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HomeMy WebLinkAboutContract 43378 (2)CITY O4CRETARY CONTRACT NO. 3/433 Pi MEMORANDUM OF UNDERSTANDING AND AGREEMENT REGARDING USE OF THE BERTHA COLLINS SPORTS CENTER This Memorandum of Understanding and Agreement Regarding Use of the Bertha Collins Sports Center ("Agreement") is made and entered into by and between the City of Fort Worth (the "City"), a home -rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and the Southside Hornets Athletic Association, d/b/a Southside Youth Association (the "SYA"), a Texas non-profit corporation, acting by and through its duly authorized President. W { EREAS, the SYA was formulated as an extension of the Youth Sports Program (now the Youth Athletics Program) of the City of Fort Worth designed to offer youth programming aimed at assisting high -risk youth break the cycle of poverty; and W I i EREAS, the City and the SYA have been party to a series of contracts governing SYA's use of the Bertha Collins Sports Center; and WHEREAS, the most -recent contract has expired; and WHEREAS, the parties wish to enter into this Agreement to allow for continued operation of SYA's program at the Bertha Collins Sports Center while the City reevaluates the situation to determine the most appropriate method for operating the Center to meet overall goals. NOW THEREFORE, in consideration of the mutual covenant herein expressed, the City and SYA do hereby agree as follows: 1. PURPOSE This Agreement is for the purpose of allowing the SYA to use certain designated portions of the Bertha Collins Sports Center, 1501 MLK Freeway, Fort Worth, Texas 76104 (the "Center") for the purpose of providing youth sports programming designed to assist high - risk youth break the cycle of poverty through on -going educational, mentoring, and cultural and sport activities, all of which are intended to teach life skills, including personal responsibility, accountability, work ethic, positive attitude, teamwork, and fairness. 2. OPERATING RIGHTS AND DUTIES. A. Subject to and in accordance with the terms and conditions of this Agreement, City hereby grants to SYA a license and non-exclusive right to operate in the following designated portions of the Center: the office, activity room, restroom, and study room located on the second floor; the gymnasium; and the kitchen (collectively referred to herein as the "Premises"). SYA shall use the Premises and the Center solely for the purposes of conducting (i) youth team practices, (ii) MOU for Bertha Collins Sports Center 011-06-12 Al 0:55 IN OFFICIAL RECORD CITY SECRETARY WOrilltT Page 1 of 12 educational or cultural sessions, and (iii) volunteer trainings associated with offering youth sports programming as described in Section 1 of this Agreement. SYA's use of the Premises shall be allowed from 5:OOpm to 9 OOpm, Monday through Friday, provided, however, that use of the Premises shall not be available during City programs, holidays, or on other occasions determined by the City or in the event of a Center closure in accordance with Section 14. The City shall provide SYA with at least thirty (30) day's notice of City programs and other occasions that will require use or closure of the gymnasium and/or meeting rooms and will prevent SYA from using those portions of the Premises. B. The Center and Premises shall operate under the ordinances, rules and regulations of the City of Fort Worth and the Parks and Community Services Department and in strict accordance with all of the terms and conditions provided for in this Agreement. C. The City shall not be obligated to expend funds over the annual maximum amount allocated for the Center. In the event the annual appropriation is exhausted before the end of the City's budget year, the parties agree to negotiate in good faith concerning any required reduction in resources. 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 SYA 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. TERM; TERMINATION A. This Agreement governs SYA's use of the Premises from June 2, 2010, through September 30, 2012, unless terminated earlier as provided herein. B. Each of the following events shall be deemed to be an "Event of Default" by SYA under the Agreement: (1) SYA shall fail to pay any installment of rental hereunder and such failure shall continue for a period of fifteen (15) days from the date that City sends written notice of the failure to pay rental; (2) SYA shall fail to comply with its responsibilities under Section 5(L), (3) SYA shall fail to maintain all required insurance in accordance with Section 13 of this Agreement; (4) SYA shall attempt to assign this Agreement without the City's written consent; (5) desert or vacate any portion of the Premises and such vacancy shall continue for a period of thirty (30) days after receipt by SYA of written notice from the City of the vacancy; and/or (6) SYA shall do or knowingly permit to be done anything which creates a lien on the Premises or the Center. On the occurrence of any such Event(s) of Default, the City shall have the option to pursue any one or more of the following remedies without any notice or demand whatsoever: terminate this Agreement, in which event SYA shall immediately surrender the Premises to the City, and if SYA fails to do so, the City may, without prejudice to any other MOU for Bertha Collins Sports Center Page 2 of 12 remedy that it may have for possession or arrearages in rental, enter on and take possession of the Premises and expel or remove, by force if necessary, SYA and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim of damages thereof and SYA agrees to pay to the City on demand the amount of all loss and damage that the City may suffer by reason of such termination, whether through inability to re -let the Premises on satisfactory terms or otherwise, provided, however, that the City shall make all reasonable efforts to re -let the Premises and SYA shall be entitled to dollar -per -dollar reduction in lost -rent damages for all monies that the City receives or is entitled to from any replacement tenant. 4. REGISTRATION FEES A. SYA shall pay an annual membership fee of $6.00 per youth for each participant utilizing the Center. This fee shall be due and owing regardless of whether the individual participates in the City's Youth Athletics Program. These fees shall be due no later than 5:00 pm (Central Time) of the first business day of February of each year this Agreement remains in effect. All payments shall be made payable to the "City of Fort Worth" and remitted to the Athletic Coordinator, Haws Athletic Center at 600 Congress Street, Fort Worth, Texas 76107. B. SYA shall pay the then -effective Youth Athletic Program fee per season for each participant taking part in a City Youth Athletic Program. These fees shall be due no later than 5:00 pm (Central Time) of the date that registration closes for each Youth Athletic Program season. All payments shall be made payable to the ` City of Fort Worth" and remitted to the Athletic Coordinator, Haws Athletic Center at 600 Congress Street, Fort Worth, Texas 76107. C. The establishment of fees is within the sole discretion of the City. 5. RESPONSIBILITIES OF SYA A. SYA may use the Premises for the purposes and during the times authorized in Section 2, subject to and in accordance with the terms and conditions of this Agreement. At the monthly meeting with City staff (see Subsection 7(B)), SYA shall provide City with a. complete schedule of all such use for the upcoming month. B. SYA must submit a written reservation request to the City's Athletic Coordinator for (i) any use of the Premises or the Center that is outside of the hours authorized in Section 2 of this Agreement, (ii) any use of the Premises or the Center that is for any purpose not specifically listed in Section 2 of this Agreement — regardless of when the proposed use is intended to occur; or (iii) any use of any City facility other than the Premises. Such requests must be received by the City at least thirty (30) days prior to the proposed use. The City may, in its sole discretion, approve or reject any such reservation request. The City shall not MOU for Bertha Collins Sports Center Page 3 of 12 unreasonably withhold any such requests provided the facility is available and no other reservations have been booked for the requested date and times, including preparations therefore, and all other terms of the contract are in compliance. C. At the monthly meeting with City staff (see Subsection 7(B)), SYA shall provide the Athletic Coordinator with attendance numbers for all of its activities at the Center during the previous month. At the conclusion of each day's activities, SYA shall remove all equipment from common -use areas (including, but not limited to, the gymnasium kitchen, and hallways) and store such equipment in SYA's assigned office space or other agreed storage location. City is not responsible for Loss or theft of equipment. E SYA shall be solely responsible for maintaining and cleaning the Center (including, but not limited to, the second -floor office, activity room, restroom, and study room the gymnasium; meeting rooms; kitchen; offices; and storerooms) in connection with all SYA activities and use. At a minimum, maintaining and cleaning shall include litter control, sweeping, mopping, dusting, cleaning of commodes and urinals, and cleaning of windows/glass. SYA shall not be responsible for maintaining or cleaning the Center in connection with City activities or use. F. SYA shall follow the Youth Athletic Program's policy for accepting volunteers who have contact with children. Policy: It is the responsibility of the Youth Athletic Program to provide background checks on all volunteers before they are accepted into the league. Offenses such as drug -related crimes, felonies, assault and/or battery, illegal possession of firearms, and physical or sexual abuse will result in disqualification or termination of the volunteer. In addition, SYA is strongly encouraged to perform background checks on all of its volunteers, even if they do not volunteer in connection with the City's Youth Athletics Program. G. SYA shall adhere to all policies, procedures, and program dates/deadlines set forth by the City including all program and facility rules, and shall assist City staff to ensure that all policies, procedures, and program dates/deadlines are followed. H. SYA shall keep accurate Records of all teams participating at the Center. Upon request by the City, SYA must supply the City with any Records pertaining to the Center or SYA's participation in the Youth Athletic Program. For purposes of this provision, the term `Records" shall include team rosters, coaches' registrations, and participant birth certificates. I. SYA shall ensure that all individuals using the Center, including participants, coaches, and volunteers, have current City -issued membership cards. • MOU for Bertha Collins Sports Center Page 4 of 12 J. SYA shall work with City staff (as City resources permit) to develop a "Friends organization" relationship whereby the SYA would conduct City -approved fundraising activities, the revenues from which would be used to make City - approved improvements to the Bertha Collins Sports Center. SYA understands and acknowledges that development of such a relationship and allocation of funds for building improvements or program enhancements shall be contingent on all quarterly rental payments being paid in full on or before their due date. K. On or before January 31st of each year, SYA will provide the City with an updated inventory list of all SYA-owned items at the Center including, but not limited to, equipment, furniture, and supplies. For purposes of this provision "SYA-owned items" shall mean items that are not supplied or purchased by the City. If at any time during this Agreement, SYA adds or removes any SYA-owned items, SYA shall provide the City with an amended inventory list within thirty days of the date the item or items are removed or added. L SYA shall abide by and ensure that its participants, coaches, and volunteers abide by all rules, policies, and procedures contained in the most -current Youth Athletics Program coach's manual and league rules SYA shall be responsible for ensuring that any violation is reported to the Athletic Coordinator within twenty- four (24) hours of its occurrence. If an SYA participant, coach, spectator, or manager is subject to disciplinary measures at any City facility (including the Center) or in connection with a Youth Athletics game or practice at any location, SYA shall be placed on immediate written probation. If such problems persist, this Agreement shall be subject to immediate termination in accordance with Section 2. M. SYA shall comply with all federal, state, and local laws regulations and ordinances related to its operations and with all applicable Youth Athletic Program guidelines. If the City notifies SYA of any noncompliance, SYA shall immediately correct the issue at its own sole cost and expense. 6. RESPONSIBILITIES OF CITY The City shall provide SYA with use of the Center in accordance with the terms of this Agreement. B The City will provide a part-time Community Center Aide to be the on -site contact for the Center. The City will also provide a Recreation Programmer and Athletic Coordinator to provide periodic supervision of the Center and staff during Center operating hours. C. In an effort to obtain feedback from program participants, the City will distribute program evaluations to participants, parents, and volunteer coaches who participate in the Youth Athletics Program. These evaluations will be distributed MOU for Bertha Collins Sports Center Page 5 of 12 four times a year during, or immediately after, each Youth Athletics Program season. D. City shall be solely responsible for maintaining and cleaning the Center (including, but not limited to the gym, meeting rooms, kitchen, offices, and storerooms) in connection with all City activities and use. At a minimum, maintaining and cleaning shall include litter control, sweeping, mopping, dusting, cleaning of commodes and urinals, and cleaning of windows/glass. The City shall not be responsible for maintaining or cleaning the Center in connection with SYA activities or use. 7. JOINT RESPONSIBILITIES OF THE CITY AND SYA A. The Athletic Coordinator of the City shall serve as the primary point of contact between the SYA and the City for all issues relating to operation and use of the Center and other City facilities (including, but not limited to, inquiries regarding facility availability). B. The City and SYA shall meet once a month, at a time and place convenient to both parties, to monitor compliance with this Agreement. C. SYA and City employees shall not engage in conduct that could be determined to be detrimental to the public trust Such conduct shall include but not be limited to, public intoxication; fighting; criminal activity; illegal drug activity' discourteous treatment of others; slandering or defaming public officials appointees, or staff; or any other conduct that could damage or harm the public's perception or trust of the City and/or any of its officials, appointees, or staff. 8. REVENUES AND PAYMENTS A. SYA shall pay City a building rental fee of Five Thousand Dollars ($5,000.00) per year to partially offset City's incurred costs in operating the Center and providing utilities. This rental shall be payable by SYA in equal quarterly installments of One Thousand Two Hundred and Fifty Dollars ($1,250.00) each, with such payments being due no later than 5:00 pm (Central Time) of the first business day of October, January, April, and July. All payments shall be made payable to the "City of Fort Worth" and remitted to the Athletic Coordinator, Haws Athletic Center at 600 Congress Street, Fort Worth, Texas 76107. B. SYA shall provide separate accounting reports for all revenues and expenditures directly affiliated with the City of Fort Worth Youth Athletics Program to the Athletic Coordinator at the address listed above. SYA shall submit the accounting reports quarterly, with such reports being due no later than 5:00 pm (Central Time) on the first business day of October, January, April, and July. MOU for Bertha Collins Sports Center Page 6 of 12 9. NONDISCRIMINATION/EQUAL OPPORTUNITY SYA, 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 SYA s use of the Premises on the basis of race, age, color national origin, ethnicity, religion, disability, gender, sexual orientation, or familial status. SYA 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 or at the Center on grounds of race, age, color national origin, ethnicity, religion, disability, gender, sexual orientation, or familial status. 10. ASSIGNMENT SYA may not assign, transfer, or otherwise convey to any other party any of SYA's rights or obligations under this Agreement without the prior written consent of the City. Any such attempted assignment without the City's consent shall be void and constitute a breach of this Agreement subject to immediate termination in accordance with Section 3. 11. INDEPENDENT CONTRACTOR It is expressly understood and agreed that SYA shall operate hereunder as an independent contractor in each and every respect and not as an agent, representative, or employee of the City. SYA shall have the exclusive right relative to the terms of this Agreement and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, separate contractors, subcontractors, licensees, invitees, and program participants. SYA acknowledges that the doctrine of respondeat superior will not apply as between the City and SYA, its officers, agents, servants, employees, contractors, subcontractors, licensees, invitees, and program participants. SYA further acknowledges and understands that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and the SYA. 12. INDEMNITY SYA AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS AGENTS, SERVANTS, AND EMPLOYEES AGAINST ANY AND 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 A BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY: (i) SYA'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF SYA ITS OFFICERS AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY), SUBCONTRACTORS, LICENSEES, INVITEES, OR PROGRAM PARTICIPANTS RELATED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT OR THE PERFORMANCE OF THIS MOU for Bertha Collins Sports Center Page 7 of 12 AGREEMENT. THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS. IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH SYA AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 13. INSURANCE During the term of this Agreement, SYA shall maintain in full force and effect, at its own cost and expense, the following minimum insurance coverage: A. Commercial General Liability Insurance written on an occurrence basis with no exclusion in policy, naming the City as an additional insured, and having the following minimum policy limits: $1,000,000.00 each occurrence, $1,000,000.00 annual aggregate limit. B. Automobile Liability Insurance with policy limits of $1,000,000.00 dollars each accident, or reasonably equivalent split limits approved by the City's Risk Manager. C. Workers Compensation — In the event the SYA hires paid employees, workers compensation shall be required in accordance with this paragraph. Statutory Worker's Compensation Insurance in compliance with the requirements of state law with policy endorsed to provide a waiver of subrogation as to City, and Employees' Liability Policv of Insurance with coverage of not less than $100,000.00 each accident, $500,000.00 disease -policy limit, and $100,000 00 disease — each employee. To the extent permitted by law and approved by the City's Risk Management Division, SYA may arrange for alternative coverage such as occupational accident insurance in lieu of statutory worker's compensation insurance. SYA may not employ alternate insurance coverage unless the insurer, limits, terms, and scope of coverage have been accepted in writing by the City's Risk Management Division. D. Additional Insurance Requirements Applicable to All Insurance Policies 1. The City of Fort Worth shall be made an additional insured by endorsement, on all of SYA's insurance policy or policies except for automobile liability and Workers' Compensation insurance. 2. All insurance policies shall be endorsed with a wavier of subrogation in favor of the City. 3. All insurers must be authorized to do business in the State of Texas or otherwise be approved by the City's Risk Management Division and must MOU for Bertha Collins Sports Center Page 8 of 12 be acceptable to the City with respect to their financial strength and solvency. 4. The deductible limit on any of the policies shall not exceed $10,000.00 per occurrence or per accident unless approved in writing by the City. 5. Each SYA policy required under this Agreement must be endorsed to provide that the City be given notice a minimum of thirty (30) days prior to insurer action in the event of cancellation, non -renewal, or material change on coverage. 6. SYA shall provide the City's Risk Management Division with certificates of insurance documenting all required coverage with ten days of initial execution of this Agreement and with updated certificates on or before January 15th of each year that this Agreement remains in effect. 7. SYA shall ensure that the City is provided with a copy of any and all required insurance policies on request. 8. In the event that SYA becomes aware of any damages sustained or claimed to be sustained by a third party or of any incident occurring at the Premises or Center that may give rise to a claim against the City, SYA shall notify the Athletic Coordinator and the City's Risk Management Division as soon as possible. 9. All notices provided pursuant to this section shall be provided in accordance with the notice requirements of this Agreement 14. CENTER CLOSURE City may, in exercise of its reasonable discretion, close the Center due to inclement weather or other unforeseen circumstances. 15. FORCE MAJEURE If the Center or Premises or any portion thereof shall be destroyed or damaged by reason of force majeure so as to prevent the use of the Center or Premises for the purposes and during the periods specified in this Agreement, then this Agreement shall terminate, and SYA hereby waives any claim against CITY for damages by reason of such termination. 16. NOTICES All notices required or permitted under this Agreement may be given to a party personally or by United States First Class mail and addressed to such party at the address stated below or to such other address as a party may specify in advance in writing. Any MOU for Bertha Collins Sports Center Page 9 of 12 notice given by mail shall be deemed to have been received on the date deposited in the United States mail so addressed with postage prepaid: CITY: City of Fort Worth c/o Director Parks and Community Services Department 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 SYA Attn: Patrick Brown 4817 Cole St. Fort Worth, TX 76115 17. SEVERABILITY, WAIVER AND SECTION HEADINGS A. 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 SYA or City in connection with the rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement. B. 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 occurrs. C. 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. 18. ENTIRE UNDERSTANDING; MODIFICATION A. This written instrument (including all attachments, schedules, and exhibits attached hereto) constitutes the entire understanding of the parties concerning City's and SYA's roles and obligations in regard to SYA s use of the Center. Any prior or contemporaneous oral or written agreement that purports to vary from the terms hereof shall be void. B. Amendments to this Agreement or to any attachment schedule, or exhibit attached hereto may be proposed by either party and shall take effect on written approval by both parties. MOU for Bertha Collins Sports Center Page 10 of 12 C. 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. 19. CHOICE OF LAW; VENUE A. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. B. 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. 20. REVIEW OF COUNSEL The parties acknowledge that each party and its counsel have had the opportunity to review and revise this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or attachments hereto. 21. CONTRACTING AUTHORITY By executing this Agreement, SYA s agent affirms that he or she is authorized by SYA to execute this Agreement and that all representations made herein with regard to SYA's identity, address, and legal status are true and correct. The City is fully entitled to rely on this warranty and representation in entering into this Agreement. 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 day of , 2012. MOU for Bertha Collins Sports Center Page 11 of 12 CITY OF FORT WORTH BY Susan .nis Assistant City Manager Approval Recommended By: BY: Richar• Zavala Directo Attest: BY: City S e cretar Parks and Commun SOUTHSIDE YOUTH ASSOCIATION BY: Patrick Brown President _toessitistutkil Pee° *�'ValLVll �. �'Denis C. II i l�4.tx�.o'�' Assistant Ci Approved as to Form and Legality 1� Mc6Lt0¼( C Orsofreei p.\b Pkit fifdp MOU for Bertha Collins Sports Center FFICIAL RECORD CITY SEC E . ET R Flo "' My TN • 1 Page 12 of 12