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HomeMy WebLinkAboutContract 52653 CITY SECRETARY 0 coos LICENSE AGREEMENT This Liccnsc Agreement ("Agreement") is entered into this August 2, 2019 by and between the City of Fort Worth, Texas, a home-rule municipal corporation of the State of Texas ("City'), and Amazon.com Services, Inc., 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("Properly"). 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 Property in accordance with the terms and conditions of this Agreement. W ITNESSETH: 1. Premises. City hereby grants Tenant the cxclusivc license to use those certain portions of the Property as shown as `Area 1" and "Area 2" in Exhibit "A" (collectively, the "Premises") located at the Alliance Maintenance facility for training activities, which may include parking of aircraft no larger than a B-767,Ground Service Equipment handling,aircraft operation(including loading and unloading),parking of vehicles, and ancillary uses in compliance with applicable laws. . Under no circumstances during the Agreement will "Tenant use or cause to be used on the Premises any hazardous or toxic substances or materials,or store or dispose of any such substances or materials on the Premises;provided that the presence of fuel, engine oil and hydraulic fluids used for or stored in equipment on the Premises will not be deemed a violation of this Section. Tenant shall not install signs, advertising media, and lettering on the Premises without prior written approval of City. Tenant will have access to the Premises 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 Premises: provided that City may not interfere with Tenant's use of the Premises in accordance with this Agreement. 2. Condition of Premises.Tenant taking possession of the Premises shall be conclusive evidence that (a) the Premises are suitable for the purposes and uses for which same are licensed; and (b) Tenant waives any and all defects in and to the Premises, its appurtenances,and in all the appurtenances thereto. Further,Tenant takes the Premises 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 Premises 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 2 months, commencing on August 1, 2019 and expiring on September 30, 2019. 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: Tcnant shall have the option to automatically extend the License Term License Agreement bet%vccn the City of Fort Worth and Amazon.com Services F,,)FNCIAL RECORD - 1 - CITY SECRETARY FT. WORTH,TX for three (3)additional successive terms of one(1) months each after the primary term (tile "Extension Term") upon written notice to the City. Upon extension, this Agreement shall continue in full force and effect for the duration of each Extension "Term. upon the same terms and conditions as are contained herein. (c) Holdover: Tenant may occupy the Premises 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 part'.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$15.510 per month to use the Premises during the License Tcrm. Fee is duc to City on or before the P' of each month via direct deposit into the Alliance Maintenance Fund bank account, the infiOrnlation for which shall be provided by City to Tenant promptly alter the Lffective 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 duc 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 Sei-vices.City shall not furnish Tenant with any utilities,cleaning, lighting, security,or any other items or services for the Premises. All operating costs of Premises shall be Tenant' sole cost and expense. If Tenant Nvants or needs any utilities, cleaning, lighting, security, or any other items or services while occupying the Premises beyond those currently available at the Premises, 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 Premises, 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, without the prior approval of the City and at Tenant's sole cost. If electrical service is not available at the Premises for any period of fifteen (15) days or longer during the License Term, Tenant may terminate this Agreement upon written notice to City. G. Alterations, Additions, Improvements, mud Signage. Tenant shall make no alterations on or additions to, the Premises without the prior written consent of City, including but not limited to installation of fencing, lighting, and gates on or around the Premises. Any alterations made to the Premises 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,provided that if such change or removal cannot be completed within 5 days Tenant will not be in default hereunder if Tenant commences such change or removal and diligently prosecutes such change or removal to completion. All alterations,additions and improvements made to or fixtures or other improvements placed in or upon the Premises shall be deemed a part of the Premises 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 Premises 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 Premises to City in its then"as-is"condition, but in no worse condition than 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) make any repairs to the Premises as needed in order to comply with the provisions of Section 13 below. License Agreement between the City of Fort Worth and Amazon.com Services -2- 7. Indemnity. (a) TENANT SHALL AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS CITY, CITY'S OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES (COLLECTIVELY, "INDENINITEES") FOR, FROM AND AGAINST ANY AND AI_LLIABILITIF.S, DAMAGES, LOSSES:,LENS,CAUSES OF ACTION, SUITS,JUDGMENTS AND EXPENSES, (INCLUDING REASONABLE COURT COSTS, REASONABLE ATTORNEYS' FFFS AND REASONAI31.1? COSTS OF INVESTIGATION), OF ANY NATURE, KIND OR DESCRIPTION RESULTING FROM CLAIMS BY THIRD PARTIES TO THE EXTENT ARISING OR ALLF.GED TO ARISE BY REASON OF(1) INJURY TO Olt DEATH OF ANY PERSON OR DAMAGE.TO OR LOSS OF PROPERTY OCCURRING IN OR ABOUT THE PREMISES AND RELATING TO TT-IE USE OR OCCUPANCY OF THE, PREMISES BY TENANT, ITS EMPLOYEES, AGENT'S AND LESSEES, OR (2) ANY ACT OR OMISSION OCCURRING IN OR ABOUT THE: PREMISES AND ON THE PART OF TENANT OR ANY LESSEE;, EMPLOYEE., DIREC FOR, OFFICER, SERVANT, OR CONTRACTOR OF TENANT, OR (3) ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF TENANT UNDER THIS AGREEMENT (EACH A —LIABILITY" AND COLLECTIVELY, "LIABILITIES"), EXCEPT TO THE EXTENT ARISING OUT OF OR RESULTING FROM THE NEGLIGENCE OR Wll,l,l't1L,MISCONDUCT OF ANY INDEMNITEE. IF ANY ACTION OR PROCEEDING SHALL BE BROUGIIT BY OR AGAINST ANY INDEMNITEE IN CONNECTION WITH ANY SUCH LIABILITY, TENANT, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT TENANT'S 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 USL? AND OCCUPANCY OF THE PREMISES, WHETHER OCCURRING BEFORE OR AFTER THE COMMENCEMENT DATE OF THE LICENSE TERM AND BEFORE OR AFTER THE TERMINATION OF THIS AGREEMENT. THIS INDEMNIFICATION SHALT. 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 AGREE[) 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 REQUIREMENT'S OF SUCII LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SIIALL CONTINUE; IN FULL FORCE AND EFFECT. 8. Waiver of Liability. ALL VEHICLES AND ALL PERSONAL PROPERTY WITHIN VEHICLES USING THE PREMISES, WHETHER PURSUANT TO THIS AGREEMENT OR OTHERWISE? SI IALL BE AT TIIE 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 CASUAL.TY, THEFT OR ANY OTIFF,R CAUSE OF WHATSOEVER NATURE, UNLESS DUE IN WHOLE; OR IN PART TO TI IE 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 License Agreement between the City of Fort Worth and Aniazon.com Services -3 - or location of the Premises. 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. Surrender; Abandoned Property. Upon expiration or earlier termination of' the License Term,Tenant will remove Tenant's properly and surrender the Premises in its then"as-is"condition, but in no worse condition than as of the commencement date of the License Term, ordinary wear and tear and casualty excepted. Tenant's personal property not promptly removed by Tenant from the Premises within ten (10)days aficr 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. I'iXtUreS attached to the Premises 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 Premises, for consideration or no consideration, whether voluntarily, by operation of law,or otherwise, without City's prior approval and any attempt to do so shall be void, all provided that "tenant's employees, contractors and agents may use the Premises in accordance with the terms and provisions hereof. 12. Damage to Premises or Property of City. It; at any time during the License 'term, by the acts or omissions of the Tenant, its employees,agents, or licensees,the Premises,or any property therein is damaged or destroyed, "Tenant shall be obligated to pay, on demand, all costs to repair same. 13. Repairs and Maintenance.City has no obligation to make repairs of any sort to the Premises, City's sole obligation hereunder being to make the Premises 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 Premises in a neat, clean, careful, safe, and proper manner including but not limited to any snow and/or ice removal,trash 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 Premises 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 10 days' prior written notice to Tenant. 15. Default and 'termination. (a) Tenant' Default. If Tenant shall fail to cure any default in the performance or observation License Agreement between the City of Fort Worth and Amazon.com Services -4- any of its obligations hereunder within fifteen (15) days after receipt of notice of such default, then Cit1• may terminate this Agreement by giving Tenant five(5)days prior written notice of such termination. I Jport any such termination pursuant to this Section, the Agreement and all interest of Tenant hereunder shall terminate, but if'Tenant does so cure such default within said 5 days, City's termination notice will be deemed withdrawn. Such rights of City in the case of a default by Tcnant hereunder are not exclusive, but are cunnilative 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 Snell default within twenty (20) clays of receipt of 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) Tenuination 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 ptu•poSeS of notice,the addresses of the parties shall,unless changed as hereinafter provided, be as follows: To City: To Tenant: City of Fort Worth c/o Amazon.com, Inc. Lease Management Attention: Real Estate Manager(NA Ops: KAFW) Property Management Department Attention: General Counsel (Real Estate (NA Ops): 900 Monroe,Suite 400 KAFW) Foil Worth,TX 76102 Attention: NA Ops Asset Management(KAFW) With a copy to: Each with an address of: City Attorney 410 Terry Ave.N City of Fort Worth Seattle, WA 98109-5210 200 Texas Sheet Fort Worth.TX 76102 With email copies to: naops-proyntgntt a amazon.com; OpsRELegalnotice(i,)antazon.com; na-realestate@amazon.com; naops-rent( amazon.com 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, Poirem and Duties of the Delmi-fl gent of Internal Aw il, 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, provided that (a) any such audit shall occur onsite at the License Agreement between the City of Fort Worth and Amazon,com Services -5 - Premises, (b) City shall not (and shall not permit others) to copy any books, records or other documents reviewed during such audit, and (c) City shall comply with the provisions of Section 21 herein. 18. Entire Agreement. ']'his Agreement constitutes the entire agreement between City and Tenant relating to the use of the Premises 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 connterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same document. 21. Confidentiality; Public Disclosure Request. City will not use Tenant's name or logo relating to this Agreement or Tenant's use of the Premises. Upon C'ity's receipt of public records request for disclosure of this Agreement or any information specifically labeled as "confidential" or that would reasonably be presumed to be confidential, including the terms and conditions of this Agreement and all nonpublic information relating to Tenant's technology, operations, customers, business plans, promotional and marketing activities, finances, and other business affairs. City will (a) immediately give Tenant prior notice (including email notice to foiaC,�amazon.com) in order to allow Tenant to seek a protective order or other appropriate remedy; (b) disclose information only to the extent required by applicable laws; and (c) use reasonable efforts to obtain confidential treatment for any information that is so disclosed. 22. LIMITATION OF LIABILITIES. NEITHER PARTY WILL BE LIABLE UNDER ANY CIRCUMSTANCES FOR CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOST OPPORTUNITIES OR PROFITS)OR PUNITIVE DAMAGES. (SIGNATURES APPEAR ON FOLLOWING PAGES) License Agreement between the City of Fort Worth and Amazon.com Services -6- n witness whereof. the parties hereto have caused this Lease to be executed with the effective date as L, , 2019 CITY: TENANT: CITY ZOFOR&OII AMAZON.COM SERVICES, INC. By: 13y: �— Kevin Asj712 Cit Manager Nanle: Ken Loner Datc: � Title: Authorized Representative Date: Am-yust 2,2019 CONTRACT COMPLIANCE MANAGER By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensUriilg all periiorinance and reporting requi ennents. /� O Name: ��%u� 1/1 Title: e&V �GL�iy/ 017-Y Of- /W/r v✓'�/Q�y Date: A�t;, !J/ APPRO ED AS TO FORM AND LEGALITY: By: Leann Guzman Senior Assistant City Attorney Datc: qlb�10 ATTES By: � M ry e '� City leoretary Date: Form 1295: Not required Contract Authorization: M&C: Not required License Agreement between the City of Fort Worth and Amazon.com Services OFFICIAL. RECORD CITY SECRETARY -7- FT. WORTH,TX Exhibit«A f, Premises 7T 77 Ar IM 4�S gels f 1 .. ■ r -S_