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HomeMy WebLinkAboutItem 03 - Bass Pro Drive Construction ProjectMEMO TO FROM: MEETING DATE SUBJECT RECOMMENDATION: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL ROGER NELSON, CITY MANAGE SEPTEMBER 7, 2004 DFW AIRPORT LICENSE AGREEMENT — BASS PRO DRIVE CONSTRUCTION PROJECT City Council consider approving a License Agreement with DFW International Airport for the construction of Bass Pro Drive from SH 121 to the Coppell City Limits, authorize staff to execute said agreement and take any necessary action BACKGROUND: The widening of Bass Pro Drive between SH 121 and the Coppell City Limits requires that right of way be acquired from the properties on the north side of the roadway. Similarly, right of way in the form of a License is required from the DFW property on the south side of the roadway. The airport is supportive of the project and is agreeable to providing the necessary property for the widening in the form of the attached license. Staff recommends approval. 0:\agenda\9-7-04\DFW License Agreement Bass Pro Drive August 23, 2004 (7:49AM) LICENSE The Dallas/Fort Worth International Airport Board (hereinafter called "Licensor" of "Airport Board") hereby grants to the City of Grapevine, (hereinafter called "Licensee") the hereinafter described privilege, in accordance with the Terms and Conditions set forth below: (1) - LICENSEE: (2) LICENSEE'S ADDRESS: (3) PRIVILEGE (including property description): City of Grapevine P.O. Box 95104 Grapevine, TX 76099 A license for the limited purpose of reconstructing and widening Bass Pro Blvd., at its sole cost, across and on a portion of DFW International Airport Property as designated on Exhibit "A" attached hereto and made a part hereof for all purposes. Together with the right of ingress and egress over and along the above described rights-of-way and over adjacent land operated and maintained by DFW International Airport Board (hereinafter called "Board"), to or from said rights-of-way, (provided that such right of ingress and egress shall be confined to the rights-of-way herein granted and any existing roads, streets and highways that traverse the Airport), for the purpose of constructing, operating, improving, reconstructing, repairing, relocating, inspecting, patrolling and maintaining such public facilities. RENTS AND FEES: EFFECTIVE DATE: SPECIAL TERMS AND CONDITIONS: City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. None April 1, 2004 March 31, 2024 The Airport Board reserves for itself and for the benefit of others at the DFW International Airport the right to construct, maintain, repair and operate on, across and under the above described rights-of-way, roads, streets, systems for supplying heating, water, gas and fuel, systems for the fire alarm, fire protection, sprinkler, drainage, telephone and telegraph service, including all necessary lines, pipes, mains, wires, conduits, equipment and other Airport Services (hereinafter called "Services"), provided that such roads, streets, services, or systems shall not unreasonably interfere with City's facilities on said land. In addition, the Airport shall have the right to make any curb cuts for egress from and ingress to Airport property adjacent the Roadway. In addition, Grapevine shall allow the Airport to connect to water and sewer facilities at its construction cost. The Airport shall not be liable for any charge or fee for connecting to such utilities but shall pay for such water and sewer services in accordance with the standard City of Grapevine Utility Services charge schedule applicable thereto. Page 2 of 19 GENERAL TERMS AND CONDITIONS License. For and in consideration of the payment of the rents and fees as set forth herein, Licensee shall have the NON-EXCLUSIVE right to use the Property described herein for the limited privileges set forth herein, and none other. No Leasehold Interest. Licensee acknowledges that this License is not a lease, that there is no leased premises, and that this License does not create a leasehold interest in any part of the Airport. No Warranties of Suitability. Licensee acknowledges that Licensor has made no representations whatsoever concerning the suitability of any Airport property or facilities for the exercise of the above -stated privileges. Ingress and Egress. Licensee, its employees, invitees and those doing business with it shall have the right of ingress and egress to the Airport, subject to applicable parking fees, traffic regulations, and other operational rules prescribed by the Airport Board. Nuisances and Board Rules. Licensee, its employees, invitees, and those doing business with it shall conduct its operations in such a manner so as not to annoy, disturb or be offensive to others at the Airport, and shall maintain all property under its control in a clean and orderly manner as prescribed by Licensor. Licensee shall obey all rules and regulations of the Board as same may be amended from time to time. Repairs and Improvements. Licensee shall promptly repair or replace any property of the Airport damaged by Licensee's operations hereunder. Licensee shall make no improvements or alterations to Airport property without prior approval, in writing, by the Vice President of Real Estate. Licensor or its agents shall have the right at any reasonable time to inspect Licensee's activities pursuant to this License. COMPLIANCE WITH APPLICABLE LAWS General. Licensee shall pay all taxes, fees and excises which may be assessed, levied, exacted or imposed on its property or operations hereunder, and shall make all applications, reports, and returns required in connection therewith. Licensee shall procure all licenses, certificates, permits or other authorization from all governmental authorities, if any, having jurisdiction over the operations of Licensee at the Airport which may be necessary for Licensee's operations. Upon request by the Board, Licensee shall verify amounts of taxes paid, and all licenses, permits or other authorizations procured. Licensee shall promptly comply with the provisions of any and all present and future governmental laws, rules, regulations, requirements, orders and directions which may pertain or apply to Licensee's operations at the Airport, including the City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 3 of 19 requirements of the Americans with Disabilities Act. Licensee's obligations to comply with governmental requirements are provided herein for the purpose of assuring proper safeguards for the protection of persons and property and are not to be construed as a submission by Licensor to such requirements or any of them. Non -Discrimination. It is the policy of the DFW International Airport Board that Minority- owned and Women -owned Business Enterprises (M/WBEs) shall have the maximum practicable opportunity to participate in the awarding of Airport contracts. Licensee agrees to make a good faith effort to provide maximum opportunity for the consideration and use of M/WBEs in the contracting, subcontracting and purchasing activities associated with this License and to abide by all applicable provisions of the Airport's M/WBE Program. Licensee further agrees that no person shall be excluded from participation in, denied the benefits of, or otherwise discriminated against in connection with Licensee's activities pursuant to any Airport contract because of race, color, religion, national origin, sex, age, handicap or political belief or affiliation. Licensee shall conduct all of its activities in compliance with and pursuant to Title 49, Part 21 of the Code of Federal Regulations (Nondiscrimination in Federally -Assisted Programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964), as said regulations may be amended. Licensee shall maintain and, upon demand, make available to an authorized representative of Licensor copies of any and all agreements it has made with suppliers, employees or customers, or any other agreements concerning Licensee's operations at the Airport. ENVIRONMENTAL MATTERS As used in this Agreement, the term (a) "Environmental Impact Claim" means any claim, suit, judgment, penalty, fine, loss, administrative proceeding, order, agreed order or citation by any governmental agency, or expense (including but not limited to any necessary and documented costs of investigation, study, cleanup, removal, response, remediation, transportation, disposal, restoration, monitoring, consultant's fees, contractor's fees, and attorney's fees) which arises in whole or in part out of, alleges, or is based on the presence, transportation, handling, treatment, storage, or actual or threatened Release of any Hazardous Materials, Process Water, or Solid Waste, in, on, or into the environment, including but not limited to surface and subsurface soils, air, waters, or groundwater by Licensee, or by third parties under Licensee's direction and control, on, at or from the Designated Operating Area or the Airport, during or arising from Licensee's occupancy or use of the Designated Operating Area or the Airport under this Agreement. For purposes of this Agreement, Environmental Impact Claim shall exclude any and all personal injury, wrongful death, product liability and environmental justice claims. (b) "Environmental indemnitees" means the Board, the Cities and their respective Officers, Directors, Employees, Agents and Councils. (c) "Environmental Laws" shall mean all applicable existing and future laws relating to the management, disposal or Release of Hazardous Materials, Process Water, or Solid Waste, including, without limitation, all applicable federal, state and local statutes, regulations, City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 4 of 19 ordinances, permits, codes, orders, memoranda of agreement, federal or state approved Conformity Plans, Conformity Determinations, or Conformity Analyses, and any other governmental requirements, including but not limited to those related to discharge of Process Water or other pollutants into the waters of the United States, and/or waters of the State of Texas, and any applicable environmental duties or requirements arising out of common law. (d) "Hazardous Materials" means any "hazardous substance," "pollutant or contaminant," "regulated substance," "petroleum substance," and "waste" as those terms are defined now or in the future in the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), the Clean Water Act, the Texas Water Code, and the Texas Health & Safety Code, amendments thereto, and regulations promulgated pursuant thereto, including but not limited to (i) asbestos or asbestos -containing materials; (ii) "PCB items" or "PCB -Contaminated Electrical Equipment," used oil filters, batteries or tires, and underground or aboveground storage tanks and associated equipment; and (iii) "hazardous waste" as now or in the future defined by the Resource Conservation and Recovery Act (" RCRA"), Texas Solid Waste Disposal Act, or the Texas Health & Safety Code, amendments thereto, and regulations promulgated pursuant thereto. (e) "Process Water" means water which contains pollutants from any point source subject to permit requirements or subject to the Texas Pollutant Discharge Elimination System, the National Pollutant Discharge Elimination System, the Clean Water Act, or the Texas Water Code, amendments thereto, and regulations promulgated pursuant thereto. (f) "Release" means any depositing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment or threat of release such that a release may enter the environment. For purposes of this Agreement, Release shall not include the mere migration of contamination which may exist or may have existed but which is proved by Licensee to be unrelated to Licensee's (or third parties under Licensee's direction and control) use of or operations at the Designated Operating Area or the Airport. (g) "Solid Waste" shall have the same meaning as in the Resource Conservation and Recovery Act, the Texas Health and Safety Code, and the Texas Solid Waste Disposal Act. Licensee Representations and Warranties. Licensee represents, warrants, and covenants the following: (a) Licensee has obtained and throughout the term of this Agreement shall obtain and maintain all licenses, permits, exemptions, registrations and other authorizations required under Environmental Laws and shall provide any notices required under Environmental Laws for conducting its operations or related activities (e.g., waste generation) at the Designated Operating Area or the Airport. Licensee shall require its sublessees and contractors to obtain and maintain all licenses, permits, exemptions, registrations and other authorizations required under Environmental Laws for conducting operations at the Designated Operating Area or the Airport. City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 5 of 19 (b) Licensee shall comply and shall cause all its employees to comply, and shall exercise its best efforts to cause its agents, contractors, sublessees or other third parties under Licensee's direction and control to comply, and shall include in all subleases a provision requiring the sublessee to comply and all employees, contractors, sublessees or other third parties under sublessee's control to comply with all Environmental Laws pertaining to Licensee's (and including third parties under Licensee's direction and control) use of and operations at the Designated Operating Area or the Airport. (c) Licensee shall comply and shall require its employees to comply, and shall exercise its best efforts to cause its agents, contractors, sublessees or other third parties under Licensee's direction and control to comply with all applicable Board policies, rules, regulations, permits, and applicable Airport plans, e.g., Deicing and Snow and Ice Plans, pertaining to Licensee's (and including third parties under Licensee's direction and control) use of and operations at the Designated Operating Area or the Airport. (d) Licensee shall not cause, contribute to, or permit (i) any Release of any Hazardous Materials, Solid Waste, or Process Water by Licensee or its employees, agents, contractors, sublessees or other third parties under Licensee's direction and control, on, at, or from the Designated Operating Area or the Airport if (as is reasonably determined by the Board or any governmental agency) that Release is or may be unlawful; or (ii) any violation of any Environmental Law(s) as a result, in whole or in part, of Licensee's (and including third parties under Licensee's direction and control) use of or operations at the Designated Operating Area or the Airport. (e) Licensee shall handle, use, store, discharge, or otherwise manage (and shall require its employees, and shall exercise its best efforts to require its agents, contractors, sublessees, or other third parties under Licensee's direction and control to handle, use, store, discharge, or otherwise manage) any Hazardous Materials, Process Water, or Solid Waste on, at or from the Designated Operating Area or the Airport in a lawful and prudent manner and so as to prevent (i) the unlawful Release of any Hazardous Materials, Process Water, or Solid Waste, or (ii) any Release (as is reasonably determined by the Board or any appropriate governmental agency) that does or may pollute or contaminate the environment or that may adversely affect the health, welfare, or safety of persons, whether located on the Designated Operating Area or elsewhere. Without limiting the foregoing, Licensee shall not conduct, or allow any employee, agent, contractor, sublessee or other third party under Licensee's direction and control to conduct, any operations or activities involving the use or application of ethylene glycol, propylene glycol, or any other substance in the de-icing or anti -icing of aircraft at any location on the Designated Operating Area or the Airport except with the prior written consent of the Board and in accordance with all applicable Board policies, rules, regulations, permits and Airport plans, e.g., Deicing or Snow and Ice Plans. (f) Licensee shall remove and dispose of, and shall require its employees, and shall exercise its best efforts to require its agents, contractors, sublessors, or any other third party under Licensee's direction and control to remove and dispose of, any Solid Waste or Hazardous Materials located at the Designated Operating Area at the termination of this Agreement, or as sooner required by Environmental Laws or this Agreement, at no cost to Board and in a lawful, City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 6 of 19 prudent, and timely manner, subject to the limitations of the Rebuttable Presumption paragraph of this section. Right of Entry and Inspection. The Board shall have the full right at all reasonable times, and in Board's sole discretion, to enter the Designated Operating Area for the purpose of conducting an inspection, assessment, investigation, and/or regulatory compliance audit of the Designated Operating Area and/or Licensee's operations at or use of the Designated Operating Area, including operations of Licensee's employees, agents, contractors, sublessors, or any other third party under Licensee's control. The Board or its authorized agents may perform testing of the Designated Operating Area as needed, including test borings of the ground and chemical analyses of air, soil, water, Process Water, and waste discharges. The Board will provide advance written notice, including at least twenty-four (24) hours notice of planned intrusive testing, to Licensee to the extent practical under the circumstances, except in case of emergencies, when notice shall not be required. Licensee shall have the right to accompany the Board when any such testing is performed, and Licensee shall have the right to obtain, at Licensee's expense, split samples and copies of all non -privileged results of such testing, including any non -privileged reports. Licensee shall cooperate (and shall require its employees and shall exercise its best efforts to require its agents, contractors, sublessors, or any other third party under Licensee's direction and control to cooperate) in allowing prompt reasonable access to the Board to conduct such inspection, assessment, audit or testing. In the exercise of its rights under this Section, the Board shall not unreasonably interfere with Licensee's use and occupancy of the Designated Operating Area pursuant to the provisions of this Agreement. Licensee remains solely responsible for its environmental compliance, notwithstanding any Board inspection, audit, or assessment. Right to Notify Authorities. The Board reserves the right to notify and/or consult any appropriate governmental authority or agencies regarding conditions of or on the Designated Operating Area and/or concerns relating to Licensee's operations at or use of the Designated Operating Area, including operations of Licensee's employees, agents, contractors, sublessors, or any other third party under Licensee's control, if the Board reasonably believes those conditions or operations do or may violate applicable Environmental Laws, may pollute or contaminate the environment, or may adversely affect the health, welfare, or safety of persons, whether located on the Designated Operating Area or elsewhere. If the Board so notifies and/or consults such governmental authority or agencies, the Board shall notify Licensee, via its designated representative for environmental matters at the Airport, of such action within twenty-four (24) hours by verbal report in person or by telephone, electronic mail, or facsimile transmittal, to be confirmed, to the fullest extent practicable, within seventy-two (72) hours by written notice to Licensee of such notification and/or consultation, along with copies of all documents related to such notification and/or consultation, excluding legally privileged documents. The Board shall also provide Licensee's designated representative, as soon as practicable, with written notice of all subsequent substantive communications with the government authority or agencies with regard to the matter, including copies of all related correspondence or other documents sent to or received by the Board, excluding legally privileged documents. Information to be Provided to Board. If Licensee receives any notice, correspondence, citation, order, warning, complaint, inquiry, claim or demand that is not legally privileged, made confidential by applicable law, or protected as trade secrets (i) concerning any alleged Release of City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 7 of 19 Hazardous Materials, Solid Waste, or Process Water at, on, or from the Designated Operating Area or the Airport, or into the environment from the Designated Operating Area or the Airport, or (ii) alleging that Licensee or any employee, agent, contractor, sublessor, or any other third party under Licensee's direction and control has violated or is about to violate any Environmental Law(s) pertaining to Licensee's (and including third parties under Licensee's direction and control) operations at or use of the Designated Operating Area or the Airport, or (iii) asserting that Licensee is liable for the cost of remediation or investigation of a Release of Hazardous Materials, Solid Waste and/or Process Water on, at, or from the Designated Operating Area or the Airport, Licensee shall immediately, but not later than five (5) days after Licensee's receipt, provide written notice to the Board's Chief Executive Officer or designee of the same, including a copy of any related documents. Licensee shall provide to the Board's Chief Executive Officer or designee, simultaneously with its submittal to any governmental agency, a complete copy (including exhibits and attachments) of any reports or notices required by Environmental Laws, and which are not legally privileged, made confidential by applicable law, or protected as trade secrets, regarding (i) alleged failure to comply with any Environmental Laws arising out of Licensee's past or present operations at or use of the Designated Operating Area or the Airport, and/or (ii) the Release of any Hazardous Materials, Process Water, and/or Solid Waste, in, on, or into the environment arising out of Licensee's past or present operations at or use of the Designated Operating Area or the Airport. In addition, Licensee, at the request of the Board, shall make available for inspection and copying at Licensee's expense, within five (5) business days of Licensee's receipt of written request or upon other reasonable notice and at reasonable times, any or all of the substantive documents and materials (excepting those documents or materials that are legally privileged, made confidential by applicable law, or otherwise protected as trade secrets) that Licensee has prepared or caused to be prepared pursuant to any Environmental Laws or submitted to any governmental agency pertaining to the environmental compliance status of Licensee's operations at or its use of the Designated Operating Area or the Airport, including without limitation any and all records, test results, studies and/or other documentation regarding environmental conditions relating to the use, storage, or treatment of any Hazardous Materials and/or Solid Waste by Licensee on or under the Designated Operating Area or the Airport. Licensee shall also provide the Board with reasonable advance notice of any scheduled - meeting between Licensee and any governmental agency regarding, in whole or in part, compliance or alleged non-compliance with Environmental Laws of the Designated Operating Area or Licensee's (including its employees and third parties under its direction and control) use of or operations at the Designated Operating Area or the Airport. The requirements of this Section shall apply throughout the term of this Agreement and until Licensee's obligations with respect to the Designated Operating Area are extinguished. Response and Compliance Actions. Without limiting the indemnity obligations of the Environmental Indemnification paragraph of this agreement, if (i) the Designated Operating Area or other property is or becomes contaminated or otherwise damaged or injured (as is reasonably determined by the Board or any governmental agency) as a result of a Release of Solid Waste or City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 8 of 19 Hazardous Materials on, at, or from the Designated Operating Area or the Airport by Licensee or by its employees, agents, contractors, sublessors, or any other third party under Licensee's direction and control, or (ii) at any time during the term of this Agreement, or as determined by any regulatory compliance audit, environmental testing, investigation, or Concluding Environmental Assessment conducted pursuant to the Concluding Environmental Assessment paragraph of this Section, any environmental contaminants or pollutants are discovered in, on, under or from the Designated Operating Area (a) in excess of allowable levels established by applicable federal, state and local laws and regulations, or (b) that create or threaten to create an immediate or substantial threat to human health or the environment (as is reasonably determined by the Board or any governmental agency), or (c) that are required to be moved, cleaned up, or remediated by any applicable federal, state, or local law, regulation, code, standard or order, then Licensee at its sole cost and expense shall promptly control any such Release or contamination and shall immediately take all actions necessary or required to mitigate any immediate threat to human health or the environment. Licensee shall then undertake any further repairs or corrective actions, in a timely manner and in full compliance with Environmental Laws, as necessary to remove or remediate contamination, to protect the public health and safety and the environment from actual or potential harm, and to bring the Designated Operating Area or other affected property into compliance with all applicable Environmental Laws and other applicable regulatory requirements in effect as of the date thereof. If, as is reasonably determined by the Board, Licensee (1) does not take immediate or other timely action as necessary to mitigate or prevent any imminent actual or potential threat to human health or the environment, (2) does not perform or complete all necessary repairs, corrective actions or remediation required pursuant to this Section or by applicable Environmental Laws, all within a reasonable time as determined by the Board or any government regulatory agency with jurisdiction over the work required herein, or (3) fails to comply with any applicable Environmental Laws that subject the Board, the owner cities, or their respective officers, directors, councils, agents, or employees to on-going potential fines or other liability, then the Board, in addition to its rights and remedies described elsewhere in this Agreement, at its election, may enter the Designated Operating Area and take whatever reasonable action the Board deems necessary and/or appropriate to protect the public health and safety, to protect the environment from actual or potential harm, and/or to protect the Designated Operating Area and other Airport property from any material impairment to their value. In the exercise of its rights under this Section, the Board shall not unreasonably interfere with Licensee's use and occupancy of the Designated Operating Area. Correction of Environmental Non -Compliance. In the event that Licensee is in alleged non- compliance with any applicable Environmental Laws (as is reasonably determined by the Board or any governmental agency with enforcement authority regarding such alleged non-compliance) and provided that the situation or condition in question does not, as determined by the Board in its reasonable discretion, either (1) require immediate action to prevent or mitigate contamination, harm to human health or the environment, or material impact to property value, or (2) subject the Board, the owner cities, or their respective officers, directors, councils, agents, or employees to on- going potential fines or other liability, then the Board agrees to notify Licensee in writing of the alleged non-compliance and shall require Licensee to address such non-compliance within thirty (30) days of Licensee's receipt of that notice. Within that thirty (30) day period, Licensee shall have the opportunity to take whatever reasonable action is necessary, subject to approval by the Board, to City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 9 of 19 correct such non-compliance, or provide the Board a binding commitment to do so within a reasonable time. Licensee shall also have the right during that thirty (30) day period to challenge, in accordance with the dispute resolution provisions of the Dispute Resolution paragraph of this Section, any such determination of alleged non-compliance. Licensee's obligations under this Section may be deferred, upon mutual consent of the parties, until a final ruling on such challenge has been issued. Should Licensee prevail in such a challenge, Licensee shall have no further obligation under this Section. If Licensee does not take such corrective action, undertake a challenge to the non- compliance determination, or provide a binding commitment within the thirty (30) day period, the Board may, at its election, enter the Designated Operating Area and take such measures as the Board may deem necessary to correct the alleged non-compliance and/or to remediate any related contamination, all at Licensee's expense. All reasonable and documented costs associated with any action by the Board in connection with this Paragraph, including but not limited to reasonable attorneys' fees, shall be subject to the reimbursement and indemnification requirements of this Section. In the exercise of its rights under this Paragraph, the Board shall not unreasonably interfere with Licensee's use and occupancy of the Designated Operating Area. Nothing in this Paragraph is intended or shall be construed so as to prevent the Board from exercising, in its reasonable discretion, any rights granted or available elsewhere in this Section or Agreement. Corrective Action Process. Before commencing any remedial or corrective action under this Section, Licensee shall obtain approval from the Board. The work shall be performed at Licensee's expense, and the Board shall have the right to review and inspect all such work at any time using consultants and representatives of the Board's choice. All Board approvals required under this Paragraph shall not be unreasonably withheld. Specific cleanup levels for any environmental remediation work shall be designed to comply with applicable Environmental Laws and other applicable requirements of local, state and federal statutes, and regulations. Licensee shall, at Licensee's own cost and expense, make all tests, reports, and studies and shall provide all information to any appropriate governmental agency as may be required pursuant to the Environmental Laws pertaining to Licensee's response actions. This obligation includes but is not limited to any requirements for a site characterization, site assessment and/or remediation plan that may be necessary. In the event deed recordation by the Airport owner and/or operator is necessary, Licensee shall reimburse the Board and/or Cities for all deed recordation fees and attorneys' fees incurred in connection with such action. In the event the Board undertakes any action or incurs any costs in the exercise of its rights under this Section, Licensee shall reimburse the Board, in the manner determined by the Board in its reasonable discretion at the time such reimbursement is sought, for all reasonable and documented costs associated with such response, repairs, corrective action and/or remediation, including but not limited to consultants' fees, contractors' fees, attorneys' fees, penalties, costs of investigation or other costs incurred hereunder by the Board or its agents. Any remedial or other activity undertaken by Licensee under this Section shall not be construed to impair Licensee's rights, if any, to seek contribution or indemnity from another person. City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 10 of 19 ENVIRONMENTAL INDEMNIFICATION. NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY, LICENSEE AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE ENVIRONMENTAL INDEMNITEES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, PENALTIES, FINES, SUITS, ACTIONS, ADMINISTRATIVE PROCEEDINGS (INCLUDING INFORMAL PROCEEDINGS), SETTLEMENT REACHED, GOVERNMENT ORDERS, JUDGMENTS, LOSS, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING BUT NOT LIMITED TO REASONABLE AND DOCUMENTED ATTORNEYS' AND CONSULTANTS' FEES, LITIGATION COSTS, EXPERT WITNESS FEES, AND EXPENSES OF INVESTIGATION, REMOVAL, REMEDIATION, OR OTHER REQUIRED PLAN OR RESPONSE ACTION) INCURRED BY OR ASSERTED AGAINST ANY ENVIRONMENTAL INDEMNITEE AT ANY TIME BY REASON OF, IN CONNECTION WITH, OR ARISING IN WHOLE OR IN PART OUT OF (1) THE BREACH OF ANY REPRESENTATION OR WARRANTY SET FORTH IN THIS SECTION BY LICENSEE OR ANY EMPLOYEES, AGENTS, CONTRACTORS, SUBLESSORS, OR ANY OTHER THIRD PARTY UNDER LICENSEE'S DIRECTION AND CONTROL, (11) THE FAILURE OF LICENSEE TO MEET ITS OBLIGATIONS UNDER THIS SECTION IN A FULL AND TIMELY MANNER, OR (111) DOCUMENTED LOSS TO A THIRD PARTY OR GOVERNMENTAL ENTITY FROM ANY ENVIRONMENTAL IMPACT CLAIM, AS DEFINED HEREIN, TO THE EXTENT CAUSED BY OR ARISING FROM THE OPERATIONS, ACTIVITIES, ACTIONS OR INACTION OF LICENSEE OR ITS EMPLOYEES, AGENTS, CONTRACTORS, SUBLESSORS, OR ANY OTHER THIRD PARTY UNDER LICENSEE'S DIRECTION AND CONTROL AT OR IN ANY WAY RELATED TO THE DESIGNATED OPERATING AREA OR THE AIRPORT. Regardless of the date of termination of this Agreement, Licensee's obligations and liabilities under this Section shall continue so long as the Board bears any liability or responsibility under the Environmental Laws arising from Licensee's occupancy of the Designated Operating Area or use of the Airport during the term of this Agreement. Licensee's obligation under this Paragraph to indemnify, defend and hold harmless shall not apply to claims related to or arising out of (i) contamination proved by Licensee to have existed at the Designated Operating Area prior to the Licensee's DBO under this Agreement or Licensee's occupancy of any portion of the Designated Operating Area pursuant to any prior ground lease, permit, letter agreement, or similar agreement between Licensee and the Board, but only to the extent Licensee proves that such contamination was not caused by Licensee or by its employees, agents, contractors, sublessors, or any other third party under Licensee's direction and control; (ii) Releases proved by Licensee to have migrated onto or from the Designated Operating Area and not caused in whole or in part by Licensee or third parties under Licensee's direction and control; (iii) Releases on, at, or from the Designated Operating Area or the Airport proved by Licensee not to have been caused in whole or in part by Licensee or by its employees, agents, contractors, sublessors, or any other third party under Licensee's direction and control; (iv) the gross negligence or willful misconduct on the part of any of the Environmental Indemnitees. Licensee shall pay the resulting costs of such defense and settlement and any costs (including expert fees and attorney's fees) or damages finally awarded with respect thereto, provided that: (a) the Board promptly notifies Licensee in writing of the claim or lawsuit and Licensee is given a timely opportunity to defend (with counsel of Licensee's choosing) same on behalf of said entities or persons; (b) Licensee has control of the defense and all related settlement negotiations, so long as no such settlement adversely affects Board's ability to exercise its rights under this Section without Board's prior consent, and further provided that Board shall have the right to participate in the defense of any suit or similar proceeding at Board expense and through City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 11 of 19 counsel of its choosing; and (c] All legal appeals felt to be necessary by Licensee have been exhausted, ~-� Licensee shall keep the Board's Legal Counsel, Vice President of Environmental Affairs, and Vice President of Airport Real Estate informed about any defense actions or settlement negotiations that are subject to the indemnification provisions of this Paragraph. In the event that Licensee fails or refuses to defend the Board and/or those indemnified as provided in this Paragraph, the Board and/or those indemnified shall have full right to undertake their own defense and to nettle any such claims and/or lawsuits. In such event, Licensee shaU be liable to the Board and/or those indemnified, and shall,promptly pay, any resulting judgment against, or settlement by them, and shall reimburse them for all reasonable attorney's fees and costs in undertaking such defense and/or settlements. Rebuttable Presumption. Licensee's obligations under this Section (unless otherwise agreed inwriting bythe Board) shall not apply to(i)contamination proved by Licensee to have existed at the Designated Operating Area prior to the Licensee's [)B{] under this Agreement or Licensee's occupancy of any portion of the Designated Operating Area pursuant to any prior ground lease, permit, letter agreement, or similar agreement between Licensee and the Board, but only tothe extent Licensee proves that such contamination was not caused byLicensee orbyits employees, agents, contractors, sublessors, or any other third party under Licensee's direction and control; (ii) Releases proved by Licensee to have migrated onto orfrom the Designated Operating Area and not caused in whole or in part by Licensee or third parties under Licensee's direction and control; (iii) Releases on, at, or from the Designated Operating Area or the Airport proved by Licensee not to have been caused in whole or in part by Licensee or by its employees, agents, contractors, sublessors, or any other third party under Licensee's direction and control. For purposes of this Section, any Release or other condition requiring remedial action under applicable Environmental Laws and any contamination on, at, or from the Designated Operating Area discovered after Licensee's DB[) under this Agreement or occurring during Licensee's occupancy of any portion of the Designated Operating Area pursuant to any prior ground lease, permit, letter agreement, or similar agreement between Licensee and the Board shall be presumed tohave been caused by Licensee and/or its employees, agents, contractors, sublessors, or any other third party under Licensee's direction and control and/or by their activities, operations, actions or inaction related to the Designated Operating Area. Licensee may rebut this presumption by demonstrating to the reasonable satisfaction of the Board or in a court of competent jurisdiction that Licensee, its employees, agents, contractors, sublessors, or any other third party under Licensee's direction and control did not cause the alleged contamination orRelease. Baseline Environmental Assessment. The parties acknowledge that no Baseline Environmental Assessment was performed for the Designated Operating Area prior to Licensee's use oroccupancy ofthe area. Concluding Environmental Assessment, Prior tothe expiration nrearlier termination nfthis Agreement and before it vacates the Designated Operating Area (unless otherwise agreed in advance inwriting bythe 8oard)Licensee shall conduct a Concluding Environmental Assessment ("CEA") to City ofGrapevine License Reconstruction & Improvement ofBass Pro Blvd. Page 12of19 determine the environmental condition and state of compliance with Environmental Laws of the Designated Operating Area and all improvements thereon. The scope of the CEA will be determined in advance and must meet or exceed the requirements established by the Board at the time the CEA is to be performed. The CEA shall be conducted at Licensee's expense according to procedures and by a qualified person or entity approved by the Board, whose approvals shall not be withheld unreasonably. The Board, at its option, may elect to conduct or participate in the CEA, either directly or through designated representatives or consultants. Unless otherwise agreed by the parties in writing at the time the scope of the CEA is decided, if the Board instead of Licensee conducts the CEA, the audit will be at Licensee's expense, but if the Board conducts a shadow or separate CEA in addition to Licensee's CEA the Board will bear the cost of its own audit. If a Baseline Environmental Assessment ("BEA") or any environmental or regulatory compliance audit or testing was performed for any portion of the Designated Operating Area prior to Licensee's occupancy or during the term of this Agreement, the scope of the Concluding Environmental Assessment ("CEA") shall include, at a minimum, testing for all substances tested for during any such BEA, audit(s), and prior testing, unless a different scope is mutually agreed to by the parties at the time the CEA protocol for the Designated Operating Area is determined. The final results of the CEA (including any reports, documents, or test results) shall be simultaneously provided to the Board and the Licensee. In addition, the Board shall have access, upon reasonable notice and at reasonable times, to all information, raw data, opinions, and test results generated bythe CEA, excluding legally privileged information or opinions. As part of the CEA, Licensee shall provide to the Board documentation, prepared by the Board -approved person or entity, that (1) the Designated Operating Area is (a) free of Hazardous Materials, Solid Waste, and other contamination or, alternatively, that any such remaining materials or substances do not exceed allowable levels established by Environmental Laws and meet applicable standards approved or recommended by regulatory agencies with authority over any material aspect of the work or the substances in question, and (b) in compliance with applicable Environmental Laws, and (2) the removal or remediation of any Hazardous Materials, Solid Waste and/or contamination has been done in accordance with all applicable Environmental Laws and regulatory requirements. Documentation regarding remaining Hazardous Materials, Solid Waste, and other contamination shall specify, at a minimum, the name, level/amount, and extent of all such materials or substances located at, on, or under the Designated Operating Area at the time the CEA is conducted and shall explain why such substances have not been removed. If (as is reasonably determined by the Board or any governmental agency) any such substances or materials do or may pollute or contaminate the environment, and/or may adversely affect the health, welfare, or safety of persons, whether located on the Designated Operating Area or elsewhere, or may materially impair or interfere with the condition, use or enjoyment of the Designated Operating Area or any other Airport property, then the Board at its discretion may require that such documentation include an immediate remediation plan and/or long-term care and surveillance plan for any contamination identified and an acknowledgement of responsibility and indemnification for any and all losses associated with such contamination. Any such plan or response action shall meet or exceed the compliance action requirements of this Section and shall be submitted for Board review and approval prior to implementation. City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 13 of 19 If the CEA confirms the presence (surface or subsurface) of test substances in excess of the baseline quantities or levels established by any applicable Baseline Environmental Assessment and in excess of allowable levels established by Environmental Laws, or if other environmental compliance audits, studies, or investigations reveal contamination by Hazardous Materials, Solid Waste, or other substances, or demonstrates that remedial action is necessary or required (as reasonably determined by the Board or any governmental agency) to protect the public health and safety and/or the environment from actual or potential harm or to bring any portion of the Designated Operating Area into compliance with then applicable Environmental Laws or any applicable federal, state, or local law, regulation, code, standard or order or to restore any material impairment of the value of any portion of the Designated Operating Area or other affected property, then Licensee agrees to immediately undertake and to promptly complete to the satisfaction of the Board, in accordance with all applicable laws and with the provisions of this Section, and at Licensee's expense, any necessary or required clean-up, removal, or remedial action. For purposes of this Paragraph, it shall be presumed that any condition requiring remedial action resulted from the operations of Licensee, its agents, employees, sublessees, tenants, or other third parties acting under Licensee's direction or control, but this presumption may be rebutted in the manner provided in the Notices Section. For purposes of this Paragraph, Licensee shall give written notice to the Board of the effective date of any intended early termination of this Agreement not less than ninety (90) calendar days prior to the anticipated date of such event. Reimbursement. Licensee shall reimburse the Board, in the manner determined by the Board in its reasonable discretion at the time such reimbursement is sought, for any fines, penalties, or actual remediation costs and related reasonable and documented expenses that may be levied against the Board by the Environmental Protection Agency, the Texas Commission on Environmental Quality, or any other governmental agency, or that otherwise may be incurred by the Board as a result, in whole or in part, of Licensee's failure to comply fully and in a timely mannerwith its obligations under this Agreement. Compliance with Stormwater Regulations and Permits. Licensee acknowledges that the Airport is or may be subject to the Texas Pollution Discharge Elimination System Program ("TPDES"), the National Pollution Discharge Elimination System Program (" NPDES"), and state and federal regulations relating to stormwater discharges, including without limitation 40 CFR Part 122, for operations that occur at the Airport. Licensee further acknowledges that it will conduct operations and activities (and shall require its employees to conduct operations and activities, and shall exercise its best efforts to cause its agents, contractors, sublessees or other third parties under Licensee's direction and control to conduct operations and activities) on or related to the Designated Operating Area or the Airport in compliance with applicable regulations, including 40 CFR Part 122, and any applicable TPDES and/or NPDES permit(s), as these may be amended from time to time. Licensee acknowledges that its cooperation is necessary to ensure compliance with any TPDES or NPDES stormwater discharge permit(s), as well as to ensure safety and to minimize costs. Licensee acknowledges that it may be necessary to undertake to minimize the exposure of stormwater to materials generated, stored, handled or otherwise used by Licensee (including third parties under its direction and control), as defined in state and federal stormwater regulations, by implementing and maintaining effective "Best Management Practices" as defined in 40 CFR Part 122.2, depending upon the applicability to Licensee's operations or any activities conducted by City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 14 of 19 Licensee at the Designated Operating Area or on the Airport and as implemented in any applicable TPDES and/or NPDES permit, as these may be amended from time to time. Licensee further acknowledges that any existing TPDES and/or NPDES stormwater discharge permit issued to the Airport or the Board, and any subsequent permit(s), amendments, extensions or renewals thereto, to the extent affecting Licensee's operations at or related to its use of the Designated Operating Area or the Airport, is incorporated by reference into this Agreement. Licensee agrees to be bound by all applicable portions of said permit(s). The Board agrees to notify Licensee promptly of any changes to any portions of said permit(s) applicable to, or that affect, Licensee's operations at or use of the Designated Operating Area or the Airport. The Board also agrees to provide Licensee with written notice of those TPDES and/or NPDES stormwater discharge permit requirements (including any modifications thereto) that Licensee shall be obligated to perform from time to time at or related to its use of the Designated Operating Area or the Airport, including, but not limited to: certification of non-stormwater discharges, collection of stormwater samples; preparation of stormwater pollution prevention or similar plans; implementation of "good housekeeping" measures or Best Management Practices; and maintenance of necessary records. Such written notice shall include applicable deadlines. Licensee, within fifteen (15) days of receipt of the written notice, shall notify the Board in writing if it disputes any of the stormwater discharge permit requirements it is being directed to undertake. If Licensee does not provide such timely notice, it is deemed to assent to undertake such requirements. If Licensee provides the Board with written notice that it disputes such stormwater discharge permit requirements, the Board and Licensee agree to negotiate a prompt resolution of their differences and to handle any such dispute in accordance with the dispute resolution provisions of the Dispute Resolution Paragraph of this Section. Licensee warrants that it will not object to Board notices required pursuant to this Paragraph unless Licensee has a good faith basis to do so. "As Is" Status. Licensee acknowledges that except as otherwise expressly set forth in this Agreement, Licensee is taking the Designated Operating Area AS IS without any express or implied warranty. Licensee Equipment. Any fuel tanks, fuel pumps, waste oil tanks, and related lines and equipment installed by or on behalf of Licensee in furtherance of this Agreement shall at all times remain the property of Licensee, and ownership of such equipment shall not pass to the Board by virtue of such equipment being installed at the Airport. No such equipment shall be installed without the written consent of the Board, which shall not be unreasonably withheld. Waiver. Any waiver of any provision of this Section, or a delay by the Board in the enforcement of any right hereunder, shall neither be construed as a continuing waiver, nor create an expectation of non -enforcement of that or any other provision or right. In orderto be effective, any waiver of any right, benefit, or power hereunder must be in writing and signed by an authorized representative of the Board, it being intended that no waiver shall be implied by the Board's conduct or failure to act. Any specific written waiver shall be applicable only to the particular facts and circumstances thereby addressed and shall not be of any effect with respect to future events, even if any of said future events involve substantially similar circumstances. Any remedies provided for in this Section shall be cumulative and in addition to, and not in lieu of, any other remedies available to the Board at law, in equity, or otherwise. City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 15 of 19 Term of Environmental Provisions. The provisions of this Section, including the representations, warranties, covenants and indemnities of Licensee, shall relate back to Licensee's DBO, shall expressly survive termination of this Agreement. Dispute Resolution. The Board and Licensee agree that any dispute between them relating to this Section will first be submitted, by written notice, to a designated senior executive of both Licensee and the Board who will meet at the Board's place of business or other mutually agreeable location, or by teleconference, and confer in an effort to resolve such dispute. Any decisions of the executives will be final and binding on the parties. In the event the executives are unable to resolve any dispute within ten (10) days after submission to them, or within any other mutually agreed time frame, either party may refer the dispute to mediation, or institute any other available legal or equitable proceeding in order to resolve the dispute. Notices. Notices provided for under this Section must be made in writing and either delivered by hand or mailed by certified mail, return receipt requested, addressed as follows: If to the Board: Vice President, Real Estate Dept. Dallas/Fort Worth International Airport Board P.O. Box 619428 (if by mail) Business Center North 2150 S. Service Road, 4`h Floor (if by hand) DFW Airport, Texas 75261-9428 972-574-3121 Vice President, Environmental Affairs Dept. Dallas/Fort Worth International Airport Board P.O. Box 619428 (if by mail) 3100 E. 30`h Street (if by hand) DFW Airport, Texas 75261-9428 972-574-1700 If to the Licensee: City of Grapevine P.O. Box 95104 Grapevine, TX 76099 INDEMNITIES Licensee agrees to indemnify, hold harmless, defend and insure the Airport Board, the Cities of Dallas and Fort Worth, their directors, officers, agents, councils and employees from and against any and all claims and causes of action, administrative proceedings, judgments, penalties, fines, damages, losses, demands, liabilities, or expenses whatsoever (including reasonable attorney's fees and costs of litigation, mediation and/or administrative proceedings) which may be brought, City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 16 of 19 alleged, or imposed against the Airport Board, the Cities of Dallas and Fort Worth, their directors, officers, agents, councils, or employees arising directly or indirectly from or in any way connected with (1) any property damage or loss, personal injury, including death, or adverse effect on the environment, arising out of Licensee's action or inaction with regard to the operations of Licensee hereunder; (2) the failure of the Licensee, its agents or employees, to comply with the terms and conditions of this License, or to comply with any applicable federal, state, or local laws, rules, regulations, ordinances, or orders including, but not limited to, any and all applicable environmental laws, rules, regulations, or orders; and/or (3) release of any hazardous or regulated substances or waste onto, into, or from the Airport, connected in any way with Licensee's operations or action or inaction of Licensee, its agents or employees, regardless of whether the act, omission, event, or circumstance constituted a violation of applicable law at the time of the occurrence. The rights and obligations set forth in this paragraph shall survive the termination of this permit. Default. If Licensor is required or reasonably elects to pay any sum or sums, or incurs any obligations or expenses due to the failure, neglect or refusal of Licensee to perform orfulfill anyone or more of the conditions, covenants, or agreements set forth in this License, or as a result of an act or omission of Licensee contrary to said conditions, covenants and agreements, Licensee agrees to pay within ten (10) days the sum or sums so paid or the expenses so incurred, including all interest, costs, damages and penalties, and the same may be added to fees due hereunder. " Termination. The Chief Executive Officer of the Board may terminate this License at any time or require Licensee to immediately cease any operations hereunder, with or without cause, upon ninety (90) days written notice to Licensee. If this License is terminated without cause, Licensor shall refund to Licensee the fees paid for that year, pro rata, but shall have no further obligation to pay damages or reimbursement of expenses to Licensee. Holdover by Licensee. In the event Licensee shall hold over and continue its activities under this License after the expiration of the term of this License, such holding over shall not be construed to operate as a renewal or extension of this License, but shall operate and be construed as a tenancy at sufferance. MISCELLANEOUS No Assignment. This License is personal to Licensee. It shall not be assigned, sold, conveyed, mortgaged, or pledged (other than to an affiliated or related company) without the prior written approval of Licensor, which may be withheld in Licensor's sole discretion. City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd. Page 17 of 19 Entire Agreement, This License constitutes the entire agreement of the parties as to the subject matter contained herein and may not be changed, modified, discharged, or extended except by written instrument duly executed on behalf of the parties. Notices. All notices hereunder may be delivered or mailed to Licensor at the following address, or such other address as designated in writing by Licensor: D/FW International Airport Board P.O. Box 619428 DFW Airport, Texas 75261-9428 Attn: Planning & Real Estate Department All notices hereunder may be delivered or mailed to Licensee at the following address, or such other address as designated in writing by Licensee: City of Grapevine P.O. Box 95104 Grapevine, TX 76099 City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd, Page 18 of 19 Effective this day of , 2004. 2 Kevin Cox Senior Executive Vice President/C00 Date: APPROVE S O FORM: LegafCounsel for the Board ATTEST: h Staff Secretary for the Board CITY OF GRAPEVINE By: _ Name: Title: Date: ATTEST: SALicenses\2004\Grapevine — Bass Pro Blvd City of Grapevine License Reconstruction & Improvement of Bass Pro Blvd, Page 19 of 19 0 Exhibit ".A" U ._ L. Cl11[) Exhibit ".A"