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HomeMy WebLinkAboutContract 44168 (2)CITY SECRETARY CONTRACT NO. 'a.0 k'-q. $ _ ,_ , SUPPPORT ORGANIZATION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND FRIENDS OF COBB PARK THIS SUPPORT ORGANIZATION AGREEMENT ("Agreement") is made and entered into on this ty-) day of Eon {t lay , 20 t 3 ("Effective Date") by and between the City of Fort Worth, Texas, a home-rulekrhunicipal corporation of the State of Texas, located in Tarrant, Denton and Wise Counties, Texas, acting by and through its duly authorized Assistant City Manager ("City"), and Friends of Cobb Park ("FOCP"), a nonprofit Texas corporation, acting by and through its duly authorized President. RECITALS WHEREAS, the City owns 244 acres of property known as Cobb Park; and WHEREAS, FOCP supports the conservation and management of Cobb Park; and WHEREAS, FOCP sponsors events throughout the year to raise awareness of and funds for Cobb Park; and WHEREAS, the City and FOCP wish to enter into an agreement for support of Cobb Park. NOW, THEREFORE, the City and FOCP do hereby agree to the following terms and conditions as set forth in the Agreement. 1. PURPOSE AGREEMENT 1.01 The purpose of this Agreement is to formalize the relationship between and the duties of the City as owner and manager of Cobb Park located at 1600 Cobb Drive, Fort Worth, Texas 76105 (the "Premises") and FOCP as the coordinating support organization for the Premises. 2. TERM 2.01 The primary term of this Agreement shall begin on the Effective Date and expire on December 31, 2015. The primary term may be renewed by mutual written agreement by both parties for two (2) successive two-year terms. Renewal of this Agreement may be accomplished through execution by both Parties of a written addendum establishing the new terms of the Agreement. Support Organization Agreement — CFW and Friends of Cobb Park 1 of 11 02-03-1 3 PO4:41 IN 3. RESPONSIBILITIES OF THE PARTIES 3.01 Responsibilities of FOCP a. FOCP will provide monetary and in -kind support for the Premises through fundraising, including, but not limited to, solicitation of money and goods, and through the making of in -kind improvements to the Premises with prior City approval. b. FOCP shall dedicate one hundred percent (100%) of the annual net proceeds collected by FOCP on the Premises for future development, improvements and sponsorship of fund raising events to benefit the Premises. c. Prior to initiating any fundraising or solicitation efforts for the Premises, FOCP shall provide the City with written notice forty-five (45) days prior to the intended fundraising and secure City approval. FOCP shall obtain specific written approval from City to use the City's logo in conjunction with FOCP's fundraising or solicitation efforts and shall abide by all City rules, policies, and regulations concerning the use of its logo. FOCP will coordinate with City staff in regard to any and all use of the Premises for fundraising or solicitation purposes. d. FOCP agrees that all net proceeds and in -kind materials or services donated for the Premises will be targeted for use in support of the development of the Premises in accordance with the FOCP Master Plan or other City -approved features on the Premises. e. FOCP 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). FOCP further agrees that funds records will be subject to review by the City upon request. f. If FOCP wishes to sell or market goods in the name of Cobb Park in support of the Premises, FOCP must first secure forty-five (45) days advance written approval from the City. FOCP shall obtain specific written approval from City to use the City's logo on any goods FOCP wishes to sell or market and shall abide by all City rules, policies, and regulations concerning the use of its logo. City shall retain all rights to ownership and use of any registered or recorded brands logos, trademarks, or variants thereof that relate to the City or the Premises. FOCP shall retain all rights to ownership and use of any registered or recorded brands, logos trademarks, or variants thereof that relate solely to the FOCP. The selling or solicitation of goods for sale and the use of proceeds shall be in accordance with the provisions of this Agreement. Support Organization Agreement — CFW and Friends of Cobb Park 2 of 11 J• g. FOCP shall submit a copy of its completed tax filing and a copy of its organization's non-profit status not later than May 1s` of each calendar year. h. To the extent FOCP owns, maintains, or supports a website that is available to the public and that relates to this Agreement, FOCP's use of the Premises, or both, FOCP 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 the 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 or his designee ("Director"). Any website content that does not meet the requirement of this section shall be removed on the earlier of: 1) discovery of such content or 2) receipt of notification 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 in the website. i. FOCP shall secure City permission prior to holding any public events in or on the Premises. No later than January 1st of each year, FOCP shall submit the proposed dates of events(s) to the City for approval Events not submitted annually shall be considered on a case by case basis at least forty-five (45) days prior to the event for approval by the City. FOCP will be responsible for ensuring that the Premises is cleaned and returned to an orderly condition following each public event FOCP holds. 3.02 Responsibilities of the City a. The City will serve as the sole manager of the Premises. 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. FOCP understands that it has no right to control or manage any portion of the Premises. b. All decisions and actions related to the creation, alteration, and on -going management of the Premises, 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 Premises 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 (i) thirty (30) days following delivery of written notice from the City to FOCP of Support Organization Agreement — CFW and Friends of Cobb Park 3 of 11 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 FOCP regarding the expenditure of the funds donated by FOCP prior to the expenditure of such funds However nothing herein relinquishes the City s right to expend funds donated by FOCP in a manner ultimately determined by the City. 4. TERMINATION/DISSOLUTION 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 expst ation FOCP shall transfer to the City funds, materials, and/or proceeds donated to or acquired by FOCP for the Premises or may retain such funds, materials, and proceeds for the benefit of the Premises. All funds, materials, and proceeds transferred or retained under this provision shall be used on the Premises as specified in Section 3 01 of this Agreement 4.02 In the event, FOCP dissolves or otherwise ceases to exist, all funds, materials, and proceeds donated to or acquired by FOCP for the Premises shall be transferred to the City. All funds, materials and proceeds so transferred shall be used on the Premises as specified in Section 3.01 of this Agreement. 5. CHARITABLE IMMUNITY AND LIABILITY ACT 5.01 FOCP 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 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 FOCP hereby 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 FOCP shall operate as an independent entity in each and every respect hereunder and not as an agent representative or employee of the City. FOCP 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 Premises and shall be solely responsible for the acts and omission of its officers, agent s servants, employees, contractors, subcontractors and licensees. FOCP acknowledges that the doctrine of respondent superior shall not apply as between the City and FOCP, its officers, agents, servants employees, contractors, subcontractors, and licenses. Nothing contained in this Agreement shall be construed as the creation of a partnership or joint enterprise between the City and FOCP. Support Organization Agreement — CFW and Friends of Cobb Park 4 of 11 7. COMPLIANCE WITH LAW; LICENSES, PERMITS AND TAXES; LIENS 7.01 FOCP and City shall comply with all federal, state and local laws, ordinances, iules 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 FOCP will not engage in any unlawful use of the Premises or any other City property. FOCP further agrees that it shall not permit its officers, agents, servants, employees, contractors, subcontractors, patrons or licensees to engage in any unlawful use of the Premises and that FOCP shall immediately contact the proper authorities to remove from the Premises any person engaging in such unlawful activities. Unlawful use of the Premises by FOCP itself shall constitute a breach of this Agreement and may result in the Agreement's immediate termination. 7.03 With the exception of park rental fees, FOCP 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 FOCP 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 the Agreement. 7.04 FOCP 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, FOCP, at their sole expense, shall liquidate and discharge same within ten (10) days after notice from City to do so. 8. RIGHT OF ENTRY 8.01 City does not relinquish the right to control the management of the Premises, or the right to enforce all necessary and proper rules for the management and operations 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 FOCP) 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 direct the activities if FOCP or assume liability for FOCP's activities. 9. MAINTENANCE; REPAIR 9.01 FOCP 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. Support Organization Agreement — CFW and Friends of Cobb Park 5 of 11 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 FOCP or of FOCP's employees, agents, officers. Volunteers, invitees, or licensees, FOCP 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 damage. The City will determine whether any damage had been done, the amount of the damage, the reasonable costs of repairing the damage, and whether FOCP is responsible under the terms of this Agreement. 9.03 If the City determines that damage is attributable to FOCP pursuant to section 9.02, the City shall provide FOCP written notification of such damage. Within thirty (30) days of receipt of the City's written notice, FOCP 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 FOCP 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 FOCP involving transactions relating to this Agreement. FOCP agrees that the City shall have access during normal working hours to all necessary FOCP 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 FOCP reasonable advance notice of intended audits 10.02 FOCP 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 workspace 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 THE FOCP AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) FOCP'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY ACTS, ERRORS, OR OMISSION OR INTENTIONAL MISCONDUCT OF FOCP, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITI9 OR SUBCONTRACTORS, RELATED TO THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM Support Organization Agreement — CFW and Friends of Cobb Park 6 of 11 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 FOCP AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FUTHER PROVIDED BY IN THE LAWS OF TEXAS. 11.02 The FOCP covenants and agrees that the City shall in no way nor under any circumstances be responsible for any property belonging to the FOCP, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers, that may be stolen, destroyed, or in any way damaged, and FOCP hereby INDEMNIFIES AND HOLDS HARMLESS THE 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 FOCP, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers on any of the premises. 11.03 This section shall survive the expiration or early termination of this Agreement. 12. INSURANCE 12.01 The FOCP shall not commence work under this Agreement until it has provided insurance required herein and the City has approved such insurance. Nor shall FOCP allow any subcontractor or subconsultant to commence work on this subcontract until the subcontractor or subconsultant has provided FOCP with insurance that names both the City and FOCP as additional insureds and that meets the requirements specified herein In lieu of requiring subcontractor or subconsultants to acquire separate insurance, FOCP may elect, in its sole discretion, to address any subcontractor or subconsultant as an additional insured under its liability policies. 12.02 FOCP shall specifically obtain the following types of insurance at the following limits and subject to the additional requirements listed below: a. Commercial General Liability: (required throughout term of Agreement and any renewals thereof): $500,000.00 Each Occurrence $500,000.00 Aggregate Documentation of commercial general liability insurance shall be provided to the City prior to the commencement of the work. b. Liquor Liability (required for all events hosted by the FOCP on the Premises at which liquor (beer and wine only (is to be sold, served provided, or allowed to be consumed) $1,000,000.00 Support Organization Agreement — CFW and Friends of Cobb Park 7 of 11 The FOCP shall notify the Superintendent over parks in writing at least ten (10) working days prior to the scheduled event; such notice shall include the date, time, and location of the event. Documentation of liquor liability insurance shall be provided to the City at least five business days prior to the date of the event. c. Automobile Insurance: (required throughout term of Agreement and any renewals thereof): $1,000,000.00 each accident on a combined single limit basis Automobile liability insurance must provide coverage for "any auto," which is defined to include all autos owned, hired, and non -owned for driving in connection with business activities by, for, or on behalf of FOCP. 12.03 All insurance required under this Agreement must comply with the following general requirements: a. Certificates of insurance shall be delivered to the City of Fort Worth, addressed to the attention of Park Superintendent, Parks and Community Services Department, 4200 South Freeway, Suite 2200 Fort Worth, TX 76115. b. The City's Risk Manager shall have the right to review and evaluate all required insurance coverage and to make reasonable requests or revisions pertaining to the types and limits of that coverage. FOCP and its subcontractors shall comply with such requests or revisions as a condition precedent to the effectiveness of the Agreement. c. The City its officers, employees, and servants shall be endorsed as an additional Insured on all insurance policies required under this agreement. Exception: the additional insured requirement does not apply to Workers' Compensation policies. d. All insurance policies required under this agreement shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. e. FOCP's (agent) 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. f. On the request of City, FOCP shall provide complete copies of all insurance policies required by the Agreement. Current and revised certificates of insurance shall be delivered to the Parks Reservationist of the City of Fort Worth, 4200 South Freeway, Suite 2200 Fort Worth, TX 76115with a copy to Parks Superintendent, at the Parks and Community Services Department office. g. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement specified herein. h. Insurers must be authorized to do business in the State of Texas and have a current A. M. Best rating of B: VII or equivalent measure of financial strength and solvency. i. Deductible limits, or self -funded retention limits, on each policy must not exceed $10,000.00 per occurrence unless otherwise approved by the City. Support Organization Agreement — CFW and Friends of Cobb Park 8 of 11 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, the FOCP must obtain City's written approval. k. City shall not be responsible for the direct payment of insurance premium costs for FOCP's insurance. FOCP may be required to provide proof of insurance premium payments. 1. During any terms of the Agreement, FOCP shall report to the Risk Management Division in a timely manner any loss occurrence that could give rise to a liability claim to lawsuit or that could result in a property loss. 13. NONDISCRIMINATION; DISABILITIES 13.01 FOCP, for itself, it 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 FOCP's use of the Premises on the basis of race, age, color, national origin ethnicity religion, handicap, gender, sexual orientation, transgender, gender identity, gender expression, or familial status. FOCP further agrees for itself, its personal representatives, successor's 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 ethnicity, religion, handicap, gender sexual orientation, or familial status. 14. FORCE MAJEURE 14.01 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 FOCP hereby waives any claim against City for damages by reason of such termination. 15. ASSIGNMENT 15.01 FOCP 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, FOCP 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 FOCP from any of its obligations under this Agreement. 16. NOTICES 16.01 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 on party may from time to time notify the other in writing. Any notice so given shall be deemed to have received when deposited in the United States mail so addressed with postage prepaid: Support Organization Agreement — CFW and Friends of Cobb Park 9 of 11 City: City of Fort Worth Director Parks and Community Services Department 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 FOCP: Friends of Cobb Park Attn: Cecil Collier 5200 Pershing Ave #181 Fort Worth, Texas 76116 17. SEVERABILITY, WAIVER AND SECTION HEADINGS 17.01 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 FOCP or City in connection with the rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement. 17.02 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 to City s ability to assert or rely on any such term or right on any future occasions. 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. 17.03 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. 18. ENTIRE UNDERSTANDING; MODIFICATION; CONSTRUCTION 18.01 This written instrument (including all attachments, schedules, and exhibits attached hereto) constitutes the entire understanding of the parties concerning City's and FOCP roles and obligations in regard to Cobb Park. Any prior or contemporaneous oral or written agreement that purports to vary from the terms hereto shall be void. 18.02 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. 18.03 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. 18.04 The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. Support Organization Agreement — CFW and Friends of Cobb Park 10 of 11 19. CHOICE OF LAW; VENUE 19.01 This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. 19.02 If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of the Agreement, venue for such action shall lie the state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. 20. EXECUTION 20.01 By executing this Agreement, FOCP's agent affirms that he or she is authorized by FOPC to execute this Agreement and that all representations made herein with regard to FOCP's identity, address, and legal status are true and correct. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples in Fort Worth, Tarrant County, Texas, this day of 20i CITY OF FORT WORTH Sus n Alanis ssistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler nallach Assistant City Attorney ATTEST: City Secretary No M&C REQUJED 1/49 L) FRIENDS OF COBB PARK /1 / � C By: Cecil llaei President Support Organization Agreement — CFW and Friends of Cobb Park 11 of 11