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HomeMy WebLinkAboutContract 43136cnYSEcREraay NO. � CONTRACT 3/3 u ' POOL USE AND SUBSIDY AGREEMENT — SUMMER 2012 THIS POOL USE AND SUBSIDY AGREEMENT - SUMMER 2012 ( "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 2012; 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 OFFICIAL RECORD CITY SECRETARY 1.1 YMCA FT. WORTH, TX (a) Subject to the terms and conditions expressed herein, YMCA will make 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 Pool Use and Subsidy Agreement - Summer 2012 04-19-12 Au9:45 IN Page I of (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 Sunday. (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 $2.00 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. 1.2 Gtv (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 2, 2012 and ending August 18, 2012, unless terminated earlier in accordance with Section 4. 3. Compensation. As full compensation under this Agreement and to off -set costs of employing additional lifeguards, staff to monitor and collect fees, and additional chemicals required to serve the anticipated increase in swimmers at the listed facilities, City agrees to pay Pool Use and Subsidy Agreement -- Summer 2012 Page 2 of 8 the YMCA the sum of ten thousand five hundred dollars ($10,500), such payment to be made on or before June 15, 2012. 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, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCL UDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND /OR PERSONAL INJUR Y (INCL UDING DEA TH) THAT MA Y RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (1) YMCA'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (11) ANY NEGLIGENT ACT 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 SECTION SHALL NOT APPL Y TO ANY LIABILITY RESULTING 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 Pool Use and Subsidy Agreement Summer 2012 Page 3 of 8 STATE OF TEXAS. NOTHING HEREINSHALL BE CONSTR UED ASA WAIVER OFANY IMMUNITY TO WHICH THE CITY IS ENTITLED UNDER ANY APPLICABLE STA TUTOR YOR COMMON LAW. 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. Compliance 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. Pool Use and Subsidy Agreement - Summer 2012 Page 4 of 8 This Agreement is made and entered into with reference specifically to Chapter 17, Article III, Division 3, of the City Code of the City of Fort Worth ( "Discrimination in 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. Right 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 of City 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. No_ tices. 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 of the other Party shown below: CITY: Richard Zavala, Director Parks and Community Services Dept. 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 Pool Use and Subsidy Agreement - Summer 2012 YMCA: Tony Schuman, President/CEO YMCA of Metropolitan Fort Worth 512 Lamar Street, Suite 400 Fort Worth, Texas 76102 Page 5 of 8 with copy to Matt Quinn, Senior Administrative Assistant Parks and Community Services Dept. 4200 South Freeway, Suite 2200 Fort 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 affirmative 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 Maieure 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 state; 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 Pool Use and Subsidy Agreement — Summer 2012 Page 6 of 8 ft beyond the Party's reasonable control (collectively, "Force Majeure Event "), the obligations so 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 amendment, modification, or alteration of the terms of 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. 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 day of 11 2012. CITY OF FORT WORTH, TEXAS an Alanis Assistant City Maqager, Date Signed: _atF ATTEST: M0 city S APPROVED AS TO FORM AND LEGALITY: 2 YMCA OF METkOPOLITAN FORT WORTH Tony S��man Preside}k and Chief Executive Officer Date Signed: 3 �v�ou_ _oO 01 1 0 0� O p A O aart� i A�.o��� Pool Use and Subsidy Agreement — Summer 2012 SS: NO M &C REQUIRED OFFICIAL RECORD CITY SECRETARY FT- WORTH, TX Page 7 of 8 , Tyler Wallach Assistant City Attorney No M &C Required Pool Use and Subsidy Agreement — Summer 2012 Page 8 of 8