HomeMy WebLinkAboutContract 21755-A3CSC No. 21755-A3
FedEx #23-0458-000
AGREEMENT AND RELEASE
This Agreement and Release ("Agreement") is made and entered into this day of
, 2022, ("Effective Date") by and between the City of Fort Worth, a home -rule
municipality organized under the laws of the State of Texas, acting by and through its duly authorized
Assistant City Manager, and Federal Express Corporation, a Delaware Corporation, acting by and
through its duly authorized representatives.
A.
Definitions
In addition to the terms defined in the body of this Agreement, the following terms shall have the
definitions ascribed to them as follows:
"City" means the City of Fort Worth, Texas.
"FEDEX" means Federal Express Corporation, a Delaware Corporation, and its partners,
representatives, members, managing members, officers, managers, proprietors, directors, employees,
representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns,
predecessors, stockholders, administrators, contractors, and related companies.
"Lease" means collectively the Land and Special Facilities Lease Agreement identified under
City Secretary Contract ("CSC") No. 21755, as amended by CSC Nos. 21755-A1 and 21755-A2, between
the City and FEDEX.
"Second Amendment" means the most recent amendment to the Lease, being CSC No. 21755-A2
executed by the parties on March 31, 2021.
"Extended Term" has the meaning provided to it under the Second Amendment beginning on
April 2, 2021 and ending on April 1, 2041.
"Parties" means the City and FEDEX.
B.
Recitals
WHEREAS, the City, as Lessor, and FEDEX, as Lessee, are parties to the Lease which began on
April 1, 1996 for the lease of a certain tract of land and appurtenances situated in Denton County, Texas,
more particularly described in the Lease together with all improvements thereon (the "Leased Premises")
adjacent to Fort Worth Alliance Airport ("Airport");
WHEREAS, the Second Amendment (i) created the Extended Term (ii) amended the rental rates
to reflect a new facility rental rate; (iii) included specified capital investments to the Leased Premises that
FEDEX is required invest as part of the compensation for the Extended Term; (iv) updated the property
description of the Leased Premises; and (v) provided additional provisions to coincide with the Extended
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Term that differ from the original Agreement;
WHEREAS, In accordance with the Second Amendment FEDEX is currently required to pay
City an annual rental rate of Two Million, Twelve Thousand, Four Hundred and Seventy -Four Dollars
and 20/100 Cents ($2,012,474.20) payable in twelve monthly installments during the Extended Term;
WHEREAS, during the Extended Term, payments are to be made for any rent due on or before
the first business day of each calendar month;
WHEREAS, if payments are not made on the due date mentioned above a late penalty charge of
fifteen percent (15%) is to be assessed each month on the entire balance of any overdue rent;
WHEREAS, after execution of the Second Amendment at the beginning of April, 2021, rent
remained unpaid from that point on for a total of five months, until the first payment was made on
October 8, 2021;
WHEREAS, in accordance with the Lease, 15% interest began accruing on the total unpaid
monthly rent each month ("late penalty charges");
WHEREAS, FEDEX is now up to date on all outstanding monthly rent due under the Lease but
has not paid the accrued interest from late penalty charges leaving a total balance of $512,416.51 in
interest owed;
WHEREAS, to settle any claim for damages that the City may have thereunder up to the
Effective Date of this Agreement for late penalty charges accrued under the Lease, City has agreed to
waive the first months late penalty charges under the Lease and consider the first month in which late fees
accrued to be the month of May instead of April, reducing the total balance of late penalty charges to
$377,338.91 in which FEDEX is hereby agreeing to pay through this Agreement; and
WHEREAS, except as may be set forth below in the terms of the Agreement, the Parties hereby
agree that the following terms and conditions shall constitute full and final settlement of any and all issues
associated with late payment of Rent from the beginning of the Extended Term under the Lease until now.
C.
Agreement, Release, & Covenants
NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants set forth
herein and intending to be legally bound hereby, stipulate and agree as follows:
I.
Incorporation of Recitals
1. The recitals set forth above are true and correct and form the basis upon which the Parties
have entered into this Agreement and are incorporated herein by reference.
Settlement Agreement and Release — FEDERAL EXPRESS CORPORATION 2 of 6
IL
Settlement and Release of Claims
1. FEDEX does hereby agree to pay the City Three Hundred and Seventy -Seven
Thousand, Three Hundred and Thirty -Eight and 91/100 Dollars ($377,338.91). This sum represents
the combined agreed settlement amount between the City and for the late penalty charges required under
the Lease.
2. FEDEX will have 60 calendar days from the Effective Date to fulfill its obligations
under this Agreement.
3. In the event FEDEX fails to pay the entire $377,338.91 within 60 calendar days from
the Effective Date of this Agreement, FEDEX shall be liable for paying the entire balance originally owed
to the City from the Lease, consisting of $512,416.51, within 30 calendar days after receiving written
notification by the City.
4. Upon full receipt of all amounts due to the City under this Agreement the Parties hereby
COMPROMISE, SETTLE, RELINQUISH, RELEASE, ACQUIT, and FOREVER DISCHARGE each
other from and against any and all claims, demands, debts, liens, costs, expenses, actions, and causes of
action of whatsoever nature, description of character, whether in tort or in contract, or by virtue of the
common law, statute, or regulation, known or unknown, heretofore existing between the City and
FEDEX, whether known or unknown, which may have accrued or may accrue, on account of, arising
from, or in any manner growing out of, relating to, resulting from, or in any way connected to portions of
the License Agreement pertaining to the payment of the late penalty charges and any related transactions
and occurrences including, but not limited to, any and all claims for exemplary damages, consequential
damages, contractual damages, economic loss, attorney's fees, and any and all damages recoverable under
the laws of the State of Texas and any and all other statutory or common law legal damages, known or
unknown.
5. Notwithstanding anything to the contrary herein, the Lease shall not be affected by this
Agreement and shall remain in full force and effect in accordance with the terms of the Lease.
6. The Parties warrant that no promise or inducement has been offered except as set forth
herein; that this Agreement is executed without reliance upon any statement or representation of any
person or Party's release, or its representatives, concerning the nature and extent of the losses, injuries,
damages, or legal liability therefore; and that the acceptance of the consideration set forth herein is in full
accord and satisfaction of all claims set forth herein.
7. It is understood that this is a compromise of a claim. The Parties desire to compromise
and settle those matters and things set forth herein to avoid the hazard, inconvenience, uncertainty, and
expense of litigation.
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8. The Parties represent and warrant that they are the sole owners of the claims, causes of
actions, and rights -in -action being released herein, and they have not transferred, assigned, or otherwise
encumbered said claims or any part thereto.
9. The Parties hereto shall not assign or transfer their interests and obligations of the
settlement set forth in this Agreement without the prior written consent of the other Party, and any
attempted assignment or transfer of all or any part hereof without such prior written consent shall be void.
IV.
Miscellaneous
1. This instrument contains the entire agreement between the Parties as to the matters
contained herein and the terms of this instrument are contractual and not merely recitals. There are no
other agreements, either written or oral, and this Agreement supersedes all earlier representations,
negotiations, or agreements about this matter. The Parties acknowledge that the covenants, promises, and
representations made herein are binding on, and inure to, the benefit of each of the Parties. As a matter of
clarification, nothing contained herein shall be construed to affect the enforceability or validity of the
License Agreement.
2. The Parties represent that they have consulted, or had the opportunity to consult, an
attorney to seek legal counsel regarding the contents and effects of this Agreement. The Parties further
represent that they have been informed of the content and effect of this instrument and that the instrument
is executed as their act and deed and of their own free will.
3. In the event that any provision of this Agreement is held void, voidable, or
unenforceable, the remaining portions shall remain in full force and effect.
4. If any action, whether real or asserted, at law or in equity, arises on the basis of any
provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County,
Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This
Agreement, including any exhibits, shall be construed in accordance with the laws of the State of Texas.
5. The Parties represent and warrant that they are over the age of eighteen (18) years,
competent to execute this Agreement, have carefully read the foregoing Agreement, and know the
contents thereof and have signed the same of their own free will and with the advice of counsel, if
applicable.
6. This Agreement may be executed in several counterparts, each of which will be deemed
an original, but all of which together will constitute one and the same instrument. A signature received
via facsimile or electronically via email shall be as legally binding for all purposes as an original
signature.
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7. It is understood that by execution of this Agreement, the City does not waive or surrender
any of its governmental powers or immunities.
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective on the
Effective Date.
CITY OF FORT WORTH
Dana BuLcrh %AI�
by:
Dana Burghdoff Web 16, 202311:21 CST)
Dana Burghdoff
Assistant City Manager
Date: Feb 16, 2023
APPROVED AS TO FORM
AND LEGALITY:
Thomas R. Hansen
Assistant City Attorney
ATTESTED BY:
Jannette S. Goodall
City Secretary
M&C No. 23-0091
FEDERAL EXPRESS CORPORATION
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Date: it 13 1 70�3
Approved Legal JPD 01.10.2023
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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 Dana Burghdoff, 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 for
the purpose and consideration therein expressed and in the capacity therein stated.
Feb 17, 2023
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 20_.
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Selena Ala (Feb 17, 2023 14:14 CST)
<PaY PU9 SELENA ALA Notary Public in and for
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BEFORE ME, the undersigned authori a No Public in and for the State of , on this
day personally appeared 9-
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whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act
of FEDERAL EXPRESS CORPORATION, for the purpose and consideration therein expressed and in
the capacity therein stated. I
GIVEN UNDER MY HAND AND SEAL OF OFFICE
ISSION EXOW
Settlement Agreement and Release — FEDERAL EXPRESS CORPORATION 6 of 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.
MI
C�� le&14.1
Erin L. Roden
Administrative Assistant
M&C: 23-0091
Date: February 14, 2023
M&C Review Page 1 of 2
Official site of the City of Fort Worth, Texas
CITY COUNCIL AGENDA F4RT�RTH
Create New From This M&C
REFERENCE **M&C 23- 55AFW FEDEX
DATE: 2/14/2023 NO.: 0091 LOG NAME: AGREEMENT AND
RELEASE
CODE: G TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: (CD 7 / Future CD 10) Authorize the Execution of an Agreement and Release with
Federal Express Corporation Who Will Pay the City of Fort Worth an Amount of
$377,338.91 to Settle all Potential Claims Related to Late Rent Penalties as of Present
Day Under the Land and Special Facilities Lease at Perot Field Fort Worth Alliance Airport
Under City Secretary Contract Number 21755, as Amended
RECOMMENDATION:
It is recommended that the City Council authorize the execution of an Agreement and Release with
Federal Express Corporation who will pay the City of Fort Worth an amount of $377,338.91 to settle all
potential claims related to late rent penalties as of present day under the Land and Special Facilities
Lease at Perot Field Fort Worth Alliance Airport under City Secretary Contract Number 21755, as
Amended.
DISCUSSION:
The purpose of this Mayor and Council Communication (M&C) is to recommend that the City Council
authorize the execution of an Agreement and Release with Federal Express Corporation who will pay
the City of Fort Worth (City) an amount of $377,338.91 to settle all potential claims related to late rent
penalties as of present day under the Land and Special Facilities Lease at Perot Field Fort Worth
Alliance Airport under City Secretary Contract Number 21755, as Amended.
On March 9, 2021, M&C 21-0184 was approved for a Second Amendment to the Land and Special
Facilities Lease Agreement (Lease) by and between Federal Express Corporation (FedEx) and the
City, City Secretary Contract No. 21755-A2. Initial annual rental amount of this Lease is
$2,012,474.20, which is payable in twelve (12) equal monthly installments of $167,706.18 and are to
be made from FedEx to the City. The purpose of the amendment was to extend the term of the Lease
for twenty (20) years, establish a new ground and facilities lease rate, and include specified capital
investments to be made by FedEx to the leased premises.
This Lease was signed by both parties on March 31, 2021 and the initial start date to receive the first
monthly installment from FedEx was to begin April 2, 2021. FedEx was not able to implement
their accounts payable process and coordinate with the City's Financial Management Services (FMS)
Treasury Division to assure proper receipt of the FedEx monthly lease payments until October of
2021. FedEx has now made the required adjustments to their accounts payable processes and is
currently up to date on all payments as required under the Lease excluding accrued late fees covering
the period from April to September 2021 in the amount of $512,416.51.
Recognizing that the execution of the Lease and the initial start date only provided a few days to make
payment to the City at the beginning of the Lease and did not provide sufficient time for FedEx to
initiate the accounts payable process during that first month, the Aviation Department requests that
City Council Approve this Agreement and Release, allowing the City and FedEx to settle on an
amount of late fees due for $377,338.91, which would be the amount of late fees owed if calculated
starting in May of 2021 instead of April of 2021. FedEx has agreed to pay the late fee amount due of
$377,338.91 to settle any claim for damages that the City may have thereunder up to the effective
date of this Agreement and Release for late fees due under the Lease.
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=30717&councildate=2/14/2023 2/15/2023
M&C Review Page 2 of 2
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon approval of the above recommendation, funds will be
deposited into the Municipal Airport Fund and the balance due eliminated as authorized. The Aviation
Department and Financial Management Services are responsible for the collection and deposit of
funds due to the City.
TO
Fund Department Account Project Program Activity Budget I Reference # I Amount
ID I I ID Year Chartfield 2
FROM
Fund Department Account Project Program Activity Budget Reference # Amount
ID I I ID I I Year Chartfield 2
Submitted for City Manager's Office by:
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
Dana Burghdoff (8018)
Roger Venables (5402)
Ricardo Barcelo (5403)
Barbara Goodwin (5415)
55AFW FEDEX LATE FEE WAIVER FID table.XISX (CFW Internal)
http://apps.cfwnet.org/council_packet/me_review.asp?ID=30717&councildate=2/14/2023 2/15/2023