HomeMy WebLinkAboutContract 31965-T1CSC No. 31965-T1
MUTUAL TERMINATION, SETTLEMENT. AND RELEASE AGREEMENT
This Mutual Termination, Settlement, and Release Agreement ("Agreement") is made and
entered into upon the date of execution by all parties herein, ("Effective Date") by and between the City of
Fort Worth, a home -rule municipality organized under the laws of the State of Texas, acting by and
through its duly authorized Assistant City Manager, and Harrison Aviation, LTD., acting by and through
its duly authorized representatives.
A.
Definitions
In addition to the terms defined in the body of this Agreement, the following terms shall have the
definitions ascribed to them as follows:
"City" means the City of Fort Worth, Texas.
"Harrison Aviation" means Harrison Aviation, LTD., a domestic limited partnership, and its
partners, representatives, members, managing members, officers, managers, proprietors, directors,
employees, representatives, agents, subsidiary organizations, parent organizations, successor entities,
assigns, predecessors, stockholders, administrators, contractors, and related companies.
"Lease" means collectively the "Tank Farm Lease and Public Fueling Agreement Fuel Farm, Self -
Serve Units, and Ramp Management" identified under City Secretary Contract ("CSC") No. 31965,
between the City and Harrison Aviation, LTD.
"Parties" means the City and Harrison Aviation, LTD.
B.
Recitals
WHEREAS, Harrison Aviation is the City's sole Fixed Based Operator ("FBO") at Fort Worth Spinks
Airport ("Airport");
WHEREAS, the City, as Lessor, and Harrison Aviation, as Lessee, are parties to the Lease which
began on July 1, 2005 for the lease of a fuel farm at Spinks Airport and two (2) self -serve fueling units
("Leased Premises"), along with the associated equipment for both ("Fueling Equipment").
WHEREAS, in addition, the Lease also addressed certain management obligations of the Lessee,
specifically, that Harrison Aviation manage an identified area of City's ramp space at the Airport with tie
down spaces for transient aircraft;
WHEREAS, under the Lease, Harrison Aviation was required to pay City forty percent (40%) of
the aircraft tie -down rent ("Tie -down Rent") collected;
WHEREAS, the parties disagree as to the rate that were to be charged for the Tie -down Rent;
OFFICIAL RECORD
Mutual Termination, Settlement, and Release Agreement — HARRISON AVIATION, LTD. CITY SECRETARY
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WHEREAS, In the latter portion of 2021, Aviation Department staff began a departmental audit
of the Lease and identified alleged discrepancies in the reporting of transient aircraft utilizing the City's
ramp tie down spaces and the amount of Tie -down Rent being submitted to City under the Lease each
month;
WHEREAS, after continued observation of the ramp space and review of the payments submitted
by Harrison Aviation through all of 2022, the City determined that Harrison Aviation had failed, each
month, to provide Lessor the required Tie -down Rent under the Lease by a significant amount each month,
triggering a default under the Lease by Lessee;
WHEREAS, Harrison Aviation disagrees with this determination and denies that it is or was in
default of its obligations under the Lease;
WHEREAS, the City began conversations with Harrison Aviation throughout the past year
notifying Harrison Aviation of the obligations of Harrison Aviation under the Lease and the City's findings;
WHEREAS, in the latter part of 2022, the parties agreed that the current Lease will be terminated
and any ramp management responsibilities will no longer be included in any future fuel farm leases with
Harrison Aviation;
WHEREAS, due to the City's recent determination of the City's believed discrepancy of Tie -down
Rent being paid and reported to the City, it is unknown how long such alleged default under the Lease has
been occurring;
WHEREAS, because of this fact, the City is unable to determine the extent of the lack of payment,
if any, for the Tie -Down Rent in the past, before the City's monitoring of the ramp space which began in
the fall of 2021;
WHEREAS, the parties would now like to terminate the Lease in its current form and to settle any
claim for damages, if any, that the City may have thereunder up to the Effective Date of the Lease for
unpaid tie down fees due to the City;
WHEREAS, the parties have agreed for Harrison Aviation, without any admission as to its
obligation, to pay the total balance of Tie -down Rent for the time period in which the City has monitored
aircraft utilizing the ramp space, that time being from the latter part of 2021 up until the end of 2022, for a
total amount of $8,566.00 in which Harrison Aviation has agreed to pay and has paid in accordance with
this Agreement; and
WHEREAS, except as may be set forth below in the terms of the Agreement, the Parties hereby
agree that the following terms and conditions shall constitute full and final settlement of any and all issues
associated with non-payment of transient parking fees from the beginning of the Lease up until now.
C.
Agreement, Release, & Covenants
NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants set forth herein
and intending to be legally bound hereby, stipulate and agree as follows:
Mutual Termination, Settlement, and Release Agreement — HARRISON AVIATION, LTD.
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I.
Incorporation of Recitals
1. The recitals set forth above are true and correct and form the basis upon which the Parties
have entered into this Agreement and are incorporated herein by reference.
H.
Settlement and Release of Claims
1. Harrison Aviation and City do hereby agree that the Eight Thousand Five Hundred and
Sixty -Six Dollars and 00/100. ($8,566.00) which was paid in full to the City as of January 17. 2023
represents the combined agreed settlement amount between the City and for the documented transient
aircraft tie down fees required under the Lease.
2. The Parties hereby COMPROMISE, SETTLE, RELINQUISH, RELEASE, ACQUIT, and
FOREVER DISCHARGE each other from and against any and all claims, demands, debts, liens, costs,
expenses, actions, and causes of action of whatsoever nature, description of character, whether in tort or in
contract, or by virtue of the common law, statute, or regulation, known or unknown, heretofore existing
between the City and Harrison Aviation, whether known or unknown, which may have accrued or may
accrue, on account of, arising from, or in any manner growing out of, relating to, resulting from, or in any
way connected to portions of the Lease pertaining to the payment of the transient aircraft tie down fees and
any related transactions and occurrences including, but not limited to, any and all claims for exemplary
damages, consequential damages, contractual damages, economic loss, attorney's fees, and any and all
damages recoverable under the laws of the State of Texas and any and all other statutory or common law
legal damages, known or unknown.
3. The Parties warrant that no promise or inducement has been offered except as set forth
herein; that this Agreement is executed without reliance upon any statement or representation of any person
or Party's release, or its representatives, concerning the nature and extent of the losses, injuries, damages,
or legal liability therefore; and that the acceptance of the consideration set forth herein is in full accord and
satisfaction of all claims set forth herein.
4. It is understood that this is a compromise of a disputed claim. The Parties desire to
compromise and settle those matters and things set forth herein to avoid the hazard, inconvenience,
uncertainty, and expense of litigation.
5. The Parties represent and warrant that they are the sole owners of the claims, causes of
actions, and rights -in -action being released herein, and they have not transferred, assigned, or otherwise
encumbered said claims or any part thereto.
6. The Parties hereto shall not assign or transfer their interests and obligations of the
settlement set forth in this Agreement without the prior written consent of the other Party, and any attempted
assignment or transfer of all or any part hereof without such prior written consent shall be void.
Mutual Termination, Settlement, and Release Agreement — HARRISON AVIATION, LTD.
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III.
Termination of the Lease
1. Both parties agree that the Lease is hereby terminated and that both parties will enter
into a new Fuel Farm lease in which Harrison Aviation will have no management obligations for City
ramp space in any form. Such termination of the Lease shall not constitute (i) a release by one party
or any liability accruing or obligation to indemnify under the Lease for any item not specifically
addressed within this Agreement or (ii) a waiver of one party to enforce any unperformed duties or
obligations of the other under the Lease not specifically addressed within this Agreement.
IV.
Miscellaneous
1. This instrument contains the entire agreement between the Parties as to the matters
contained herein and the terms of this instrument are contractual and not merely recitals. There are no other
agreements, either written or oral, and this Agreement supersedes all earlier representations, negotiations,
or agreements about this matter. The Parties acknowledge that the covenants, promises, and representations
made herein are binding on, and inure to, the benefit of each of the Parties. As a matter of clarification,
nothing contained herein shall be construed to affect the enforceability or validity of the License
Agreement.
2. The Parties represent that they have consulted, or had the opportunity to consult, an
attorney to seek legal counsel regarding the contents and effects of this Agreement. The Parties further
represent that they have been informed of the content and effect of this instrument and that the instrument
is executed as their act and deed and of their own free will.
3. In the event that any provision of this Agreement is held void, voidable, or unenforceable,
the remaining portions shall remain in full force and effect.
4. If any action, whether real or asserted, at law or in equity, arises on the basis of any
provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas
or the United States District Court for the Northern District of Texas — Fort Worth Division. This
Agreement, including any exhibits, shall be construed in accordance with the laws of the State of Texas.
5. The Parties represent and warrant that they are over the age of eighteen (18) years,
competent to execute this Agreement, have carefully read the foregoing Agreement, and know the contents
thereof and have signed the same of their own free will and with the advice of counsel, if applicable.
6. This Agreement may be executed in several counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument. A signature received via
facsimile or electronically via email shall be as legally binding for all purposes as an original signature.
Mutual Termination, Settlement, and Release Agreement — HARRISON AVIATION, LTD.
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7. It is understood that by execution of this Agreement, the City does not waive or surrender
any of its governmental powers or immunities.
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective on the
Effective Date.
CITY OF FORT WORTH HARRISON AVIATION, LTD.
By: Harrison Realty Investments, LLC
General Partner
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by: Dana Burghdoff (flay 16, 26112:56 CDT)
by;0.k."l1x
Dana Burghdoff
Mhn Cockerham, President
Assistant City Manager
Date: May 16, 2023
Date: S I S 3
by:
Roger Venables
Contract Compliance Manager:
Aviation Systems Director
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
APPROVED AS TO FORM
ensuring all performance and reporting
AND LEGALITY:
requirements.
By:
Erin L. Roden
Thomas R. Hansen
Administrative Assistant
Assistant City Attorney
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ATTESTED BY: P„=°
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Jannette S. Goodall
City Secretary
ARL
M&C No. 23-0334
Date: 04.25.23
Form 1295: 2023-996842
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Mutual Termination, Settlement, and Release Agreement — HARRISON AVIATION, LTD.
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EXHIBIT A
VERIFICATION OF SIGNATURE AUTHORITY
Execution of this Signature Verification Form ("Form") hereby certifies that the following
individuals and/or positions have the authority to legally bind Operator and to execute any agreement,
amendment or change order on behalf of Operator. Such binding authority has been granted by proper order,
resolution, ordinance or other authorization of Operator. City is fully entitled to rely on the warranty and
representation set forth in this Form in entering into any agreement or amendment with Operator. Operator
will submit an updated Form within ten (10) business days if there are any changes to the signatory
authority. City is entitled to rely on any current executed Form until it receives a revised Form that has been
properly executed by Operator.
1. Name:
Position:
Signature
2. Name:
Position:
Signature
3. Name.
Position:
Signature
Name:
Signature of President / CEO
Other Title:
Date:
Mutual Termination, Settlement, and Release Agreement — HARRISON AVIATION, LTD.
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M&C Review Page 1 of 2
0
Official site of the City of Fort Worth, Texas
CITY COUNCIL AGEND FORTWORTH
Create New From This M&C
REFERENCE **M&C 23- 55FWS HARRISON TERM
DATE: 4/25/2023 NO.: 0334 LOG NAME: AND SETLMNT AGRMNT,
TANK FARM LEASE
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: (CD 6 / Future CD 8) Authorize Execution of a Mutual Termination, Settlement, and
Release Agreement with Harrison Aviation, LTD. Who Will Pay the City of Fort Worth an
Amount of $8,566.00 to Settle All Potential Claims Under City Secretary Contract No.
31965, the Current Fuel Farm Lease Agreement at Fort Worth Spinks Airport, and
Terminate the Same Therein and Authorize Execution of a New Tank Farm Lease and
Public Fueling Agreement with Harrison Aviation, LTD. at Fort Worth Spinks Airport
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize execution of a Mutual Termination, Settlement, and Release Agreement with
Harrison Aviation, LTD. who will pay the City of Fort Worth an amount of $8,566.00 to settle
all potential claims under City Secretary Contract No. 31965, the current fuel farm lease
agreement at Fort Worth Spinks Airport, and terminate the same therein; and
2. Authorize execution of a New Tank Farm Lease and Public Fueling Agreement with Harrison
Aviation, LTD. at Fort Worth Spinks Airport.
DISCUSSION:
On or about July 1, 2005, the City (Lessor) and Harrison Aviation, LTD. (Lessee) entered into City
Secretary Contract (CSC) 31965, a Tank Farm and Public Fueling Agreement (Agreement) which
included two self -serve fueling stations and required Lessee to manage the tie down parking spaces
on the Lessor's ramp space. Under the Agreement, the Lessee was required to pay forty percent (40\
%) of the transient aircraft tie down rent collected at rates in accordance with the City's then
published Schedule of Rates and Charges. In August of 2021, Aviation Department staff began a
departmental audit of the Agreement and it was determined that the amount submitted monthly for tie
downs at Spinks Airport did not reconcile with recent ramp studies conducted by Airport Operations.
Due to the significant discrepancy, a default under the Agreement was triggered. After meeting with
the Lessee, the parties agreed that the current agreement will be terminated and ramp management
will not be included in any future tank farm and public fueling agreements with Lessee. Prior to
monitoring the ramp in 2021 through 2022, the Lessor is unable to determine the extent of the lack of
payment for the tie down rent, so the Lessor and Lessee wish to settle the account for the time period
of August 2021 through December 2022 in the amount of $8,566.00, which has been paid in full.
Upon City Council Approval, the Lessor and Lessee will execute a mutual termination, settlement and
release agreement related to the discrepancies described above and also execute a new tank farm
and public fueling agreement (New Agreement), which will be effective upon date of execution of the
termination of CSC 31965. In alignment with the Lessee's Fixed Base Operator Permit (FBO Permit),
the New Agreement will expire on September 30, 2025 with subsequent renewal terms of five (5)
years each to automatically renew until such time as the Lessee notifies the Lessor in writing no less
than 90 days and no more than 180 days prior to expiration of any given term of its intent to
terminate, or June 30, 2045, whichever comes first. The New Agreement will also include two self -
serve fueling stations. If approved, the tank farm usage fee of $400.00 per month from this lease will
generate revenue of $4,800.00 annually. Rental rates shall comply and adjust with the rates
http://apps.cfwnet.org/council_packet/mc review.asp?ID=30961&councildate=4/25/2023 4/26/2023
M&C Review
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prescribed for the premises by the published Airport Schedule of Rates and Charges. Fuel flowage
fees will be paid by Lessee each month in accordance with the current Airport Schedule of Rates and
Charges and the Aviation Minimum Standards.
Fort Worth Spinks Airport is located in COUNCIL DISTRICT 6/FUTURE COUNCIL DISTRICT 8.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon approval of the above recommendations and execution of
the lease, funds will be deposited into the Municipal Airport Fund. The Aviation Department (and
Financial Management Services) is responsible for the collection and deposit of funds due to the City.
TO
Fund Department Account Project Program Activity Budget Reference # I Amount
ID ID Year (Chartfield 2)
FROM
[Fund Department Account Project Program Activity Budget Reference # Amount
ID ID Year I (Chartfield 2)
Submitted for Citv Manager's Office bv: Dana Burghdoff (8018)
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
FID TABLE.xlsx (CFW Internal)
Form 1295.pdf (CFW Internal)
Location Map.pdf (Public)
Location Map Self Serve East.pdf (Public)
Location Map Self Serve West.odf (Public)
Roger Venables (5402)
Ricardo Barcelo (5403)
http://apps.cfwnet.org/council_packet/mc review.asp?ID=30961&councildate=4/25/2023 4/26/2023