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HomeMy WebLinkAboutContract 44937 (2)CITV SECRETARY 4LN,C\ '2j_, CONTRACT NO.... LICENSE AGREEMENT This License Agreement (the "Agreement") is made and entered into this 1st day of October, 2013, by and between Fiesta Mart, Inc. a Texas corporation ("Fiesta") and The City of Fort Worth, Texas, ("COFW"). WHEREAS, Fiesta is the owner of or otherwise has the right to occupy that certain building located at 102 NW 28th Street, Fort Worth, Texas 76164 (the "Store"); and WHEREAS, COFW desires to obtain from Fiesta a license and right to use certain designated space in the Store; and WHEREAS, Fiesta is willing to grant to COFW a license to use certain space in the Store upon the terms, covenants and conditions hereinafter set forth; NOW THEREFORE, for and inconsideration of the sum of Ten Dollars ($10.00) and good and valuable consideration and the mutual covenants and agreements herein contained, Fiesta and COFW hereby agree as follows: 1. GRANT OF LICENSE. Fiesta hereby grants to COFW, upon the terms, covenants and conditions hereinafter set forth, a license and right to use and occupy 180 square feet of space in the Store as currently occupied by COFW (the "Licensed Location"). This Agreement establishes the terms, conditions and consideration under which Fiesta will permit COFW to operate a customer service facility (the "Facility") in the Store. In all instances, they will include teller type customer service windows and account assistance desks. 2. DEFINITIONS. The term "Facility" indicates a full service City of Fort Worth Water Department customer service facility located in the Licensed Location within the Store which is staffed with and operated by one (1) or more of COFW employees whose functions will include, without limitation, opening new accounts, accepting payments for services and performing customary customer service functions. The Facility will be equipped with an online water department computer, and may include a safe and a night depository. The Facility may also offer such other services as may be permitted by applicable law and regulation, are common to COFW's similar customer service facilities in the City of Fort Worth, subject to prior written approval of Fiesta. Notwithstanding the foregoing, COFW shall not sell money orders, lottery tickets, cash checks or wire transfer funds. COFW agrees not to place or allow an automatic teller machine (ATM), or other similar electronic terminal that performs banking functions within the Facility. The term "Business Day" means any day, Monday through Friday excluding COFW holidays of any given week or portion thereof. The term "Calendar Day" means every day of any given month or portion thereof. The term "Commencement Date" means October 1, 2013. RECEIVE[) OCT OFFICIAL RE OR CITY Y SECREMRY 'af, `�� The term "License Fee Commencement Date" is the date when the first Licensee Fee payment is due which is October 1, 2013. The term "License Fee" means the annual fee for leasing the Facility in the amount of $13,200 payable monthly in an amount of $1,100 The term "Licensed Location" is the Facility located in the Fiesta store at 102 NW 28th Street, Fort Worth Texas 76164. The term "Term" of the Agreement shall be for one (1) years from the License Fee Commence Date with the renewal option . 3. TERM OF AGREEMENT. The term of this Agreement shall commence on the Commencement Date and terminate at midnight on the 1st day of October 2014, with an option to renew for one additional year that may be exercised by COFW with 90 days written notice to Fiesta. 4. GENERAL. Each party represents, warrants and covenants the following: (a) (b) (c) (d) Its execution, delivery and performance of this Agreement do not violate the terms of any law, regulation, court order or material agreement to which such party is subject. Each party shall comply with applicable laws, statutes, regulations, ordinances and building codes This Agreement is a valid and binding obligation of the representing party, enforceable against such party in accordance with its terms. This Agreement will not infringe misappropriate or violate any third -party rights, including, without limitation, property or contractual rights, nondisclosure, obligations, trademark rights, copyrights, patent rights or other proprietary rights. (e) Each paity will, if for any reason suspect or discover that they may not be able to perform their obligations hereunder in the Store, such party shall immediately notify the other party in writing. This notification must include a detailed description of the problem the causes of the problem and a plan to resolve the problem. Submission of such a plan shall not relieve the party of its obligations and shall not preclude any remedies available to the party hereunder (f) Each party will in the performance of its obligations under this Agreement, act fairly and in good faith. (g) Where notice, approval or similar action by either party hereto is permitted or required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. (h) Each party shall take and require its subcontractors to take seasonable precautions and institute procedures designed to promote safety, avoid accidents and prevent injury to persons or property under their control. In addition, neither party shall be liable for the acts or omissions of the other party's employees and agents in performing its respective obligations under this Agreement. COFW and Fiesta each have the sole and exclusive right and responsibility to select and, subject to the terms of this Agreement, to direct its employees and to determine the terms and conditions of their employment. Notwithstanding the foregoing, in the event any employee of COFW is caught shoplifting or engaging in some other illegal or dangerous activity in the Store, then in addition to any other rights Fiesta has under the terms of this Agreement or at law or in equity, Fiesta shall have the right to direct said COFW employee to leave the Store without right of re-entry, unless approved in writing by Fiesta. COFW s employees, while working at a Facility, shall be entitled to use Fiesta's restrooms and break rooms at the Store on the same basis as such facilities are provided by Fiesta for the convenience of its employees. Fiesta and COFW shall each prohibit their respective employees from soliciting each other's employees, for any purpose. Fiesta shall provide parking spaces for COFW employees of the Facility on the same basis as Fiesta employees; provided however, that Fiesta may designate the location of such spaces. COFW agrees to comply with, and agrees that this Agreement and all of COFW's rights hereunder are subject to, (i) all applicable provisions, restrictions and requirements set forth in the leases(s), if any, and restrictive covenants, if any, affecting the Store and (ii) all other reasonable rules, regulations and agreements now or hereafter affecting the Store. 5. PAYMENT OF LICENSEE FEE(S). The first License Fee payment is due upon execution of this Agreement and shall be applied to the first full month of the Term starting October 1, 2013. License Fees shall be payable in advance on the first day of each month and shall be prorated on a daily basis for any partial month, including the months in which the obligation to make such payments commences and terminates. Any License Fees and other monetary obligations not paid within five (5) Calendar Days from the date when due shall be subject to a late fee equal to ten percent (10%) of the monthly License Fees in addition to the normal License Fee to reimburse Fiesta for the extra cost and expense in connection with handling and processing of the late payment Each payment of License Fee must be accompanied by a completed License Rental Payment Form attached as Exhibit A. COFW waives and relinquishes all rights of COFW to withhold or deduct or offset against any License Fee or other sums provided hereunder to be paid to Fiesta by COFW. 6. UTILITIES. Fiesta shall provide or cause to be provided, electrical service to the boundary of the Facility COFW assumes all responsibility for the installation, maintenance and replacement of electrical fixtures, wiring conduit and connections which fall within the Facility Fiesta will not pay for any costs of any electrical facilities required by COFW such as meters, signs, security systems, conduits wiring or transformers which fall within COFW's responsibilities herein. COFW shall, at its expense, provide its own telephone service, data processing, transmission lines and wire. Deposits, if any, for COFW utilities will be provided by COFW. 7. USE AND OCCUPANCY. COFW shall open the Facility for business on the Commencement Date and continuously operate, excluding legal holidays as observed by the City of Fort Worth (i.e. New Year's Day, Martin Luther King Jr Birthday, Memorial Day, Labor Day, Thanksgiving Day and Christmas Day) or as otherwise mutually agreed between COFW and Fiesta, and shall open and operate the Facility from 9:00 a.m. to 7:00 p.m. Monday through Friday for a minimum of five (5) days each week. Notwithstandig the hours of operation described in the prior sentence, subject to Fiesta s prior written approval which shall not be unreasonably withheld, COFW may extend or reduce the hours of operation to correspond to business requirements except that the facility must be open for a minimum 50 hours each week. COFW shall operate the Facility in the same manner as COFW customarily operates other offices (including providing or promoting such services as are from time to time customarily offered by COFW at other similar customer service facilities of COFW), provided that: (a) the Facility shall be adequately staffed during all times of operation; and (b) Fiesta shall have the right to establish acceptable business practices and operations in order to protect and ensure the continuity of in-store operations and first-class public image, and COFW shall to the extent it is reasonable and practical, and not in conflict with any law, abide by and ensure its subcontractors, agents and employees abide by the same. 8. MARKETING. Both Fiesta and COFW may, at their expense, advertise the existence and location of the Facility established pursuant to this Agreement in such media and in such manner as each deems appropriate. However, the prior written approval of each party shall be obtained with regard to any advertisement that refers to both parties or to the party other than the party which is undertaking the advertisement. The cost of any such joint advertising undertaken by either party shall be shared between the parties or to the party other than the party which is undertaking the advertisement. The cost of any such joint advertising undertaken by either party shall be shared between the parties as agreed by them prior to such advertising being underwritten by either of the parties. However, neither party shall be obligated to approve any Joint advertising proposed by the other or to share in the cost of any Joint advertising undertaken by the other party. 9. CONSTRUCTION OF FACILITY. Fiesta and COFW acknowledge and agree that COFW is the owner of the Facilities installed under this Agreement and owns all removable equipment therein, but has no ownership interest in the Store. 10. SIGNS. Subject to municipal ordinances, the terms of Fiesta's lease, if any, and Fiesta's prior written approval which shall not be unreasonably withheld, COFW has placed signs identifying its operations in the vicinity of the Facility, and where allowed, on the exterior of the Store. During the Term of this Agreement, no new COFW signs will be allowed in the Store. 11. MODIFICATIONS AND ADDITIONS. COFW shall not make any material modifications or alterations to the Facility without Fiesta's prior written approval, which shall not be unreasonably withheld. 12 MAINTENANCE AND REPAIR. COFW shall, at its sole cost and expense, maintain the Facility in good and clean condition and repair. Without limiting the foregoing, COFW shall keep its Facility free and clear of all waste paper. Fiesta shall have no repair, maintenance or replacement obligations with respect to the Facility. COFW shall maintain the Facility as follows: (a) COFW shall keep and maintain the Facility in good order and repair, including all equipment installed therein, and all electrical, phone or other transmission lines used by COFW for computer data processing and transmission (b) COFW shall provide all necessary janitorial services for the Facility. (c) COFW shall maintain, repair and reasonably control any doors or glass windows which are part of the Facility. (d) COFW shall maintain and keep interior and exterior signs in good working order. (e) COFW shall maintain its air conditioning and heating specifically for the Facility, including changing filters as needed and replacement if necessary. Fiesta shall, at its sole cost and expense, provide, maintain in good order and repair the following at the Store: (a) All lights other than those lights provided by COFW as part of the Facility. (b) Toilet facilities, plumbing and sprinkler systems, if any. (c) Electrical service and related electrical distribution equipment and wiring, other than computer, phone, or data processing and transmission lines provided by and used by COFW to the boundary of the Facility. (d) Doors, walls, floors, floor covering, windows, roofs, ceilings and all other structural portions of the Store, excluding those like items or structural improvements provided by COFW as part of the Facility (e) Janitorial services for aisles and floors adjacent to the Facility and for the remainder of the Store occupied by Fiesta. COFW shall be responsible for janitorial services for the Facility. In the event Fiesta discontinues, suspends or is unable to fulfill its obligations under this Section 12 as a result of an act or event beyond its reasonable control (a) COFW shall not be entitled to any reimbursement, compensation or damage because of such discontinuance or suspension, nor shall Fiesta be liable to COFW for any interruption of its operations occasioned by such suspension or discontinuance other than a reasonable abatement of the License Fees as provided in Section (b) below. (b) Notwithstanding the provisions of Section (a) above, should such discontinuance or suspension continue and interfere with the conduct of COFW business the Facility for mole than five (5) consecutive Calendar Days, the Licensee Fees to be paid hereunder shall be abated on a per diem basis, to such an extent as is fair and reasonable under the circumstances, based on the degree of interference, throughout the period of such discontinuance or suspension (c) Should such discontinuance or suspension prevent COFW from conducting business at a Facility for more than thirty (30) Calendar Days, COFW or Fiesta shall have the right to terminate the Agreement by written notice to the other party at any time thereafter until Fiesta continues its normal business operation and is fully able to fulfill its obligations. Such termination shall be effective as of the date of notice. Fiesta shall maintain the space within a Store directly adjacent to the entrance of a Facility free and clear of all advertisements, signs, fixtures, barriers, signs or other obstructions that would obstruct the ingress to and egress from the Facility or that might prohibit or hinder the operation of COFW business within the Facility except as may be necessary in Fiesta's sole discretion in event of an emergency situation or temporary repair which must be made in the area of the Facility. Fiesta shall have the right to enter a Facility, subject to COFW's reasonable security procedures for the purpose of performing inspections, maintenance, repairs, alterations and remodeling to the Store for the purpose of exercising or performing any of its rights or obligations hereunder. Fiesta shall use its best efforts to perform any inspections, maintenance, repairs, alterations, and remodeling to the Store in a manner that will not unreasonably interfere with COFW operations or customer access to the Facility. If, as a result of any repairs, remodel or alterations made by Fiesta in any part of a Store, COFW is materially deprived of its use of a Facility, Fiesta shall not be liable to COFW for damages by reason thereof, nor shall the same release COFW from any of COFW's obligations under this Agreement except that the License Fees payable hereunder shall be equitably reduced as agreed upon by both parties during the time COFW is materially deprived of its use of a Facility. Should Fiesta in its reasonable business judgment, deem it necessary to relocate a Facility in the Store, Fiesta may relocate such Facility to a mutually agreed location in the Store. Fiesta agrees to pay the reasonable and necessary expenses of relocation of COFW's fixtures, equipment and furnishings due to any such relocation requirements by Fiesta. Should the parties fail to agree upon the new location, COFW of Fiesta shall have the right to terminate this Agreement by providing thirty (30) Calendar Days prior written notice. 13. LIENS. COFW agrees to pay in full when due and discharge all claims for labor performed (or alleged to have been performed) and materials and services furnished (or alleged to have been furnished) in connection with installation and/or operation of a Facility or equipment so as to prevent the assertion of claims of lien against the Store and/or the land owned or leased by Fiesta surrounding the Store. COFW shall have the right, at its sole expense to contest the validity of any such hen; provided, however, COFW shall, within thirty (30) Calendar Days after notice from Fiesta to do so, and sooner as necessary to prevent foreclosure and or enforcement of the same, procure the release of any such lien in a manner satisfactory to Fiesta, whether by payment, posting of bond obtaining an appropriate court order or otherwise. Without limiting the generality of any other provision of this Agreement, COFW agrees to indemnify, defend and hold Fiesta harmless from and against any action filed or claim asserted against Fiesta for any reason in connection with any lien claim arising in connection with the installation and/or operation of the Facility or equipment. In addition, Fiesta may require COFW to pay Fiesta's attorneys fees and costs in participating in such action if Fiesta shall decide that it is in its best interest to do so. Fiesta agrees to pay in full when due and discharge all claims for labor performed (or alleged to have been performed) and materials and services furnished (or alleged to have been furnished) in connection with installation and/or operation of the Store or Fiesta equipment to prevent the assertion of claims of lien against a Facility owned by COFW In the event a hen is filed against the Facility as a result of an action of omission of Fiesta, COFW shall have the right, but not the obligation, to consent to the validity of any such lien; provided, however, Fiesta shall, within thirty (30) Calendar Days after notice from COFW to do so, and sooner as necessary to prevent foreclosure and/or enforcement of the same procure the release of any such lien in a manner satisfactory to COFW, whether by payment, posting or bond, obtaining an appropriate court order or otherwise. 14 INSURANCE. COFW is a self -funded entity and as such it does not maintain commercial insurance policies to cover its general liability risks Damage for which COFW would ultimately be found liable, would be paid directly by COFW and not by a commercial insurance company or companies. Likewise, COFW's workers' compensation insurance program is self funded with exceptions noted below: (a) Workers' compensation insurance and employer's liability insurance are maintained by COFW. Statutory limits: self -funded to the $500,000 single incident retention limit over which as commercial excess workers' compensation insurance policy is maintained having no fixed limit. Employer's liability: $1,000,000 limit per claim with coverage maintained on a first dollar basis. (b) General liability insurance is self -funded by COFW according to this Section 14 herein. The Texas Tort Claims Act limits a municipality s liability for certain governmental functions and under certain conditions to the following limits: $250,000 bodily injury per person $500,000 bodily injury per occurrence $100,000 property damage COFW will endeavor to procure an endorsement to its excess worker's compensation insurance policy whereby Fiesta shall receive a waiver of subrogation in its favor. Subsequently, Fiesta would receive a certificate of insurance documenting same. As a certificate holder, Fiesta would receive a minimum ten (10) days notice of cancellation. Contractors to COFW shall be required to maintain the following insurance coverages and have Fiesta endorsed as an additional insured as its interest may appear on policies of such insurance (a) Commercial General Liability: $1,000,000 for each occurrence $2,000 aggregate limit; (b) Worker's Compensation Insurance — statutory limits, and employer's liability at minimum limits as prescribed by State of Texas law. COFW shall require its contractors to require subcontractors thereto to maintain lines of insurance coverage and limits thereof commensurate with those required of contractors. Insofar as permitted by law, COFW's insurance shall be primary coverage with respect to any occurrence within the premises COFW leases from Fiesta or any event arising out of the use of the Facility within the Store for which COFW is determined to be legally liable. During the term of this Agreement and any renewals thereof, Fiesta shall maintain, or cause to be maintained, general liability and casualty insurance on the Store, but may substitute therefore a program of self-insurance adequate to enable Fiesta to comply with its responsibilities under this Agreement. In all events the limits of the general liability insurance will be not less than $1,000,000 per occurrence per location and $2,000,000 aggregate for bodily injury and/or death and/or property damage and/or personal injury Fiesta and COFW shall be responsible for only those damages for which each respective party is found legally liable. 15 INDEMNIFICATION. Fiesta agrees to indemnify, defend and hold COFW harmless from and against any and all losses, costs, expenses (including, without limitation, reasonable attorney's fees, and reasonable attorney's fees on any appeal), liabilities, damages, and claims, demands, liens, claims of liens judgments, proceeding and causes of action (collectively "claims") resulting from Fiesta s use of its Store and/or resulting from the Fiesta negligence or willful misconduct and/or resulting from its breach of any of its obligations under this Agreement and for any and all such claims resulting from the negligence or willful misconduct of its employees (acting within the scope of their employment) or agents and contractors (acting within the scope of their employee, agency and contracts, respectively); however, Fiesta shall not be liable for the acts of its employees, agents or contractors acting outside the scope of their employment, agency or contract and COFW does hereby release Fiesta from liability for any such acts. In so far as permitted by law, COFW agrees to indemnify, defend and hold Fiesta harmless from and against any and all losses, costs, expenses (including, without limitation, reasonable attorney's fees and reasonable attorney's fees on any appeal), liabilities, damages and claims, demands, liens, claims of liens, judgments, proceedings and causes of action (collectively "claims") resulting from COFW's use of its Facility and/or resulting and/or resulting from CFOW's negligence or willful misconduct and/or resulting from its breach of any of its obligations under this Agreement and for any and all such claims resulting fi om the negligence or willful misconduct of its employees (acting within the scope of their employment) or agents and contractors (acting within the scope of their employment, agency and contracts, respectively); however COFW shall not be liable for the acts of its employees, agents or contractors acting outside the scope of their employment agency of contract and Fiesta does herby release from liability for any such acts. Nothing contained herein shall ever be construed so as to require COFW to assess, levy and/or collect any tax to fund this indemnification provision. 16. TAXES. COFW shall promptly pay all taxes assessed by any taxing authority on its operations, fixtures, equipment and/or machinery. Fiesta agrees to promptly forward to COFW all tax bills, license notices and the like that are payable by COFW but are received by Fiesta. Fiesta, or its landlord, if any and when applicable, shall be responsible for payment of its property taxes, ad valorem taxes or any other taxes for the Store. 17. DEFAULT/REMEDIES. Default by COFW: Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, Fiesta shall have the option to terminate this Agreement during the term hereof for (a) default in the payment of rent or any other sums due hereunder; or (b) the failui e of COFW to comply with all provisions of this Agreement; or (c) the failure of COFW to observe Licensee Standards of Operation attached as Exhibit B hereto; or (d) the cessation of operation by COFW at the Store for forty-eight (48) continuous hours without notification to Store management. Default by Fiesta — Fiesta shall be deemed to be in default hereunder if Fiesta breaches any obligation on the part of Fiesta for under this Agreement, and shall fail to remedy same and to pursue same diligently to completion. Remedies: (a) In the event of any default by COFW, in addition to any rights Fiesta has under law, Fiesta shall have the right to terminate this Agreement, by written notice to COFW, in which case, COFW must vacate the Store as of the date of termination (b) In the event of a default by Fiesta COFW shall have the right to terminate in addition to all remedies available under law. (c) The rights and remedies provided in this Section 17 shall be in addition to, and not in substitution for, the rights and remedies which would otherwise be vested in the non - defaulting party under this Agreement, or any other agreement entered into between the parties pursuant hereto, including, without limitation, the indemnification rights set forth herein, or at law or in equity, all of which rights and remedies are specifically reserved to the non -defaulting party hereto. All of such rights and remedies shall be cumulative and may be exercised concurrently; provided, however, that the failure to exercise any one of the rights and remedies herein provided shall not constitute a waiver thereof, nor shall use of any of the rights and remedies hereby provided prevent the subsequent or concurrent resort to any other rights and remedies. The parties intend that this clause shall be broadly construed so that all rights and remedies herein provided for or otherwise available to the non -defaulting parties shall continue and be each and all available to non -defaulting parties to the maximum extent permitted by law. (d) Notwithstanding anything in this Agreement to the contrary, Fiesta and COFW, each agree that no consequential damages shall be recovered by either of them for any breach of the terms of this Agreement. 18. TERMINATION. In the event that execution of this Agreement with respect to the Store causes an unforeseen breach of an agreement between Fiesta and a third party or breach of any permit or licensing requirement, Fiesta shall have the right to terminate this Agreement at any time by giving written notice to COFW at least thirty (30) Calendar Days prior to the date of termination. A party to this Agreement (the "Aggrieved Party") may, by giving written notice to the other party (the "Breaching Party") terminate this Agreement if the Breaching Party commits a material breach of its representations, warranties, covenants, or obligations under this Agreement; provided, however, that the Breaching Pat ty shall have a reasonable number of days as shall be specified by the Aggrieved Party in the written notice of the breach to submit a detail proposed plan to cure such breach. Said proposal may be accepted of rejected by the Aggrieved Party in its sole discretion. Said proposal for cure of such breach shall specify the date upon which the Breaching Party shall commence the cure process and the date by which the Breaching Party shall have completed the cure process. If the Aggrieved Patty accepts the cure proposal, then any failure by the Breaching Party to cure the breach to the satisfaction of the Aggrieved Party not later than the close of business on the date specified as the date for completion of the cure shall be cause of or immediate termination by the Aggrieved Party of this Agreement outstanding hereunder. Notwithstanding the other provisions of this Agreement, the Aggrieved Party may, by giving written notice to the Breaching Party terminate this Agreement hereunder if the Breaching Party: (a) becomes insolvent, or is generally unable to pay its debts as they become due, or shall become the subject of a bankruptcy, conservatorship, receivership or similar proceeding, or shall make a general assignment for the benefit of its creditors; or (b) commits a fraudulent or criminal act against the Aggrieved Party. Upon termination of the Agreement for any reason, COFW shall, at COFW's expense and no later than fifteen (15) days after the termination date (i) surrender possession of the space occupied by the Facility to Fiesta in broom clean condition and as good a condition, reasonable wear and tear excepted, as existed prior to the Commencement Date and (ii) without limiting the foregoing COFW shall remove the Facility and its equipment and fully repair any damage caused thereby. 19. DAMAGES. In addition to other damages recoverable by either Fiesta or COFW, which ever the case may be, under applicable law or this Agreement, damages recoverable shall include, without limitation, losses, expenses, damages, costs, and injuries incurred or suffered by Fiesta or COFW, which evei the case may be, on account of claims made against one party by the other arising from an act, omission, breach, breach of warranty, or misrepresentation of the other party or their employees, agents, or subcontractors that are acting within their normal duties and responsibilities. Neither Fiesta nor COFW shall be liable for consequential damages; provided, however, that the limitations on consequential damages set forth in this Section shall not apply to, or in any way limit, Fiesta or COFW's indemnity obligations under this Agreement If either party employs an attorney or commences legal or arbitral proceedings to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover from the other, reasonable costs incurred in connection with such enforcement, including, but not limited to, attorney's fees and costs of investigation, litigation, mediation or arbitration. 20. STORE CLOSING. COFW expressly acknowledges and agrees that notwithstanding anything to the contrary in this Agreement, Fiesta shall have the right, at any time, to temporarily or permanently close a Store and discontinue Fiesta's business in the Store for any reason whatsoever in its sole and absolute discretion, without any liability or further obligation to COFW other than as provided for herein. Fiesta agrees to give COFW ten (10) Calendar Days pi for notice of such closure Such notice shall specify whether the Store closure is estimated to be temporary, which for purposes of this Agreement is six (6) months or less, however COFW acknowledges and agrees that notwithstanding a statement by Fiesta that the Store closure is temporary. Fiesta shall have the right at any time to notify COFW that such closure is permanent. If the Store closure is permanent, this Agreement shall terminate as of the date of cessation of Fiesta's business at the Store. If the Store closure is temporary, this Agreement shall continue in full force and effect except that License Fees due hereunder shall abate during the period of Store closure and COFW shall during the period of Store closure, be relieved from its obligations to operate as required herein during the temporary closure of the Store. 21. CASUALTY. If by fire or other casualty, the Store is damaged or destroyed to the extent that COFW is deprived of occupancy or use of the Facility, or COFW's business is materially impaired, Fiesta agrees to notify COFW within thirty (30) Calendar Days after the occurrence of such damage or destruction (or other such time frame which is specified in Fiesta's lease) as to whether Fiesta or Fiesta's landlord, if any, intends, in its sole and absolute discretion, to repair the damage or destruction resulting from such casualty, with an estimate of the time required for such repair ("Fiesta's Election Notice"). If Fiesta does not elect to repair such damage or destruction, either party may terminate this Agreement upon written notice to the other party delivered within thirty (30) Calendar Days after COFW receipt of Fiesta's Election Notice. If Fiesta elects to repair such damage or destruction, Fiesta, or Fiesta's landlord, if any, shall proceed with due diligence to repair the Store, and the Agreement shall continue in full force and effect (it being acknowledged and agreed to by COFW, however, that if Fiesta's landlord is obligated to repair under Fiesta's lease and Fiesta has elected to repair Fiesta's repair obligations hereunder shall be limited to using reasonable efforts to enforce the landlord's obligation to repair pursuant to the terms of Fiesta's lease). Notwithstanding the foi egoing, if Fiesta elects to repan but notifies COFW that the time necessary for repair exceeds ninety (90) Calendar Days from the date of the damage or destruction, COFW shall have the right to terminate this Agreement by delivering notice of such termination to Fiesta within ten (10) business days after receiving Fiesta's Election Notice. Fiesta or Fiesta's landlord may delay performing its obligation to repair hereunder until the expiration of such ten (10) business day period, and shall have no obligation to repair if it receives a termination notice from COFW. If by fire or other casualty, a Facility is damaged or destroyed and COFW does not terminate the Agreement, COFW will at its expense, proceed expeditiously and with due diligence to repair the Facility and restore it to its original condition provided, however, that COFW shall have no such repair obligations if Fiesta does not repair the Store. In the event of any damage or destruction to a Store or a Facility which materially deprives COFW of its occupancy or use of a Facility or materially impairs COFW business at a Store, the License Fees payable hereunder shall be equitably reduced to account for such deprivation or impairment from the date of such damage and destruction to the date the same is repaired (if applicable) or this Agreement is terminated. 22. CONDEMNATION. If a portion of a Store is taken or condemned by any governmental authority and such taking or condemnation deprived COFW of occupancy or use of a Facility or COFW s ability to do business is materially impaired, either party may, upon written notice to the other party delivered no later than thirty (30) Calendar Days after such taking or condemnation, terminate this applicable Agreement If neither party terminates this Agreement within such thirty (30) Calendar Day period, this Agreement shall continue in full force and effect. In the event of a taking or condemnation, COFW shall have the right to pursue, in the condemnation proceedings, claims for (i) the interruption of COFW's business, (ii) COFW's relocation and moving expenses, and (iii) restoration costs for the Facility. All other awards made by reason of condemnation shall be made to Fiesta. 23. SECURITY. COFW shall have its own security system for the Facility consisting of a alarm system, video surveillance system and a roll down gate at a minimum. COFW shall be responsible for any permits or fees resulting from or associated with its alarm system. COFW shall have the right to have a security guard or Fort Worth police officer in the Facility at all times Fiesta shall have the right to have a security guard in the Store at all times. COFW shall limit the activities of its security guard to the Facility. Fiesta shall limit the activities of its security to the Store and the parking lot The manager of the Facility shall immediately make the manager of the Store awaie of any bomb threats, robbery or other information which could adversely affect the safety of the customers, employees or invitees of COFW or Fiesta. COFW agrees to cooperate with Fiesta and abide by Fiesta's reasonable request in regard to dealing with natural disasters, bomb threats or other situations which could involve security or safety of employees, customers and/or invitees. COFW shall be responsible for controlling COFW customers who are waiting to be served by COFW. 24. FORCE MAJEURE Performance of the obligations of either party to this Agreement shall be excused during the period and to the extent that such performance is rendered impossible or impracticable or unduly buidensome due to acts of nature; governmental requirements; unavailability of parts through normal supply sources; failure of any utility to supply its services for reasons beyond a party's control, explosion, accident, riot, or civil commotion, act of war, fire or other casualty, or any other cause other than financial, beyond the reasonable control of the party whose performance is to be excused. 25. CONFIDENTIALITY. Other than as required by law, the contents of this Agreement, all advertisements, media releases, public announcements and public disclosures by either party, or their employees or agents, relating to this Agreement or the name of the other party shall be coordinated with and approved by the other party, prior to the release thereof. Each party acknowledges that in connection with this Agreement or in the performance hereof, it has or will come into possession or knowledge of material and information which is proprietary to the other party Each party, therefore, agrees to hold such material and information in strictest confidence not to make use thereof, except in the performance of this Agreement, and not to release or disclose it to any other party with the exception of (i) parent companies, subsidiaries and affiliates of the parties, (ii) attorneys and accountants, and (iii) as required by applicable law, regulation, court order or regulatory authority. 26. NOTICES All notices required or provided for under this Agreement shall be given to the parties in writing as follows: (a) by registered or certified United States mail, return receipt requested and postage prepaid to the applicable addresses below or to such other addresses as the parties may substitute by written notice given in the manner prescribed in this Notices Section; (b) by hand delivery, including courier service delivery, to such addresses* or (c) by facsimile machine transmission to the numbers provided below: If to COFW: City Of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 Attn: Water Department Fax: (817) 392-1097 If to Fiesta: With a copy to: Fiesta Mart, Inc. 5235 Katy Fteeway Houston, Texas 77007 Attention: President Fax: (713) 865-5546 Fiesta Mart, Inc. 5235 Katy Freeway Houston, Texas 77007 Attention: Real Estate Fax: 713-869-0279 Such notices shall be deemed to have been duly given either three (3) business days after the date of mailing as described above, or one (1) business day after being given to an express courier, or when facsimile transmission has been confirmed received. 27. ASSIGNMENT. COFW shall not assign, sublease or in any manner transfer this Agreement without the prior written consent of Fiesta. COFW shall not mortgage, pledge or otherwise encumber its interest in this Agreement or in the Facility. In the event of the transfer or assignment by Fiesta of its interest in this Agreement and in the Store, in whole or in part, Fiesta shall be released from any further obligations hereunder and COFW shall look solely to such successor in interest of Fiesta for performance of such obligations Any prepaid rental and/or security given by COFW to secure performance of obligations will be assigned and transferred by Fiesta to such successor in interest. Fiesta shall give COFW prior written notice of such assignment or transfer. With regard to this Section 27, in the event of such assignment, COFW may, within ten (10) Calendar Days from receipt of written notice of such assignment or transfer, terminate this Agreement with ninety (90) Calendar Days prior written notice. 28 APPLICABLE LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas ("Governing State"). Each party hereby submits to the jurisdiction of such courts, and waives any objection to venue with respect to actions brought in such courts in the Governing State. 29 APPROVALS AND REQUIREMENTS. COFW shall use its best efforts to obtain, in a timely manner, all required federal, state, local and other governmental approvals and permits required in connection with COFW's construction and operation of the Facility and proposed use of the Facility (collectively "Governmental Approvals' ). If any consents, other than Governmental Approvals, are required to be obtained from any third party in connection with this Agreement or COFW's proposed use of the Facility ("Third Party Consent") COFW shall promptly obtain the same at COFW's expense in writing and Fiesta shall cooperate with COFW in obtaining the same. COFW shall not be permitted to take any action or exercise any of its rights under this Agreement until COFW first obtains all necessary Governmental Approvals and Third Party Consents required for such actions or exercise and presents written evidence of the same to Fiesta Either party, provided such party is not in default hereunder, may terminate this Agreement without further liability to each other if COFW fails to obtain all necessary Governmental Approvals and Third Party Consents on or before the Agi eement commencement date, said termination to be effected by written notice delivered to the other party hereto. 30 ESTOPPEL CERTIFICATES. COFW and Fiesta agree to execute and deliver to the other, within ten (10) business days following Fiesta's written request, and at no expense to the requesting party, any estoppel certificate deemed necessary to further effect the provisions of this Agreement as well as for any other purpose or transaction for which Fiesta or COFW reasonably deems an estoppel certificate necessary. The estoppel certificate shall certify (i) the Agreement commencement date and the License Fee Commencement Date; (ii) the fact that this Agreement is unmodified or, if this Agreement has been modified, identifying all modifications hereto by name and date, and starting that this Agreement as modified if applicable is in full force and effect; (iii) the date to which License Fees and all other sums payable under this Agreement are paid by either Fiesta or COFW except as specified in the estoppel certificate; and (iv) such other matters as Fiesta or COFW may reasonably request. COFW's failure to deliver any estoppel certificate requested by Fiesta required herein shall be deemed conclusive, as against COFW, that this Agreement is in full force and effect and without modification except as may be represented by Fiesta that there is no uncured default in Fiesta performance hereunder, and that no more than one (1) month's License Fees for any Facility which has been paid in advance. 31. CHANGES. This Agreement may not be modified, waived or amended unless mutually agreed to in writing by the parties hereto 32. MISCELLANEOUS. Binding Effect: This Agreement executed hereunder shall be binding upon and shall inure to the benefit of Fiesta and COFW and their respective legal representatives and any entity that succeeds to the rights of Fiesta or COFW as a result of any merger, consolidation or other corporate combination or any permitted assignment. Waiver: The failure of either party to insist upon strict performance of any of the provisions contained herein shall not be deemed a waiver of any rights or remedies that said party may have, and shall not be deemed a waiver of any subsequent breach or default in the performance of any of the covenants or obligations contained herein. Attorneys Fees: In the event either party initiates or defends any legal action of proceeding to enforce or interpret any of the terms of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover from the losing party any such action or proceeding its reasonable costs and attorney's fees, including its reasonable costs and attorney's fees on any appeal. Severability: If any term or provision of this Agreement, or the application of it to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement 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. Not a Partnership: The provisions of this Agreement are not intended to create, nor shall they be in any way interpreted or construed to create, a joint venture, partnership or any other similar relationship between the parties. Third Party Beneficiary Rights: This Agreement is not intended to create, nor shall it be in any way interpreted or construed to create, any third party beneficiary rights in any person not a party hereto unless otherwise expressly provided herein. Captions and Headings: The captions and headings in this Agreement are for reference only and shall not be deemed to define or limit the scope or intent of any of the terms, covenants, conditions or agreements contained herein. Entire Agreement: The parties agree that this Agreement executed hereunder sets forth all the promises, agreements and understandings between them with respect to the subject matter herein. There are no promises, agreements or understandings, either oral or written between them regarding such matters other than as is set forth herein. Counterparts. Fiesta and COFW agree that this Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original and shall be deemed to be signed by an authorized representative of Fiesta and of COFW. EXECUTED this ay of CITY OF FORT WORTH, TEXAS By: Printed Name:�ifn A-nelU Ca€:+2 , 2013. FIESTA MART, INC. By: Louis Katopodis, President Title: tks S IS�t Ot'9 M&V6tJP/// Address: 1000 Throckmoiton Address: 5235 Katy Freeway Fort Worth, Texas 76102 Houston, Texas 77007 Approved As To Form And Legality: - ic Assistant ity Attorney Attested b i n.i • ,o SS rr Mt2Vy �a aye`, City Secretary V 73 Contract Authorization 1/4.9 Date c >>f UCiallL REGORD CITY SECRETARY FT. WORTH, TX EXHIBIT A LICENSEE RENTAL PAYMENT FORM STORE-, #78 CITY OF FORT WORTH Licensee Payment due date: 1st of each month Payment for the month of Payment amount due $1,100 Late payment, if due [10% x amount] $ Total payment enclosed $ Notes: 1) Rental must be paid by check or money order. 2) Rental will not be accepted without a copy of this License Rental Payment Form. 3) Rental must be received by the fifth (5th) day of a month to avoid a late fee. Late payments will be charged a late fee of 10% of the monthly rental 4) Rental payments should be mailed to: Fiesta Mart Inc. Department 876 P.O. Box 4346 Houston, Texas 77210-4346 EXHIBIT B LICENSEE STANDARDS OF OPERATIONS Effective April, 2008 1. Area Lease Signs • Area lease signs indicating that the Licensee's leased area is not operated by Fiesta will be provided by Fiesta and must be prominently posted and visible for customer view at all times. A large leased area will need more than one sign. 2. Hours of Operation • Signs which indicate the hours of operation must be prominently posted by Licensee and visible for customer view at all times. • No Licensee can be open when the Fiesta store is closed. • Licensee hours of operation should be established at a minimum level to fit with customer convenience and needs 3. Name Tags • All personnel working in any Licensee leased area must wear a name tag showing the name of the individual. • All name tags in a Licensee area must be of the same type, style and color and approved by the Fiesta store manger. • There is no single brand of approved name tags. 4. Attire • Proper clothing must be worn at all times in all tenant areas. o Shirts and blouses should be tucked in at all times. o Hats and caps should be fronted o Wearing apparel should be tasteful and appropriate for the business being carried on by the Licensee. o Shoes must be worn at all times. • Exclusions: o Tank tops or beach wear. o Gang or sexual paraphernalia. 5. Signage and Decoration • • • • • All Licensee signs inside of any Fiesta store must be approved by the Director of Operations for the store. No signs will be allowed for Licensees outside of the Fiesta store without the prior written approval of the Fiesta corporate office. In the interior of the store, signs should be flush against the wall to avoid the obstruction of visibility. There should be no decoration or signs in a Licensee area without the prior approval of the Fiesta stole manager. All signage should be clean and legible at all times. 6. Displays • Displays on top of showcases and counters should not be higher than five feet from the ground without pi for approval of the Director of Area Operations for the store. • Merchandise hanging from the ceiling is not permitted. • Along the interior walls of the store, Licensee should not have displays higher than eight feet from the ground. 7. Display Cabinets and Showcases • All display cabinets and showcases need to satisfy Fiesta's standards for safety and appearance and be approved in advance by the Director of Area Operations for the store. 8. Merchandising • Licensee areas should not be allowed within six feet of store entrances without specific exceptions approved by the Director of Area Operations for the store • Licensee's merchandise cannot extend beyond the Licensee's designated lease footprint and approved square footage without the prior approval of the Director of Area Operations for the store. • All Licensees should be prepared to offer a cash refund or a product exchange if the customer returns with a receipt within 30 days following the date of purchase and is not satisfied with the product sold by the Licensee. 9. General Considerations • Music can not be played by a Licensee inside of a Fiesta store. • Music should be kept at a moderate level and not be offensive when played by a Licensee outside any Fiesta store. • No posters, art work, magazines or literature that may be considered offensive or with sexual overtones shall be allowed on the premises (either inside or outside of the store)-. • Licensee will not sell products that would be in direct competition with Fiesta Mart. • Licensee will be held strictly responsible to sell only the products that are specifically permitted to be sold in their License Agreement. • No products will be sold in any Fiesta store that can not be legally sold in that store. • Any modification of utilities or utility usage must be approved by Fiesta Corporate maintenance, and any repairs will be performed by licensed and bonded repair personnel. M&C Review 10/2/2013 Official sate of the City of Fort Wort i, c.xas FORT WORTII OUNCIL 4>GENDA DATER 9/24/2013 CODER C SUBJECT: COUNCIL ACTION: Approved on 9/24/2013 REFERENCE NO.: **C-26473 LOG NAME: TYPED CONSENT PUBLIC HEARING• Authorize One Year License Agreement with Fiesta Mart, Inc., for a Total Annual Cost in the Amount of $13,200.00 to Continue the Lease of Satellite Office Space Located at 102 Northwest 28th Street for the Water Department and Municipal Court (COUNCIL DISTRICT 2) 60FIESTA_N14 NO RECOMMENDATION: It is recommended that the City Council: 1. Authorize the execution of one year License Agreement with Fiesta Mart, Inc., to continue leasing approximately 180 square feet for the Water Department and Municipal Court S atellite Customer Service Center located in the Carnival Food Store at the corner of N orthwest 28th Street and North Main Street at a rate of $1,100.00 per month for a total annual cost in the amount of $13,200.00; and 2. Authorize the term of this License Agreement to begin October 1, 2013, and terminate S eptember 30, 2014, with the option to renew for an additional one-year term. DISCUSSION: The Water Department initiated a Satellite Service Center program in 1998 to respond to customer needs within the community and to provide more customer friendly extended hours and service locations The first satellite office opened in 1998 inside Minyard's Food Store No. 33 at the corner of Miller and Berry Streets. The second satellite office opened in 2001 inside Carnival Food Store No. 120 at the corner of Northwest 28th Street and North Main Street The newest satellite office opened in July 2011 inside the Southwest Municipal Court location at Trail Lake and Southwest Loop 820 The satellite locations process over 263 000 Water Department transactions annually and collect over $22.6 million in revenue per year. The three convenient locations provide full service to customers including accepting water wastewater, garbage, stormwater and Municipal Court payments; initiating, transferring, restoring and/or terminating utility services; and initiating leak adjustments, establishing payment plans and arranging field investigations for customers. Municipal Court operates one of three service windows at the Northwest 28th Street location and will continue to share in the lease cost. This property is located in COUNCIL DISTRICT 2. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the Fiscal Year 2014 Operating Budgets, as appropriated, of the Water and Sewer Fund and the General Fund. TO Fund/Account/Centers FROM Fund/Account/Centers http://apps.cfwnet.org/council_packet/mc_review.asp?ID=18971 &councildate=9/24/2013 M&C Review 10/2/2013 1) PE45 537010 0604004 $4,400.00 1) PE45 537010 0704004 $4,400.00 1) GG01 537010 0381000 $4,400.00 Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: S. Frank Crumb (8207) Additional Information Contact: Kara Shuror (8819) ATTACHMENTS 60FIESTA N11 MAP.pdf http://apps.cfwnet.org/council packet/mc_review.asp?ID=18971 &councildate=9/24/2013