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HomeMy WebLinkAboutContract 41216 CITY SECRETARY CONTRACT NO..- ,�. STATE OF TEXAS § § KNOWN ALL BY THESE PRESENTS: COUNTY OF TARRANT § NON-EXCLUSIVE ATM LICENSE AGREEMENT THIS LICENSE AGREEMENT,entered into the day of by and between the City of Fort Worth, a home-rule municipal corporation (hereafter called the "City"), situated in Tarrant, Denton, Parker, and Wise Counties, Texas, acting herein by and through Susan Alanis, its duly authorized Assistant City Manager, and Fort Worth City Credit Union, 2309 Montgomery Street, Fort Worth, Texas 76107. The City and Fort Worth City Credit Union may be referred to herein individually as a Party, or collectively as the Parties. WITNESSETH That for and in consideration of mutual covenants and agreements herein contained, the Parties hereto mutually agree as follows: ARTICLE 1 GRANT OF LICENSE City represents to Fort Worth City Credit Union that it is the owner of fee simple title to the property, commonly known as the Fort Worth Convention Center ("FWCC"), located at 1201 Houston Street, Fort Worth, Texas 76102. The City hereby grants to Fort Worth City Credit Union a non-exclusive license to install, operate and maintain ATMs in the FWCC in pre-approved locations agreed upon by both parties. The exact placement of the ATMs within the FWCC is shown on Exhibit "A" attached hereto and made a part hereof. The ATMs' space shall consist solely of the actual physical space occupied by the ATMs. ARTICLE 2 SCOPE OF LICENSE AGREEMENT (a) Fort Worth City Credit Union shall have the non-exclusive right and license to place the ATMs in the FWCC. Fort Worth City Credit Union 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) Fort Worth City Credit Union shall have the right, at anytime after the first six (6) months of this License Agreement, to elect to remove the ATMs from the FWCC and terminate this License Agreement upon no less than thirty (30) days prior written notice to the City. (c) Fort Worth City Credit Union agrees to place ATMs in the FWCC at mutually agreed and identified indoor locations, listed on Exhibit A, attached hereto and incorporated herein by this reference. If Fort Worth City Credit Union and the City agree to placc==t.. .. QFi"l;'s j",L RECORD f E C11 114LC:'RETAR'f F'F, IRTH3TX I of ATMs in the FWCC 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 Fort Worth City Credit Union 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 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 1 st day of the month in which the ATMs becomes operational, (the "Commencement Date") and terminating 24 months after Commencement Date (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 the City as approved by the City Manager. In connection with any extension, Fort Worth City Credit Union shall provide notice of its desire to extend at least one (1) year prior to the expiration date (as the same may from time to time be extended). The City will, within thirty (30) days from receipt of the notice to extend, notify Fort Worth City Credit Union if the term shall be extended for an additional one (1) year period. No notice shall otherwise be required to effect a termination by its own terms. ARTICLE 4 RENT/FEES (a) Fort Worth City Credit Union shall not be obligated to pay any rent or license fees to the City. (b) The parties agree that Fort Worth City Credit Union shall have the right to charge a "Terminal Usage Fee" or "Surcharge Fee," which shall mean a fee assessed by Fort Worth City Credit Union( or agent of Fort Worth City Credit Union) to the ATMs u ser, whether or not such user is a customer of the City, as a surcharge for using the ATMs. The City shall have no right to share in any of said fee. The fee is subject to adjustment by Fort Worth City Credit Union from time to time. ARTICLE 5 FORT WORTH CITY CREDIT UNION'S OBLIGATIONS (a) Fort Worth City Credit Union shall install ATMs in the FWCC and shall operate and maintain the ATMs in accordance with its reasonable practices and procedures, but in any event equal to levels of operation and maintenance customary in the industry. Fort Worth City Credit Union ATMs shall be connected with at least one national ATM network (for example, Cirrus, Plus, etc.). Fort Worth City Credit Union operation of the ATMs shall be in compliance with all applicable federal, state and local laws, ordinances, rules and regulations. Other than electrical, Fort Worth City Credit Union shall bear all costs in Page 2 of 12 connection with the installation and maintenance of the ATMs Fort Worth City Credit Union, at its expense, shall be responsible for supplying electrical services for each ATM by providing a dedicated 110 amp line. Fort Worth City Credit Union shall supply paper for transaction receipts. (b) Fort Worth City Credit Union or an affiliate or subsidiary of Fort Worth City Credit Union shall be the sole owner or lessee of the ATMs, and shall be in sole control of the nature and scope of the operation of the ATMs. At Fort Worth City Credit Union's expense, Fort Worth City Credit Union or an affiliate or subsidiary of licensee, shall be solely responsible for the maintenance of the ATMs, and the costs of all data communications necessary for the operation of the ATMs. (c) Fort Worth City Credit Union shall use its customary practices and procedures to ensure that the ATMs are operational during business hours of the FWCC 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's. (d) Fort Worth City Credit Union and the City shall mutually agree on the date and time of installation and removal of the ATMs. (e) Fort Worth City Credit Union agrees to provide, install, operate and maintain, at no expense to the City, the computer, telephone and other lines which serve the ATMs, as well as any and all other facilities or equipment which may be necessary or appropriate for the installation, operation and maintenance of the ATMs. The appearance, location and all other features and characteristics of the lines, facilities and equipment serving the ATMs will be mutually agreed upon by the City and Fort Worth City Credit Union. Upon termination of this License Agreement or removal of the ATMs from the FWCC, all conduit and electrical, computer, telephone and other lines which serve the ATMs will remain the property of the City and remain at the FWCC. Fort Worth City Credit Union shall have no further obligation to restore the FWCC upon removal of the ATMs. (f) Fort Worth City Credit Union shall provide all cash services (maintaining sufficient cash in the ATMs), paper loading, and first line maintenance (paper and cash misfeeds) for each ATM. ARTICLE 6 THE CITY'S OBLIGATIONS (a) The City shall bear the expense of all day-to-day electricity consumed in the operation of the ATMs and ATM signage at the Premises. (b) Fort Worth City Credit Union, its employees, independent contractors and agents shall have access to the ATMs during business hours for the purpose of installing, maintaining, servicing, operating and removing the ATMs. In doing so, the City shall not interfere with the Page 3 of 12 normal operations of Fort Worth City Credit Union business and will ensure that no obstructions limit full access to the ATMs. (c) The City shall have no responsibility for the security of any ATMs, other than to act in accordance with its customary practices and procedures with respect to the FWCC and its property contained therein, and shall not be responsible for the operation of the ATMs. (d) Any interior or exterior ATM signage and/or merchandising shall be mutually agreed upon by the City and Fort Worth City Credit Union and shall be sufficient to promote and advertise the placement of the ATMs on the Premises. 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 City, to include the address of the ATMs in a directory of all or a portion of Fort Worth City Credit Union and/or any wholly-owned subsidiary's ATMs and/or other banking facilities. Each party acknowledges that the other party's logos, trademarks, and service marks are the sole property of the other party. ARTICLE 8 PREMISE ADJUSTMENTS Fort Worth City Credit Union and the City acknowledge that the City will occasionally remodel or expand the FWCC. Accordingly, the parties agree as follows: (a) ATM Relocation. If, after ATMs have been installed, the City shall designate a different location for such ATMs, due to a remodel or expansion, Fort Worth City Credit Union, at the City's expense, after no less than sixty (60) days prior written notice, shall remove and relocate the ATMs to a location reasonably acceptable to both parties. If Fort Worth City Credit Union and the City cannot mutually agree on an acceptable location, City shall have the right to terminate this License Agreement upon thirty (30) days written notice to Fort Worth City Credit Union, in which event all rights and obligations hereunder relating to the FWCC shall cease upon such termination. (b) Notice of Premise Adjustments. When the City provides Fort Worth City Credit Union with notice of any remodel or expansion, such notice will include the proposed dates for remodeling or expansion. ARTICLE 9 TRADESECRETS The Licensed Product consists of part of computer programs, procedures, forms and other related materials which have been acquired, licensed to or developed by Fort Worth City Page 4 of 12 Credit Union at substantial expense. The City acknowledges that the foregoing are trade secrets which are of great value to Fort Worth City Credit Union, 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 Fort Worth City Credit Union. The City, 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 Fort Worth City Credit Union in connection with this License Agreement are the property of Fort Worth City Credit Union and will be returned to Fort Worth City Credit Union upon the termination of this License Agreement. This paragraph is subject to Article 23 of this License Agreement. ARTICLE 10 PERSONAL PROPERTY The ATMs and their contents shall remain the property of Fort Worth City Credit Union or Fort Worth City Credit Union lessor at all times and shall not be construed as fixtures. ARTICLE 11 INDEMNIFICATION Fort Worth City Credit Union covenants and agrees to and does hereby indemnify, hold harmless and defend, at its own expense, the City, 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 CITY. ARTICLE 12 INSURANCE (a) Fort Worth City Credit Union shall not commence work under this License Agreement until it has obtained all insurance required under this Article and the City has approved such insurance, nor shall Fort Worth City Credit Union allow any subcontractor to commence work on its subcontract until all similar insurance of the subcontractor has been so obtained and approval given by the City; provided, however, Fort Worth City Credit Union may elect to add coverage for any sub-consultant under its liability policies. Page 5 of 12 (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 the City 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. The City, its officers, employees and servants shall be endorsed as an additional insured on MobileMoney's general liability insurance policy. 2. Certificates of insurance shall be delivered to: Kirk Slaughter, Director Public Events Department 1201 Houston Street Fort Worth, Texas 76102 3. Any failure on the part of the City 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 the City 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. Page 6 of 12 6. Other than worker's compensation insurance, in lieu of traditional insurance, City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups. The City 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 the City. 8. City shall not be responsible for the direct payment of insurance premium costs for MobileMoney's insurance. 9. Fort Worth City Credit Union insurance policies shall each be endorsed to provide that such insurance is primary protection and any self-funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. 10. In the course of the License Agreement, Fort Worth City Credit Union shall report, in a timely manner, to the City's officially designated contract administrator any known loss occurrence which could give rise to a liability claim or lawsuit or which could result in a property loss. 11. Fort Worth City Credit Union liability shall not be limited to the specified amounts of insurance required herein. 12. Upon the request of the City, Fort Worth City Credit Union shall provide complete copies of all insurance policies required by these License Agreement documents. ARTICLE 13 TRANSFER OR ASSIGNMENT The City and Fort Worth City Credit Union each bind themselves, and their lawful successors and assigns, to this License Agreement. Fort Worth City Credit Union, its lawful successors and assigns, shall not assign, sublet or transfer any interest in this License Agreement without prior written consent of the City. ARTICLE 14 TERMINATION OF CONTRACT (a) The City may terminate this License Agreement for its convenience on 30 days' written notice. Either the City or the Fort Worth City Credit Union for cause may terminate this License Agreement if either 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. Page 7 of 12 (b) If the City chooses to terminate this License Agreement under Article 12, upon receipt of notice of termination, Fort Worth City Credit Union 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 the City, its officers, agents, employees, consultants, or contractors, or prepared by Fort Worth City Credit Union, shall be or become the property of the City, and shall be furnished to the City 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 Fort Worth City Credit Union shall at all times observe and comply with all federal, state, and local laws and regulations and with all City 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 Page 8of12 jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. Fort Worth City Credit Union agrees to defend, indemnify and hold harmless City 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 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 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 Agreement or any amendments or exhibits hereto. ARTICLE 19 SEVERABILITY The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this 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 Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this Agreement to other persons or circumstances shall not be affected thereby and this 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-delivery or via U.S. Postal Service certified mail return receipt requested, postage prepaid, to the address of the other Party shown below: City of Fort Worth Licensee: Attn: Kirk Slaughter Fort Worth City Credit Union Public Events Department Attn: Ron Fox 1201 Houston Street 2309 Montgomery Street Fort Worth, Texas 76102 Fort Worth, Texas 76107 Page 9 of 12 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 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 Fort Worth City Credit Union understands and acknowledges that the City is a public entity under the laws of the State of Texas and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. Fort Worth City Credit Union shall clearly indicate to the City what information it deems proprietary. If the City 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, the City will notify Fort Worth City Credit Union prior to disclosure of such documents, and give Fort Worth City Credit Union the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to Fort Worth City Credit Union information to those persons within its organization who have a need to know for purposes of management of this License Agreement. The City 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. The City will use its best efforts to secure and protect Fort Worth City Credit Union information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by Fort Worth City Credit Union 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 Page 10 of 12 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) Page 11 of 12 IN WITNESS THEREOF, 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. CITY OF FORT WORTH: san Alanis Ron Fox A t City Manager Fort Worth City Credit Union RECOMM NDED: Kirk Slaughter,Director Public Events Department APPROVED AS TO FORM AND LEGALITY: A d /( Cherl K. Byles Assistant City Attorney No ,v�4- c ATTEST: .p-C1'a'4An pp��Qr Ga4 0 00 000 0000o0Q�� Marty Hendrix pia o'A.{�� City Secretary 0"00 a 0 pwin �° 0* d Date 00000000000 rl j OFFICIAL RECORD d CITY SECRETARY FT. WORTH, Tic i Page 12 of 12 EXHIBIT A AW t5 $#mom IL wvm 10 0 z &-4 r ) 113114 KLM