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HomeMy WebLinkAboutContract 51975-A2 Licensor Site Name/Number Live Oak Creek/309118 Licensor Contract Number: 669093 �pR2 P�\NoP�N Licensee Site Name/Number:Live Oak Creek/309118 SECOND AMENDMENT TO CSC 51975 CITY SECRETARY LIVE OAK CREEK LICENSE AGREEMENT .,� '�l?�. Iq7 _H a This Second Amendment (the "Second Amendment") to that certain License Agreement dated August 16, 2018 by and between American Tower Asset Sub LLC and Aqua Metric Sales Company,a registered d/b/a of Thirkettle Corporation(the"Agreement"),is made and entered into as of the latter signature date hereof,by and between American Tower Asset Sub,LLC,a Delaware limited liability company(the"Licensor")and City of Fort Worth,-a Texas municipality,successor by assignment to Aqua Metric Sales Company, a registered d/b/a of Thirkettle Corporation (the "Licensee") (collectively,the"Parties"). RECITALS WHEREAS,Licensor owns a certain communications tower and leases a certain parcel of land located at 2900 Cattlebaron Rd, Fort Worth TX 76108-9562 known to Licensor as the Live Oak Creek, TX tower site (the "Tower Facility"); and WHEREAS, Licensor and Licensee entered into the Agreement for the use of a certain portion of the Tower Facility and electricity for operation of approved equipment; and WHEREAS, the Agreement, as amended, was assigned to the City of Fort Worth as the current Licensee and is known as City Secretary Contract No. 51975; and WHEREAS,the Parties desire to modify the terms of the Agreement to change the Monthly License Fee to be payable on an annual basis. NOW THEREFORE, in consideration of the foregoing promises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows: 1) Notwithstanding anything to the contrary contained in the Agreement, effective upon the full execution of this First Amendment to City Secretary Contract No. 51975,Licensee will pay the twelve Monthly License Fee payments in a single payment,payable in advance of each anniversary of the Commencement Date ome� gr�ement. The Monthly License Fee payments owed from the effective date of thisAmendment through the anniversary -06 date of the Commencementpate of the Agreement will be paid within 60 days of the effective date of this Pk496mendnient. The Commencement Date for the Live Oak Creek site was established as August 16,2018. 2) Capitalized terms contained herein,unless otherwise defined,are intended to have the same meaning and effect as that set forth in the Agreement. 3) All other terms and provisions of the Agreement remain in full force and effect._ 1 Licensor Site Name/Number Live Oak Creek/309118 Licensor Contract Number: 669093 Licensee Site Name/Number:Live Oak Creek/309118 IN WITNESS WHEREOF, the Parties hereto have set their hands to this Th4rd-SfCG Amendment to that certain License Agreement as of the day and year written below: LICENSEE: LICENSOR: City of Fort Worth, a Texas American Tower Asset Sub, LLC, a Municipality Delaware limited liability liaabiility company By: / Name: Daniel Broe Title: Senior Counsel Date: 2- /�1 2--aZa By: WJWQI Dana Burghdo 4 Assistant City Manager Date: S 2-0Z APPROVAL RECOMMENDED: By hris Wated Director Date: ' l� APPROVED AS TO FORM AND LEGALITY: By: John . Strong Assistant City Attorney III ATTES Fes;• `•e�'r��T. By: Mary J. Kayser ` City Secretary tA4 R c'lrl R"INo a�su OFFUAL RECORD CoV' SECRETARY rt WORTH, TX Licensor Site Name/Number Live Oak Creek%309118 Licensor Contract Number: 669093 Licensee Site Name/Number:Live Oak Creek/309118 Contract Authorization: M&C: NA 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. By: Madele e a lko,P.E. MyH2O Program Manager 3 0 vet A v e�n dvin e u`"� i©r nfo vita n H0,, "Uav �ooHa u F e DocuSign Envelope ID:03D95152-52A4-48E4-A412-584E7C615655 Licensor Site Name/Number:Live Oak Creek,TX/309118 Licensor Contract Number: 669093 Licensee Site Name/Number:AquaMetric ATC 039118/AquaMetric ATC 039118 FIRST AMENDMENT TO LICENSE AGREEMENT This First Amendment (the "First Amendment") to that certain License Agreement dated August 16, 2018 by and between American Tower Asset Sub, LLC and Thirkettle Corporation (the "Agreement") is made and entered into as of the latter signature date hereof, by and between American Tower Asset Sub, LLC, a Delaware limited liability company (the "Licensor") and Thirkettle Corporation, a California corporation(the"Licensee") (collectively,the"Parties"). RECITALS WHEREAS, Licensor owns a certain communications tower and leases a certain parcel of land located at 2900 Cattlebaron Rd., Fort Worth, TX 76108-9562 more commonly known to Licensor as the Live Oak Creek, TX tower site (the "Tower Facility"),and WHEREAS, Licensor and Licensee entered into the Agreement for the use of a certain portion of the Tower Facility; and WHEREAS,the Parties desire to correct the utility information in the Agreement. NOW THEREFORE, in consideration of the foregoing promises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the Parties hereto agree as follows: 1) Effective retroactive to the Effective Date of the Agreement, page 2, Section IV of the Agreement shall be modified to reflect: "Electricity for operation of Approved Equipment is to be provided by(check one): ®Licensor,with the cost of such electricity to be paid by Licensee at the initial rate of$5.60 per month("Utility Fee")subject to adjustment pursuant to Subsection 5(b),OR ❑Licensee,at its sole expense." 2) Effective retroactive to the Effective Date of the Agreement, Section 5(b) of the Agreement,Utilities, shall be deleted in its entirety and replaced with: "Licensee agrees to install a sub-meter and/or connect to Licensor's power on or before the Commencement Date. Licensee shall pay the cost of all utility service necessary, including the Utility Fee and Connection Fee, to install, maintain and operate the Approved Equipment. The Utility Fee shall be payable in advance on the first day of each calendar month during the Term beginning upon the Commencement Date. If Licensor determines, in its sole discretion, that Licensee's utility usage increased over Licensee's utility usage as of the Commencement Date,or as of the date of the last Utility Fee increase resulting from increased utility usage,Licensor may, but is not required,to modify the Utility Fee by an amount equal to Licensor's actual increased costs incurred due to Licensee's increased utility usage. If such a modification in the Utility Fee is imposed,Licensor shall notify Licensee in writing of such increase in the Utility Fee. Any such change in the Utility Fee resulting from an increase in Licensee's utility usage will take effect with the next payment of the Utility Fee coming due after Licensee's receipt of Licensor's notice. ;f 1 DocuSign Envelope ID:03D95152-52A4-48E4-A412-584E7C615655 Licensor Site Name/Number:Live Oak Creek,TX/309118 Licensor Contract Number: 669093 Licensee Site Name/Number:AquaMetric ATC 039118/AquaMetric ATC 039118 Licensee shall obtain and pay the cost of telephone connections,the installation of which shall be in compliance with the procedures for installation and maintenance of Approved Equipment set forth herein.Licensee acknowledges that Licensor shall not provide backup power in the event of an interruption in utility service. In the event that(i)Licensee elects to cause its utility service to be separately metered from Licensor's utilities, or (ii) Licensee powers down the Approved Equipment(each, a"Utility Change Event"), and Licensee shall provide not less than thirty (30) days' prior written notice to Licensor of such Utility Change Event together with supporting documentation relating to such Utility Change Event,Licensee shall pay to Licensor the cost of all utility service drawn from Licensor's meter until Licensee's use of such utilities at the Tower Facility are separately metered or Licensee terminates all use of Licensor's utilities at the Tower Facility. Licensee acknowledges that it shall remain responsible for any utility charges provided for herein prior to Licensor's receipt of a notice of a Utility Change Event, including those incurred following the expiration of this Agreement but prior to the removal of Licensee's Approved Equipment." 3) Licensor and Licensee agree and acknowledge that as of the date this First Amendment is fully executed,Exhibit A to the Agreement shall hereby be deleted in its entirety and shall be replaced with Exhibit A-1 attached hereto and incorporated by this reference. 4) Capitalized terms contained herein, unless otherwise defined, are intended to have the same meaning and effect as that set forth in the Agreement. 5) All other terms and provisions of the Agreement remain in full force and effect. [SIGNATURES APPEAR ON THE NEXT PAGE] [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] 2 DocuSign Envelope ID:03D95152-52A4-48E4-A412-584E7C615655 Licensor Site Name/Number:Live Oak Creek,TX/309118 Licensor Contract Number: 669093 Licensee Site Name/Number:AquaMetric ATC 039118/AquaMetric ATC 039118 IN WITNESS WIIEREOF, the Parties hereto have set their hands to this First Amendment to that certain License Agreement as of the day and year written below: LICENSEE: LICENSOR: Thirkettle Corporation, a California American Tower Asset Sub,LLC, a corporation Delaware limited liability company DocuSigned by: DocuSigned by: E _� / 6AY fW twSbin, (UA(,(, (,416 2EFC390E1DFC416... EFA49tMD84!0.�' rgaret Robinson Michael Cartwright By: By: Name: Sr Counsel US Tower. Name: operations Title: Title: Date: December 27, 2018 Date: October 26, 2018 3 Assigned Contract 0; � -A91 Y �1 � Chi l'rRAG T 510. -- - ASSIGNMENT OF AGREEMENTS 0 A k s t?E This Assignment of Agreements (this"Assignment")is entered into as of the date set forth below between Aqua Metric Sales Company, a registered d/b/a of Thirkettle Corporation, a California corporation ("Assignor"), and the City of Fort Worth ("Assignee") (Assignor and Assignee are sometimes referred to herein individually as a "Party" and collectively as the "Parties"). RECITALS: A. Assignor, as "Consultant'' or "Contractor", and Assignee, as "City" or "Client", entered into that certain Professional Services Agreement (the "PSA") on or about October 14"', 2016. B. Assignor has entered into one or more agreements with third parties in connection with its performance of the services set forth in the PSA (the "Agreements", as more specifically set forth on Exhibit"A", attached hereto and incorporated herein). C. Concurrently with the execution of this Assignment, Assignor has conveyed the Agreements to Assignee, and in connection with such conveyance, Assignor has agreed to assign the Agreements to Assignee. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration in hand paid by Assignee to Assignor,the receipt and sufficiency of which are hereby acknowledged and confessed by Assignor, Assignor and Assignee hereby agree as follows: 1. Assignor's Assignment. Assignor does hereby ASSIGN, TRANSFER, SET OVER and DELIVER the Agreements to Assignee, its successors and assigns, TO HAVE AND TO HOLD the Agreements attached hereto as Exhibit A, together with all and singular the rights and appurtenances thereto in anywise belonging,unto Assignee, its successors and assigns forever: and Assignor does hereby bind itself, its successors and assigns forever, so that neither Assignor, nor Assignor's successors or assigns, shall at any time hereafter have, claim or demand any right or title to the Agreements, or any part thereof. 2. Further Assurances. Assignor hereby agrees to perform, execute and/or deliver or cause to be performed, executed and/or delivered any and all such further acts and assurances as Assignee may reasonably require to perfect Assignee's interest in the Agreements. 3. Assignee's Duty. It is specifically agreed that Assignor shall not be responsible for the discharge and performance of any duties or obligations to be performed and/or discharged in connection with the Agreements after the effective date hereof. By acceptance of this Assignment and by execution hereof, Assignee accepts and agrees to perform all of the terms, covenants and conditions in connection with the Agreements required to be performed thereunder, from and after the effective date hereof,but not prior thereto. a e i 4. Assignor's Indemnity. It is further agreed that Assignee shall not be responsible for the discharge and performance of any duties or obligations required to be performed and/or discharged in connection with the Agreements prior to the effective date hereof. In such regard Assignor agrees to indemnify and hold harmless Assignee; inclusive of attorneys' fees and court costs, from and against losses incurred by Assignee as a result of claims brought against Assignee, as Assignor's successor in interest to the Agreements,relating to causes of action arising from any failure by Assignor to perform or discharge the obligations of the landlord under the Agreements prior to the effective date hereof. 5. Binding Aureement. This Assignment is binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to become effective the P' day of February 2019. ASSIGNEE: ASSIGNOR: CITY ZT A ORTH AQUA TRIE S E CO P Y By: By: 1/ — - Jesus . Chapa Name: Michael Cartwright Assistant City Manager Title: Vice P•eside t of Operations Date: Date: Contract Compliance Manager By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensure g all perfor ance and reporting requirements. Name: M r, t Jf I A z p_cA F-I l k Title: M�� 1- �7v APPR E AS TO FORM AND LEGALITY: Jessica n w,hg Senior As i it City ttorne Form 1295: N/AOR 01 -> AT T BY- Mary Kayser City Secretary �;' r M&C#N/A ... ...•r'