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HomeMy WebLinkAboutContract 58006 CSC No. 58006 MONTH TO MONTH LEASE AGREEMENT This Month to Month Lease Agreement(this"Agreement")is entered into as of August 18 ,2022 (the"Effective Date"), by and between the City of Fort Worth,Texas,a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, Dana Burghdoff ("Lessor"), and Mammoth Freighters LLC, a Florida limited liability company, acting by and through its duly authorized Senior Vice President of Operations, David Steinmetz("Lessee"). WHEREAS, Lessor owns a certain piece of property known as the Parts Building #11 located at 2050 Eagle Parkway, Fort Worth, Texas, 76177 at the Alliance Maintenance Facility (the "Property"), which Property is managed on behalf of Lessor by Hillwood Properties(the"Property Manager"); WHEREAS, Lessor and Lessee are currently negotiating that certain long-term Facilities Lease Agreement (the "Future Lease"), in connection with the leasing by Lessor to Lessee of approximately 72,287 square feet of the Property; and WHEREAS,Lessee is currently being required to move out of sub-leased space in a nearby facility due to the main tenant of such facility having a need to use the subleased space; WHEREAS,Lessee has nowhere to relocate until the Future Lease is executed with Lessor; WHEREAS,Lessee has indicated that they may be required to lease space elsewhere,outside of the Alliance Maintenance Facility if the Lessee is not able to find a short-term solution to store their equipment and it may jeopardize the City's ability to enter into the Future Lease with the Lessee if the Lessee is not able to operate and utilize space immediately at the Alliance Maintenance Facility; and WHEREAS, Lessor has therefore agreed to enter into a short-term month-to-month lease with Lessee which will allow Lessee to access the Property prior to the Future Lease being entered into with such access to be subject to and in accordance with the terms and conditions of this Agreement. WITNESSETH: 1. Premises.Lessor hereby grants Lessee the use of those certain portions of the Property as shown as in Exhibit"A"(collectively,the"Premises")located at the Alliance Maintenance Facility for the storage of equipment, and for the general evaluation of the Premises to allow Lessee's contractors to take measurements and conduct pre-construction inspections and Premises condition assessments to prepare for Tenant's use and occupancy of the Premises (including, without limitation, construction of Tenant improvements therein) upon full execution of the Future Lease. Under no circumstances during the term of this Agreement will Lessee 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. Lessee shall not install signs,advertising media,and lettering on the Premises without prior written approval of Lessor, which approval shall not be unreasonably withheld, conditioned or delayed. Lessee will have access to the Premises 24 hours a day, 7 days a week. Lessor agrees to provide Lessee with reasonable prior notice in the event Lessor desires to access the Premises; provided that Lessor shall not interfere with Lessee's use of the Premises in accordance with this Agreement. M-T-M Lease Agreement between the City of Fort Worth and Mammoth Freighters,LLC OFFICIAL RECORD - 1 - CITY SECRETARY FT. WORTH, TX / "' 2. Condition of Premises. Lessee taking possession of the Premises shall be conclusive evidence that (a) the Premises are suitable for the purposes and uses for which same are leased (i.e. for Lessee's inspection and evaluation of the Premises and for the storage of equipment);and(b)Lessee waives any and all defects in and to the Premises, its appurtenances, and in all the appurtenances thereto solely for the purposes of this Agreement and not with respect to the Future Lease. Further, Lessee takes the Premises and all appurtenances in"AS IS"condition without warranty, expressed or implied, on the part of Lessor. Lessor shall not be liable to Lessee,Lessee'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. Notwithstanding anything contained in this Agreement to the contrary, upon full execution of the Future Lease, the provisions of the Future Lease shall govern regarding the condition of the Premises, this provision shall be of no force and effect with respect to the condition of the Premises and all of the rights, duties and obligations of the parties hereto with respect to the condition of the Premises shall be fully governed by the terms of the Lease as if this Agreement had never been entered into. No agreement or waiver by Lessee in this Agreement shall affect the rights,duties and obligations of the parties under the Lease once the Lease has been fully executed. 3. Term. This Agreement shall operate on a month to month basis, commencing on the date of its execution. This Agreement will automatically renew on the first (1st) day of each month unless terminated by either party,each month considered a"Term". This Agreement will terminate upon either(i) a party providing the other party with written notice of its intent to terminate not less than thirty(30)days prior to the effective date of such termination or (ii) upon the execution of the long-term Future Lease between the parties. 4. Rent; Time of essence. Lessee will pay Lessor$10,000.00 per month(the"Rent") under this Agreement. The Rent for the first month will be due to Lessor within three(3)business days following the Effective Date of this Agreement via direct deposit into the Alliance Maintenance Fund bank account,the information for which shall be provided by Lessor to Lessee on the Effective Date. Rent shall be due and payable on or before the first day of each month throughout the Term of this Agreement. If the payment of the Rent is not received by Lessor as provided herein,then after five(5)days after receipt of written notice from Lessor(and provided Lessor has provided the required account information as set forth above), all amounts due and payable to Lessor 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. 5. No Services. Lessor shall not furnish Lessee with any cleaning, lighting, security,or any other items or services for the Premises;however,Lessor agrees to make electricity,gas and water/sanitary sewer services available to Lessee at the Premises during the Term. All operating costs of Premises shall be Lessee' sole cost and expense. If Lessee wants or needs any other utilities, cleaning, lighting, security, or any other items or services while occupying the Premises beyond electricity,gas and water/sanitary sewer or any other services that are currently available at the Premises,then Lessee shall first obtain permission and approval from the Lessor(which approval shall not be unreasonably withheld,conditioned or delayed) to contract,add or install any of the above items and will be responsible for providing same at Lessee'sole cost. Notwithstanding the foregoing, Lessor acknowledges and agrees that Lessee may desire electrical, gas and water/sanitary sewer services at the Premises, and Lessee 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 Lessor and at Lessee's sole cost. If neither electrical, gas nor water/sanitary service is available at the Premises for any period of fifteen (15) days or longer M-T-M Lease Agreement between the City of Fort Worth and Mammoth Freighters,LLC -2- during the Term,Lessee may terminate this Agreement upon written notice to Lessor. 6. Alterations, Additions, Improvements, and Signage. Lessee shall make no alterations on or additions to, the Premises without the prior written consent of Lessor, which consent shall not be unreasonably withheld, conditioned or delayed. Any alterations made to the Premises by the Lessee shall be at Lessee's sole cost and expense and shall not unreasonably interfere with the operations of other lessees and/or other operations at the Alliance Maintenance Facility. If such interference occurs,Lessee will make changes and/or remove the alteration to remedy said interference within ten (10) days following written notice from Lessor, provided that if such change or removal cannot be completed within ten (10) days, Lessee will not be in default hereunder if Lessee 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 Lessor at the end of any monthly Term,provided that in the event the Lease is executed by the parties hereto, the terms and conditions of the Lease shall govern ownership and removal of all alterations, additions and improvements made to or fixtures or other improvements place in or upon the Premises.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. Notwithstanding the above or anything else contained in this Agreement to the contrary, all personal property, equipment,trade fixtures, machinery, inventory and other personal property of Lessee shall at all times remain the property of Lessee and same may be removed from the Premises by Lessee at any time. Lessee may at its sole option and expense remove any Lessee alterations at any time during a monthly Term without Lessor approval.At the termination of this Agreement, Lessee shall(i)deliver the Premises to Lessor in its then"as-is"condition, but in no worse condition than as of the date of the taking of possession thereof by Lessee, 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. 7. Indemnity. (a) LESSEE SHALL AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS LESSOR, LESSOR'S OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES (COLLECTIVELY, "LESSOR 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 LESSEE, ITS EMPLOYEES, AGENTS AND LESSEES,OR(2)ANY ACT OR OMISSION OCCURRING IN OR ABOUT THE PREMISES AND ON THE PART OF LESSEE OR ANY LESSEE, EMPLOYEE, DIRECTOR, OFFICER, SERVANT, OR CONTRACTOR OF LESSEE (EACH A "LIABILITY" AND COLLECTIVELY, "LIABILITIES"), EXCEPT TO THE EXTENT ARISING OUT OF OR RESULTING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY LESSOR INDEMNITEE. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST ANY LESSOR INDEMNITEE IN CONNECTION WITH ANY SUCH LIABILITY, LESSEE, ON NOTICE FROM LESSOR, SHALLDEFEND SUCH ACTION OR PROCEEDING, AT LESSEE'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO LESSOR.THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY TO ALL ACTIVITIES OF LESSEE WITH RESPECT TO THE USE AND OCCUPANCY OF THE PREMISES, WHETHER OCCURRING BEFORE OR AFTER THE COMMENCEMENT DATE OF THE TERM AND BEFORE OR AFTER THE TERMINATION OF THIS AGREEMENT.THIS INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION OR BENEFITS PAYABLE UNDER M-T-M Lease Agreement between the City of Fort Worth and Mammoth Freighters,LLC -3- INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFIT ACTS OR OTHER EMPLOYEES'BENEFIT ACTS. 8. 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 LESSEE ONLY, AND NO INDEMNITEES SHALL BE LIABLE FOR ANY LOSS OR THEFT OF OR DAMAGE TO PROPERTY OF LESSEE, ITS EMPLOYEES, AGENTS, PATRONS, INVITEE, OR TO OTHERS, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRUSTED TO EMPLOYEES OF LESSOR 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 OR WILLFUL MISCONDUCT OF ANY INDEMNITEE. 9. Insurance. Lessee 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,Texas as an additional insured and covering all public risks related to the leasing, use, occupancy, maintenance, existence or location of the Premises. Lessee 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, Lessee shall be responsible for all insurance to any personal property of Lessee or in Lessee's care,custody or control. Lessee is allowed to self-insure without the prior written consent of Lessor. Any self-insured retention or other financial responsibility for claims shall be covered directly by Lessee in lieu of insurance. 10. Surrender; Abandoned Property. Upon expiration or earlier termination of the Term,other than execution of the Lease between Lessor and Lessee,Lessee will remove Lessee'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 Term,ordinary wear and tear and casualty and condemnation excepted. Lessee's personal property not promptly removed by Lessee from the Premises within thirty (30) 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 Lessee to Lessor. 11. Assignment and Subletting. Lessee shall not assign this Agreement, or any right of Lessee under this Agreement, or sublet the Premises, for consideration or no consideration, whether voluntarily, by operation of law, or otherwise, without Lessor's prior approval (which approval shall not be unreasonably withheld, conditioned or delayed), and any attempt to do so shall be void; all provided that Lessee's employees, contractors and agents may use the Premises in accordance with the terms and provisions hereof. 12. Damage to Premises or Property of Lessor. If, at any time during the Term, by the gross negligence or willful misconduct of Lessee,its employees,agents,or Lessees,the Premises,or any property therein is damaged or destroyed, Lessee shall be obligated to pay, on demand,all commercially reasonable costs to repair same. M-T-M Lease Agreement between the City of Fort Worth and Mammoth Freighters,LLC -4- 13. Repairs and Maintenance. Lessor has no obligation to make repairs of any sort to the Premises,Lessor's sole obligation hereunder being to make the Premises available to Lessee in accordance with and subject to the covenants,restrictions and limitations set forth herein. Lessee shall, at its expense, use and maintain the Premises in a neat, clean 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 will there be any maintenance of any trailers or trucks within the Premises or Property and if a spill of any nature takes place arising solely from the actions of Lessee, Lessee 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 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 Lessor, essential to the rights of both parties,in which event Lessor has the right, but not the obligation,to terminate the Agreement on 10 days'prior written notice to Lessee. 15. Default and Termination. (a) Lessee' Default. If Lessee shall fail to cure any default in the performance or observation any of its obligations hereunder within twenty(20)days after receipt of notice of such default(or such longer period reasonably required to cure such default provided that Lessee commences such cure within such twenty (20) day period and diligently pursues completion of same), then Lessor may terminate this Agreement by giving Lessee five (5) days prior written notice of such termination. Upon any such termination pursuant to this Section,the Agreement and all interest of Lessee hereunder shall terminate,but if Lessee does so cure such default within said five (5) days, Lessor's termination notice will be deemed withdrawn and this Agreement shall not terminate. Such rights of Lessor in the case of a default by Lessee hereunder are not exclusive, but are cumulative of all other rights Lessor 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) Lessor's Default. Should Lessor commit a default under this Agreement.,Lessee may terminate this Agreement by giving Lessor twenty(20)days prior written notice thereof. If Lessor fails to cure such default within twenty (20)days of receipt of notice then Lessee may terminate this Agreement. Such rights of Lessee in the case of a default by Lessor hereunder are not exclusive,but are cumulative of all other rights Lessee 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. 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 purposes of notice,the addresses of the parties shall,unless changed as hereinafter provided, be as follows: To City: To Lessee: City of Fort Worth Mammoth Freighters LLC Lease Management Attn: David Steinmetz Property Management Department Senior VP of Operations M-T-M Lease Agreement between the City of Fort Worth and Mammoth Freighters,LLC 5- 900 Monroe,Suite 400 c/o Aspire Fort Worth,TX 76102 2060 Eagle Pkwy Fort Worth,Texas 76177 With a copy to: With a copy to: City Attorney Kessler Collins,P.C. City of Fort Worth 500 North Akard Street, Suite 3700 200 Texas Street Dallas,Texas 75201 Fort Worth,TX 76102 Attn:Anthony J.Barbieri The parties hereto shall have the continuing right to change their respective address by giving at least fifteen(15)days' written notice to the other party. 17. 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, Lessor may at Lessor's sole cost and expense, at reasonable times during Lessee' normal business hours and upon reasonable notice, audit Lessee' 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 Premises,(b)Lessor shall not(and shall not permit others to)copy any books,records or other documents reviewed during such audit,and(c)Lessor shall comply with the provisions of Section 21 herein. 18. Entire Agreement.This Agreement constitutes the entire agreement between Lessor and Lessee 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 Lessor and Lessee. 20. 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. 21. Confidentiality;Public Disclosure Request. Lessor will not use Lessee's name or logo relating to this Agreement or Lessee's use of the Premises. Upon Lessor'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 Lessee's technology, operations, customers, business plans, promotional and marketing activities,finances,and other business affairs, Lessor will(a)immediately give Lessee prior notice in order to allow Lessee 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 SPECIAL, CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOST OPPORTUNITIES OR PROFITS)OR PUNITIVE DAMAGES. (SIGNATURES APPEAR ON FOLLOWING PAGES) M-T-M Lease Agreement between the City of Fort Worth and Mammoth Freighters,LLC -6- In witness whereof,the parties hereto have caused this Lease to be executed with the effective date as of this lath day of, August 2022 LESSOR: LESSEE: CITY OF FORT WORTH, MAMMOTH FREIGHTERS LLC a home-rule municipal corporation of the a Florida limited liab' ' company State of Texas 15aW_B AGu7 By: Dana Burghdoff(A g 17,20 l&27 CDT) By: Dana Burghdoff Assistant City Manager Name-__9AV il> Aug 17, 2022 Date: Title: 2. ©/ +��-Ir Date: :K 77 / c9 Q 0 "Q— 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: � n(Aug 17,202216:59 CDT) Lease Manager,Property Management Department Title: Date: Aug 17, 2022 APPROVED AS TO FORM AND LEGALITY: By: Thomas Royce Hansen Assistant City Attorney Date: Aug 17, 2022 a ATTEST: 'Y 00�R 4( By: jjiette S.Good a I I(Aug 18,202208' CDT) F�0 O�� Jannette S. Goodall 0 v o 0 2 City Secretary 0 ° °° °o , Aug 18, 2022 � a °°°°°°°°° *oo Date: a�nfix Form 1295: Not required Contract Authorization: M&C: Not required M-T-M Lease Agreement between the City of Fort Worth and Mammoth Freighters,LLC. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Exhibit"A" Aerial View Lease Premises f Parts/Warehouse Building#11 N 2050 Eagle Parkway Fort Worth TX 761�7 - ij 1 I 1 F 1 G p Q a� Feet 0 i,t�C '.'•�C 4,&M M-T-M Lease Agreement between the City of Fort Worth and Mammoth Freighters, LLC. -8- Premises FIRST FLOOR SECOND FLOOR ills -2-