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HomeMy WebLinkAboutContract 51497 CITY SECRETARY r_. Q CONTRACT NO. 51493 FORT AORG� pQ SSR DENDUM TO AGREEMENT BETWEEN THE CITY OF FORT WORTH AND TEXAS CHRISTIAN UNIVERSITY TITLE OF AGREEMENT: Contract for Use of General Facilities("the Agreement") Notwithstanding any language to the contrary in the attached Agreement presented by Texas Christian University, ("Company") for use of general facilities ("services"), the City of Fort Worth ("City") and Company (collectively the "parties") hereby stipulate by evidence of execution of this Addendum ("Addendum") below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1. Insurance: The City is a governmental entity under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by Governmental Units," is self-insured and therefore is not required to purchase insurance. To the extent the Agreement requires the City to purchase insurance,the City will provide a letter of self-insured status as requested by Company. 2. Indemnity: To the extent the attached Agreement requires the City to indemnify, defend, or hold Company or any third party harmless from damages of any kind or character, or requires reimbursement, or monetary liabilities of unspecified amounts, the City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 3. Sovereign Immunity: Nothing herein constitutes a waiver of the City's sovereign immunity. To the extent this Agreement requires the City to waive its rights or immunities as a government entity, such provisions are hereby deleted and shall have no force or effect. 4. No Debt: In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all obligations of the City hereunder are subject to the availability of funds. If such funds are not appropriated or become unavailable, the City shall have the right to terminate this Agreement except for those portions of funds which have been appropriated prior to termination. 5. Addendum Controlling: If any provisions of the attached Agreement, conflict with the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or ordinance of the City, the terms in this Addendum shall control. CITY OF FORT WORTH: TEXAS CHRISTIAN UNIVERSITY By: �' By: '.e,,e_ Name: Name: Assistant City Manager Title: 110 Date: ��(�o _ � � �� tFT. L RECORD Date: CRETARY RTH,TX vim FOR - ® ATTEST: By: j C4 Ser XAS APPROVED AS TO FORM AND LEGALITY: By: Assistant City Attorney Contract Authorization: M&C: N/A Date Approved: +18 13L9 5: N CFw r Fomn Addendum Ne2of2 OFFICIAL RECORD CITY SECRETARY FT: WORTH,TX City of Fort Worth 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. H er Robe on Name of Employee/Signature Assistant Fire Chief Title OFFICIAL REb UkD CITY SECRETARY TEXAS CHRISTIAN UNIVERSITY GENERAL FACILITIES AGREEMENT NON-RESIDENTIAL CONFERENCES This Agreement is made and entered into by and between Texas Christian University("TCU"),located in Fort Worth,Tarrant County, Texas, and the Sponsor listed below. TCU and Sponsor agree as follows: I. SPONSOR AND EVENT: Sponsor: CITY OF FORT WORTH OFFICE OF EMERGENCY MANAGEMENT Sponsor's Address: 200 TEXAS STREET FORT WORTH TX 76102 c/o AMANDA EVERLY Event: NATIONAL WEATHER SERVICE EMERGENCY MANAGEMENT TRAINING Dates of Event: JANUARY 26,2019 Sponsor warrants to TCU that the information furnished in the Special Events Application submitted by Sponsor to TCU in connection with the Event is true and correct. II. FACILITIES, EQUIPMENT AND SERVICES: Subject to and upon the terms and conditions contained in this Agreement, TCU agrees to furnish to Sponsor the facilities and equipment and services as listed on the Facilities, Equipment and Services Attachment(s). III. CHARGES: Charges for the above Facilities, Equipment and Special Services are as follows: Itemized Basic Charges for Non-Residential Facilities, Equipment and Special Services: ALL FEES HAVE BEEN WAIVED All federal and local taxes and charges which may be imposed on or applicable to this Agreement and to the services rendered by TCU are in addition to the price agreed upon and the Sponsor agrees to pay them separately. IV. PAYMENT: A. Deposit. A deposit equal to the sum of the Basic Charges(for a total of$N/A)is due and payable by N/A. In the event Sponsor cancels prior to NOVEMBER 27, 2018 Sponsor shall be entitled to a refund of all deposits paid, less expenses actually incurred by TCU. The deposit shall otherwise be non-refundable. B. Balance. TCU will submit a statement to Sponsor for the remaining balance owing,and Sponsor shall pay TCU the balance due within ten (10) days after receipt of the statement. All past due amounts shall bear interest at the highest lawful rate until paid. C. Special payment terms: N/A. V.. CONDITIONS: A. The obligations of TCU under this Agreement are conditioned upon: 1. Timely receipt of the Deposit in good funds; 2. Receipt by TCU, not less than twenty (20) working days before the beginning of the scheduled Event,of a certificate or other satisfactory proof of the liability and all other insurance coverage required herein; - t - 3. Receipt by TCU, not less than five (5)working days before the beginning of the scheduled Event,of written certification that all persons, in a position that involves direct contact with a person under the age of eighteen years of age, have completed a Campus Program for Minors Training and Examination Program on Sexual Abuse and Child Molestation approved by the Texas Department of State Health Services; 4. Compliance by Sponsor with its warranties and obligations herein; and 5. Availability of the Facilities. B. In the event that TCU buildings, property or facilities shall be destroyed or substantially damaged by fire or other casualty, or in the event that other circumstances render the fulfillment of this Agreement by TCU impractical or impossible, or in the event that TCU is closed due to weather, TCU shall be excused from performance hereunder,and Sponsor shall be obligated to pay only for those services,activities and events which shall have occurred prior to said casualty or circumstance. Sponsor waives any claim for damages or compensation resulting from casualty, fire or other circumstance causing curtailment of this Agreement. SPONSOR'S SOLE REMEDY FOR ANY UNEXCUSED NON-PERFORMANCE BY TCU SHALL BE LIMITED TO THE RETURN OF ALL SUMS PAID TO TCU BY SPONSOR. VI. NO WARRANTIES: TCU makes no warranties or representations, either express or implied, or arising by operation of law,with regard to the condition of the facilities or equipment and Sponsor expressly acknowledges that Sponsor has thoroughly inspected and is accepting the facilities and equipment for its use for the Event on an "AS IS,""WHERE IS,"and "WITH ALL FAULTS"basis. VII. INSURANCE, INDEMNITY,AND LIABILITY A. Sponsor agrees to keep and maintain for the entire time covered by this Agreement,at Sponsor's sole cost and expense, general public liability insurance (which must include sexual abuse and molestation coverage if minor children will be on,in or about the TCU Campus)and auto liability insurance insuring Sponsor against any and all claims for injury to person or damages to property, or for death or loss of property in connection with the Event, occurring on, in or about the TCU campus,for limits of not less than $1,000,000.00 per occurrence and in the aggregate. Sponsor shall attach a valid certificate of insurance upon execution of this Agreement. The policies shall be on a form acceptable to TCU and endorsed to include TCU as an additional insured and shall state that the insurance is primary insurance as regards any other insurance carried by TCU. Each such policy shall provide that it shall not be canceled without thirty (30)days prior written notice being furnished to TCU. Sponsor agrees to waive any rights of subrogation against TCU and further agrees that the insurance coverage required herein will include a waiver of subrogation in favor of TCU. The policies shall also include broad from contractual liability coverage in support of the indemnity section of the Agreement. In the event satisfactory proof of such insurance is not furnished with time required, TCU may terminate this Agreement. B. SPONSOR HEREBY FULLY RELEASES AND FOREVER DISCHARGES TCU AND ALL INSTRUCTORS, AGENTS, EMPLOYEES, OFFICERS, TRUSTEES AND AFFILIATES OF TCU (COLLECTIVELY,THE"INDEMNITEES")of and from any and all liability to Sponsor,its successors and/or assigns, personal representatives, heirs and next of kin,for any and all losses, liabilities,damages,claims, lawsuits and actions of any kind or description for injury to or death of Sponsor or damage to or loss of property of Sponsor(each a"Claim"), directly or indirectly, arising out of, resulting from or relating to(i)this Agreement; (ii) ANY ACT OR OMISSION ON THE PART OF THE INDEMNITEES, INCLUDING ANY NEGLIGENT CONDUCT OF THE INDEMNITEES but excluding any gross negligence or willful misconduct of the Indemnitees;(iii)the condition,use or operation of the facilities or any other part of the TCU campus; (iv)the condition,use or operation of any of the equipment or provision of any services furnished hereunder; (v)conduct of the Event; or(vi)any one or more of the foregoing. -2- C. TO THE EXTENT PERMITTED BY LAW, SPONSOR AGREES TO INDEMNIFY, DEFEND AND HOLD . HARMLESS THE INDEMNITEES for, from and against any and all liabilities, damages, claims, lawsuits, costs (including court costs, attorneys' fees and costs of investigation), and actions of any kind or description for injury to or death of any person or damage to or loss of property(each a"Claim")directly or indirectly by, arising out of, resulting from or relating to (i)this Agreement, including, but not limited to, any breach, violation or non-performance of any covenant of Sponsor under this Agreement; (ii) any act or omission on the part of any participant in the Event or Sponsor or any invitee, licensee,employee, director, officer, servant, contractor or subcontractor of Sponsor; (iii) ANY ACT OR OMISSION ON THE PART OF TCU, INCLUDING ANY NEGLIGENT CONDUCT OF THE INDEMNITEES but excluding any gross negligence or willful misconduct of the Indemnitees; (iv) the condition, use or operation of the facilities or any other part of the TCU campus; (v)the condition, use or operation of any of the equipment or provision of any services furnished hereunder; (vi)participation in or conduct of the Event; or(vii)any one or more of the foregoing. D. Workers'Compensation. [CHECK SPACE "1", "2" or "3" BELOW AS APPLICABLE. IF SPACE "1" IS CHECKED, ALSO CHECK SPACE "a.", "b."or"c."AS APPLICABLE.] 1. If this space is marked, Sponsor acknowledges that it will have employees and/or volunteers (whether paid or unpaid) on the property and buildings of the TCU campus during and/or in connection with the Event; and Sponsor represents and warrants to TCU that it affords medical and wage benefit protection for any potential injury to any of its employees through one of the following [check appropriate space]: a. worker's compensation coverage pursuant to Texas Labor Code Chapter 406, and Sponsor will furnish to TCU proof of such coverage upon execution of this Agreement. This policy shall include a waiver of subrogation in favor of TCU. b. an election to be self-insured for worker's compensation coverage pursuant to Texas Labor Code Chapter 407, and Sponsor will furnish to TCU proof of such self-insurance,in the form of a certificate of authority to self-insure as provided for in Texas Labor Code 407 Subpart D upon execution of this Agreement. c, its own wage and benefits program for the compensation of employee injury if Sponsor has chosen not to obtain worker's compensation insurance coverage pursuant to the Texas Workers' Compensation Act, and Sponsor will furnish to TCU, upon execution of this Agreement (i) a copy of Form TWCC-5 pursuant to which Sponsor elected to become a nonsubscriber, (ii)a copy of Sponsor's wage and benefit plan designed to provide benefits to employees in the course and scope of employment,(iii) copies of certificates of insurance which reimburse Sponsor for the payment of such benefits or, alternatively, provide such benefits to injured employees,and(iv)a copy of Sponsor's certificate of insurance for excess indemnity coverage in an amount not less than $3,000,000.00 per employee with a retention of no greater than$100,000.00. The insurance policies shall be on a form acceptable to TCU and endorsed to include TCU as an additional insured and shall state that the insurance is primary insurance as regards any other insurance carried by TCU. The policies shall also include broad form contractual liability coverage in support of the indemnity sections of this Agreement. Sponsor agrees to waive any rights of subrogation against TCU and further agrees that the insurance coverage required herein will include a waiver of subrogation in favor of -3- TCU. In the event satisfactory proof of such insurance is not furnished within the time required,TCU may terminate this Agreement. 2. If this space is marked, Sponsor represents and warrants to TCU that it will have no staff, employees, and/or volunteers (paid or unpaid) on the TCU campus at any time during or in connection with the Event. 3. If this space is marked,Sponsor represents and warrants to TCU that it will have no paid staff and/or employees on the TCU campus at any time during or in connection with the Event,and Sponsor further represents and warrants to TCU that any independent contractors and/or volunteers of Sponsor who may be on the TCU campus at any time during or in connection with the Event have executed a legally binding release and waiver of any claims against Sponsor and TCU that such independent contractors and/or volunteers may have for any potential injury sustained by them in connection with the Event. Sponsor shall provide a copy of all such waivers and/or releases to TCU no later than fifteen (15)days prior to the event. 4. Sponsor does not carry workers compensation coverage and is sending one or more employees or volunteers to the Event. Sponsor agrees to defend,indemnify and waive all rights of subrogation related to any work related accident. WITHOUT LIMITING IN ANY WAY ANY OTHER INDEMNITY CONTAINED IN THIS AGREEMENT, SPONSOR AGREES TO THE EXTENT PERMITTED BY LAW TO INDEMNIFY, DEFEND AND HOLD HARMLESS the Indemnitees from any and all liability, costs or attorneys'fees incurred in defending any claim for physical or emotional injuries, medical benefits or lost wage benefits made on behalf of any employee, independent contractor or agent of Sponsor in connection with the Event. E. Sponsor acknowledges and agrees that all of Sponsor's employees, independent contractors, agents, guests, invitees and participants are under Sponsor's direct and complete supervision and control and are the sole responsibility of Sponsor. Sponsor agrees to reimburse TCU for any damages or loss, beyond reasonable wear and tear,resulting from the use of the facilities and equipment by Sponsor, its employees, independent contractors, guests, invitees and/or participants. F. Sponsor acknowledges and agrees that neither Sponsor, nor any of Sponsor's employees, independent contractors, agents, guests, invitees or participants will at any time be considered employees, agents or independent contractors of TCU as a result of Sponsor's use of the Facility for the Event. G. TCU assumes no responsibility for damage to or loss or theft of any personal property or equipment of Sponsor or of its employees,independent contractors,agents,guests,invitees or participants before,during or following the Event. H. IT IS THE EXPRESSED INTENT OF THE PARTIES TO THIS AGREEMENT THAT THE RELEASE AND INDEMNITY PROVISIONS CONTAINED HEREIN INCLUDE THE RELEASE AND INDEMNIFICATION, AS APPLICABLE, BY SPONSOR OF TCU AND THE OTHER INDEMNITEES FROM THE CONSEQUENCES OF THE INDEMNITEES' OWN NEGLIGENCE, REGARDLESS OF ANY EXTRAORDINARY SHIFTING OF RISKS, AND EVEN IF THE APPLICABLE CLAIM IS CAUSED BY THE ACTIVE OR PASSIVE NEGLIGENCE OR SOLE, JOINT, CONCURRENT OR COMPARATIVE NEGLIGENCE OF ANY INDEMNITEE AND REGARDLESS OF WHETHER LIABILITY WITHOUT FAULT OR STRICT LIABILITY IS IMPOSED UPON OR ALLEGED AGAINST SUCH INDEMNITEE, BUT NOT TO THE EXTENT THAT A COURT OF COMPETENT JURISDICTION HOLDS IN A FINAL JUDGMENT THAT A CLAIM IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE. -4- VIII. CONDUCT AND COMPLIANCE WITH LAWS AND REGULATIONS: A. Sponsor shall adhere to, and shall cause its employees, independent contractors. agents, guests, invitees and participants to adhere to, all TCU policies, regulations and guidelines applicable to the conduct of the Event and to the use of the facilities and equipment. Sponsor acknowledges receipt of a copy of such policies, regulations and guidelines, and same are incorporated herein by reference. Sponsor shall cooperate and coordinate at all times with TCU's Campus Police in enforcing regulations and in internal security and theft control. B. Sponsor shall conduct the Event in an orderly manner and in full compliance with all applicable laws, ordinances and regulations. C. Sponsor shall use the facilities and equipment for no purpose other than the Event. D. TCU retains control over the facilities,equipment and services provided,and reserves the right: (i)to enter any room or facility for the purpose of inspection, repair or emergency; (ii)to revoke the campus privilege, including utilization of any of its facilities, of any occupant or other person whose conduct, solely in TCU's opinion, becomes injurious or is potentially injurious to the university community or is otherwise objectionable; and(iii)to reassign facilities to ensure a maximum and appropriate utilization of facilities. E. The Sponsor shall be fully responsible for compliance with the Americans With Disabilities Act of 1990, as the same may be amended,and all rules and regulations promulgated thereunder(the"ADA")with respect to:(a)the policies,practices,procedures and eligibility criteria employed by(i)the Sponsor or(ii)any person other than TCU providing goods or services in connection with the Event; (b)the provision of auxiliary aids and services (i) in areas designated for the exclusive use or within the control of the Sponsor and (ii) required for the specific activities of the Sponsor; (c) architectural, communications and transportation barriers created by or within the control of the Sponsor;(d)any violation of wheelchair seating requirements, to the extent that the Sponsor exercises control or direction of seating in any assembly area; and (e) any examinations or courses offered by the Sponsor relating to applications, licensing, certification or credentialing for secondary or post-secondary education, professional or trade purposes. In recognition of the limitation on TCU's capacity and obligation to provide auxiliary aids and services, the Sponsor agrees to give TCU reasonable prior notification of the number and type of such aids and services as may be required by attendees of the Event. TCU, in tum, agrees to promptly notify the Sponsor of the extent to which such needs exceed TCU's ADA obligations and capacity. Sponsor shall bear the responsibility to provide any aids or services in excess of TCU's ADA obligation,and losses and expenses incurred by TCU (including attorneys' fees and costs) based upon the failure of the Sponsor to comply with the ADA in accordance with the foregoing. IX. MISCELLANEOUS: A. Sponsor agrees that every minor child shall present upon their arrival a medical release for hospital treatment or treatment by a physician, signed by one or both of the child's parents or legal guardian, to allow for treatment should an accident or an injury occur. Sponsor agrees to maintain said parental releases in Sponsor's possession throughout the Event. The cost of any medical services to participants in Sponsor's event is not the responsibility of TCU. B. Sponsor shall provide the TCU Conference Services Office with a schedule of all events including time and place by no later than NOVEMBER 27, 2018. No advance materials shall be shipped to TCU prior to five (5)working days before the scheduled Event begins. Sponsor shall provide TCU's Conference Services Office with advance copies of proposed advertising materials, and TCU's name shall not be used in any advertisement without TCU's prior written approval. C. This Agreement contains the entire agreement between TCU and Sponsor and may only be amended by a written instrument signed by both parties. Each provision of this Agreement is severable and if one portion is invalid or illegal, such invalid or illegal portion shall not apply, but the remaining portions shall -5- nevertheless remain in full force and effect. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns, provided that Sponsor may not assign any interest in this Agreement to a third party without TCU's prior written consent. D. This Agreement shall be governed,construed and enforced under the laws of the State of Texas,and venue with respect to any dispute arising between TCU and Sponsor that involves in any way this Agreement shall be exclusively in Tarrant County, Texas. E. In the event it becomes necessary for TCU to institute any action at law or in equity to enforce its rights and Sponsor's obligations hereunder,TCU shall be entitled to recover from Sponsor reasonable attorneys'fees and court costs(provided that TCU is the prevailing party in said action),together with all damages allowed by law. F. TCU is an equal opportunity institution and subscribes to all requirements of federal law which prohibits discrimination in respect to students, employees, applicants or University programs on the basis of sex, race, color, national origin, age,religion, disability or veteran or other legally protected status. G. This Agreement is not binding until it is countersigned by TCU. TCU will honor its terms, rates and availability of facilities and services for fourteen(14)days from the date this Agreement is deposited in the. mail addressed to Sponsor or from the date it is otherwise delivered to Sponsor. Thereafter,this Agreement will be subject to change and to availability. Failure of Sponsor to sign and return this Agreement so as to be received by TCU by no later than NOVEMBER 27,2018 will render this Agreement void and of no effect. H. The failure of TCU to insist upon strict and prompt performance of any of the covenants and conditions of this Agreement shall not constitute or be considered a waver or relinquishment of TCU's right thereafter to enforce such covenant or condition in the event of a continuous or subsequent default on the part of Sponsor. X. COMPLIANCE WITH TEXAS EDUCATION CODE SECTION 51.976. In accordance with Texas Education Code Section 51.976 and Texas Christian University policy, Sponsor shall require any person in a position that involves direct contact with a person under the age of eighteen years of age to successfully complete a Campus Program for Minors Training and Examination Program on Sexual Abuse and Child Molestation approved by the Texas Department of State Health Services. Sponsor's authorized representative shall certify in writing, in the manner required by Section V.A.3.,that all persons in a position that involves direct contact with a person under the age of eighteen years of age have completed a Campus Program for Minors Training and Examination Program on Sexual Abuse and Child Molestation approved by the Texas Department of State Health Services. We, the undersigned, do hereby enter into this Agreement, as witnessed by our signatures below, effective as of the date inserted by TCU below its signature. TEXAS CHRISTIAN UNIVERSITY CITY OF FORT WORTH OFFICE OF EMERGENCY MANAGEMENT Sponsor By: By: Printed Name: Margaret Kelly Printed Name: Title: Executive Director, Community Projects Title: sw Date: /rf, �Q "/ Date: L OFFICIAL RECORD -6- CITY SECRETARY FT.WORTH,TX Soto, Vania Elizabeth From: Everly,Amanda R Sent: Monday, November 05, 2018 10:19 AM To: Soto,Vania Elizabeth Subject: RE: Question about Contract Received It is a new contract for us, but not new for the city.Since we didn't do the original contract I do not know the number for the original contract. Amanda Everly From: Soto, Vania Elizabeth Sent: Monday, November 05, 2018 9:56 AM To: Everly, Amanda R Subject: Question about Contract Received Importance: High Good morning, I am working on processing the Addendum to Agreement with TCU for Use of General Facilities Agreement and I don't see the original contract number anywhere.Does this need a new contract number or does it already have a contract number?Please respond ASAP so that I can finish processing this contract. Thank you, Vania E. Soto Administrative Assistant City Secretary's Office W: 817-392-6090