Loading...
HomeMy WebLinkAboutContract 41869 (2)CITY SECRETARY d i � CONTRACT NO. (05, SETTLEMENT AND MUTUAL RELEASE AGREEMENT THIS SETTLEMENT AND MUTUAL RELEASE AGREEMENT (this "Agreement") is made as of June M, 2011 by and between CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas located within Tarrant, Denton, Parker, and Wise Counties, Texas (hereinafter referred to as "City") and ARAMARK SPORTS AND ENTERTAINMENT SERVICES OF TEXAS, LLC, a Texas limited liability company and successor -by -conversion of ARAMARK Sports and Entertainment Services of Texas, Inc. (hereinafter referred to as "ARAMARK"). City and ARAMARK are sometimes herein jointly referred to as the "Parties" and sometimes individually referred to as a "Party". WHEREAS, on May 10, 2005, the City Council of the City, via M&C C-20728, authorized the City Manager to execute a five-year agreement styled as City Contract No. 32248 (the "Original Agreement") with ARAMARK to be the exclusive food, beverage (alcoholic and non-alcoholic) and related concession and non-exclusive catering services provider at the public event venue known as the Will Rogers Memorial Center located in Fort Worth, Texas (the "Facility"); WHEREAS, on September I5, 2010, the City and ARAMARK amended the Original Agreement to, among other things, provide for the payment to ARAMARK of the unamortized portion of the investment and the disposition of the related equipment and permanent improvements utilized at the Facility, all as more particularly set forth therein (the "First Amendment"); WHEREAS, on November 8, 2010, the City and ARAMARK further amended the Original Agreement and First Amendment to, among other things, extend the period for which ARAMARK was to provide services under the Original Agreement and First Amendment and modify certain of the fiscal arrangements, all as more particularly set forth therein (the "Second Amendment"; the Original Agreement, the First Amendment and the Second Amendment, hereinafter referred to collectively as the "Concession Agreement"); and WHEREAS, the Parties desire to formally acknowledge the expiration of the Term and any and all holdover periods under the Concession Agreement, and to (i) reconcile all amounts outstanding pursuant to the Concession Agreement and (ii) mutually waive and release the other from certain obligations, liabilities, claims and/or causes of action arising pursuant to the Concession Agreement, all as more particularly set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows: 1. Background/Defined Terms. The preceding Background section is hereby incorporated by reference as if fully set forth herein. All capitalized terms used, but not otherwise defined herein, shall have the meanings ascribed thereto in the Concession Agreement. 2. Expi Aation of the Term of the Concession Agreement. In accordance with Section 2 of the Sec erwise pursuant to the Concession Agreement, the CITY SECRETARY Parties hereby acknowledge and agree that the Term and any and all holdover periods expired on December 31, 2010 (the ' Expiration Date"). From and after the Expiration Date, the Concession Agreement shall be deemed of no further force or effect, and no Party shall have any further obligation or liability to the other pursuant to the terms and provisions of the Concession Agreement except to the extent expressly set forth herein. 3. Return of Concession Premises. City hereby acknowledges and agrees that the condition of the Concession Premises (and all other areas utilized by ARAMARK pursuant to the Concession Agreement) and all food and beverage equipment used in connection with ARAMARK's operations at the Facility (including, without limitation, the Investment Equipment and the Improvements) have been returned and/or provided to City, as applicable, in satisfactory condition and otherwise as required pursuant to the terms and conditions of the Concession Agreement. 4. Reconciliation Payment ARAMARK shall, within five (5) business days of the date hereof, pay City the sum of Four Thousand Five Hundred Four and 90/100 ($4,504.90) (the ' Reconciliation Payment"). Except for the Reconciliation Payment, each of City and ARAMARK hereby certify and agree that all amounts due and payable to each Party have been fully paid and there is no other outstanding receivable due and payable to either Party pursuant to the Concession Agreement. 5. Mutual Releases. (a) Release by ARAMARK. Effective as of the Effective Date (as defined in Section 5(c) below), ARAMARK, individually and collectively, for itself and its members partners, owners officers, agents, employees, affiliates successors and assigns, and each of their respective affiliates (collectively, ` ARAMARK Releasor"), releases and forever discharges, both jointly and severally, City and its partners, owners, officers, agents, employees, affiliates, successors and assigns and each of their respective affiliates (collectively, ' City Releasee") from any and all past, present and/or future, known or presently unknown claims, demands, obligations, actions, causes of action, suits (at law or in equity), judgments, damages, costs, expenses and compensation of any nature whatsoever, which Aramark Releasor may have had, now has, or which may hereafter accrue to or otherwise be acquired by Aramark Releasor against the City Releasee arising from or in any way related to the Concession Agreement, including but not limited to, for monies owed or any other rights which were or could have been asserted in any action in connection with the Concession Agreement. (b) Release by City. Effective as of the Effective Date, City, individually and collectively, for itself and its partners, owners, officers, agents employees, affiliates, successors and assigns and each of their respective affiliates (collectively, "City Releasor"), releases and forever discharges, both jointly and severally, ARAMARK and its members, partners, owners, directors, officers, agents, employees, affiliates, successors and assigns, and each of their respective affiliates (collectively, "ARAMARK Releasee") from any and all past present and/or future, known or presently unknown claims, demands obligations, actions, causes of action, suits (at law or in equity), judgments, damages, costs, expenses and compensation of any nature whatsoever, which the City Releasor may have had, now has, or which may hereafter accrue to or otherwise be acquired by the City Releasor against ARAMARK Releasee arising from or in any way related to the Concession Agreement, including but not limited to, for monies 2 owed or any other rights which were or could have been asserted in any action in connection with the Concession Agreement. (e) As used in this Agreement, "Effective Date" shall mean the date upon which City receives the Reconciliation Payment. 6. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the transactions contemplated herein. No other representation, whether oral, written, or implied has been made between or relied upon by any of the Parties. This Agreement may not be modified in any way except by a writing duly executed by each of the Parties. 7. Release; Complete Settlement; No Transfer of Claims. The Parties hereby acknowledge and agree for themselves that the releases set forth in Section 5 hereof are general releases and they further expressly waive and assume the risk of any and all claims for damages that exist as of this date but which any party does not know of, or suspects to exist, whether through ignorance, oversight, error, negligence, or otherwise and which if known, would materially affect their decision to enter into this Agreement. This Agreement expresses a full and complete settlement of all liability claimed and denied and/or which may be claimed or denied by either Party in connection with the Concession Agreement. Further, there is absolutely no agreement on the part of any or all of the persons, firms or corporations herein released to make any payment or to do any act or thing other than as expressly stated and clearly agreed to herein. Each Party represents and warrants that no portion of any claim, right, and/or cause of action that either Party has or might have, has been assigned or transferred by or from them in any manner, including by way of subrogation or operation of law. 8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state where the Facility is located without regard to its principles regarding conflicts of laws 9. Counterparts/Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall be considered one and the same instrument. This Agreement, to the extent signed and delivered by means of a facsimile or other electronic means (e.g. emailed PDF), shall be treated in all manner and respects as an original agreement and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. 10. Severability. The agreements, representations, and warranties set forth in this Agreement shall survive the execution hereof. If any term or provision of this Agreement shall be held to be invalid or unenforceable for any reason, such term or provision shall be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining terms and provisions hereof, and this Agreement shall be const •ued as if such invalid or unenforceable term or provision had not been contained herein provided, however, that the foregoing shall in no way be interpreted or construed to effect the enforceability of the release provisions of this Agreement. 11. Successors and Assigns. This Agreement shall bind and inure to the benefit of each of the Parties and their respective successors and assigns. 3 [NO FURTHER TEXT ON THIS PAGE; SIGNATURES FOLLOW] 4 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date and year first written above. CITY OF FORT WORTH: ARAMARK SPORTS AND Susan Alanis Assistant City Manager RECOMMENDED: Kirk Slaughter, Director Public Events Department APPROVED AS TO FORM AND LEGALITY: _ Chei1 K. Byles Assistant City Attorney ATTEST: Name: Marty Hendr- x Title: City Secretary 5 ENTERTAINMENT SERVICES OF Name: M Title: y OFFICIAL RECORD CITY SECRETARY FL WORTH, TX