Loading...
HomeMy WebLinkAboutResolution - 2016-R0009 - Weather Services Unlimited - 01/14/2016Resolution No. 2016-R0009 Item No. 6.13 January 14, 2016 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock a License Agreement, by and between the City of Lubbock and Weather Services Unlimited, of Lubbock, Texas, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on January 14, 2016 r1161MIS I G C. ROBERTSON, MAYOR D 12 Lt�-� J� Reb cca Garza, City Secret AS TO CONTENT: Aubrey A. Spea".E., Director/of Water Utilities APPROVED AS TO FORM: KES.Lic Agrmnt-Weather Services Unlimited 12.9.15 Resolution No. 2016-R0009 AGREEMENT This Agreement (the "Agreement') is entered into on this 14th day of January 2016, between the City of Lubbock, Texas (the "City"), a Texas Home Rule Municipal Corporation, and Weather Services Unlimited, 7403 University Avenue, Lubbock, Texas 79423 (Licensee). RECITALS WHEREAS, Licensee desires to install a weather camera (the "Camera") and a live weather sensor on a communications tower (the "Tower"); and WHEREAS, Licensee desires to install a weather camera and a weather sensor in order to monitor the weather conditions at Lake Alan Henry; and WHEREAS, it is the belief of the City and Ron Roberts that the weather camera and weather sensor will provide beneficial weather information to the citizens of Lubbock, Texas; and WHEREAS, Licensee desires to install and maintain the weather camera and weather sensor located on the communication tower at the Montford Dam at Lake Alan Henry (the "Licensed Facilities"); 1i[allrll r MA:0aLii:1 xi ARTICLE ONE LICENSE In consideration of the mutual covenants and agreements of this Agreement, and of other good and valuable consideration, the City hereby grants, upon the terms and conditions set forth in this Agreement, a license to the communication tower located at Montford Dam at Lake Alan Henry, for the sole purpose of installing a weather camera and weather sensor on the communication tower. 1 License Agreement City of Lubbock/Ron Roberts The term of this license is five (5) years beginning on the date of the execution of this Agreement by the City (the "Primary Term"), unless terminated sooner as provided in this Agreement. Upon written application of Licensee, delivered to the office of the Director of Water Utilities of City prior to the expiration of the Primary Term of this Agreement, the Director of Water Utilities may extend this Lease for a period of five (5) years upon the same terms and conditions herein. Any extension of this Agreement granted pursuant to this Article shall be in writing and signed by the Licensee and the Director of Water Utilities. The City has the right to cancel this License Agreement for any reason within thirty (30) days of it becoming effective. ARTICLE TWO A. RENTAL The Licensee shall pay to the City as rental the total of six hundred dollars ($600) annually during the term of this agreement that Licensee conducts business operations on the Property. The said rental is payable in the amount of fifty dollars ($50) for each month during the term thereof B. PAYMENT All payments that become due and payable by the Licensee under this agreement shall be made to the City at the Water Utilities Director, Water Utilities Department, Lubbock, Texas. Licensee shall pay City a late payment charge of five percent (5%) of the total amount of rentals payable if payment of such rentals is not made when due. 2 License Agreement City of Lubbock/Ron Roberts ARTICLE THREE OBLIGATION OF THE CITY The city covenants and agrees that upon execution of this License Agreement, City is well seized of the Property and has good title, free and clear of all liens and encumbrances having priority over this License Agreement; and that the City has full right and authority to license the Property described in this Agreement. ARTICLE FOUR OBLIGATION OF LICENSEE A. LICENSEE'S AUTHORITY Licensee warrants that it has full authority to enter into and perform this Agreement. B. NET LICENSE This license agreement shall be without cost to the City for installation, maintenance and removal of Licensee's Facilities. It shall be the sole responsibility of the Licensee to keep, maintain, repair and operate the entirety of the demised Licensed Facilities, and all improvements and facilities placed on the Licensed Premises shall be at Licensee's sole cost and expense. C. MAINTENANCE The Licensee shall, at its own expense, provide maintenance for all its Licensee Facilities. D. PROPERTY PERMANENTLY AFFIXED TO PROPERTY Any property belonging to Licensee which becomes permanently attached to the Licensed Premise shall become the property of the City upon termination of this Agreement, whether upon 3 License Agreement City of Lubbock/Ron Roberts expiration of the initial term, any extension thereof, or earlier under any provision of this License Agreement. E. UTILITIES Licensee will be responsible for all bandwidth and associated costs. Licensee covenants that such installation and use shall be in compliance with any applicable federal, state or local environmental, health, fire community awareness, safety laws or other applicable laws or regulations, now or hereafter enacted or promulgated by any governmental authority or court ruling having jurisdiction over the Property, including, without limitation, any applicable guidelines promulgated by the Environmental Protection Agency and/or the Federal Communications Commission, and Licensee agrees that it will reimburse City for any increase in City's insurance premiums directly attributable to any such installation or use by Licensee. The Licensee shall assume and pay for all costs or charges for metered utility services provided to Licensee during the initial term hereof, and any subsequent extension. Following the initial installation of the Licensee Facilities, Licensee agrees not to install any equipment on the Property or change the frequency, power, or type of its existing equipment on the Property without first submitting to City a written proposal regarding the proposed configuration and obtaining the written consent of City, which consent shall not be unreasonably withheld, delayed or conditioned if (i) the proposed installation or changed, altered, or improved frequency, power or type of equipment is a use that does not require additional Property space beyond the existing Property space or impose any increased stresses or loads on the Property in excess of applicable engineering standards; (ii) said installation or changed, altered, or improved frequency, power, or type of equipment is authorized by law and is to be made or installed in 4 License Agreement City ofLubbock/Ron Roberts accordance with good engineering practices; and (iii) the proposed configuration does not interfere with the transmitters, receivers and equipment of other subtenants or licensees existing on the Property or on the Property at the date when City receives the aforementioned written proposal. F. INSTALLATION OF PROPERTY None of the Licensee Facilities shall be installed on the communication tower nor shall any construction pertaining to the Licensee Facilities commence until Licensee has submitted its construction and installation plans and list of contractors and subcontractors to City in writing and such plans and list have been approved in writing by City, such approval not to be unreasonably withheld, conditioned or delayed. Licensee shall not alter any plans so approved without following the same procedures. Licensee shall be responsible for grounding all external and internal wiring and cabling installed by Licensee. Licensee shall obtain City's prior written approval of such grounding plans. G. REPAIRS Licensee shall perform all repairs necessary or appropriate to keep Licensee Facilities on or about the Property or located on any appurtenant rights-of-way or access to the Property in good and tenantable condition. Damage resulting from the acts or omissions of Licensee shall be repaired by Licensee, at Licensee's cost and expense unless otherwise provided herein. H. Facility Access Access to the facility shall be available to the licensee or designated service technician(s) during normal business hours, M -F between 8:00 am and 5:00 excluding City Holidays. Licensee License Agreement City of Lubbock/Ron Roberts shall be required to provide 24 hour advance notice to the City's Dam Tender for installation or repairs to the Licensee's equipment. Only the Licensee or designated service technician(s) shall be allowed access to the Tower facility without prior consent of the Dam Tender or authorized City representative. I. CITY USE Licensee shall permit the City use of the data collected from the Live Weather Site. J. SURRENDER AND REMOVAL OF LICENSEE'S FACILITIES At the expiration or termination of this Agreement for any reason, Licensee shall surrender to City the Property, remove the Licensee's Facilities, and shall restore the Property to substantially the same condition existing on the Commencement Date, except for ordinary wear and tear. Licensee Facilities left on the Property after ten (30) days from the expiration or termination of the Agreement shall be deemed abandoned and shall be subject to disconnection, removal and disposal by City. In such event, Licensee shall pay to City upon written demand therefor, the disconnection, removal and storage expenses incurred by on behalf of City. If the Licensee Facilities are not claimed by Licensee within thirty (30) days following notice from City to Licensee of its removal of such property shall be deemed abandoned and will become the property of City, City shall have the right to sell all or any portion of the Licensee Facilities without any liability to Licensee to account for the proceeds of such sale. K. REGULATIONS The Licensee's officers, agents, employees and servants will obey all rules and regulations which may be promulgated by the City or its authorized agents, or by other lawful authority, to ensure the safe and orderly conduct of City's and Licensee's operations on the Licensed Premises. 6 License Agreement City of Lubbock/Ron Roberts L. BROADCAST FOOTAGE The Licensee will be responsible for installing the cameras in a manner in which no private or city -owned or operated residences shall be broadcasted, recorded, or within the field of view of the camera or recording devices. Licensee is not authorized to broadcast, record, or view any residential premises owned or operated by the City. If such recording occurs, this contract will be immediately terminated. M. INDEMNIFICATION AND INSURANCE The City, its officers, agents and employees shall stand indemnified by the Licensee as provided by this Agreement. The Licensee shall be deemed to be an independent contractor and operator responsible to all parties for its respective acts and omissions, and the City shall in no way be responsible therefore. In the exercise of the obligations and in the enjoyment of the privileges granted by this Agreement, the Licensee shall indemnify and save harmless the City, its officers, agents and employees from any and all losses that result from any fault or negligence on the part of the Licensee, its agents, employees or invitees, and shall indemnify the City, its officers, agents, and employees against any and all claims, demands or liability are attributable to or caused by the negligence or willful misconduct of City, its officers, agents and employees. The Licensee shall maintain insurance at all times that this License Agreement is in effect, at Licensee's sole expense and with an underwriter authorized to do business in the State of Texas and reasonably acceptable to the City, against claims of general liability, automobile liability and worker's compensation resulting from Licensee's business activities on the Licensed Premises. General Liability—The amount of insurance coverage shall not be less than ONE MILLION AND NO/100 DOLLARS ($1,000,000) per occurrence. 7 License Agreement City of Lubbock/Ron Roberts During installation activities, installer would need General Liability and Auto Liability Insurance, each at ONE MILLION AND NO/100 DOLLARS ($1,000,000) per occurrence. Installer shall also be covered by statutory workers compensation. The above- mentioned policies shall all include a waiver of subrogation. Certificates of insurance shall be filed with the City's Director of Water Utilities prior to entry upon the Licensed Premises by the Licensee. The General Liability and Auto Liability policies shall name the City as an additional insured on a primary and non-contributory basis, require the insurer to notify the Director of Water Utilities of any alteration, renewal or cancellation, and remain in full force and effect until at least ten (10) days after such notice of alteration, renewal or cancellation is received by the Director of Water Utilities. ARTICLE FIVE TERMINATION, CANCELLATION, LEGAL REMEDY A. TERMINATION This Lease shall terminate at the end of the full term hereof and Licensee shall have no further right or interest in any of the Licensed Premises or improvements hereby demised. B. CANCELLATION Either party shall be in default under this Agreement if the party fails to perform any material duty or obligations under this Agreement and does not cure or remedy such failure to perform within thirty (30) days after receipt of written notice with respect thereto, provided, however, that if such failure to perform shall necessitate longer to cure than thirty (30) days, then such cure period shall be extended for such time as is reasonably necessary to cure such failure to perform, but only so long as such efforts to cure are commenced within fifteen (15) days after 8 License Agreement City of Lubbock/Ron Roberts receipt of written notice from the other party and thereafter proceed diligently and in good faith. Notwithstanding the foregoing, in no event shall the time within which a party may cure a failure in the payment of money exceed a single, ten (10) day period, without extension. Upon the occurrence of default, the non -defaulting party may pursue any and all remedies available under applicable law and any one or more of the following remedies, separately or concurrently or in any combination, without further notice or demand whatsoever: (i) Termination of this Agreement by giving the defaulting party written notice of such termination, in which event this Agreement shall be terminated at the time designated in the notice; or (ii) The recovery from the defaulting party of all costs and expenses incurred by the non -defaulting party in enforcing its rights and remedies under this Agreement, including reasonable attorneys' fees and expenses. This License Agreement is given by the City and accepted by Licensee upon the express condition that the City shall have the right to cancel the lease upon one (1) year written notice to Licensee after the expiration of the initial term hereof. Upon such termination, and when requested so to do by the City, Licensee agrees at Licensee's expense to remove said weather camera from the Property of the City and restore said Property to the same condition in which it was prior to the placing of said weather camera and appurtenances thereon. In case Licensee shall fail to restore the City's Property as aforesaid within sixty (60) days from lease termination, City may proceed with such work at the expense of Licensee. No termination hereof shall release Licensee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or such later date when the 9 License Agreement City of Lubbock/Ron Roberts improvements placed on the Licensed Premises by Licensee are removed and said Property are restored to its original condition as hereinabove required. It is agreed that failure to declare this License Agreement terminated upon the default of Licensee for any of the reasons set forth above shall not be construed as a waiver of any of the City's rights hereunder or otherwise preclude City from declaring this License Agreement cancelled as a result of any subsequent violation of any of the terms or conditions of this License Agreement. C. LEGAL REMEDY The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, the former shall control. ARTICLE SIX GENERAL A. CLEANLINESS OF PREMISES Licensee shall, at its sole expense, dispose of all trash, garbage, and other refuse resulting from its installation operations authorized by this Agreement. 10 License Agreement City of Lubbock/Ron Roberts B. TERMINATION OF LICENSE AGREEMENT, SURRENDER OF LICENSED PREMISES AND OWNERSHIP OF IMPROVEMENTS The Licensee covenants and agrees that at the expiration of the initial term of this License Agreement, or any extension which has been granted, or upon earlier termination as provided elsewhere in this Agreement, Licensee will quit and surrender the Licensed Premises in good state and condition, reasonable wear and tear expected, and the City shall have the right to take possession of the Licensed Premises with or without process of law. C. HEADINGS The paragraph headings contained herein are for convenience in reference and are not intended to define, extend or limit the scope of any provisions in this Agreement. D. NOTICES A. General. Whenever notice from Licensee to City or City to Licensee is required or permitted by this Agreement and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand, (2) facsimile, or other reasonable means (in which case such notices shall be effective upon delivery), or (3) by deposition the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. Licensee's Address. Licensee's address and numbers for the purposes of notice are: Ron Roberts 7403 University Avenue Lubbock, TX 79423 11 License Agreement City of Lubbock/Ron Roberts C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Director of Water Utilities P.O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2585 Facsimile: (806) 775-3027 E. CHANGE OF ADDRESS. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this License Agreement, and setting forth such new address or numbers. The address or numbers shall become effective on the 15'h day after such notice is effective. F. ENTIRE AGREEMENT This License Agreement constitutes the entire agreement between the City and Licensee, and any other written or parole agreement with the City is expressly waived by Licensee. EXECUTED this 14th day of January 2016. 12 License Agreement City of Lubbock/Ron Roberts CITY OF LUBBOCK, TEXAS PAP ATTEST: Rebe a Garza, City Secretary APPROVED AS TO CONTENT: RON ROBERTS 0"/"" /)/ � Aubrey A. Stg_3Ar, P.E., Direc r of Water Utilities APPROVED AS IFO FORM: r 13 License Agreement City of Lubbock/Ron Roberts