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HomeMy WebLinkAboutContract 41576 (3)ac-cl !.QV( 7 N COWJ1RACT Na 151 (Lose NONEXCLUSIVE A' JI'M JI ,ICENSE 4t GREEMENT THIS LICENSE AGREEMENT, entered into the day of January, 2011 by and between the City of Fort Worth, a Texas home -rule municipal corporation (hereafter called the "Licensor"), acting herein by and through Fernando Costa, its duly authorized Assistant City z Manager, andrn�-'Rfl/ c-<rY 'i "Licensee" . The Licensor and Licensee be referred to g �) may herein individually as a Party, or collectively as the Parties. VITNESSETH That for and in consideration of mutual covenants and agreements herein contained, the Parties hereto mutually agree as follows: ARTICLE 1 GRANT OF LICENSE Licensor represents to Licensee that it is the lessee of the building located at 3741 SW Loop 820, Fort Worth, Texas 76162 (the "SOUTHWEST MUNICIPAL COURT"). Licensor hereby grants to Licensee a non-exclusive license to install, operate and maintain an ATM in the SOUTHWEST MUNICIPAL COURT in pre -approved locations agreed upon by both parties. The placement of the ATM within the SOUTHWEST MUNICIPAL COURT is shown on Exhibit "A" attached hereto and made a part hereof. The ATM's space shall consist solely of the actual physical space occupied by the ATM. ARTICLE 2 SCOPE OF LICENSE AGREEMENT (a) Licensee shall have the non-exclusive right and license to place the ATM in the SOUTHWEST MUNICIPAL COURT. Licensee may hold and have the same space during the term of this License Agreement in accordance with this License Agreement's terms and provisions. (b) Licensee shall have the right, at anytime after the first six (6) months of this License Agreement, to elect to remove the ATM from the SOUTHWEST MUNICIPAL COURT and terminate this License Agreement upon no less than thirty (30) days prior written notice to Licensor. (c) Licensee agrees to place ATM in the SOUTHWEST MUNICIPAL COURT at mutually agreed and identified indoor locations, listed on Exhibit A, attached hereto and incorporated herein by this reference. If Licensee and Licensor agree to the placement of ATM in the SOUTHWEST MUNICIPAL COURT at additional mutually agreed and identified locations subsequent to the signing of this License Agreement, then such additional location(s) will be listed on Exhibit A, and Licensee will place initials and dates next to the additional location listing. By referencing Exhibit A, the additional location(s) will be added to this License Agreement. Any new locations added will be subject to the same terms set forth in Section 3 commencing on the date of installation. All provisions of OFFICIAL RECORD CITY SECRETARY It WORTh, TX this License Agreement will apply to and be binding for all such additional locations. ARTICLE 3 TERM The term of this License Agreement shall be two (2) years commencing on the 1st day of the month in which the ATM becomes operational, (the "Commencement Date") and terminating on the 31 st day of January, 2013 (the "Term"), unless earlier terminated as provided elsewhere in this License Agreement This Contract may, however, be extended for three (3) one-year periods at the sole discretion of Licensor as approved by the City Manager. ARTICLE 4 RENT/FEES (a) Licensee shall not be obligated to pay any rent or license fees to Licensor (b) The parties agree that Licensee shall have the right to charge a "Terminal Usage Fee" or "Surcharge Fee," which shall mean a fee assessed by Licensee (or agent of Licensee to the ATM's user, whether or not such user is a customer of Licensor, as a surcharge for using the ATM Licensor shall have no right to share in any of said fee. The fee is subject to adjustment by Licensee from time to time. ARTICLE 5 LICENSEE OBLIGATIONS (a) Licensee shall install ATM in the SOUTHWEST MUNICIPAL COURT and shall operate and maintain the ATM in accordance with its reasonable practices and procedures, but in any event equal to levels of operation and maintenance customary in the industry Licensee's ATM shall be connected with at least one national ATM network (for example Cirrus, Plus, etc.). Licensee's operation of the ATM shall be in compliance with all applicable federal, state and local laws, ordinances, rules and regulations. Other than electrical, Licensee shall bear all costs in connection with the installation and maintenance of the ATM Licensee, at its expense, shall be responsible for supplying electrical services for each ATM by providing a dedicated 110 amp line. Licensee shall supply paper for transaction receipts. (b) Licensee or an affiliate or subsidiary of Licensee shall be the sole owner or lessee of the ATM, and shall be in sole control of the nature and scope of the operation of the ATM. At Licensee's expense, Licensee or an affiliate or subsidiary of Licensee, shall be solely responsible for the maintenance of the ATM, and the costs of all data communications necessary for the operation of the ATM. (c) Licensee shall use its customary practices and procedures to ensure that the ATM is operational during business hours of the SOUTHWEST MUNICIPAL COURT in which it is located, which efforts shall include, without limitation, dispatching service personnel, making repairs, providing janitorial services, replenishing cash, and monitoring dataline problems' of its ATM. (d) Licensee and Licensor shall mutually agree on the date and time of installation and removal of the ATM. (e) Licensee agrees to provide, install, operate and maintain, at no expense to Licensor, the computer, telephone and other lines which serve the ATM, as well as any and all other facilities or equipment which may be necessary or appropriate for the installation, operation and maintenance of the ATM. The appearance, location and all other features and characteristics of the lines, facilities and equipment serving the ATM will be mutually agreed upon by Licensor and Licensee. Upon termination of this License Agreement or removal of the ATM from the SOUTHWEST MUNICIPAL COURT, all conduit and electrical, computer, telephone and other lines which serve the ATM will remain the property of Licensor and remain at the SOUTHWEST MUNICIPAL COURT Licensee shall have no further obligation to restore the SOUTHWEST MUNICIPAL COURT upon removal of the ATM. (f) Licensee shall provide all cash services (maintaining sufficient cash in the ATM), paper loading, and first line maintenance (paper and cash misfeeds) for each ATM. ARTICLE 6 LICENSOR'S OBLIGATIONS (a) Licensor shall bear the expense of all day-to-day electricity consumed in the operation of the ATM and ATM signage at the Premises. (b) Licensee, its employees, independent contractors and agents shall have access to the ATM during business hours for the purpose of installing, maintaining, servicing, operating and removing the ATM. In doing so, Licensor shall not interfere with the normal operations of Licensee's business and will ensure that no obstructions limit full access to the ATM. (c) Licensor shall have no responsibility for the security of any ATM, other than to act in accordance with its customary practices and procedures with respect to the SOUTHWEST MUNICIPAL COURT and its property contained therein, and shall not be responsible for the operation of the ATM. (d) Any interior or exterior ATM signage and/or merchandising shall be mutually agreed upon by Licensor and Licensee and shall be sufficient to promote and advertise the placement of the ATM in the SOUTHWEST MUNICIPAL COURT. ARTICLE 7 ADVERTISING Neither party shall refer to the other party in advertising nor use the other party's logos, trademarks, or service marks without the prior written consent of the other party; provided, however, that Licensee shall be permitted, without obtaining the consent of the Licensor, to include the address of the ATM in a directory of all or a portion of Licensee and/or any wholly -owned subsidiary's ATM and/or other banking facilities Each party acknowledges that the other party's logos, trademarks, and service maiks are the sole property of the other party. ARTICLE 8 ATM LOCATION ADJUSTMENTS If, after ATM have been installed, Licensor shall designate a different location for such ATM, Licensee, at Licensor's expense, after no less than sixty (60) days prior written notice, shall remove and relocate the ATM to a location reasonably acceptable to both parties. If Licensee and the Licensor cannot mutually agree on an acceptable location, Licensor shall have the right to terminate this License Agreement upon thirty (30) days written notice to Licensee, in which event all rights and obligations hereunder relating to the SOUTHWEST MUNICIPAL COURT shall cease upon such termination ARTICLE 9 TRADE SECRETS I'he ATM consists of computer programs, procedures, forms and other related materials which have been acquired, licensed to or developed by Licensee at substantial expense. Licensor acknowledges that the foregoing are trade secrets which are of great value to Licensee and disclosure to others of any of the programs, procedures, forms, and other related materials with respect to the License Product will result in loss and irreparable damages to Licensee. Licensor, therefore agrees not to disclose to others any information regarding such programs, contracts, procedures, forms and other related materials with respect to License Agreement except as required by law. All specifications tapes, programs and other related materials developed by or for Licensee in connection with this License Agreement are the property of Licensee and will be returned to Licensee upon the termination of this License Agreement. This paragraph is subject to Article 23 of this License Agreement ARTICLE 10 PERSONAL PROPERTY The ATM and its contents shall remain the property of Licensee at all times and shall not be construed as fixtures. ARTICLE 11 INDEMNIFICATION Licensee covenants and agrees to and does hereby indemnify, hold harmless and defend, at its own expense, Licensor, its officers, servants and employees, from and against any and all claims or suits for property loss, including but not limited to, Workers' Compensation Act liability lost profits, property damage, damage and/or personal injury, including death, to any and all persons, of whatsoever kind or character, whether real or asserted, arising out of the use or occupation of the facilities by Licensee. THIS INDEMNITY PROVISION (INCLUDING, WITHOUT LIMITATION, INDEMNITY FOR COSTS, EXPENSES AND LEGAL FEES) IS SPECIFICALLY INTENDED TO OPERATE AND BE APPLICABLE EVEN IF IT IS ALLEGED OR PROVED THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED AS A WHOLE OR IN PART BY ANY ACT, OMISSION, NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT, INTENTIONAL CONDUCT, VIOLATION OF STATUTE OR COMMON LAW, BREACH OF WARRANTY, PRODUCT DEFECT, STRICT PRODUCT LIABILITY, OR ANY OTHER CONDUCT WHATSOEVER OF THE LICENSOR. ARTICLE 12 INSURANCE (a) Licensee shall not commence work under this License Agreement until it has obtained all insurance required under this Article and Licensor has approved such insurance, nor shall Licensee allow any subcontractor to commence work on its subcontract until all similar insurance of the subcontractor has been so obtained and approval given by Licensor; provided, however, Licensee may elect to add coverage for any sub -consultant under its liability policies. (b) Policies are to be written on an occurrence basis or if coverage is written on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement. The certificate of insurance shall state that the coverage is claims -made and include the retroactive date. The insurance shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to Licensor shall evidence coverage. Workers' Compensation Statutory Employers Liability $100,000 each accident/occurrence $100,000 Disease, each employee $500,000 Disease, policy limit Commercial General Liability $1,000,000 each occurrence $2,000,000 aggregate (c) Additional Insurance Requirements 1. Licensor, its officers, employees and servants shall be endorsed as an additional insured on Licensee's general liability insurance policy. 2. Certificates of insurance shall be delivered to: Director of Municipal Courts City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 3. Any failure on the part of Licensor to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. 4. Each insurance policy shall be endorsed to provide Licensor a minimum thirty days notice of cancellation, non -renewal, and/or material change in policy terms or coverage. A ten days notice shall be acceptable in the event of non-payment of premium. 5. Insurers must be authorized to do business in the State of Texas and have a current A.M. Best rating of A VII or equivalent measure of financial strength and solvency. 6. Other than worker's compensation insurance, in lieu of traditional insurance, Licensor may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups. Licensor must approve in writing any alternative coverage. 7. Workers' compensation insurance policy(s) covering employees employed on the Project shall be endorsed with a waiver of subrogation providing rights of recovery in favor of Licensor. 8. Licensor shall not be responsible for the direct payment of insurance premium costs for Licensee's insurance. 9. Licensee's insurance policies shall each be endorsed to provide that such insurance is primary protection and any self -funded or commercial coverage maintained by Licensor shall not be called upon to contribute to loss recovery. 10. In the course of the License Agreement, Licensee shall report, in a timely manner, to Licensor's officially designated contract administrator any known loss occurrence which could give nse to a liability claim or lawsuit or which could result in a property loss. 11. Licensee's liability shall not be limited to the specified amounts of insurance required herein. 12. Upon the request of Licensor, Licensee shall provide complete copies of all insurance policies required by these License Agreement documents. ARTICLE 13 TRANSFER OR ASSIGNMENT Licensor and Licensee each bind themselves, and their lawful successors and assigns, to this License Agreement Licensee, its lawful successors and assigns, shall not assign, sublet or transfer any interest in this License Agreement without prior written consent of Licensor ARTICLE 14 TERMINATION OF CONTRACT (a) Licensor may terminate this License Agreement for its convenience on 30 days' written notice. Licensee may terminate this License Agreement for its convenience pursuant to Article 2(b). Either party for cause may terminate this License Agreement if the other party fails substantially to perform through no fault of the other and does not commence correction of such nonperformance with 5 days of written notice and diligently complete the correction thereafter. (b) If Licensor chooses to terminate this License Agreement under Article 12, upon receipt of notice of termination, Licensee shall discontinue services rendered up to the date of such termination. (c) All reports, whether partial or complete prepared under this License Agreement, including any original drawings or documents, whether furnished by Licensor, its officers, agents, employees, consultants, or contractors, or prepared by Licensee, shall be or become the property of Licensor, and shall be furnished to Licensor prior to or at the time such services are completed, or upon termination or expiration of this License Agreement. (d) Bankruptcy. Either party hereto shall have the right to terminate this License Agreement immediately and without prior notice, in the event that the other party: (i) terminates or suspends its business, due to any bankruptcy or insolvency proceeding under federal or state statute; (ii) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority; or (iii) has wound up and/or liquidated, whether voluntary or otherwise. (e) Breach in the event a party hereto materially defaults in the performance of any of its duties or obligations hereunder, which default shall not be substantially cured within thirty (30) days after written notice is given to the defaulting party specifying the default, then the party not in default may, by giving written notice thereof to the defaulting party, terminate this License Agreement for cause. (f) Surcharge. In the event that there occurs a material change in any federal or state law, or any network rule or regulation which impacts Licensees ability to assess the Fee, Licensee shall have the right to immediately renegotiate and/or terminate this License Agreement. ARTICLE 15 NO JOINT VENTURE OR AGENCY LICENSOR NOT A BANK The parties acknowledge and agree that nothing contained in this License Agreement is intended or shall be construed to establish Licensor and Licensee as joint venturers or partners. In addition, the parties acknowledge and agree that Licensor, by entering into this Agreement, is not in any manner representing itself to be a bank or otherwise involved in the banking business. The relationship between the parties is strictly that of independent contractors, and neither shall have the authority to act as or to hold itself out as an agent or representative of the other for any purpose. ARTICLE 16 OBSERVE AND COMPLY Licensee shall at all times observe and comply with all federal, state, and local laws and regulations and with all City of Fort Worth ordinances and regulations which in any way affect this Agreement and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment No plea of misunderstanding or ignorance thereof shall be considered. Licensee agrees to defend, indemnify and hold harmless Licensor and all of its officers, agents and employees from and against all claims or liability arising out of the violation of any such order, law, ordinance, or regulation, whether it be by itself or its employees. ARTICLE 17 VENUE AND JURISDICTION 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 License Agreement shall be construed in accordance with the laws of the State of Texas. ARTICLE 18 CONTRACT CONSTRUCTION The parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this License Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this License Agreement or any amendments or exhibits hereto. ARTICLE 19 SEVERABILITY The provisions of this License Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this License Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this License Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this License Agreement to other persons or circumstances shall not be affected thereby and this License Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. ARTICLE 20 NOTICES Notices to be provided hereunder shall be sufficient if forwarded to the other party by hand-dehvery or via U.S. Postal Service certified mail return receipt requested, postage prepaid, to the address of the other Party shown below: Licensor: Attn: Director of Municipal Courts City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 With a Copy to: City Attorney 1000 Throckmorton Street Fort Worth, Texas 76102 Licensee: ARTICLE 21 HEADINGS The headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. ARTICLE 22 COUNTERPARTS This License Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. ARTICLE 23 PUBLIC INFORMATION ACT Licensee understands and acknowledges that Licensor is a public entity under the laws of the State of Texas and as such, all documents held by Licensor are subject to disclosure under Chapter 552 of the Texas Government Code. Licensee shall clearly indicate to Licensor what information it deems proprietary. If the Licensor is required to disclose any documents that may reveal any proprietary information to third parties under the Texas Government Code, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, Licensor will notify Licensee prior to disclosure of such documents, and give Licensee the opportunity to submit reasons for objections to disclosure. Licensor agrees to restrict access to Licensee information to those persons within its organization who have a need to know for purposes of management of this License Agreement Licensor agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any un- authorized disclosure or transfer of information. Licensor will use its best efforts to secure and protect Licensee's information in the same manner and to the same degree it protects its own proprietary information; however, Licensor does not guarantee that any information deemed proprietary by Licensee will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this License Agreement. ARTICLE 24 FORCE MAJEURE It is expressly understood and agreed by the parties to this License Agreement that if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this License Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period requirement shall be extended for a period of time equal to the period such party was delayed. (Remainder of Page Intentionally Left Blank) IN WI NIi4:SS THEREOF, REEF, the parties hereto have made and executed this License Agreement in multiple originals the day and year first above written, in Fort Worth, Tarrant County, Texas. LICENSOR: CITY OF FORT WORTH: Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: i AlettiMA A4161/1kit----Leann D. Guzman Assistant City Attorney ATTEST: Alkli(. hi" Marty Hendrix b City Secretary r6\ IL\ lam CI Date M&C No. 71 Name: 1_,>in.,,1 LICENSEE: Ro Title: Oti otNer-- tto1pQo 00000iY' gad �s 0 o r o ?i°4 • OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX