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HomeMy WebLinkAboutResolution No. 02-23 CITY OF THE COLONY, TEXAS RESOLUTION NO. 0~"- A RESOLUTION OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY AND THE COLONY OFFICIAL'S ASSOCIATION FOR THE PROVISION OF UMPIRES FOR THE ADULT SOFTBALL LEAGUES; PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Manager of thc City of The Colony, Texas, is hereby authorized and empowered to execute an Agreement with The Colony Official's Association (TCOA) for the provision of umpire services for the adult softball leagues as defined in the Agreement. Section 2. That a true and correct copy of the Agreement is attached hereto and incorporated herein. Section 3. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by thc City Council of thc City of The Colony, Texas this 3rd day of June .2002. ~ Henville-Shannon, Mayor Patti A. Hicks, TRMC, City Secretary APPROVED AS TO FORM:' ~n Hlkel, C/~ .... omey AGREEMENT FOR CONTRACTUAL SERVICES THIS AGREEMENT is entered into the day of June, 2002, by and between the CITY OF THE COLONY, TEXAS, hereinafter referred to as CITY and The Colony Officials Association, hereinafter referred to as "TCOA". WHEREAS, CITY desires TCOA to perform certain work and services set forth in Scope of Services, marked Exhibit "A", and attached hereto and incorporated herein. WHEREAS, the TCOA has expressed a willingness to perform said work and services, hereinafter referred to only as "services", specified in said Scope of Services, and enumerated under Article II, of this Agreement. NOW, THEREFORE, all parties agree as follows: ARTICLE I GENERAL TCOA shall furnish and pay for all labor, tools, materials, equipment, supplies, transportation and management necessary to perform all services set forth in Article II hereof for the CITY in accordance with the terms, conditions and provisions of the Scope of Services, marked Exhibit "A", and attached hereto and incorporated herein for all purposes. CITY may, at any time, stop any services by the TCOA upon giving TCOA 14 days' written notice. TCOA shall be bound to CITY by the terms, conditions and responsibilities toward the CITY for TCOA'S services set forth in this Agreement. ARTICLE II SERVICES A. The following services, when authorized in writing by a Notice to Proceed, shall be performed by the TCOA in accordance with the CITY'S requirements: PREPARATION OF ALL RECRUITMENT, TRAINING AND SCHEDULING OF UMPIRES FOR THE OFFICIATING OF SOFTBALL GAMES DESCRIBED IN THE SCOPE OF SERVICES MARKED EXHIBIT "A". B. TCOA shall be responsible for the professional quality and the coordination of all services furnished by TCOA under this Agreement. TCOA shall, without additional compensation, correct or revise any errors in the training and scheduling of any umpires for the softball games. C. Neither CITY'S review, approval or acceptance of, nor payment for any of the services required under this Agreement, shall be construed to operate as a waiver if any rights under this Agreement or if any cause of action arising out of the performance of this Agreement, and TCOA shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by TCOA'S negligent performance of any of the services furnished under this Agreement. D. The rights and remedies of CITY under this Agreement are as provided by law. ARTICLE III PAYMENT A. CITY shall pay TCOA for all services authorized in writing and properly performed by TCOA on the basis herein described, subject to additions or deletions for changes or extras agreed upon in writing. B. Partial payment will be as stipulated in Exhibit "A" attached hereto and incorporated herein. C. CITY may deduct from any amounts due or to become due to TCOA any sum or sums owing by TCOA to CITY. In the event of any breach by TCOA of any provision or obligation of this Agreement, or in the event of the assertion by other parties of any claim or lien against CITY, or the CITY'S premises, arising out of TCOA'S performance of this Agreement, CITY shall have the right to retain out of any payments due or to become due to TCOA an amount sufficient to completely protect the CITY from any and all Foss, damage or expense there from, until the breach, claim or lien has been satisfactorily remedied or adjusted by the TC©A. ARTICLE IV TIME FOR PERFORMANCE A. TCOA shall perform all services as provided for under this Agreement in a proper, efficient and professional manner in accordance with the CITY'S requirements. Both parties have agreed to the provisions of this Agreement in anticipation of the orderly and continuous progress of the project through completion of the scope of services specified in Exhibit "A", attached hereto. B. In the event TCOA'S performance of this Agreement is delayed or interfered with by acts of the CITY or others, TCOA may request an extension of time for the performance of same as hereinafter provided, but shall not be entitled to any increase in fee or price, or to damages or additional compensation as a consequence of such delays unless such delays exceed 90 days. C. No allowance of any extension of time, for any cause whatever, shall be claimed or made to the TCOA, unless TC©A shall have made written request upon CITY for such extension within forty-eight (48) hours after the cause for such extension occurred, and unless CITY and TCOA have agreed in writing upon the allowance of additional time to be made. ARTICLE V DOCUMENTS A. All instruments of service (including plans for recruitment, training, scheduling, etc.) prepared under this Agreement shall be submitted for approval of the CITY. B. Such documents of service, together with necessary supporting documents, shall be delivered to CITY, and CITY shall have unlimited rights, for the benefit of CITY, in all instruments of service, including the right to use same on any other work of CITY without additional cost to CITY. If, in the event CITY uses such instruments of service on any work of CITY other than that specified in the Scope of 4 Services, attached as Exhibit "A", provided TCOA completes this Agreement, under those circumstances CITY hereby agrees to protect, defend, indemnify and hold harmless the TCOA, their officers, agents, servants and employees, from and against suits, actions, claims, losses, liability or. damage of any character, and from and against costs and expenses, including, in part, attorney fees incidental to the defense of such suits, actions, claims, losses, damages or liability on account of injury, disease, sickness, including death, to any person or damage to property including, in part, the loss of use resulting there from, arising from any inaccuracy, such use of such instruments of service with respect to such other work except where TCOA participates in such other work. C. All documents supplied to CITY as provided herein shall be in Microsoft Word or Excel form, and shall be submitted electronically whenever possible. ARTICLE VI TERMINATION A. CITY or the TC©A may suspend or terminate this Agreement for cause or without cause at any time by giving 14 days' written notice. In the event suspension or termination is without cause, payment to the TCOA, in accordance with the terms of this Agreement, will be made on the basis of services reasonably determined by CITY to be satisfactorily performed to date of suspension or termination. Such payment will be due upon delivery of final invoice to CITY. B. Should the CITY require a modification of its contract with TCOA, and in the event CITY and TCOA fail to agree upon a modification to this Agreement, CITY or the TCOA shall have the option of terminating this Agreement. Payment to TCOA shall be made by the CITY in accordance with the terms of this Agreement for the services satisfactorily completed prior to the termination date. Such payment shall be for actual costs, and shall not include any loss of profits or consequential damages of TCOA. ARTICLE VII INSURANCE A. The CITY is operating its leagues and tournaments under the sanctioning of the Amateur Softball Association, hereinafter referred to as "ASA". TCOA shall provide umpires that are certified by the ASA. TCOA will then provide the list of umpires that are certified by ASA to the city, and will not allow any umpire to officiate without the proper ASA certification. Only ASA certified umpires are covered by the ASA insurance plan. B. If an umpire is provided that is not certified by ASA, TCOA will be held liable for all expenses related to any injury or damage caused to or by the umpire assigned by TCOA. ARTICLE VIII INDEMNIFICATION FOR INJURY AND PERFORMANCF TCOA further specifically obligates itself to CITY in the following respects, to-wit: The TCOA hereby agrees to protect, indemnify and hold harmless the CITY, their officers, agents, servants and employees (hereinafter individually and collectively referred to as "lndemnitees"), from and against suits, actions, claims, losses, liability or damage of any character, and from and against costs and expenses, including, in part, attorney fees incidental to the defense of such suits, actions, claims, losses, damages or liability on account of injury, disease, sickness, including death, to any person or damage to property including, in part, the loss of use resulting there from, arising from any negligent act, error, or omission of the TC©A, its officers, employees, servants, agents or subcontractors, or anyone else under the TCOA'S, direction and control, and arising out of, resulting from, or caused by the performance or failure of performance of any work or services called for by this Agreement, or from conditions created by the performance or non-performance of said work or services. In the event one or more of the Indemnitees is determined by a court of law to be jointly or derivatively negligent or liable for such damage or injury, the TCOA shall be obligated to indemnify Indemnitee(s) as provided herein on a proportionate basis in accordance with the final judgment, after all appeals are exhausted, determining such joint or derivative negligence or liability. Notwithstanding the aforementioned, CITY is responsible for the field conditions. ARTICLE IX INDEMNIFICATION FOR UNEMPLOYMENT COMPENSATION TCOA agrees that it is an independent contractor and not an agent of the CITY, and that TCOA is subject, as an employer, to all applicable Unemployment Compensation Statutes, so as to relieve CITY of any responsibility or liability from treating TCOA'S employees as employees of CITY for the purpose of keeping records, making reports or payments of Unemployment Compensation taxes or contributions. TCOA further agrees to indemnify and hold CITY harmless and reimburse it for any expenses or liability incurred under said Statutes in connection with employees of TCOA. ARTICLE X INDEMNIFICATION FOR PERFORMANCF TCOA shall defend and indemnify Indemnitees against and hold CITY and the premises harmless from any and all claims, suits or liens based upon or alleged to be based upon the non-payment of labor, tools, materials, equipment, supplies, transportation and management costs incurred by TCOA in performing this Agreement. ARTICLE Xl ASSIGNMENT TCOA shall not assign or sublet this Agreement or any part thereof, without the written consent of CITY. Sale of more than 50% ownership of TCOA shall be construed as an assignment. ARTICLE XII APPLICABLE LAWS TCOA shall comply with all Federal, State, County and Municipal laws, ordinances, regulations, safety orders, resolutions and building codes, including the Americans With Disabilities Act, relating or applicable to services to be performed under this Agreement. This Agreement is performable in the State of Texas and shall be governed by the laws of the State of Texas. Venue on any suit hereunder shall be in Denton County, Texas. ARTICLE Xlll DEFAULT OF TCOA In the event TCOA fails to comply or becomes disabled and unable to comply with the provisions of this Agreement as to the quality or character of the service or time of performance, and the failure is not corrected within ten (10) days after written notice by CITY to TCOA, CITY may, at its sole discretion without prejudice to any other right or remedy: A. Terminate this Agreement and be relieved of the payment of any further consideration to TCOA except for all work determined by CITY to be satisfactorily completed prior to termination. Payment for work satisfactorily completed shall be for actual costs, and shall not include any loss of profit of TC©A. In the event of such termination, CITY may proceed to complete the services in any manner deemed proper by CITY, either by the use of its own forces or by resubmitting to others. In either event, the TCOA shall be liable for all costs in excess of the agreed compensation plan under this Agreement incurred to complete the services herein provided for and the costs so incurred may be deducted and paid by the owner out of such monies as may be due or that may thereafter become due to TCOA under and by virtue of this Agreement. B. CITY may, without terminating this Agreement or taking over the services, furnish the necessary materials, equipment, supplies and/or help necessary to remedy the situation, at the expense of the TCOA. ARTICLE XlV ADJUSTMENTS IN SERVICES No claims for extra services, additional services or changes in the services will be made by TCOA without a written agreement with CITY prior to the performance of such services. ARTICLE XV EXECUTION BECOMES EFFECTIVE This Agreement will be effective upon execution by both TCOA and CITY. ARTICLE XVI AGREEMENT AMENDMENTS This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and there are no oral understandings, statements or stipulations bearing upon the meaning or effect of this Agreement that have not been incorporated herein. This Agreement may only be modified, amended, supplemented or waived by a written instrument executed by the parties except as may be otherwise provided therein. ARTICLE XVll GENDER AND NUMBER The use of any gender in this Agreement shall be applicable to all genders, and the use of singular number shall include the plural and conversely. l0 ARTICLE XVIII NOTICES AND AUTHORITY A. The TCOA agrees to send all notices required under this Agreement to the City Manager of the City of The Colony, or his designee, at 6800 Main Street, The Colony, Texas 75056. The TCOA understands and agrees that only the City Manager or his designee has the authority to represent the CITY or bind the CITY under this Agreement. B. The CITY agrees to send all notices required under this Agreement to the TCOA at: ARTICLE XlX CLOSURE IN WITNESS WHEREOF, the parties hereto have executed this Agreement on ,,~ this the ~ day of June, 2002. CITY: TCOA: City of The Colony, Texas The Colony Officials Association City Manager 6800 Main Street Title: The Colony, Texas 75056 Address: ~ ~, Attest: City Secretary Approved as to Form: Approved as to Content: ,~orney /~ ' Department Director 12 EXHIBIT "A" 1. Scope of Services for TCOA A. To schedule and provide umpires who are in good standing of the Amateur Softball Association (hereinafter "ASA"), at all league and tournament games sponsored by the City. B. To pay officials hired by TCOA in a timely manner in accordance with the payment schedule listed below for games worked by the officials. C. To warrant that all umpires provided shall be registered and a member in good standing of the ASA, and each umpire is at all time covered by a policy of general public liability insurance obtained through the ASA. ? / D. To recruit and train members and to ensure that each member .... ~ is fully knowledgeable of current league and ASA rules and ,/" regulations. E. To provide to the City a current list of all members and Board members of the TCOA with contact information, and to keep the list updated on a regular basis. F. To provide the City with a weekly schedule of umpires 3 days in advance of games and to promptly notify the City of changes to the schedule. 2. In consideration of the foregoing agreement of the TCOA, the City agrees: A. To schedule all league and tournament games, and to promptly notify TCOA accordingly. B. To print such league schedules including therein by the city, and to provide copies of such schedules to TCOA. C. To pay TCOA in a timely manner for games worked pursuant to this agreement in accordance with the following schedule: i. $23.00 ($22.50 umpire'and $.50 admin, scheduling fee) per game for one-umpire system for slow-pitch softball. ii. $31.00 ($15/umpire and $1.00 admin scheduling fee) per game for two-umpire system for slow-pitch softball. iii. $6.50 per hour service fee for league operations that the Umpire In Chief or his designee spends on site during league play when not umpiring games. Any designee of the UIC must be a member of the Board of the TCOA. iv. Bonus paid to TCQA of $2 per game at the end of each season for all games scheduled and played in their entirety with two umpires. v. If the City cancels any game by 4:00pm, the scheduled umpire(s) will not be paid for the games not worked. vi. If on the day of any scheduled game an umpire starts a game but must call the game due to inclement weather, faulty equipment, unsafe playing conditions, etc., the umpire will be paid for games worked, not games scheduled. vii. If the umpire shows up at the field but games cannot begin to be played due to adverse weather, faulty equipment, unsafe playing conditions, etc., the umpire will be paid for one game. viii. Any changes to the league schedule due to forfeits will be reported to TCOA within 24 hours of the schedule change. Umpires will not be paid for forfeit games that are reported to TC©A with 24 hours notice unless the forfeit creates a "gap" in the schedule. The City will at all times attempt to reorganize the schedule when given notice of forfeits to eliminate "gaps", in which case officials will be paid only for games worked. ix. The City will give a minimum of 48 hours notice for any changes to the schedule as a result of rainouts, makeup games, etc. 3. Payment Schedule A. The City will pay TCOA every two weeks as invoiced by TCOA for work completed according to the pay schedule in Section 2. B. The City must receive invoices from TCOA no later than 5:00pm on the Monday of each pay week, and checks will be available for pick-up by or to be mailed to TCOA after 3:00pm on the Friday of the pay week.