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HomeMy WebLinkAboutContract 23572 CONTRACRNO 2 3��2 AGREEMENT FOR PLACEMENT OF A CITY OF FORT WORTH WATER DEPARTMENT CUSTOMER SERVICE FACILITY IN A MINYARD FOOD STORE By and Between THE CITY OF FORT WORTH and MINYARD FOOD STORES,INC. R[C�©QD CM SCREVARY R MEN EX. david/ft.water dept `� AGREEMENT This Agreement for placement of a City of Fort Worth Water Department Customer Service Facility in a Minyard Food Store("Agreement")is entered into by and between The City of Fort Worth("Fort Worth")and Minyard Food Stores,Inc.,a Texas corporation("Minyard"). 1. SCOPE OF AGREEMENT includes the Approved Plan and related documents applicable to the Facility. 1.1 This Agreement establishes the terms, conditions and consideration under which Minyard will permit Fort 2.5 "Business Day": Means any day, Monday through Worth to construct and operate a Customer Service Friday excluding Fort Worth holidays of any given week Facility in a designated Minyard Food Store. or portion thereof. 1.2 At such time that Fort Worth and Minyard identify the 2.6 "Calendar Day":Means every day of any given month specific Minyard Food Store where the Facility is to be or portion thereof. located,Fort Worth and Minyard will execute a Facility License in substantially the same form as Exhibit A 2.7 "Initial Term":The Initial Term of a Facility License hereto. The Facility License and attachments thereto,will shall be for five (5) years from the License Fee identify the specific details related to the specific Commencement Date or other such term as may be Minyard Food Store which is described as a"Licensed specified in the Facility License. Location"herein. 2.8 "License Commencement Date":The effective date for 1.3 The location of the Facility within a Licensed Location a Facility License to commence as shown on a Facility will be as agreed on the applicable Facility License,but License. will generally be at or near the front entrance. 2.9 "License Fee":The amount of the annual License Fee 1.4 The floor space requirements of the Facility are expected for a Facility shall be as mutually agreed between to range from 125 to 200 square feet. In all instances Minyard and the Fort Worth on a case by case basis but they will include teller type customer service windows, shall not be subject to change during the Initial Term. accounts assistance desk. Details of the features, size The annual License Fee for an Option Tenn shall be as and contents of each Facility will be a part of the set forth on the Facility License. The License Fee is Facility License. payable monthly in an amount equal to one-twelfth(1/12) of the annual License Fee. 2. DEFINITIONS 2.10 "License Fee Commencement Date":The date when the 2.1 "Approved Plan": That certain plan attached to and first License Fee payment is due under a Facility License. made a part of the Facility License showing the location The Initial Term also starts on this date. of the Facility within the Licensed Location and showing the layout, dimensions and detailed plans, signs and 2.11 "Licensed Location": A Minyard Food Store building specifications of a Facility. that is owned or leased by Minyard and operated as a supermarket located at the address shown on a Facility 2.2 Intentionally Omitted License and identified by Minyard's applicable reference number. 2.3 "Facility": Is a full service City of Fort Worth Water Department customer service facility within the Licensed 2.12 "Option Term":An Option Term of a Facility License Location which is staffed with and operated by one(1)or shall be for five (5) years from the end of the Initial more of Fort Worth employees whose functions will Term, or such other term as may be specified in the include, without limitation, opening new accounts, Facility License. accepting payments for services and performing customary customer service functions. A Facility will be 3. TERM OF AGREEMENT equipped with an online water department computer,and may include a safe and a night depository.A Facility may 3.1 This Agreement shall apply and remain in effect from the also offer such other services as may be permitted by date of execution and continue for as long as the Fort applicable law and regulation, are common to Fort Worth has a Facility in a Licensed Location. Worth's similar customer service facilities in the City of Fort Worth,subject to prior written approval of Minyard. Notwithstanding the forgoing,Fort Worth shall not sell 4. LICENSE money orders,sell lottery tickets or cash checks. 4.1 Subject to the terns and conditions set forth herein,upon 2.4 "Facility License": A document signed by authorized execution of one or more Facility Licenses: representatives of Minyard and the Fort Worth that identifies a Licensed Location,License Commencement Date and License Fee for a Facility. A Facility License david/ft.water dept (a) Minyard grants to Fort Worth,a license to install obligations, trademark rights, copyrights, patent and operate a Facility, in the Licensed Location rights or other proprietary rights. named on the Facility License;and (e) It will,if for any reason they suspect or discover (b) The Fort Worth hereby agrees to construct and they may not be able to perform their obligations continuously operate a Facility in the Licensed hereunder or in any Facility License,immediately Location. notify the other party in writing.This notification must include a detailed description of the problem, 4.2 The Fort Worth shall use the Facility only as specifically the causes of the problem and a plan to resolve the described in Section 2.3. problem. Submission of such a plan shall not relieve the party of its obligations and shall not 4.3 The Fort Worth agrees not to place or allow an automatic �J preclude any remedies available to the party teller machine(ATM),or other similar electronic terminal " hereunder. that performs banking functions within the Facility. (f) It will in the performance of its obligations under 4.4 A Facility License shall not limit or restrict the right of this Agreement,act fairly and in good faith. Minyard to transact or conduct any activity or service which is typically transacted or conducted by Minyard in (g) Where notice,approval,or similar action by either the operation of its similar food store facilities. party hereto is permitted or required by any provision of this Agreement,such action shall not 5. TERM OF A FACILITY LICENSE be unreasonably delayed or withheld. 5.1 A Facility License shall be for an Initial Term of five(5) (h) It shall take and require its subcontractors to take years from the License Commencement Date or such reasonable precautions and institute procedures other term as may be specified in the Facility License. designed to promote safety, avoid accidents and prevent injury to persons or property under their 5.2 Fort Worth,by giving Minyard prior written notice, as control. specified in the Facility License,before the expiration of an Initial Term for a Facility may extend the term of a 6.2 Neither party shall be liable for the acts or omissions of Facility License for one Option Term of five(5)years or the other party's employees and agents in performing its other such Option Term as may be specified in the respective obligations under this Agreement. Facility License. 6.3 Fort Worth and Minyard each have the sole and exclusive 5.3 In the event Fort Worth fails to give notice as provided right and responsibility to select and,subject to the terms above, then the applicable Facility License shall of this Agreement, to direct its employees and to automatically terminate on the expiration date specified determine the terms and conditions of their employment. in the Facility License. Notwithstanding the forgoing,in the event any employee of Fort Worth is caught shoplifting or engaging in some 6. GENERAL other illegal or dangerous activity in the Licensed Location,then in addition to any other rights Minyard has 6.1 Each party represents, warrants, and covenants the under the terms of this Agreement or at law or in equity, following: Minyard shall have the right to direct said Fort Worth employee to leave the Licensed Location without right of (a) Its execution, delivery, and performance of this re-entry,unless approved in writing by Minyard. Agreement do not violate the terms of any law, regulation, court order or material agreement to 6.4 Fort Worth's employees, while working at a Facility, which such party is subject. shall be entitled to use restrooms and "break rooms" at the Licensed Location on the same basis as such facilities (b) Each party shall comply with applicable laws, are provided by Minyard for the convenience of its statutes, regulations, ordinances and building employees. Minyard and Fort Worth shall each prohibit codes. their respective employees from soliciting each others employees, for any purpose. Minyard shall provide (c) This Agreement is a valid and binding obligation of parking spaces for Fort Nvorth's employees of the Facility the representing party, enforceable against such on the same basis as Minyard's employees; provided, party in accordance with its terms. however,that Minyard may designate the location of such spaces. (d) It will not infringe,misappropriate,or violate any third-party rights, including, without limitation, 6.5 Intentionally Omitted property or contractual rights, nondisclosure AGREEMENT FOR PLACEMENT—Page 2 david/ft.water dept 6.6 Fort Worth agrees to comply with,and agrees that this Saturdays and 12:00 p.m. to 5:00 p.m. on Sundays. Agreement and Facility Licenses and all of Fort Worth's Notwithstanding the hours of operation described in the rights hereunder are subject to, (i) all applicable prior sentence,subject to Minyard prior written approval, provisions,restrictions and requirements set forth in the which shall not be unreasonably withheld, Fort Worth lease(s) (if any) and restrictive covenants (if any) may extend or reduce the hours of operation to affecting the Licensed Location and all other documents correspond to business requirements. incorporated into a Facility License, and (ii) all other reasonable rules,regulations,restrictions and agreements 9.2 Fort Worth shall operate the Facility in the same manner now or hereafter affecting the Licensed Location. as Fort Worth customarily operates other offices (including providing or promoting such services as are 7. PAYMENT OF LICENSE FEE(S) from time to time customarily offered by Fort Worth at other similar customer service facilities of Fort Worth), 7.1 The first License Fee payment is due upon execution of provided that: the Facility License and shall be applied to the first full month of the Initial Term starting with the earlier of the (a) the Facility shall be adequately staffed during all License Fee Commencement Date or the date the Facility times of operation; first opens for business. (b) Minyard shall have the right to establish acceptable 7.2 License Fees shall be payable in advance on the first day business practices and operations in order to of each month and shall be prorated on a daily basis for protect and ensure the continuity of in-store any partial month, including the months in which the operations and first-class public image, and Fort obligation to make such payments commences and Worth shall to the extent it is reasonable and terminates. Any License Fees and other monetary practical, abide by and ensure its subcontractors, obligations not paid within ten(10)Calendar Days from agents and employees abide by the same. the date when due shall bear interest at the lower of one and one-half percent(1.5%)per month or the highest rate 10. Intentionally Omitted of interest permitted by law. 11. MARKETING 8. UTILITIES 11.1 Intentionally Omitted 8.1 Minyard shall provide,or cause to be provided,electrical service to the boundary of the Facility. Fort Worth 11.2 Minyard and Fort Worth agree to explore, and where assumes all responsibility for the installation, mutually agreed, to implement co-marketing maintenance and replacement of electrical fixtures, arrangements that illustrate their unity with each other. wiring, conduit and connections which fall within the Facility. Minyard will not pay for any costs of any 11.3 Any solicitation of Minyard's customers by Fort Worth' electrical facilities required by Fort Worth such as personnel is to be done in a professional and courteous meters, signs, security systems, conduits, wiring or manner. Minyard's Licensed Location manager must transformers which fall within Fort Worth's approve the location and duration of said solicitation of responsibilities herein. Minyard's customers. 8.2 Fort Worth shall, at its expense, provide its own 11.4 Both Minyard and Fort Worth may, at their expense, telephone service,data processing,transmission lines and advertise the existence and location of the Facility wire. established pursuant to this Agreement in such media and in such manner as each deems appropriate. However,the 8.3 Deposits,if any,for Fort Worth utilities will be provided prior written approval of each party shall be obtained by Fort Worth. with regard to any advertisement that refers to both parties or to the party other than the party which is 9. USE AND OCCUPANCY undertaking the advertisement. The cost of any such joint advertising undertaken by either party shall be shared 9.1 Fort Worth shall open the Facility for business on the between the parties as agreed by them prior to such License Fee Commencement Date and continuously advertising being underwritten by either of the parties. operate, excluding legal holidays as observed by Fort However,neither party shall be obligated to approve any Worth (ie:New Year's Day,Martin Luther King,Jr.'s joint advertising proposed by the other,or to share in the Birthday,Memorial Day,Labor Day,Thanksgiving Day cost of any joint advertising undertaken by the other and Christmas Day) or as otherwise mutually agreed party. between Fort Worth and Minyard, and shall open and operate the Facility from 10:00 a.m. to 8:00 p.m. 12. CONSTRUCTION OF FACILITY Monday through Friday, 9:00 a.m. to 7:00 p.m. on AGREEMENT FOR PLACEMENT—Page 3 david/ft.water dept Except as may be provided in the Facility License to such plans. If Minyard and Fort Worth do not agree Agreement: on all of the plans within thirty(30)Calendar Days after the plans are first submitted to Minyard,Fort Worth or 12.1 Fort Worth shall, at its sole expense, and as soon as Minyard may terminate the applicable Facility License practicable, after the License Commencement Date, by written notice to the other party. install the Facility in the Licensed Location in accordance and compliance with the Approved Plan. No 12.7 Fort Worth agrees to commence construction in a timely construction shall commence until an Approved Plan has manner as mutually agreed,on a case by case basis,after been approved in writing by Minyard.. Minyard's final approval of the Approved Plan and open the Facility on the License Fee Commencement Date. If 12.2 Fort Worth acknowledges that Minyard's approval of for any reason Fort Worth is unable to obtain all permits such plans and specifications shall not imply or constitute and authorizations which are required with respect to a any representation or warranty on the part of Minyard Facility,within forty-five(45)Calendar Days following that such plans and specifications comply with Minyard's final approval of the Approved Plan,including, governmental requirements or any restrictions affecting but not limited to building permits,sign permits,and/or the Licensed Location nor shall Minyard be deemed to certificates of occupancy, Fort Worth or Minyard may have waived any claim with respect to any failure of such terminate the applicable Facility License by written plans and specifications to comply with the same. notice to the other party. 12.3 Fort Worth shall,at its sole expense,furnish all fixtures, 12.8 Fort Worth agrees to construct the improvements for the equipment and furnishings and any additional electrical Facility in a good and workmanlike manner and maintain service and other utility connections (collectively, its improvements to the Facilities in compliance with all "Eguinment") that are required for Fort Worth applicable governmental laws, orders, rules and operations in the Licensed Location. Such Equipment regulations now or hereafter in effect. Notwithstanding shall be identified on the Approved Plan. the foregoing or any other provision hereof, Fort Worth shall not be responsible to comply,and Minyard agrees 12.4 Fort Worth shall complete the installation of the Facility, at its own expense to comply and make repairs and including all Equipment, and be open for business no alterations to comply with all such laws,ordinances,rules later than the License Fee Commencement Date,or as the and regulations applicable to the construction or License Fee Commencement Date may be extended by alteration of the Licensed Location other than within the "Force Majeure"as defined herein. Facilities or with respect to an item which Minyard is to repair and maintain under another provision of this 12.5 If the Facility is not completed within thirty (30) Agreement. Calendar Days after the License Fee Commencement Date, then either party to this Agreement, except for a 12.9 Minyard and Fort Worth acknowledge and agree that party whose actions or lack of actions has caused the Fort Worth is the owner of the Facilities installed under delay, may terminate the Facility License by written this Agreement and owns all removable equipment notice to the other,in which event Fort Worth shall have therein, but has no ownership interest in the Licensed ten(10)Business Days after such termination to promptly Location. remove the Facility and the Equipment and restore the applicable part of the Licensed Location to as good a 13. SIGNS condition as existed prior to the License Commencement Date. 13.1 Subject to municipal ordinances,the terms of Minyard's lease,if any,and Minyard's prior written approval which 12.6 Fort Worth shall, if such plans are not attached to a shall not be unreasonably withheld, Fort Worth may Facility License at the time it is signed, within fifteen place signs identifying its operations in the vicinity of the (15)calendar days thereof,or other mutually agreed time, Facility, and where allowed, on the exterior of the submit to Minyard for its approval, plans for all Licensed Location. Minyard agrees to cooperate with improvements proposed, including, without limitation, Fort Worth in obtaining all necessary approvals from construction materials,colors,fixtures,lighting,signs and third parties with respect to such signs. graphics. Minyard agrees,within ten(10)Business Days after receipt of the plans from Fort Worth to give Fort 13.2 Unless mutually agreed otherwise on a case by case basis, Worth written approval, disapproval or approval with Fort Worth's signs shall employ the City of Fort Worth conditions of such plans. In the event Minyard standard logo and graphics. If Minyard and Fort Worth disapproves or approves such plans with conditions,Fort do not agree,or if Minyard's landlord,if any,does not Worth shall diligently revise such plans accordingly and consent,to interior and exterior Fort Worth signs and submit them for Minyard final approval within five(5) their location and dimensions, Fort Worth or Minyard Business Days or other mutually agreed time,from the may terminate the applicable Facility License by giving date of its receipt of Minyard's disapproval or conditions written notice to the other party. AGREEMENT FOR PLACEMENT—Page 4 david/ft.water dept 14. MODIFICATIONS AND ADDITIONS (d) Doors, walls, floors, floor covering, windows, roofs,ceiling and all other structural portions of the 14.1 After the initial installation of a Facility,Fort Worth shall Licensed Location,excluding those like items or not make any material modifications or alterations to the structural improvements provided by Fort Worth Facility without Minyard's prior written approval,which as part of a Facility. shall not be unreasonably withheld. (e) Janitorial services for aisles and floors adjacent to 14.2 Fort Worth shall use its best efforts to perform any a Facility and for the remainder of the Licensed maintenance,repairs,modifications,or additions to the Location occupied by Minyard. Fort Worth shall Facility in a manner that will not unreasonably interfere be responsible for Janitorial Services for the with Minyard's operation in the Licensed Location. Facility. 15. MAINTENANCE AND REPAER 15.3 In the event Minyard discontinues,suspends or is unable to fulfill its obligations under Section 15.2 as a result of 15.1 Fort Worth shall,at its sole cost and expense,maintain an act or event beyond its reasonable control: the Facilities in good and clean condition and repair. Without limiting the foregoing,Fort Worth shall keep its (a) Fort Worth shall not be entitled to any Facilities free and clear of all waste paper. Minyard shall reimbursement,compensation or damage because have no repair,maintenance or replacement obligations of such discontinuance or suspension, nor shall with respect to the Facilities except as specifically set Minyard be liable to Fort Worth for any forth herein. Fort Worth shall maintain the Facilities as interruption of its operations occasioned by such follows: suspension or discontinuance other than a reasonable abatement of the License Fees as (a) Fort Worth shall keep and maintain the Facilities in provided in Section 15.3(b)below. good order and repair, including all Equipment installed therein and all electrical,phone or other (b) Notwithstanding the provisions of Section 15.3(a) transmission lines used by Fort Worth for above,should such discontinuance or suspension computer data processing and transmission. continue and interfere with the conduct of Fort Worth business in a Facility for more than five(5) (b) Fort Worth shall provide all necessary janitorial consecutive Calendar Days,the License Fees to be services for the Facilities. paid hereunder shall be abated on a per diem bases, to such an extent as is fair and reasonable under the (c) Fort Worth shall maintain, repair and reasonably circumstances,based on the degree of interference, control any doors or glass windows which are part throughout the period of such discontinuance or of the Facilities. suspension. (d) Fort Worth shall maintain and keep interior and (c) Should such discontinuance or suspension prevent exterior signs in good working order. Fort Worth from conducting business at a Facility for more than thirty (30) Calendar Days, Fort (e) If any, Fort Worth shall maintain its air Worth or Minyard shall have the right to terminate conditioning and heating specifically for the the applicable Facility License by written notice to Facility, including changing filter as needed and the other party at any time thereafter until Minyard replacement if necessary. continues its normal business operation and is fully able to fulfill its obligations.Such termination shall 15.2 Minyard shall, at its sole cost and expense, provide, be effective as of the date of notice. maintain in good order and repair the following at the Licensed Location; 15.4 Minyard shall maintain the space within a Licensed Location directly adjacent to the entrance of a Facility (a) All lights,other than those lights provided by Fort free and clear of all advertisements, signs, fixtures, Worth as part of the Facility. barriers,signs or other obstructions that would obstruct the ingress to and egress from the Facility or that might (b) Toilet facilities,plumbing and sprinkler systems,if prohibit or hinder the operation of Fort Worth'business any. within a Facility except as may be necessary in Minyard's sole discretion in event of an emergency situation or (c) Electrical service and related electrical distribution temporary repair which must be made in the area of the equipment and wiring,other than computer,phone, Facility. or data processing and transmission lines provided by and used by Fort Worth to the boundary of the 15.5 Minyard shall have the right to enter a Facility,subject to Facility. Fort Worth reasonable security procedures, for the AGREEMENT FOR PLACEMENT—Page 5 david/ft.water dept purpose of performing inspections,maintenance,repairs, 16.2 Minyard agrees to pay in full when due and discharge all alterations and remodeling to the Licensed Location and claims for labor performed (or alleged to have been for the purpose of exercising or performing any of its performed) and materials and services furnished (or rights or obligations hereunder. Minyard shall use its alleged to have been furnished) in connection with best efforts to perform any inspections, maintenance, installation and/or operation of the Licensed Location or repairs, alterations, and remodeling to the Licensed Minyard equipment to prevent the assertion of claims of Location in a manner that will not unreasonably interfere lien against a Facility owned by Fort Worth. In the event with Fort Worth operations or customer access to the a lien is filed against the Facility as a result an act or Facility. If, as a result of any repairs, remodel or omission of Minyard, Fort Worth shall have the right, alterations made by Minyard in any part of a Licensed but not the obligation,to contest the validity of any such Location, Fort Worth is materially deprived of its use of lien;provided,however,Minyard shall,within thirty(30) a Facility,Minyard shall not be liable to Fort Worth for Calendar Days after notice from Fort Worth to do so,and damages by reason thereof, nor shall the same release sooner as necessary to prevent foreclosure and/or Fort Worth from any of Fort Worth obligations under this enforcement of the same,procure the release of any such Agreement, except that the License Fees payable lien in a manner satisfactory to Fort Worth,whether by hereunder shall be equitably reduced during the time payment,posting of bond,obtaining an appropriate court Fort Worth is materially deprived of its use of a Facility. order,or otherwise. 15.6 Should Minyard, in its reasonable business judgment, 17. INSURANCE deem it necessary to relocate a Facility in a Licensed Location, Minyard may relocate such Facility to a 17.1 Fort Worth is basically a self-funded entity and as such it mutually agreed location in the Licensed Location. does not maintain commercial insurance policies to cover Minyard agrees to pay the reasonable and necessary its general liability risks. Damage for which Fort Worth expenses of relocation of Fort Worth's fixtures, would ultimately be found liable would be paid directly equipment and furnishings due to any such relocation by the Fort Worth and not by a commercial insurance requirements by Minyard. Should the parties fail to agree company or companies. Likewise,Fort Worth's workers' upon the new location for the Facility within the Licensed compensation insurance program is basically self funded Location,Fort Worth or Minyard shall have the right to with exceptions noted below: terminate the Facility License by providing ninety(90) Calendar Days prior written notice. (a) Workers' compensation insurance and employer's liability insurance are maintained by Fort Worth: 16. LIENS Statutory limits:self funded to the$500,000 16.1 Fort Worth agrees to pay in full when due and discharge single incident retention limit over which a all claims for labor performed(or alleged to have been commercial excess workers' compensation performed) and materials and services furnished (or insurance policy is maintained having no fixed alleged to have been furnished) in connection with limit. installation and/or operation of a Facility or Equipment so as to prevent the assertion of claims of lien against the employer's liability:$1,000,000 Licensed Location and/or the land owned or leased by Limit per claim with coverage maintained on a first Minyard surrounding the Licensed Location. Fort Worth dollar basis. shall have the right, at its sole expense, to contest the validity of any such lien;provided,however, Fort Worth (b) General liability insurance is self funded by Fort shall,within thirty(30)Calendar Days after notice from Worth according to paragraph one above. The Minyard to do so, and sooner as necessary to prevent Texas Tort Claims Act limits a municipality's foreclosure and/or enforcement of the same,procure the liability for certain governmental functions and release of any such lien in a manner satisfactory to under certain conditions to the following limits: Minyard,whether by payment,posting of bond,obtaining an appropriate court order or otherwise. Without limiting -$250,000.bodily injury per person the generality of any other provision of this Agreement, -$500,000.bodily injury per occurrence Fort Worth agrees to indemnify, defend and hold -$100,000.property damage Minyard harmless from and against any action filed or claim asserted against Minyard for any reason in 17.2 Fort Worth will endeavor to procure an endorsement to connection with any lien claim arising in connection with its excess workers' compensation insurance policy the installation and/or operation of the Facility or whereby Minyard shall receive a waiver of subrogation in equipment. In addition,Minyard may require Fort Worth its favor. Subsequently, Minyard would receive a to pay Minyard attorneys fees and costs in participating certificate of insurance documenting same. As a in such action if Minyard shall decide that It is in its best certificate holder,Minyard would receive a minimum ten interest to do so. (10 days notice of cancellation. AGREEMENT FOR PLACEMENT—Page 6 david/ft.water dept 17.3 Contractors to Fort Worth shall be required to maintain of their employment,agency or contract,and Fort Worth the following insurance coverages and have Minyard does hereby release Minyard from liability for any such endorsed as an additional insured as its interests may acts. appear on policies of such insurance: 18.2 In so far as permitted by law, Fort Worth agrees to (a) Commercial General Liability: indemnify,defend and hold Minyard harmless from and $500,000 each occurrence against any and all losses, costs, expenses (including, $1,000,000 aggregate limit without limitation, reasonable attorneys fees and reasonably attorney's fees on any appeal), liabilities, (b) Workers's Compensation Insurance damages, and claims, demands, liens claims of liens, statutory limits, and employer's liability at judgments,proceedings and causes of action(collectively minimum limits as prescribed by State of Texas law. "claims")resulting from Fort Worth's use of its Facility and/or resulting from the Fort Worth's negligence or Fort Worth shall require its contractors to require willful misconduct and/or resulting from its breach of any subcontractors thereto to maintain lines of insurance of its obligations under this Agreement and for any and coverage and limits thereof commensurate with those all such claims resulting from the negligence or willful required of contractors. misconduct of its employees(acting within the scope of their employment ) or agents and contractors (acting 17.4 Insofar as permitted by law,Fort Worth's insurance shall within the scope of their employment, agency and be primary coverage with respect to any occurrence contracts,respectively);however,Fort Worth shall not be within the premises Fort Worth leases from Minyard or liable for the acts of its employees,agents or contractors any event arising out of the use of the Facility within the acting outside the scope of their employment,agency or Licensed Location for which Fort Worth is determined contract,and Minyard's does hereby release Fort Worth legally liable. from liability for any such acts. Nothing contained herein shall ever be construed so as to require Fort Worth to 17.5 During the term of this Agreement and any renewals assess, levy and/or collect any tax to fund this thereof, Minyard shall maintain, or cause to be indemnification provision. maintained, general liability and casualty insurance on the Licensed Location, but may substitute therefor a 19. TAXES program of self-insurance adequate to enable Minyard to comply with its responsibilities under this Agreement. In 19.1 Fort Worth shall promptly pay all taxes assessed by any all events the limits of the general liability insurance will taxing authority on its operations, fixtures, equipment be not less than$1,000,000 per occurrence,per location and/or machinery. Minyard agrees to promptly forward and$2,000,000 aggregate for bodily injury and/or death to Fort Worth all tax bills, license notices and the like and/or property damage and/or personal injury. that are payable by Fort Worth but are received by Minyard. 17.6 Minyard and Fort Worth shall be responsible for only those damages for which each respective party is found 19.2 Minyard, or its landlord, if any and when applicable, legally liable. shall be responsible for payment of its property taxes,ad valorem taxes or any other taxes for the Licensed 18. INDEMNIFICATION Location. 18.1 Minyard agrees to indemnify, defend and hold Fort 20. DEFAULUREMEDIES Worth harmless from and against any and all losses, costs,expenses(including,without limitation,reasonable 20.1 Default by Fort Worth. attorneys fees, and reasonably attorney's fees on any appeal),liabilities,damages,and claims,demands,liens, (a) Payment of Money. Fort Worth shall be deemed claims of liens,judgments, proceedings and causes of to be in default of a Facility License if Fort Worth action(collectively"claims")resulting from Minyard's fails to pay the License Fees or any other amount use of its Licensed Location and/or resulting from the payable to Minyard under this Agreement within Minyard's negligence or willful misconduct and/or ten (10) Calendar Days after receipt of written resulting from its breach of any of its obligations under notice from Minyard of Fort Worth failure to pay this Agreement and for any and all such claims resulting such amount. from the negligence or willful misconduct of its employees(acting within the scope of their employment) (b) Failure to Perform other Obligations. Fort Worth or agents and contractors(acting within the scope of their shall be deemed to be in default of a Facility employment, agency and contracts, respectively); License if Fort Worth breaches any obligation on however,Minyard's shall not be liable for the acts of its the part of Fort Worth under this Agreement other employees,agents or contractors acting outside the scope than as set forth above,and shall fail to remedy the AGREEMENT FOR PLACEMENT—Page 7 david/ft.water dept same within thirty(30)Calendar Days after written forth herein, or at law or in equity, all of which notice of such breach(or as to matters that cannot rights and remedies are specifically reserved to the be remedied within thirty(30)Calendar Days,shall non-defaulting party hereto. All of such rights and fail promptly to commence to remedy same and to remedies shall be cumulative and may be exercised pursue the same diligently to completion). concurrently;provided,however,that the failure to exercise any one of the rights and remedies herein 20.2 Default by Minyard. provided shall not constitute a waiver thereof,nor shall use of any of the rights and remedies hereby Minyard shall be deemed to be in default hereunder if provided prevent the subsequent or concurrent Minyard breaches any obligation on the part of Minyard resort to any other rights and remedies. The parties under this Agreement or Facility License,and shall fail intend that this clause shall be broadly construed so to remedy the same within (30) Calendar Days after that all rights and remedies herein provided for or written notice of such breach(or as to matters that cannot otherwise available to the non-defaulting parties be remedied within thirty(30)Calendar Days,shall fail shall continue and be each and all available to non- promptly to commence to remedy same and to pursue defaulting parties to the maximum extent permitted same diligently to completion). by law. 20.3 Remedies. (d) Notwithstanding anything in this Agreement to the contrary,Minyard and Fort Worth, each agree that (a) In the event of any default by Fort Worth, in no consequential damages shall be recovered by addition to any rights Minyard has under law, either of them for any breach of the terms of this Minyard shall have the right to terminate this Agreement or Facility License. Agreement, or Facility License, whichever is applicable, by written notice to Fort Worth, in 21. TERMINATION which case, Fort Worth must vacate the Licensed Location as of the date of termination. Fort Worth 21.1 In the event that execution of a Facility License with shall remain liable for payment of License Fees for respect to a particular Licensed Location causes an the remaining term of this Agreement (Initial or unforseen breach of an agreement between Minyard and Option as the case may be); provided, however, a third party or breach of any permit or licensing that if Minyard uses the space previously occupied requirement,Minyard shall have the right to terminate by the Facility for its own purposes or leases (or such Facility License at any time on giving written notice licenses) the space previously occupied by the to Fort Worth at least one-hundred eighty(180)Calendar Facility to a third party, Fort Worth shall receive Days prior to the date of termination.Upon Fort Worth a credit equal to the amount of all net income vacating the Licensed location as of the date of actually received by Minyard(not to exceed Fort termination pursuant to this paragraph 21.1, Minyard Worth's obligation) from such re-letting/re- agrees to reimburse Fort Worth for the unamortized licensing;provided further,that Minyard shall have capital expenditures for the Facility paid for by Fort no duty to mitigate its damages,except as provided Worth and any fixtures located thereon which are not by law. In the event of a default under Section reusable by Fort Worth (before installation showing an 20.1(b)above,Minyard shall also have the right to estimate of such expenditures and revised after perform such obligations on Fort Worth's behalf installation to show actual expenditures)as follows: (in which case Fort Worth must immediately reimburse Minyard for all of its costs incurred in Fort Worth performing such obligations together with interest Minyard Pays Pays on such costs at the lower of one and one-half Terminates %Expenditure %Expenditure percent(1-1/2%)per month or the highest rate of Year 1 80% 20% interest permitted by law). Year 2 60% 40% Year 3 40% 60% (b) In the event of a default by Minyard, Fort Worth Year 4 20% 80% shall have the right to terminate in addition to all Year 5+ 0% 100% remedies available under law. thereafter 0% 100% (c) The rights and remedies provided in this Section 20 All costs and expenses over and above those specifically shall be in addition to,and not in substitution for, set forth shall be borne by Fort Worth. Minyard shall the rights and remedies which would otherwise be have no obligation to make payments under the foregoing vested in the non-defaulting party under this paragraph 21.1 if Fort Worth has ceased operations of Agreement, or any other agreement entered into the Facility for more than ten(10)days or failed to open between the parties pursuant hereto, including, the Facility within thirty(30)days following the License without limitation, the indemnification rights set Fee Commencement Date, termination results from an AGREEMENT FOR PLACEMENT—Page 8 david/ft.water dept incurred default of this agreement by Fort Worth its equipment and fully repair any damage caused terminates as a result of condemnation or casualty, thereby. termination by Fort Worth as provided herein,closure of the licensed location or expiration of a Facility License 22. DAMAGES Agreement. Both Minyard and Fort Worth agree that the provisions of this Section 21.1 represent liquidated 22.1 In addition to other damages recoverable by either damages and do not constitute a penalty and that actual Minyard or Fort Worth, which ever the case may be, damages will be extremely difficult,if not impossible,to under applicable law or this Agreement, damages measure. recoverable shall include, without limitation, losses, expenses, damages, costs, and injuries incurred or 21.2 A party to this Agreement(the"Aggrieved Party")may, suffered by Minyard or Fort Worth,which ever the case by giving written notice to the other party (the may be,on account of claims made against one party by "Breaching Party"), terminate this Agreement or any the other,arising from an act,omission,breach,breach of Facility License executed hereunder if the Breaching warranty,or misrepresentation of the other party or their Party commits a material breach of its representations, employees, agents, or subcontractors that are acting warranties, covenants, or obligations under this within their normal duties and responsibilities. Agreement;provided,however,that the Breaching Party shall have a reasonable number of days as shall be 22.2 Neither Minyard nor Fort Worth shall be liable for specified by the Aggrieved Parry in the written notice of consequential damages; provided, however, that the the breach to submit a detailed proposed plan to cure limitations on consequential damages set forth in this such breach. Said proposal may be accepted or rejected Section shall not apply to,or in any way limit,Minyard by the Aggrieved Party in its sole discretion. Said or Fort Worth's indemnity obligations under this proposal for cure of such breach shall specify the date Agreement. upon which the Breaching Party shall commence the cure process and the date by which the Breaching Party shall 22.3 If either party employs an attorney or commences legal or have completed the cure process. If the Aggrieved Party arbitral proceedings to enforce the provisions of this accepts the cure proposal, then any failure by the Agreement, the prevailing party shall be entitled to Breaching Party to cure the breach to the satisfaction of recover from the other, reasonable costs incurred in the Aggrieved Party not later than the close of business connection with such enforcement, including, but not on the date specified as the date for completion of the limited to, attorneys' fees and costs of investigation, cure shall be cause for immediate termination by the litigation,mediation,or arbitration. Aggrieved Party of this Agreement or Facility License outstanding hereunder. 23. STORE CLOSING 21.3 Notwithstanding the other provisions of this Agreement, 23.1 Fort Worth expressly acknowledges and agrees that a party(the"Aggrieved Party")may,by giving written notwithstanding anything to the contrary in this notice to the other party (the "Breaching Party"), Agreement,Minyard shall have the right,at any time,to terminate this Agreement or any Facility License temporarily or permanently close a Licensed Location hereunder if the Breaching Party: and discontinue Minyard's business in the Licensed Location for any reason whatsoever in its sole and (a) Becomes insolvent,or generally unable to pay its absolute discretion, without any liability or further debts as they become due, or shall become the obligation to Fort Worth other than as provided herein subject of a bankruptcy, conservatorship, with regard to prior notice. Minyard agrees to give Fort receivership or similar proceeding,or shall make a Worth ten (10) Calendar Days prior notice of such general assignment for the benefit of its creditors; closure. Such notice shall specify whether the Licensed or Location closure is estimated to be temporary(which for purposes of this Agreement is six (6) months or less, (b) Commits a fraudulent or criminal act against the however, Fort Worth acknowledges and agrees that Aggrieved Party. notwithstanding a statement by Minyard that the Licensed Location closure is temporary, Minyard shall have the 21.4 Upon termination of this Agreement or Facility License right at any time to notify Fort Worth that such closure is for any reason,Fort Worth shall,at Fort Worth's expense permanent. If the Licensed Location closure is and no later than fifteen(15)days after the termination permanent,this Facility License shall terminate as of the date,(i)surrender possession of the space occupied by a date of cessation of Minyard's business at the Licensed Facility to Minyard in broom clean condition and as good Location. If the Licensed Location closure is temporary, a condition,reasonable wear and tear excepted,as existed this Facility License shall continue in full force and effect prior to the License Commencement Date and, (ii) except that License Fees due hereunder shall abate during without limiting the foregoing Fort Worth shall remove the period of Licensed Location closure and Fort Worth shall,during the period of Licensed Location closure,be AGREEMENT FOR PLACEMENT—Page 9 david/ft.water dept relieved from its obligations to operate as required herein. 24.3 If Minyard elects to repair such damage or destruction, Minyard agrees to make every reasonable effort to Minyard (or Minyard's landlord, if any) shall proceed provide an area on the parking lot of the Licensed with due diligence to repair the Licensed Location and Location during a temporary closure period, for Fort the Facility License shall continue in full force and effect Worth to use for a temporary facility to allow the Facility (it being acknowledged and agreed to by Fort Worth, to remain open for business. however,that if Minyard's Landlord is obligated to repair under Minyard's lease and Minyard has elected to repair, 23.2 During a temporary closure period,if within ninety(90) Minyard's repair obligations hereunder shall be limited to days of the closure, the Licensed Location is to be using reasonable efforts to enforce the Landlord's relocated in another building within one(1)mile of the obligation to repair pursuant to the terms of Minyard's existing location, Fort Worth shall have the option of lease). Notwithstanding the foregoing,if Minyard elects terminating the Facility License or relocating its Facility to repair but notifies Fort Worth that the time necessary to the new location under the same terms and conditions for repair exceeds ninety (90) Calendar Days from the as provided under this Agreement at the time of such date of the damage or destruction, Fort Worth shall have location,except that the initial term shall automatically be the right to terminate the Facility License by delivering extended to a full five(5)years for the new Facility,or notice of such termination to Minyard within ten (10) such other term mutually agreed upon by Fort Worth and Business Days after receiving Minyard's Election Notice. Minyard. If the relocation occurs during the Initial Term Minyard or Minyard's landlord may delay performing its of a Facility License,Minyard shall reimburse Fort Worth obligation to repair hereunder until the expiration of such for all reasonable costs associated with relocating the ten (10) Business Day period, and shall have no Facility to the new building in accordance with the obligation to repair if it receives a termination notice schedule set forth in Section 21.1. If the Licensed from Fort Worth. Location is not relocated and the closure is permanent, the Facility License will terminate as of the day the 24.4 If by fire or other casualty, a Facility is damaged or Licensed Location ceases operating. If the Licensed destroyed and Fort Worth does not terminate the Facility Location is not relocated and closure occurs during the Lease, Fort Worth will, at its expense, proceed initial term of a Facility License,Minyard shall reimburse expeditiously and with due diligence to repair the Facility Fort Worth a portion of its initial capital expenditures in and restore it to its original condition,provided,however, accordance with the schedule set forth in Section 21.1. that Fort Worth shall have no such repair obligations if Notwithstanding the foregoing,Minyard's obligation to Minyard does not repair the Licensed Location. relocate the Facility to another location shall be contingent upon any pre-existing use restriction or pre- 24.5 In the event of any damage or destruction to a Licensed existing agreement or other conflicting agreement in Location or a Facility which materially deprives Fort place for the new Licensed Location. Should such pre- Worth of its occupancy or use of a Facility or materially existing use restriction or agreement prevent Minyard impairs Fort Worth business at a Licensed Location,the from allowing Fort Worth to place a Facility in the License Fees payable hereunder shall be equitably relocated Licensed Location, the applicable Facility reduced to account for such deprivation or impairment License shall terminate as set forth herein above. from the date of such damage and destruction to the date the same is repaired(if applicable)or this Agreement is 24. CASUALTY terminated. 24.1 If by fire or other casualty, a Licensed Location is 25. CONDEMNATION damaged or destroyed to the extent that Fort Worth is deprived of occupancy or use of a Facility or Fort 25.1 If a portion of a Licensed Location is taken or condemned Worth's business is materially impaired,Minyard agrees by any governmental authority and such taking or to notify Fort Worth within thirty(30) Calendar Days condemnation deprives Fort Worth of occupancy or use after the occurrence of such damage or destruction (or of a Facility or Fort Worth's ability to do business is such other time frame which is specified in Minyard's materially impaired,either party may,upon written notice Lease) as to whether Minyard or Minyard's landlord,if to the other party delivered no later than thirty (30) any,intends,in its sole and absolute discretion,to repair Calendar Days after such taking or condemnation, the damage or destruction resulting from such casualty, terminate the applicable Facility License. If neither party with an estimate of the time required for such repair terminates the Facility License within such thirty (30) ("Minyard's Election Notice"). Calendar Day period,the Facility License shall continue in full force and effect. In the event of a taking or 24.2 If Minyard does not elect to repair such damage or condemnation,Fort Worth shall have the right to pursue, destruction, either party may terminate the Facility in the condemnation proceedings, claims for (i) the License upon written notice to the other party delivered interruption of Fort Worth's business,(ii) Fort Worth' within thirty(30)Calendar Days after Fort Worth receipt relocation and moving expenses, and (iii) restoration of Minyard's Election Notice. AGREEMENT FOR PLACEMENT—Page 10 david/ft.water dept costs for the Facility. All other awards made by reason of party, therefore, agrees to hold such material and condemnation shall be made to Minyard. information in strictest confidence, not to make use thereof,except in the performance of this Agreement,and 26. SECURITY not to release or disclose it to any other party with the exception of (i) parent companies subsidiaries and 26.1 Fort Worth shall have its own security system for the affiliates of the parties,(ii)attorneys and accountants,and Facility consisting of a alarm system,video surveillance (iii)as required by applicable law,regulation,court order system and a roll down gate at a minimum. Fort Worth or regulatory authority. shall be responsible for any permits or fees resulting from or associated with its alarm system. 29. NOTICES 26.2 Fort Worth shall have the right to have a security guard 29.1 All notices required or provided for under this Agreement or Fort Worth police officer in a Facility at all times. shall be given to the parties in writing as follows:(a)by Minyard shall have the right to have a security guard in registered or certified United States mail,return receipt the Licensed Location at all times. Fort Worth shall limit requested and postage prepaid to the applicable addresses the activities of its security guard to the Facility. below, or to such other addresses as the parties may Minyard shall limit the activities of its security to the substitute by written notice given in the manner Licensed Location. prescribed in this Notices Section;(b)by hand delivery, including courier service delivery,to such addresses;or 26.3 The manager of the Facility shall immediately make the (c) by facsimile machine transmission, to the numbers manager of the Licensed Location aware of any bomb provided below: threats, robbery, or other information which could adversely affect the safety of the customers,employees or If to Fort Worth: invitees of Fort Worth or Minyard. Fort Worth agrees to City of Fort Worth cooperate with Minyard and abide by Minyard's ATTN.Water Department reasonable request in regard to dealing with natural 1000 Throckmorton disasters,bomb threats or other situations which could Fort Worth,Texas 76102 involve security or safety of employees,customers and\or invitees. If to Minyard: Minyard Food Stores,Inc. 27. FORCE MAJEURE P.O.Box 518 777 Freeport Pkwy. 27.1 Performance of the obligations of either party to this Coppell,Texas 75019 Agreement or a Facility License shall be excused during Attention:Properties the period and to the extent that such performance is rendered impossible or impracticable or unduly 29.2 Such notices shall be deemed to have been duly given burdensome due to acts of nature; governmental either three(3)Business Days after the date of mailing as requirements; unavailability of parts through normal described above, or one (1) Business Day after being supply sources;failure of any utility to supply its services given to an express courier, or when facsimile for reasons beyond a party's control;explosion,accident, transmission has been confirmed received. riot,or civil commotion;act of war;fire or other casualty; or any other cause other than financial, beyond the 30. ASSIGNMENT reasonable control of the party whose performance is to be excused. 30.1 Fort Worth shall not assign,sublease,or in any manner transfer this Agreement or any Facility License without 28. CONFIDENTIALITY the prior written consent of Minyard. 28.1 Other than as required by law, the contents of this 30.2 Fort Worth shall not mortgage, pledge or otherwise Agreement,Facility Licenses,all advertisements,media encumber its interest in this Agreement or in the Facility. releases,public announcements and public disclosures by either party,or their employees or agents,relating to this 30.3 In the event of the transfer or assignment by Minyard of Agreement or the name of the other party shall be its interest in this Agreement and in the Licensed coordinated with and approved by the other party,prior Locations,in whole or in part,Minyard shall be released to the release thereof from any further obligations hereunder and Fort Worth shall look solely to such successor in interest of Minyard 28.2 Each party acknowledges that in connection with this for performance of such obligations. Any prepaid rental Agreement or in the performance hereof, it has or will and/or security given by Fort Worth to secure come into possession or knowledge of material and performance of Fort Worth obligations will be assigned information which is proprietary to the other party. Each and transferred by Minyard to such successor in interest. AGREEMENT FOR PLACEMENT—Page 11 david/ft.water dept Minyard shall give Fort Worth prior written notice of or a Facility License is unmodified or,if this Agreement such assignment or transfer. or a Facility License has been modified,identifying all modifications hereto by name and date,and stating that 30.4 With regard to section 30.3 above,in the event of such this Agreement or Facility License, as modified if assignment, Fort Worth may,within ten(10)Calendar applicable, is in full force and effect; (iii) the date to Days from receipt of written notice of such assignment or which License Fees and all other sums payable under this transfer,terminate this Agreement and/or Facility License Agreement or a Facility License are paid by either by giving Minyard or its successor ninety(90)Calendar Minyard or Fort Worth except as specified in the estoppel Days prior written notice. certificate;and(v)such other matters as Minyard or Fort Worth may reasonably request. 31. APPLICABLE LAW 33.2 Fort Worth's failure to deliver any estoppel certificate 31.1 This Agreement shall be governed by,and construed in requested by Minyard as required herein shall be deemed accordance with, the laws of the State of Texas conclusive,as against Fort Worth,that this Agreement or ("Governing State"). Each party hereby submits to the a Facility License is in full force and effect and without jurisdiction of such courts,and waives any objection to modification except as may be represented by Minyard, venue with respect to actions brought in such courts in that there is no uncured default in Minyard performance the Governing State. hereunder,and that no more than one(1)month's License Fees for any Facility License have been paid in advance. 32. APPROVALS AND REQUIREMENTS 34. CHANGES 32.1 Fort Worth shall use its best efforts to obtain,in a timely manner, all required federal, state, local and other 34.1 Neither this Agreement or any Facility License may be governmental approvals and permits required in modified,waived or amended unless mutually agreed to connection with Fort Worth'construction and operation in writing by the parties hereto. of the Facilities and proposed use of the Facilities (collectively "Governmental Approvals"). If any 35. MISCELLANEOUS consents, other than Governmental Approvals, are required to be obtained from any third party in 35.1 Binding Effect: This Agreement and Facility Licenses connection with this Agreement or Fort Worth' proposed executed hereunder shall be binding upon and shall inure use of the Facilities("Third Party consent")Fort Worth to the benefit of Minyard and Fort Worth and their shall promptly obtain the same at Fort Worth's expense respective legal representatives and any entity that in writing and Minyard shall cooperate with Fort Worth, succeeds to the rights of Minyard or Fort Worth as a in obtaining the same. Fort Worth shall not be permitted result of any merger, consolidation or other corporate to take any action or exercise any of its rights under this combination,or any permitted assignment. Agreement or Facility License until Fort Worth first obtains all necessary Governmental Approvals and Third 35.2 Waiver: The failure of either party to insist upon strict Party consents required for such actions or exercise and performance of any of the provisions contained herein presents written evidence of the same to Minyard. Either shall not be deemed a waiver of any rights or remedies party, provided such party is not in default hereunder, that said party may have, and shall not be deemed a may terminate a Facility License without further liability waiver of any subsequent breach or default in the to each other if Fort Worth fails to obtain all necessary performance of any of the covenants or obligations Governmental Approvals and Third Party consents on or contained herein. before the License Fee Commencement Date, said termination to be effected by written notice delivered to 35.3 Attorneys Fees: In the event either party initiates or the other party hereto. defends any legal action or proceeding to enforce or interpret any of the terms of this Agreement, the 33. ESTOPPEL CERTIFICATES prevailing party in any such action or proceeding shall be entitled to recover from the losing party in any such 33.1 Fort Worth and Minyard agree to execute and deliver to action or proceeding its reasonable costs and attorney's the other, within ten (10) Business Days following fees,including its reasonable costs and attorneys fees on Minyard's written request, and at no expense to the any appeal. requesting party, any estoppel certificate deemed necessary to further effect the provisions of this 35.4 Severability:If any term or provision of this Agreement, Agreement as well as for any other purpose or transaction Facility License or the application of it to any person or for which Minyard or Fort Worth reasonably deems an circumstance shall to any extent be invalid or estoppel certificate necessary. The estoppel certificate unenforceable, the remainder of this Agreement or shall certify(i)the License Commencement Date and the Facility License or the application of such term or Fee commencement Date;(ii)the fact that this Agreement provision to persons or circumstances,other than those as AGREEMENT FOR PLACEMENT—Page 12 david/ft.water dept 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. 35.5 Not a Partnership: The provisions of this Agreement and Facility Licenses 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. 35.6 Third Party Beneficiary Rights:This Agreement and Facility Licenses are 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. 35.6 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. 35.7 Entire Agreement: The parties agree that this Agreement and Facility Licenses executed hereunder set 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. 35.8 Counterparts: Minyard and Fort Worth 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 Minyard and of Fort Worth. EXECUTED this day of '199 CPT F FO W TH,TEXAS MMARD FOOD ISTORES,INC. By: By v" , Printed Name: Print d Name: Title: Title: Address: 1000 Throckmorton Address: 777 Freeport Parkway,P.O.Box 518 Fort Worth,Texas 76102 Coppell,Texas 75019 APROVED AS To FORK AND LEGA4ITY*- ATTESTEDF BY 0 Asaiatan icy Attorney contralct Uthorization AGREEMENT FOR PLACEMENT—Page 13 Date david/ft.water dept EDIT A TO AGREEMENT FOR PLACEMENT OF CITY OF FORT WORTH CUSTOMER SERVICE FACILITY IN MINYARD FOOD STORES The Facility License attached to this EXHIBIT A will be reproduced and used by Fort Worth and Minyard to authorize Fort Worth to construct and operate a Facility at the specified Licensed Location. Such Facility License,upon execution by an authorized representative of Fort Worth and Minyard, becomes a part of this Agreement as if attached hereto. AGREEMENT FOR PLACEMENT—Page 14 david/ft.water dept FACILITY LICENSE FACILITY LICENSE AGREEMENT NO.#33 This FACILITY LICENSE(the"License")is to be used solely for the purpose of naming the location of the Facility identified herein and to add said Facility to the Agreement for Placement of a City of Fort Worth Water Department Customer Service Facility in Minyard Food Stores (the"Agreement") between Minyard Food Stores,Inc.and the City of Fort Worth,Texas. Further,the purpose of this License is to define and list the applicable dates,fees, construction plans,drawings,specifications and related documents applicable to the development and operation of the Facility. This License is,to the extent provided under the Agreement,hereby made a part of the Agreement and is subject to the terms,conditions and consideration thereunder. Licensed Location: Minvard Food Store#33 Minyard Reference Number. #33 Address: 4245 East Berry Street,Fort Worth,Texas 76105 1. License Commencement Date: 08-15-98 2. License Fee&Initial Term Commencement Date: 09-01-98 3. Initial Term End Date: 09-30-03 4. Number of Square Feet: Approximately 130 sf(10'x IT) 5. Annual License Fee: $9,600.00 6. Monthly Payment of License Fee: $800.00 7. Number of Option Terms: 1 for 5 years 8. Annual License Fee during Option Term: Same terms and conditions as the initial term,except that the annual License Fee shall be increased by an amount equal to the CPI increase between December 1997 and December 2002,not to exceed a total increase of fifteen percent(15%) or increase by less than five percent(5%). Said Option Term for this Facility License must be exercised in writing by Fort Worth no later than one hundred twenty(120)days prior to the Initial Term End Date outlined above. Should Fort Worth fail to provide such written notice,the Option Term shall be waived and of no further force or effect. Should the Annual License Fee for the Initial Term be reduced as provided for in Section I 1 hereinbelow,the Annual License Fee for the Option Term shall be calculated as if there was no reduction. 9. List of drawings,plans,specifications,building lease agreements of other documents applicable to and hereby made a part of this License: Complete construction specifications including finishes and interior and exterior signage for Minyard's approval. 10. Minyard shall construct the Facility in accordance with plans and specs approved by Fort Worth and Minyard. Fort Worth shall reimburse Minyard for the cost of construction of the Facility,not to exceed$20,000,with said improvements including Architectural plans,electrical outlets,lighting,walls and treatment,flooring,counters and HVAC duct work. Said improvements shall not include equipment,supplies, computers,phones,furniture,signage or security systems. 11. Fort Worth agrees to pay for the 8"sanitary sewer relocation at Minyard's facility located at Main St.and 28th Street,Block 60,M.G.Ellis Addition,Fort Worth,Tarrant County,Texas such cost not to exceed Thirty-two Thousand Dollars($32,000). In exchange for such relocation, the Annual License Fee for the initial tern of the Lease shall be$3,200. A preliminary cost breakdown and drawing for the sanitary sewer relocation are attached hereto as Exhibit"A-1"for reference. EXECUTED in multiple counterparts and effective this day of 199I MINYARD FOOD STORES,INC. CITY OF FORT WORTAS Address: P.O.Box 518,777 Freeport Parkway Address: : mo C pelf Texas 75 19 -- t By: By: ` Printed Ndffie: J.L.Williams Printed Name: Title: President Title: =A14soistantity MAUTye ATTESTED Y e AG EMENTFORPLACEMENT—Page 15 david/ft.water dept I ON & ASSOC INC TEL :817-485-4106 Jun 16,97 15:11 No .002 P.02 ,r • PRELIMINARY COST OPINION June 16,1997 MINYARDS FOOD STORE SANITARY SEWER RELOCATION NW CORNER 28TH AND MAIN FT.WORTH,TEXAS a, m L?Ear-RIPTION UNIT EM COST IS?Z9L. 1 8"PVC Sanitary Sewer pipe 1,008 LF 30.00 30,180.00 2 4'Diameter Manholes 6 FA 2,000.00 12,000.00 3 Trench Safety 1,006 LF 2.00 2,012.00 4 Engineering&Surveying 1 LS 8,800.00 81800.00 5 . Testing 1 LS 700.00 700.00 63',692.00 W COST ALLOCATION FOR RE-ROUTE AROUND BUILDING LTVJM DESCRIPTION UNIT EKL COST TOTAL, 1 8"PVC Sanitary Sewer Pipe 638 LF 30.00 16,140,00 2 4'Diameter Manholes 4 EA 2,000.00 81000.00 3 Trench Safety 538 LF 2.00 1,076.00 4 Engineering&Surveying 1 LS 4,700.00 4,700.00 3 Testing 1 LS 370.00 370.00 $ 30,286.00 COST DIFFERENCE 23,406.00 EXHIBIT "A-1" Page 1 Iem"'PCO III OWN 11,1111 11 11111 mom .4% Z aDVJ I I I�i I I --• _ 4 „T-e„ zzgIHXH _ IA j i • lsy3 s, O F f�i tea hh4 ! • —.w'oal r.000aytl� � � I .14 20' d 7-00• ON TT : ST Z6` 9T unC 90TV-S8V-ZT8: 131 ONI OOSSH '8 NOlJNIHSHrq MINYARD C,F O O D STORES yIj Lo Warehouse Food Stores January 19, 1998 Wendy Chi City of Fort Worth Water Department 1000 Throckmorton Fort Worth,Texas 76101-0870 Re: Water Department Customer Service Facility Dear Wendy: Enclosed herewith are four originals of an Agreement for Placement of a City of Fort Worth Water Department Customer Service Facility in a Minyard Food Store and corresponding Facility License Agreement No.#33, signed by Minyard Food Stores, Inc. Please have all four originals executed by the appropriate representative of the City of Fort Worth and return two fully executed originals to my attention for our files. I look forward to meeting with you on Wednesday to discuss plans and specifications for the Customer Service Center. Best regards, i MiH STORES, INC. Vice President Minyard Properties, Inc. DPH/ck enclosures ftwwat.ltr *938rY1's4R8�ln&> MINYARD FOOD STORES,INC.,777 FREEPORT PKWY. P.O. BOX 518,COPPELL,TEXAS 75019 (972) 393-8700 City of Fort Worth, Texas qVivAgor a"d C,ou"Cil COMM U"I*eviti 0" DATE REFERENCE NUMBER LOG NAME PAGE 1/6/98 **L-12159 60FOOD 1 of 2 j SUBJECT LEASE AGREEMENT WITH MINYARD PROPERTIES, INC. TO PROVIDE LEASE SPACE FOR THE SATELLITE WATER CUSTOMER SERVICE STATION RECOMMENDATION: It is recommended that-the City Council authorize the City Manager to execute a five-year lease agreement with an option to renew for an additional five year term with Minyard Properties, Inc. at a cost not to exceed $36,000 for the purpose of providing a lease space for the satellite Water Customer Service Station in the new Minyards Food Store-Southeast Center located at Miller and Berry. DISCUSSION: The Water Department's satellite pilot program is designed to respond to customers' needs within the community. Presently, the department's Customer Service Division operational hours are Monday through-Friday, 7:30 AM to 5:30 PM. A recent customer service survey indicated that customers prefer that a satellite service center be located in a grocery store, and that service hours be extended. This location was selected to respond to customers' demands in this area. This pilot program will provide a full service center where customers can make their water bill payments, payment arrangements, initiate and terminate services, arrange for customer field investigations, and improve public education opportunities. The extended hours at the Southeast Service Center will be Monday through Friday, 10 AM to 8'PM; Saturday, 9 AM to 7 PM; and Sunday, 12 PM to 5 PM. The City staff will also respond to customers' concerns regarding other City services. This service center will be staffed from existing personnel resources from the Customer Service Division. The terms of this lease agreement will be five years, and the agreement includes an option to renew for an additional five years. The lease amount is $800 per month, totaling $48,000 for five years. The initial five year term of the lease will be credited by $32,000 as a result of infrastructure improvements at the Minyard's Property Carnival Store located at 28th and Main. The resulting lease amount will be $266.66 per month, totaling $16,000 for five years. The estimated costs are summarized as follows: $48,000 Total Five Year Lease Cost ($32,000) Infrastructure Improvement Credit $16,000 Total Five Year Lease Cost after Credit $20.000 Service Center Construction Costs $36,000 Authorized Encumbrance i City of Fort Worth, Texas "agor andicouncit Communication DATE REFERENCE NUMBER LOG NAME PAGE 1/6/98 **L-12159 . 60FOOD 2 of 2 SUBJECT LEASE AGREEMENT WITH MINYARD PROPERTIES, INC. TO PROVIDE LEASE SPACE FOR THE SATELLITE WATER CUSTOMER SERVICE STATION' i i FISCAL INFORMATION/CERTIFICATION: The Director of Fiscal Services certifies that funds are available in the current operating budgets, as j appropriated, of the Water and Sewer Operating Funds. MG:m i i i i I Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY Office by: (to) APPROVED�1 Mike Groomer 6140 CITY COUNCIL Originating Department Head: JA;I 6 19 Lee Bradley,Jr. 8207 (from) PE45 537010 0604003 $ 8,000 Additional Information Contact: PE45 537010 0704003 $ 8,000 GLty f PE45 539120 0604003 $10,000 C4761Fartw + Lee Bradley,Jr. 8207 PE45 539120 0704003 $10,000