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HomeMy WebLinkAboutContract 56770 CSC No.56770 LICENSE AGREEMENT This License Agreement("Agreement") is entered into this , 2021 by and between the City of Fort Worth,Texas,a home-rule municipal corporation of the7 State of Texas("City"),and Eclipse Aerospace, Incorporated, a foreign for-profit corporation("Licensee"). WHEREAS, City owns a certain piece of property known as the Structures Building#16 located at 2070 Eagle Parkway, Fort Worth, Texas, 76177 at the Alliance Maintenance Facility ("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 exclusive use of approximately 42,240 square feet of the Property in accordance with the terms and conditions of this Agreement. WITNESSETH: 1. Premises. City hereby grants Licensee the exclusive license to use those certain portions of the Property as shown in Exhibit "A" (collectively, the "Premises") located at the Alliance Maintenance Facility for aircraft parts storage.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 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. Licensee shall not install signs, advertising media, and lettering on the Premises without prior written approval of City. Licensee will have access to the Premises 24 hours a day, 7 days a week. City agrees to provide Licensee with reasonable prior notice in the event City desires to access the Premises; provided that City may not interfere with Licensee's use of the Premises in accordance with this Agreement. 2. Parking. Licensee shall also have the non-exclusive use of no less than twenty five (25) parking spaces as delineated on the Exhibit"A"Aerial View("Licensee Parking Area")for use by Licensee and any sub-licensee of Licensee and their respective employees,invitees and licensees pursuant to Section 3_3 below, and Landlord shall ensure that the Licensee Parking Spaces include the greater of the minimum number of handicapped spaces required by law or such number of handicapped spaces as exist as of the Effective Date. 3. Condition of Premises. Licensee 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) 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. 4. Term. Subject to the earlier termination as hereinafter set forth,this Agreement shall be for a term(" Initial Term") of thirty(30)days, commencing on December 1, 2021 and expiring on December 30,2021. This Agreement shall renew automatically for up to two(2)additional 30-day periods("Renewal Terms") subject to earlier termination identified herein. This Agreement will expire upon execution of a License Agreement between the City of Fort Worth and Eclipse Aerospace, Incorporated OFFICIAL RECORD CITY SECRETARY - 1 ' FT.WORTH, TX lease between City and Licensee or at the end of the second 30-day renewal,whichever is sooner. 5. Use. Licensee may use the Premises for the sole purpose of aircraft parts storage (the "Permitted Use")and for no other use without the City's prior written consent,which may be withheld for any reason. Licensee's use of the License Area for any purpose other than for the Permitted Use shall be deemed a material breach and default under this Agreement. 6. License Fee;Time of essence. Licensee will pay City a license fee of$2.50 per square foot to be paid monthly at a rate of$8,800.00 per month to use the Premises during the License Term. Fee is due to City on or before the I" of each month via direct deposit into the Alliance Maintenance Fund bank account, the information for which shall be provided by City to Licensee promptly after the Effective Date hereof.If the payment of fees is not received by City as provided herein,then after ten(10)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. 7. No Services. City shall not furnish Licensee with any utilities, cleaning, lighting, security, or any other items or services for the Premises.All operating costs of Premises shall be Licensee' sole cost and expense. If Licensee wants 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 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. Notwithstanding the foregoing, City acknowledges and agrees that Licensee may desire electrical service at the Premises, and Licensee 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, except in the case where the utility company requires an easement from the City and at Licensee'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,Licensee may terminate this Agreement upon written notice to City. 8. 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 Licensees 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 5 days of notice from City, provided that if such change or removal cannot be completed within 5 days Licensee will not be in default hereunder if Licensee 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. 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 shalt(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 Licensee, 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. 9. Indemnity. (a) LICENSEE SHALL AND DOES AGREE TO INDEMNIFY, PROTECT, License Agreement between the City of Fort Worth and Eclipse Aerospace,Incorporated -2 - DEFEND AND HOLD HARMLESS CITY, CITY'S OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL 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 RESULTING FROM CLAIMS BY THIRD PARTIES TO THE EXTENT ARISING OR ALLEGED TO ARISE BY REASON OF (1) INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY OCCURRING IN OR ABOUT THE PREMISES AND RELATING TO THE USE OR OCCUPANCY OF THE PREMISES BY LICENSEE, ITS EMPLOYEES,AGENTS AND LESSEES,OR (2) ANY ACT OR OMISSION OCCURRING IN OR ABOUT THE PREMISES AND ON THE PART OF LICENSEE OR ANY LESSEE, EMPLOYEE, DIRECTOR, OFFICER, SERVANT, OR CONTRACTOR OF LICENSEE, OR (3) ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF LICENSEE UNDER THIS AGREEMENT (EACH A "LIABILITY" AND 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, 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 APPLY TO ALL ACTIVITIES OF LICENSEE WITH RESPECT TO THE USE 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 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. 10. Waiver of Liability. ALL AIRCRAFT, VEHICLES AND ALL PERSONAL PROPERTY WITHIN AIRCRAFT AND VEHICLES USING THE PREMISES, WHETHER PURSUANT TO THIS AGREEMENT OR OTHERWISE SHALL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEES 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. 11. Licensee Insurance. During the Term, Licensee, at its expense, shall procure and maintain in connection with its use of the Premises, the following insurance coverages and in accordance with all other applicable terms and conditions of this Section 11. (a) Aviation liability insurance covering, without limitation, aircraft products, airport premises License Agreement between the City of Fort Worth and Eclipse Aerospace,Incorporated -3 - liability,and covering bodily injury and property damage(with limits of One Million Dollars [$1,000,000.00] per occurrence), all such coverages to be on an"occurrence"basis with aggregate limits of no less than Two Million Dollars ($2,000,000,00)per consecutive twelve(12)month period; provided that such limits may be reduced to then existing and commercially reasonable industry standards and customary levels for operation of a facility such as the Premises to the extent the foregoing limits may not be available on commercially reasonable terms in then-current market conditions, (b) Commercial general liability insurance covering bodily injury and property damage on a ,Maims made"basis with limits of no less than Two Million Dollars($2,000,000.00)per occurrence and Two Million Dollars($2,000,000,00)in the aggregate, (c) Pollution legal liability (PLL) insurance covering environmental risks associated with Licensee's operations and lease, use and occupancy of the Premises, with limits of Three Million Dollars ($3,000,000.00)per occurrence and Three Million Dollars ($3,000,000.00) in the aggregate, (d) All Risks Property insurance with respect to Licensee's interest in the Premises and all personal property of Licensee located at or within the Premises, with coverages in such amounts and against such risks as are customarily insured against, including, without limitation, business interruption coverage with respect to Licensee's operations at the Premises,and (e) Automobile liability insurance covering any owned,non-owned and hired automotive vehicle (endorsed to provide contractual liability coverage) covering bodily injury and property damage with a limit of Two Million Dollars ($2,000,000.00)combined single limit. 11.1 Workers Compensation and Employer's Liability Insurance. Licensee represents that Workers Compensation and Employer's Liability insurance coverages are maintained by Licensee for all personnel working at the Premises with a limit of One Million Dollars($1,000,000.00)for each accident for bodily injury by accident or One Million Dollars ($1,000,000.00) for each employee for bodily injury by disease. Prior to the Effective Date and upon any modification to or renewal following termination or expiration of any insurance coverages required hereunder, Licensee will provide to City a certificate of the insurer or an authorized broker evidencing the insurance coverages and terms described in this Section. The parties agree that the coverages and limits provided in this Section 1 Imay be adjusted by Licensee upon no less than thirty(30) days' prior written notice to City to such coverages and amounts as may be approved by City, such approval to not be unreasonably withheld. 11.2 Licensee Insurance Policy Conditions. Each insurance policy required by Section 11 (i)shall be issued by an insurer(or insurers)possessing an A-VII A.M.Best Rating or better and of recognized standing and authorized to issue such policy of insurance in the State of Texas; (ii) shall provide for a waiver of subrogation by each such insurer with respect to any claims against City solely to the extent of the amount of any payment of a loss by such insurer pursuant to the applicable insurance coverages; and (iii) shall be endorsed to prohibit cancellation or substantial reduction of coverage by the insurer without at least thirty(30) days' prior written notice to City. The liability policies and coverages set forth in clauses (a)through(c)and (e) of Section 11 shall each contain an endorsement naming City as an additional insured as its interests may appear. Licensee shall be named loss payee as its interests may appear with respect to the insurance coverages maintained by Licensee pursuant to cause (d) of Section 11. Prior to the Effective Date and upon any modification to or renewal following termination or expiration of any insurance coverages required hereunder, Licensee will provide to City a certificate of the insurer or an authorized broker evidencing the insurance coverages and terms required by Section 11. I License Agreement between the City of Fort Worth and Eclipse Aerospace,Incorporated f i -4- i 11.3 City Insurance. At all times during the Term City, at City's sole cost and expense, shall maintain commercially reasonable casualty and liability insurance on the Premises and all other portions of the Base. Without limiting the generality of the foregoing,City shall maintain full replacement value casualty insurance on the Premises. 11.4 Mutual Release. City and Licensee release each other from all claims for losses of or to (i) the the Central Utility Plant, (ii) Licensee's personal property, equipment and fixtures, and(iii) Licensee's or City's business or revenues,provided the losses are covered by the releasing parry's insurance to the extent of the limits as specified in section 11.1 and section 11.2 above. The party incurring the loss is responsible for any deductible or self-insured retention under its insurance. The parties will notify the issuing insurance companies of this Lease and have the applicable policies endorsed, if necessary, to prevent invalidation of coverage by reason of this provision. 12. Surrender; Abandoned Property.Upon expiration or earlier termination of the License Term, other than execution of a lease agreement between City and Licensee, Licensee will remove Licensee's property 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. Licensee's personal property not promptly removed by Licensee from the Premises within ten (10)days after 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, without City's prior approval, and any attempt to do so shall be void; all provided that Licensee's employees, 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. 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, 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 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 10 days' prior written notice to Licensee. License Agreement between the City of Fort Worth and Eclipse Aerospace, Incorporated -5 - 17. Default and Termination. (a) Licensee'Default.If Licensee shall fail to cure any default in the performance or observation any of its obligations hereunder within thirty(30)days after receipt of notice of such default,then City may terminate this Agreement by giving Licensee five (5) days prior written notice of such termination. Upon any such termination pursuant to this Section, the Agreement and all interest of Licensee hereunder shall terminate, but if Licensee 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 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 twenty (20) 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 by Convenience. Either party may terminate this Agreement with 30 day written notice to the other party. 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 Eclipse Aerospace,Inc. Lease Management 3520 Spirit Dr.SE Property Management Department Albuquerque,New Mexico 87106 900 Monroe,Suite 400 Attn: Jennifer Montano Fort Worth,TX 76102 Jenrifer.Montano(d7eclipse.aero With copies to: City Attorney City of Fort Worth With a copy to: 200 Texas Street Fort Worth,TX 76102 Jason Long Property Manager Hillwood Properties 9800 Hillwood Parkway,suite 300 Fort Worth,Texas 76177 Jason.Longrc}Hillwood.com The parties hereto shall have the continuing right to change their respective address by giving at least ten (10)day notice to the other party. License Agreement between the City of Fort Worth and Eclipse Aerospace,Incorporated -6- 19. 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("Section 2-134"),City may at City's sole cost and expense,at reasonable times during Licensee' normal business hours and upon reasonable notice, audit Licensee' "necessary books, papers, documents, records, and personnel", which is defined in Section 2-134 as"those which pertain to city contracts and subcontracts and are required to evaluate compliance with the terms of those contracts and subcontracts", provided that (a) any such audit shall occur onsite at the 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. 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, each of which shall be deemed an original, but all of which shall constitute but one and the same document. 23. Confidentiality; Public Disclosure Request. City will not use Licensee's name or logo relating to this Agreement or Licensee's use of the Premises. Upon City's receipt of a 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 Licensee's technology,operations,customers,business plans,promotional and marketing activities, finances, and other business affairs, City will(a) immediately give Licensee prior notice in order to allow Licensee to provide arguments to the Texas Attorney General regarding the confidential nature of the records; (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. 24. 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 Eclipse Aerospace,Incorporated -7- In witness whereof, the parties hereto have caused this Lease to be executed with the effective date as Dec.2 , 2021. CITY: LICENSEE: ITY OF FORT WORTH ECLIPSE AEYQSFrACE,INC. - y: Dana Burghdoff(Dec 2,202 1:54 CST) By- Dana Burghdoff r Assistant City Manager Na Date: Dec 2,2021 Title: Date: CONTRACT COMPLIANCE MANAGER y signing, I acknowledge that I am the person responsible r the monitoring and administration of this contract, including ensuring all performance and reporting requirements. ame: Title: Lease Manager,Property Management Department Date: Dec 2,2021 APPROVED AS TO FORM AND LEGALITY: y: Thomas Royce Hansen Assistant City Attorney Date: Dec 2,2021 ATTEST: A'ty p��0000. � y: Jznne�ttertSGodall(Dec3,2021 08:58 C5) y,/�O O�0 Jannette S. Goodall P V° y ��� °0000000p0000 TpAy City Secretary aaa�n000000 p Date: Dec 3,2021 IIform 1295: Not required Contract Authorization: OFFICIAL RECORD M&C: Not required CITY SECRETARY FT.WORTH, TX License Agreement between the City of Port Worth and Eclipse Aerospace,Incorporated -8 - Exhibit "A" Aerial View f tw-eR$moo.ft.p m-a 2G70 Eagle P2FIWay ° >*mt Minh,3x 76177.-�� i�seQ parkG�g aria. fla Premises ca v ea a 771 — , I E-1:M.rkBr.—@lortwortht....g..