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HomeMy WebLinkAboutContract 50416 CITY SECRETARY CONTRACT NO. ��n�9919O PARKING LOT LICENSE AGREEMENT C ? This Parking Lot License Agreement ("Agreement") is entered into this rfVA Cl-- 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 3.5 acres of the parking lot (" Eagle Lot 2") 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 Eagle Lot 2 any hazardous or toxic substances or materials, or store or dispose of any such substances or materials on the Eagle Lot 2; provided that the presence of fuel, engine oil and hydraulic fluids used for or stored in vehicles parked on the Eagle Lot 2 will not be deemed a violation of this Section. Tenant shall not install signs, advertising media, and lettering on the Eagle Lot 2 without prior written approval of City. Tenant will have access to the Eagle Lot 2 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 Eagle Lot 2; provided that City may not interfere with Tenant's use of the Eagle Lot 2 in accordance with this Agreement. 2. Condition of Eagle Lot 2. Tenant taking possession of the Eagle Lot 2 shall be conclusive evidence that (a) the Eagle Lot 2 are suitable for the purposes and uses for which same are licensed; and (b) Tenant waives any and all defects in and to the Eagle Lot 2, its appurtenances, and in all the appurtenances thereto. Further, Tenant takes the Eagle Lot 2 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 Eagle Lot 2 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 five(5)months, commencing on March 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". EFT.WORTHv ECORD License Agreement between the City of Fort Worth and ETARY BNSF Railway Company ,I,x - 1 - (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 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 Eagle Lot 2 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$11,000 per month to use the Eagle Lot 2 during the License Term. Fee is due to City on or before the 1't 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 Eagle Lot 2. All operating costs of Eagle Lot 2 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 Eagle Lot 2,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 Eagle Lot 2, 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 Eagle Lot 2 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 Eagle Lot 2 without the prior written consent of City, including but not limited to installation of fencing, lighting, and gates on or around the Eagle Lot 2 as desired by Tenant in connection with its use of the Eagle Lot 2 and may include a temporary "K-Rail" barrier of prefabricated concrete barriers around any unfenced portion of the Eagle Lot 2. Any alterations made to the Eagle Lot 2 by the Tenant shall be at Tenant's sole cost and expense and shall not interfere with the operations of other tenants and/or other operations at the Alliance Maintenance Facility. If interference occurs Tenant will make changes and/or remove the alteration to remedy said interference within 5 days of notice from City. All alterations, additions and improvements made to or fixtures or other improvements placed in or upon the Eagle Lot 2 shall be deemed a part of the Eagle Lot 2 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 Eagle Lot 2 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 License Agreement between the City of Fort Worth and BNSF Railway Company -2- approval. At the termination of this Agreement, whether by lapse of time or otherwise, Tenant shall (i) deliver the Eagle Lot 2 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_request, remove any alterations and make any repairs to the Eagle Lot 2 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 EAGLE LOT 2 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 EAGLE LOT 2, 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 EAGLE LOT 2, 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 License Agreement between the City of Fort Worth and BNSF Railway Company -3 - 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. 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 Eagle Lot 2. 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 Eagle Lot 2 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 Eagle Lot 2 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 Eagle Lot 2, 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 Eagle Lot 2 in accordance with the terms and provisions hereof. 12. Damage to Eagle Lot 2 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 Eagle Lot 2, 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 Eagle Lot 2, City's sole obligation hereunder being to make the Eagle Lot 2 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 Eagle Lot 2 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 Eagle Lot 2 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 License Agreement between the City of Fort Worth and BNSF Railway Company -4- 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. (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, as its sole,.o....ed y he.eHfide,., 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 License Agreement between the City of Fort Worth and BNSF Railway Company -5 - 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 (10)days' notice to the other parry. 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 Eagle Lot 2 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 -6- 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 WORT BNSF RAILWAY CO ANY By: By: �V Jesus J.Chapa Assistant City Manager Name: AWLllc�Q, Date: Title: r� '�1 Title: uY (�OV(��►�Ae_ ��5 Date: �g�f� CONTRACT COMPLIANCE MANAGER By signing,I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuri 1 �er'ffoormance and reporting requirements. Name. GT/' Title:����'"/.l/1N Gr-/'� �t�qvlk A/4047/PW, PW-, Date: APPRO D A T FORM AND LEGALITY: By: ' � Leann uzman Senior Assistant City Attorney Date: ATTEST• �1.0 By: �4 — ary Ka s City Secret y Date: Form 1295:Not required Contract Authorization: M&C:Not required F�FT.WoRITH, RECORD License Agreement between the City of Fort Worth and �"fA BNSF Railway Company TX Exhibit "A" Eagle Lot 2 R