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HomeMy WebLinkAboutContract 43767 (2)WY a9bT CONCESSIONAIRE AGREEMENT BETWEEN tit HE CITY OJ FORT Wte-ORTH -o�N FAJITA LINIESS, TALC. _F O '' F O RT WORTH GREAT OUTDOORS, MOLLY'S JY'S ULTIMATE ADVENTURE THIS Gf f :Eli II-4ANT ("Agreement") is made and entered into by and between the City of Fort Worth, Texas, a home -rule municipal corporation acting, by and through Susan Alanis, its duly authorized Assistant City Manager ("City"), and Fajita X=press, a Texas Limited Liability Company, acting by and through its duly authorized member/owner Timothy Edward Brake ("Concessionaire") WHEREAS, the City is hosting Fort Worth Great Outdoors, Molly's Ultimate Adventure on Saturday, October 13, 2012 at the Greenbriar Community Center located at 5200 Hemphill Street, Fort Worth, Texas; and WHERE E S, the City desires to provide food and beverages for attendees and patrons of the Event and wishes to contract with the Concessionaire to provide such services from a food truck. NOW, THEREFORE, the City and the Concessionaire for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: SECTION 1 LICENSE AND CONCESSION " r. IGHTS GRANTED 1.01 The City grants to Concessionaire the non-exclusive right to operate its concession truck for the purpose of selling food and beverages at Fort worth Great Outdoors, Molly's Ultimate Adventure ("Event") on Saturday, October 13, 2012 ("Event Date") at the Greenbriar Community Center located at 5200 Hemphill Street, Fort Worth, Texas ("Event Site") according to the following provisions: i. No other food, beverage, or merchandise other than those specifically approved by the City may be sold at the Event Site without the express written permission of the City. ii. Concessionaire shall furnish all personnel, supervision, training, equipment, tools, materials, supplies, utilities, and other items necessary to provide concessions for the City at the Event in strict accordance with the terms, conditions, and provisions of this Agreement. iii. Concessionaire shall have access to the Premises no earlier than 9:30 a.m. on the 1-4;vent Date. iv. Concessionaire shall be prepared to open and operate no later than 11:30 a.m. on the Event Date. v. Concessionaire shall remove all structures, tables, chairs, roping, truck, or any other appurtenances of any kind and clear the area no later than 7:00 p.m. on the 1-i'rvent Date. vi. Concessionaire shall not sell or permit the sale of alcoholic beve ges = = -� Premises. OFFICIAL RE,b sit!} CITY SECRETARY '► WORTH9 17,K Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC.,for the AV/ .1 !' . !l . 1 T ! 11 ) T T1 . 7 A 1 SECTION 2 LICENSED PREMISES 2.01 The exact location of the area within the Event Site in which the Concessionaire will operate its concession truck shall be as set forth in Exhibit "A," which is attached hereto and incorporated herein by reference, ("Premises") Concessionaire may not relocate its truck without the express written permission of the City. l'he Concessionaire understands that the City may allow, in its sole discretion, other similar types of drinks, food or merchandise to be sold that is similar to the Concessionaire's. The City does not endorse any promotion made by the Concessionaire, and the Concessionaire shall not make any express or implied representation to that effect and shall take all steps as directed and deemed appropriate by the City to prevent or cease such activity. 2.02 The City does not guarantee a total level of sales or income to be realized by the Concessionaire from the Event. SECTION 3 EXPIRATION /TERMINATION 3.01 In the event Concessionaire fails to comply with any of the terms and conditions of this agreement, City shall have the right at once, and without notice, to declare this Agreement terminated and to enter into and take full possession of the Premises save and except such personal property and equipment as may be owned by Concessionaire. In the event of such cancellation of this Agreement by the City, all rights and privileges of the Concessionaire hereunder shall cease and terminate and Concessionaire shall immediately vacate the Premises. If Concessionaire fails to vacate the Premises following termmation of this Agreement, City may forcibly remove, if necessary, Concessionaire and its property from said Premises and City shall incur no liability for such removal. 3.02 The City reserves the right to terminate this Agreement for its convenience with fourteen (14) days' written notice to the Concessionaire without penalty to the City. 3.03 This Agreement shall expire at the end of the Event Date. SECTION 4 OPERATION 4.01 Concessionaire shall operate its concession in a manner that will reflect on the positive reputation of the City and shall not use the Premises or act in any manner that will constitute a nuisance or an unreasonable annoyance or that might injure the reputation of the City Concessionaire shall comply with all rules, specifications, and special instruction established and provided to Concessionaire by the City. Any promotion or advertisement of goods, services or products of any third party at Concessionaire's booth space must receive the prior written approval of the City. 4.02 Concessionaire shall operate in a courteous and professional manner at all times If the City determines, in its sole discretion, that the Concessionaire is uncooperative, discourteous, or verbally Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, T T C ,for the or physically abusive to any of the City personnel or person attending the Event, the City may immediately terminate this agreement and require the Concessionaire to vacate the Event Site In the event a forced removal is necessary, the City, its representatives, officers, employees, and agents shall not be liable for any losses suffered by the Concessionaire in connection with such forced removal. 4.03 Concessionaire shall, at all times, keep and maintain an adequate staff of employees and stock of food, beverages, and/or supplies to provide the services that are required by this Agreement and to fully service the demand and requirements of patrons of the Event. 4.04 The City and Concessionaire accept the established prices that are included herein as H;xhibit "B, ' which is attached hereto and incorporated herein for all purposes, and agree that those prices shall not be changed without express written approval by the City. 4.05 The Concessionaire shall not employ any person who is an employee for the City if the employment of that person would create a conflict of interest, or the appearance of a conflict of interest. 4.06 '1'he City reserves the right to remove any of Concessionaire's employees, or prospective employees who are identified as a potential threat to health, safety, security, or general well being of the patrons of Event. 4.07 The City presently has in place a "Pouring Rights Agreement" with Coca Cola Enterprises, Inc., d/b/a Coca Cola Bottling Company of North Texas. All fountain service soft drinks and beverages that are to be sold in individual containers by the Concessionaire must be purchased from Coca Cola, including, but not limited to, bottled water. Unbranded brewed coffee, iced tea, fresh squeezed juice or individual containers of unflavored milk are permitted exceptions to the Pouring Rights Agreement. Concessionaire is responsible and liable for ensuring compliance with the City's Pouring Rights Agreement. A copy of that agreement may be provided upon request. SECTION 5 CONDITION OF THE PREMISES 5.01 Concessionaire takes the Premises and surrounding premises as it finds them, and at its own expense, shall restore said Premises belonging to the City back to City at the expiration or termination of this Agreement in the same condition as existed at the commencement of this Agreement and m which Concessionaire found them, ordinary wear and tear (including damage by acts of God or other causes beyond the control of Concessionaire) excepted. 5.02 Concessionaire will not do or permit to be done any injury or damage to any grounds or any buildings or part thereof, or permit to be done anything that will damage or change the finish or appearance of the Event Site, its buildings or the furnishings thereof or any other property belonging to the City by the erection or removal of equipment or any other improvements, alterations or additions No decorative or other materials shall be nailed, tacked, screwed or otherwise physically attached to any part of the Event Site or Premises or to any of the furnishings or fixtures of the City without the consent of the City. 5.03 Subject to ordinary wear and tear, Concessionaire will pay the reasonable costs of repairing (to its condition immediately preceding the occurrence of such damage that was caused by Concessionaire's negligence) any damage that may be done to the Event Site or Premises or any of Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC ,for the the buildings, fixtures, furniture, or furnishings by any act of Concessionaire or any of Concessionaire's employees, agents, or officers. The City shall determine whether any damage has been done, the amount of the damage and the reasonable costs of repairing the damage, and whether under the terms of the Agreement, the Concessionaire has been negligent and is responsible for any such repairs. 5.04 Concessionaire shall keep the Premises clean of refuse, garbage or trash and upon the expiration of the Event shall surrender the Premises and leave said area clean and in the same condition as when received. 5.05 In licensing the Premises to the Concessionaire, the City does not relinquish the right to control the management of the Event, or the right to enforce all necessary and proper rules for the management and operation of the same. The City, through the City Manager, police and fire personnel and other designated representatives, has the right at any time to enter any portion of the Premises for any purpose, provided this shall not authorl7e or empower the City to direct the activities of the Concessionaire or assume liability for Concessionaire's activities. SECTION 6 PAYMENT TO THE CITY 6.01 For and in consideration of the license and privileges granted herein, Concessionaire agrees to pay the City a fee of twenty percent (20%) of the gross receipts from the sale of all food, beverages and souvenirs. This fee is due and payable to the City at the close of the Event. 6.02 The term "gross receipts" as used herein shall include all monies taken in by Concessionaire at, through, or by virtue of its operations under this Agreement, and shall include, but not be limited to, monies received by Concessionaire, its successors or assigns, from its sale of food, beverages, goods, wares, merchandise, and services. "Gross receipts" shall also include sales and charges for cash credit, or debit, regardless of collection, but shall not include any tax levied by any municipality, state, or federal government that is required by law to be separately stated and collected from the consumer or purchaser at the time of rendition of the service or sale of merchandise, admission, or ticket. The items of sale above enumerated are merely descriptive and do not exclude other sales or services, whether similar or different, and the "gross receipts ' is used in a comprehensive all-inclusive sense. SECTION 7 UTILITIES 7.01 The City shall have no obligation to provide utility services. The City does not guarantee the availability of any utility service during the N.vent SECTION 8 COMPLIANCE WITH LAWS /LICENSES AND PERMITS 8.01 It is agreed that Concessionaire will comply with all federal, state, and local laws, statutes including all ordinances, charter provisions, rules, and regulations of the City of Fort Worth; including, but not limited to, all requirements as referenced in the City of Fort Worth Parks and Community Services Special Events Manual, all rules, regulations and/or requirements of the City of Fort Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC ,for the Worth Police and Fire Departments and any and all requirements specifically made by the City of Fort Worth Fire Marshal and the Health Department in connection with the performances to be given hereunder. Concessionaire agrees to obey any other regulations of any municipal authority of the City of Fort Worth. Concessionaire will not do or suffer to be done anything on the Event Site or Premises during the terms of this agreement in violation of any such laws, statutes, ordinances, rules, regulations, charter provisions, directives or requirements If the City calls the attention of Concessionaire to any such violation on the part of said Concessionaire or any person employed by Concessionaire, Concessionaire will immediately desist from and correct such violation and/or vacate the Event Site or Premises. 8.02. Concessionaire, at its sole cost and expense and in its name, shall obtain and maintain all applicable necessary licenses and governmental permits required by law, ordinance or regulation of any governmental authority with jurisdiction over the operation of the Concessionaire. Prior to access to the Event Site and/or Premises for the Event, Concessionaire shall provide the City evidence of the receipt of each such license or permit. Concessionaire shall not transfer, assign, pledge, sublease or agree to transfer any such permit or license during the term of this Agreement. 8.03 Concessionaire shall pay all State sales taxes accruing as a result of sales from the sale of any items at the booth space. SECTION 9 MAINTENANCE 9.01 Concessionaire shall keep and maintain the Premises, and concession and all related facilities in a good, clean, sanitary, and proper working condition at all times. 9.02. Concessionaire shall not cut any trees limbs, shrubs, or other vegetation without the prior consent of .the City, except as immediately required to prevent the Concessionaire from encountering a hazardous condition. Concessionaire shall immediately infoti►n the City upon taking such action to correct such a potentially hazardous condition. Concessionaire shall be responsible for all damages caused by Concessionaire, its agents, servants, employees, contractors, subcontractors, licensees, or invitees. 9.03 Concessionaire shall provide, at its own expense, Janitorial services within and around the Premises and within 25 feet of the Premises. Collection and proper disposal of trash, garage, htter, and debris will be the responsibility of Concessionaire, at its sole cost and expense. 9.04 Concessionaire shall notify the City immediately of any known or suspected hazards that exist in the park areas that are not the result of the Concessionaire's operations SECTION 10 INDEMNIFICATION 10.01 LIABILITY. THE CONCESSIONAIRE SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE ACT(S), ERRORS, OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF THE CONCESSIONAIRE, ITS OFFICERS, Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC ,for the T TUT .t !• . /1 . 1 at 11 l iit.. A 1 r f4A AGENTS, SERVANTS OR EMPLOYEES. 10.02 GENERAL INDEMNIFICATION. CONCESSIONAIRE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMMISSIONS OF CONCESSIONAIRE AND/OR CONCESSIONAIRE'S SUBCONTRACTORS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. 10.03 Intellectual Property. the Concessionaire agrees to assume full responsibility for complying with all State and Federal Intellectual Property Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third -party copyrighted works by Concessionaire. City expressly assumes no obligations, imphed or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorl7e, permit, or condone the reproduction or use of copyrighted materials by Concessionaire without the appropriate licenses or permission being secured by Concessionaire in advance. IT IS FURTHER AGREED THAT CONCESSIONAIRE SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CONCESSIONAIRE'S USE OF ANY COPYRIGHTED MATERIAL BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of the Concessionaire. 10.04 IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE CONCESSIONAIRE, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT THE CONCESSIONAIRE'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. 10.05 IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OR HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC ,for the T (V) .1 !' . n , 1 i 11 5 ii,.. • ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS SECTION, SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE INDEMNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. 10.06 Concessionaire agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Concessionaire in connection with or incidental to performance under this Agreement. 10.07 Concessionaire shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 10.08 All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. SECTION 11 INSURANCE 11.01 Concessionaire shall furnish an original completed Certificate(s) of Insurance to the City which shall be completed by an agent authorized to bind the named underwriter(s) and their company to the coverage, limits, and termination provisions shown thereon. The original certificate(s) must have the agent's original signature, including the signer's company affiliation, title and phone number, and be mailed directly from the agent to the City. 11.02 The City reserves the right to review the insurance requirements of this section during the effective period of the Agreement and any extension or renewal hereof, and to modify insurance coverage and their limits when deemed necessary and prudent by the City's Risk Manager based upon changes m statutory law, court decisions, or circumstances surrounding this Agreement, but in no instance will the City allow modification whereupon the City may incur increased risk. 11.03 Subject to Concessionaire's right to maintain reasonable deductibles in such amounts as are approved by the City, Concessionaire shall obtain and maintain in full force and effect for the duration of the Agreement, and any extension hereof, at Concessionaire's sole expense, insurance coverage written on an occurrence basis by companies authorized and admitted to do business in the State of Texas and rated "B" or better by A.M. Best Company and/or otherwise acceptable to the City, in the following types and amounts: a. Workers' Compensation Statutory Employers Liability $500 000/$500,000/$500,000 b. Commercial General (public) Liability Insurance, Combined Single I imit for Bodily Injury and Property Damage, $1,000,000 per Occurrence, $2,000,000 Aggregate, to include coverage for the following: i. Premises/Operations ii. Independent contractors iii. Products/completed operations Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC ,for the iv. Personal Injury v. Contractual Liability c. Automobile Liability, Combined Single Limit for Bodily Injury and Property Damage, $1,000,000 per Occurrence, to include coverage for the following i. Owned/T ,eased vehicles ii. Non -Owned vehicles iii Hired Vehicles d. Commercial Umbrella $1,000,000 per Occurrence $1,000,000 Aggregate 11.04 The City shall be entitled, upon request and without expense to receive copies of the pohcies and all endorsements thereto as they apply to the limits required by the City, and may make a reasonable request for deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such pohcies). Upon such request by the City, the Concessionaire shall exercise reasonable efforts to accomphsh such changes in policy coverage and shall pay the cost thereof. 11.05 Concessionaire agrees that with respect to the above -required insurance, all insurance contracts and Certificate(s) of Insurance will contain the following required provision: name the City and its officers, employees, volunteers, and elected representatives as additional insured as respect to operations and activities of, or on behalf of, the named insured performed under contract with the City, with the exception of the Workers' Compensation. 11.06 If Concessionaire fails to maintain the aforementioned insurance, or fails to secure and maintain the aforementioned endorsements, the City shall have the right to order Concessionaire to stop work hereunder, and/or give notice of such default to Licensee and terminate this Agreement 11.07 Nothing herein contained shall be construed as limiting in any way the extent to which Concessionaire may be held responsible for payments of damages to persons or property resulting from Concessionaire's or its subcontractors' performance of the work covered under this Agreement. SECTION 12 INDEPENDENT CONTRACTOR 12 01 Concessionaire shall conduct all activities on the Premises as an independent contractor, and not as an officer, agent, servant, or employee of City. Concessionaire shall have exclusive control of and the exclusive right to control the activities performed on the Premises and all persons performing same and shall be responsible for the acts and omissions of its members, officers, agents, employees, contractors subcontractors, licensees and invitees. The doctrine of respondeat superior shall not apply as between City and Concessionaire, its members, officers, agents, volunteers, employees, contractors, subcontractors, licensees, and invitees. Nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensee. Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, T T C ,for the SECTION 13 NOTICES 13.01 All notices required or permitted under this Agreement shall be conclusively determined to have been delivered when (i) hand -delivered to the other party, or its authorized agent, employee, servant, or representative, or (ii) received by the other party or its authorized agent, employee, servant, or representative by reliable overntght courier or United States Mail, postage prepaid, return receipt requested, at the address stated below or to such other address as one party may from time to time notify the other in writing. CITY City of Fort Worth Parks and Community Services Director 4200 S. Freeway, Forth Worth, Texas 76115 With copy to: Assistant City Attorney 1000 Throckmorton Street Fort Worth, Texas 76102 CONCESSIONAIRE Timothy Edward Brake 2752 Triangle Leaf Drive Keller, Texas 76244 The Concessionaire and City agree to notify the other party of any changes in addresses. SECTION 14 FORCE MATEURE 14.01 The City reserves the right to cancel the Event due to acts of Force Majeure on or near the day of the Event Acts of Force Majeure shall include without limitation, severe weather events such as hurricanes, tornadoes, floods, ice storms, or hail, and disasters such as fires, acts of public enemy, acts of superior governmental authority, epidemics, pandemics riots, rebellion sabotage, or any similar circumstances not within the reasonable control of either party. Neither City nor Concessionaire shall be deemed in breach of this Agreement if it is prevented from performance by Force Majeure. SECTION 15 CHARITABLE ORGANIZATION 15.01 Concessionaire agrees that if it is a charitable organization entitled to any immunity or limitation of liability under the provisions of the Charitable Immunity and Liability Act of 1987, V.T.C.A. Civil Practice and Remedies Code, Section 84.001 et.seq., or other applicable law, that Concessionaire hereby waives its right to assert or plead defensively any such immm fifty or hmitation of liability as against City. Provided, however, that this section shall not be construed as a waiver or disclaimer of any such immunity or liability as against any party other than City. Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC ,for the T . Tarr .1 Act 1. T 11 ) T Tl. A 1 SECTION 16 SUSPENSION OF WORK 16.01 The performance of work under this Agreement may be suspended in whole or in part by the City, with or without cause, at any time upon delivery to Concessionaire of a written "Notice of Suspension" specifying the extent to which performance of work under the Agreement is suspended and the date upon which such suspension becomes effective. Such right of suspension is in addition to and not in lieu of rights of the City as set forth herein. SECTION 17 MISCELLANEOUS 17.01 Phis Agreement is non -assignable, and any unauthorized purported assigmnent or delegation of any duties hereunder, without the prior written consent of the other party, shall be void and shall constitute a material breach of this Agreement 17.02 This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and no amendment, alteration, or modification of this Agreement shall be valid unless in each instance such amendment, alteration or modification is expressed in a written instrument, duly executed and approved by each of the parties. There are no other agreements and understandings, oral or written with reference to the subject matter hereof that are not merged herein and superseded hereby. 17.03 No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto. 17.04 Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be modified or deleted in such a manner as to make this Agreement, as modified, legal and enforceable to the fullest extent permitted under applicable law. 17.05 If any action, whether real or asserted at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall he in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 17.06 No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 17.07 The provisions and conditions of this Agreement are solely for the benefit of City and the Concessionaire, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 17.08 The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC ,for the are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 17.09 Captions and headings used in this Agreement are for reference purposes only and shall not be deemed part of this Agreement. 17.10 The Concessionaire agrees that City will have the right to audit the financial and business records of the Concessionaire that relate to this Agreement (collectively "Records') at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Concessionaire shall make all Records available to City on 1000 Throckmorton Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this section shall survive expiration or earher termination of this Agreement 17.11 This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 1712 In the execution, performance, or attempted performance of this Agreement, the Concessionaire will not discriminate against any person or persons because of disability, age, familial status, sex, race, religion, color, national origin, or sexual orientation, nor will the Concessionaire permit its officers, agents, servants, employees, or subcontractors to engage in such discrimination This Agreement is made and entered into with reference specifically to Chapter 17, Article III, Division 3, of the City Code of the City of Fort Worth ( `Discrimination in Employment Practices"), and the Concessionaire hereby covenants and agrees that the Concessionaire, its officers, agents, employees, and subcontractors have fully complied with all provisions of same and that no employee or employee -applicant has been discriminated against by either the Concessionaire, its officers, agents, employees or subcontractors 17.13 Both Parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. 17.14 Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 17.15 1'he Parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 17.16 The person signing this Agreement hereby warrants that he or she has the legal authority to execute this Agreement on behalf of his or her respective party, and that such binding authority has been granted by proper order resolution, ordinance or other authorization of the person or entity. The other Party is fully entitled to rely on this warranty and representation in entering into this Agreement. Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC ,for the IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this 7 day of 4?Wkt. 2O12. CITY OF FORT WORTH by: ()isan Alanisssistant City Manager FAJITA X-PRESS, LLC APPROVED AS TO FORM AND LEGALITY by: Tyler F. ach Assistant City Attorney ATTEST: „ cluyoufaftwo Mary Kayser City Secretary M&C — No M&C Required <04;),:valt.1:1411, *, 11,9431* 41'1 0 ff4/ jo,o-�C � Dopappo� �O' a�nblltlQ4'�4�Y re 7Tii thy Edward rake Member/Owner OFFICIAL RECORD' CITY SECRETARY 1F T WORTH, TA Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC.,for th. Exhibit A Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC.,for the TVT .1 # . /1 . 1 l► ! 11 ) T T1. t • A 1 . 4 4 i EXHIBIIT 1 Established Paces Menu Chicken or Beef Falitas — Mesquite smoked with sauteed onions and bel! peppers served on 3 warm flour tortillas and a side of rice and beans. Quesadillas- 1 flour tortilla stuffed with cheese Cheese Nachos- Chicken or Beef Tacos- Served on corn tortillas and topped w/cheese $2.00 Desserts Chile Ancho Brownie Fudge brownie with a hint of Chile Ancho served with a scoop of vanilla ice cream Homemade Chocolate Chip Cookies - Coke, Diet Coke. Dr Pepper, Diet Dr and Bottied Waver - Drinks sty' rte. Diet Sprite, $3.50 $1400 51.00 Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press, LLC.,for the A 1