HomeMy WebLinkAboutContract 40154POOL USE AND SUBSIDY AGREEMENT — SUMMER 2010
THIS POOL USE AND SUBSIDY AGREEMENT - SUMMER 2010 ("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"), acting by and through its duly authorized Assistant
City Manager, and YMCA OF METROPOLITAN FORT WORTH, a Texas nonprofit
corporation ("YMCA"), acting by and through its duly authorized President and Chief Executive
Officer.
RECITALS
WHEREAS, in an effort to curtail operating costs, the City of Fort Worth will not open
six municipal swimming pools during the summer of 2010; and
WHEREAS, the YMCA of Metropolitan Fort Worth operates swimming pools for
YMCA members and has offered to make four of its outdoor swimming pools available for use
by non-member residents of the City of Fort Worth,
NOW THEREFORE, for and in consideration of the performance of the mutual
covenants and assurances herein contained, the Parties do hereby covenant and mutually agree as
follows:
1. Duties and Responsibilities
1.1 YMCA
(a) Subject to the terms and conditions expressed herein, YMCA will snake outdoor
swimming pools available for public use at the following locations during the Term of this
Agreement:
McDonald Community YMCA, 2400 East Berry, Fort Worth, Texas 76105
Eastside YMCA, 1500 Sandy Lane, Fort Worth, Texas 76112
E.R. Van Zandt Southwest YMCA, 4750 Barwick Drive, Fort Worth, Texas 76132
Westside YMCA, 8201 Calmont Avenue, Fort Worth, Texas 76116 =J�,'a RECORD
SECRETARY
FT,1. WORT H, TX
Pool Use and Subsidy Agreement —Summer 2010
(b) To the extent pool capacity permits, YMCA will allow members of the public to gain
admission to the listed facilities between the hours of 2:00 p.m. and 4:00 p.m. Monday through
(c) YMCA will charge the following per -visit fees for non-member use under this Agreement:
$1.00 per person for individuals 17 years of age or younger
$1.50 per person for individuals 18 years of age or older
(d) YMCA shall operate the pools and perform all associated services in accordance with
industry standards for the same or similar services and in accordance with the terms and
conditions of this Agreement.
(e) YMCA grants the City the right to advertise to the public the availability of the listed
YMCA swimming pools under this Agreement.
(a) City shall pay YMCA in accordance with the Compensation section of this Agreement.
(b) In advertising pool availability under this Agreement, City shall not use the name or
indicia of the YMCA in any way that disparages the YMCA (including officials, employees, or
indicia thereof); that depicts the YMCA in any manner or use that is or may claim to be
defamatory, untrue, or censorable in nature; or that may bring harm to the heritage and history of
the YMCA.
2. Term. This Agreement shall encompass use of the listed YMCA pools for a period
beginning June 5, 2010 and ending August 21, 2010, unless terminated earlier in accordance
with Section 4.
3. Comuensation. As full compensation under this Agreement and to off -set costs of
employing additional lifeguards required to serve the anticipated increase in swimmers at the
listed facilities, City agrees to pay the YMCA the sum of seven thousand dollars ($7,000.00),
such payment to be made on or before June 15, 2010.
Pool Use and Subsidy Agreement —Summer 2010 Page 2 of 8
4. Termination. Either Party may terminate this Agreement at any time, with or without
cause, by providing the other Party with fifteen (15) days' written notice of termination. In the
event this Agreement is terminated prior to expiration of the Term, YMCA shall refund to the
City a pro rata portion of the compensation representing the number of days between the
effective date of termination and the last day of the Term.
5. Independent Contractor. YMCA shall operate hereunder as an independent contractor
and not as an officer, agent, servant, or employee of City. YMCA shall have exclusive control of
and the exclusive right to control the details of the work performed hereunder and all persons
performing same and shall be solely responsible for the acts and omissions of its officers, agents,
servants, employees, and subcontractors. The doctrine of respondeat superior shall not apply as
between the City and YMCA, its officers, agents, servants, employees, or subcontractors.
Nothing herein shall be construed as creating a partnership or joint enterprise between
City and YMCA. It is expressly understood and agreed that no officer, agent, servant,
employee, or subcontractor of YMCA (including lifeguards whose salary is paid in part by funds
received from the City) is in the paid service of City.
6. Liability and Indemnification. YMCA AGREES TO DEFEND, INDEMNIFY, AND
HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS,
COSTS, AND EXPENSES OF ANY KIND, INCL UDING, B UT 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 (1) YMCA'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF
THIS A GREEMENT OR (H) ANY NEGLIGENT A CT OR OMISSION OR INTENTIONAL
MISCONDUCT OF YMCA, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS (OTHER THAN THE CITY), OR SUBCONTRACTORS RELATED TO
THE PERFORMANCE OF THIS AGREEMENT. THE INDEMNITY PROVIDED FOR IN
THIS SECTIONSHALL NOT APPLY TO ANYLIABILITYRESUL TING FROM THE SOLE
NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR
SEPARATE CONTRACTORS. IN THE EVENT OF JOINT AND CONCURRENT
NEGLIGENCE OF BOTH YMCA AND CITY, RESPONSIBILITY, IF ANY, SHALL BE
APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE
STA TE OF TEXAS. NOTHING HEREIN SHALL BE CONSTR UED AS A WAIVER OF ANY
IMMUNITY TO WHICH THE CITY IS ENTITLED UNDER ANY APPLICABLE
STATUTORY OR COMMONLA W.
Pool Use and Subsidy Agreement —Summer 2010 Page 3 of 8
YMCA shall notify the City's Risk Management Division in a timely manner regarding
any loss occurrence that could give rise to a liability claim or lawsuit or that could result in a
property loss.
YMCA shall require all of its subcontractors to include in their subcontracts an indemnity
and notification in favor of City in substantially the same form as above.
This section shall survive the expiration or termination of this Agreement.
8. Insurance. During the term of this Agreement, YMCA shall procure and maintain at all
times, in full force and effect, a policy or policies of insurance or a system of self-insurance
retention that YMCA, in its reasonable judgment, determines is necessary to provide coverage
against any and all public risks related to YMCA's operation of a swimming pool (including, but
not limited to, liability coverage and workers' compensation coverage as required by law). On
request, YMCA shall provide the City with certificates of insurance or self-insurance
documentation to verify the types and amounts of insurance coverage maintained by the YMCA.
10. Comuliance with Law. YMCA, its officers, agents, servants, employees, and
subcontractors, shall abide by and comply with all laws, federal, state and local, including all
ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the
attention of YMCA any such violation on the part of YMCA or any of its officers, agents,
servants, employees, or subcontractors, then YMCA shall immediately desist from and correct
such violation.
11. Non -Discrimination. In the execution, performance, or attempted performance of this
Agreement, YMCA will not discriminate against any person or persons because of disability,
age, familial status, sex, race, religion, color, national origin, or sexual orientation, nor will
YMCA permit its officers, agents, servants, employees, or subcontractors to engage in such
discrimination.
This Agreement is made and entered into with reference specifically to Chapter 17,
Article III, Division 31 of the City Code of the City of Fort Worth (scrimination in
Pool Use and Subsidy Agreement —Summer 2010 Page 4 of 8
Employment Practices"), and YMCA hereby covenants and agrees that YMCA, its officers,
agents, employees, and subcontractors have fully complied with all provisions of same and that
no employee or employee -applicant has been discriminated against by either YMCA, its officers,
agents, employees, or subcontractors.
12. Rirht to Audit. YMCA agrees that the City shall, until the expiration of three (3)
years after final payment under this Agreement, have access to and the right to examine any
directly pertinent books, documents, papers and records of the YMCA involving transactions
relating to this Agreement. YMCA agrees that the City shall have access during normal working
hours to all necessary YMCA facilities and shall be provided adequate and appropriate
workspace in order to conduct audits in compliance with the provisions of this section. The City
shall give YMCA reasonable advance notice of intended audits.
YMCA shall require all of its subcontractors to include in their subcontracts a grant of
audit rights in favor PC in substantially the same form as above.
This section shall survive the expiration or termination of this Agreement.
13. Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity,
arise out of the execution, performance, attempted performance of this Agreement, venue for
said action shall lie in Tarrant County, Texas,
14. Notices. Notices to be provided hereunder shall be sufficient if forwarded to the other
Party by hand -delivery or via U.S. Postal Service certified mail, postage prepaid, to the address
A the other Party shown below.
CITY:
Richard Zavala, Director
Parks and Community Services Dept.
4200 South Freeway, Suite 2200
Fort Worth, Texas 76115
with cony to
YMCA:
Tony Shuman, President/CEO
YMCA of Metropolitan Fort Worth
512 Lamar Street, Suite 400
Fort Worth, Texas 76102
Pool Use and Subsidy Agreement —Summer 2010
Page 5 of 8
Matt Quinn, Senior Administrative Assistant
Parks and Community Services Dept.
4200 South Freeway, Suite 2200
Foil Worth, Texas 76115
15. Non -Waiver. The failure of either Party to insist upon 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 or YMCA's right to assert or rely on any such
term or right on any future occasion.
16. Governmental Powers. Both Parties agree and understand that the City does not waive
or surrender any of its governmental powers by execution of this Agreement.
17. Third Parties. Nothing in this Agreement shall be construed in any manner to create a
cause of action for the benefit of any person not a party to this Agreement, or to create any rights
not otherwise existing at law for the benefit of any person not a party to this Agreement.
Nothing in this Agreement shall be deemed to constitute a waiver of any immunity or affinnative
defense, which may be asserted by YMCA or the City as to any claim of any third party.
18. Severability. If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired.
19. Force Majeure. If either Party is unable, either in whole or part, to fulfill 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 states declaration of a state of disaster or of
emergency by the federal, state, county, or City government in accordance with applicable law,
issuance of a Level Orange or Level Red Alert by the United States Department of Homeland
Security; 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
Pool Use and Subsidy Agreement —Summer 2010 Page 6 of 8
affected by such Force Majeure Event will be suspended only during the continuance of such
event.
20. Headings not Controlling. Headings and titles used in this Agreement are for reference
purposes only and shall not be deemed a part of this Agreement.
21. Amendment. No amendmMMMMMM ent, modification, or alteration of the terms %J this Agreement
shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly
executed by the parties hereto.
22. COMMON
Entire Agreement. This written instrument (together with any attachments, exhibits,
and appendices) constitutes the entire understanding between the Parties concerning the work
and services to be performed hereunder, and any prior or contemporaneous, oral or written
agreement that purports to vary from the terms hereof shall be void.
EXECUTED in multiple originals on this, the i � day of � �,� r � , 2010.
CITY OF FORT WORTH, TEXAS
Assistant City Manager
Date Signed:
ATTEST:
Marty Henc�i�
City Secretary
APPROVED AS TO FORM
AND LEGALITY:
YMCA OF METRO
AN FORT WORTH
Tony S an
Preside and Chief Executive Officer
Date Signed:
WITNESS:
NO M&C I�Ia�UIItIA.Is�. � �'
OFFiCIAf� RECORD
CITY SECRETARY
='r. WORTH, TX
Pool Use and Subsidy Agreement —Sumner 2010
Page 7 of 8
Denis' C. McE
Assistant City
No M&C Required
Pool Use and Subsidy Agreement — Sunmler 2010 Page 8 of 8