Deep Ellum Arts Festival
AGREEMENT for CONCESSIONAIRES
1. CONTROLLING AGREEMENT
All provisions of any understanding between Main Events International (MEI), The Deep Ellum Foundation and the Deep Ellum Community Association hereinafter collectively referred to as “Festival” and the Restaurant or Concessionaire referred to as “Vendor”, either oral or written, shall be subject to and governed by all the terms and conditions of this Agreement to the same extent and with the same effects as if the expressly understood and agreed that the provisions hereof are controlling.
2. CONTRACTUAL RELATIONSHIP
It is understood and agreed that Vendor is acting as an independent contractor in its capacity hereunder. Vendor shall be responsible for all acts or omissions of its employees and volunteers. Nothing contained in this Agreement or in the relationship between Festival and Vendor shall be deemed to constitute a partnership, joint venture or agency relationship between Festival and Vendor.
3. AUTHORIZATION to SELL PRODUCTS
Festival hereby authorizes Vendor to sell approved products referred to in the Online Application (“the Products”) at the Deep Ellum Arts Festival (“the Event”). Festival shall have complete discretion and control over all aspects of the Event, including the conduct of Vendor’s business and the design and layout of the Premises. Festival reserves for itself the exclusive right to sell any and all beverage products at the Event and shall prohibit the sale of any such beverage products by Vendor, unless approved in advance in writing. All sales of Products shall be at prices (coupon values) which are reasonable and customary in the Dallas area. Festival reserves the right to specify portion sizes, and prices of all Products dispensed by Vendor. At its expense, Vendor shall obtain all licenses and permits that are required by the City of Dallas or other public authority for the sale of any of the Vendors Products.
4. LIABILITY, INSURANCE, and INDEMNIFICATION
Vendor accepts full responsibility for all liability for damages to persons or property arising out of its use and occupancy of the Premises and the sale of the Products therefrom. Vendor shall deliver to Festival prior to occupying the Premises, a certificate of insurance evidencing General Liability Insurance with minimum liability limits of not less than $500,000 per occurrence, $500,000 product liability, and a $500,000 general aggregate limit. The policy will be endorsed to include all parties referred to as “Festival” as an additional insured and be primary over any other valid and collectible coverage available to Festival. The policy will include Contractual Liability ensuring the indemnity obligation of this agreement. The Certificate shall specify additional insured status and Waiver of Subrogation. The Certificate shall state that Festival will be notified in writing 30 days prior to cancellation, material change or non-renewal of insurance. Vendor shall indemnify and hold harmless Festival from any and all damages of any nature whatsoever caused in whole or in part by any act or omission including negligence or the Vendor, even if these damages are caused in part by the negligence of the Festival.
5. VENDOR’S RESPONSIBILITIES
Concessionaire’s signage, banners, flags, etc. cannot exceed more than four (4) feet over the natural horizontal height of the concessionaire’s tent or trailer. In other word’s banners, signs, flags, etc. must be kept low to the tent or trailer top and extensive artificial height will not be permitted. Your operation must look professional at all times which means you have clean tablecloths and table skirts on all visible tables and counters. Your overall operation is kept clean (front and back) your staff is well groomed and in clean outfits or clothing. Your menu signage needs to be professionally printed with menu amount reflected in coupon value, not $ value.
Vendor agrees to conduct its business in a safe, orderly and lawful manner and to abide by all rules and regulation prescribed by Festival or any applicable governing authority, including, without limitation, those relating to (a) the approval of the prices (coupons) to be charged; (b) portions of Products; (c) wearing of acceptable uniforms or other dress by all personnel employed on the Premises by Vendor; (d) the names of all persons in charge on the Premises, one of whom shall always be on the Premises when the same is in operation; (e) the hours of operation of the Premises, which shall be the same as the hours of operation of the Event; (f) the preparation of the Products and disposal of refuse; (g) the maintenance of the Premises; and (h) all public health and sanitation ordinances. Vendor shall supervise the Premises using its best skill and attention, and shall be solely responsible for all labor, materials, equipment, tools and other facilities used by it during the Event.
6. VENDOR’S PROPERTY
Vendor understands and expressly agrees that it is bringing all of its personal property, equipment and valuables of any sort on the Event site at its sole risk and further agrees to waive all claims for loss, damage or destruction of said property in favor of Festival, its Board of Directors and its Sponsors, and each of their respective employees, volunteers and contributors (collectively “Released Parties”). Vendor understands and expressly agrees that the Released Parties are not responsible for providing specific security or protection for any such vendor property and are not responsible or liable in any way for said property, whether or not such loss is due to the negligence of any Released Party. Should Vendor choose to insure said property, its insurance contract should be amended specifically waiving all rights of subrogation in favor of all the Released Parties.
7. FOOD and BEVERAGE COUPONS
Vendor shall only accept Festival coupons or use credit card terminals rented by the Festival in exchange for Products. UNDER NO CIRCUMSTANCES SHALL CASH OR CREDIT CARDS PROCESSED FROM YOUR OWN TERMINAL BE ACCEPTED IN EXCHANGE FOR PRODUCTS. All prices of the Products shall include sales tax and shall be stated in terms of total coupons. Coupons shall be sold to the general public from mutable coupon sales booth locations on the Event grounds. Coupon sales booths shall remain open during the hours of operation of the Event. Festival Coupons will be sold to the public in strips of 9 for $10.00 or $1.15 each. The coupon value to concessionaires is $1:00 each. If concessionaire requests to rent from the festival a pre-programed credit card terminal then concessionaire may be authorized to also accept credit cards which will automatically add the Festival surcharge and transmit sales back to the Festival’s independent Box Office. Under no circumstances can a concessionaire use their own credit card machines. After the Festival retains its 30% commission and Festival surcharge, redeemed coupons or credit card sales have a net value to concessionaire of 70% of sales.
In consideration of the rights extended to the Vendor by the Festival, Vendor agrees to pay Festival in advance a deposit (unless otherwise waived) in the amount of $600.00 to reserve and confirm each space at the festival, such amount will be held against the payment of 30 percent of Vendor’s gross sales for the Festival. Should the calculation of such commission be less than $600.00, Festival will retain as its commission the amount of $600.00. Upon calculation of Festival’s commission in excess of $600.00, Vendor shall be given credit for this amount having been paid in advance. Immediately after the conclusion of the Event, a final accounting of all costs, charges and payment shall be made. Coupons shall be refunded for their corresponding dollar value ($1.00 per coupon) less the 30 percent commission due to Festival and any other charges incurred by the Vendor. The final payment due to the Vendor shall be made payable to the NAME of BUSINESS listed on the online application. Vendor shall be exclusively liable for any obligation to deduct and pay any sales tax, which Vendor is required to pay on its gross sales at the Festival.
9. OCCUPANCY and SURRENDER OF PREMISES
Vendor’s space shall be made available on an “as is” basis, and it is understood that Vendor will inspect the space and take whatever action is necessary to set up and operate in a safe and secure manner. At the conclusion of the Event, Vendor shall surrender the Premises to Festival in as good or better condition as they were when first occupied by Vendor. Wear and tear acceptable to Festival is expected. Festival shall cause to be removed any building, enclosures, structures, facilities and tents used in connection with the Event. If Vendor shall fail to remove all of its property and effects (including refuse) form the Premises within four hours after the termination of the Event, Festival may (a) treat such property as abandoned, in which event it shall become the property of Festival; the same without liability to Vendor for loss thereof, and Vendor agrees to pay Festival on demand, any and all expenses incurred in such removal, including court costs and attorney’s fees and storage costs; or (b) dispose of such property in any manner considered appropriate by Festival.
If Vendor fails to abide by or is in default under any provision of this Agreement, Festival shall notify Vendor of such default and Vendor shall have a reasonable time to remedy such default, such reasonable time to require immediate action if the Event is about to begin or is in process. If Vendor does not remedy such default, Festival may terminate this Agreement, expel Vendor from the Premises, and re-let the Premises to another party without any further liability of obligation to Vendor. In the event Festival does not remedy default within a reasonable time, Vendor may terminate this Agreement and vacate the Premises without further obligation to Festival.
11. FESTIVAL AUTHORITY
Festival shall have complete authority and control over all aspects of the Event. It reserves the right in its sole discretion to oversee and make whatever arrangements it deems appropriate for security, coupon selling, crowd control, clean-up, publicity and any other matter affecting the overall Event operation. Festival makes no guarantees as to any specific level of Event attendance, nor those Vendors will achieve any specified dollar amounts in sales.
12. FORCE MAJEURE
Due to the COVID-19 pandemic the following force majeure clause has been added to our normal legal requirements.
Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, storm or any type of inclement weather preventing the Festival from opening or taking place. (Please understand by the time an annual Festival could be canceled or postponed (like it was due to the COVID-19) most Festival expenses will have already been prepaid for year-round infrastructure, marketing and specialized Festival rental equipment and labor. Concessionaire deposits only cover a tiny portion of advance year-round Festival Expenses. Under this type of extreme circumstance, if possible, the Festival would make every attempt to either rollover paid Concessionaire deposits to future dates or offer refunds, if possible, in the same timestamp order of which deposits payments were originally received or if additional funding becomes available back to the Festival.
13. ACKNOWLEDGMENT of REGULATIONS
Vendor acknowledges receipt of the document titled TERMS AND CONDITIONS AGREEMENT for CONCESSIONAIRES and agrees to comply with the regulations set forth therein.