HomeMy WebLinkAboutContract 50282 !0
CITY SECRETARY ¢
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PARHING LOT LICENSE AGREEMENT
This Parking Lot License Agreement ("Agreement") is entered into this , 2018
("Effective Date)by and between the City of Fort Worth, Texas,a home-rule municipal corporation of the
State of Texas("City"), and BNSF Railway Company, a Delaware corporation("Tenant")
WHEREAS, City owns a certain piece of property known as the Alliance Maintenance Facility located
at 2000 Eagle Parkway, Fort Worth, Texas, 76177 ("Property"), which Property is managed on behalf of
City by Hillwood Properties("Property Manager"); and
WHEREAS, Tenant has requested, and the City agrees to grant to Tenant, the use of a portion of the
parking spaces on the Property in accordance with the terms and conditions of this Agreement.
WITNESSETH:
1. Premises. City hereby grants Tenant the exclusive license to use approximately 9.63 acres of
the parking lot ("Lot") as described in Exhibit "A" located at the Alliance Maintenance Facility for
parking of automobiles, other motorized vehicles and trailers and the placement and use of a modular
office building only. Under no circumstances during the Agreement will Tenant use or cause to be used
on the Lot any hazardous or toxic substances or materials, or store or dispose of any such substances or
materials on the Lot; provided that the presence of fuel, engine oil and hydraulic fluids used for or stored
in vehicles parked on the Lot will not be deemed a violation of this Section. Tenant shall not install signs,
advertising media, and lettering on the Lot without prior written approval of City. Tenant will have
access to the Lot 24 hours a day, 7 days a week. City agrees to provide Tenant with reasonable prior
notice in the event City desires to access the Lot; provided that City may not interfere with Tenant's use
of the Lot in accordance with this Agreement.
2. Condition of Lot. Tenant taking possession of the Lot shall be conclusive evidence that (a)
the Lot are suitable for the purposes and uses for which same are licensed; and(b) Tenant waives any and
all defects in and to the Lot, its appurtenances, and in all the appurtenances thereto. Further, Tenant
takes the Lot and all appurtenances in "AS IS" condition without warranty, expressed or implied, on the
part of City. City shall not be liable to Tenant,Tenant'agents,employees, invitees, licensees,or guests for
any damage to any person or property due to the Lot or any part of any appurtenance thereof being
improperly constructed or being or becoming in disrepair.
3. Term.
(a) Primary Term: Subject to the earlier termination as hereinafter set forth,this Agreement
shall be for a term ("Primary Term") of six (6) months, commencing on February 15,
2018 and expiring on August 15, 2018. The Primary Term, together with any
continuation after the conclusion of the Primary Term, may be referred to hereinafter
collectively as the"License Term".
(b) Extension Option: Tenant shall have the option to extend and renew the License Term for
one (1) additional term of six (6) months (the "Extension Option", and the 6 month
License Agreement between the City of Fort Worth and OFFICIAL.RECORD
BNSF Railway Company
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renewal period, the "Extension Term"). Upon renewal, this Agreement shall continue in
full force and effect for the duration of the Extension Term, upon the same terms and
conditions as are contained herein. Tenant shall exercise the Extension Option by
delivering written notice thereof to City prior to the end of the Primary Term.
(c) Holdover: Tenant may occupy the Lot after this Agreement expires on a month to month
holdover status basis, cancellable by either party on thirty(30)days' written notice to the
other party.All terms of this Agreement will remain in force during holdover status.
4. License Fee; Time of essence. Tenant will pay City a license fee of$30,000 per month to use
the Lot during the License Term. Fee is due to City on or before the 1'of each month via direct deposit
into the Alliance Maintenance Fund bank account,the information for which shall be provided by City to
Tenant promptly after the Effective Date hereof.If the payment of fees is not received by City as provided
herein, then after five (5) days after receipt of written notice from City, all amounts due and payable to
City hereunder shall bear interest from the date the payment of fees was due until paid, at a per annum
rate of interest equal to the lesser of (a) eighteen percent (18%) or (b) the highest non-usurious rate
permitted by applicable law. Time is specifically of the essence of this provision and of every provision
of this Agreement.
5. No Services. City shall not furnish Tenant with any utilities, cleaning, lighting, security, or
any other items or services for the Lot. All operating costs of Lot shall be Tenant' sole cost and expense.
If Tenant wants or needs any utilities, cleaning, lighting, security, or any other items or services while
occupying the Lot, then Tenant shall first obtain permission and approval from the City to contract, add
or install any of the above items and will be responsible for providing same at Tenant' sole cost.
Notwithstanding the foregoing, City acknowledges and agrees that Tenant may desire electrical service at
the Lot, and Tenant is expressly permitted to make all arrangements with the applicable governmental
authority or utility company in order to install and/or provide such service, at Tenant's sole cost. If
electrical service is not available at the Lot for any period of fifteen (15) days or longer during the
License Term,Tenant may terminate this Agreement upon written notice to City.
6. Alterations,Additions,Improvements,and Signage. Tenant shall make no alterations on or
additions to, the Lot without the prior written consent of City, including but not limited to installation of
fencing, lighting and gates on or around the Lot as desired by Tenant in connection with its use of the Lot,
which may include a temporary"K-Rail" barrier of pre-fabricated concrete barriers around any unfenced
portion of the Lot. Any alterations made to the Lot by the Tenant shall be at Tenant's sole cost and
expense and shall not materially interfere with the operations of other tenants and/or other operations at
the Alliance Maintenance Facility. If such interference occurs, Tenant will make changes and/or remove
the alteration as is reasonably necessary to remedy said interference within 5 days of written notice from
City, or, if later, the amount of time reasonably necessary to perform such remedy. All alterations,
additions and improvements made to or fixtures or other improvements placed in or upon the Lot shall be
deemed a part of the Lot and the property of City at the end of the License Term. All such alterations,
additions, improvements, and fixtures shall remain upon and be surrendered with the Lot as a part thereof
at the termination of this Agreement. Tenant may at its sole option and expense remove any Tenant
alterations at any time during the License Term with City approval. At the termination of this Agreement,
whether by lapse of time or otherwise,Tenant shall(i)deliver the Lot to City in as good a condition as the
same was as of the date of the taking of possession thereof by Tenant, subject only to ordinary wear and
tear and damage caused by casualty or condemnation and (ii) upon City's written request, Tenant will
License Agreement between the City of Fort Worth and
BNSF Railway Company
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remove any alterations made by Tenant and make any repairs to the Lot as needed in order to comply with
the provisions of Section 13 below.
7. Indemnity. (a) TENANT 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 REASONABLE COURT COSTS, REASONABLE ATTORNEYS'
FEES AND REASONABLE COSTS OF INVESTIGATION), OF ANY NATURE, KIND OR
DESCRIPTION TO THE EXTENT 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 LOT BY TENANT, ITS EMPLOYEES, AGENTS AND
LESSEES OR (2) BY REASON OF ANY OTHER CLAIM WHATSOEVER OF ANY PERSON OR
PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED BY ANY ACT OR OMISSION ON
THE PART OF TENANT OR ANY LESSEE, EMPLOYEE, DIRECTOR, OFFICER, SERVANT, OR
CONTRACTOR OF TENANT OR (3) BY ANY BREACH, VIOLATION OR NONPERFORMANCE
OF ANY COVENANT OF TENANT UNDER THIS AGREEMENT (COLLECTIVELY,
"LIABILITIES"), EXCEPT TO THE EXTENT ARISING OUT OF OR RESULTING 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, TENANT, ON NOTICE FROM CITY, SHALL DEFEND
SUCH ACTION OR PROCEEDING, AT TENANT' EXPENSE, BY OR THROUGH ATTORNEYS
REASONABLY SATISFACTORY TO CITY. THE PROVISIONS OF THIS PARAGRAPH SHALL
APPLY TO ALL ACTIVITIES OF TENANT WITH RESPECT TO THE USE AND OCCUPANCY OF
THE LOT,WHETHER OCCURRING BEFORE OR AFTER THE COMMENCEMENT DATE OF THE
LICENSE TERM AND BEFORE OR AFTER THE TERMINATION OF THIS AGREEMENT. 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. ALL VEHICLES AND ALL PERSONAL PROPERTY WITHIN
VEHICLES USING THE LOT, WHETHER PURSUANT TO THIS AGREEMENT OR OTHERWISE
SHALL BE AT THE RISK OF TENANT ONLY, AND NO INDEMNITEES SHALL BE LIABLE FOR
ANY LOSS OR THEFT OF OR DAMAGE TO PROPERTY OF TENANT, 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,
UNLESS DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
License Agreement between the City of Fort Worth and
BNSF Railway Company
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9. Insurance. Tenant shall procure and maintain at all times, in full force and effect, a policy or
policies of insurance as specified herein, which liability policy shall name 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 Lot. Tenant shall obtain the following insurance coverage at the limits specified
herein:
* Commercial General Liability: $1,000,000.00 per occurrence(Including Products and
Completed Operations);
In addition, Tenant shall be responsible for all insurance to any personal property of Tenant or in
Tenant's care, custody or control. Tenant is allowed to self-insure without the prior written consent of City.
Any self-insured retention or other financial responsibility for claims shall be covered directly by Tenant in
lieu of insurance.
10. Abandoned Property. Tenant' personal property not promptly removed by Tenant from the
Lot at the termination of this Agreement, whether termination shall occur by the lapse of time or
otherwise, shall thereupon be conclusively presumed to have been abandoned by Tenant to City. Fixtures
attached to the Lot become the property of City, if not removed as required herein.
11. Assignment and Subletting. Tenant shall not assign this Agreement, or any right of Tenant
under this Agreement, or sublet the Lot, 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 Agreement; all provided that Tenant's contractors and agents may use the
Lot in accordance with the terms and provisions hereof.
12. Damage to Lot or Property of City. If, at any time during the License Term, by the acts
of omissions of the Tenant, its employees, agents, of licensees, the Lot, or any property therein is
damaged or destroyed, Tenant 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 Lot,
City's sole obligation hereunder being to make the Lot available to Tenant in accordance with and subject
to the covenants, restrictions and limitations set forth herein. Tenant shall, at its expense, use and maintain
the Lot in a neat, clean, careful, safe, and proper manner including but not limited to any snow and/or ice
removal, and comply with all applicable laws, ordinances, orders, rules, and regulations of all
governmental bodies (state, county, federal, and municipal). At no time may there be any maintenance of
any trailers or trucks within the Lot or Property and if a spill of any nature takes place arising from the
actions of Tenant, Tenant must notify the Property Manager immediately and is responsible for all
required clean up and repairs to the extent arising from the spill.
14. Severability. If any clause or provision of this Agreement 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 Agreement 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 Agreement on written notice to Tenant.
15. Default and Termination.
License Agreement between the City of Fort Worth and
BNSF Railway Company
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(a) Tenant' Default. If Tenant shall fail to perform or observe any of its obligations hereunder
then City may terminate this Agreement by giving Tenant twenty(20)days prior written notice thereof. If
Tenant fails to cure such default within fifteen (15) days of receipt of City's default notice than this
Agreement and all interest of Tenant hereunder shall automatically terminate, but if Tenant does so cure
such default within said 15 days, City's termination notice will be deemed withdrawn. Such rights of City
in the case of a default by Tenant 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 Agreement, Tenant may terminate
this Agreement by giving City twenty (20) days prior written notice thereof. If City fails to cure such
default within fifteen (15) days of receipt notice then Tenant may terminate this Agreement. Such rights
of Tenant in the case of a default by City hereunder are not exclusive, but are cumulative of all other
rights Tenant 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.
(c) Termination by Convenience. Either party may terminate this Agreement with 30 day
written notice to the other party.
16. Notice.Any notice hereunder must be in writing. Notice deposited or sent by nationally
recognized overnight courier service, such as,but not limited to,Federal Express,by certified mail with
return receipt requested,or by express 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 Tenant:
City of Fort Worth BNSF Railway Company
Lease Management Attn:Corporate Real Estate
Property Management Department 2301 Lou Menk Drive, GOB 3-W
900 Monroe,Suite 400 Fort Worth,TX 76131
Fort Worth,TX 76102
With a copy to: With a copy to:
City Attorney JLL—Rail Practice Group
City of Fort Worth Attn: Facility Lease Administration
200 Texas Street 4200 Buckingham Road, Suite 110
Fort Worth,TX 76102 Fort Worth,TX 76155
With a copy to:
Barney Herl
Hillwood Properties
13600 Heritage Parkway, suite 200
Fort Worth,TX 76177
The parties hereto shall have the continuing right to change their respective address by giving at least ten
License Agreement between the City of Fort Worth and
BNSF Railway Company
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(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 Tenant' normal business hours and upon
reasonable notice, audit Tenant' books and records, but only as it pertains to this Agreement and as
necessary to evaluate compliance with this Agreement.
18. Entire Agreement. This Agreement constitutes the entire agreement between City and
Tenant relating to the use of the Lot 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 Agreement may not be amended, modified, extended, or supplemented
except by written instrument executed by both City and Tenant.
20. Counterparts. This Agreement 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)
License Agreement between the City of Fort Worth and
BNSF Railway Company
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In witness whereof,the parties hereto have caused this Lease to be executed as the day and year first above set forth.
CITY: TENANT:
CITY OF FORT WORTH BNSFILW Y C ANY
By: 4r By:
esus J. Chapa
Assistant City Manager Name: Mark D.Ude
AVP�Corporate mal EstateDevelopment
Date: Title:
Date: -14, 1
CONTRACT COMPLIANCE MANAGER
By signing, I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensu-11-1!!6-'d-I'1 perforiiianee and reporting requirements.
Name: �✓ '
Title:6, VA U 9; a) V ' -VO-WO&
Date:
APPRO ED ASAAND LEGALITY:
By: �
Leann Guzman
Senior Assistant City Attorney
Date: a /�
ATT]ES ®f T
By:_ f
Mary r s Z
City Secretary
a
Date: 013(A5
Form 1295:Not required
Contract Authorization:
M&C:Not required
License Agreement between the City of Fort Worth and OFFICIAL RECORD
BNSF Railway Company
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