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POOL USE AND SUBSIDY AGREEMENT —SUMMER� 1
THIS POOL USE AND SUBSIDY AGREEMENT - SUMMER 2013 ("Agreement")ent ) s, 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 onpro
corporation ("YMCA"), acting by and through its duly authorized President and Chief Executive
Officer.
RECITALS
WI ER]EAS ire are effort to curtail operating costs, �ity f F Worth mill not open
municipal swimming,pools during the summer of 2013; and
WHEREAS, the YMCA of Metropolitan Fort Worth operates swimming pools for
YMCA members and has offered to make four cif`its outdoor swimming pools available for use
by non e bier residents of the City of Fart worth.
NOW THEREFORE, for and in consideration of the performance of the mutual
covenants is and assurances herein contained, the Parties do hereby covenant and mutually agree as
feillews
1. Putlies and Res onsl"h n es
1.1 YMCA
(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 24010 East Berry, Fort Worth, Texas 76 015
Eastside YMCA, 1500 Sandy Lane, Fort Werth, Texas 7611
E.R. van Zan.dt Southwest YMCA, 4750 Barwick Drive, Fort Worth, 'Texas 76132
estside YMCA, 8201 Calmont Avenue, Fort Werth lexas
OFFICIAL
Pool Use Pg�A�e`"nP— uli%mmer 2013 CITY SECRETARY Page + t`
FTe WORTH,TX
a
(b) To the extent pool capacity le its, YMCA will allow members of the public to gain
admission to the listed facilities, between the hours of2:00 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 pier 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
(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. Ter . "his Agreement shall encompass use of the listed YMCA pools for a period
beginning June 1, 2013 and ending August 17, 2013, 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
C
required to serve the anticipated increase in swimmers at the listed facilities, its agrees to pay.
Pool Use and Subsidy Agreement—Summer 2013 Page 2 of 8
the YMCA the sum of twelve thousand dollar's ($12,000), such payment to be made on or before
June 12, 2013.
4. Terml*naflon. Either Party may terminate this Agreement at any time, with or without
cause, by providing the other P' y 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
perforining same and shall be s lely responsible for the acts and omissions of its officers, agents,
servants, employees, and subcontractors. The doctrine of respondent superior shall not apply as
between the City and YMCA, its officers, agents, servants, employees, or subcontractors.
Nothing herel*n shall be construed as creating a partnershi*p or jo1nt enterprl*s,e 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. Li*abi*li*tv and Indemniffication. 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
COS TS,AND EXPENSES OF ANY KIND, INCL UDING, BUT NOT LIMITED TO, THOSE
FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO
OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL
INJURY (INCLUDING DEATH) THAT' MAY RELATE TO,, ARISE OUT OF
,v OR BE
OCCASIONED B Y(i) YMCA fS BREACH OF ANY OF THE TERMS OR PRO VISIONS OIF
THIS AGREEMENT OR (m), 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 PERFORM4NCEOF THIS AGREEMENT, THE INDEMNITY PROVIDED FOR IN
THIS SECTION SIL4LL NOTAPPL 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 Ag,reement—Surnmer 2 013 Page 3 of 8
ff-V n" A
31ATE OF TEXA S. NO THING HEREIN SHAD BE CONS TR UED A S A KA I VER OF A NY
IMMUNITY TO WHICH THE CITY IS ENTITLED UNDER ANY APPLICABLE
ST TUTOR Y OR COMMON LA W.
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 to of this Agreement, YMCA shall procure and maintain at all
times I in full force and effect, a policy or policies of insurance or a system of self-insurance
0 6 1 *de coverage
retention that YMCA in its reasonable judgment, deten-nines is necessary to provide
against any and all public risks related to YMCA's operation of a swimming pool (inclu .in , 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. Co lance 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 2 013 Page 4 of 8
This Agreement is made and entered into with reference specifically to Chapter 17,
Article 111, 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 o�fficers,,
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. R t 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 transact-ions,
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 provisi,ons, 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, perfon-nance, attempted perfon-nance of this Agreement, venue for
said action shall lie in Tarrant County, Texas.
14. Notices. Notices to be provided hereunder shall be sufficient if forwarded to the other
Party by hand-delivery or via U.S. Postal Service certified mail, postage prepaid, to the address
of the other Party shown below:
CITY: YMCA:
Richard Zavala, 'Director Tony Schuman, President/C�EO
Parks and Community Services, Dept., YMCA of Metropolitan Fort Worth
42,00 South Freeway, Suite 2200 512 Lamar Street, Suite 400
Fort Worth, Texas 76115 Fort Worthl Texas 76102
Pool Use and Subsidy Agreement—Summer 2013 Page 5 of 8
0
with c
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 to 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
to or right on any future occasion.
16. Governmental Powers. Both Parties agree and understand that the pity doles not waive
or surrender any of its governmental powers by execution of this Agreement.
17. Thi'r , Parfies. 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. Severa bil If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining, provisions shall not in
any way be affected or impaired.
19. Force MaJeure. If either Party is unable, either in whole or part, to fulfill its obligations
under this Agreement due to acts of God, strikes, lockouts, or other 'industrial disturbances, acts
of public, enernies* wars- blockades� insurrections- riotsm epidemics- public health crises-
earthquakes, fires, floods, restraints, or prohibitions by any court, board, department,
or agency of the United States or of any state- declaration of a state of disaster or of
commission, I
emergency by the federal,, state, county, or City government in accordance with applicable
0
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 2013 Page 6 of 8
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. Heafflngs not Coat ~o ii t 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 wriating, dated subsequent to the date hereof, and duly
executed by the parties hereto.
22. Ent ire Ag tee ment. 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.
Pool Use and Subsidy Agreement—Summer 2 013 Page 7 of 8
2-
SIGNED and EXECUTED TO BE EFFECTIVE as of the date set forth in Section Yof this
License.
CITY OF FORT WORTH, TEXAS YMCA OF METROPOL ITT NFORT WORTH
"usan Alanis, Tony S an
Pre i
Assistant City Mana er s'den, land Chie Ewcutive Officer
Date S 1'gned: 5" it( Date Signed:
—
ATTEST: WITNESS:
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APPROVED AS TO FORM 0000 e-
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AND LEGALITY: 'k-, 0 oe
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Tyl�ppl flach
Assistant City Attorney
No M&C Required
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