specifications,building lease agreements of other documents applicable to and hereby made a part of this License:
Complete construction specifications including finishes and interior and exterior signage for Minyard's approval.
10. Minyard shall construct the Facility in accordance with plans and specs approved by Fort Worth and Minyard.Fort Worth shall reimburse
Minyard for the cost of construction of the Facility,not to exceed$20,000.,with said improvements including Architectural plans,electrical
outlets, lighting,walls and treatment, flooring, counters and HVAC duct work. Said improvements shall not include equipment,supplies,
computers,phones,furniture,signage or security systems.
EXECUTED in multiple counterparts and effective this Day of 2001.
MINYARD FOOD STORES,INC. CIT F FORT WORTH,TEXAS
Address: P.O.Box 518,777 Freeport Parkway Address: 1000 T ock orton
Coppell,Texas 75019 Fo o exas,76102
By: By
Prin d Name: J.L.Williams Printed Name:
Title:President,Chief Operating Officer Title:
L " 13e�3 BY
Contract Authorization ATTESTEDJ �I-�� r '�1 C D�U�D
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AGREEMENT
FOR
A
PLACEMENT OF
A
CITY OF FORT WORTH
WATER DEPARTMENT
CUSTOMER SERVICE FACILITY
IN A
CARNIVAL FOOD STORE
By and Between
THE CITY OF FORT WORTH
and
MINYARD FOOD STORES,INC.
AGREEMENT
This Agreement for placement of a Cit of Fort Worth Water Department Customer Service Facility in a Minyard Food Store("Agreement")is entered
into by and between The City of Fort worth("Fort Worth")and Minyard Food Stores,Inc.,a Texas corporation("Minyard").
1. SCOPE OF AGREEMENT 2.6 "Calendar Day": Means every day of any given month or
portion thereof.
1.1 This agreement establishes the terms, conditions and
consideration under which Minyard will permit Fort Worth 2.7 "Initial Term":The Initial Term of a Facility License shall be
to construct and operate a Customer Service Facility in a for five(5)years from the License Fee Commencement Date
designated Minyard Food Store. or other such term as may be specified in the Facility License.
2.8 "License Commencement Date": The effective date for a
1.2 At such time that Fort worth and Minyard identify the Facility License to commence as shown on a Facility License.
specific Minyard Food Store where the Facility is to be
located, Fort Worth and Minyard will execute a Facility 2.9 "License Fee": The amount of the annual License Fee for a
License in substantially the same form as Exhibit A hereto. Facility shall be as mutually agreed between Minyard and the
The Facility License and attachments thereto, will identify Fort Worth on a case by case basis but shall not be subject to
the specific details related to the specific Minyard Food Store change during the Initial Term.The annual License Fee for an
which is described as a"Licensed Location"herein. Option Term shall be as set forth on the Facility License.The
License Fee is payable monthly in an amount equal to one-
1.3 The location of the Facility within a Licensed Location will twelfth(1/12)of the annual License Fee.
be as agreed on the applicable Facility License, but will
generally be at or near the front entrance. 2.10 "License Fee Commencement Date":The date when the first
License Fee payment is due under a Facility License. The
1.4 The floor space requirements of the Facility are expected to Initial Term also starts on this date.
range from 125 to 200 square feet. In all instances they will 2.11 "Licensed Location":A Minyard Food Store building that is
include teller type customer service window, accounts owned or leased by Minyard and operated as a supermarket
assistance desk. Details of the features,size and contents of located at the address shown on a Facility License and
each Facility will be a part of the Facility License. identified by Minyard's applicable reference number.
2. DEFINITIONS 2.12 "Option Term":An Option Term of a Facility License shall
be for five(5)years from the end of the Initial Term,or such
2.1 "Approved Plan":That certain plan attached to and made a other term as may be specified in the Facility License.
part of the Facility License showing the location of the 3. TERM OF AGREEMENT
Facility within the Licensed Location and showing the
layout, dimensions and detailed plans, signs and 3.1 This Agreement shall apply and remain in effect from the date
specifications of a Facility. of execution and continue for as long as the Fort Worth has a
2.2 Intentionally Omitted. Facility in a Licensed Location.
4. LICENSE
2.3 "Facility": Is a full service City of Fort Worth Water
Department customer service facility within the Licensed 4.1 Subject to the terms and conditions set forth therein, upon
Location which is staffed with and operated by one(1) or execution of one or more Facility Licenses:
more of Fort Worth employees whose functions will include,
without limitation, opening new accounts, accepting (a) Minyard grants to Fort Worth, a license to install
payments for services and performing customary customer and operate a Facility, in the Licensed Location
service functions. A Facility will be equipped with online named on the Facility License;and
water department computers,and will include a safe and a (b) The Fort Worth hereby agrees to construct and
night depository. A Facility may also offer such other continuously operate a Facility in the LicensedLocation.
services as may be permitted by applicable law and
regulation, are common to Fort Worth's similar customer 4.2. The Fort Worth shall use the Facility only as specifically
service facilities in the City of Fort Worth, subject to prior described in Section 2.3.
written approval of Minyard. Notwithstanding the forgoing,
Fort Worth shall not sell money orders,sell lottery tickets or 4.3 The Fort Worth agrees not to place or allow an automatic
cash checks. teller machine(ATM),or other similar electronic terminal that
performs banking functions within the Facility.
2.4 "Facility License": A document signed by authorized
representatives of Minyard and the Fort Worth that identifies 4.4 A Facility License shall not limit or restrict the right of
Minyard to transact:or ad or conducted conduct any activity or service which
a Licensed Location, License Commencement Date and is
License Fee for a Facility. A Facility License includes the typically transacted Minyard in the
operation of its similar food store facilitieie s.
Approved Plan and related documents applicable to the
Facility. 5. TERM OF A FACILITY LICENSE
2.5 "Business Day": Means any day, Monday through Friday 5.1 A Facility License shall be for an Initial Term of five(5)years
excluding Fort Worth holidays of any given week or portion fry,,,rhe I i Pnse Commencement Date or such other term as
thereof r f,'JP a in the Facility License.
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5.2 Fort Worth, by giving Minyard prior written notice, as Agreement or at law or in equity,Minyard shall have the right
specified in the Facility License,before the expiration of an to direct said Fort Worth employee to leave the Licensed
Initial Term for a Facility may extend the term of a Facility Location without right of re-entry,unless approved in writing
License for one Option Term of five(5)years or other such by Minyard.
Option Term as may be specified in the
Facility License. 6.4 Fort Worth's employees,while working at a Facility,shall be
entitled to use restrooms and"break rooms"at the Licensed
5.3 In the event Fort Worth fails to give notice as provided Location on the same basis as such facilities are provided by
above, then the applicable Facility License shall Minyard for the convenience of its employees.Minyard and
automatically terminate on the expiration date specified in Fort Worth shall each prohibit their respective employees
the Facility License. from soliciting each others employees, for any purpose.
Minyard shall provide parking spaces for Fort worth's
6. GENERAL employees of the Facility on the same basis as Minyard's
employees;provided,however,that Minyard may designate
6.1 Each party represents, warrants, and covenants the the location of such spaces.
following:
6.5 Intentionally Omitted
(a) Its execution, delivery, and performance of this
Agreement do not violate the terms of any law,
regulation, court order or material agreement to 6.6 Fort Worth agrees to comply with, and agrees that this
which such party is subject. Agreement and Facility Licenses and all of Fort Worth's rights
hereunder are subject to, (i) all applicable provisions,
(b) Each party shall comply with applicable laws, restrictions and requirements set forth in the lease(s)(if any)
statutes, regulations, ordinances and building and restrictive covenants (if any) affecting the Licensed
codes. Location and all other documents incorporated into a Facility
License, and (ii) all other reasonable rules, regulations,
(c) This Agreement is a valid and binding obligation restrictions and agreements now or hereafter affecting the
of the representing party,enforceable against such Licensed Location.
party in accordance with its terms.
7. PAYMENT OF LICENSE FEE(S)
(d) It will not infringe,misappropriate,or violate any
third-party rights, including, without limitation, 7.1 The first License Fee payment is due upon execution of the
property or contractual rights, nondisclosure Facility License and shall be applied to the first full month of
obligations, trademark rights, copyrights, patent the Initial Term starting with the earlier of the License Fee
rights or other proprietary rights. Commencement Date or the date the Facility first opens for
business.
(e) It will,if for any reason they suspect or discover
they may not be able to perform their obligations 7.2 License Fees shall be payable in advance on the first day of
hereunder or in any Facility License,immediately each month and shall be prorated on a daily basis for any
notify the other party in writing.This notification partial month,including the months in which the obligation to
must include a detailed description of the problem, make such payments commences and terminates.Any License
the causes of the problem and a plan to resolve the Fees and other monetary obligations not paid within ten(10)
problem. Submission of such a plan shall not Calendar Days from the date when due shall bear interest at
relieve the party of its obligations and shall not the lower of one and one-half percent(1.5%)per month or the
preclude any remedies available to the party highest rate of interest permitted by law.
hereunder.
8. UTILITIES
(f) It will in the performance of its obligations under
this Agreement,act fairly and in good faith. 8.1 Minyard shall provide, or cause to be provided, electrical
service to the boundary of the Facility.Fort Worth assumes all
(g) Where notice,approval,or similar action by either responsibility for the installation, maintenance and
party hereto is permitted or required by any replacement of electrical fixtures, wiring, conduit and
provision of this Agreement,such action shall not connections which fall within the Facility.Minyard will not
be unreasonably delayed or withheld. pay for any costs of any electrical facilities required by Fort
Worth such as meters, signs, security systems, conduits,
(h) It shall take and require its subcontractors to take wiring or transformers which fall within Fort Worth's
reasonable precautions and institute procedures responsibilities herein.
designed to promote safety, avoid accidents and
prevent injury to persons or property under their 8.2 Fort Worth shall, at its expense,provide its own telephone
control. service,data processing,transmission lines and wire.
6.2 Neither party shall be liable for the acts or omissions of the 8.3 Deposits,if any,for Fort Worth utilities will be provided by
other party's employees and agents in performing its Fort Worth.
respective obligations under this Agreement.
9. USE AND OCCUPANCY
6.3 Fort Worth and Minyard each have the sole and exclusive
right and responsibility to select and,subject to the terms of 9.1 Fort Worth shall open the Facility for business on the License
this Agreement,to direct its employees and to determine the Fee Commencement Date and continuously operate,
terms and conditions of their employment.Notwithstanding excluding le al holidays as observed by Fort Worth(ie:New
the forgoing, in the event any employee of Fort Worth is .h 'fear' day„ in Luther King, Jr.'s Birthday, Memorial
7r(, r li
caught shoplifting or engaging in some other illegal or J u,Y U I ,ayg ` y Thanksgiving Day and Christmas Day)or as
dangerous activity in the Licensed Location,then in addition 7 r•� r to ly agreed between Fort Worth and Minyard,
to any other rights Minyard has under the terms of this I� tI C n and operate the Facility from 9:00 a.m.to 8:00
n
p.m. Monday through Friday, 9:00 a.m. to 7:00 p.m. on claim with respect to any failure of such plans and
Saturdays and 12:00 p.m. to 5:00 p.m. on Sundays. specifications to comply with the same.
Notwithstanding the hours of operation described in the prior
sentence,subject to Minyard prior written approval,which 12.3 Fort Worth shall, at its sole expense, furnish all fixtures,
shall not be unreasonably withheld,Fort Worth may extend equipment and furnishings and any additional electrical
or reduce the hours of operation to correspond to business service and other utility connections (collectively,
requirements. "Equipment")that are required for Fort Worth operations in
the Licensed Location. Such Equipment shall be identified on
9.2 Fort Worth shall operate the Facility in the same manner as the Approved Plan.
Fort Worth customarily operates other offices (including
providing or promoting such services as are from time to 12.4 Fort Worth shall complete the installation of the Facility
time customarily offered by Fort Worth at other similar including all Equipment, and be open for business no later
customer service facilities of Fort Worth),provided that: than the License Fee Commencement Date,or as the License
Fee Commencement Date may be extended by "Force
(a) the Facility shall be adequately staffed during all times Majeure"as defined herein.
of operation;
12.5 If the Facility is not completed within thirty (30) calendar
(b) Minyard shall have the right to establish acceptable days after the License Fee Commencement Date,then either
business practices and operations in order to protect party to this Agreement,except for a party whose actions or
and ensure the continuity of in-store operations and lack of actions has caused the delay, may terminate the
first-class public image,and Fort Worth shall to the Facility License by written notice to the other,in which event
extent it is reasonable and practical, abide by and Fort Worth shall have ten (10) business days after such
ensure its subcontractors,agents and employees abide termination to promptly remove the Facility and the
by the same. Equipment and restore the applicable part of the Licensed
Location to as good a condition as existed prior to the License
10. Intentionally Omitted Commencement date.
11. MARKETING 12.6 Fort Worth shall, if such plans are not attached to a Facility
License at the time it is signed,within fifteen(15)calendar
11.1 Intentionally Omitted days thereof, or other mutually agreed time, submit to
Minyard for its approval, plans for all improvements
11.2 Minyard and Fort Worth agree to explore, and where proposed, including, without limitation, construction
mutually agreed,to implement co-marketing arrangements materials, colors, fixtures, lighting, signs and graphics.
that illustrate their unity with each other. Minyard agrees,within ten(10)Business Days after receipt of
the plans from Fort Worth to give Fort Worth written
11.3 Any solicitation of Minyard's customers by Fort Worth' approval, disapproval or approval with conditions of such
personnel is to be done in a professional and courteous plans. In the event Minyard disapproves or approves such
manner.Minyard's Licensed Location manager must approve plans with conditions,Fort Worth shall diligently revise such
the location and duration of said solicitation of Minyard's plans accordingly and submit them for Minyard final approval
customers. within five(5)business days or other mutually agreed time,
from the date of its receipt of Minyard's disapproval or
11.4 Both Minyard and Fort Worth may, at their expense, conditions to such plans. If Minyard and Fort Worth do not
advertise the existence and location of the Facility agree on all of the plans withing thirty(30)calendar days after
established pursuant to this Agreement in such media and in the plans are first submitted to Minyard, Fort Worth or
such manner as each deems appropriate.However,the prior Minyard may terminate the applicable Facility License by
written approval of each party shall be obtained with regard written notice to the other party.
to any advertisement that refers to both parties or to the party
other than the party which is undertaking the advertisement. 12.7 Fort Worth agrees to commence construction in a timely
The cost of any such joint advertising undertaken by either manner as mutually agreed, on a case by case basis, after
party shall be shared between the parties as agreed by them Minyard's final approval of the Approved Plan and open the
prior to such advertising being underwritten by either of the Facility on the License Fee Commencement Date. If for any
parties.However,neither party shall be obligated to approve reason Fort Worth is unable to obtain all permits and
any joint advertising proposed by the other,or to share in the authorizations which are required with respect to a Facility,
cost of any joint advertising undertaken by the other party. withing forty-five (45) calendar days following Minyards
final approval of the Approved Plan, including, but not
12. CONSTRUCTION OF FACILITY limited to building permits,sign permits,and/or certificates of
occupancy, Fort Worth or Minyard may terminate the
Except as may be provided in the Facility License applicable Facility License by written notice to the other
Agreement. party.
12.1 Fort Worth shall at its sole expense, and as soon as 12.8 Fort Worth agrees to construct the improvements for the
practicable,after the License Commencement Date,install Facility in a good and workmanlike manner and maintain its
the Facility in the Licensed Location in accordance and improvements to the Facilities in compliance with all
compliance with the Approved Plan. No construction shall applicable governmental laws, orders rules and regulations
commence until an Approved Plan has been approved in now or hereafter in effect. Notwithstanding the foregoing or
writing by Minyard. any other provision hereof, Fort Worth shall not be
responsible to comply,and Minyard agrees at its own expense
12.2 Fort Worth acknowledges that Minyard's approval of such to comply and make repairs and alterations to comply with all
plans and specifications shall not imply or constitute any ,� suc_^aws, nances,rules and regulations applicable to the
representation or warranty on the part of Minyard that such ``J��i���r0 constructi&l alteration of the Licensed Location other than
plans and specifications comply with governmental within the Facilities or with respect to an item which Minyard
requirements or any restrictions affecting the Licensed � � Cil' is to repair and maintain under another provision of this
Location nor shall Minyard be deemed to have waived any ,, Agreem nt.
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12.9 Minyard and Fort Worth acknowledge and agree that Fort (a)All lights,other than those lights provided by Fort Worth
Worth is the owner of the Facilities installed under this as part of the Facility.
Agreement and owns all removable equipment therein,but
has no ownership interest in the Licensed Location. (b)Toilet facilities,plumbing and sprinkler systems,if any.
13. SIGNS (c)Electrical service and related electrical distribution
equipment and wiring, other than computer, phone, or data
13.1 Subject to municipal ordinances, the terms of Minyard's processing and transmission lines provided by and used by
lease, if any, and Minyard's prior written approval which Fort Worth to the boundary of the Facility.
shall not be unreasonably withheld,Fort Worth may place
signs identifying its operations in the vicinity of the Facility, (d) Doors, walls, floors, floor covering, windows, roofs,
and where allowed,on the exterior of the Licensed Location. ceiling and all other structural portions of the Licensed
Minyard agrees to cooperate with For Worth in obtaining all Location, excluding those like items or structural
necessary approvals from third parties with respect to such improvements provided by Fort Worth as part of a
signs. Facility.
(e) Janitorial services for aisles and floors adjacent to a
Facility and for the remainder of the Licensed Location
13.2 Unless mutually agreed otherwise on a case by case basis, occupied by Minyard. Fort Worth shall be responsible
Fort Worth's signs shall employ the City of Fort Wroth for Janitorial Services for the Facility.
standard logo and graphics. If Minyard and Fort Worth do
not agree,or if Minyard's landlord,if any,does not consent, 15.3 In the event Minyard discontinues, suspends or is unable to
to interior and exterior Fort Worth signs and their location fulfill its obligations under Section 15.2 as a result of an act or
and dimensions,Fort Worth or Minyard may terminate the event beyond its reasonable control:
applicable Facility License by giving written notice to the
other party. (a) Fort Worth shall not be entitled to any reimbursement,
compensation or damage because of such discontinuance
14. MODIFICATIONS AND ADDITIONS or suspension,nor shall Minyard be liable to Fort Worth
for any interruption of its operations occasioned by such
14.1 After the initial installation of a Facility,Fort Worth shall suspension or discontinuance other than a reasonable
not make any material modifications or alterations to the abatement of the License Fees as provided in Section
Facility without Minyard's prior written approval, which 15.3(b)below.
shall not be unreasonably withheld.
(b) Notwithstanding the provisions of Section 15.3(a)above,
14.2 Fort Worth shall use its best efforts to perform any should such discontinuance or suspension continue and
maintenance, repairs, modifications, or additions to the interfere with the conduct of Fort Worth business in a
Facility in a manner that will not unreasonably interfere with Facility for more than five (5) consecutive Calendar
Minyard's operation in the Licensed Location. Days, the License Fees to be paid hereunder shall be
abated on a per diem bases,to such an extent as is fair
15. MAINTENANCE AND REPAIR and reasonable under the circumstances, based on the
degree of interference, throughout the period of such
15.1 Fort Worth shall,at its sole cost and expense,maintain the discontinuance or suspension.
Facilities in good and clean condition and repair.Without
limiting the foregoing,Fort Worth shall keep its Facilities (c) Should such discontinuance or suspension prevent Fort
free and clear of all waste paper. Minyard shall have no Worth from conducting business at a Facility for more
repair,maintenance or replacement obligations with respect than thirty(30)Calendar Days,Fort Worth or Minyard
to the Facilities except as specifically set forth herein.Fort shall have the right to terminate the applicable Facility
Worth shall maintain the Facilities as follows: License by written notice to the other party at any time
thereafter until Minyard continues its normal business
(a) Fort Worth shall keep and maintain the Facilities in operation and is fully able to fulfill its obligations.Such
good order and repair, including all Equipment termination shall be effective as of the date of notice.
installed therein and all electrical, phone or other
transmission lines used by Fort Worth for computer 15.4 Minyard shall maintain the space within a Licensed Location
data processing and transmission. directly adjacent to the entrance of a Facility free and clear of
all advertisements, signs, fixtures, barriers, signs or other
(b) Fort Worth shall provide all necessary janitorial obstructions that would obstruct the ingress to and egress from
services for the Facilities. the Facility or that might prohibit or hinder the operation of
Fort Worth' business within a Facility except as may be
(c) Fort Worth shall maintain, repair and reasonably necessary in Minyard's sole discretion in event of an
control any doors or glass windows which are part of emergency situation or temporary repair which must be made
the Facilities. in the area of the Facility.
(d) Fort Worth shall maintain and keep interior and 15.5 Minyard shall have the right to enter a Facility,subject to Fort
exterior signs in good working order. Worth reasonable security procedures, for the purpose of
performing inspections,maintenance,repairs,alterations and
(e) If any,Fort Worth shall maintain its air conditioning remodeling to the Licensed Location and for the purpose of
and heating specifically for the Facility, including exercising or performing any of its rights or obligations
changing filter as needed and replacement if hereunder. Minyard shall use its best efforts to perform any
necessary. inspections,maintenance,repairs,alterations,and remodeling
eZ�r to t_e , kens d Location in a manner that will not
15.2 Minyard shall,at its sole cost and expense,provide,maintain unreascytn rfere with Fort Worth operations or customer
in good order and repair the following at the Licensed acces � a ility.If,as a result of any repairs,remodel or
Location; I�j alterati4j a by Minyard in any part of a Licensed
Location„ ort orth is materially deprived of its use of a
Facility, Minyard shall not be liable to Fort Worth for noted below:
damages by reason thereof,nor shall the same release Fort
Worth from any of Fort Worth obligations under this (a) Workers'compensation insurance and employer's liability
Agreement,except that the License Fees payable hereunder insurance are maintained by Fort Worth:
shall be equitably reduced during the time Fort Worth is
materially deprived of its use of a Facility. Statutory limits:self funded to the$500,000 single incident
retention limit over which a commercial excess workers'
15.6 Should Minyard,in its reasonable business judgment,deem compensation insurance policy is maintained having no fixed
it necessary to relocate a Facility in a Licensed Location, limit.
Minyard may relocate such Facility to a mutually agreed
location in the Licensed Location.Minyard agrees to pay the Employer's liability:$1,000,000
reasonable and necessary expenses of relocation of Fort Limit per claim with coverage maintained on a first dollar
Worth's fixtures,equipment and furnishings due to any such basis.
relocation requirements by Minyard.Should the parties fail
to agree upon the new location for the Facility within the (b) General liability insurance is self funded by Fort Worth
Licensed Location, Fort Worth or Minyard shall have the according to paragraph one above. The Texas Tort
right to terminate the Facility License by providing ninety Claims Act limits a municipality's liability or certain
(90)Calendar Days prior written notice. governmental functions and under certain conditions to
the following limits.
16. LIENS
-$250,000 bodily injury per person
16.1 Fort Worth agrees to pay in full when due and discharge all -$500,000 bodily injury per occurrence
claims for labor performed (or alleged to have been -$100,000 property damage
performed)and materials and services furnished(or alleged
to have been furnished) in connection with installation 17.2 Fort Worth will endeavor to procure an endorsement to its
and/or operation of a Facility or Equipment so as to prevent excess workers' compensation insurance policy whereby
the assertion of claims of lien against the Licensed Location Minyard shall receive a waiver of subrogation in its favor.
and/or the land owned or leased by Minyard surrounding the Subsequently,Minyard would receive a certificate of insurance
Licensed Location. Fort Worth shall have the right, at its documenting same. As a certificate holder, Minyard would
sole expense, to contest the validity of any such lien; receive a minimum ten(10 days notice of cancellation.
provided, however, Fort Worth shall, within thirty (30)
Calendar Days after notice from Minyard to do so, and 17.3 Contractors to Fort Worth shall be required to maintain the
sooner as necessary to prevent foreclosure and/or following insurance coverages and have Minyard endorsed as
enforcement of the same,procure the release of any such lien an additional insured as its interests may appear on policies of
in a manner satisfactory to Minyard,whether by payment, such insurance:
posting of bond, obtaining an appropriate court order or
otherwise. Without limiting the generality of any other (a) Commercial General Liability:
provision of this Agreement, Fort Worth agrees to $500,000 each occurrence
indemnify, defend and hold Minyard harmless from and $1,000,000 aggregate limit
against any action filed or claim asserted against Minyard
for any reason in connection with any lien claim arising in (b) Worker's Compensation Insurance:
connection with the installation and/or operation of the statutory limits, and employer's liability at minimum
Facility or equipment.In addition,Minyard may require Fort limits as prescribed by State of Texas law.
Worth to pay Minyard attorneys fees and costs in
participating in such action if Minyard shall decide that it is 17.4 Insofar as permitted by law,Fort Worth's insurance shall be
in its best interest to do so. primary coverage with respect to any occurrence within the
premises Fort Worth leases from Minyard or any event arising
16.2 Minyard agrees to pay in full when due and discharge all out of the use of the Facility within the Licensed Location for
claims for labor performed (or alleged to have been which Fort Worth is determined legally liable.
performed)and materials and services furnished(or alleged
to have been furnished) in connection with installation 17.5 During the term of this Agreement and any renewals thereof,
and/or operation of the Licensed Location or Minyard Minyard shall maintain, or cause to be maintained, general
equipment to prevent the assertion of claims of lien against liability and casualty insurance on the Licensed Location,but
a Facility owned by Fort Worth.In the event a lien is filed may substitute therefor a program of self-insurance adequate
against the Facility as a result an act or omission of Minyard, to enable Minyard to comply with its responsibilities under
Fort Worth shall have the right, but not the obligation,to this Agreement. In all events the limits of the general liability
contest the validity of any such lien; provided, however, will be not less than$1,000,000 per occurrence,per location
Minyard shall,within thirty(30)Calendar Days after notice and$2,000,000 aggregate for bodily injury and/or death and/or
from Fort Worth to do so,and sooner as necessary to prevent property damage and/or personal injury.
foreclosure and/or enforcement of the same, procure the
release of any such lien in a manner satisfactory to Fort 17.6 Minyard and Fort Worth shall be responsible for only those
Worth,whether by payment,posting of bond,obtaining an damages for which each respective party is found legally
appropriate court order,or otherwise. liable.
17. INSURANCE 18. INDEMNIFICATION
17.1 Fort Worth is basically a self-funded entity and as such it 18.1 Minyard agrees to indemnify, defend and hold Fort Worth
does not maintain commercial insurance policies to cover its harmless from and against any and all losses,costs,expenses
general liability risks.Damage for which Fort Worth would (including,without limitation,reasonable attorneys fees,and
ultimately be found liable would be paid directly by the Fort �. reasoxtah tt ney's fees on any appeal),liabilities,damages,
�'J� �'P �_'� "' �' d mands, liens, claims of liens judgements,
Worth and not by a commercial insurance company or �� v ,�a , j g
companies. Likewise, Fort Worth's workers' compensation r� 1 ,� IN .f d causes of action (collectively "claims")
insurance program is basically self funded with exceptions �p U Cir`, - , om inyard's use of its Licensed Location and/or
rf, �U':;�i�_Ur�, VFo
resulting from the Minyard's negligence or willful under this Agreement or Facility License, and shall fail to
misconduct and/or resulting from its breach of any of its remedy the same within thirty(30)Calendar Days after written
obligations under this Agreement and for any and all such notice of such breach(or as to matters that cannot be remedied
claims resulting from the negligence or willful misconduct of withing thirty (30) Calendar Days, shall fail promptly to
its employees(acting within the scope of their employment) commence to remedy same and to pursue same diligently to
or agents and contractors(acting within the scope of their completion).
employment,agency and contracts,respectively);however,
Minyard's shall not be liable for the acts of its employees, 20.3 Remedies.
agents or contractors acting outside the scope of their
employment,agency or contract,and Fort Worth does hereby (a) In the event of any default by Fort Worth,in addition to
release Minyard from liability for any such acts. any rights Minyard has under law,Minyard shall have the
right to terminate this Agreement, or Facility License,
18.2 In so far as permitted by law, Fort Worth agrees to whichever is applicable,by written notice to Fort Worth,
indemnify, defend and hold Minyard harmless from and in which case, Fort Worth must vacate the Licensed
against any and all losses,costs,expenses(including without Location as of the date of termination. Fort Worth shall
limitation, reasonable attorneys fees and reasonably remain liable for payment of License Fees for the
attorney's fees on any appeal), liabilities, damages, and remaining term of this Agreement(initial or Option as the
claims, demands, liens claims of liens, judgments, case may be);provided,however,that if Minyard uses the
proceedings and causes of action (collectively "claims") space previously occupied by the Facility for its own
resulting form Fort Wroth's use of its Facility and/or purposes or leases (or licenses) the space previously
resulting from the Fort worth's negligence or willful occupied by the Facility to a third party,Fort Worth shall
misconduct and/or resulting from its breach of any of its receive a credit equal to the amount of all net income
obligations under this Agreement and for any and all such actually received by Minyard(not to exceed Fort Worth's
claims resulting from the negligence or willful misconduct of obligation) from such re-letting/re-licensing; provided
its employees(acting withing the scope of their employment) further, that Minyard shall have no duty to mitigate its
or agents and contractors(acting withing the scope of their damages,except as provided by law. In the event of a
employment,agency and contracts,respectively);however, default under Section 20.1 (b)above,Minyard shall also
Fort Wroth shall not be liable for the acts of its employees, have the right to perform such obligations on Fort
agents or contractors acting outside the scope of their Worth's behalf (in which case Fort Worth must
employment,agency or contract,and Minyard's does hereby immediately reimburse Minyard for all of its costs
release Fort Worth from liability for any such acts. Nothing incurred in performing such obligations together with
contained herein shall ever be construed so as to require Fort interest on such costs at the lower of one and one-half
Worth to assess, levy and/or collect any tax to fund this percent(1-1/20/o)per month or the highest rate of interest
indemnification provision. permitted by law.
19. TAXES (b) In the event of a default by Minyard,Fort Worth shall
have the right to terminate in addition to all remedies
19.1 Fort Worth shall promptly pay all taxes assessed by any available under law.
taxing authority on its operations,fixtures,equipment and/or
machinery. Minyard agrees to promptly forward to Fort (c) The rights and remedies provided in this Section 20 shall
Worth all tax bills, license notices and the like that are be in addition to, and not in substitution for, the rights
payable by Fort Worth but are received by Minyard and remedies which would otherwise be vested in the
non-defaulting party under this Agreement,or any to her
19.2 Minyard,or its landlord,if any and when applicable,shall be agreement entered into between the parties pursuant
responsible for payment of its property taxes, ad valorem hereto,including,without limitation,the indemnification
taxes or any other taxes for the Licensed Location. rights set forth herein,or at law or in equity,all of which
rights and remedies are specifically reserved to the non-
20. DEFAULT/REMEDIES defaulting party hereto. All of such rights and remedies
shall be cumulative and may be exercised concurrently;
20.1 Default by Fort Worth. provided,however,that the failure to exercise any one of
the rights and remedies herein provided shall not
(a) Payment of Money. Fort Worth shall be deemed to constitute a waiver thereof, nor shall use of any of the
be in default of Facility License if Fort Worth fails rights and remedies hereby provided prevent the
to pay the License Fees or any other amount payable subsequent or concurrent resort to any other rights and
to Minyard under this Agreement within ten (10) remedies. The parties intend that this clause shall be
Calendar Days after receipt of written notice from broadly construed so that all rights and remedies herein
Minyard of Fort Worth failure to pay such amount. provided for or otherwise available to the non-defaulting
parties shall continue and be each and all available to
(b) Failure to Perform other Obligations. Fort Worth non-defaulting parties to the maximum extent permitted
shall be deemed to be in default of a Facility License by law.
if Fort Worth breaches any obligation on the part of
Fort Worth under this Agreement other than as set (d) Notwithstanding anything in this Agreement to the
forth above,and shall fail to remedy the same within contrary, Minyard and Fort Worth, each agree that no
thirty(30)Calendar Days after written notice of such consequential damages shall be recovered by either of
breach(oras to mattes that cannot be remedied within them for any breach of the terms of this Agreement or
thirty (30) Calendar Days, shall fail promptly to Facility License.
commence to remedy same and to pursue the same
diligently to completions). 21. TERMINATION
20.2 Default by Minyard. ?1.1 In the event that execution of a Facility License with respect
T tq ap� Licensed Location causes an unforseen breach
Minyard shall be deemed to be in default hereunder if 3 i JFe'ment between Minyard and a third party or breach
Minyard breaches any obligation on the part of Minyard 177 e it or licensing requirement,Minyard shall have the
right to terminate such Facility License at any time on giving 21.4 Upon termination off this Agreement or Facility License for
written notice to Fort Worth at least one-hundred eighty any reason,Fort Worth shall,at Fort Worth's expense and no
(180)Calendar Days prior to the date of termination. Upon later than fifteen (15) days after the termination date, (i)
Fort Worth vacating the licensed location as of the date of surrender possession of the space occupied by a Facility to
termination pursuant to his paragraph 21.1,Minyard agrees Minyard in broom clean condition and as good a condition,
to reimburse Fort Worth for the unamortized capital reasonable wear and tear excepted, as existed prior to the
expenditures for the Facility paid for by Fort Worth and any License Commencement Date and, (ii)without limiting the
fixtures located thereon which are not reusable by Fort Worth foregoing Fort Worth shall remove its equipment and fully
(before installation showing an estimate of such expenditures repair any damage caused thereby.
and revised after installation to show actual expenditures)as
follows: 22. DAMAGES
Minyard Pays Fort Worth Pays 22.1 In addition to other damages recoverable by either Minyard or
Terminates %Expenditures %Expenditures Fort Worth,which ever the case may be,under applicable law
Year 1 80% 20% or this Agreement,damages recoverable shall include,without
Year 2 60% 40% limitation, losses, expenses, damages, costs, and injuries
Year 3 40% 60% incurred or suffered by Minyard or Fort Worth,which ever the
Year 4 20% 80% case may be,on account of claims made against one party by
Year 5+ 0% 100% the other, arising from an act, omission, breach, breach of
thereafter 0% 100% warranty, or misrepresentation of the other party or their
employees, agents, or subcontractors that are acting within
All costs and expenses over and above those specifically set their normal duties and responsibilities.
forth shall be borne by Fort Worth. Minyard shall have no
obligation to make payments under the foregoing paragraph 22.2 Neither Minyard nor Fort Worth shall be liable for
21.1 if Fort Worth has ceased operations of the Facility for consequential damages; provided, however, that the
more than ten(10)days or failed to open the Facility within limitations on consequential damages set forth in this Section
thirty(30)days following the License Fee Commencement shall not apply to, or in any way limit, Minyard or Fort
Date, termination results from an incurred default of this Worth's indemnity obligations under this Agreement.
agreement by Fort Worth terminates as a result of
condemnation or casualty, termination by Fort Worth as 22.3 If either party employs an attorney or commences legal or
provided herein,closure of the licensed location or expiration arbitral proceedings to enforce the provisions of this
of a Facility License Agreement. Both Minyard and Fort Agreement,the prevailing party shall be entitled to recover
Worth agree that the provisions of this Section 21.1 represent from the other,reasonable costs incurred in connection with
liquidated damages and do not constitute a penalty and that such enforcement, including, but not limited to, attorneys'
actual damages will be extremely difficult,if not impossible, fees and costs of investigation, litigation, mediation, or
to measure. arbitration.
21.2 A party to this Agreement(the"Aggrieved Party")may,by 23. STORE CLOSING
giving written notice to the other party (the "Breaching
Party"),terminate this Agreement or any Facility License 23.1 Fort Worth expressly acknowledges and agrees that
executed hereunder ifthe Breaching Party commits a material notwithstanding anything to the contrary in this Agreement,
breach of its representations, warranties, covenants, or Minyard shall have the right,at any time,to temporarily or
obligations under this Agreement; provided, however,that permanently close a Licensed Location and discontinue
the Breaching Party shall have a reasonable number of days Minyard's business in the Licensed Location for any reason
as shall be specified by the Aggrieved Party in the written whatsoever in its sole and absolute discretion, without any
notice of the breach to submit a detailed proposed plan to liability or further obligation to Fort Worth other than as
cure such breach.Said proposal may be accepted or rejected provided herein with regard to prior notice.Minyard agrees
by the Aggrieved Party in its sole discretion.Said proposal to give Fort Worth ten(10) Calendar Days prior notice of
for cure of such breach shall specify the date upon which the such closure.Such notice shall specify whether the Licensed
Breaching Party shall commence the cure process and the Location closure is estimated to be temporary (which for
date by which the Breaching Party shall have completed the purposes of this Agreement is six(6)months or less,however,
cure process. If the Aggrieved Party accepts the cure Fort Worth acknowledges and agrees that notwithstanding a
proposal,then any failure by the Breaching Party to cure the statement by Minyard that the Licensed Location closure is
breach to the satisfaction of the Aggrieved Party not later temporary,Minyard shall have the right at any time to notify
than the close of business on the date specified as the date for Fort Worth that such closure is permanent. If the Licensed
completion of the cure shall be cause for immediate Location closure is permanent, this Facility License shall
termination by the Aggrieved Party of this Agreement or terminate as of the date of cessation of Minyard's business at
Facility License outstanding hereunder. the Licensed Location. If the Licensed Location closure is
temporary,this Facility License shall continue in full force
21.3 Notwithstanding the other provisions of this Agreement, a and effect except that License Fees due hereunder shall abate
party(the"Aggrieved Party")may,by giving written notice during the period of Licensed Location closure and Fort
to the other party(the "Breaching Party"),terminate this Worth shall,during the period of Licensed Location closure,
Agreement or any Facility License hereunder iftheBreaching be relieved from its obligations to operate as required herein.
Party: Minyard agrees to make every reasonable effort to provide an
area on the parking lot of the Licensed Location during a
(a) Becomes insolvent, or generally unable to pay its temporary closure period, for Fort Worth to use for a
debts as they become due,or shall become the subject temporary facility to allow the Facility to remain open for
of a bankruptcy, conservatorship, receivership or business.
similar proceeding, or shall make a general
assignment for the benefit of its creditors;or 23.2 During a temporary closure period,if within ninety(90)days
o eco,ure, the Licensed Location is to be relocated in
r� 'Idin within one 1 mile of the existing location,
(b) Commits a fraudulent or criminal act against the � �i� �I��� fa,�� ��I�:�,ait� � ' g O g
Aggrieved P �� Cc Itis
gg arty. Iib rt i shall have the option of terminating the Facility
License or relocating its Facility to the new location under shall have no such repair obligations if Minyard does not
the same terms and conditions as provided under this repair the Licensed Location.
Agreement at the time of such location,except that the initial
term shall automatically be extended to a full five(5)years 24.5 In the event of any damage or destruction to a Licensed
for the new Facility, or such other term mutually agreed Location or a Facility which materially deprives Fort Worth
upon by Fort Worth and Minyard. If the relocation occurs of its occupancy or use of a Facility or materially impairs Fort
during the Initial Term of a Facility License,Minyard shall Worth business at a Licensed Location, the License Fees
reimburse Fort Worth for all reasonable costs associated with payable hereunder shall be equitably reduced to account for
relocating the Facility to the new building in accordance such deprivation or impairment from the date of such damage
with the schedule set forth in Section 2I.1.If the Licensed and destruction to the date the same is repaired(if applicable)
Location is not relocated and the closure is permanent,the or this Agreement is terminated.
Facility License will terminate as of the day the Licensed
Location ceases operating.If the Licensed Location is not 25. CONDEMNATION
relocated and closure occurs during the initial term of a
Facility License, Minyard shall reimburse Fort Worth a 25.1 If a portion of a Licensed Location is taken or condemned by
portion of its initial capital expenditures in accordance with any governmental authority and such taking or condemnation
the schedule set forth in Section 21.1.Notwithstanding the deprives Fort Worth of occupancy or use of a Facility or Fort
foregoing, Minyard's obligation to relocate the Facility to Worth's ability to do business is materially impaired,either
another location shall be contingent upon any pre-existing party may,upon written notice to the other party delivered no
use restriction or preexisting agreement or other conflicting later than thirty (30) Calendar Days after such taking or
agreement in place for the new Licensed Location. Should condemnation,terminate the applicable Facility License. If
such preexisting use restriction or agreement prevent neither party terminates the Facility License within such thirty
Minyard from allowing Fort Worth to place a Facility in the (30)Calendar Day period,the Facility License shall continue
relocated Licensed Location,the applicable Facility License in full force and effect. In the event of a taking or
shall terminate as set forth herein above. condemnation,Fort Worth shall have the right to pursue,in
the condemnation proceedings,claims for(i)the interruption
24. CASUALTY of Fort Worth's business, (ii) Fort Worth' relocation and
moving expenses,and(iii)restoration costs for the Facility.
24.1 If by fire or other casualty,a Licensed Location is damaged All other awards made by reason of condemnation shall be
or destroyed to the extent that Fort Worth is deprived of made to Minyard
occupancy or use of a Facility or Fort Worth's business is
materially impaired, Minyard agrees to notify Fort Worth 26. SECURITY
within thirty(30)Calendar Days after the occurrence of such
damage or destruction (or such other time frame which is 26.1 Fort Worth shall have its own security system for the Facility
specified in Minyard's Lease) as to whether Minyard or consisting of an alarm system,video surveillance system and
Minyard's landlord,if any,intends,in its sole and absolute a roll down gate at a minimum. Fort Worth shall be
discretion,to repair the damage or destruction resulting from responsible for any permits or fees resulting from or
such casualty,with an estimate of the time required for such associated with its alarm system.
repair("Minyard's Election Notice").
26.2 Fort Worth shall have the right to have a security guard or
24.2 If Minyard does not elect to repair such damage or Fort Worth police officer in a Facility at all times.Minyard
destruction,either party may terminate the Facility License shall have the right to have a security guard in the Licensed
upon written notice to the other party delivered within thirty Location at all times.Fort Worth shall limit the activities of
(30)Calendar Days after Fort Worth receipt of Minyard's its security guard to the Facility. Minyard shall limit the
Election Notice. activities of its security to the Licensed Location.
24.3 If Minyard elects to repair such damage or destruction, 26.3 The manager of the Facility shall immediately make the
Minyard(or Minyard's landlord, if any)shall proceed with manager of the Licensed Location aware of any bomb threats,
due diligence to repair the Licensed Location and the Facility robbery,or other information which could adversely affect the
License shall continue in full force and effect (it being safety of the customers,employees or invitees of Fort Worth
acknowledged and agreed to by Fort Worth,however,that if or Minyard.Fort Worth agrees to cooperate withMinyard and
Minyard's Landlord is obligated to repair under Minyard's abide by Minyard's reasonable request in regard to dealing
lease and Minyard has elected to repair, Minyard's repair with natural disasters,bomb threats or other situations which
obligations hereunder shall be limited to using reasonable could involve security or safety of employees, customers
efforts to enforce the Landlord's obligation to repair pursuant and/or invitees.
to the terms of Minyard's lease). Notwithstanding the
foregoing,if Minyard elects to repair but notifies Fort Worth 27. FORCE MAJEURE
that the time necessary for repair exceeds ninety (90)
Calendar Days from the date of the damage or destruction, 27.1 Performance of the obligations of either party to this
Fort Worth shall have the right to terminate the Facility Agreement or a Facility License shall be excused during the
License by delivering notice of such termination to Minyard period and to the extent that such performance is rendered
within ten (10) Business Days after receiving Minyard's impossible or impracticable or unduly burdensome due to acts
Election Notice.Minyard or Minyard's landlord may delay of nature;governmental requirements;unavailability of parts
performing its obligation to repair hereunder until the through normal supply sources;failure of any utility to supply
expiration of such ten(10)Business Day period, and shall its services for reasons beyond a party's control;explosion,
have no obligation to repair if it receives a termination notice accident, riot, or civil commotion; act of war; fire or other
from Fort Worth. casualty;or any other cause other than financial,beyond the
reasonable control of the party whose performance is to be
24.4 If by fire or other casualty, a Facility is damaged or e
destroyed and Fort Worth does not terminate the Facility U
i1 .' u/d1i� rl. ]�� PDD
Lease,Fort Worth will,at its expense,proceed expeditiously y u_
and with due diligence to repair the Facility and restore it to T
7I �r,s,,� G'1�
its original condition,provided, however,that Fort Worth �; u U �,;,�PMA
u� f
28. CONFIDENTIALITY prior written notice of such assignment or transfer.
28.1 Other than as required by law, the contents of this 30.4 With regard to section 30.3 above, in the event of such
Agreement, Facility Licenses, all advertisements, media assignment,Fort Worth may,within ten(10)Calendar Days
releases, public announcements and public disclosures by from receipt of written notice of such assignment or transfer,
either party, or their employees or agents, relating to this terminate this Agreement and/or Facility License by giving
Agreement or the name of the other party shall be Minyard or its successor ninety (90) Calendar Days prior
coordinated with and approved by the other party,prior to written notice.
the release thereof.
31. APPLICABLE LAW
28.2 Each party acknowledges that in connection with this
Agreement or in the performance hereof,it has or will come 31.1 This Agreement shall be governed by, and construed in
into possession or knowledge of material and information accordance with,the laws of the State of Texas("Governing
which is proprietary to the other party.Each party,therefore, State").Each party hereby submits to the jurisdiction of such
agrees to hold such material and information in strictest courts, and waives any objection to venue with respect to
confidence, not to make use thereof, except in the actions brought in such courts in the Governing State.
performance of this Agreement, and not to release or
disclose it to any other party with the exception of(i)parent 32. APPROVALS AND REQUIREMENTS
companies subsidiaries and affiliates of the parties, (ii)
attorneys and accountants,and(iii)as required by applicable 32.1 Fort Worth shall use its best efforts to obtain, in a timely
law,regulation,court order or regulatory authority. manner, all required federal, state, local and other
governmental approvals and permits required in connection
29. NOTICES with Fort Worth's construction and operation of the Facilities
and proposed use of the Facilities (collectively
29.1 All notices required or provided for under this Agreement "Governmental Approvals"). If any consents, other than
shall be given to the parties in writing as follows: (a) by Governmental Approvals, are required to be obtained from
registered or certified United States mail, return receipt any third party in connection with this Agreement or Fort
requested and postage prepaid to the applicable addresses Worth' proposed use of the Facilities ("Third Party
below, or to such other addresses as the parties may consent")Fort Worth shall promptly obtain the same at Fort
substitute by written notice given in the manner prescribed Worth's expense in writing and Minyard shall cooperate with
in this Notices Section; (b) by hand delivery, including Fort Worth,in obtaining the same. Fort Worth shall not be
courier service delivery, to such addresses; or (c) by permitted to take any action or exercise any of its rights under
facsimile machine transmission, to the numbers provided this Agreement or Facility License until Fort Worth first
below: obtains all necessary Governmental Approvals and Third
Party consents required for such actions or exercise and
If to Fort Worth: presents written evidence of the same to Minyard. Either
City of Fort Worth party,provided such party is not in default hereunder,may
Attn:Water Department terminate a Facility License without further liability to each
P O Box 870 other if Fort Worth fails to obtain all necessary Governmental
1000 Throckmorton Approvals and Third Party consents on or before the License
Fort Worth,Texas 76102 Fee Commencement Date,said termination to be effected by
written notice delivered to the other party hereto.
If to Minyard:
Minyard Food Stores,Inc. 33. ESTOPPEL CERTIFICATES
P O Box 518
777 Freeport Pkwy. 33.1 Fort Worth and Minyard agree to execute and deliver to the
Coppell,Texas 77019 other, within ten (10) Business Days following Minyard's
Attn:Properties written request,and at no expense to the requesting party,any
estoppel certificate deemed necessary to further effect the
29.2 Such notices shall be deemed to have been duly given either provisions of this Agreement as well as for any other purpose
three (3) Business Days after the date of mailing as or transaction for which Minyard or Fort Worth reasonably
described above,or one(1)Business Day after being given deems an estoppel certificate necessary. The estoppel
to an express courier, or when facsimile transmission has certificate shall certify(i)the license Commencement Date
been confirmed received. and the Fee commencement Date; (ii) the fact that this
Agreement or a Facility License is unmodified or, if this
30. ASSIGNMENT Agreement or a Facility License has been modified,
identifying all modifications hereto by name and date, and
30.1 Fort Worth shall not assign, sublease, or in any manner stating that this Agreement or Facility License,as modified if
transfer this Agreement or any Facility License without the applicable,is in full force and effect;(iii)the date to which
prior written consent of Minyard. License Fees and all other sums payable under this Agreement
or a Facility License are paid by either Minyard or Fort Worth
30.2 Fort Worth shall not mortgage, pledge or otherwise except as specified in the estoppel certificate; and(v)such
encumber its interest in this Agreement or in the Facility. other matters as Minyard or Fort Worth may reasonably
request.
30.3 In the event of the transfer or assignment by Minyard of its
interest in this Agreement and in the Licensed Locations,in 33.2 Fort Worth's failure to deliver any estoppel certificate
whole or in part,Minyard shall be released from any further requested by Minyard as required herein shall be deemed
obligations hereunder and Fort Worth shall look solely to conclusive,as against Fort Worth,that this Agreement or a
such successor in interest of Minyard for performance of Facility License is in full force and effect and without
such obligations.Any prepaid rental and/or security given _ mod catiopa cept as may be represented by Minyard,that
by Fort Worth to secure performance of Fort Worth there is npl ncured default in Minyard performance
obligations will be assigned and transferred by Minyard to hereunder,an that no more than one (1)month's License
such successor in interest. Minyard shall give Fort Worth !` Fees for any Facility License have been paid in advance.
34. CHANGES 35.5 Not a Partnership: The provisions of this Agreement and
Facility Licenses are not intended to create,nor shall they be
34.1 Neither this Agreement or any Facility License may be in any way interpreted or construed to create,a joint venture,
modified,waived or amended unless mutually agreed to in partnership, or any other similar relationship between the
writing by the parties hereto. parties.
35 MISCELLANEOUS 35.6 Third Party Beneficiary Rights: This Agreement and
Facility Licenses are not intended to create,nor shall it be in
35.1 Binding Effect: This Agreement and Facility Licenses any way interpreted or construed to create, any third party
executed hereunder shall be binding upon and shall inure to beneficiary rights in any person not a party hereto unless
the benefit of Minyard and Fort Worth and their respective otherwise expressly provided herein.
legal representatives and any entity that succeeds to the
rights of Minyard or Fort Worth as a result of any merger, 35.7 Captions and Headings:The captions and headings in this
consolidation or other corporate combination, or any Agreement are for reference only and shall not be deemed to
permitted assignment. define or limit the scope or intent of any of the terms,
covenants,conditions or agreements contained herein.
35.2 Waiver: The failure of either party to insist upon strict
performance of any of the provisions contained herein shall 35.8 Entire Agreement:The parties agree that this Agreement and
not be deemed a waiver of any rights or remedies that said Facility Licenses executed hereunder set forth all the
party may have, and shall not be deemed a waiver of any promises,agreements and understandings between them with
subsequent breach or default in the performance of any of respect to the subject matter herein. There are no promises,
the covenants or obligations contained herein. agreements or understandings,either oral or written between
them regarding such matters other than as is set forth herein.
35.3 Attorneys Fees:In the event either party initiates or defends
any legal action or proceeding to enforce or interpret any of 35.9 Counterparts: Minyard and Fort Worth agree that this
the terms of this Agreement,the prevailing party in any such Agreement may be executed in several counterparts,each of
action or proceeding shall be entitled to recover from the which when so executed shall be deemed to be an original and
losing party in any such action or proceeding its reasonable shall be deemed to be signed by an authorized representative
costs and attorney's fees,including its reasonable costs and of Minyard and of Fort Worth.
attorneys fees on any appeal.
35.4 Severability: If any term or provision of this Agreement,
Facility License or the application of it to any person or
circumstance shall to any extent be invalid or unenforceable,
the remainder of this Agreement or Facility License or the
application of such term or provision to persons or
circumstances,other than those as to which it is invalid or
unenforceable,shall not be affected thereby,and each term
and provision of this declaration shall be valid and shall be
enforced to the extent permitted by law.
EXECUTED this c2f Day of aA4,B 2001
CITY OF RT RT TEXAS MINYA— FOOD STORES,INC.
By: By:
PrintedMaine: Print Name: J.L.Williams
Title: Title: President,Chief Operating Officer
Address: 1000 Throckmorton Address: 777 Freeport Parkway
Fort Worth,Texas 76102 P.O.Box 518
Coppell,Texas 75019
ATTESTED BY
diu��
I� �5 �1�
�sU Ur N� I
€ n; R Xx
�n
EXHIBIT A
TO
AGREEMENT FOR PLACEMENT OF CITY OF FORT WORTH
CUSTOMER SERVICE FACILITY
IN MINYA" FOOD STORES
The Facility License attached to this EXHIBIT A will be reproduced and used by For Worth and Minyard to authorize Fort Worth to construct and operate
a Facility at the specified Licensed Location. Such Facility License,upon execution by an authorized representative of Fort Worth and Minyard,becomes
a part of this Agreement as if attached hereto.
j ID
li i'I p �5
City of Fort Worth, Texas
"noor And coun"'Icommunication
DATE REFERENCE NUMBERLOG NAME PAGE
6/26/01 **L-13083 60CARNIVAL 1 of 2
SUBJECT LEASE AGREEMENT WITH MINYARD PROPERTIES, INC. FOR A SATELLITE
CUSTOMER SERVICE CENTER IN CARNIVAL FOOD STORE
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a five-year lease
agreement with an option to renew for an additional five-year term with Minyard Properties, Inc. at a
cost not to exceed $90,000 for the purpose of providing lease space for a satellite Customer Service
Center in the Carnival Food Store located at Northeast 28th Street and North Main Street.
DISCUSSION:
In 1998, the Water Department initiated a satellite service center program designed to respond to
customers' needs within the community. The full-service center located at Miller Avenue and Berry
Street accepts customers' water bill payments, makes payment arrangements, initiates and terminates
services, and arranges for customer field investigations. The extended hours at the satellite office are
Monday through Friday, 9 AM to 8 PM; Saturday, 9 AM to 7 PM; and Sunday, 12 PM to 5 PM. The City
staff also responds to customers' concerns regarding other City services. The Minyards Food Store
southeast center provides services to 10,000 customers each month and collects $7,200,000 annually.
Since the first service center opened, the Water Department has documented more than 12,000
customers in the 76106 and 76111 zip code areas who have a need and/or preference for a service
center on the City's north side. A customer service survey indicated that consumers prefer a service
center be conveniently located in a grocery store, and service hours be extended beyond the customary
8:00 AM to 5:00 PM office hours. Four locations on the City's north side that met the survey's
preference guidelines were identified as possible sites. These locations, owned and operated by Winn-
Dixie, Minyard/Carnival Food Store or Fiesta Mart, were invited to submit proposals. Winn-Dixie and
Fiesta Mart declined to submit proposals.
The Carnival Food Store located at Northeast 28th Street and North Main Street will provide the same
services and hours of.operation as the Berry Street location. In keeping with the City's clean air and
ozone prevention programs, the service center is conveniently located on "The 7 bus routes. In
addition, Municipal Court Services has requested to utilize the cashier facilities at both service center
locations to provide staff to collect fines for all City citations and to schedule court dates.
The terms of this lease agreement will be five years, and the agreement includes an option to renew for
an additional five years. The lease amount is $1,100 per month, totaling $66,000 for five years.
Additional funds not to exceed $24,000 will be necessary to finish out the leased space.
City of Fort Worth, Texas
ilVayar and CouncilCommunicadon
DATE REFERENCE NUMBER LOG NAME PAGE
6/26/01 **L-13083 1 60CARNIVAL 2 of 2
SUBJECT LEASE AGREEMENT WITH MINYARD PROPERTIES, INC. FOR A SATELLITE
CUSTOMER SERVICE CENTER IN CARNIVAL FOOD STORE
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current operating budget, as appropriated,
of the Water and Sewer Fund.
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Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to) APPROVED/'�t+
Mike Groomer 6140 CITY COUNCIL
Originating Department Head:
JUN 26 2001
Dale Fisseler 8207 (from)
PE45 539120 0604002 $45,000.00 ` -
Additional Information Contact: PE45 539120 0704002 $45,000.00 City Secretary cf the
City of Fort Worth,Texas
Dale Fisseler 8207