HomeMy WebLinkAboutContract 43767 CITy SF, WARY
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CONCESSIONAIRE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND
FAJITA x-PRESS, C. FOR FORT WORTH GREAT OUTDOORS,MOLLY'S
ULTIMATE ADVENTURE
THIS AGREEMENT CAgreemene) 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
C'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
E ,, 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 ANTI].CONCESSION RIGHTS 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 C'Evenep) on Saturday, October 13, 2012 C'Event Date") at the Greenbriar
Community Center located at 5200 Hemphill Street, Fort Worth, Texas C'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.
Concessionaire shall have access to the Premises no earlier than 9:30 a.m. on the
Event 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
Event Date.
vi. Concessionaire shall not sell or permit the sale of alcoholic beve
Premises. RECORD
CITY SECRETARY
FT.WORIK'�`
Concessionaire Agreement Between the City of Fort Worth and Fa jita X-Press,UC.,for the
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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, OTremises"). Concessionaire may not relocate its truck without
the express written permission of the City. The Concessionaire understands that the City may
alloy, in its sole discretion, other sirrular 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 Citv does not guarantee a total level of sales or income to be realized by the
Concessionaire from the Event.
SECTION
EXPI RA'T'I o N N E RMINAT
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 termination 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,LLC Jor the
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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 Exhibit
"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 The 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 and beverages that are to be sold in individual containers by the Concessionaire
must be purchased from coca cola,including,but not li cited to,bottled water. Unbranded
brewed coffee, iced tea, fresh squeezed juice or individual contaivaers of unflavored milk are
permitted exceptions to the Fouring 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-
-CONDITIObl--OF THE PRE DES
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 in 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 fin ishings 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 finrnishings
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
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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 authorize or empower the City to direct the
activities of the Concessionaire or assume liability for Concessionaire's activities.
SECTION
FAYMENT 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" shad 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.
SECTIOIT�
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 Event.
SEC11ON$
oMP IAN E 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 Form Worth Parks and
Community Services.Special Events.11 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 jor the
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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 inform 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, litter,
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.
SEC'T'ION 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),MALF CE OR
INTENTIONAL MISCONDUCT OF THE CONCESSIONAIRE, ITS OFFICERS,
Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press,LLC jor the
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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, LIA.BILI'TIES, 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,W14ETHER REAL OR ASSERTED,ARISING GUT 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 COINNECT'ION WITH THE EXECUTION,
PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF
THIS AGREEMENT.
10.03 Intellectual Prop erty. The Concessionaire agrees to assume full responsibility for complying
with all State and Federal Intellectual Property Laws and any other regulations, including, but not
ted 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,
implied or otherwise, regarding payment or collection of any such fees or financial obligations. City
specifically does not authorize, 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 STX LT. 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, AT'TO 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 S BE BROUGHT BY OR AGAINST
THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE
CONCESSIONAIRE, ON NOTICE FROM CITY, Syy 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 Fa jita X-Press,LLC jor the
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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 LIMI'T'ATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION
OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT.
10.05 Concessionaire agrees to and shall release City from any and all liability for in jury, 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 index cation provisions of this Agreement shall survive the termination or expiration
of this Agreement.
SECTION 11
INSU1tANCE
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 in 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/$5003,000
b. Commercial General (public) Liability Insurance,Combined Single Limit for Bodily
Injury and Property Damage,$1,000,000 per Occurrence, $2,000,000 Aggregate, to
include coverage for the following:
i. Prenn'ses/Operations
ii. Independent contractors
iii_ Products/completed operations
Concessionaire Agreement Between the City of Fort worth and Fajita X--Press,LLC.,fDr the
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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/Leased 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
policies 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 policies). Upon such request by the
City, the Concessionaire shall exercise reasonable efforts to accomplish 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 l2
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,I1,G.,for the
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SECTION 13
NO'T`ICES
13.01 All notices requited 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 overnight 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 CONCESSIONAIRE
City of Fort Worth Tirnothy Edward Brake
Parks and Community Services Director 2752 Triangle Leaf Drive
4200 S. Freeway, Feller,Texas 76244
Forth Worth,Texas 76115
With copy to:
Assistant City Attorney
1 000 Throckmorton Street
Fort Worth,Texas 76102
The Concessionaire and City agree to notify the other party of any changes in addresses.
SECTION 1
FORCE MMEURE
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 Ma j eure 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 not
Concessionaire shall be deemed in breach of this Agreement if it is prevented from performance by
Force Maj eure.
SE I N
(;HARIIABLE O&CAWZATION
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 immunity or limitation
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.
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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 This Agreement is non-assignable, and any unauthorized purported assignment 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
V alid 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 lie in state courts located in Tarrant County, Texas or
the United States District Court for the Northern District of Texas — Fort North 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
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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 earlier
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.
17.12 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 ("Discru'niation 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
off cers, 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 The 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,M.C.,for the
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III WI ESS WHEREOF, the parties hereto have executed this Agreement on this day of
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!� L., 2012.
CITY OF FORT WORTH FAJITA X--PRESS, LLC
by: by: -
e-
--'� 4—
usan Alanis imothy E ward rake
Assistant City Manager Member/Owner
"PROVED AS TO FORM AND LEGALITY
by: C�
Tyler F. ch
Assistant City Attorney
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ATTEST: ao %0
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Mary Kayser 000000000
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City Secretary ks. ,, '
M&C--No M&C Required
0FFICIAL RECORD
CITY SECRETARY
FTa WORTH,TX
Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press,LLC.,for thL.
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EXHIBIT B
Established Prices
"OV
Menu
Chen or Beef Faiitas-- Mesquite smoked with sauteed onions and bell
peppers served can 3 warm flour tortillas and a side of rice and beans. $7.00
Quesadillas- 1 flour tortilla stuffed with cheese $1.50
Cheese Nachos- $3.50
Chicken or Beef Tacos- Served on corn tortillas and topped wfcheese $2.03
Desserts
Chile Ancho Brownie— Fudge brownie with a hint of Chile Ancho served with
a scoop of vanilla ice cream. $3.50
Homemade Chocolate Chip Cookies- $1.00
Drinks
Coke, Diet Coke, Dr. Pepper, Diet Dr, Pepper, Sprite, Diet Sprite,
and Bottled Water - $1.00
Concessionaire Agreement Between the City of Fort Worth and Fajita X-Press,UC jor the
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17 .Wr .1 !� . !l .7 7 X 11 7 Y Ty.' 4 1