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HomeMy WebLinkAboutContract 46644 CITY SECRETARY, I CONTRACT NO. Mayfest Vendor Agreement Non-Profit THIS MAYFEST PARTICIPANT AGREEMENT(this"Agreement')is entered into as of April 17,2015 by and between MAYFEST,INC., a Texas non-profit corporation,("Mayfesf')and located at 6115 Camp Bowie Blvd. Suite 160, Fort Worth, Texas 76116 and City of Fort Worth Office of Emergency Management KnoWhat2Do("Non Profit Participant")located at 1000 Throckmorton, Fort Worth,Texas 76102. WHEREAS,Mayfest plans to hold its river festival in Trinity Park in Fort Worth,Texas,on April 30 through May 3,2015(the"Mayfest FlestivaF");and WHEREAS,Mayfest has a lease agreement with the City of Fort Worth permitting it to do so;and WHEREAS,Participant desires to promote its interests at the Mayfest Festival;and WHEREAS,Mayfest is agreeable to permit Participant to promote its interests at the Mayfest Festival but only if Participant complies fully with all of the terms and conditions herein contained; NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained,and of other good and valuable consideration,the receipt and sufficiency of which is acknowledged by all the parties to this Agreement,the parties to this Agreement do hereby agree and bind themselves as follows: 1. Mayfest hereby grants to Participant the right to promote its interests at the Mayfest Festival according to Appendix A. The exact location of the area in which Participant will promote its interests shall be determined by Mayfest in its sole determination. No representation is being made by Mayfest as to such location. Participant understands and agrees that Mayfest may allow other Participants to promote interests similar to those promoted by Participant and Mayfest is in no way restricted or limited from doing so. Participant will not move its location without the prior written consent of Mayfest. Should Participant move without permission, in addition to any other right that Mayfest has under this Agreement, Participant will pay to Mayfest a $100 penalty for such action. It is agreed and understood that Mayfest is not endorsing any promotion made by Participant and Participant will not make any representation to that effect,either express or implied. In the event that Mayfest determines that the manner in which Participant is conducting itself may imply that Mayfest is endorsing any such promotion,Participant will take whatever steps Mayfest deems necessary and appropriate to prevent such from occurring.Mayfest agrees to provide the following to Participant at the cost indicated by each item: See Appendix A.The cost of such items as indicated above will be paid upon the execution of this Agreement. Such fees are non-refundable. 2. In the event Non-Profit Participant determines to promote and/or advertise goods,services,and/or products of any third party while Participant is located at the Mayfest Festival,any such promotions and/or advertisements must be approved in advance in writing by Mayfest,Inc.Executive Director.Non Profit Participant recognizes that the manner in which it operates its concession will reflect on the reputation of Mayfest,and,therefore,agrees at all times to comply with all rules, specifications, and special instructions established by Mayfest, including, without limitation, the appearance and operation of the concession and the booth space and policies regarding entering and exiting the Mayfest M C-) Festival.Non Profit Participant agrees that it will operate its concession solely within the space identified by Mayfest, M and further agrees that repeated non-compliance may result in removal from the Festival. In the event Non Profit :Z Participant seeks to promote and/or advertise goods, services, and/or products of any third party while Non Profit M c Participant is located at the Mayfest Festival,any such promotions and/or advertisements must be approved in advance, in writing by the Mayfest,Inc.Executive Director.Without limiting the foregoing,Non Profit Participant agrees that any person operating any form of vehicle(car,truck,golf cart,mule,etc.)within the Mayfest Festival grounds 110 must be at least eighteen (18) years of age and have a valid driver's license. All motor vehicles must be appropriately insured and registered as required by state law. 3. In dealing with Mayfest's agents and representatives, Participant agrees that Participant will be cooperative, courteous and professional at all times. In the event in Mayfest's to comply fully with all of OFFICIAL RECORD CITY SECRETARY MAYFEST NON-PROFIT PARTICIPANT AGREEMENT:20I4 FT. WORTH, TX Page I RECEIVED MAY - 5 2015 the provisions of this Agreement,including,without limitation,if Participant is otherwise uncooperative,discourteous,or verbally or physically abusive to Mayfest's agents or representatives,Mayfest may,in its sole determination and without prior notice,terminate this Agreement and require Participant to immediately close its booth or area of operation and depart the Mayfest Festival, in which event Participant agrees to do so immediately. In such event, Participant shall forfeit all sums paid hereunder to Mayfest. In the event Participant fails to comply with the provisions of this Paragraph 3,Participant shall remove or be removed from the premises,and in the event such forced removal is necessary,Mayfest and its agents and other representatives shall not be liable for any losses suffered by Participant in connection with such forced removal. 4. Mayfest has made and makes no representation or warranty that security or insurance will be provided for any losses to for any property whatsoever placed within the premises of the Mayfest Festival(including without limitation any musical instruments,audio and technical equipment,costumes,vehicles or livestock and any other personal property)and Mayfest assumes no responsibility or liability for such property. Participant acknowledges and agrees that Mayfest has no responsibility or liability for such property and hereby waives any claims related thereto. Participant hereby expressly releases and discharges Mayfest from any and all liability for any loss,injury,or damage to persons or property that may be sustained by the use or occupancy of such property or in any way relating thereto. 5. Participant shall comply with all laws (federal, state and local), including all ordinances of the City of Fort Worth,all rules,regulations,requirements and policies of all City departments;and any and all requirements specifically made by the Fire Marshal in connection with Mayfest and shall obey all other regulations of the of the City of Fort Worth. Participant shall obtain and pay for all necessary permits,licenses,and taxes payable as a result of the operation of its activity at the Mayfest Festival. Participant recognizes that the manner in which it operates it event will reflect on the reputation of Mayfest, and, therefore, agrees at all times to comply with all rules, specifications, and special instructions established by Mayfest, including but not limited to, policies on entering and exiting the park. Without limiting the foregoing,Participant agrees that in order to operate any form of vehicle(car,truck,golf cart,mule, etc.)within the Mayfest Festival grounds,such person must be at least eighteen(18)years of age and have a valid driver's license. 6. Mayfest shall have no obligation to pay or reimburse Participant for any expenses incurred in conjunction with participation in this event. 7. Participant shall at all times hereunder act as an independent contractor with respect to Mayfest and the Mayfest Festival, and not as an employee or agent of Mayfest. Nothing contained in this Agreement shall be construed to create a joint venture,partnership,association,or other affiliation between the parties,it being specifically agreed that the relationship is and shall remain that of independent parties to a contractual relationship as set forth in this Agreement.Mayfest shall neither have nor exercise any specific control or direction over the particular methods by which Participant shall perform under this Agreement,except as otherwise set forth in Paragraph 5 above.Neither party shall be liable for the debts or obligations of the other except as otherwise specifically provided in this Agreement. 8. It is understood and agreed that Mayfest,acting by and through its authorized agents and representatives,shall have at any and all times the full and unrestricted right to enter Participant's area of operation for the purpose of insuring that Participant is complying with all the provisions of this Agreement. 9. No term or condition of this Agreement shall be deemed to have been waived, and no party hereto shall be estopped to enforce any provision of this Agreement,except by written instruments of the party charged with such waiver or estoppel. 10. Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control,including,without limitation,acts of God, acts of a public enemy, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, blockades, embargoes, storms, explosions, damage to its plants, labor disputes (whether or not the employees' demands are reasonable and within the party's power to satisfy),acts of any governmental body(whether civil or military,foreign or domestic),including but not limited to acts by the City of Fort Worth or Tarrant County,which result in the temporary or total cancellation of the Festival,all perils of the seas and other waters,failure or delay of third parties or governmental bodies from whom any party is obtaining or must obtain rights of way, easements, franchises, permits, machinery, MAYFEST NON-PROFIT PARTICIPANT AGREEMENT:2014 Page 2 t materials, equipment, transportation, independent contracting, or supplies to grant or deliver the same, or inability to obtain labor,materials,equipment,or transportation(collectively referred to herein as"Force Majeure"),nor shall any such failure or delay give the other party the right to terminate this Agreement. Each party shall use its best efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event. In the event the Festival is cancelled or limited in any way due to a Force Majeure event Vendor agrees that Mayfest,Inc. shall not be responsible for any refunds to Vendor or for any losses suffered by Vendor due to cancellation. 11. The parties hereto hereby irrevocably consent to the jurisdiction of the courts of the State of Texas and of any federal court located in such State in connection with any action or proceeding arising out of or relating to this Agreement, any document or instrument delivered pursuant to, in connection with, or simultaneously with this Agreement,or a breach of this Agreement or any such document or instrument. 12. The obligations under the terms of this Agreement are performable in Tarrant County,Texas,and any and all payments under the terms of this Agreement are to be made in Tarrant County,Texas. 13. The parties hereto consent that venue of any action brought under this Agreement shall be in Tarrant County,Texas,provided,however,that venue of such action is legally proper in Tarrant County,Texas. 14. This Agreement may be executed in any number of counterparts,each of which shall be deemed an original,but all of which together shall constitute one and the same instrument. This Agreement shall become binding upon the parties hereto when one or more counterparts hereof, individually or taken together, bear the signatures of all of the parties hereto. 15. Any notice required or permitted by any party to this Agreement shall be in writing and may be delivered personally to the party being given notice or to the person in charge of the office of the party being given notice or by certified mail,return receipt requested,and any notice will be effective upon delivery in the case of personal delivery and upon deposit in the mail,postage prepaid,in the case of delivery by mail. The names and addresses of persons to receive notice as stated in this section may be changed by notice given in accordance with this section. 16. The Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to conflict of laws. 17. The headings in this Agreement are solely for the convenience of reference and shall be given no effect in the construction or interpretation of this Agreement. Wherever required by context, any gender shall include any other gender,the singular shall include the plural and the plural shall include the singular. 18. This Agreement,including any provision hereof,may be amended only by written agreement executed by all of the parties to this Agreement. 19. This Agreement shall not be assignable by any party to this Agreement without the express prior written consent of all other parties to this Agreement and,in the event of an attempted assignment by one party to this Agreement without the express prior written consent of all other parties,such attempted assignment shall be void and without effect. 20. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto,and their respective successors,legal representatives,heirs and permitted assigns,and no other person shall have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any provision herein contained. 21. To the extent that any provision herein is inconsistent with or in violation of any applicable law, rule or regulation, such provision shall be deemed modified so as to comply with such applicable law,rule or regulation,and shall not otherwise affect any other provisions of this Agreement. Any provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining provisions of this Agreement or affecting the validity or enforceability of that provision or of any of the other provisions of this Agreement in any other jurisdiction. MAYFEST NON-PROFIT PARTICIPANT AGREEMENT:2014 Page 3 22. At any time and from time to time,each party agrees,without further consideration,to take such actions and to execute and deliver such documents as may be reasonably necessary to effectuate the purposes of this Agreement. 23. The parties acknowledge that each party has reviewed this Agreement and has had an opportunity to have the Agreement reviewed by their respective attorneys and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits attached hereto and the language of this Agreement shall be construed according to its fair meaning and not strictly for or against either party. 24. Unless otherwise specifically provided to the contrary or unless the text of this Agreement clearly indicates otherwise, each of the representations, warranties, covenants and agreements of the parties hereto contained in this Agreement shall survive the closing of the transactions contemplated hereby and the execution and delivery of this Agreement and shall be fully enforceable against the party or parties sought to be charged with any breach hereof. 25. All attachments,exhibits or annexes referred to and attached to this Agreement are incorporated by reference herein and made a part hereof for all purposes,the same as if written in full in this Agreement. 26. The remedies provided herein shall be cumulative and shall not preclude assertion by any party of any other rights. 27. This Agreement and the instruments called for by this Agreement constitute the whole agreement of the parties and supersedes any commitment,agreement,memorandum or understanding previously made by the parties,or any of them,with respect to the subject matter of this Agreement. 28. In the event any litigation is maintained or initiated by any party to this Agreement against another party to enforce or interpret any of the terms of this Agreement or to seek remedy for any breach hereof,then the prevailing party in such litigation shall be entitled to recover from the non-prevailing party all cost and expense incurred in relation thereto, including,but not limited to,reasonable attorney's fees. 29. The parties hereto agree that no partnership,joint venture or joint enterprise of any kind is created by this Agreement. Nothing contained in this Agreement shall authorize,empower or constitute any party to this Agreement the agent of any other party of this Agreement,nor authorize or empower any party to this Agreement to assume or create any obligation or responsibility on behalf of any other party to this Agreement. 30. This Agreement shall terminate and supersede any and all prior written or oral agreements or understands existing between the parties hereto with respect to subject matter of this Agreement, and the parties hereto mutually release and discharge each other from any further obligation, liability or responsibility under any of the foregoing. MAYFEST NON-PROFIT PARTICIPANT AGREEMENT:2014 Page 4 Mayfest Vendor Agreement Non-Profit MAYFEST EST,INC. NON-PROFIT PARTICIPANT By: By: Elizabeth Bas/ham,Executives Director Title: Ci4. MA4C., Date: "'� �p �.l Date: Attested by: fiw ,rie, Wri J. T/UK'ser,/Go Secretary °Io ° 0°°00°°0°° NO M&C REQUIRED TEXAS OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX MAYFEST NON-PROFIT PARTICIPANT AGREEMENT:2014 Page 5