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HomeMy WebLinkAboutContract 39495CIfiY SECRETARY CONTRACT NO NON-EXCLUSIVE LICENSE AGREEMENT BETWEEN BOYS &GIRLS CLUBS OF GREATER FORT WORTH, INC. AND THE CITY OF FORT WORTH This NON-EXCLUSIVE LICENSE AGREEMENT ("Agreement") is made and entered into this the P�ne day of ov 2009, by and between the CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas (the "CITY") and the BOYS & GIRLS CLUBS OF GREATER FORT WORTH, INC. a private nonprofit operating in the State of Texas within Tarrant County, Texas (the "CLUB"). RECITALS WHEREAS, the CITY and the CLUB have determined that the security and well-being of elementary, middle, and high school students during after -school hours of 3:00 PM to 6:00 PM are of prime importance; and WHEREAS, the CITY and the CLUB both agree that the activities of elementary, middle and high school children during these critical hours are of paramount importance to both entities; and WHEREAS, the CLUB has partnered with local government to collectively meet the community needs on behalf of youth since 1926; and WHEREAS, the CITY and the CLUB have identified the North Tri Ethnic Community Center as a targeted location to provide programs to youth. NOW THEREFORE, in consideration of the mutual covenants herein expressed the CITY, acting by and through its duly authorized Assistant City Manager, and CLUB, acting by and through its duly authorized President, do hereby covenant and agree as follows: AGREEMENT 1. PURPOSE. The purpose of this Agreement is to outline terms and conditions under which the CITY will provide the CLUB with non-exclusive use of CITY facilities at North Tri Ethnic Community Center (Center) in accordance with the terms of this Agreement for purposes of implementing and operating after school programming that benefits the local community and the entire CITY (the "Program") and that complies with the requirements specified herein. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 2. DUTIES OF THE PARTIES. A. CLUB's Responsibilities During hours when the Program is operating, CLUB will provide at least three staff members at the Center whose primary responsibility will be to oversee children and deliver age -appropriate academic, educational, and recreational resources and activities. CLUB will purchase and arrange for installation of any required telephone, computer, and printing equipment for use in conjunction with the Program and will pay all monthly telephone and computer charges associated with use of such equipment. CLUB will provide, at its own expense, Program materials, supplies, and copies. CLUB will ensure that its designated Center space is maintained in a neat and orderly fashion in accordance to the Cleanliness Standards attached in Appendix A. This responsibility shall include arranging and paying for janitorial services. CLUB will ensure that Center's standards are maintained regarding security, cleanliness, and communication between and among programs housed at the Center; and will ensure cooperation with other Center staff and agencies/programs. CLUB will ensure that areas used for the Program activities and services are returned to the same neat and clean condition in which they were found before the start of the activity or service. The CLUB will maintain sole responsibility and liability for its employees, volunteers, and separate contractors and for the actions such individuals perform pursuant to this Agreement. B. CITY's Responsibilities CITY will provide space for conducting the Program, including basic utilities, and will also supply the CLUB with appropriate facility access through the provision of building keys and/or security codes. For purposes of this Agreement, basic utilities shall not include telephone or computer service, which shall remain the sole responsibility of the CLUB. CITY will not be responsible for any additional security other than what is currently available at the Community Centers. CITY assumes no liability or responsibility for the loss of any personal property or office contents of the CLUB, or its agents, employees, volunteers, participants, or licensees while at any Community Center. CITY will allow the CLUB to conduct classes and other youth -related activities during regular Center hours with advanced notification and approval from the Center Coordinator. All program activities must be scheduled with Center staff through the Class Reservation System to ensure no conflict with other Center programming. CITY will maintain cooperative spirit with the CLUB's program and staff. CITY will permit posting of CLUB -related signs and posters within the building to publicize the Program. The CLUB and CITY agree to abide by all applicable federal, state, and CITY laws, regulations, and guidelines regarding equal opportunity, Drug -Free Workplace, and financial reporting in the coordination and fulfillment of their respective duties and responsibilities. 3. CONSIDERATION. CLUB agrees to implement, maintain, and operate the Program in accordance with the terms and conditions of this Agreement at no cost to the CITY. CITY agrees to provide CLUB with non-exclusive use of office space, activity rooms, and gym during the hours of 2 PM and 7 PM Mondays through Fridays, excluding CITY holidays and those days on which the facility is closed due to CITY furlough. 4. TERM. The term of this agreement is for a period beginning on September 14, 2009, and ending August 20, 2010. This Agreement may be renewed by both parties on an annual basis through the approval of an addendum setting a new term. 5. REPORTING. By the lOt" day of each month, the CLUB will provide CITY with reporting data on the number of individuals who participated in the Program during the preceding month. In addition, a representative of CLUB shall meet with CITY staff at least once per month to discuss issues related to the Program and CLUB's use of the CENTER. No later than September I of each year, CLUB shall submit an annual report to the CITY detailing activities of the Program at the Center during the preceding twelve-month period. 6. CHILDCARE LICENSING. CLUB and CITY shall each be responsible for maintaining its own childcare licensing or exemption. 7. BACKGROUND SCREENING. To promote the safety and welfare of Program participants, CLUB agrees to perform background screenings and checks on staff, volunteers, and participants that meet or exceed the requirements that the CITY imposes on staff, volunteers, and participants in the CITY'S own programs. The type and frequency of such checks shall be in accordance with the terms of the then most -recently adopted Standards of Care approved by the Fort Worth City Council. 8. INSURANCE A. General Liability Insurance. CLUB shall maintain at all times during the term of this Agreement a commercial general liability insurance policy providing public liability (including both personal injury and death) and property damage insurance, insuring against any and all liability of the insured with respect to CLUB's designated space at the Center or arising out of the maintenance, use, or occupancy of the Center for operation of the Program by CLUB, with a minimum primary coverage of $1,000,000.00 per occurrence and with a general aggregate and products aggregate of $2,000,000.00 each. B. Workers Compensation Insurance. CLUB must provide Workers' Compensation/Employer's Liability insurance for all of its employees and, in the event any work is subcontracted, CLUB will require each subcontractor to provide Workers' Compensation insurance in accordance with the requirements of the CITY, including Coverage B. C. General requirements for all insurance. Certificates of insurance shall be delivered to the CITY prior to occupation of the Center, addressed to the attention of Sue Haupt, Risk Management, 1000 Throckmorton Street, Fort Worth, Texas 76102. The CITY's Risk Manager shall have the right to review and evaluate CLUB's insurance coverage and to make reasonable requests for deletion, revision, or modification of particular policy terms, conditions, limitations, or exclusions when deemed necessary and prudent by the CITY based upon changes in statutory law, court decision, or the claims history of the industry and/or of the CLUB. CLUB shall comply with such requests as a condition precedent to the effectiveness of this Agreement. CLUB shall be afforded ninety (90) days to implement such changes, provided, however, that no change shall be required where policy provisions are established by law or regulations binding upon the CLUB, its insurer, or the policy underwriter. The CITY, its officers, employees, and servants shall be endorsed as an additional insured on each insurance policy required under this Agreement with the exception of CLUB's worker's compensation insurance policy. Each insurance policy shall be endorsed to provide the CITY a minimum thirty (30) days' notice of cancellation, non -renewal, and/or material change in policy terms or coverage. Each certificate shall be signed by an agent authorized to bond coverage on behalf of the insured, be complete in its entirety, and show complete insurance carrier names as listed in the most -recent A.M. Best Property & Casualty Guide. All policies shall include a Waiver of Subrogation (Rights of Recovery) in or of the CITY. Any deductible in excess of $55000.00 for any policy that does not provide coverage on a first -dollar basis must be acceptable to and approved by the CITY's Risk Management Division CLUB's insurance policies shall each be endorsed to provide that such insurance is primary protection and that any self -funded or commercial coverage maintained by CITY shall not be called upon to contribute to loss recovery. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. Except for workers' compensation, all insurers must have a minimum rating of A VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If an insurer's rating does not meet the minimum requirement, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall foHow form of the primary coverage. Unless otherwise stated, all required insurance shall be written on an "occurrence basis." If coverage is underwritten on a "claims made" basis, the retroactive date shall be coincident with or prior to the date of this Agreement, and the certificate of insurance shall state that the coverage is "claims made" and indicate the retroactive date. All insurance coverage shall be maintained for the duration of this Agreement and foI three (3) years following completion of the services or for the warranty period, whichever is longer. CLUB shall annually provide the CITY's Risk Management Division with current certificates of insurance to evidence coverage in accordance with this Agreement. Policies shall contain no exclusions by endorsements that nullify the required lines of coverage or that decrease the limits of coverage unless such endorsements have been approved in advance, in writing by the CITY's Risk Manager. With the exception of worker's compensation insurance, the CITY may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups in lieu of traditional insurance. Prior to employing such alternative coverage, CLUB must obtain CITY's written approval. CITY shall not be responsible for the direct payment of insurance premium costs for CLUB's insurance. During any term of this Agreement, CLUB shall report to the Risk Management Division in a timely manner any loss occurrence that could give rise to a liability claim or lawsuit or that could result in a property loss. CLUB's liability shall not be limited to the specified amounts of insurance required herein. Any failure on part of the CITY to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein 9. INDEMNIFICATION AND RELEASE. CLUB covenants and agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from any and all claims or suits for property damage or loss and/or personal injury (including death) to any and all persons, of whatsoever kind or character, whether real or asserted, arising out of the work and services to be performed hereunder by CLUB, its officers, agents, employees, or subcontractors, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE ALLEGED NEGLIGENCE OF THE OFFICERS, AGENTS, OR EMPLOYEES OF THE CITY. CLUB covenants and agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from any and all claims or suits or for any expense arising out of or in connection with, directly or indirectly, the collection services performed under this Agreement WHETHER OR NOT SAID LOSS, DAMAGE, LIABILITY, OR EXPENSE IS A RESULT OF THE ALLEGED NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS, OR EMPLOYEES. This indemnity shall include without limitation any reasonable and necessary attorney's fees for the defense of any claim hereunder including any appeal of said claims. The Indemnity provision of this Agreement shall have no application to any claim or demand that is the result of the sole negligence or fault of the CITY, its officers, agents, or employees. In addition, by executing this Agreement, CLUB releases the CITY, its officers, agents, and employees from any liability for property damage or loss and/or personal injury (including death) incurred during performance of this Agreement. 10. SIGNAGE. The Boys &Girls Clubs of Greater Fort Worth, Inc. may not post any sign on the property or outside the building unless prior written approval has been obtained from the Director of the CITY'S Parks and Community Services Department. No sign may be posted in violation of the CITY' S sign ordinance. 11. TERMINATION OF AGREEMENT. At any time, either party may terminate this Agreement, in whole or in part, with or without cause, by providing written notice to the other party that specifies to what extent the Agreement is being terminated and the effective date of termination. 12. COMPLIANCE WITH LAW. CLUB, its officers, agents, servants, employees, and subcontractors, shall abide by and comply with all federal, state, and local laws, including all ordinances, rules, and regulations of CITY. It is agreed and understood that if CITY calls to the attention of CLUB any such violation on the part of CLUB or any of its officers, agents, servants, employees, or subcontractors, then CLUB shall immediately desist from and correct such violation. 13. NON-APPROPIATION OF FUNDS. In the event no funds or insufficient funds are appropriated by the Fort Worth City Council in any fiscal period for the CITY to meet its obligations hereunder, CITY will notify the CLUB of such occurrence, and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received. 14. NOTICE. Any notice required or provided for under this Agreement shall be sufficient if forwarded to the other party by hand delivery or via U.S. Postal Service first class mail, postage prepaid, to the address of the other party shown below: If to CITY Charles W. Daniels Assistant City Manager City of Fort Worth 1000 Throckmorton St. Fort Worth, Texas 76102 (817)392-6183 If to CLUB Boys &Girls Clubs of Greater Fort Worth, Inc. 3218 Belknap Fort Worth, Texas 76111 With Copy to Anthony Meyers, Assistant Director Fort Worth Parks and Community Services Department 4200 South Freeway, Suite # 2200 Fort Worth, Texas 76115 (817) 392-5775 And Denis McElroy, Assistant City Attorney City Attorney's Office 1000 Throckmorton Fort Worth, Texas 76102 (817) 392-2758 15. INDEPENDENT CONTRACTOR. CLUB shall operate hereunder as an independent contractor and not as an officer, agent, servant, or employee of the CITY. CLUB shall have the exclusive control of, and the exclusive right to control, the work designated to the CLUB to be performed hereunder, and all persons performing the same. CLUB shall be solely responsible for the acts and omissions of its officers, members, agents, servants, and employees. Neither party shall be responsible under the Doctrine of Respondeat Superior for the acts or omissions of the officers, members, agents, servants, employees, or officers of the other party. 16. NONDISCRIMINATION. Neither the CITY and CLUB, nor any of their officers, members, agents, employees, Program participants, or subcontractors, while engaged in performing this Agreement, shall in connection with the employment, advancement, or discharge of employees, or in connection with the terms, conditions or privileges of their employment, discriminate against persons because of their age, except on the basis of a bona fide occupational qualification, retirement plan, or statutory requirement. The CITY and CLUB agree that in the execution, performance, or attempted performance of this Agreement, they will not discriminate against any person or persons because of gender, race, religion, color, sexual orientation, or national origin, nor will CLUB permit its agents, employees, subcontractors, or Program participants to engage in such discrimination. 17. SEVERABILITY. The provisions of this agreement are severable and if for any reason a clause, sentence, paragraph or other part of this agreement shall be determined to be invalid by a court or federal or state agency, board or commission having jurisdiction over the subject matter thereof, such invalidity shall not affect other provisions which can be given effect without the invalid provision. 18. WAIVER OF DEFAULT. No waiver by the parties hereto of any default or breach or the failure to insist upon the performance of any term, condition, provisions, or covenant of this Agreement shall be deemed to be a waiver or relinquishment to any extent of any other breach of the same or any other term, condition, provision, or covenant contained herein or the right of the parties to assert or rely upon any such term. 19. APPLICABLE LAW; VENUE. A. This Agreement shall be construed in accordance with the laws of the State of Texas. B. Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, attempted performance, or non-performance of this Agreement, venue for said 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, 20. ENTIRE AGREEMENT. This written instrument together with any attached exhibits constitutes the entire understanding between the parties hereto concerning the work and services to be performed. Any prior or contemporaneous, oral or written agreement that purports to vary from the terms hereof shall be void. 21. AMENDMENT. No amendment, modification, or alteration of the terms hereof shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto. ., 22. PARTIES BOUND. This Agreement shall be binding upon the successors and assigns of both parties in like manner as upon the original parties. 23. FORCE MAJEURE. If either party is unable, either in whole or part, to fu11111 its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; 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; 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 during the continuance of such event. 24. SIGNATURE AUTHORITY. CLUB certifies that the person signing this Agreement has been properly delegated this authority. IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples in Fort Worth, Tarrant County, Texas this c9rvXday of rJ eV , 2009. CITY OF FORT WOR'I'II By: W. Daniels y Manager ATTEST: City Secretary APPROVED AS A D LEGALIT By. s4Denis C. cElroy, E City Attorney �IoM�C( rN BOYS &GIRLS CLUB OF GREATER FORT WORTH, INC. By: Daphne Barlow, President Boys & Girls Clubs of Greater Fort Worth OFFICIAL RECORD CITY SECRETARY T. WORTH, TX STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Charles W. Daniels, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same as the act of the City of Fort Worth and that he executed the same as the act of the said City of Fort Worth for the purposes and consideration therein expressed and in the capacity herein stated. GIVJPN UNDER MY HAND AND SEAL OF OFFICE, this day of MARIA S. SANCMEZ NOTARY PUBLIC STATE OF TEXAS My Comm. Exp.12.14-2009 STATE OF TEXAS COUNTY OF TARRANT �lotary exas BEFORE ME, the undersigned authority, a Notary Public in and for the State of // 6 oqf s , on this day personally appeared Daphne Barlow, President, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was for the purposes and consideration therein expressed, as the act and deed of the Boys & Girls Clubs of Greater Fort Worth, and in the capacity therein stated as its authorized officer or representative. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this , day of 2009 pY p` o�P e� REBECCA J. MURO 9} Notary Public STATE OF TEXAS of My Comm. Exp. 04/16/2010 Notary Public in grid for the State of Texas