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HomeMy WebLinkAboutContract 53833 CSC No.53833 RECEIVED APR 2 4 2020 CITY OF FORT WORTH CITY SECRETARY LIC_'ENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND SIGMA_ PERFORMANCE SWIMMING THIS LICENSE AGREEMENT ("License Agreement") is made and entered into by and between the CITY OF FORT WORTH, a home-rule municipal corporation of the State of Texas, ("City") and SIGMA PERFORMANCE SWIMMING a domestic nonprofit corporation ("Licensee"), acting by and through its duly authorized representative. WHEREAS, the City owns and operates Forest Park Swimming Pool, located at 2850 Park Place Avenue, Fort Worth,TX 76110, and Marine Creek Swimming Pool("Pools") located at 303 NW 20th St,Fort Worth, TX 76164, WHEREAS, Licensee's mission is to encourage participation, fitness, health, and the lifelong pursuit of excellence through competitive swimming; WHEREAS, to carry out its mission, Licensee wishes to license the swimming pools to teach swimming lessons;and NOW, THEREFORE, in consideration of the covenants and agreements contained in this License, City and Licensee hereby agree as follows: SECTION 1 LICENSED PREMISES 1.1 Licensed Premises. For and in consideration of the rental payments to be paid under this License Agreement and the agreements of the parties expressed herein, City does hereby grant to Licensee the use of the Pools as set forth in greater detail in Exhibit A, which is attached hereto and incorporated herein("Premises"). 1.2 Condition of the Leased Premises. Licensee agrees that Licensee has examined the Premises prior to the execution of this License Agreement and is satisfied with the physical condition of the Premises.Licensee's taking possession of the Premises shall be conclusive evidence of its receipt of the Premises in a safe, sanitary, and good condition and repair, except for those conditions that the Licensee provides City written notice of prior to the execution of this License Agreement. Licensee agrees that it is taking the Premises in its current "AS IS" condition with no representations or warranties of any nature whatsoever by City (except as otherwise specifically provided for in this License Agreement). 1.3 Any modifications to the Premises must be set forth in a written amendment to this License Agreement. SECTION 2 JSF. OF THE LICENSED PREMISES 2.1 Licensee may use the Premises for the purpose of teaching swimming lessons (the "Program")and for no other purpose. 2.2 Licensee shall only have use of the Premises outside of the Premise's normal operational hours in accordance with the schedule set forth in Exhibit B. All activities related to any Licensee's use must be completed within the time period set forth in the schedule in Exhibit B, including, but not limited to, set-up and clean-up. If Licensee, for any reason, holds over b dnd-t1re --­" ==_--- scheduled times set forth in Exhibit B, the Director of the City's Park& Recreation Departme person's designee("Director'),reserves the right, in his or her sole discretion,to remove Licen RECORD Sigma Swimming oft��� ���� the Premises or charge Licensee a fee for use of the Premises for the time period beyond that which the Premises is reserved Any additional fee will be commensurate with that charged to other patrons of the Premises using the same space for the same amount of time and shall be paid along with the Licensee Fee in accordance with Section 4 below. 2.3 Either party may request a temporary modification of the schedule set forth in Exhibit B with ten (10) days prior written notice, but no such change will take effect without the prior written consent of both parties. Any permanent revisions to the schedule set forth in Exhibit B will require an amendment to this Agreement. 2.4 The Premises will be closed and unavailable for use by the Licensee on all regular City holidays. Except due to emergency circumstances or Force Majeure Events, City agrees to notify Licensee of any change in the hours of operation of the Premises by providing Licensee with written notice,within a reasonable time prior to the change taking effect. City agrees to provide similar notice to Licensee should the Premises not be available to the Licensee due to special events, scheduled maintenance or other non-emergency closures. In the event of a change in hours or availability, such change shall not give rise to any claim against the City by the Licensee,whether for lost profits, cost, overhead, or otherwise. 2.5 Licensee may bring into the Premises any equipment reasonably necessary to further the intended use of the Premises. However, the City reserves the right to prohibit any equipment which, in the City's sole discretion,may be dangerous or harmful to Program participants or the Premises. 2.6 Licensee may not use any part of the Premises for any use or purpose that violates any applicable law, regulation, or ordinance of the United States, the State of Texas, the County of Tarrant, or the City of Fort Worth,or other lawful authority with jurisdiction of the Premises. 2.7 Licensee understands and agrees that the parking areas at the Premises are not for the exclusive use of the Licensee and that the City and patrons of the Premises may use the parking spaces at any time. 2.8 This License Agreement and all rights granted to Licensee herein are strictly non- exclusive. The City reserves the right to enter into and grant other and future licenses, leases, and other authorizations for use of the Premises to other persons and entities as the City deems appropriate in accordance with applicable law; provided, however, that in granting subsequent authorization for use, the City will not allow a use that will unreasonably interfere with the Licensee's use of the Licensed Premises as provided herein. This License Agreement does not establish any priority for the use of the Premises by the Licensee or by any present or future licensees. In the event of any dispute as to the priority of use of the Premises, the first priority shall be to the public gencrally, the second priority to the City in the performance of its various functions, and thereafter, as between licensees, as determined by the City in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Texas. SECTION 3 TERM OF LICENSF. 3.1 Term. Unless terminated earlier pursuant to the terms herein, the term of this License Agreement shall be for the period of two months, effective beginning June 1, 2020 and ending on July 30,2020. 3.2 Holdover Tenancy. Unless terminated earlier pursuant the terms herein, this License Agreement will expire without further notice when the Term expires. Any holding over by Licensee after the Term expires will not constitute a renewal of the License Agreement or give Licensee any rights under the License Agreement in or to the Premises, except as a tenant at will. SigmaSwimming 2 of20 SECTION 4 1jCFNSF. FEE 4.1 As consideration for the rights and privileges granted hereunder for this License Agreement, Licensee covenants and agrees to pay to City a sum of Ten-Thousand,One Hundred Dollars and No Cents ($10,100.00)("License Fee") per month, to be paid on a monthly basis. In no event shall the License Fee be reduced due to cancellation of any programs or events for any reason. Licensee shall pay the License Fee for the term on or before the tenth (10'h)calendar day after the City executes this License Agreement. Please submit payment to the following address in care of the Aquatics Coordinator:4200 S.Freeway, Suite 2200,Fort Worth,TX 76115. SECTION 5 D PIT S AND RFSPONSIBI .ITI S 5.1 In addition to any other duties and responsibilities set forth in this License Agreement, Licensee shall: 5.1.1 Ensure that the Licensee's use of the Premises complies with any and all policies, rules, and regulations governing the use of the Premises. The City will provide a copy of any such policies, rules, and regulations within a reasonable time after request by the Licensee. 5.1.2 Provide a listing of all participants in Licensee's swimming lessons to the point of contact and ensure each instructor of any Licensee's swim programs are in possession of proper certifications for safety and instruction, including lifeguard certification from the American Red Cross. 5.1.3 Not occupy the Premises beyond the times listed in Exhibit B. 5.1.4 Provide notification of changes to Licensee's use of the Premises, including cancellation but excluding emergencies or Force Majeure Events, must be provided to the City within 24 hours prior to scheduled start time, according to Exhibit B. In case of emergency or Force Majeure Events,the Licensee must notify the Director promptly upon learning of such emergency or Force Majeure Events. 5.1.5 Immediately report any maintenance or repair needs to the point of contact for the Program and to the City employee present on the Premises. 5.1.6 Be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with Licensee's use of the Premises, including, but not limited to, ensuring that at least one certified lifeguard is present at all times and ensuring that the ratio of certified lifeguards to participants does not exceed one to six (1:6). 5.1.7 Require that each Program participant sign the Individual Waiver, Release, and Indemnity Agreement,attached hereto as Exhibit D. 5.1.8 Submit to the point of contact a monthly attendance report which includes the number of participants per session. 5.1.9. Submit to the point of contact an annual revenue report which includes revenue totals by session and month and the number and dollar amount of awarded scholarships. SigmaSwimming 3 of20 5.1.10. Designate a point of contact for Program administration and reporting requirements. The initial point of contact shallbe: SIGMA PERFORMANCE SWINMNG Andrew Ha, Director PO Box 123222 Fort Worth, Texas 76121 5.1.11. In the event that Licensee will be unable to appear for a given lesson, Licensee shall be required to provide a minimum of 48 hours' notice to the City's point of contact and shall work in good faith to reschedule a make-up class. 5.2.12 Address complaints related to the Program with 24 hours of notification by the City. 5.2 The City shall: 5.2.1 Furnish the necessary existing utilities and electrical power available at the Premises, at all times, for the ordinary and intended use of such,which includes lighting and water for ordinary and intended use. City shall not be liable or responsible for accidents or unavoidable delays. 5.2.2 Ensure the Premises is suitable for its intended purpose. 5.2.3 Provide staff to lock and unlock the Center and arm and disarm any security system. 5.2.4 Ensure that a City employee is present at the Premises at all times during Licensee's use. 5.2.5 Designate a City employee to serve as the point of contact for Program administration and reporting requirements. The initial point of contact shallbe: Cory M. Stuhmer, CPO Athletics Coordinator,Aquatics and Youth Athletics Park and Recreation Office-817-392-7691 Fax-817-392-5776 Cory.Stuhmerna,fortworthtexas.gov 5.2.6 As soon as is reasonably practical,notify Licensee,through its point of contact, of any closure of the Premises due to weather or mechanical issues. 5.2.7 Notify Licensee,through its point of contact, of all complaints received related to the Program. SECTION 6 LIENS 6.1 Licensee acknowledges that it has no authority to engage in any act or to make any contract that may create or be the foundation for any lien upon the property or interest in the property of City. If any such purported lien is created or filed,Licensee will not permit it to remain, and will, at its cost and expense,promptly discharge,all liens, encumbrances,and charges upon the Premises or apart SigmaSwimming 4 of20 thereof; arising out of the use or occupancy of the Premises or a part thereof by Licensee, by reason of any labor or materials furnished or claimed to have been furnished, by, through, or under Licensee, by reason of any construction, improvement, alteration, addition, repair, or demolition of any part of the Premises. Licensee's failure to discharge any such purported lien shall constitute a breach of this License Agreement and City may terminate this License Agreement upon thirty (30) days written notice. However, Licensee's financial obligation to City to liquidate and discharge such lien shall survive following termination of this License Agreement and until such a time as the lien is discharged. SECTION 7 CARE.OF THE LICENSED PREMISES 7.1 Licensee, at Licensee's own expense, shall keep the Premises and maintain all equipment and other properties of City in a safe, sanitary, sightly condition and in good repair during its use of the Premises; provided, however, the foregoing shall not be construed to require the Licensee to provide general janitorial services at the Premises. Licensee shall restore and yield said Premises, equipment, and all other properties belonging to the City back to City, at the expiration of each scheduled time set forth in Exhibit B, in good or better condition as existed at the beginning of each scheduled time set forth in Exhibit B and in which Licensee found them. This shall only apply during such time as the Licensee has use of the Premises as set forth in this License Agreement. 7.2 Licensee will not do, or permit to be done, any injury or damage to the Premises, or any parts thereof, or permit to be done anything that will damage or change the finish or appearance of the Premises or the furnishings thereof or any other property belonging to the City by the erection or removal of equipment or any other improvements, alterations or additions. No decorative or other materials shall be nailed, tacked, screwed or otherwise physically attached to any part of the Premises or to any of the furnishings or fixtures of the City without the prior written consent of the Director. 7.3 Subject to ordinary wear and tear and to the extent allowed by law, Licensee will pay the costs of repairing any damage that may be done to the Premises or any of the fixtures, furniture or furnishings by any act of Licensee or any of Licensee's officers, representatives, servants, employees, agents, invitees, swim program participants, or anyone visiting the Premises upon the invitation of the Licensee. The City shall determine, in its reasonable discretion,whether any damage has occurred, the amount of the damage, the reasonable costs of repairing the damage, and whether,under the terms of the License Agreement, the Licensee is responsible. The quality of the maintenance and damage of the Premises, furnishings, fixtures or furniture by the Licensee shall be reasonably acceptable to the City. The costs of repairing any damage to the Premises shall be immediately due and payable by the Licensee upon Licensee's receipt of a written invoice from City. SECTION 8 FORCE MAJEURE 8.1 If either party is unable, either in whole or part; to fulfill its obligations under this License Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections;riots; epidemics; pandemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state;declaration of a state of disaster or emergency by the federal, state, county, or City government in accordance with applicable law; issuance of an Imminent Threat Alert or Elevated Threat Alert by the United States Department of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the party's reasonable control (collectively, "Force Majeure Event'), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such Force Majeure Event. If a Force Majeure Event occurs, the City may, in its sole discretion, close or postpone the opening of its community centers,parks,or other City- owned and operated properties and facilities in the interest of public safety and operate them as the City SigmaSwimming 5 of20 sees fit. Licensee hereby waives any claims it may have against the City for damages resulting from any such Force Majeure Event. SECTION 9 LIABILITY AND INDEMNIFICATION 9.1 TO THE EXTENT ALLOWED BY LAW, LICENSEE SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE AND PERSONAL INJURY OF ANY HIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S� MALFEASANCE OR INTENTIONAL MISCONDUCT OF LICENSEE, OR ITS DIRECTORS, OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, CONTRACTORS, EMPLOYEES, PATRONS, GUESTS, INVITEES, PROGRAM PARTICIPANTS, OR SUBLICENSEES. LICENSEE HEREBY EXPRESSLY RELEASES AND DISCHARGES CITY FROM ANY AND ALL LIABILITY FOR ANY DAMAGE, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE OCCUPANCY AND USE OF THE PREMISES AND ANY AND ALL ACTIVITIES CONDUCTED THEREON SUSTAINED BY REASONS OF THE OCCUPANCY OF SAID PREMISES UNDER THIS LICENSE AGREEMENT. 9.2 INDEMNIFICATION—LICENSEE, AT NO COST TO THE CITY, AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY, PROTECT, AND HOLD HARMLESS CITY AND CITY'S OFFICERS, REPRESENTATIVES, AGENTS EMPLOYEES, AND SERVANTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION), OF ANY NATURE, HIND OR DESCRIPTION ARISING OR ALLEGED TO ARISE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY (1) RELATING TO THE USE OR OCCUPANCY OF THE PREMISES BY LICENSEE OR ANY OF ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, PATRONS, GUESTS, SUBLICENSEES, PROGRAM PARTICIPANTS, OR INVITEES; (2) BY REASON OF ANY OTHER CLAIM WHATSOEVER OF ANY PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR OMISSION ON THE PART OF LICENSEE OR ANY OF ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, PATRONS, GUESTS, SUBLICENSEES, PROGRAM PARTICIPANTS, OR INVITEES OR OF ANY OTHER PERSON ENTERING UPON THE PREMISES WITH THE EXPRESS OR IMPLIED INVITATION OR PERMISSION OF LICENSEE; OR(3)BY ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF LICENSEE UNDER THIS AGREEMENT (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUATABLE TO 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 ACT, OMISSION, OR CONDITION WHATSOEVER OF THE CITY OR ITS PROPERTY. 9.3 If any action or proceeding shall be brought by or against the City in connection with any such liability or claim, Licensee, on notice from City, shall defend such action or proceeding at Licensee's expense,by or through attorneys reasonably satisfactory to City. SigmaSwimming 6 of20 9.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligations under this Section, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 9.5 Licensee agrees to notify City promptly upon the receipt of any claim or lawsuit brought in connection with any injury, death, or damages on the Premises. Licensee agrees to make its officers, representatives, agents, and employees available to City, at all reasonable times, for any statements andcase preparation necessary for the defense of any claims or litigation for which City may be responsible hereunder. Licensee shall place language in its contracts with contractors and subcontractors that contractors shall notify City as required by Licensee in this subsection. 9.6 Licensee shall require all of its subcontractors to include in their subcontracts liability and indemnification language in favor of the City in substantially the same form as above. SECTION 10 AUDI 10.1 Licensee agrees that the City shall, until the expiration of three (3) years after the termination or expiration of this License Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of Licensee involving transactions relating to this License Agreement. Licensee agrees that the City shall have access during normal working hours to all necessary Licensee facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Licensee reasonable advance notice of intended audits. 10.2 Licensee further agrees to include in any contractor and subcontractor agreements hereunder a provision to the effect that the contractor and subcontractors agree that the City shall, until the expiration of three (3) years after the expiration or termination of the contract or subcontract, have access to and the right to examine any directly pertinent books, documents, papers, and records of such contractor or subcontractor involving transactions of the contract or subcontract, and further that City shall have access during normal working hours to all contractor and subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give the contractor and subcontractor reasonable advance notice of intended audits. SECTION 11 CHARITABLE INMMTY 11.1 Licensee agrees that if it is a charitable organization, corporations, entity or individual enterprise having,claiming or entitled to any immunity, exemption(statutory or otherwise)or limitation from and against liability for damage or injury to property or persons under the provisions of the Charitable Immunity and Liability Act of 1987,C.P. RC., § 84.001 et seq., or other applicable law, that Licensee hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. Copy of the documentation stating this organization's status is due annually to the address specked for Parks and Community Services in notice provision of this License Agreement. SigmaSwimming 7 of20 SECTION 12 TERMINATION 12.1 Termination by Licensee. This License Agreement may be terminated without cause by the Licensee upon thirty(30)days written notice of such intent to terminate being delivered to the City. 12.2 Termination by City. This License Agreement may be terminated without cause by City immediately upon written notice to Licensee of such intent to terminate. 12.3 Gratuities. City may terminate this License Agreement if it is found that gratuities in the form of entertainment, gifts or otherwise were offered or given by Licensee or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to the performance of this License Agreement. In the event this License Agreement is canceled by the City pursuant to this section, City shall be entitled, in addition to any other rights and remedies, to recover from Licensee a sum equal in amount to the cost incurred by Licensee in providing such gratuities. 12.4 Fiscal Funding Out. Notwithstanding anything to the contrary, if, for any reason, at any time during the term of the License Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this License Agreement,the City may terminate the portion of the License Agreement regarding such obligations to be effective on the last of(i) ninety (90) calendar days following delivery by the City to Licensee of written notice of the City's intention to terminate; or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this License Agreement. 12.5 Licensee's Duties Upon Expiration or Termination. 12.5.1 Prior to the effective date for expiration or termination of this License Agreement, Licensee shall promptly remove all of its personal property; provided, however, Licensee shall not be obligated to remove any fixtures. Licensee shall also repair any Licensee-caused damage to the Premises, including, but not limited to, any damage that Licensee causes during removal of Licensee's property, to the reasonable satisfaction of the Director. 12.5.2 If Licensee fails to comply with its obligations in this Section, City may, at its sole discretion, (i) remove Licensee's personal property and otherwise repair the Premises and invoice Licensee for City's costs and expenses incurred, such invoice to be due and payable to City within thirty(30)calendar days of its delivery to Licensee; or (ii) following no less than thirty (30)calendar days prior written notice to Licensee, take and hold any Licensee personal property as City's sole property;or(iii) pursue any remedy at law or in equity available to City. If Licensee fails to surrender the Premises to City following termination or expiration, all liabilities and obligations of Licensee hereunder shall continue in effect until such is surrendered. 12.5.3 Upon termination, all funds owed to the City shall be due and payable by the tenth (loth)calendar day after the effective date of termination, unless stated otherwise in this Lic ens a Agreement. 12.6 Other Remedies. Any termination of this License Agreement as provided in this License Agreement will not relieve Licensee from paying any sum or sums due and payable to City under this License Agreement that remains unpaid and due at the time of termination, or any claim for damages then or previously accruing against Licensee under this License Agreement. Any such termination will not prevent City from enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law, or from recovering damages from Licensee for any default SigmaSwimming 8 of20 under the License Agreement. All City's rights, options, and remedies under this License Agreement will be construed to be cumulative, and not one of them is exclusive of the other. City may pursue any or all such remedies or any other remedy or relief provided by law, whether or not stated in this License Agreement. No such termination shall relieve City from any obligation it may have to Licensee hereunder and City may pursue any and all rights and remedies or relief provided by law, whether or not stated in this License Agreement. SECTION 13 RIGHT OF ENTRY AND INSPECT N 13.1 In licensing the Premises, City does not relinquish the right to control the management of the Premises,or the right to enforce all necessary and proper rules for the management and operation of the same. After receiving notice sent by City at least 24 hours in advance, Licensee must permit City or its agents, representatives, or employees to enter the Premises for the purposes of inspection; determining whether Licensee is complying with this License Agreement; maintaining, repairing, or altering the Premises; or any other reasonable purpose. During any inspection, City may perform any obligations that City is authorized or required to perform under the terms of this License Agreement or pursuant to its governmental duties under federal state or local laws, rules or regulations. In the event of an emergency,no advance notice from City is required. SECTION 14 1,1CFNSFS AND PERMITS 14. 1 Licensee shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for its operations. 14.2 Copy of the documentation stating this organization's status is due annually to the address specified for Parks and Community Services in the notice provisions of this License Agreement. SECTION 15 NOTICES 15.1 All notices required or permitted under this License Agreement may be given to a party by receipted overnight courier(such as Federal Express or UPS)or by United States certifiedmail, return receipt requested, addressed to such party at the address stated below or to such other address as one party may from time-to-time notify the other in writing. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postage prepaid: CITY: LICENSEE City of Fort Worth Sigma Performance Swimming Park&Recreation Director Andrew Ha,Director 4200 South Freeway, Suite 2200 PO Box 123222 Fort Worth, Texas 76115 Fort Worth,Texas 76121 With copies to: City of Fort Worth Attn: Assistant City Attorney and Assistant City Manager 200 Texas Street Fort Worth, Texas 76102 SigmaSwimming 9 of20 Or to such other address as such party may hereafter designate by notice in writing addressed and mailed or delivered to the other party hereto. SECTION 16 NON DISCRIMINATION 16.1 Licensee shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age,religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this License Agreement, and Licensee represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. 16.2 In the event of Licensee noncompliance with the nondiscrimination clauses of this License Agreement, which is not cured within ninety (90) calendar days of notice of such noncompliance, this License Agreement may be canceled, terminated, or suspended in whole or in part, and Licensee may be debarred from further agreements with City. SECTION 17 VENtJE AND CHOICE. OF LAW 17.1 Licensee and City agree that this License Agreement shall be construed in accordance with the laws of the State of Texas. If any action,whether real or asserted, at law or in equity, arises on the basis of any provision of this License 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. SECTION 18 THIRD-PARTY RIGID:, AND ASSIGNMENTS 18.1 The provisions and conditions of this License Agreement are solely for the benefit of the City and Licensee, and any lawful assign or successor of Licensee, and are not intended to create any rights, contractual or otherwise,to any other person or entity. 18.2 Licensee agrees that it will not subcontract or assign all or any part of its rights, privileges or duties hereunder without the prior written consent of the City, and any attempted subcontract or assignment of same without such prior consent of the City shall be void. SECTION 19 BINDING COVENANTS 19.1 Subject to the limitations contained herein, the covenants, conditions and agreements made and entered into by the parties hereunder are declared to be for the benefit of and binding on their respective successors,representatives and permitted assigns, if any. SECTION 20 INDEPENDENT CONTRACTOR 20.1 It is expressly understood and agreed that Licensee and its employees, representatives, agents, servants, offices, contractors, subcontractors, and volunteers shall operate as independent contractors as to all rights and privileges and work performed under this License Agreement, and not as agents, representatives or employees of the City. Subject to and in accordance with the conditions and provisions of this License Agreement,Licensee shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its employees, representatives, agents, servants, offices, contractors, subcontractors, and volunteers. Licensee acknowledges that the doctrine of respondeat superior shall not apply as between the City and its SigmaSwimming 10 of20 officers, representatives, agents, servants and employees, and Licensee and its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Licensee further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Licensee. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Licensee or any employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers of Licensee. Neither Licensee, nor any officers, agents, servants, employees or subcontractors of Licensee shall be entitled to any employment benefits from the City. Licensee shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of employees,representatives, agents, servants, officers, contractors, subcontractors, and volunteers. SECTION 21 AMENDMENTS, CAPTIONS- AND INTERPRETATION 21.1 Except as otherwise provided in this License Agreement, the terms and provisions of this License Agreement may not be modified or amended except upon the written consent of both the City and Licensee. 21.2 Captions and headings used in this License Agreement are for reference purposes only and shall not be deemed a part of this License Agreement. 21.3 In the event of any dispute over the meaning or application of any provision of this License Agreement,this License Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party,regardless of the actual drafter of this License Agreement. SECTION 22 GOVERNMENTAL POWERS AND IMMUNITIES 22.1 It is understood that by execution of this License Agreement, the City and Licensee do not waive or surrender any of their governmental powers or immunities. SECTION 23 AUTHORIZATION AND COINTERPARTS AND ELECTRONIC SICNATURKS 23.1 By executing this License Agreement, Licensee's agent affirms that he or she is authorized by Licensee to execute this License Agreement and that all representations made herein with regard to Licensee's identity, address,and legal status are true and correct. 23.2 This License Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. SECTION 24 SEVERABILITY AND NO WAIVER 24.1 It is agreed that in the event any covenant, condition or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall in no way affect any other covenant; condition or provision does not materially prejudice either Licensee or City in connection with the right and obligations contained in the valid covenants, conditions or provisions of this License Agreement. 24.2 The failure of either party to insist upon the performance of any term or provision of this License Agreement or to exercise any right granted hereunder shall not constitute a waiver of that SigmaSwimming 11 of20 party's right to insist upon appropriate performance or to assert any such right on any future occasion. SECTION 25 COMPLIANCE WITH LAWS 25.1 This License Agreement is subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. 25.2 If City notifies Licensee or any of its officers, agents, employees, contractors, subcontractors, licensees, volunteers, or invitees of any violation of such laws, ordinances, rules or regulations,Licensee shall immediately desist from and correct the violation. SECTION 26 SOLE AGREEMENT 26.1 This License Agreement, including any exhibits attached hereto and any documents incorporated herein, contains the entire understanding and agreement between the City and Licensee, and any lawful assign and successor of Licensee, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this License Agreement. REMAINDER OF PAGE LEFT INTENTIONALLY BLANK SigmaSwimming 12 of20 IN WITNESS WI1EREOF,the parties have executed this License Agreement in multiples in Tarrant County,Texas to be effective on the date set forth in Section 3. THE CITY OF FORT WORTH RECOMMENDED BY: BY: Fernando Costa(Apr 23,2020) By: David Creek(Apr 17,2020) y Fernando Costa,Assistant City Manager David Creek,Acting Director Date: Apr 23, 2020 Park&Recreation Department ATTEST: ®: /"!r a, Ci rlq4 , 'for Ronald P.Gonzales(Apr 24,2020) �` J By: Mary J. Kayser,City Secretary APPROVED AS TO FORM AND LEGALITY: Marf MurrdY Matt Murray(Apr 23,2020) Matthew Murray,Assistant City Attorney CONTRACT AUTHORIZATION: M&C: No M&C Required. 1295:N/A SIGMA PERFORMANCE SWIMMING: ,4tzfi�evrr rc� Andrew Ha(Apr 1T,2020) Andrew Ha,Director Date: Apr 17,2020 OFFMAL RECk4k.' CITY SECRE`AI FT.WORTH, SigmaSwimming 13 of20 CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance and reporting requirements. By Cory M/'101 mer(Apr 17,2020) Cory Stuhmer,Athletics Coordinator f CIAL R�'XAKx�A/ORTH, -r.,_, SigmaSwimming 14 of20 9/ I .�� y � - ski �1�� _ _ :•. Y ' .. ,�• r {4'Ll - �• � tip,•: Y r, it• t _ Y014 �` ' � •r i' yyyccc - J lip- - k•ti Y••.i�{• �� � •�• +' r-rim FLU 'ti- 4 n• may-, ~4 4 r ' .•, .�- _ _ .- .- � fix .� _ \':`ti_'..!v r!N � 1 EXHIBIT B PROGRAM DESCRIPTION AND SCHEDULE PROGRAM: Swim Lessons SCOPE OF SERVICE: Sigma Performance Swimming will provide patrons with our nationally- ranked curriculum. We will offer our 10-level,4-tiered safety, skill, and performance curriculum. The program will be offered at Forest Park Pool(FP)or Marine Park Pool(MP)on the days and times as outlined: LOCATION START END START END START END DAY TIlVIE TIME TIlVIE TIME TIlVIE TIlVIE Mon FP 6:30 AM 8:30 AM 9:00 AM 12:00 PM 6:30 PM 9:00 PM Tue FP 6:30 AM 8:30 AM 9:00 AM 12:00 PM 6:30 PM 9:00 PM Wed FP 6:30 AM 8:30 AM 9:00 AM 12:00 PM 6:30 PM 9:00 PM Thu FP 6:30 AM 8:30 AM 9:00 AM 12:00 PM 6:30 PM 9:00 PM Fri FP 6:30 AM 8:30 AM Sat LOCATION START END DAY TIME TIME Mon MP 9:00 AM 12:00 PM Tue MP 9:00 AM 12:00 PM Wed MP 9:00 AM 12:00 PM Thu MP 9:00 AM 12:00 PM Fri Sat SigmaSwimming 16 of20 EXHIBIT C INSURANCE. RMIARE.MF.NTS 10.1 Licensee's Insurance. Licensee shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Contract Licensee has an ongoing duty to provide the City with an annual certificate of insurance to evidence coverage. Such insurance shall cover all insurable risks incident to or in connection with the execution, performance, attempted performance, or nonperformance of this Contract.Licensee shall maintain the following coverage(s)and limits thereof: 10.1.1 Coverages and Limits i. Commercial General i,iabilitX(CG 41 Insurance a. $1,000,000 each occurrence b. $2,000,000 aggregate limit ii. Business Automobile Liability Insurance a. $1,000,000 each accident on a combined single limit or $250,000 Property Damage $500,000 Bodily Injury per person per occurrence b. Insurance policy shall be endorsed to cover "Any Auto", defined as autos owned, hired, and non-owned when said vehicle is used in the course of the event Licensed herein. iii. Accident Coverage a. 1,000,000.00 each occurrence b. 2,000,000.00 aggregate c. $2,500 minimum dental benefits d. $50,000 minimum death benefit to the estate of the deceased e. $100,000.00 minimum hospitalization and medical bills benefits of an injured Program Participant, with a maximum deductible of$250.00 f. $25,000.00 minimum benefits for the loss of one hand,one foot or sight of one eye of an injured Program Participant g. $12,500 minimum benefits for the loss of index finger and thumb of same hand of an injured student h. This policy shall cover all Program Participants and provide comprehensive bodily injury, dental, and death coverage and coverage while traveling in any automobile used to transport Program Participants to and from the Program. iv. Workers' CoMensation Insurance a. Part A. Statutory Limits b. Part B: Employer's Liability 1. $100,000 each accident 2. $100,000 disease-each employee 3. $500,000 disease-policy limit C. Licensee shall not be required to carry the required workers' compensation insurance if Licensee does not employ at least one full time employee. 10.1.2 Additional Requirements i. Such insurance amounts shall be revised upward at City's reasonable option and no more frequently than once every six(6)months, and SigmaSwimming 17 of20 Licensee shall revise such amounts within thirty(30)calendar days following notice to Licensee of such requirements. ii. Where applicable, insurance policies required herein shall be endorsed to include City as an additional insured as its interest may appear. Additional insured parties shall include employees, representatives, officers, agents,and volunteers of City. iii. The Workers' Compensation Insurance policy shall be endorsed to include a waiver of subrogation, also referred to as a waiver of rights of recovery, in favor of City. Such insurance shall cover employees performing work on any and all projects. Licensee shall maintain coverages, if applicable. iv. Any failure on part of City to request certificate(s) of insurance shall not be construed as a waiver of such requirement or as a waiver of the insurance requirements themselves. V. Insurers of Licensee's insurance policies shall be licensed to do business in the state of Texas by the Department of Insurance or be otherwise eligible and authorized to do business in the state of Texas. Insurers shall be acceptable to City insofar as their financial strength and solvency and each such company shall have a current minimum A.M. Best Key Rating Guide rating of A-: VII or other equivalent insurance industry standard rating otherwise approved by City. vi. Unless otherwise stated herein or approved by City, deductible limits on insurance policies shall not exceed$10,000 per occurrence. vii. In the event there are any local, federal or other regulatory insurance or bonding requirements for Licensee's operations, and such requirements exceed those specked herein,the former shall prevail. viii. Licensee shall contact the NSD Director or Park Director,as applicable, to determine whether any contractors or subcontractors will need to provide insurance. SigmaSwimming 18 of20 EXHIBIT D INDIVIDUAL WAIVER_ RELEASE AND INDEMNITY AGREEMENT the undersigned, am the parent or guardian of the minor individual(s) listed below. I, for myself, my heirs and assigns, hereby affirm that I am aware that my child's use of the Forest Park Swimming Pool, located at 2850 Park Place Avenue, Fort Worth, TX 76110, and Marine Creek Swimming Pool, located at 303 NW 20th St, Fort Worth, TX 76164 ("Pools"), has inherent risks. As a condition precedent to my child's use of the Pools, I confirm that I understand and accept all risks,dangers and hazards presented by my child's use of the Pools, and that I am allowing my child to use the Pools freely and voluntarily. In consideration of my child being permitted to utilize the Pools, I hereby assume all risk of harm and injury to my child and others, as well as to the property of others, which may result from my child's use of the Pools, regardless of the cause or blame. Further, I, for myself, my heirs and assigns, in consideration of my child being able to utilize the Pools, do hereby FOREVER RELEASE AND WAIVE all claims against the City of Fort Worth, its officers, agents and employees, for injuries, death or property damage which may arise from my child's use of the Pools. This waiver and release is intended to release and forever discharge the City of Fort Worth,its officers,servants, agents and employees from anv and all claims, actions,causes of action_ damages_ losses or expenses_ including attorney'-. fees whether real or asserted_ of every kind or character_ arising out of my child's use of the Pool-.. This waiver is intended to release the City of Fort Worth; its officers, servants, agents and employees even if said injuries, death or other damages are caused in whole or in part by the alleged acts of commi-.sion_ omission_ ne igence. gr��gfigCnce, breach of contract, intentional conduct, violation of statute or common law, breach of warranty, product defect, strict product liability, or anv other conduct whatsoever of the City. its officers. servants, agents or employ ej es. I, for myself, and my heirs and assigns hereby assume all responsibility and liability for such injuries or damages, including death, and hereby covenant not to sue the entities and parties named above for such injuries or damages. I FURTHER AGREE TO INDEMNIFY AND DEFEND THE CITY AND HOLD THE CITY HARMLESS FROM ALL CLAIMS, TOGETHER WITH ALL COSTS, EXPENSES, AND LEGAL FEES IN DEFENDING ALL CLAIMS DHIECTLY OR INDIRECTLY ATTRIBUTABLE TO MY CHILD'S USE OF THE POOLS. 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. I REALIZE THAT BY SIGNING THIS AGREEMENT, I AM GIVING UP MY RIGHT TO SUE THE CITY FOR INJURY, DEATH OR DAMAGE I OR MY CHILD MAY SUFFER THROUGH MY USE OF THE POOLS. IF ANY COURT FINDS A PORTION OF THIS AGREEMENT TO BE INVALID, THE REMAINDER OF THE AGREEMENT WILL NOT BE AFFECTED. I have read this Waiver, Release, and Indemnity Agreement and fully understand its terms, provisions and conditions. I have not been influenced to any extent whatsoever by any representations or statements not contained within this agreement. I also represent that I am at least 18 years of age. SigmaSwimming 19 of20 Dated this day of 92019. Minor Information Parent/Guardian Information Printed Name Printed Name Address(if different than parent/guardian) Signature Printed Name Address Address(if different than parent/guardian) City State Zip Code Printed Name Telephone Address(if different than parent/guardian) SigmaSwimming 20 of20