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HomeMy WebLinkAboutContract 63190City Secretary Contract # 63190 LICENSE AGREEMENT This License Agreement ("License") is made and entered into by and between TruWeather Solutions, Inc. ("Licensee"), a Delaware corporation, and the City of Fort Worth ("Licensor"), a Texas municipal corporation, acting by and through its duly authorized Assistant City Manager, Dana Burghdoff. WHEREAS Licensor is the owner of the property known as the Fort Worth Public Library - Golden Triangle located at 4264 Golden Triangle Boulevard, Fort Worth, Texas 76244 (the "Library Property"); WHEREAS Licensee has requested from Licensor the right to enter and utilize a portion of the Library Property (the "Premises"), as depicted in Exhibit A, to install and operate one Barani MeteoWind/MeteoHelix weather sensor on a 10-foot steel pole; and WHEREAS, Licensor agrees to license the Premises to Licensor on the terms and conditions set forth herein. SECTION 1. Grant of License. In consideration for the covenants and agreement hereafter set forth and for good and valuable consideration, Licensor grants unto Licensee a non-exclusive license (subject to Licensor's reserved rights as set forth herein), without express or implied warranty, to the Premises, as depicted in Exhibit A, attached hereto and incorporated herein for all purposes, solely for the permitted uses set forth in Section 2(a). This grant of license does not convey any property interest in the Premises to Licensee, and all property rights and ownership are hereby expressly retained by Licensor. SECTION 2. Use of Premises. (a) Permitted Uses. Licensee may use the Premises only to and operate one Barani MeteoWind/MeteoHelix weather sensor on a 10-foot steel pole (the "Weather Station") at Licensee's sole cost and expense, provided that the Premises immediately surrounding the sensor installation must be maintained and preserved in good condition, without temporary or permanent structures or improvements. The uses set forth in the preceding sentence shall collectively be referred to herein as the "Permitted Uses." (b) Prohibited Uses. Any use that is not a Permitted Use is prohibited. Other than the Weather Station (as defined herein), nothing shall be allowed to be placed, stored, or remain on the Premises, including but not limited to, structures, improvements, fixtures, machinery, equipment, or personal property of any kind. (c) Structure Improvements. No improvements, either permanent or temporary, shall be allowed to be constructed, installed or placed on the Premises other than improvements described above. (d) Damave. Licensee shall not damage the Premises in any way. If any damage occurs to the Premises, Licensor, in its sole discretion, may require Licensee to make necessary repairs or provide maintenance to restore the Premises to its current condition. Licensee shall be solely responsible for obtaining any necessary permits for such maintenance OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX or repair. If Licensee fails to make the repairs or maintenance required by Licensor, Licensor reserves the right to make the repairs or maintenance and bill Licensee for the reasonable cost of such repairs. If Licensee fails to pay the billed amount, Licensor may pursue all legal remedies to collect the amount due. (e) Licensor's Access. Licensor reserves the right to enter the Premises at any time and for any reason, without notice, for inspection of the Premises. Licensor reserves the right to perform maintenance, repairs, improvements, and alterations to any or all of the Premises, at any time and for any reason. SECTION 3. Consideration and Access to Data. Licensee hereby agrees to provide Licensor with access to the observations collected by the Weather Station (the "Data"). Licensor acknowledges and agrees that Data provided by Licensee to Licensor pursuant to this Agreement shall remain the sole and exclusive property of Licensee and may not be republished or redistributed by Licensor in any other way without the prior written consent of Licensee or unless required by law, including the Texas Public Information Act. The restriction on the republication or redistribution of the Data shall not apply in cases of emergency (as determined by Licensor in its reasonable discretion), in which case Licensor may republish or redistribute the Data, in raw form or otherwise, to others as it deems reasonably appropriate under the circumstances. In all cases of such republication or redistribution of the Data, Licensor will promptly notify Licensee of the circumstances of such republication or redistribution. SECTION 4. Term. This License shall begin upon the signing of the License by Licensor's Assistant City Manager (the "Effective Date") and expire three (3) years from the Effective Date. SECTION 5. Imurovements and Repairs. (a) The parties agree that this License does not create an obligation in or requirement on Licensor to perform any maintenance, repairs, improvements, or alterations to the Premises on behalf of Licensee, but rather provides Licensor the permission to perform such maintenance, repairs, improvements, or alterations to the Premises at Licensor's sole discretion and cost as outlined in Section 2(d). This License is not a service contract between Licensor and Licensee. (1) All improvements, repairs, or alterations to the Premises by Licensee will be made by a licensed and insured contractor, and shall be performed in a good and workmanlike manner. All materials used shall be of a high quality, and of materials that do not compromise, reduce or diminish the quality of the Premises in any way. (2) Licensee will not cause or permit any mechanics' liens or other liens to be filed against the land or any improvements on the Premises by reason of any work, labor, services, or materials supplied or claimed to have been supplied to Licensee or anyone holding the Premises or any part of them through or under Licensee. If such a mechanic's lien or materialman's lien is recorded against the Premises or any improvements thereon as a result of Licensee's actions, Licensee must either cause it to be removed or, if Licensee in good faith wishes to contest the lien, take timely action to do so, at Licensee's sole expense. LICENSEE WILL INDEMNIFY LICENSOR AND HOLD IT HARMLESS -2- FROM ALL LIABILITY FOR DAMAGES OCCASIONED BY THE LIEN OR THE LIEN CONTEST AND WILL, IN THE EVENT OF A JUDGMENT OF FORECLOSURE ON THE LIEN, CAUSE THE LIEN TO BE DISCHARGED AND REMOVED BEFORE THE JUDGMENT IS EXECUTED. (b) Any improvements, repairs, or alterations made to the Premises shall become the property of Licensor upon termination or expiration of the License. (c) Licensee shall keep the Premises in good, clean, attractive, and sanitary condition in compliance with all applicable laws, ordinances, and regulatory provisions. SECTION 6. Insurance. Licensee shall procure and maintain at all times, in full force and effect, a policy or policies of insurance to provide coverages as specified herein, naming the Licensor as an additional insured and covering all public risks related to the use, occupancy, condition, maintenance, existence or location of the Premises and the Permitted Uses. Commercial General Liability: (1) Combined limit of not less than $1,000,000 per occurrence or $2,000,000 in the aggregate. (2) Defense costs shall be outside the limits of liability. (b) Automobile Liability Insurance covering any vehicle used in providing services under this License, including owned, non -owned, or hired vehicles, with a combined limit of not less than $1,000,000 per occurrence. (c) If workers' compensation is applicable to Licensee's business, Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. (d) General Insurance Requirements: (1) All applicable policies (other than the worker's compensation policy) shall name Licensor as an additional insured thereon, as its interests may appear. The term Licensor shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (2) All applicable policies shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (3) A minimum of ten (10) days' notice of cancellation or reduction in limits of coverage shall be provided to the Licensor. Ten (10) days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Licensor's Risk Management Department, City of Fort Worth, 100 Fort Worth Trail, Fort Worth, Texas 76102, with a copy to the City Attorney at the same address. -3- (4) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Licensor's Risk Management Office. If the rating is below that required, written approval of Licensor's Risk Licensee is required. (5) Any failure on the part of Licensor to request required insurance documentation shall not constitute a waiver of the insurance requirement. (6) Satisfactory evidence that Licensee has obtained all required insurance shall be delivered to and approved by Licensor's Risk Management Division prior to execution of this License. Licensor assumes no liability or financial obligation for the acquisition or maintenance of such insurance; all costs incurred during the course of insuring the Premises shall be borne solely by the Licensee. Licensor is basically a self -funded entity and as such, generally, it does not maintain a commercial liability insurance policy to cover premises liability. Damages for which Licensor would ultimately be found liable would be paid directly and primarily by Licensor and not by a commercial insurance company. SECTION 7. Liability and Indemnification. Licensee agrees to pay Licensor for all damages suffered or incurred by Licensor as a direct result of any of operations on or from the Premises conducted for or by Licensee, its agents, employees or representatives, including, but not limited to, all damage or injury to buildings, fences, equipment, and all other property, whether real or personal. LICENSEE AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR, LICENSER'S MEMBERS, DIRECTORS, OFFICERS, PARTNERS, EMPLOYEES, AGENTS, LEGAL REPRESENTATIVES, AFFILIATES, SUCCESSORS AND ASSIGNS (COLLECTIVELY "INDEMNITEES") FROM AND AGAINST ALL SUITS, CLAIMS, DEMANDS, AND CAUSES OF ACTION BROUGHT AGAINST AND ANY RESULTING LIABILITIES, LIENS, DAMAGES, LOSSES, REMEDIATION, REMOVAL OR CLEAN-UP OBLIGATIONS, FINES, PENALTIES, JUDGMENTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, COURT COSTS, COSTS OF INVESTIGATION AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION WHATSOEVER FOR ANY LOSS OF OR DAMAGE TO PREMISES OR INJURY TO OR DEATH OF ANY PERSON INCIDENT TO, CAUSED BY, RESULTING FROM OR ARISING OUT OF (A) LICENSEE'S EXERCISE OF THE RIGHTS GRANTED HEREIN, OR (B) ANY ACT OR OMISSION OF LICENSEE, ANY CONSULTANT, CONTRACTOR, SUBCONTRACTOR, OR AGENT OF LICENSEE, ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM, OR ANYONE THAT THEY CONTROL -4- OR EXERCISE CONTROL OVER (COLLECTIVELY, "CLAIMS"). THE INDEMNITEES WILL NOT BE LIABLE IN ANY MANNER TO LICENSEE OR TO ANY OTHER PARTY AS A RESULT OF THE ACTS OR OMISSIONS OF LICENSEE OR ITS CONSULTANTS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, OR OTHERS IN OR ON THE LICENSOR'S PROPERTY WITH THE PERMISSION OF LICENSEE. ALL PERSONAL PROPERTY (INCLUDING WITHOUT LIMITATION ALL MOTOR VEHICLES) UPON THE LICENSOR'S PROPERTY WILL BE AT THE RISK OF LICENSEE, AND THE INDEMNITEES WILL NOT BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, EVEN IF SUCH DAMAGE OR THEFT IS DUE IN PART TO THE NEGLIGENCE OF AN INDEMNITEE. NO PARTY WILL HAVE ANY RIGHT OR CLAIM AGAINST ANY INDEMNITEE FOR ANY PROPERTY DAMAGE (WHETHER CAUSED BY NEGLIGENCE OR THE CONDITION OF ALL OR PARTY OF THE PROPERTY) BY WAY OF SUBROGATION OR ASSIGNMENT, LICENSEE HEREBY WAIVING AND RELINQUISHING ANY SUCH RIGHT. THE OBLIGATIONS OF LICENSEE SET FORTH HEREIN SHALL SURVIVE ANY EXPIRATION OF THIS LICENSE. LICENSEE COVENANTS AND AGREES THAT LICENSOR SHALL IN NO WAY OR UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY PROPERTY BELONGING TO LICENSEE, ITS MEMBERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBCONTRACTORS, INVITEES, OR LICENSEES, THAT MAY BE STOLEN, DESTROYED, OR IN ANY WAY DAMAGED, AND LICENSEE HEREBY INDEMNIFIES AND HOLDS HARMLESS LICENSOR FROM ANY AND ALL SUCH CLAIMS. SECTION 8. Hazardous Materials. (a) During the Term, Licensee shall not cause or permit any Hazardous Material (as defined herein) to be released, emitted or disposed upon, about or beneath the Premises by Licensee, its agents, employees, contractors, or invitees. (b) To the extent that any Environmental Damages occur during the Term as a result of Licensee's action, Licensee SHALL INDEMNIFY, DEFEND, HOLD HARMLESS Licensor from and against any and all Environmental Damages caused by Licensee that arise from (1) the presence upon, about or beneath the Premises of any Hazardous Materials or any chemical substance requiring remediation under any federal, state or local law, regulation or policy or (2) the breach of any provisions of the License. "Environmental Damages" shall mean (1) all claims, judgments, damages, penalties, fines, costs, liabilities and losses, (2) all costs incurred by Licensor in connection with investigation of Hazardous Material, upon, about or beneath the Premises resulting from Licensee's actions, (3) the preparation of studies or reports and the performance of any cleanup, remediation, removal or governmental agency or political subdivision necessary for Licensor to make full economic use of the Premises, or otherwise required under this License. -5- Licensee's obligation under this Section 8 shall survive the expiration of the License for a period of one year. (c) In addition to the obligation to indemnify, Licensee shall at its sole cost and expense, promptly take all actions required by any federal, state or local governmental agency or political subdivision or necessary for Licensor to make full economic use of the Premises as a result of the presence of Hazardous Material caused by Licensee. Such actions shall include, but not be limited to, (1) the investigation of the environmental condition of the Premises, (2) the preparation of studies or reports, and (3) the performance of any cleanup, remediation, removal or restorative work. Licensee shall take all action necessary to restore the Premises to the condition existing prior to Licensee's introduction of Hazardous Material upon, about or beneath the Premises, notwithstanding any lesser standard of remediation allowable under applicable law or governmental policies. Licensee shall obtain the Licensor's written approval prior to undertaking any activities required by this Section 8, which approval may not be unreasonably withheld so long as the actions would not potentially have a material adverse effect on the Premises. Licensee's obligations under this Section 8 shall survive the expiration of this License. (d) Hazardous Material shall mean any material or substance (1) defined as a hazardous substance pursuant to the Comprehensive Environmental response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) and any amendments; (2) defined as a hazardous material in the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.); (3) defined as a "hazardous waste" pursuant to the Federal Conservation and Recovery Act (42 U.S.C. Section 9601 et. seq.) SECTION 9. Default. Termination. Fundine and Non-Abnropriation. (a) Licensor Default. A default by Licensor shall exist if Licensor breaches any of the terms contained in this License. Upon a default by Licensor, Licensee, as its sole remedy, may terminate this License. (b) Licensee Default. If Licensee defaults in the performance or observance of any covenant or agreement of this License, which default is not cured within two (2) days after the giving of notice thereof by Licensor, then Licensor may, at Licensor's option, either (i) terminate this License upon not less than three (3) days prior written notice or (ii) cure the Licensee's default. The cost of the cure of Licensee's default pursuant to this Section 9(b) shall be payable by Licensee to Licensor within seven (7) days after the date of Licensee's receipt of written demand therefor by Licensor. Such costs must be actually and reasonably incurred and must not exceed the scope of Licensee's default. Such costs must be reasonably documented and a copy of such documentation shall be delivered to Licensee with the written demand for reimbursement. Nothing contained in this Section 9(b) shall create or imply the existence of any obligation by Licensor to cure any Licensee default. (c) Failure to Remove Prohibited Property. If Licensee does not cure a default related to the failure to remove a prohibited structure, improvement, or personal property as required herein on the Premises within the time period allowed for cure in Section 9(b), such structure, improvement, or personal property shall become Licensor's property and Licensor shall have the right to remove the structure, improvement, or personal property and dispose of same by any method it so chooses. (d) Termination. (1) Either party may terminate this License by giving the other party not less than thirty (30) days' written notice. Upon the termination of this License, neither party shall have any further obligation or liability to the other under this License. Licensee shall be bound by the terms, covenants, and conditions expressed herein until Licensee surrenders the Premises, regardless of whether the date of surrender coincides with the date of termination of the License. (2) Licensor may terminate this License at any time during the Term with written notice to Licensee, if Licensor, determines a public necessity for the Premises. SECTION 10. DamaLre or Destruction. If the improvements on the Premises, if any, should be damaged or destroyed by fire, tornado, or other property loss, Licensee shall promptly give written notice thereof to Licensor. Licensor, in its sole discretion, will assess any damage to the improvements and if there is substantial damage to the improvements, decide whether to allow Licensee to continue use of the Premises under this License. If there is no damage to any improvements, then Licensee will have the right to continued use of the Premises for the balance of the Term. SECTION 11. Surrender of Premises. Upon the termination of this License for any reason whatsoever, Licensee shall surrender possession of the Premises in the same or better condition as the Premises were in upon delivery of possession under the License, reasonable wear and tear excepted. Licensee shall remove all its personal property on or before the termination of the License; and Licensee shall be responsible for repairing any damage to the Premises caused by the removal such items. SECTION 12. Acceptance of Premises. Licensee acknowledges that Licensee has fully inspected the Premises, and on the basis of such inspection Licensee hereby accepts the Premises as suitable for the purposes for which the same are licensed. SECTION 13. Prohibition of Assignment or Sublicense. Licensee shall not assign or sublet this License. Any attempted assigning or sublicense shall be null and void and not binding on Licensor and, notwithstanding anything herein to the contrary, this License shall immediately terminate. SECTION 14. Notices. Notices required to be made under this License shall be sent to the following persons at the following addresses, provided, however, that each party reserves the right to change its designated person for notice, upon written notice to the other party of such change: 7- To LICENSOR: City of Fort Worth Attn: Assistant City Manager 100 Fort Worth Trail Fort Worth, Texas 76102-6314 Facsimile: (817) 392-8654 With copy to Fort Worth City Attorney's Office at: 100 Fort Worth Trail Fort Worth, Texas 76102 To LICENSEE: TruWeather Solutions, Inc. Tom Frooninckx 2 Tower Place Albany, NY 12203 Tom. Frooninckx@truweathersolutions.com All time periods related to any notice requirements specified in this License shall commence upon the terms specified in the section requiring the notice. The notice shall be deemed effective two business days after the date when deposited in United States mail postage prepaid, certified mail, return receipt requested, addressed to the other party as set forth above. SECTION 15. Compliance with Laws. Licensee, at its expense, shall comply with all applicable environmental, air quality, zoning, planning, building, health, labor, discrimination, fire, safety, and other governmental or regulatory laws, ordinances, codes, and other requirements applicable to the Premises. Licensee shall also obtain all permits or approvals necessary for use of the Premises for the intended purposes. Licensee shall cause the Premises to be continuously in compliance with all codes or laws applicable to Licensee's use. SECTION 16. Entire Agreement. This License shall constitute the entire agreement of the Licensor and Licensee regarding the subject matter of this License, and shall supersede any prior agreements, either oral or written, pertaining to the Premises. SECTION 17. Waivers. One or more waivers of any covenant, term, or condition of the License by either Licensor or Licensee shall not be construed as a waiver of a subsequent breach of the same covenant, term, or condition. The consent or approval by either Licensor or Licensee to or of any act by the other party requiring such consent or approval shall not be deemed a waiver or render unnecessary consent to or approval of any subsequent similar act. SECTION 18. Choice of Law and Venue. This License and the relationship created hereby shall be governed by the laws of the State of Texas. Venue for any action brought to interpret or enforce the terms of the License or for any breach shall be in Tarrant County, Texas. SECTION 19. Invalidity of Particular Provisions. If any provision of this License is or becomes illegal or unenforceable because of present or future laws or any rule or regulation of any governmental entity, the remaining parts of this License will not be affected. SECTION 20. Governmental Powers. It is understood that by execution of this License, Licensor does not waive or surrender any of its governmental powers. SECTION 21. Captions: Cross References. The headings and captions contained in this License are inserted for convenience of reference only, and are not to be deemed a part of or to be used in construing this License. The captions in no way define, describe, amplify, or limit the scope or the intent of this License or any of the provisions of this License. All references in this License to articles, sections, or subsections thereof refer to the corresponding article, section, or subsection of this License unless specific reference is made to such articles, sections, or subsections of another document or instrument. SECTION 22. Audit. Pursuant to Chapter 2, Article IV, Division 3, Section 2-134, Administration, Powers and Duties of the Department of Internal Audit, of the Code of Ordinances of the City of Fort Worth, Licensor may, at Licensor's sole cost and expense, at reasonable times during Licensee' normal business hours and upon reasonable notice, audit Licensee's books and records, but only as it pertains to this License and as necessary to evaluate compliance with this License. [signature page follows] M ACCEPTED AND AGREED: LICENSOR: City of Fort Worth By. Dana Burghdoff (Apl' 6, 2025fA42 CDT) Name: Dana Burghdoff Title: Assistant City Manager Date: 04/25/2025 Approval Recommended: X40t- By: Midori Clark (Apr 24, 202516:17 CDT) Name: Midori Clark nnL Title: Library Director pSFORr°�o Od p08 oo=d Attest: aaQ4 oEo°'S46p 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: Name: Lisa Alexander Title: Land Agent — Real Estate Division Approved as to Form and Legality: By: Name: Matthew A. Murray Title: Assistant City Attorney Contract Authorization: By: M&C: Not required Name: Jannette S. Goodall Title: City Secretary LICENSEE: TruWeather Solutions, Inc. By: 76M 7wawewe& Name: Tom Frooninckx Title: COO Date: ADri123.2025 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX -10- FCT 4. Fort worth u HIM iPubhc Library... 84" 2„ e 0 •o.