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HomeMy WebLinkAboutContract 30081 CITY SECRETARY CCATRAC T NO. DO LETTER OF AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FORT WORTH DOG PARK ASSOCIATION, INC. THIS AGREEMENT is entered into between the CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas, located within Tarrant, Denton and Wise Counties, Texas, through its Parks and Community Services Department, (Hereinafter referred to as the "CITY") and the FORT WORTH DOG PARK ASSOCIATION, INC. (Hereinafter referred to as the "FWDPA"). RECITALS WHEREAS, on December 2, 2003 the Fort Worth City Council approved the first pilot off-leash dog park called "Fort Woof' located in Gateway Park (Ordinance Number 15762); WHEREAS, the Fort Worth Parks and Community Services Department estimated the annual cost for maintenance of the dog park would be $36,000; WHEREAS, the City Council has endorsed the establishment of a support group for the purpose of providing financial support and other enhancements for Fort Woof; WHEREAS, the Fort Worth Dog Park Association, Inc., a duly registered non-profit corporation, who has applied for 501(c)(3) status as with the Internal Revenue Service and duly registered with the State of Texas; has agreed to serve as the coordinating support group for Fort Woof, NOW THEREFORE the City of Fort Worth and the Fort Worth Dog Park Association, Inc do hereby agree to the following terms and conditions set forth in this Agreement: AGREEMENT 1. Term. This Agreement will begin on April 1, 2004 and end on March 31, 2005. The primary term of this Agreement may be renewed by mutual agreement between the FWDPA and City for two (2) successive one (1)year terms under the same conditions and terms of this Agreement. 2. Responsibility of the City. a) The City will serve as the sole manager of Fort Woof. City does not relinquish the right to control the management of the Fort Woof or Gateway Park, or the right to enforce all necessary and proper rules for the management and operation of the same. ^,^0'1 Letter of Agreement between the ` p s J,-9f 7 City of Fort Worth and Fort Worth Dog Park Association, INC. �^' j � ��'°% °' ii b) All decisions and actions related to the creation and ongoing management of Fort Woof, including, but not limited to, the deployment of resources for maintenance and development will rest solely with the City. C) The City will appropriate all funds necessary for basic operation of Fort Woof on a year-to-year basis. If for any reason, at any time during any term of this Agreement, the City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery by the City to FWDPA of written notice 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 this Agreement. 3. Responsibility of the FWDPA a) The FWDPA agrees to provide monetary and in-kind support for the Park raised or received by FWDPA through a designated auxiliary group. Only those funds or in-kind support designated specifically for Fort Woof shall be donated to the City for use at Fort Woof. b) The FWDPA agrees to dedicate one hundred (100%) percent of the net proceeds collected by FWDPAI in any City of Fort Worth Park specifically for Fort Woof. C) The FWDPA agrees to notify in writing and secure the approval of the City prior to initiation of any fundraising or solicitation efforts for the Fort Woof. d) The FWDPA agrees that all proceeds or in-kind materials or services donated for Fort Woof will be targeted for use in support of the development of Fort Woof in accordance with the Gateway Park Master Plan or City approved features in Fort Woof. The City and FWDPA shall mutually agree to all other related activities. e) The FWDPA agrees that they will maintain accurate accounting of all funds collected; and no change from the intended use of the funds may occur unless approved in writing by the original donor(s). FWDPA further agrees that fund records will be subject to review by the City of Fort Worth Department of Audit. f) The FWDPA may, with advance written City approval, sell or market goods in support of the Park and the selling or solicitation of goods for sale and use of proceeds shall be in accordance with the provisions of this agreement. g) FWDPA will pay the costs of repairing (to its condition immediately preceding the occurrence of such damage) any damage which may be done to Fort Woof or Gateway Park, any of the fixtures, structures, or the natural environment by any act of FWDPA or any of FWDPA's employees, agents, officers, or anyone visiting the Premises upon the invitation of the FWDPA including the patrons of the attraction or function for which FWDPA hereby is using the Premises. The City shall determine whether any damage has been done, the amount of the damage, the reasonable costs of repairing the damage, and whether, under the terms of the Agreement, the FWDPA is responsible. City shall be the sole judge of Letter of Agreement between the of 7 City of Fort Worth and Fort Worth Dog Park Association,INC. v90 i� " maintenance and/or damage of Fort Woof and Gateway Park, fixtures, structures, or the natural environment by the FWDPA h) Any damage by the FWDPA or others incident to the exercise of privileges herein granted shall be repaired or replaced by FWDPA to the reasonable satisfaction of the City within thirty days of receipt of written notification from the City. i) FWPDA shall submit a copy of their completed tax filings no later than May 1St each calendar year. 4. Charitable Immunity and Liability Act FWDPA agrees that if it is a charitable organization, corporation, 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. 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 or limitation of liability as against City 5. Independent Contractor. It is expressly understood and agreed that FWDPAI shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. FWDPA shall have the exclusive right to control all details and day-to-day operations relative to fundraising for Fort Woof and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. FWDPA acknowledges that the doctrine of respondeat superior will not apply as between the City and [other party], its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. FWDPA further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and FWDPAI. 6. Compliance with Laws. (a) It is agreed that FWDPA will comply with all federal, state, and local laws, statutes including all ordinances, charter provisions, rules and regulations of the City of Fort Worth; including all rules, regulations and/or requirements of the City of Fort Worth Police and Fire Departments; in connection with the this Agreement and use of Fort Woof and the Park and any other regulations of any municipal authority of the City of Fort Worth. (b) FWDPA shall comply with all Parks and Community Services Department regulations, policies, and specific requirements for Fort Woof and shall coordinate with City staff with regard to use of Fort Woof and Gateway Park. (c) FWDPA will not do or suffer to be done anything on Fort Woof or Gateway Park during the terms of this Agreement in violation of any such laws, statutME �,1�Letter of Agreement between the 'of 7il City of Fort Worth and FortWorth Dog Park Association, INC. K7 i V_L%.3 regulations, charter provisions, directives or requirements. If the City calls the attention of FWDPAI to any such violation on the part of said FWDPA or any person employed by or admitted to said Facilities by FWDPA, FWDPA will immediately desist from and correct such violation and/or vacate Fort Woof and Gateway Park (d) Licensee is responsible for all necessary permits, licenses, and taxes from any governmental agency with jurisdiction thereof and to pay any lawful taxes in connection with the use of Fort Woof and/or Gateway Park related to monetary and in-kind support under this Agreement. 7. Termination. Either party may terminate this Agreement without cause upon thirty (30) days written notice of the other. Provided, that in the event of termination or expiration of this Agreement, all funds, materials and proceeds donated to or acquired by FWDPA for the Park shall be transferred to the City for use in the Park as specified in Section 3 of this Agreement. 8. Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers. 9. Indemnification. FWDPA AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS,AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANYAND 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) FWDPAI'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCOND UCT OF FWDPAI, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO PROVIDING FINANCIAL SUPPORT AND OTHER ENHANCEMENTS FOR FORT WOOF OR THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY 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 FWDPAI AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. Letter of Agreement between the City of Fort Worth and Fort Worth Dog Park Association, INC. 10. Assignment. FWDPA shall not assign this contract nor suffer any use of the Fort Woof or Gateway Park other than herein specified, without the written consent of City. If assigned per the written consent of the City, FWDPA agrees to ensure that any assignee will comply with all terms, provisions, covenants, and conditions of this contract. Assignment of this Agreement shall not relieve Licensee from any of its obligations under this Agreement. 11. Entire Agreement. This written instrument constitutes the entire Agreement by the parties hereto concerning this license Agreement and the Premises and the obligations of the parties and any prior or contemporaneous oral or written agreement, which purports to vary from the terms hereof, shall be void. 12. Modification. This Agreement cannot be modified or amended without the written consent of all the parties hereto and attached and made a part of this Agreement. 13. Binding Agreement. This Agreement shall be binding upon and insure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and, except as otherwise provided in this contract, their assigns. 14. Venue. Venue shall be in the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 15. Force Majure. If the Premises or any portion thereof shall be destroyed or damaged by fire or other calamity so as to prevent the use of Fort Woof or Gateway Park for the purposes and during the periods specified in this license Agreement or if the use of Fort Woof or Gateway Park by FWDPA shall be prevented by act of God, strike, lockout, material or labor restriction by any governmental authority, civil riot, flood, or any other like cause beyond the control of the City, then this contract shall terminate and FWDPA hereby waives any claim against City for damages by reason of such termination. 16. Invalid Provisions. In case any one or more of the provisions contained in this Agreement are held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this contract shall be considered as if such invalid, illegal or unenforceable provisions were never contained herein. Letter of Agreement between the ���� Jr� City of Fort Worth and Fort Worth Dog Park Association, INC. .,�G 17. Notices. 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: CITY: Richard Zavala, Director Parks and Community Services Department 4200 South Freeway, Suite 2200 Fort Worth, Texas 761115-1499 FWDPA: Fort Worth Dog Park Association, Inc. Attn: Jason C.N. Smith 2257 College Ave Fort Worth, Texas 76110 18. Execution: 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 Licensee's identity, address and legal status (corporation, partnership, individual, etc.) are true and correct. EXECUTED on this the A day of , 2004. ATTEST: CITY O FORT WORTH (L 'l By: acri Secretary ssistant Ci anager Approved as to form and legality: PARKS AND COMMUNITY SERVICES DEPARTMENT By: By: Assistant C ty Attorney 4hard Zavala, Director Parks and Community Services nntraet A4 thorization �r Department ,,,]kap nate �'� e� Letter of Agreement between the ����� J Cl l\"P�ge of 7 City of Fort Worth and Fort Worth Dog Park Association, INC. ��' *..+^.. of QiS�(e r?i a� f p 991155 FORT WORTH DOG PARD SOCIATION Presiders --Do77,Letter of Agreement between the City of Fort Worth and Fort Worth Dog Park Association, INC.