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HomeMy WebLinkAboutContract 38004 (2)CITY SECRETARY CONTRACT NO , 8 c�9, FORT WORTH MEACHAM INTERNATIONAL AIRPORT AIRPORT ACCESS AGREEMENT VINTAGE FLYING MUSEUM, INC. This AIRPORT ACCESS AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("Grantor"), a home rule municipal corporation situated in Tarrant County, Texas acting by and through T.M. Higgins, its duly authorized Assistant City Manager, and VINTAGE FLYING MUSEUM, INC ("Grantee"), a Texas corporation acting by and through W.D. Hospers, its duly authorized President. In consideration of the mutual covenants, promises and obligations contained herein, the parties agree as follows: 1. PREMISES. Grantor grants Grantee access to the Fort Worth Meacham International Airport (Meacham) from the Premises identified on Exhibit "A" attached hereto. 2. TERM OF AGREEMENT. The Initial Term of this Agreement shall commence on November 23, 200$ ("Effective Date") and expire at 11:59 p.m. November 22, 2011. 3. ACCESS FEE. Grantee shall pay to Grantor an annual Access Fee of $0.27 per square foot of space identified on Exhibit "A" from which direct access to Meacham is granted. 4. SPECIAL CONDITIONS CONCERNING ACCESS AGREEMENT. Grantee covenants and agrees that it will maintain its certification as anon -profit organization pursuant to 26 U.S.C. §501(c)(3). As long as Grantee maintains its §501(c)(3) status, the access fee shall be waived. If such certification is not maintained during the term of this agreement, the waiver shall cease and Grantee will be liable for the access fee beginning on the date the §501(c)(3) revocation is effective. Alternatively, should the non- profit certification be revoked, Grantor, at its discretion, may terminate this agreement immediately. 5. MAINTENANCE. Grantee agrees to keep the ingress/egress area free of obstructions. Grantor agrees to provide unimpeded access to the airfield via taxiway as set forth on Exhibit B attached hereto and incorporated herein. Vintage Flying Museum FW Meacham Airport AccessAgreement 6. USE OF PREMISES. Grantee agrees to use the Premises exclusively for ingress and egress to and from Meacham from the property identified on Exhibit "A", via the public taxiway identified on Exhibit "B". Vehicular traffic is prohibited. 7. RIGHTS AND RESERVATIONS OF GRANTOR. Grantor hereby retains the following rights and reservations: 7.1. Grantor reserves the right to temporarily close the Airport or any of its facilities for maintenance, improvements, safety or security of either the Airport or the public, or for any other cause deemed necessary by Grantor. In this event, Grantor shall not be liable for any damages asserted by Grantee, including, but not limited to, damages from an alleged disruption of Grantee's business operations. 7.4. This Agreement shall be subordinate to the provisions of any existing or future agreement between Grantor and the United States Government which relates to the operation or maintenance of the Airport and is required as a condition for the expenditure of federal funds for the development, maintenance or repair of Airport infrastructure. 7.5. During any war or national emergency, Grantor shall have the right to lease any part of the Airport, including its landing area, to the United States Government. In this event, any provisions of this instrument which are inconsistent with the provisions of the lease to the Government shall be suspended. Grantor shall not be liable for any loss or damages alleged by Grantee as a result of this action. However, nothing in this Agreement shall prevent Grantee from pursuing any rights it may have for reimbursement from the United States Government. 7.6. Grantor covenants and agrees that during the term of this Agreement it will operate and maintain the Airport and its facilities as a public airport consistent with and pursuant to the Sponsor's Assurances given by Grantor to the United States Government through the Federal Airport Act; and Grantee agrees that this Agreement and Grantee's rights and privileges hereunder shall be subordinate to the Sponsor's Assurances. 8. INSURANCE. 8.1. Types of Coverage and Limits. Grantee 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, Vintage Flying Museum 2 FW Meacham Airport Access Agreement existence or location of the Premises. Grantee 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, Grantee shall be responsible for all insurance to any approved construction, improvements, modifications or renovations on or to the Premises and for personal property of Grantee or in Grantee's care, custody or control. 8.2. Adjustments to Required Coverage and Limits. Insurance requirements, including additional types and limits of coverage and increased limits on existing coverages, are subject to change at Grantor's option, and Grantee will accordingly comply with such new requirements within thirty (30) days following notice to Grantee. 8.3. Certificates. As a condition precedent to the effectiveness of this Agreement, Grantee shall furnish Grantor with a certificate of insurance signed by the underwriter as proof that it has obtained the types and amounts of insurance coverage required herein. Grantee hereby covenants and agrees that not less than thirty (30) days prior to the expiration of any insurance policy required hereunder, it shall provide Grantor with a new or renewal certificate of insurance. In addition, Grantee shall, on demand, provide Grantor with evidence that it has maintained such coverage in full force and effect. 8.4. Additional Requirements. Grantee shall maintain its insurance with underwriters authorized to do business in the State of Texas and which are satisfactory to Grantor. The policy or policies of insurance shall be endorsed to cover all of Grantee's operations at the airport 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 Grantor. 9. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Grantee shall operate as an independent contractor as to all rights and privileges granted herein, and not as an agent, representative or employee of Grantor. Grantee shall have the exclusive right to control the details of its operations and activities on the Premises and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees and invitees. Vintage Flying Museum 3 FW Meacham Airport Access Agreement Grantee acknowledges that the doctrine of respondeat superior shall not apply as between Grantor and Grantee, its officers, agents, employees, contractors and subcontractors. Grantee further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between Grantor and Grantee. 10. INDEMNIFICATION. GRANTEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE AIRPORT UNDER THIS AGREEMENT OR WITH THE LEASING, MAINTENANCE, USE, OCCUPANCY, EXISTENCE OR LOCATION OF THE PREMISES, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR INTENTIONAL MISCONDUCT OF GRANTOR. GRANTEE COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND GRANTOR, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROMAND AGAINST ANYAND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO GRANTEE'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANYAND ALL PERSONS, OFANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE AIRPORT UNDER THIS AGREEMENT OR WITH THE LEASING, MAINTENANCE, USE, OCCUPANCY, EXISTENCE OR LOCATION OF THE PREMISES, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR INTENTIONAL MISCONDUCT OF GRANTOR. GRANTEE ASSUMES ALL RESPONSIBILITY AND AGREES TO PAY GRANTOR FOR ANYAND ALL INJURY OR DAMAGE TO GRANTOR'S PROPERTY WHICH ARISES OUT OF OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF GRANTEE, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES, PATRONS OR TRESPASSERS, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR INTENTIONAL MISCONDUCT OF GRANTOR. GRANTOR DOES NOT GUARANTEE POLICE PROTECTION TO GRANTEE OR ITS PROPERTY. GRANTOR SHALL NOT BE RESPONSIBLE FOR INJURY TO ANY PERSON ON THE PREMISES OR FOR HARM TO ANY PROPERTY WHICH BELONGS TO GRANTEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES OR PATRONS, AND WHICH MAY BE STOLEN, DESTROYED OR IN ANY WAY DAMAGED; AND GRANTEE HEREBY INDEMNIFIES AND HOLDS HARMLESS GRANTOR, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL SUCH CLAIMS, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR INTENTIONAL MISCONDUCT OF GRANTOR. Vintage Flying Museum 4 FW Meacham Airport Access Agreement Ff �� IQ1W/ in MJV �[�/:7i Y EM .i Ilif ►,1►�1i1►B111`LI : ►I I' 1 If Grantee, as a charitable association, corporation, partnership, individual enterprise or entity, claims immunity to or an exemption from liability for any kind of property damage or personal damage, injury or death, Grantee hereby expressly waives its rights to plead defensively any such immunity or exemption as against Grantor. 12. ASSIGNMENT AND SUBLETTING. Grantee may not sell, convey, transfer, or assign this agreement or any interest in this agreement. 13. TERNIINATION. In addition to any termination rights provided herein, this Agreement may be terminated as follows: 13.1. By Either Party. Grantor or Grantee may terminate this Agreement for any reason, to be effective on the expiration date of the term in effect at the time, by providing the other parry with written notice not less than thirty (30) days prior to the effective date of such termination. 13.2. Airport Development. In the event that Grantor requires the 1'x�rrses i) as part of its plans to further develop the Airport or (ii) for the convenience of the public's use of the Airport, as determined by Grantor, Grantor may terminate this Agreement by providing Grantee with written notice not less than one hundred eighty (180) days prior to the effective date of such termination. 13.3. Failure to Pay Rent. If Grantee fails to pay rent for the Premises in accordance with Section 3, Grantor shall provide Grantee with a written statement of the amount due. Grantee shall have ten (10) calendar days following notice to pay the balance outstanding. If Grantee fails to pay the full amount within such time, Grantor shall have the right to terminate this Agreement immediately. Breach or Default by Grantee. If Grantee commits any breach or default under this Agreement, other than a failure to pay rent, Grantor shall deliver to Grantee a written notice specifying the nature of Vintage Flying Museum 5 FW Meacham Airport Access Agreement such breach or default. Grantee shall have thirty (30) calendar days following notice to cure, adjust or correct the problem to the satisfaction of Grantor. If Grantee fails to cure the breach, default or failure within the time period prescribed, Grantor shall have the right to terminate this Agreement immediately. 13.5. Rights of Grantor Upon Termination or Expiration. Upon termination or expiration of this Agreement, all rights, powers and privileges granted to Grantee hereunder shall cease and Grantee shall immediately cease use of the access to the Airport. 14. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand -delivered to the other party, its agents, employees, servants or representatives, or (2) deposited in the United States Mail, postage prepaid, addressed as follows: II1�!l:7i►`II r� DEPT OF AVIATION MEACHAM INTL AIRPORT 1201 N MAIN ST STE 200 FORT WORTH, TEXAS 76106-2736 15. ASSIGNMENT AND SUBLETTING. VINTAGE FLYING MUSEUM, INC. P.O. BOX 820099 FORT WORTH, TEXAS 76182 Grantee shall not assign, sell, convey, sublet or transfer any of its rights, privileges, duties or interests granted by this Agreement without the advance written consent of Grantor. Any such transaction attempted by Grantee without prior written consent by Grantor shall be null and void. If Grantor consents to any such transaction, the respective assignee or Subgrantee shall consent to comply in writing with all terms and conditions set forth in this Agreement the same as if that party had originally executed this Agreement. 16. LIENS BY GRANTEE. Grantee acknowledges that it has no authority to engage in any act or to make any contract which may create or be the foundation for any lien upon the access property or interest in the property of Grantor. If any such purported lien is created or filed, Grantee, at its sole cost and expense, shall liquidate and discharge the same within thirty (30) days of such creation or filing. Grantee's failure to discharge any such purported lien shall constitute a breach of this Agreement and Grantor may terminate this Agreement immediately. Vintage Flying Museum 6 FW Meacham Airport Access Agreement However, Grantee's financial obligation to Grantor to liquidate and discharge such lien shall continue in effect following termination of this Agreement and until such a time as the lien is discharged. %1[� 11r:� �y�►117_���X Grantee agrees to pay any and all federal, state or local taxes or assessments which may lawfully be levied against Grantee due to Grantee's use or occupancy of the Premises or any improvements or property placed on the Premises by Grantee as a result of its occupancy. 18. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Grantee covenants and agrees that it shall not engage in any unlawful use of the Premises. Grantee further agrees that it shall not permit its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees or invitees to engage in any unlawful use of the Premises and Grantee immediately shall remove from the Premises any person engaging in such unlawful activities. Unlawful use of the Premises by Grantee itself shall constitute n immediate breach of this Agreement. Grantee agrees to comply with all federal, state and local laws; all ordinances, rules and regulations of the City of Fort Worth and the City of Fort Worth Police, Fire and Health Departments; all rules and regulations established by the Federal Aviation Administration and the Director of Airport Systems; and all rules and regulations adopted by the City Council pertaining to the conduct required at airports owned and operated by the City, as such laws, ordinances, rules and regulations exist or may hereafter be amended or adopted (collectively "Laws"). Grantee hereby assumes full responsibility for the violation of any Law by Grantee, its officers, agents, employees, contractors, subcontractors, licensees or invitees and shall pay or fully indemnify the City for any fines or other lawful penalties assessed for any such violation. If Grantor notifies Grantee or any of its officers, agents, employees, contractors, subcontractors, licensees or invitees of any violation of such laws, ordinances, rules or regulations, Grantee shall immediately desist from and correct the violation. 19. NON-DISCRIlVIINATION COVENANT. Grantee, for itself, its personal representatives, successors in interest and assigns, as part of the consideration herein, agrees as a covenant running with the land that no person shall be excluded from participation in or denied the benefits of Grantee's use of the Premises on the basis of race, color, national origin, religion, handicap, sex, sexual orientation or familial status. Grantee further agrees for itself, its personal representatives, successors in interest and assigns that no person shall be excluded from the provision of any services on or in the construction of any improvements or alterations to the Premises on grounds of race, color, national origin, religion, handicap, sex, sexual orientation or familial status. Vintage Flying Museum 7 FW Meacham Airport Access Agreement Grantee agrees to turnish its accommodations and to price its goods and services on a fair and equal basis to all persons. In addition, Grantee covenants and agrees that it will at all times comply with any requirements imposed by or pursuant to Title 49 of the Code of Federal Regulations, Part 21, Non -Discrimination in Federally Assisted Programs of the Department of Transportation and with any amendments to this regulation which may hereafter be enacted. If any claim arises from an alleged violation of this non-discrimination covenant by Grantee, its personal representatives, successors in interest or assigns, Grantee agrees to indemnify Grantor and hold Grantor harmless. 20. LICENSES AND PERMITS. Grantee shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for the operation of its business at the Airport. 21. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City of Fort Worth does not waive or surrender any of its governmental powers. 22. NO WAIVER The failure of Grantor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of Grantor's right to insist upon appropriate performance or to assert any such right on any future occasion. 23. VENUE. Should any action, whether real or asserted, at law or in equity, arise out of the terms of this Agreement my Grantee's operations on the Premises, venue for such action shall lie in state courts in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 24. ATTORNEYS' FEES. In the event there should be a breach or default under any provision of this Agreement and either party SliGi7id retaiii attorneys Gr InC'iii' Gtl'ier eXpenSeS for the CGileCtion Gf rerit, fees or charges, or the enforcement of performance or observances of any covenant, obligation or agreement, Grantor and Grantee agree that each party shall be responsible for its own attorneys' fees. Vintage Flying Museum 8 FW Meacham Airport Access Agreement 25. SEVERABILITY. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Grantor and Grantee shall exercise every reasonable effort to meet their respective obligations as set forth in this Agreement, but shall not be held liable for any delay in or omission of performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of omission, fires, strikes, lockouts, national disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other cause beyond the reasonable control of the parties. 27. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 28. ENTIRETY OF AGREEMENT. This written instrument, including any documents incorporated herein by reference, contains the entire understanding and agreement between Grantor and Grantee, its assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provisions of this Agreement. The terms and conditions of this Agreement shall not be amended unless agreed to in writing by both parties and approved by the City Council of Grantor. [Signature Pages Follow] Vintage Flying Museum 9 FW Meacham Airport Access Agreement IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples on this the 44 n day of t7eCc.4�v\\ e.! , 2008. CITY OF FORT WORTH: By: � r T.M. Higgins Assistant City Manager Date: 6/48 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared T.M. Higgins, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he executed the same as the act of the City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this =- day 2008. ROSELLA BARNES MY COMMISSION EXPIRES March 31, 2009 APPROVED AS TO FORM AND EGALITY: By: Charlene Sanders Assistant City Attorney Contract Authorization: Date Approved: ((� IL 1 I U Vintage Flying Museum FW Meacham Airport Access Agreement Notary Public in and for the State of Texas ATTEST: By: Marty Hend 'x City Secretary 10 VINTAGE FLYING MUSEUM, INC. r ABy: / e9t Name: W.D. Hospers Title: President Date: STATE OF TEXAS § COUNTY OF It I , a§ BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared W.D. Hospers, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of Vintage Flying Museum, Inc. and that s/he executed the same as the act of Vintage Flying Museum, Inc. for the purposes and consideration therein expressed and in the capacity therein stated. GNEN UNDER MY HAND AND SEAL OF OFFICE this _ , day ko�Q. 2008. Public in and for the State of Texas Vintage Flying Museum 11 FW Meacham Airport Access Agreement VINTAGE FLYING MUSEUM, INC. By: %Az qNkA - Name: W.D. Hospers Title: President Date: t STATE OF TEXAS § COUNTY Or wojo�jn § TTEST: c BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared W.D. Hospers, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of Vintage Flying Museum, Inc. and that s/he executed the same as the act of Vintage Flying Museum, Inc. for the purposes and consideration therein expressed and in the capacity therein stated. GNEN UNDER MY HAND AND SEAL OF OFFICE this �o � day Public in and for the State of Texas Vintage Flying Museum 11 FW Meacham Airport Access Agreement .�� a Fir IN IFyIF e Ll ' fl i►._� El Fill IT i IF FiI I jot iIF.- "� t F_ _ naF faa m IIP m. } 'FIXAI .� Flortheat�.3�tt�°fit cW.Vw-. e� El Awl' I IFY e IF f • If Rai FFF ��L M N� € j 0 - fie • � � •r TIP • viAta irs e m f On FAvenue 20 PIP,