Loading...
HomeMy WebLinkAboutContract 39548 (2)UITY SEC ETAR CON RACT No39,542. SUPPORT ORGANIZATION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FORT WORTH DOG PARK ASSOCIATION, INC. THIS SUPPORT ORGANIZATION AGREEMENT ("Agreement") is entered into by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas, located within Tarrant, Denton, Parker, and Wise Counties, RECITALS Tactiband through its duly WHEREAS, on December 2, 2003, the Fort Worth City Council approved G-14176, authorizing a pilot program for an off -leash dog park located in Gateway Park; and WHEREAS, the Fort Woof Dog Park ("Fort Woof' or the "Park") opened in Gateway Park in April 2004; and WHEREAS, M&C G-14176 called for CITY staff to work with community and park support groups to raise funds for maintenance of the off -leash dog park; and WHEREAS, the FWDPA has served as the coordinating support group for Fort Woof since June 2004 pursuant to a Letter of Agreement dated June 16, the same being City Secretary Contract Number 30081; and WHEREAS, City Secretary Contract Number 30081 has expired and no renewal options remain; and WHEREAS, the CITY and FWDPA wish to enter into a new agreement for the continued support of Fort Woof. NOW THEREFORE, the CITY and FWDPA do hereby agree to the following terms and conditions as set forth in the Agreement. AGREEMENT 1. PURPOSE 1.01 The purpose of this Agreement is to formalize the relationship between and the duties of the CITY as owner and manager of Fort Woof and Gateway Parlc (collectively the "Premises") and FWDPA as the coordinating support organization for Fort Woof. Support Organization Agreement - CFW and Fort Worth Dog Park Association, Inc. OFFICIAL RECORD CITY S�g�T�RY F. WORTH, TX 2. TERM 2.01 The primary term for this Agreement shall be for two years beginning on December 1, 2009, and ending on November 30, 2011. The primary term may be renewed by mutual written agreement by both parties for two (2) successive 2-year terms. Renewal of this Agreement may be accomplished through execution by both Parties of a written addendum establishing the new term of the Agreement. 3. RESPONSIBILITIES OF THE PARTIES 3.01 Responsibilities of FWDPA: a. FWDPA will provide monetary and in -kind support for the Park raised or received by FWDPA. Only those funds or in -kind support specifically designated for the Park shall be donated to the CITY for use at the Park. b. FWDPA shall dedicate one hundred percent (100%) of the net proceeds collected by FWDPA in any CITY park specifically for Fort Woof unless otherwise approved by the City. c. Prior to initiating any fundraising or solicitation efforts for the Parlc, FWDPA shall provide the CITY with written notice of the intended fundraising and secure CITY approval. FWDPA shall obtain specific written approval from CITY to use the CITY's logo in conjunction with FWDPA's fundraising or solicitation efforts. FWDPA will coordinate with CITY staff in regard to any and all use of the Premises for fundraising or solicitation purposes. This includes but is not limited to designs or graphics that use the City's logo, and fundraising methods. d. FWDPA agrees that all net proceeds and in -kind materials or services donated for the Park will be targeted for use in support of the development of the Park in accordance with the Gateway Park Master Plan or other CITY -approved features in Fort Woof. The CITY and FWDPA shall mutually agree to all other related activities. e. FWDPA agrees that they will maintain accurate accounting of all funds and in - kind donations collected. Such donations may not be used for anything other than the intended purpose unless such alternative use has first been approved in writing by the original donor(s). FWDPA further agrees that fund records will be subject to review, audit, or both in accordance with the terms of this Agreement. The City has been notified that the primary method used by FWDPA in accounting for all funds collected shall be records of the FWDPA bank account(s). f. If FWDPA wishes to sell or market goods in support of the Park, FWDPA must first secure advance written approval from the CITY through the Parks and Community Services Department Director. FWDPA shall obtain specific written approval from CITY to use the CITY's logo on any goods FWDPA wishes to sell Support Organization Agreement - CFW and Fort Worth Dog Park Association, Inc. Page 2 of 9 or market. The selling or solicitation of goods for sale and the use of the proceeds shall be in accordance with the provisions of this Agreement. g. FWDPA shall submit a copy of their completed tax filings and copy of their organization's non-profit status no later than July 1st of each calendar year. If no filing is required, a letter documenting the no -filing status shall be submitted to the City. FWDPA shall notify the City of any change in FWDPA's non-profit status. 3.02 Responsibilities of the CITY: a. The CITY will serve as the sole manager of Fort Woof and Gateway Park. The CITY does not relinquish the right to control or manage any portion of the Premises, nor does the CITY relinquish the right to enforce all necessary and proper rules for the management and operation of the same. FWDPA understands that it has no right to control or manage any portion of Fort Woof. b. All decisions and actions related to the creation, alteration, and on -going management of Fort Woof, including, but not limited to, the allocation and deployment of resources for maintenance and development, will rest solely with the CITY. c. Funds for the basic operation of the Park will be determined and allocated for each fiscal year in conjunction with the CITY's budget process. If for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate sufficient funds for the CITY to fulfill its obligations under this Agreement, the CITY may terminate this Agreement to be effective on the later of (1) thirty (30) days following delivery of written notice from the CITY to FWDPA of the CITY's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in the Agreement. d. City shall solicit input from FWDPA regarding the expenditure of the funds donated by FWDPA prior to the expenditure of such funds. However, nothing herein relinquishes the City's right to expend funds donated by FWDPA in a manner ultimately determined by the City. 4. TERMINATION 4.01 This Agreement may be terminated by either party, with or without cause, by providing the other party with written notice thirty (30) days prior to the intended termination date. On conclusion of this Agreement, either by termination or expiration, FWDPA shall transfer to CITY all funds, materials, and proceeds donated to or acquired by FWDPA for the Park. All funds, materials, and proceeds so transferred shall be used in the Park as specified in Section 3.01(a) of this Agreement. Support Organization Agreement - CFW and Fort Worth Dog Park Association, Inc. Page 3 of 9 5. CHARITABLE IMMUNITY AND LIABILITY ACT 5.01 FWDPA 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 suit or liability for damage or injury to property or persons under the provisions of the Charitable Immunity and Liability Act of 1987, C.P.R.C., § 84.001 et seq., or other applicable law, that FWDPA hereby expressly waives its right to assert or plead defensively any such immunity from or limitation of suit or liability as against CITY. 6. INDEPENDENT CONTRACTOR 6.01 It is expressly understood and agreed that FWDPA shall operate as independent entity in each and every respect hereunder and not as an agent, representative, or employee of the CITY. FWDPA shall have the exclusive control and the exclusive right to control all details and day-to- day operations and activities relative to fundraising for the Park and shall be solely responsible for the acts and omission of its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. FWDPA acknowledges that the doctrine of respondeat superior shall not apply as between the CITY and FWDPA, its officers, agents, servants, employees, contractors, subcontractors, licenses, and invitees. Nothing contained in this Agreement shall be construed as the creation of a partnership or joint enterprise between the CITY and FWDPA. 7. COMPLIANCE WITH LAW; LICENSES, PERMITS, AND TAXES; LIENS 7.01 FWDPA shall comply with all federal, state, and local laws, ordinances, rules, and regulations, as well as with all regulations, restrictions, and requirements of the CITY's police, Fire, parks, code enforcement, and health departments applicable to the Premises now or hereafter in effect. 7.02 FWDPA will not engage in any unlawful use of the Premises or any other City property. FWDPA further agrees that it shall not permit its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees, or invitees to engage in any unlawful use of the Premises and that FWDPA shall immediately remove from the Premises any person engaging in such unlawful activities. Unlawful use of the Premises by FWDPA itself shall constitute a breach of this Agreement and result in the Agreement's immediate termination. 7.03 FWDPA shall obtain and pay for all necessary permits and licenses required by or from any governmental agency or entity in connection with the use of the Premises or any other City property related to activities within the scope of this Agreement. FWDPA further agrees to pay for all taxes assessed or imposed by any governmental entity in connection with the use of the Premises or any other City property related to activities within the scope of this Agreement. 7.04 FWDPA shall not do any act or make any contract that may be purported to create or be the foundation of any lien on or any interest in the Premises. Any such act, contract, or lien attempted to be created shall be void. Should any purported lien on the Premises be created or filed, FWDPA, at their sole expense, shall liquidate and discharge same within ten (10) days after notice from CITY to do so. Support Organization Agreement - CFW and Fort Worth Dog Park Association, Inc. Page 4 of 9 7.05 To the extent FWDPA owns, maintains, or supports a website that is available to the public and that relates to this Agreement, FWDPA's use of the Premises, or both, FWDPA agrees that such website shall not include any content that constitutes obscene or pornographic material; that in any way disparages the City of Fort Worth (including officials, employees, or indicia thereof); that depicts the City of Fort Worth in any manner or use that is or may claim to be defamatory, untrue, or censorable in nature; that may bring harm to the heritage and history of City of Fort Worth; or that in any other manner is deemed inappropriate. The determination of whether website content complies with the requirements of this section shall lie in the sole discretion of the Director of the Fort Worth Parks and Community Services Department. Any website content that does not meet the requirements of this section shall be removed on the earlier of: 1) discovery of such content or 2) receipt of notification from the Parks and Community Services Department that such content is present. For purposes of this section, content of the website shall include any banner ads or other advertisement material that is displayed on the website. 8. RIGHT OF ENTRY 8.01 CITY does not relinquish the right to control the management of the Park, or the right to enforce all necessary and proper rules for the management and operation of the same. Members of the CITY's police, fire, parks, code enforcement, health, and other designated departments shall have the right at any time to enter any portion of the Premises (without causing or constituting a termination of the Agreement or an interference of the use of the Premises by FWDPA) for the purpose of inspecting and maintaining the same and performing any and all activities necessary for the proper conduct and operation of public property. At no time shall the exercise of this right or performance of these functions authorize or empower CITY personnel to Erect the activities of FWDPA or assume liability for FWDPA's activities. 9. MAINTENANCE; REPAIR 9.01 FWDPA covenants and agrees that it will not make or suffer any waste, unlawful, improper, or offensive use of the Premises or any part thereof and shall comply with all federal, state, and local laws, including all ordinances and regulations of the CITY and other governmental agencies applicable to the Premises. 9.02 In the event any damage is done to the Premises or to any part of the fixtures, structures, or natural environment of the Premises by any act of FWDPA or of FWDPA's employees, agents, officers, volunteers, or anyone visiting the Premises on the invitation of FWDPA, FWDPA shall pay the costs of repairing the Premises, fixtures, structures, or natural environment to the condition in which it existed immediately preceding the occurrence of such damage. The CITY will determine whether any damage has been done, the amount of the damage, the reasonable costs of repairing the damage, and whether FWDPA is responsible under the terms of this Agreement. The CITY will be the sole judge of the quality of the damage to the Premises, Fixtures, structures, or the natural environment by the FWDPA. Support Organization Agreement - CFW and Fort Worth Dog Park Association, Inc. Page 5 of 9 9.03. If the CITY determines that damage is attributable to FWDPA pursuant to section 9.02, the CITY shall provide FWDPA written notification of such damage. Within thirty (30) days of receipt of the CITY's written notice, FWDPA shall repair or replace the damaged portion of the Premises, fixtures, structures, or natural environment to the reasonable satisfaction of the CITY. 10. RIGHT TO AUDIT 10.01 FWDPA agrees that the CITY shall, until the expiration of three (3) years after expiration of this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of the FWDPA involving transactions relating to this Agreement. FWDPA agrees that the CITY shall have access during normal working hours to all necessary FWDPA 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 FWDPA reasonable advance notice of intended audits. The City has been notified that the primary method used by FWDPA in accounting for all funds collected shall be records of the FWDPA bank accounts. 10.02 FWDPA further agrees to include in any subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the CITY shall, until the expiration of three (3) years after expiration or termination of the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor involving transactions to the subcontract, and further that CITY shall have access during normal working hours to all 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 subcontractor reasonable advance notice of intended audits. 11. INDEMNIFICATION 11.01 FWDPA AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESSAGAINSTANYAND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (I) FWDPA'S BREACH OFANY OF THE TERMS OR PROVISIONS OF THISAGREEMENT OR (II) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF FWDPA, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY,) OR SUBCONTRACTORS, RELATED TO THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPL Y TO ANY LABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH FWDPA AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREINSHALL BE CONSTRUED ASA WAIVER OF THE Support Organization Agreement - CFW and Fort Worth Dog Park Association, Inc. Page 6 of 9 CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LAWS U TEXAS. 11.02 FWDPA covenants and agrees that City shall in noway nor under any circumstances be responsible for any property placed on the Premises belonging to FWDPA, its members, employees, agents, contractors, subcontractors, invitees, or licensees that may be stolen, destroyed, or in any way damaged, and FWDPA hereby indemnifies and holds harmless City from and against any and all such claims. The City does not guarantee police protection and will not be liable for any loss or damage sustained by FWDPA, its members, employees, agents, contractors, subcontractors, invitees, or licensees on any of the premises. 12. NONDISCRIMINATION; DISABILITIES 12.01 FWDPA, for itself, its personal representatives, successors in interest, and assigns, as part of the consideration herein, agrees that no person shall be excluded from participation in or denied the benefits of FWDPA's use of the Premises on the basis of race, age, color, national origin, religion, handicap, gender, sexual orientation, or familial status. FWDPA further agrees for itself, its personal representatives, successors in interest, and assigns that no person shall be excluded from the provision of any services on the Premises on grounds of race, age, color, national origin, religion, handicap, gender, sexual orientation, or familial status. 13. FORCE MAJEURE 13.01 If the Premises or any portion thereof shall be destroyed or damaged by reason of force majeure so as to prevent the use of the Premises for the purposes and during the periods specified in this Agreement, then this Agreement shall terminate, and FWDPA hereby waives any claim against CITY for damages by reason of such termination. 14. ASSIGNMENT 14.01 FWDPA shall not assign this Agreement nor suffer any use of the Premises other than herein specified, without the written consent of CITY. If assigned per the written consent of CITY, FWDPA agrees to ensure that any assignee will comply with all terms, provisions, covenants, and conditions of the Agreement. Assignment of this Agreement shall not relieve FWDPA from any of its obligations under this Agreement. 15. NOTICES 15.01 All notices required or permitted under this Agreement may be given to a party personally or by mail, 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: Support Organization Agreement - CFW and Fort Worth Dog Park Association, Inc. Page 7 of 9 CITY: City of Fort Worth c/o Director Parks and Community Services Department 4200 South Freeway, Suite 2200 Fort Worth TX 76115 FWDPA Fort Worth Dog Park Association, Inc. Attn: Jason C.N. Smith 2257 College Ave. Fort Worth TX 76110 16. SEVERABILITY, WAIVER, SECTION HEADINGS, AND 16.01 In the event any covenant, condition, or provision of this Agreement 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 herein contained, provided however, that the invalidity of any such covenant, condition, or provision does not materially prejudice either FWDPA or CITY in connection with the rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement. 16.02. The failure of City to insist on the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of CITY's ability to assert or rely on any such term or right on any future occasion. The waiver by the CITY of any default or breach of a term, covenant, or condition of this Agreement shall not be deemed to be a waiver of any other breach of that term, covenant, or condition or of any other term, covenant, or condition of this Agreement, regardless of when the breach occurred. 16.03 The section headings contained herein are solely for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 17. ENTIRE UNDERSTANDING; MODIFICATION 17.01 This written instrument (including all attachments, schedules, and exhibits attached hereto) constitutes the entire understanding of the Parties concerning CITY's and FWDPA's roles and obligations in regard to Fort Woof and Gateway Park. Any prior or contemporaneous oral or written agreement that purports to vary from the terms hereof shall be void. 17.02 Amendments to this Agreement or any attachment, schedule, or exhibit attached hereto maybe proposed by either party and shall take effect on written approval by both parties. 16.03 This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and properly authorized assigns. 18. CHOICE OF LAW; VENUE 18.01 This Contract shall be governed by and construed in accordance with the laws of the State of Texas. Support Organization Agreement - CFW and Fort Worth Dog Park Association, Inc. Page 8 of 9 18.02 If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. 19a EXECUTION 19.01 By executing this Agreement, FWDPA's agent affirms that he or she is authorized by FWDPA to execute this Agreement and that all representations made herein with regard to FWDPA's identity, address, and legal status are true and correct. IN WITNESS WHEREOF, the parties hereto have executed this Agreement and any attachments and exhibits in multiples in Fort Worth, Tarrant County, Texas, this the 30kL' Jay of N oy 244ynbeX , 2009. CITY OF FORT WORTH By: AttE By: Assistant City Manager �,i�y �c�ic�aiY FORT WORTH DOG PARK By: to�cpr� an�l;egality: Cii�Attorney OFFICIAL RECORD CITY SECRETARY T. WORTH, TX Support Organization Agreement - CFW and Fort Worth Dog Park Association, Inc. Page 9 of 9