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HomeMy WebLinkAboutContract 55305 Execution Version LICENSE AGREEMENT CSC No. 55305 THIS License Agreement ("Agreement") is entered into this 'Oth day of February, 2021 ("Effective Date) by and between the City of Fort Worth, Texas,a home-rule municipal corporation of the State of Texas("City"),and Gulfstream Aerospace Services Corporation("Licensee"). 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, Licensee has requested, and the City agrees to grant to Licensee, the non-exclusive use of a portion of the apron on the Property in accordance with the terms and conditions of this Agreement for the right to conduct periodic aircraft jet engine runs. WITNESSETH: 1. Premises and Use. City hereby grants to Licensee a license for non-exclusive use of a portion of the apron ("Premises") as described in Exhibit "A", located at the Alliance Maintenance Facility, in accordance with City of Fort Worth ordinance (4 3-123 AIRCRAFT NOISE- Ord. 22838-08-2017, 4 2, passed 8-I5-2017), or as amended. Under no circumstances during the Agreement will Licensee 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, notwithstanding anything in this Agreement to the contrary,the presence of jet engine fuel,jet engine oil and hydraulic fluids used for periodic jet engine runs on the Premises, in compliance with applicable laws, will not be deemed a violation of this Agreement. Licensee shall not install signs, advertising media, and lettering on the Premises without prior written approval of City. The City,through its Property Manager, shall be responsible to address any operational conflicts with the Licensee on the Premises. 2. Condition of Premises. Licensee's use 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) Licensee waives any and all defects in and to the Premises, its appurtenances, and in all the appurtenances thereto. Further, Licensee 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 Licensee, Licensee's 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,unless caused by the negligence or willful misconduct of City. 3. Alternate Location. If future needs arise that require an alternate location for the Licensee's engine runs, the City, through its Property Manager will find and provide the alternate location within the Alliance Airport and the operations at the alternative location shall be conducted in accordance with City of Fort Worth ordinance (4 3-123 AIRCRAFT NOISE- Ord. 22838-08-2017,4 2, passed 8-I5-2017), or as amended. 4. License Term: Subject to the earlier termination as hereinafter set forth, this Agreement shall be coterminous with the executed ground lease at the Alliance Airport between Alliance Center GA No. 21, LLC, and Licensee for an initial period of forty(40)years, which initial term may be extended per the terms of the ground lease(the"License Term"). License Agreement between the City of Fort Worth and OFFICIAL RECORD Gulfstream Aerospace Corporation CITY SECRETARY FT.WORTH, TX - I - Execution Version 5. License Fee.Due to the limited amount of time the Licensee will use the Premises,the City and Licensee agree no License Fee will be required for use of the Premises. 6. No Services. City shall not furnish Licensee with any utilities, cleaning, lighting, security, or any other items or services for the Premises. All costs incurred by Licensee while using the Premises shall be at Licensee's sole cost and expense. If Licensee wants or needs any utilities,cleaning, lighting, security, or any other items or services while occupying the Premises, then Licensee 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 Licensee's sole cost. 7. Alterations, Additions, Improvements, and Signage. Licensee shall make no alterations on or additions to,the Premises without the prior written consent of City.Any alterations made to the Premises by the Licensee shall be at Licensee'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, Licensee will make changes and/or remove the alteration to remedy said interference within five (5) days of notice from City. All alterations, additions and improvements made to 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. Licensee may, at its sole option and expense, remove any Licensee alterations at any time during the License Term with City approval. At the termination of this Agreement, whether by lapse of time or otherwise, Licensee shall (i) deliver the Premises to City in as good a condition as the same was as of the date of the taking of possession thereof by Licensee, subject only to ordinary wear and tear, damage not caused by Licensee, its agents, employees or invitees, and damage caused by casualty or condemnation and (ii) upon City's=request, remove any alterations and make any repairs to the Premises for damage caused by Licensee as needed in order to comply with the provisions of Section 13 below. 8. Indemnity. (a) LICENSEE SHALL AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS CITY, CITY'S OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES (COLLECTIVELY, "1NDEMNITEES") 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 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 PREMISES BY LICENSEE, ITS EMPLOYEES, AGENTS AND LESSEES OR (2) BY REASON OF ANY OTHER CLAIM WHATSOEVER OF ANY PERSON OR PARTY OCCASIONED BY ANY ACT OR OMISSION ON THE PART OF LICENSEE OR ANY LESSEE, EMPLOYEE, DIRECTOR, OFFICER, SERVANT, OR CONTRACTOR OF LICENSEE RELATED TO ITS ACTIONS REGARDING THIS AGREEMENT OR (3) BY ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF LICENSEE 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,LICENSEE,ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT LICENSEE'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. THE PROVISIONS OF THIS PARAGRAPH SHALL License Agreement between the City of Fort Worth and Gulfstream Aerospace Corporation -2- Execution Version APPLY TO ALL ACTIVITIES OF LICENSEE WITH RESPECT TO THE USE AND OCCUPANCY OF THE PREMISES DURING THE LICENSE TERM. 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) WHENEVER EITHER PARTY MAY SEEK OR CLAIM DAMAGES AGAINST THE OTHER PARTY (WHETHER BY REASON OF A BREACH OF THIS AGREEMENT BY SUCH PARTY, FOR MISREPRESENTATION OR BREACH OF REPRESENTATIONS, WARRANTIES, COVENANTS OR OTHERWISE), NEITHER CITY NOR LICENSEE SHALL SEEK (AND HEREBY WAIVE ANY RIGHT TO SEEK), NOR SHALL THERE BE AWARDED OR GRANTED BY ANY COURT, ARBITRATOR, OR OTHER ADJUDICATOR, ANY SPECULATIVE, CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES, WHETHER SUCH BREACH SHALL BE WILLFUL, KNOWING, INTENTIONAL, DELIBERATE OR OTHERWISE. THE PARTIES INTEND THAT ANY DAMAGES AWARDED TO EITHER PARTY SHALL BE LIMITED TO ACTUAL, DIRECT DAMAGES SUSTAINED BY THE AGGRIEVED PARTY. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF PROFITS SUFFERED OR CLAIMED TO HAVE BEEN SUFFERED BY THE OTHER. (c) 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 8, 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. 9. Waiver of Liability. ALL VEHICLES AND ALL PERSONAL PROPERTY WITHIN VEHICLES USING THE PREMISES, WHETHER PURSUANT TO THIS AGREEMENT OR OTHERWISE SHALL BE AT THE RISK OF LICENSEE ONLY, AND NO 1NDEMNITEES SHALL BE LIABLE FOR ANY LOSS OR THEFT OF OR DAMAGE TO PROPERTY OF LICENSEE, 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. 10. Environmental Responsibility. (a) Environmental Procedures and Remediation. Licensee shall not,and its employees,agents, or contractors shall not Release(as defined herein)or cause the Release of any Hazardous Material(defined herein) into or onto the Premises, including but not limited to, the air, surface or subsurface soil or water such that it causes an Environmental Condition(defined herein)or violates any Environmental Law(defined herein). In the event of such a Release on the Premises or the discovery by Licensee of the presence of Hazardous Materials to the environment,air, surface or subsurface soil or water on the Premises at or above levels which cause an Environmental Condition or a violation of Environmental Law, Licensee shall promptly notify City of such Release,discovery of Hazardous Materials,or violation of Environmental Law. If City, at any time during the Term of the Agreement or any extension thereof, has good reason to suspect that there has been a Release, there is an imminent threat of a Release, or that Hazardous Material is being License Agreement between the City of Fort Worth and Gulfstream Aerospace Corporation -3 - Execution Version stored, handled, disposed of or otherwise managed onsite in violation of Environmental Laws or the requirements of this Agreement, then City may, after written communication of those reasons to Licensee, conduct environmental testing provided City shall make reasonable efforts to not interfere with Licensee's operation or use of the Premises. City and Licensee shall promptly notify the applicable governmental authority(s) of such Release, if so required under applicable Environmental Laws. The party with responsibility under this Agreement for such Release shall promptly hire an environmental consultant, after giving the other party reasonable opportunity to object, to investigate and delineate the cause, nature, and extent of any such Release or presence of Hazardous Materials. Licensee and City shall consult in good faith and diligently undertake and complete to City's reasonable satisfaction the remediation of any Hazardous Material at or originating from the Premises arising out of Licensee's operations at the Premises,the presence of which constitutes an Environmental Condition or otherwise violates an applicable Environmental Law. Remediation, if required, shall be conducted in a timely and professional manner by the responsible party to those levels accepted by all then applicable Environmental Laws governing the Release. Notwithstanding the forgoing or anything else in this Agreement to the contrary,to the extent any Environmental Condition, Release or violation of any Environmental Law relates to(i)City's and/or a previous or adjoining or adjacent owner's,tenant's or occupant's(other than Licensee's)activities or operations, including without limitation, ownership or operation of the Premises or any City-owned adjoining property,(ii)a Release occurring prior to the Effective Date of this Agreement unless caused by Licensee, its employees, agents, or contractors, or (iii) a Release occurring on or under, or migration of Hazardous Material from, property other than the Premises, unless caused by Licensee, its employees, agents, or contractors, Licensee shall have no responsibility whatsoever for any such Release or violation of Environmental Law. As used herein,the term "Hazardous Material" means pollutants, contaminants, toxic or hazardous wastes, or any other substances, the presence or use of which is regulated, restricted or prohibited by any"Environmental Law,"which term shall mean any federal,state or local law,ordinance or other statute of a governmental or quasi-governmental authority relating to pollution, protection of the environment,and/or the protection and safety of employees. As used herein, the term "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of any substance into the environment for which Release is regulated under and violates any Environmental Laws. As used herein, the term "Environmental Condition" means the presence of any Hazardous Material in the environment, air, surface or subsurface soil, or ground water at a level exceeding applicable Environmental Laws governing the remediation of the Premises to applicable standards protective of human health and the environment. (b). Environmental Indemnification. LICENSEE AGREES TO INDEMNIFY, DEFEND, AND HOLD CITY AND ITS OFFICERS, CONTRACTORS, DIRECTORS, EMPLOYEES, AND AGENTS HARMLESS FROM ANY CLAIMS, JUDGMENTS, DAMAGES, FINES, PENALTIES, COSTS, LIABILITIES, OR LOSS, INCLUDING REASONABLE ATTORNEY'S FEES, REASONABLE CONSULTANT'S FEES,AND REASONABLE EXPERT FEES(COLLECTIVELY,"ENVIRONMENTAL DAMAGES"),WHICH ARISE DURING OR AFTER THE TERM,TO THE EXTENT SUCH VIOLATION OF ENVIRONMENTAL LAWS OR THE PRESENCE OF HAZARDOUS MATERIALS IN THE ENVIRONMENT, THE AIR, SOIL, GROUNDWATER, OR SOIL VAPOR ON OR UNDER THE PREMISES IS CAUSED BY LICENSEE, ITS EMPLOYEES, AGENTS OR CONTRACTORS, OR LICENSEE'S OPERATION OR OCCUPANCY OF THE PREMISES DURING THE TERM OF THIS AGREEMENT (COLLECTIVELY, "HAZARDOUS MATERIAL LIABILITIES"). Without limiting the generality of the foregoing,this environmental indemnification shall survive the expiration of this Agreement. (c.) No Waiver. Notwithstanding any other provision of this Agreement,City does not waive any of its immunities, rights, or responsibilities (including those with regard to compliance and enforcement of City ordinances including but not limited to Chapter 12.5, "Environmental Protection and Compliance," of the Code of the City of Fort Worth), nor any of its obligations or contracts with other governmental entities License Agreement between the City of Fort Worth and Gulfstream Aerospace Corporation -4- Execution Version as they relate to protection of the environment, including contracts with the Texas Commission on Environmental Quality. (d.) Notices and Copies. Licensee shall deliver to City, as soon as reasonably possible after receipt, any written notices that Licensee actually receives indicating that Licensee is or may be violating any Environmental Laws which are issued by any federal, state, or local environmental regulatory agency. Licensee shall provide City with copies of(i) any environmental applications for permits or modifications contemporaneous with submission to such agency and(ii)any environmental permits or amendments prior to commencing any construction, modification, or operations under such permits. 11. Insurance. (a) Licensee 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 use, occupancy,maintenance,existence or location of the Premises. Licensee 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, Licensee shall be responsible for all insurance to any personal property of Licensee or in Licensee's care,custody or control. Licensee 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 Licensee in lieu of insurance. (b) City agrees to maintain insurance(or to self-insure)on the Premises during this Agreement in amounts sufficient to protect property and persons,but not including Licensee's personal property. 12. Abandoned Property. Licensee' personal property not promptly removed by Licensee from the Premises 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 Licensee to City. Fixtures attached to the Premises become the property of City, if not removed as required herein. 13. Assignment and Subletting. Licensee shall not assign this Agreement, or any right of Licensee under this Agreement, or sublet the Premises, 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 Licensee's contractors and agents may use the Premises in accordance with the terms and provisions hereof. 14. Damage to Premises or Property of City. If, at any time during the License Term, by the acts or omissions of the Licensee, its employees, agents, or licensees, the Premises, or any property therein is damaged or destroyed,Licensee shall be obligated to pay,on demand,all costs to repair same,to the extent caused by Licensee, its employees, agents, or licensees. 15. 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 Licensee in accordance with and subject to the covenants, restrictions and limitations set forth herein. Licensee 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 required for Licensee's use of the Premises, and comply with all applicable laws, License Agreement between the City of Fort Worth and Gulfstream Aerospace Corporation -5 - Execution Version 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 Licensee, Licensee must notify the Property Manager immediately and is responsible for all required clean up and repairs to the extent arising from the spill. 16. 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 Licensee. 17. Default and Termination. (a) Licensee's Default. If Licensee shall fail to perform or observe any of its obligations hereunder then City may terminate this Agreement by giving Licensee twenty(20)days prior written notice thereof. If Licensee fails to cure such default within fifteen (15) days of receipt of City's default notice then this Agreement and all interest of Licensee hereunder shall automatically terminate, but if Licensee does so cure such default within said fifteen(15)days,City's termination notice will be deemed withdrawn. Such rights of City in the case of a default by Licensee 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, Licensee 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 of notice then Licensee may terminate this Agreement. Such rights of Licensee in the case of a default by City hereunder are not exclusive, but are cumulative of all other rights Licensee 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 Option. Licensee or City may terminate this Agreement for any reason, or no reason at all, by providing the other party with 90 days' prior written notice. 18. 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 Licensee: City of Fort Worth Gulfstream Aerospace Services Corporation Lease Management 500 Gulfstream Road, M/S E-02 Property Management Department Savannah, Georgia 31407 900 Monroe,Suite 400 Attn: James Whalen, Director Real Estate Fort Worth,TX 76102 Email:james.whalen@gulfstream.com License Agreement between the City of Fort Worth and Gulfstream Aerospace Corporation -6 - Execution Version With a copy to: With a copy to: City Attorney Gulfstream Aerospace Corporation City of Fort Worth 500 Gulfstream Road, M/S E-02 200 Texas Street Savannah, Georgia 31407 Fort Worth,TX 76102 Attn: Kandice Harvey, Sr. Contracts Manager Email: kandice.harvey@gulfstream.com With a copy to: Jason Long Hillwood Properties 9800 Hillwood Parkway, Suite 300 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 party. 19. Audit. Intentionally deleted. 20. Entire Agreement.This Agreement constitutes the entire agreement between City and Licensee 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. 21. Amendment. This Agreement may not be amended, modified, extended, or supplemented except by written instrument executed by both City and Licensee. 22. Counterparts. This Agreement may be executed in several counterparts, including by electronic signature,each of which shall be deemed an original,but all of which shall constitute but one and the same document. [SIGNATURE PAGE TO FOLLOW] License Agreement between the City of Fort Worth and Gulfstream Aerospace Corporation -7- In witness whereof,the parties hereto have caused this Lease to be executed as the day and year first above set forth. CITY: LICENSEE: CITY OF FORT WORTH GULFSTREAM AEROSPACE SERVICES CORPORATIO By: Dana Bu,ghd.ff(eA 16,2D 14� 1JD : Dana Burghdoff Assistant City Manager Date: Feb 16,2021 Title: ,�5'�an-{- c,2{r,�u Date: 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. Name:Marl Brown(Feb 10,202116:33 CST) Title: Lease Manager,City of Fort Worth Property Mgmt.Dept. Date: Feb 10,2021 APPROVED AS TO FORM AND LEGALITY: R'M9f A�'.' IjMfe;r By: Thomas R.Hansen(Feb 16,202114:52 CST) Learrrr 6ttzman Thomas Royce Hansen Deputy-fifty-Attorney Assistant City Attorney Date: Feb 16,2021 ATTEST: C� FORr��a By Frio00 '0 Mary Kayser P�o odd ° d City Secretary d0 0° _� 000 14 Date: Feb 17,2021 a ICY °OO000°o° , — >1n�EXp aq Form 1295: Not required Contract Authorization: M&C: Not required License Agreement between the City of Fort Worth and OFFICIAL RECORD Gulfstream CITY SECRETARY FT.WORTH, TX - 8 - i _ r Exhibit A— Fort Worth Maintenance Base i Aircraft Engine Run Testing Location - -- - Im _ Engine Run Location 1 I- i,w A,,ti,ii n, :x,und,,", Imp, M4 ' r .:.02o coopie Ar WIT -• % .y ` '�• �..psi, � -� � , AA .�. AIL