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HomeMy WebLinkAboutContract 55839CSC No. 55839 LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND SIGMA PERFORMANCE SWIMMING THIS LICENSE AGREEMENT ("License Agreement") is made and entered into by and between the CITY OF FORT WORTH, a home-rule municipal corporation ofthe State ofTexas, acting by and through its duly authorized Assistant City Manager ("City") and SIGMA PERFORMANCE SWIMIVIING, a Texas limited liability company, acting by and through its duly authorized representative �`Licensee"). WAEREAS, the City owns and operates Forest Park Swimming Pool, located at 2850 Park Place Avenue, Fort Worth, TX 76ll0 and Marine Creek Swimming Pool ("Pools") located at 303 NW 20th Street, Fort Worth, TX 76164; WHEREAS, Licensee's mission is to encourage participation, fitness, health, and the lifelong pursuit of excellence through competitive swimming; WHEREAS, to carry out its mission, Licensee wishes to license the Pools to teach swimming lessons; and NOW THEREFORE, in consideration of the covenants and agreements contained in this License Agreement, City and Licensee hereby agree as follows: SECTION 1 LICENSED PREMISES 1.1 Licensed Premises. For and in consideration of the License Fees to be paid under this License Agreement and the agreements of the parties expressed herein, City does hereby grant to Licensee the use of For�st Park Pool as set forth in greater detail in Exhibit A, which is attached hereto and incorporated herein ("Premises"). 1.2 Condition of the Premises. Licensee agrees that Licensee has examined the Premises prior to the execution of this License Agreement and is satisfied with the physical condition of the Premises. Licensee's taking possession of the Premises shall be conclusive evidence of its receipt of the Premises in a safe, sanitary, and good condition and repair. LICENSEE AGREES TI3AT IT IS TAKING THE PREMISES IN ITS CURRENT "AS IS" CONDITION WITH NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WHATSOEVER BY CITY. Licensee assumes the risk of injury to Licensee and Program Participants for use of space within the Community Center for Licensee's Program. City makes not warranty that the Premises are suitable for Licensees intended use or Program. City will not provide fitness equipment, cones, lighting, or any other equipment for the Premises. 1.3 Any modifications to the Premises must be approved by the City and set forth in a written amendment to this License Agreement. SECTION 2 USE OF THE LICENSED PREMISES 2.1 Licensee may use the Premises for the purpose of teaching swimming lessons (the "Program") and for no other purpose. 2.2 Licensee shall have non-exclusive rights to use the Premises within the normal OFFICIAL RECORD SIGMA PERFORMANCE SWIMMING LICENSE AGREEMENT GITY SECRETARY FT. WORTH, TX operational hours in accordance with the schedule set forth in E�chibit B. All activities related to Licensee's use must be completed within the time periods set forth in the schedule in E�chibit B, including, but not limited to, set-up and clean-up. If Licensee, for any reason, holds over beyond the scheduled times set forth in E�ibit B, the City, reserves the right, in its sole discretion, to remove Licensee from the Premises or charge Licensee a fee for use of the Premises for the time period beyond that which the Premises is reserved. Any additional fee will be commensurate with that charged to other patrons of the Premises using the same space for the same amount of time and shall be paid along with the Licensee Fee in accordance with Section 4below. 2.3 Either party may request a temporary modification of the schedule set forth in E�ibit B with ten (10) days' prior written notice, but no such change will take effect without the prior written consent of both parties. Any permanent revisions to the schedule set forth in Exhibit B will require an amendment to this License Agreement. 2.4 The Premises will be unavailable for use by the Licensee pursuant to this License Agreement on all regular City holidays. Except due to emergency circumstances or Farce Majeure Events, City agrees to notify Licensee of any change in the hours of operation of the Premises by providing Licensee with written notice, within a reasonable tune priar to the change taking effect. City agrees to provide similar notice to Licensee should the Premises not be available to the Licensee due to special events, scheduled maintenance or other non-emergency closures. In the event of a change in hours or availability, such change shall not give rise to any claim against the City by the Licensee, whether for lost profits, cost, overhead, or otherwise. 2.5 Licensee may bring into the Premises any equipment reasonably necessary to further the intended use of the Premises. However, the City reserves the right to prohibit any equipment which, in the City's sole discretion, may be dangerous or harmfiil to Program Participants or thePremises. 2.6 Licensee may not use any part of the Premises for any use or purpose that violates any applicable law, regulation, or ordinance of the United States, the State of Texas, the County of Tarrant, or the City of Fort Worth, ar other lawful authority with jurisdiction of thePremises. 2.7 Licensee understands and agrees that the parking areas are not for the exclusive use of the Licensee and that the City and patrons of the Community Center may use the parking spaces at any time. 2.8 This License Agreement and all rights granted to Licensee herein are strictly non- exclusive. The City reserves the right to enter into and grant other and future licenses, leases, and other authorizations for use of the Premises to other persons and entities as the City deems appropriate in accordance with applicable law; provided, however, that in granting subsequent authorization for use, the City will not allow a use that will unreasonably interfere with the Licensee's use of the Premises as provided herein. This License Agreement does not establish any priority for the use of the Premises by the Licensee or by any present or future licensees. In the event of any dispute as to the priority of use of the Premises, the first priority shall be to the public generally, the second priority to the City in the performance of its various functions, and thereafter, as between licensees, as determined by the City in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Texas. SIGMA PERFORMANCE SWf.MMING LICENSE AGREEMENT PAGE 2 OF 20 SECTION 3 TERM OF LICEN5E 3.1 Term. Unless terminated earlier pursuant to the terms herein, the term of this License Agreement shall be effective beginning on June 1, 2021 and expire on May 31, 2022. This agreement may be renewed for two successive one-year terms upon mutual written agreement of the Parties (each a "Renewal Term"). 3.2 Holdover Tenancv. Unless terminated earlier pursuant the terms herein, this License Agreement will expire without further notice when the Term expires. Any holding over by Licensee after the Term expires will not constitute a renewal of the License Agreement or give Licensee any rights under the License Agreement in or to the Premises, except as a tenant atwill. SECTION 4 LICENSE FEE 4.1 As consideration for the rights and privileges granted hereunder for this License Agreement, Licensee covenants and agrees to pay to City a sum of Eleven-Thousand, Eight Hundred Sixty Dollars and No Cents ($11,860.00� ("License Fee") to be paid on a monthly basis. In no event shall the License Fee be reduced due to cancellation of any programs or events for any reason. Licensee shall pay the License Fee for the term on or before the tenth (10�') calendar day after the City executes this License Agreement. Please submit payment to the following address in care of the Aquatics Coordinator: 4200 S. Freeway, Suite 2200, Fort Worth, TX 76115. SECTION 5 DUTIES AND RESPONSIBILITIES 5.1 In addition to any other duties and responsibilities set forth in this License Agreement, Licensee shall: 5.1.1 Ensure that the Licensee's use of the Premises complies with any and all policies, rules, and regulations governing the use of the Premises. The City will provide a copy of any such policies, rules, and regulations within a reasonable time after request by the Licensee. 5.1.2 Not occupy the Premises beyond the times listed in ExhibitB. 5.1.3 Provide notification of changes to Licensee's use of the Premises, including cancellation but excluding Force Maj eure Events, to the City no less than 24 hours prior to the scheduled start time, according to Exhibit B. In case of Force Majeure Events, the Licensee must notify the Director promptly upon learning of such Force Maj eure Events. 5.1.4 Immediately report any maintenance ar repair needs to the City staff present on the Premises. 5.1.5 Require that each Program participant sign the Individual Waiver, Release, and Indemnity Agreement, attached hereto as Exhibit D. 5.1.6 Be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with Licensee's use of the Premises, including, but not limited to, ensuring that at least one certified swim instructor is present at alltimes. SIGMA PERFORMANCE SWIMMING LICENSE AGREEMEN'I' PAGE 3 OF 20 5.1.10 Designate a point of contact for Program administration and reporting requirements ("Program Point of Contact"). The initial Program Point of Contact shall be: SIGMA PERFORMANCE SWIlVIlVIING Andrew Ha, Director PO Box 123222 Fort Worth, Texas 76121 Phone: 714-396-1840 Email: andrew(�si�maswinunin�.org 5.1.11 Address complaints related to the Program with 24 hours of notification bythe City. 5.2 The City shall: 5.2.1 Furnish existing utilities available at the Premises, if such utilities exist, at all times, for the ordinary and intended use of such, which may include lighting and water for ordinary and intended use. If electrical power is needed, Licensee will be charged by the City for the additional cost in accordance with the City's standard reservation cost for electrical power. 5.2.2 Ensure the Premises is suitable for its intended purpose. 5.2.3 Provide staff to lock and unlock the Center and arm and disarm any security system. 5.2.4 Ensure that a City employee is present at the Premises at all times during Licensee's use. 5.2.5 Designate a City employee to serve as the point of contact for Program administration and reporting requirements ("City Point of Contact"). The initial Ciry Point of Contact shallbe: Cory M. Stuhmer, Athletic Coordinator Park & RecreationDepartinent 4200 S. Freeway, Suite 2200 Fort Worth, Texas 76115 Office: (817) 392-8201 Email: cory.stuhmer(cr�,fortworthtexas. o�v 5.2.6 As soon as is reasonably practical, notify Licensee, through its Program Point of Contact, of any closure of the Premises. 5.2.7 Notify Licensee, through its Program Point of Contact, of all complaints received related to the Program. SECTION 6 LIEN5 6.1 Licensee acknowledges that it has no authority to engage in any act ar to make any contract that may create or be the foundation for any lien upon the property or interest in the property of City. If any such purported lien is created or filed, Licensee will not permit it to remain, and will, at its cost and expense, promptly discharge, all liens, encumbrances, and charges upon the Premises or a part SIGMA PERFORMANCE SWIMIvIING LICENSE AGREEMENT PAGE 4 OF 20 thereof, arising out of the use or occupancy of the Premises or a part thereof by Licensee, by reason of any labor or materials furnished or claimed to have been furnished, by, through, or under Licensee, by reason of any construction, improvement, alteration, addition, repair, or demolition of any part of the Premises. Licensee's failure to discharge any such purported lien shall constitute a breach of this License Agreement and City may terminate this License Agreement upon thirty (30) days written notice. However, Licensee's financial obligation to City to liquidate and discharge such lien shall survive following termination of this License Agreement and until such a time as the lien is discharged. SECTION 7 CARE OF THE LICENSED PREMISES 7.1 Licensee, at Licensee's own expense, shall keep the Premises and maintain all equipment and other properties of City in a safe, sanitary, sightly condition and in good repair during its use of the Premises; provided, however, the faregoing shall not be constrtted to require the Licensee to provide general janitorial services at the Premises. Licensee shall restore and yield said Premises, equipment, and all other properties belonging to the City back to City, at the expiration of each scheduled time set forth in E�chibit B, in good or better condition as they existed at the beginning of each scheduled time set forth in E�ibit B and in which Licensee found them. This shall only apply during such time as the Licensee has use of the Premises as set forth in this License Agreement. 7.2 Licensee will not do, or permit to be done, any injury or damage to the Premises, or any parts thereof, or permit to be done anything that will damage or change the finish or appearance of the Premises or the furnishings thereof or any other property belonging to the City by the erection or removal of equipment or any other improvements, alterations or additions. No decorative or other materials shall be nailed, tacked, screwed or otherwise physically attached to any part of the Premises or to any of the furnishings or fixtures of the City without the prior written consent of theDirector. 73 Subject to ordinary wear and tear and to the extent allowed by law, Licensee will pay the costs of repairing any damage that may be done to the Premises or any of the fixtures, furniture or furnishings by any act of Licensee or any of Licensee's officers, representatives, servants, employees, agents, invitees, Program Participants, or anyone visiting the Premises upon the invitation of the Licensee. The City shall determine, in its reasonable discretion, whether any damage has occurred, the amount of the damage, the reasonable costs of repairing the damage, and whether, under the terms of the License Agreement, the Licensee is responsible. The quality of the maintenance of the Premises, furnishings, fixtures or furniture by the Licensee shall be reasonably acceptable to the City. The costs of repairing any damage to the Premises shall be immediately due and payable by the Licensee upon Licensee's receipt of a written invoice fromCity. SECTION 8 FORCE MAJEURE 8.1 If either party is unable, either in whole or part, to fulfill its obligations under this License Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; pandemics and 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; issuance of an Imminent Threat Alert ar Elevated Threat Alert by the United States Deparhnent of Homeland Security or any equivalent alert system that may be instituted by any agency of the United States; 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 only during the continuance of such Force Majeure Event. If a Force Majeure Event occurs, the City may, in its sole discretion, close or SIGMA PERFORMANCE SWIMMNNIIIIG LICENSE AGREEMENT PAGE 5 OF 20 postpone the opening of its community centers, parks, or other City-owned and operated properties and facilities in the interest of public safety and operate them as the City sees fit. Licensee hereby waives any claims it may have against the City for damages resulting from any such Force Majeure Event. 5ECTION 9 LIABILITY AND INDEMNIFTCATION 9.1 TO THE EXTENT ALLOWED BY LAW, LICENSEE SH.ALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE AND PERSONAL INJCTRY OF ANY HIND OR CHARACTER, WFIETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY TFIE NEGLIGENT ACT(S) OR ONIISSION(S), MALFEASANCE OR INTENTIONAL NIISCONDUCT OF LICENSEE, OR ITS DIltECTORS, OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, CONTRACTORS, EMPLOYEES, PATRONS, GUESTS, INVITEES, PROGRAM PARTICIPANTS, OR SUBLICENSEES. LICENSEE HEREBY EXPRESSLY RELEASES AND DISCAARGES CITY FROM ANY AND ALL LIABII,ITY FOR ANY DAMAGE, INCLUDING, BUT NOT LIlVIITED TO, PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIltECTLY, THE OCCUPANCY AND USE OF TAE PREMISES AND A.NY AND ALL ACTIVITIES CONDUCTED THEREON SU5TA.INED BY REASONS OF THE OCCUPANCY OF SAID PREMISES UNDER THIS LICENSE AGREEMENT. 9.2 INDEMNIFICATION — LICENSEE, AT NO COST TO THE CITY, AGREES TO AND DOES HEREBY DEFEND, INDENINII�'Y, PROTECT, AND HOLD HAFLII�ES5 CITY AND CITY'S OFFICERS, REPRESENTATIVE5, AGENTS EMPLOYEES, ANll SERVANTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES (INCLUDING, BUT NOT LIlVIITED TO, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATIOl�, OF ANY NATURE, HIND OR DESCRIPTION ARISING OR ALLEGED TO ARISE BY REASON OF INJiJRY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY (1) RELATING TO THE USE OR OCCUPANCY OF THE PREMISES BY LICENSEE OR ANY OF ITS OFFICERS, ' REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, PATRONS, GiTESTS, SUBLICENSEE5, PROGRAM PARTICIPANTS, OR INVITEES; (2) BY REASON OF ANY OTHER CLAIlVI WHr�TSOEVER OF ANY PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR OMISSION ON THE PART OF LICENSEE OR ANY OF ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, PATRONS, GUESTS, SUBLICENSEE5, PROGRAM PARTICIPANTS, OR INVITEES OR OF ANY OTHER PERSON ENTERING UPON TAE PRENIISES WITH THE EXPRESS OR IlVIPLIED INVITATION OR PERMISSION OF LICENSEE; OR (3) BY ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF LICENSEE UNDER TFIIS LICENSE AGREEMENT (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUATABLE TO A.NY ACT, ONIISSION, NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT, INTENTIONAL CONDUCT, VIOLATION OF STATUTE OR COMMON LAW, BREACH OF WARRANTY, PRODUCT DEFECT, STRICT PRODUCT LIABILITY, OR ANY OTHER ACT, ONIISSION, OR CONDITION WAATSOEVER OF THE CITY OR ITS PROPERTY. 9.3 If any action or proceeding shall be brought by ar against the City in connection with any such liability or claim, Licensee, on notice from City, shall defend such action or proceeding at Licensee's expense, by or through attomeys reasonably satisfactory to City. SIGMA PERFORMANCE SWIMIvIING LICENSE AGREEMENT PAGE 6 OF 20 9.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligations under this Section, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with therequirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 9.5 Licensee agrees to notify City promptly upon the receipt of any claim ar lawsuit brought in connection with any injury, death, ar damages on the Premises. Licensee agrees to make its officers, representatives, agents, and employees available to City, at all reasonable times, for any statements and case preparation necessary for the defense of any claims or litigation for which City may be responsible hereunder. Licensee shall place language in its contracts with contractors and subcontractors that contractars shall notify City as required by Licensee in this subsection. 9.6 Licensee shall require all of its subcontractars to include in their subcontracts liability and indemnification language in favor of the City in substantially the same form asabove. SECTION 10 AUDIT 10.1 Licensee agrees that the City shall, until the expiration of three (3) years after the ternunation or expiration of this License Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of Licensee involving transactions relating to this License Agreement. Licensee agrees that the City shall have access during normal working hours to all necessary Licensee 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 Licensee reasonable advance notice of intended audits. 10.2 Licensee further agrees to include in any contractor and subcontractor agreements hereunder a provision to the effect that the contractor and subcontractors agree that the City shall, until the expiration of three (3) years after the expiration ar termination of the contract or subcontract, have access to and the right to examine any directly pertinent books, documents, papers, and records of such contractor or subcontractor involving transactions of the contract or subcontract, and further that City shall have access during normal working hours to all contractor and subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give the contractar and subcontractor reasonable advance notice of intended audits. SECTION 11 CAARITABLE IlVIl�ZiTNITY 1 L 1 Licensee agrees that if it is a charitable organization, corporations, entity or individual enterprise having, claiming or entitled to any immunity, exemption (statutory or otherwise) or limitation from and against liability for damage ar 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 Licensee hereby expressly waives its right to assert or plead defensively any such immunity or limitation of liability as against City. Copy of the documentation stating this organization's status is due annually to the address specified for Park & Recreation Department in notice provision of this License Agreement. SIGMA PERFORMANCE SWIIvII�RNG LICENSE AGREEMENT PAGE 7 OF 20 SECTION 12 TERD�IINATION 12.1 This License Agreement may be terminated without cause by the Licensee upon thirty (30) days' written notice of such intent to terminate being delivered to the City. This License Agreement may be ternunated without cause by City immediately upon written notice to Licensee of such intent to terminate. 12.2 Gratuities. City may terminate this License Agreement if it is found that gratuities in the form of entertainment, gifts or otherwise were offered ar given by Licensee or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any deterrriinations with respect to the performance of this License Agreement. In the event this License Agreement is canceled by the City pursuant to this section, City shall be entitled, in addition to any other rights and remedies, to recover from Licensee a sum equal in amount to the cost incurred by Licensee in providing such gratuities. 12.3 Fiscal Fundin� Out. Notwithstanding anything to the contrary, if, for any reason, atany time during the term of the License Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this License Agreement, the City may terminatethe portion of the License Agreement regarding such obligations to be effective on the last of (i) ninety (90) calendar days following delivery by the City to Licensee of written notice of the City's intention to terminate; ar(ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this License Agreement. 12.4 Licensee's Duties Upon Expiration or Termination. 12.4.1 Prior to the effective date for expiration or termination of this License Agreement, Licensee shall promptly remove all of its personal property; provided, however, Licensee shall not be obligated to remove any fixtures. Licensee shall also repair any Licensee-caused damage to the Premises, including, but not limited to, any damage that Licensee causes during removal of Licensee's property, to the reasonable satisfaction of the Director. 12.4.2 If Licensee fails to comply with its obligations in this Section, City may, at its sole discretion, (i) remove Licensee's personal property and otherwise repair the Premises and invoice Licensee for City's costs and expenses incurred, such invoice to be due and payable to City within thirty (30) calendar days of its delivery to Licensee; ar(ii) following no less than thirty (30) calendar days prior written notice to Licensee, take and hold any Licensee personal property as City's sole property; or (iii) pursue any remedy at law or in equity available to City. If Licensee fails to surrender the Premises to City following termination or expiration, all liabilities and obligations of Licensee hereunder shall continue in effect until such is surrendered. 12.4.3 Upon termination, all funds owed to the City shall be due and payable by the tenth (l Oth) calendar day after the effective date of termination, unless stated otherwise in this License Agreement. 12.5 Other Remedies. Any teiniination of this License Agreement as provided in this License Agreement will not relieve Licensee from paying any sum or sums due and payable to City under this License Agreement that remains unpaid and due at the time of termination, or any claim for damages then or previously accruing against Licensee under this License Agreement. Any such termination will not SIGMA PERFORMANCE SWIIvINNIIIIG LICENSE AGREEMENT PAGE 8 OF 20 prevent City from enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law, or from recovering damages from Licensee for any default under the License Agreement. All City's rights, options, and remedies under this License Agreement will be construed to be cumulative, and not one of them is exclusive of the other. City may pursue any ar all such remedies or any other remedy or relief provided by law, whether or not stated in this License Agreement. No such termination shall relieve City from any obligation it may have to Licensee hereunder and City maypursue any and all rights and remedies or relief provided by law, whether or not stated in this License Agreement. SECTION 13 " RIGHT OF ENTRY AND INSPECTION 13.1 In licensing the Premises, City does not relinquish the right to control the managementof the Premises, or the right to enforce all necessary and proper rules for the management and operation of the same. After receiving notice sent by City at least 24 hours in advance, Licensee must permit City or its agents, representatives, or employees to enter the Premises for the purposes of inspection; determining whether Licensee is complying with this License Agreement; maintaining, repairing, or altering the Premises; or any other reasonable purpose. During any inspection, City may perform any obligations that City is authorized ar required to perform under the terms of this License Agreement or pursuant to its governmental duties under federal state or local laws, rules or regulations. In the event of an emergency, no advance notice from City isrequired. SECTION 14 LICENSES AND PERMITS 14. 1 Licensee shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for its operations. SECTION 15 NOTICES 15.1 All notices required or permitted under this License Agreement, except for notifications required to be given to a City Point of Contact or Program Point of Contact, may be given to a party by receipted overnight courier (such as Federal Express or UPS) or by United States certified mail, return receipt requested, addressed to such party at the address stated below or to such other address as one party may from time-to-time notify the other in writing. Any notice so given shall be deemed to have been received when deposited in the United States mail so addressed with postageprepaid: CITY: City of Fort Worth Park & RecreationDirector 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 With copies to: LICENSEE Sigma Performance Swimming Andrew Ha, Director PO Box 123222 Fort Worth, Texas 76121 City of Fort Worth Attn: Assistant City Attorney and Assistant CityManager 200 Texas Street Fort Worth, Texas 76102 Or to such other address as such party may hereafter designate by notice in writing addressed and mailed or delivered to the other partyhereto. SIGMA PERFORMANCE SWIIvIIvIING LICENSE AGREEMENT PAGE 9 OF 20 SECTION 16 NON-DISCRIlVIINATION 16.1 Licensee shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria, and Licensee represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. 16.2 In the event of Licensee noncompliance with the nondiscrimination clauses of this License Agreement, which is not cured within ninety (90) calendar days of notice of such noncompliance, this License Agreement may be canceled, terminated, or suspended in whole or in part, and Licensee may be debarred from further agreements with City. SECTION 17 VENUE AND CHOICE OF LAW 17.1 Licensee and City agree that this License Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law ar'in equity, arises on the basis of any provision of this License 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. SECTION 18 THIRD-PARTY RIGHT5 AND ASSIGNMENTS 18.1 The provisions and conditions of this License Agreement are solely for the beneiit of the City and Licensee, and any lawful assign or successor of Licensee, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 18.2 Licensee agrees that it will not subcontract or assign all or any part of its rights, privileges or duties hereunder without the prior written consent of the City, and any attempted subcontract or assignment of same without such prior consent of the City shall bevoid. 5ECTION 19 BINDING COVENANTS 19.1 Subject to the limitations contained herein, the covenants, conditions and agreements made and entered into by the parties hereunder are declared to be for the benefit of and binding on their respective successors, representatives and permitted assigns, ifany. SECTION 20 INDEPENDENT CONTRACTOR 20.1 It is expressly understood and agreed that Licensee and its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers shall operate as independent contractors as to all rights and privileges and work performed under this License Agreement, and not as agents, representatives or employees of the City. Subject to and in accordance with the conditions and provisions of this License Agreement, Licensee shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Licensee acknowledges that the doctrine of respondeat superior shall not apply as between the City and its officers, SIGMA PERFORMANCE SWIIvIIvIIIJG LICENSE AGREEMENT PAGE 10 OF 20 representatives, agents, servants and employees, and Licensee and its employees, representatives, agents, servants, officers, contractors, subcontractors, and volunteers. Licensee further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Licensee. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Licensee or any employees, representatives, agents, servants, o�cers, contractors, subcontractors, and volunteers of Licensee. Neither Licensee, nor any officers, agents, servants, employees or subcontractors of Licensee shall be entitled to any employment benefits from the City. Licensee shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of employees, representatives, agents, servants, officers, coniractors, subcontractors, and volunteers. SECTION 21 AMENDMENTS, CAPTIONS, AND INTERPRETATION 21.1 Except as otherwise provided in this License Agreement, the terms and provisions of this License Agreement may not be modified or amended except upon the written consent of both the City and Licensee. 21.2 Captions and headings used in this License Agreement are for reference purposes only and shall not be deemed a part of this License Agreement. 21.3 In the event of any dispute over the meaning or application of any provision of this License Agreement, this License Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this LicenseAgreement. SECTION 22 GOVERNMENTAL POWERS AND INIIVIUNITIES 22.1 It is understood that by execution of this License Agreement, the City and Licensee does not waive or surrender any of its governmental powers or immunities. SECTION 23 AUTHORIZATION AND COUNTERPARTS AND ELECTRONIC SIGNATURES 23.1 By executing this License Agreement, Licensee's agent affirms that he or she is authorized by Licensee to execute this License Agreement and that all representations made herein with regard to Licensee's identity, address, and legal status are true andcorrect. 23.2 This License Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via soflware such as Adobe Sign. SECTION 24 SEVERABII,ITY AND NO WAIVER 24.1 It is agreed that in the event any covenant, condition or provision herein contained 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 does not materially prejudice either Licensee or City in connection with the right and obligations contained in the valid covenants, conditions or provisions of this License Agreement. SIGMA PERFORMANCE SWIMMING LICENSE AGREEMENT PAGE ll OF 20 24.2 The failure of either party to insist upon the performance of any term or provision of this License Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. SECTION 25 COMPLIANCE WITH LAWS 25.1 This License Agreement is subject to all applicable federal, state and local laws, ardinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. 25.2 If City notifies Licensee ar any of its o�cers, agents, employees, contractors, subcontractors, licensees, volunteers, or invitees of any violation of such laws, ordinances, rules or regulations, Licensee shall immediately desist from and correct theviolation. SECTION 26 SOLE AGREEMENT 26.1 This License Agreement, including any exhibits attached hereto and any documents incorporated herein, contains the entire understanding and agreement between the City and Licensee, and any lawful assign and successor of Licensee, as to the matters contained herein. Any priar or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this LicenseAgreement. SECTION 27 INIlVIIGRATION NATIONALITY ACT 27.1 Licensee must verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Licensee must provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Licensee must adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Licensee employee who is not legally eligible to perform such services. LICENSEE MUST INDEMNIFY CITY AND HOLD CITY A��2NII,ESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY INSTRUCTOR, INSTRUCTOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Licensee, will have the right to immediately terminate this Agreement for violations of this provision by Licensee. SECTION 28 BOYCOTTING ISRAEL PROHIBITED 28.1 If Licensee has fewer than 10 employees or the Agreement is for less than $100,000, this section 28.1 does not apply. Licensee acknowledges that in accordance with Cbapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" will have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Licensee certifies that Licensee's signature provides written verification to City that Licensee: (1) does not boycott Israel; and (2) will not boycott IsYael during the ternt of the Agreemen� SIGMA PERFORMANCE SWiIvIMING LICENSE AGREEMENT PAGE 12 OF 20 IN WITNESS WHEREOF, the parties have executed this License Agreement in multiples in Tarrant County, Fort Worth, Texas to be effective on the date set forth in Section 3. CITY OF FORT WORTFI: Y�Ce�ie- YV' " t� B Valerie Washington (Jun 11, 2 108:47 CDT) Y� Valerie Washington Assistant City Manager Date: J U I�1 11� 2021 CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Z�;�%�� By. Cory M. hmer (Jun 10, 202111:36 CDT) Cory Stuhmer, Athletic Coordinator Park & Recreation Department APPROVAL RECOMMENDED: �GGI��ZGivG�'�' By: Richard Zavala (Jun 10, 202111:47 CDT) Richard Zavala, Director Park & Recreation Department By. Sandra Youn o d(Jun 7, 2021 10:24 CDT) Sandra Youngblood, Assistant Director Park & Recreation Department APPROVED AS TO FORM AND LEGALITY: /1�^� By; Nico Arias (Jun 10, 20211525 CDT) Nico Arias Assistant City Attorney CONTRACT AUTI30RIZATION: M&C: N/A ) ' �6 ��v��v_-i�:� B�. 1 Kelli Pickard, Assistant Director Park & Recreation Department ATTEST: � /�`�/ , : — Mary Kayser City Secretary LICENSEE: SIGMA PERFORMANCE SWIMMING f�h��'B�t/ l�"q �jy.Andrew Ha (Jun 10, 202110:39 CDT) Andrew Ha Director SIGMA PERFORMANCE SWIIvIIvIING LICENSE AGREEMENT [�l�y[yI�\�:ZXK�7:�] GITY SECRETARY FT. WORTH, TX E��IT A PREMISES Forest Park Pool located at 2850 Park Place Avenue, Fort Worth, T`X 76110: �:_ .�.� �;: _ <- - E :�5 � � � ,� ti'�i'�,��� _iz. .i_ �i�i�i �_ � Marine Park Pool located at 303 NW 20th Street, Fort Worth, TX 76164: �.- _. _ —__ ___ _�) � ;,,,,. � - - _ . � " . i�F' ���-, " � '':�`- e'T. � ��i; -_-'a � : -'� _ . ,� ` . _ r�t. '� i��� - � ' - _ `'� � _ �---`- ` ( i - _ ,_ �-.+f _ r � l� a- _ _ ,� , , .-�� � � 1C�-' �*. _ .. � � 1 �� -�-� - ~ ) � -d _ �'! -. �,I1`�\ � —� - . � v.�_ _ �.. ��,r— i' ��_ � � • '�- � �� � � � ' r# �� � ft � ,3 �._� �• I� � F� � �. I ., � � . ..� �� !' :_ �T:� --. . . � I � � � i i-, �T -; � � � t � � .i �'ju I��'' I .��,il �� �� �,�, ', I . p_'_ I . � _ , � .� '� ' � �.� _ C �i � . `�. ,4 �_ �a s � ( __ ;,�_.; � . 31 v-. � .}�F SIGMA PERFOItMANCE SWIMn�IING LICENSE AGREEMENT PAGE 14 OF 20 .11: : 177�7� PROGRAM: Swim Lessons SCOPE OF SERVICE: Sigma Performance Swimming will provide patrons with our nationally-ranked curriculum. We will offer our 10-level, 4-tiered safety, skill, and performance curriculum. The program will be offered at Forest Park Pool (FP) or Marine Park Pool (MP) on the days and times as outlined: LOCATION START END START END START END DAY TIME TIME TIME TIME TIME TIlV� Mon FP 6:30 AM 8:30 AM 9:00 AM 12:00 PM 6:30 PM 9:00 PM Tue FP 6:30 AM 8:30 AM 9:00 AM 12:00 PM 6:30 PM 9:00 PM Wed FP 6:30 AM 8:30 AM 9:00 AM 12:00 PM 6:30 PM 9:00 PM Thu FP 6:30 AM 8:30 AM 9:00 AM 12:00 PM 6:30 PM 9:00 PM Fri FP 6:30 AM 8:30 AM Sat LOCATION START END TIME DAY TIME Mon MP 9:00 AM 12:00 PM Tue MP 9:00 AM 12:00 PM Wed MP 9:00 AM 12:00 PM Thu MP 9:00 AM 12:00 PM Fri S at SIGMA PERFORMANCE SWIIvIIvIING LICENSE AGREEMENT PAGE 15 OF 20 EX�IT C INSURANCE 1. City Insurance. 1.1 Blanket Accident Insurance. Licensee acknowledges that City carries a blanket accident insurance policy ("Accident Policy") that provides first party insurance coverage to Licensee in the event of a covered loss. This Accident Policy will be excess to any other insurance policies that the Licensee carries. Licensee is responsible for reading and understanding the entire Accident Policy, including, but not limited to, any exclusions to coverage. 1.2 Commercial General Liabilitv. Licensee acknowledges that the City also carries limited participant liability coverage for certain designated sport or athletic contests or e�ibitions under its commercial general liability insurance policy ("City CGL Policy"). The City CGL Policy is intended to protect the City from third-party claims for personal injury and property damage. Licensee is responsible for reading and understanding the entire City CGL Policy, including, but not limited to, any exclusions to coverage. If the Program is excluded from coverage or not covered for any reason under the City CGL Policy, then Licensee will provide or caused to be provided the commercial general liability insurance set forth in section 2 of this E�ibit B. Each Program Participant is required to pay City the applicable fee associated with maintaining such insurance coverage prior to beginning the Program. Licensee is responsible for ensuring that each Program Participant has fully paid the City the applicable fee, which will be in addition to any Program Fees. 1.3 Claims. Licensee will be responsible for ensuring that any claim under the Accident Policy and City CGL Policy are properly reported to City and that all necessary paperwork is completed and submitted to appropriate entity in a timely manner. 1.4 Liabili . City's liability, if any, to Licensee under this Agreement will be limited to the maximum amounts payable under the Accident Policy or City CGL Policy, as applicable. To the extent that the City incurs any liability outside of the Accident Policy or the City CGL Policy limits attributable to Licensee or Licensee's representatives, agents, Program Participants, contractors, or anyone acting on behalf of or for Licensee, then Licensee hereby agrees to INDEMNg'Y, HOLD AARM i,ES5, AND DEFEND THE CITY IN ACCORDANCE SECTION 9 OF THIS AGREEMENT. City will not be liable to Licensee for any claims, damages, or losses beyond the policy limits stated in the Accident Policy, City CGL Policy, or for any excluded coverages, and Licensee hereby forever waives any such claims against the City. 2. Licensee -Provided Insurance. In the event that the Program being conducted by the Licensee is excluded or not covered by the City's CGL Policy referenced above, Licensee will furnish to City, in a timely manner, but not later than the start of the term of this Agreement, certificates of insurance as proof that the policies of insurance specified herein have been purchased. Licensee is solely responsible for reviewing the City's CGL Policy and determining whether its Programs are covered under the City CGL Policy. If City has not received such certificates by such date, Licensee will be in default of the Agreement and City may, at its option, terminate the Agreement immediately and without penalty. Licensee will maintain or cause to be maintained the following coverages and limits thereof. 2.1 CoveraEes and Limits i. Commercial General Liabilitv (CGL) Insurance a. $1,000,000 each occurrence b. $2,000,000 aggregate limit ii. Business Automobile Liability Insurance a. $1,000,000 each accident on a combined single limit or $250,000 Property Damage $500,000 Bodily Injury per person per occurrence b. Insurance policy will be endorsed to cover "Any Auto", defined as autos owned, SIGMA PERFORMANCE SWIIvINNIIIJG LICENSE AGREEMENT PAGE 16 OF 20 hired, and non-owned when said vehicle is used in the course of the event Licensed herein. iii. Accident Covera2e a. 1,000,000.00 each occurrence b. 2,000,000.00 aggregate c. $2,500.00 minimum dental benefits d. $50,000.00 minimum death benefit to the estate of the deceased e. $100,000.00 minimum hospitalization and medical bills benefits of an injured Program Participant, with a maximum deductible of $250.00 £ $25,000.00 minimum benefits for the loss of one hand, one foot or sight of one eye of an injured Program Participant g. $12,500.00 minimum benefits far the loss of index finger and thumb of same hand of an injured student h. This policy will cover all Program Participants and provide comprehensive bodily injury, dental, and death coverage and coverage while traveling in any automobile used to transport Program Participants to and from the Program. iv. Workers' Compensation Insurance a. Part A: Statutory Limits b. Part B: Employer's Liability 1. $100,000 each accident 2. $100,000 disease-each employee 3. $500,000 disease-policy limit c. Licensee will not be required to carry the required workers' compensation insurance if Licensee does not employ at least one full time employee. 2.2 Additional Requirements i. Such insurance amounts will be revised upward at City's reasonable option and no more frequently than once every six (6) months, and Licensee will revise such amounts within thirty (30) calendar days following notice to Licensee of such requirements. ii. Where applicable, insurance policies required herein will be endorsed to include City as an additional insured as its interest may appear. Additional insured parties will include employees, representatives, officers, agents, and volunteers of City. iii. The Workers' Compensation Insurance policy will be endorsed to include a waiver of subrogation, also referred to as a waiver of rights of recovery, in favor of City. Such insurance will cover employees performing work on any and all projects. Licensee will maintain coverages, if applicable. iv. Any failure on part of City to request certificate(s) of insurance will not be construed as a waiver of such requirement or as a waiver of the insurance requirements themselves. v. Insurers of Licensee's insurance policies will be licensed to do business in the state of Texas by the Department of Insurance or be otherwise eligible and authorized to do business in the state of Texas. Insurers will be acceptable to City insofar as their fmancial strength and solvency and each such company will have a current minimum A.M. Best Key Rating Guide rating of A-: VII or other equivalent insurance industry standard rating otherwise approved by City. vi. Unless otherwise stated herein or approved by City, deductible limits on insurance policies will not exceed $10,000 per occurrence. SIGMA PERFOItMANCE SWIIvIIvIING LICENSE AGREEMENT PAGE 17 OF 20 vii. In the event there are any local, federal or other regulatory insurance or bonding requirements for Licensee's operations, and such requirements exceed those speci�ed herein, the former will prevail. viii. Licensee will contact the Park Director, as applicable, to determine whether any contractors or subcontractors will need to provide insurance. � SIGMA PERFORMANCE SWIMIvIING LICENSE AGREEMENT PAGE 18 OF 20 EXffiBIT D INDIVIDUAL WAIVER, RELEASE, AND INDEMNITY AGREEMENT I, , the undersigned, for myself, my heirs and assigns, hereby affirm that I am aware that my use of the Forest Park Swimming Pool, located at 2850 Park Place Avenue, Fort Worth, TX 76110 and/or Marine Creek Swimming Pool, located at 303 NW 20�' Street, Fort Worth, TX 76164 ("Pool"), has inherent risks. As a condition precedent to my use of the Pool, I confirm that I understand and accept all risks, dangers and hazards presented by my use of the Pool, and that I am choosing to use the Pool freely and voluntarily. In consideration of my being permitted to utilize the Pool, I hereby assume all risk of harm and injury to myself and others, as well as to the property of others, which may result from my use of the Pool, regardless of the cause or blame. Further, I, for myself, my heirs and assigns, in consideration of my being able to utilize the Pool, do hereby FOREVER RELEASE AND WA1VE all claims against the City of Fort Worth, its officers, agents and employees, for injuries, death or property damage which may arise from my use of the Pool. This waiver and release is intended to release and forever dischar�e the City of Fort Worth, its officers, servants, a�ents and employees from any and all claims, actions, causes of action, dama�es, losses or expenses, includin� attornev's fees whether real or asserted, of every kind or character, arisin� out of mv use of the Pool. This waiver is intended to release the Citv of Fort Worth, its of�cers, servants, a�ents and employees even if said iniuries, death or other dama�es are caused in whole or in part bv the alle�ed acts of commission, omission, ne�li�ence, �ross ne�ligence, breach of contract, intentional conduct, violation of statute or common law. breach of warranty, product defecti strict product liabilitv, or any other conduct whatsoever ofthe City, its officers, servants, agents or employees. I, for myself, and my heirs and assigns hereby assume all responsibility and liability for such injuries or damages, including death, and hereby covenant not to sue the entities and parties named above for such injuries or damages. I FURTHER AGREE TO INDEMNIFY AND DEFEND THE CITY AND HOLD TAE CITY A�1RMT ESS FROM ALL CLAIMS, TOGETFIER WITH ALL COSTS, EXPENSES, AND LEGAL FEES IN DEFENDING ALL CLAIMS DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO MY USE OF THE POOL. THIS INDEMNITY PROVISION (INCLUDING, WITHOUT LIlVIITATION, INDEMNITY FOR COSTS, EXPENSES AND LEGAL FEES) IS SPECIF'ICALLY INTENDED TO OPERATE AND BE APPLICABLE EVEN IF IT IS ALLEGED OR PROVED THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED AS A WHOLE OR IN PART BY ANY ACT, ONIISSION, NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT, INTENTIONAL CONDUCT, VIOLATION OF STATUTE OR COMMON LAW, BREACH OF WARRANTY, PRODUCT DEFECT, STRICT PRODUCT LIABILITY, OR ANY OTHER CONDUCT WHATSOEVER OF THE CITY. I REALIZE THAT BY SIGNING THIS AGREEMENT, I AM G1VING UP MY RIGHT TO SUE THE CITY FOR INJURY, DEATH OR DAMAGE I MAY SUFFER THROUGH MY USE OF THE POOL. IF ANY COURT FINDS A PORTION OF THIS AGREEMENT TO BE INVALID, THE REMAIlVDER OF THE AGREEMENT WILL NOT BE AFFECTED. SIGMA PERFORMANCE SWIIvIIvI�IING LICENSE AGREEMENT PAGE 19 OF 20 I have read this Waiver, Release, and Indemnity Agreement and fully understand its terms, provisions and conditions. I have not been influenced to any extent whatsoever by any representations or statements not contained within this agreement. I also represent that I am at least 18 years of age. Dated this day of , 2021. Participant Information Printed Name Address Signature SIGMA PERFORMANCE SWIMMIIIG LICENSE AGREEMENT PAGE 20 OF 20