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HomeMy WebLinkAboutExhibit - AgreementREVOCABLE LICENSE ISSUED BY THE CITY OF MIAMI TO WEATHERFLOW, INC FOR THE OPERATION OF HURRICANE WEATHER INSTRUMENTATION AT MORNINGSIDE PARK 1f� 77/i L REVOCABLE LICENSE This Revocable License ("License") is made this day of , 2014 ("Effective Date"), between the City of Miami ("City") a municipal corporation of the State of Florida and WeatherFlow, Inc., a California based corporation as a partner in a consortium of government, university, and private members dedicated to improving the accuracy of observations during land falling tropical cyclones for increased public safety ("User"). RECITALS WHEREAS, the City owns and operates the Park known as Morningside Park and WHEREAS, User has expressed its interest in installing a pole with weather instruments inside the Park for the purpose of improving the accuracy of observations during land falling tropical cyclones for increased public safety; and WHEREAS, this License is not assignable; and WHEREAS, this License is revocable -at -will by the City and without the consent of the User; and WHEREAS, this License does not transfer an interest in real property including any leasehold interest in real property owned by the City; and WHEREAS, this License does not confer a right to use any realproperty for any general purposes; and WHEREAS, this License does not convey or transfer any right to exclude the City from any real property; and WHEREAS, this License permits only certain, enumerated, specific and listed permitted. uses and does not permit anything further; and WHEREAS, this License is subject to the audit and inspection rights set forth in Sections 18-100, 18-101 and 18-102 of the Code of the City of Miami, Florida as amended ("Code"). NOW, THEREFORE, in order to carry out the intent as expressed herein and in consideration of the mutual agreements subsequently contained, the City and User agree as follows: 2 1. Purpose. The City is the owner of real property and improvements at Morningside Park ("Property"). The User desires to use the Property to install a pole with weather instruments to improve the accuracy of observations during land falling tropical cyclones for increased public safety. The City has expressed its desire to assist the User in accomplishing its purpose and in furtherance thereof authorizes the User to use the Property under the conditions hereinafter set forth. The use of the Property is limited to User's installation of weather instruments and is not to be used for any other purpose whatsoever ("Permitted Use"). Any use of the Property not authorized under the Permitted Use must receive the prior written consent of the City Manager. This consent may be withheld for any or no reason, including, but not limited to additional financial consideration. 2. Occupancy and Use Period. This License is revocable at -will. Unless this License is revoked or terminated as provided in this License, this License shall commence on Effective Date and shall continue on a month -to -month period subject to the notice provisions of Paragraph 12 herein. Either party may, in its discretion, terminate this License by giving the other party written notice of such termination at least ninety (90) days. 3. Interest Conferred by this License. User agrees that this License has been issued by the City to authorize User to occupy the Property solely for the limited purpose of collecting weather data and no other purpose. The parties hereby agree that the provisions of this License do not constitute a lease and the rights of User hereunder are not those of a tenant but are a mere personal privilege to do certain acts of a temporary character and to otherwise use the Property subject to the terms of this License. No leasehold interest in the Property is conferred upon User under the provisions hereof and User does not and shall not claim at any time any leasehold estate or ownership interest in the Property by virtue of this License or its use of the Property hereunder. Additionally, User does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of any expenditure of funds by the User for improvements, construction, repairs, partitions or alterations to the Property which may be authorized by the City. No license 3 coupled with an interest or any type of real estate interest or estate will be acquired by User by virtue of this License or any payment or other activity under it. 4. Data access consideration. User hereby agrees to provide the City with access to data collected from this weather station using User's web based applications. The City acknowledges and agrees that the weather equipment and weather data provided by User to the City pursuant to this License shall remain the sole and exclusive property of the User and may not be.republished or redistributed in any other way without the prior written consent of User. Under no circumstances may the data be used or disclosed, either directly, indirectly, for the purpose of settling capital markets transactions including parametric insurance. The restriction on the republication or redistribution of data shall not apply in cases of emergency (as determined by the City in its reasonable discretion), in which case the City 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 data, the City will promptly notify User of the circumstances of such republication or redistribution. However, User acknowledges that all data and documentation provided to the City is a public record and subject to disclosure pursuant to Chapter 119, Florida Statutes (2014). 5. Pole installation and sensor maintenance. User agrees to install the Pole at no cost to the City. Once installed the Pole will be owned by the City and therefore for the purposes of the License will be considered part of the Property. The City agrees not to alter Pole, or in any way disrupt its use as the mount for the Weather equipment. User will contact designated City officials within 24 hours of needed maintenance visits. 6. Indemnification and Hold Harmless. User shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnities") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this License which is or is 4 alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of User or its employees, agents or subcontractors (collectively referred to as "User"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnities, or any of them or (ii) the failure of the User to comply with any of the paragraphs herein or the failure of the User to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this License. User expressly agrees to indemnify and hold harmless the Indemnities, or any of them, from and against all liabilities which may be asserted by an employee or former employee of User, or any of its subcontractors, as provided above, for which the. User's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. User further acknowledges that, as lawful consideration for being granted the right to utilize and occupy the Property, User, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from User's use of the Property. 7. Insurance. User shall keep in force at its own expense, for the duration of this License, insurance requirements in accordance to Exhibit "D". 8. Safety. User will allow City inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. User shall have no recourse against the City, its agents or representatives from the occurrence, non-occurrence or result of such inspection(s). Upon occupancy of the Property, User shall contact the City's Risk Management Department to schedule the inspection(s). 5 9. American with Disabilities Act. User shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of utilizing the Area including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, User shall take affirmative steps to ensure nondiscrimination in employment of disabled persons. 10. No Liability. In no event shall the City be liable or responsible for damage to the personal property, improvements, fixtures and/or equipment belonging to or rented by User, its officers, agents, employees, invitees or patrons, including without limitation, damages resulting from fire, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Property, or from hurricane or any act of God or any act of negligence of User, its officers, employees, agents, invitees, or patrons or any person whomsoever whether such damage or injury results from conditions arising at or about the Property or upon other portions of the Property or from other sources. 11. Taxes and Fees. User shall pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Area and/or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Area by User, including, but not limited to, ad valorem taxes, fire fees and parking surcharges. In the event User appeals a tax or fee, User shall immediately notify City of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to City or other security reasonably satisfactory to City in an amount sufficient to pay one hundred percent of the contested tax or fee with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. 6 12. Revocation by Request of Either of the Parties. Either party may, in its discretion, terminate this License by giving the other party written notice of such termination at least ninety (90) days. User agrees to abide by each and every term and condition of this License. If User violates the restrictions and conditions of this License in any manner, then this License shall be automatically revoked without the need for further action by the City. Upon such automatic revocation, User shall abide by the terms of Paragraph 16 herein. 13. Violations. If User in any manner violates the restrictions and conditions of this License, then, after ten (10) days written notice given to User by the City Manager within which to cease such violation or correct such deficiencies, and upon failure of User to do so after such written notice within said ten (10) day period, this License shall be automatically canceled without the need for further action by the City. 14. Notices. All notices or other communications which may be given pursuant to this License shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to City and User at the addresses indicated herein or as the same may be changed from time to time, or for purposes of canceling this License, the City may serve notice by posting it at the Property. Such notice shall be deemed given on the day it is posted at the Property; on which personally served; or if by certified mail, on the fifth day after being mailed or the date of actual receipt, whichever is earlier. The Notices addresses of the parties are: CITY OF MIAMI USER City of Miami WeatherFlow, Inc. Daniel J. Alfonso, City Manager 108 Whispering Pines #245 3500 Pan American Drive Scott's Valley, CA 95066 Miami, FL 33133 Attn: COPY TO: City of Miami Attn: Director Department of Public Facilities 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130 7 City of Miami Victoria Mendez, City Attorney 444 SW 2nd Avenue, Suite 945 Miami, FL 33130 15. Advertising. User shall not permit any signs or advertising matter to be placed either in the interior or upon the exterior of the Property without having first obtained the approval of the Director, which approval may be withheld for any or no reason, at his/her sole discretion. User shall, at its sole cost and expense, install, provide, maintain such sign, decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. User must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance, Upon the revocation of this License, User shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Property. If any part of the Property is in any way damaged by the removal of such items, said damage shall be repaired by User at its sole cost and expense. Should User fail to repair any damage caused to the Property within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Property to be repaired at the sole cost and expense of User. User shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. User hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Property an appropriate sign indicating City's having issued this License. Property 15. Ownership of Improvements. As of. the Effective Date and throughout the Use Period, title to all buildings and improvements thereon shall be vested. in City. Furthermore, title to all alterations made in or to the Property, whether or not by or at the expense of User, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain and be surrendered with the Property. 8 16. Surrender of Area Property In the event of revocation of this License, User shall peacefully surrender the Area within 10 days, broom clean and in good condition and repair together with all alterations, fixtures, installation, additions and improvements which may have been made in or attached on or to the Area. Upon surrender, User shall promptly remove all its personal property, trade fixtures and equipment and User shall repair any damage to the Area caused thereby. Should User fail to repair any damage causedto the Area within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Area to be repaired at the sole cost and expense of User. User shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. City may require User to restore the Area so that the Area shall be as it was on the Effective Date. In the event User fails to remove its personal property, equipment and fixtures from the Area within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as City sees fit, all at User's sole cost and expense. 17. Severability. Should any provisions, paragraphs, sentences, words or phrases contained in this License be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unlawful under the laws of the State of Florida or the City, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, and the same may be deemed severable by the City, and in such event, the remaining terms and conditions of this License shall remain unmodified and in full force and effect. 18. No Assignment or Transfer. User cannot assign or transfer its privilege of occupancy and use granted unto it by this License. 19. Nondiscrimination. In the performance of this License or any extension thereof, User and/or its authorized agents shall not discriminate in connection with its occupancy and use of the Property and improvements thereon, or against any employee or applicant for employment because of sex, age, race, color, religion, ancestry or national origin. User and/or its authorized agents will take affirmative action to insure that minority applicants are employed and that employees are fairly treated during employment without regard to their sex, age, race, color, religion, ancestry, marital status, or national origin. Such action shall include, but not be limited to, the following; employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. 20. Waiver of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this License, or arising out of, under, or in connection with this License or any amendment or modification of this License, or any other agreement executed by and between the parties in connection with this License, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and User entering into the subject transaction. 21. Waiver. No failure on the part of the City to enforce or insist upon performance of any of the terms of this License, nor any waiver of any right hereunder by the City, unless in writing, shall be construed as a waiver of any other term. or as a waiver of any future right to enforce or insist upon the performance of the same term. 22. Amendments and Modifications. No amendments or modifications to this License shall be binding on either party unless in writing, approved as to form and correctness by the City Attorney, and signed by both parties. to 23. Court Costs and Attorney(s) Fees. In the event it becomes necessary for the City to institute legal proceedings to enforce or interpret the provisions of this License, User shall pay the City's court costs and attorney's fees through all trial and appellate levels. User acknowledges that Florida law provides for mutuality of attorney's fees as a remedy in contract cases and specifically and irrevocable waives its right to collect attorney's fees from the City under applicable laws, including specifically, but not limited to Section 57.105, Florida Statutes. It is the express intent of the parties hereto that in no event will the City be required to pay User's attorney's fees and court costs for any action arising out of this License. In the event that User's waiver under this section is found to be invalid then User agrees that the City's liability for User's attorney's fees and court costs shall not exceed the sum of $100.00. In the event that the waiver and limitations contained herein are found to be invalid, or are otherwise not upheld, then the provisions of this Section shall become null and void and each party shall be responsible for its own attorney's fees and costs. 24. Compliance with All Laws Applicable. User accepts this License and hereby acknowledges that User's strict compliance with all applicable federal, state and local permits, compliance, laws, ordinances and regulations is a condition of this License, and User shall comply therewith as the same presently exist and as they may be amended hereafter. This License shall be construed and enforced according to the laws of the State of Florida. User shall be responsible for securing all required governmental permits and approvals needed by virtue of this License. 25. Hazardous Materials. The User shall, at its sole cost and expense, at all times and in all respects comply with all federal, state a.nd, local laws, statutes, ordinances and regulations, rules, rulings, policies, orders and administrative actions and orders relating to hazardous materials ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances" (collectively "Hazardous Materials"), 11 under any such laws, ordinances or regulations. The User shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Property or required for the User's use of any Hazardous Materials in or about the Property in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination or revocation of this License, the User shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Property by the User or at the User's direction, to be removed from the Property and transportedfor use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The User may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, all applicable governmental requirements. The requirements of this Paragraph of the License shall survive the cancellation or revocation of this License. The City represents that: (i) To the best of its knowledge there are no environmental violations, whether under federal, state, or local laws, existing on the Property; (ii) To the best of its knowledge there are no Hazardous Materials presently existing on the Property. Property 26. Entire License. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly set forth the rights, duties and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this License are of no force or effect, This License is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties, and the parties covenant that this License shall not be construed in favor of or against either of the parties. 12 27. Conflict of Interests. User is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. User covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this License, has any personal financial interests, direct or indirect, with the City. User further covenants that, in the performance of this License, no person or entity having such conflicting interest shallbe utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of User, its employees or associated persons, or entities must be disclosed in writing to the City. 28. Public Records. User understands that the public shall have access, at all reasonable times, to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. 29. Third Party Beneficiary. This License is solely for the benefit of the parties hereto arid no third party shall be entitled to claim or enforce any rights hereunder. 30. No Partnership. Nothing contained herein shall make, or be construed to make any party a principal, agent, partner or joint venturer of the other. 31. Authority. Each of the parties hereto acknowledges it is duly authorized to enter into this License and that the signatories below are duly authorized to execute this License on their respective behalf. IN WITNESS WHEREOF, the parties hereto have executed this License of the day and year first above written. 13 ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida Todd B. Hannon City Clerk Daniel J. Alfonso City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: Ann -Marie Sharpe, Director Department of Risk Management 14 Victoria M6ndez City Attorney USER: WeatherFlow, Inc WITNESSES: Signature Signature Print Name Print Name Print Title Signature Print Name Morningside Park Location: 25.8228, -80.1783 EXHIBIT "A" 16 EXIIIBIT "B" Weather Station is expressly designed to withstand hurricane force winds. It is small and completely self-contained utilizing anemometer rated for 224mph winds and low profile hardened case for data logger and communications device, There are no cables from the station to ground, and therefore no grounding issues: power is supplied by a small solar panel (16.5" x 11", weight 1, 81bs). Communication from the site to a central repository is accomplished through cell transmission. The station measures wind speed, wind direction, air temperature and barometric pressure. The instruments include an R.M. Young anemometer -vane (picturedbelow), mounted on a stainless steel boom installed on a short mast affixed to Pole. The anemometer weighs 2lbs, and connects to the data logger along with an air temperature sensor and solar panel. The data logger is 11"x12"x8" and weighs about 25 lbs. 17 EXHIBIT "C" 102.01. 40041.042*, 2, Mir PEEROTTo*C I*4121224 4ti MOW 0 Mg 1,54 ram iga rurs um 1/1* 1112Y4tigerfgailat MOE 2.412PM &AC .412 4244* 12,4* 21041 11E 12 2I-e r444turt 1.014,211 PM Iva C 3/0 pacITS Ira OE MA= arlIEVED NEE F SRL 8*8 MEM EOM All'Arti MEANIE 41 SOO eV WW,Q HEMMT MAID ONE tV.OPESSIN 888NE4824 litilgariTIII3111PEIMIRFEB If, i v-r E 104-0. MA# fhv 11 C,01 2/4 ifax RELEASE; 5250P5I . 012 ogyraN 8844 .482" 2. 8184 100/1.0"48484 11A4M 48444148. 81 SIDE VIEW ont EWMARX '92to itrgtamr VW 1917(IVICATIV4 MAU 4Irl ME format huireF82*48808820 ,N, - er 61*818 IV 0'4 SWAM TOE ANIo MEM +2,4? MI 184 84444 011*sr.* 4r4 444444088 TV 4184 NIT Ric 14444' 104 cF spLwe 22 STRA. TM V4'-220 RN 11-60 UTILITY DIV151C4 VALMONT 114USTAIES, INC. ,4,2511Weacc tam *-244-42,. tArSrntS 1.95. 202242 • *** I .44 42,11r :1'247 44 21 *ME X4,1,2r2Y - • 44,r2 urtic2rliCIE P.SI. I , te OK itE*Emayr 222. F*014 fro, WE* 2,421, 6448e421 - 44.18 ha. 12,_i Tr 18 EXHIBIT "D" INSURANCE REQUIREMENTS -PROFESSIONAL SERVICES AGREEMENT WEATHERFLOW I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $2,000,000 General Aggregate Limit $2,000,000 Personal and Adv. Injury $2,000,000 Products/Completed Operations $2,000,000 B. Endorsements Required City of Miami included as an Additional Insured Premises and Operations Liability Contingent and Contractual Liability Primary Insurance Clause Endorsement II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit IV. Professional Liability/Errors and Omissions Coverage Combined Single Limit Each Claim $2,000,000 General Aggregate Limit $2,000,000 Deductible- not to exceed 10% The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval.