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HomeMy WebLinkAboutContract 48897 RECEIVED I1. I CITY SECRETARY CI y O FORTWOM TEMPORARY LICENSE AGREEMENT CONTRACT NO. CaYBEOPMAW This Temporary License Agreement ("Agreement") is entered into this 04of 2017 ("Effective Date) by and between the City of Fort Worth, Texas, a home-rule JuWilpoal'Wcorporation of the State of Texas ("City"), and Mark Smith Powersports, LP a Texas limited partnership, d/b/a Stampede Harley-Davidson("Licensee"). WHEREAS, City owns a certain piece of property known as Spinks Airport located at 450 Alsbury Court,Fort Worth,TX 76028 ("Property"); and WHEREAS, Licensee has requested, and the City agrees to grant to Licensee, the use of a portion of the east side ramp apron on the Property in accordance with the terms and conditions of this Agreement. WITNESSETH: 1. Premises. City hereby grants Licensee the non-exclusive license to use a portion of the east side ramp apron("Apron") (See Exhibit"A")to use for Licensee's Riding Academy Course only. Under no circumstances during the Agreement will Licensee use or cause to be used on the Apron any hazardous or toxic substances or materials, or store or dispose of any such substances or materials on the Apron. Licensee shall not install signs, advertising media, and lettering on the Apron without prior written approval of City. Licensee shall only be entitled to use of the Apron on Saturdays and Sundays and only with the express prior written approval of the City of Fort Worth Aviation Director, or his designee. 2. Condition of Apron. Licensee taking possession of the Apron shall be conclusive evidence that (a) the Apron are suitable for the purposes and uses for which same are licensed; and (b) Licensee waives any and all defects in and to the Apron, its appurtenances, and in all the appurtenances thereto. Further, Licensee takes the Apron and all appurtenances in "AS IS" condition without warranty, expressed or implied, on the part of City. City shall not be liable to Licensee, Licensee's agents, employees, invitees, licensees, or guests for any damage to any person or property due to the Apron of any part of any appurtenance thereof being improperly constructed or being or becoming in disrepair. 3. Term. Subject to the earlier termination as hereinafter set forth, this License shall be for a term("License Term") of one year, commencing on the Effective Date and expiring on February 1,2018. Licensee shall only be entitled to use of the Apron on Saturdays and Sundays as approved in writing in advance by the City of Fort Worth Aviation Director, or his designee. 4. License Fee; Time of essence. Licensee will pay City a license fee of$100.00 per day or $50.00 per half-day for each day of actual use of the Apron during the Term. Fee is due on the last day of each month of use. Payment of the fees under this Section 4 shall be paid to City through the Property Manager at the address given in Section 16, or such other address as City may designate from time to time. Time is specifically of the essence of this provision and of every provision of this Agreement. 5. No Services. City shall not furnish Licensee with any utilities, cleaning, lighting, security, or any other items or services for the Apron. All operating costs of Apron shall be Licensee's sole cost and expense. 6. Alterations, Additions, Improvements, and Signage. Licensee shall make no alterations on, or additions to,the Apron without the prior written consent of City. - 1 - OFFICIAL RECORD CITY SECRETARY FT.1WORTH,TX 7. Indemnity. (a) LICENSEE SHALL AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS CITY, CITY'S OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES. LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES, (INCLUDING COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION), OF ANY NATURE, KIND OR DESCRIPTION ARISING OR ALLEGED TO ARISE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY (1) RELATING TO THE USE OR OCCUPANCY OF THE APRON BY LICENSEE, ITS EMPLOYEES, PATRONS, AGENTS, INVITEE, LESSEES AND ANY OTHER PARTY OR (2) BY REASON OF ANY OTHER CLAIM WHATSOEVER OF ANY PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR OMISSION ON THE PART OF LICENSEE OR ANY INVITEE, PATRON, LESSEE, EMPLOYEE, DIRECTOR, OFFICER, SERVANT, OR CONTRACTOR OF LICENSEE, OR ANYONE LICENSEE CONTROLS OR EXERCISES CONTROL OVER OR (3) BY ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF LICENSEE UNDER THIS LICENSE (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO THE CONCURRENT OR PARTIAL NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY IS WITH RESPECT TO LIABILITIES ARISING OUT OF OR RESULTING SOLELY FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNITEE. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST ANY INDEMNITEE IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, LICENSEE, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT LICENSEE'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY TO ALL ACTIVITIES OF LICENSEE WITH RESPECT TO THE USE AND OCCUPANCY OF THE APRON, WHETHER OCCURRING BEFORE OR AFTER THE COMMENCEMENT DATE OF THE LICENSE TERM AND BEFORE OR AFTER THE TERMINATION OF THIS LICENSE. THIS INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION OR BENEFITS PAYABLE UNDER INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFIT ACTS OR OTHER EMPLOYEES' BENEFIT ACTS. (b) IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OR HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS PARAGRAPH 7, SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE INDEMNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. 8. Waiver of Liability. NO INDEMNITEE SHALL BE LIABLE IN ANY MANNER TO LICENSEE, ITS AGENTS, EMPLOYEES, PATRONS, CONTRACTORS, OR ANY OTHER PARTY IN CONNECTION WITH THE USE OF THE APRON BY ANY OF THEM, FOR ANY INJURY TO OR DEATH OF PERSONS UNLESS CAUSED SOLELY BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF AN INDEMNITEE. IN NO EVENT SHALL ANY INDEMNITEE BE LIABLE IN ANY MANNER TO LICENSEE OR ANY OTHER PARTY AS THE RESULT OF THE -2- ACTS OR OMISSIONS OF LICENSEE, ITS AGENTS, EMPLOYEES, CONTRACTORS, OR ANY OTHER PARTY, IN CONNECTION WITH THE USE OF THE APRON BY ANY OF THEM. ALL VEHICLES AND ALL PERSONAL PROPERTY WITHIN VEHICLES USING THE APRON, WHETHER PURSUANT TO THIS LICENSE OR OTHERWISE SHALL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEES SHALL BE LIABLE FOR ANY LOSS OR THEFT OF OR DAMAGE TO PROPERTY OF LICENSEE, ITS EMPLOYEES, AGENTS, PATRONS, INVITEE, OR TO OTHERS, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRUSTED TO EMPLOYEES OF CITY OR SUCH LOSS OR DAMAGE IS OCCASIONED BY CASUALTY, THEFT OR ANY OTHER CAUSE OF WHATSOEVER NATURE, EVEN IF DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. 8(a) Participant Waiver. All participants of Licensee's Riding Academy Course must provide to City a signed waiver in the form attached as Exhibit"B"prior to conducting any activity on the Apron or the Property. 9. Insurance. Licensee shall procure and maintain at all times, in full force and effect, a policy or policies of insurance as specified herein, naming the City of Fort Worth as an additional insured and covering all public risks related to the leasing, use, occupancy, maintenance, existence or location of the Apron. Licensee shall obtain the following insurance coverage at the limits specified herein: * Commercial General Liability: $300,000.00 per occurrence (including Products and Completed Operations); In addition, Licensee shall be responsible for all insurance to any approved construction, improvements, modifications or renovations on or to the Apron and for personal property of Licensee or in Licensee's care, custody or control. Insurance requirements, including additional types and limits of coverage and increased limits on existing coverages, are subject to change at City's option, and Licensee will accordingly comply with such new requirements within thirty (30) days following notice to Licensee. As a condition precedent to the effectiveness of this License,Licensee shall furnish City with a certificate of insurance signed by the underwriter as proof that it has obtained the types and amounts of insurance coverage required herein. Licensee hereby covenants and agrees that not less than thirty(30) days prior to the expiration of any insurance policy required hereunder, it shall provide City with a new or renewal certificate of insurance. In addition, Licensee shall, on demand, provide City with evidence that it has maintained such coverage in full force and effect. Licensee shall maintain its insurance with underwriters authorized to do business in the State of Texas and which are satisfactory to City. The policy or policies of insurance shall be endorsed to cover all of Licensee's operations on the Apron and to provide that no material changes in coverage, including, but not limited to, cancellation, termination, non-renewal or amendment, shall be made without thirty(30)days'prior written notice to City. 10. Abandoned Property. Licensee shall be permitted to keep a storage container on site at the apron or another location on the Property acceptable to City during the entire License Term. All equipment owned by Licensee that is not stored in the on-site storage container must be removed from the Apron immediately after completion of each day of use. Except for Licensee's personal property stored in the on-site storage container, any other personal property owned by Licensee that is not promptly removed by Licensee from the Apron within five(5) days after the end of each day of use, shall thereupon be conclusively presumed to have been abandoned by Licensee to City, and City shall have the right to dispose of the property as it deems appropriate. -3 - 11. Assignment and Subletting. Licensee shall not assign this License, or any right of Licensee under this License, or sublet the Apron, for consideration or no consideration, whether voluntarily, by operation of law, or otherwise, and any attempt to do so shall be void, and any such attempt shall cause immediate termination of this License. 12. Damage to Apron or Property of City. If, at any time during the License Term, by the acts of omissions of the Licensee, its employees,patrons, agents, invitees, of licensees,the Apron, or any property therein is damaged or destroyed, Licensee shall be obligated to pay, on demand, all costs to repair same together. 13. Repairs and Maintenance. City has no obligation to make repairs of any sort to the Apron, City's sole obligation hereunder being to make the Apron available to Licensee in accordance with and subject to the covenants, restrictions and limitations set forth herein. Licensee shall, at its expense, use and maintain the Apron in a neat, clean, careful, safe, and proper manner and comply with all applicable laws, ordinances, orders, rules, and regulations of all governmental bodies (state, county, federal, and municipal). At the termination of this License, whether by lapse of time or otherwise, Licensee shall deliver the Apron to City in as good a condition as the same was as of the date of the taking of possession thereof by Licensee, ordinary wear and tear only expected. 14. Severability. If any clause or provision of this License is or becomes illegal, invalid or unenforceable because of present or future laws or any rule or regulation of any governmental body or entity, effective during the License Term, the intention of the parties hereto is that the remaining parts of this License shall not be affected thereby unless such invalidity is, in the sole determination of the City, essential to the rights of both parties, in which event City has the right, but not the obligation, to terminate the License on written notice to Licensee. 15. Default and Termination. (a) Licensee's Default. If Licensee shall fail to perform or observe any of its obligations hereunder then City may terminate this License by giving Licensee written notice thereof, in which event this License and all interest of Licensee hereunder shall automatically terminate. Such rights of City in the case of a default by Licensee hereunder are not exclusive, but are cumulative of all other rights City may have hereunder, at law or in equity; and any one or more of such rights may be exercised separately or concurrently to the extent provided by law. (b) City's Default. Should City commit a default under this License (including but not limited to City's failure to make the Apron available), Licensee may, as its sole remedy hereunder, terminate this License, and Licensee hereby waives any and all other remedies for any such default by City. (c) Termination for Convenience. Either party may terminate this License with 30 days' written notice to the other party. 16. Notice. Any notice hereunder must be in writing. Notice deposited in the United States mail,properly addressed,postage paid, shall be effective-upon deposit. Notice given in any other manner herein shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall,unless changed as hereinafter provided,be as follows: To City: To Licensee: City of Fort Worth Mark Smith Powersports -4- Mark Brown,Land Agent 240 N.Burleson Blvd. 900 Monroe, suite 404 Burleson,TX 76028 Fort Worth,TX 76102 With a copy to: City Attorney City of Fort Worth 200 Texas St. Fort Worth,TX 76102 The parties hereto shall have the continuing right to change their respective address by giving at least ten (10) days notice to the other party. 17. Audit. Pursuant to Chapter 2, Article IV, Division 3, Section 2-134, Administration, Powers and Duties of the Department of Internal Audit, of the Code of Ordinances of the City of Fort Worth, City may at City's sole cost and expense, at reasonable times during Licensee's normal business hours and upon reasonable notice, audit Licensee's books and records, but only as it pertains to this License and as necessary to evaluate compliance with this License. 18. Entire Agreement. This License constitutes the entire agreement between City and Licensee relating to the use of the Apron and no prior written or oral covenants or representations relating thereto not set forth herein shall be binding on either party hereto. 19. Amendment. This License may not be amended, modified, extended, or supplemented except by written instrument executed by both City and Licensee. 20. Counterparts. This License may be executed in several counterparts, each of which shall be deemed an original,but all of which shall constitute but one and the same document. [SIGNATURES APPEAR ON FOLLOWING PAGES] -5- In witness whereof, the parties hereto have caused this License to be executed as the day and year first above set forth. CITY: CITY OF FORT WORTH a Texas municipal corporation By: G a 1 s — ---- Fernando Costa,Assistant City Manager Approved as to Form and Legality: Assistant Ay Attorney At d: y. C' y Secretary Contract Compliance Manner: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Employee Name: Employee Title: LICENSEE: Mark Smith Powersports LP, d.b.a. Stampede Harley-Davidson By: Name: M MK- SiM Title: ►'�/1� ✓L` OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX -6- _ Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Anne-Marie Stowe, Leasing Coordinator Temporary License Agreement Mark Smith Power Sports,LP CSC-48897