HomeMy WebLinkAboutContract 42479 x
i
CITY SECRETARY
A-1 4`+0
CONTRACT No.
LICENSE AGREEMENT
This License Agreement (the "Agreement") is made and entered in st
to this 1 day of
October, 2011, by and between Fiesta Mart, Inc. a Texas corporation("Fiesta") doing business as
Carnival, and The City of Fort Worth, Texas, ("COFW").
WHEREAS, Fiesta is the owner of or otherwise has the right occupy that certain
building located at 102 NW 28 th gh to 0 Street, Fort Worth Texas 761 •
64(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
g occupy 180 square feet of
space in the Store as currently occupied by COFW the "Licensed Location").� ovation ). 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 Fart Worth
Water Department customer service facility ocated in the Licensed '
y sed 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 a
erf � p g p yments for services and
performing customary customer service functions. The Facility will beequipped with a
department computer, n online
water de
p puter, and may include a safe and a night depository. The Facility y ma y
also offer such other services as may be permitted by applicable lave and regulation, are common
to COFW's similar customer service facilities in the City of Fort '
. y Worth, subject to prior written
approval of Fiesta. Notwithstanding the foregoing, COFW shall not sell
. g e 1 money orders, lottery
tickets, cash checks or wire transfer funds. COFW agrees not to '
gi' 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 an given month or
y g portion thereof.
The term "Commencement Date" means October 1 2011.
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The term "License Fee Commencement Date" is the date when the first Licensee Fee
payment is due which is October 1, 2011.
The term "License Fee" means the annual fee for leasing the Facility in the amount of
$13,200,payable monthly in an amount of$15100.
The term "Licensed Location" is the Facility located in the Carnival store at 102 NW 28th
Street, Fort Worth, Texas 76164.
The term "Term" of the Agreement shall be for two (2) years from the License Fee
Commence Date.
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, 2013.
4. GENERAL. Each party represents, warrants and covenants the following:
(a) Its execution, delivery and performance of this Agreement do not violate the terms of
any lave, regulation, court order or material agreement to which such party is subject.
(b) Each party shall comply with applicable laws, statutes, regulations, ordinances and
building codes.
(c) This Agreement is a valid and binding obligation of the representing party,
enforceable against such party in accordance with its terms.
(d) 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 party 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.
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(h) Each party shall take and require its subcontractors to take reasonable 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,
sub j ect 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, 2011.
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 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.
5. 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,
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signs, security systems, conduits, wiring or transformers which fall within COFW's
responsibilities herein. CDFW shall, at its expense, provide its own telephone service, data
processing, transmission lines and wire. Deposits, if any, for CDFW utilities will be provided by
CDFW.
7. USE AND OCCUPANCY. CDFW 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 CDFW and
Fiesta, and shall open and operate the Facility from 9:00 a.m. to 7:00 p.m. Monday through
Saturday and 12:00 p.m. to 5:00 p.m. on Sundays. Notwithstanding the hours of operation
described in the prior sentence, subject to Fiesta's prior written approval, which shall not be
unreasonably withheld, CDFW may extend or reduce the hours of operation to correspond to
business requirements.
CDFW shall operate the Facility in the same manner as CDFW customarily operates
other offices (including providing or promoting such services as are from time to time
customarily offered by CDFW at other similar customer service facilities of CDFW),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 CDFW 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.
S. NLARKETING. Both Fiesta and CDFW 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 j pint 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 j pint advertising undertaken
by the other party.
9. CONSTRUCTION OF FACILITY. Fiesta and CDFW acknowledge and agree that
CDFW 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, CDFW 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 CDFW signs will be allowed in the
Store.
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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 reasonable 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 even beyond its reasonable control:
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(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
more 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 or Fiesta shall have the right to terminate this
Agreement by providing thirty(30) Calendar Days prior written notice.
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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 lien; 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 lien 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: $l,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:
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$250,000 bodily injury per person
$5 001 000 bodily inj ury 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: $500,000 for each occurrence; $1,000 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.
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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 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 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.
15. 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. DEFAULTIREMEDIES. 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 failure 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
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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 ninety(90) 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 Party 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 maybe accepted or 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 Party 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
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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 ever 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 prior 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 (5)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").
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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 foregoing, if
Fiesta elects to repair 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.
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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 aware 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 burdensome 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 76 102
Attn: Water Department
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If to Fiesta: Fiesta Mart, Inc.
5235 Katy Freeway
Houston, Texas 77007
Attention: President
With a copy to: Fiesta Mart, Inc.
5235 Katy Freeway
Houston, Texas 77007
Attention: Controller
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. CGFW shall not assign, sublease or in any manner transfer this
Agreement without the prior written consent of Fiesta.
CGFW 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
CGFW shall look solely to such successor in interest of Fiesta for performance of such
obligations. Any prepaid rental and/or security given by CGFW 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, CGFW 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.
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29. APPROVALS AND REQUIREMENTS. CGFW 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 CGFW'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 CGFW's proposed use of the Facility("Third Party Consent") CGFW
shall promptly obtain the same at CGFW's expense in writing and Fiesta shall cooperate with
CGFW in obtaining the same. CGFW shall not be permitted to take any action or exercise any
of its rights under this Agreement until CGFW 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 CGFW fails to obtain all
necessary Governmental Approvals and Third Party Consents on or before the Agreement
commencement date, said termination to be effected by written notice delivered to the other
party hereto.
30. ESTOPPEL CERTIFICATES. CGFW 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 CGFW
reasonably deems an estoppel certificate necessary. The estoppel certificate shall certify(1)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 CGFW except as specified in the estoppel certificate; and
(iv) such other matters as Fiesta or CGFW may reasonably request.
CGFW's failure to deliver any estoppel certificate requested by Fiesta--s required herein
shall be deemed conclusive, as against CGFW, that this Agreement is in full force and effect and
without modification excepts 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 CGFW and their respective legal representatives and any entity
that succeeds to the rights of Fiesta or CGFW as a result of any merger, consolidation or other
corporate combination, or any permitted assignment.
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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 I-any such action or
proceeding its reasonable costs and attorney's fees, including its reasonable costs and attorney's
fees on any appeal.
Severabiiity: 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 C OF W.
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EXECUTED this J2S day of ()CktCy 2011.
CITY OF FORT NORTH, TEXAS FIESTA M T, INC
By: B y:
oui Ka opodis, President
Printed Name:
Title•
Address: 1000 Throckmorton Address: 5235 Katy Freeway
Fort Worth, Texas 75102 Houston, Texas 77007
Approved As To Form And Legality:
A' k__ C Lp
Assistant ty Attorney Contract Authorization
Date
0,* FOi
Aaested b . .
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a 0
wo
a 0
MadyHendrix, * secretary a 0
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4?0000()0C)000
b
FOFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX
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EXIHIBIT A
LICENSEE RENTAL PAYMENT FORM
STORE CARNIVAL#78
CITY OF FORT WORTH
Licensee
Payment due date: 1.st of each month
Payment for the month of
Payment amount due $1,100
Late paMent., if due F 10% x amount $
Total. a ent enclosed $
Notes:
1 Rental must be paid by check or move order,
2 Rental will not be accepted without a copy of this License Rental Pa -ient Form.
3 Rental must be received by the fifth. (5th day of a month to avoid a late fee. Late a -.en.ts
will be charged a late fee of 10% of the monthly rental.
4 Rental a ents should be mailed to:
Fiesta Mart, Inc.
D partment 876
P.O. Box 4346
Houston, Texas 77210-4346
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4
EXHIBIT B
LICENSEE STANDARDS OF OPERATIONS
Effective April, 2008
1. Area Lease Suns
• ATea lease si .s in.dicatin that the Licensee's .leased area is not-operated by Fiesta will
be,.,provi.ded..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 rust be prominently osted by..Licensee and
visible for customer view at all times.
• No Licensee can.be open when the Fiesta store is closed.
All Licensees should be o en on Saturdays and Sunda sin addition to regular weekl
hours.
• :Licensee hours of operation.should be established at a minimum Level to fit.with
customer convenience and needs.
3.„„Name T��s
• All personnel working in any Licensee leased.area must wear a name tag show in the
name of the individual.
All name jogs. in. a Licensee area must be of the same type, style..and color and approved
by the Fiesta store maner.
• There is:no single brand of approved name to s.
4. Attire
• Proper clothing.-must be worn at all tunes in all tenant areas.
o Shirts and.blouses should be tucked in at all times.
o Hats and caps. should be fronted.
o 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. S i.gli a and D e c o.rat i.o n.
All Licensee si ns inside of an. Fiesta store MUSt be approved by the Director of
Operations for the store.
* No sign will be allowed for Licensees outside of the Fiesta store without the rior
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.
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r
• There should be no decoration or signs in a Licensee area without the prior a roval of
the Fiesta store mana�er.
• All si na e should be clean. and legible at all times.
6. Displays
Dis la s on.to of showcases and counters should not be hi her than five feet from the
otmd without rior approval of the Director of Area Operations for the store.
• Me:rcband'Ise h.a11 in from the ceiling 1s not pennitted.
Along the interior galls of the store Licensee should not have dis_ la s higher than eight
feet from the ground.
7. Di s la fabi nets and Showcases
• All display--- cabinets anal. showcases need to satisf Fiesta's standards for safety and
appearance and beqpproved in advance by the Director of Area Operations for the stare.
8. Merchandising
• Licensee areas should not be allowed within six feet of store entrances without specific
exceptions a roved by the'Director of Area Operations for the store.
• Licensee's merchandise cannot extend beyond the Licensee's designated lease foo Tint
and a roved square footage without the nor qPproval of the Director of Area
0 erations for the stare.
• All Licensees should be prgpared to offer a cash refund or a- roduct exchan e if the
customer returns with a recei t 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 kg pt at a moderate level and not be offensive when.plqye�d..by a Licensee
outside any Fiesta stare.
• Na posters, art work magazines or literature that mqy be considered offensive or with
sexual overtones shall be allowed on the remises 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 specific
ennitted to be sold in their License A gre ement.
• No Products will be sold in any Fiesta store that can not be IpSally sold in that store.
•
Any modification of utilities or utilit usa e must be approved by Fiesta Co orate
maintenance and any repairs will.be erfonned by licensed and bonded rep air ersannel.
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ti
Official site of the City of Fart Wo,rtlh, 'T"exas
CITY (:0UNCIL AGENDA FoRT'WORTI'I
COUNCIL ACTION: Approved on 10/4/2011
DATE: 10/4/2011 REFERENCE NO.: **C-25206 LOO NAME: 60FIESTA N11
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Two Year License Agreement with Fiesta Mart, Inc., for a Total of$26,400.00
to continue Lease of Satellite office Space Located at 102 Northwest 28th Street for the
Water Department and Municipal court (COUNCIL DISTRICT 2)
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RECOMMENDATION:
It is recommended that the City council:
1. Authorize the execution of a two year License Agreement with Fiesta Mart, Inc., to continue leasing
approximately 180 square feet for the Water Department and Municipal court Satellite customer
Service Center in the Carnival Food Store at the corner of Northwest 28th Street and North Main
Street. Total cost for leasing the location at 102 Northwest 28th Street is $26,400.00 for two years at
$1,100.00 per month; and
2. Authorize the term of this License Agreement to begin October 1, 2011 and terminate September
30, 2013.
DISCUSSION:
The Water Department initiated a Satellite Service center (Satellite) 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 the Minyard's Food Store No. 33 at
the corner of Miller and Berry Streets. In 2001, the second Satellite office opened inside the Carnival
Food Store No. 120 at the corner of Northwest 28th Street and North Main Street. The newest
Satellite office opened July 2011, inside the Southwest Municipal Court location at Trail Lake and
Southwest Loop 820.
The Satellite locations process over 275,000 Water Department transactions annually and collect
over $23 million in revenue per year. The locations provide full service to customers with two offices
open seven days a week with extended hours of Monday through Saturday (9 a.m. to 7 p.m.) and
Sunday (12 p.m. to 5 p.m.). The new Southwest office is open Monday through Friday (8 a.m. to 5
p.m.). Satellite services include accepting payments for water, wastewater, garbage, stormwater and
Municipal Court payments, initiating, transferring, restoring and/or terminating services, making 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 proposed Fiscal
Year 2012 Operating Budgets, as appropriated, of the Water and Sewer Operating Fund and General
Fund
TO Fund/AccounVCenters FROM Fund/AccounVCenters
1) PE45 537010 0.5.0_40.04 $4j4.D0.00
1) P E45 537010 0704004
$4,400.00
1) GG01. ..537D10 0381 000 $4,400.00
Submitted for City Manager's Office by: Fernando Costa (8122)
Originating Department Head:. S. Frank Crumb (8207)
Additional Information Contact: Kara Shuror (8819)
ATTACHMENTS
6_0FIESTA—N11 MAP.pdf