HomeMy WebLinkAboutResolution No. 04-74
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 04-1 Lf
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE CITY MANAGER TO EXECUTE A
LICENSE AND USE AGREEMENT WITH THE COLONY
INSTITUTE OF AQUATICS SWIM CLUB FOR THE USE OF THE
AQUATIC PARK FOR PRACTICES AND MEETS; 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 the City of The Colony, Texas, is hereby
authorized and empowered to execute a License and Use Agreement with The Colony
Institute of Aquatics Swim Club for the use of the Aquatic Park for practices and meets.
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 the City Council of the City of The Colony,
Texas, this 13th day of September, 2004.
~JLÜ
hn Dillard, Mayor
City of The Colony, Texas
ATTEST:
,~ .
~fJJ- !N~
sf WIlson, TRMC, CIty Secretary
THE STATE OF TEXAS §
§ LICENSE AND USE AGREEMENT
COUNTY OF DENTON §
~ THIS LICENSE and USE AGREEMENT is made and entered into on this /3J'my of
. ~ 2004, by and between the CITY OF THE COLONY, TEXAS (hereinafter referred
to as "CITY"), acting by and through its City Manager, and the THE COLONY INSTITUTE OF
AQUA TICS (hereinafter referred to as "CIA"), acting by and through its duly authorized
representati ve.
WITNESSETH:
WHEREAS, the CITY owns and operates an indoor pool facility located at 5580 North Colony
Boulevard (hereinafter referred to as the "FACILITY"); and
WHEREAS, the CIA desires to utilize the FACILITY on the dates and times negotiated and
mutually agreed to (hereinafter, the "SWIM PERIOD") by the parties as
identified on Exhibits "A" and "B," which are attached hereto and incorporated
herein by reference; and
WHEREAS, the CITY and the CIA agree to enter into this License and Use Agreement for the
purposes of allowing the CIA to utilize the FACILITY under the terms and
conditions set forth herein;
NOW THEREFORE, FOR AND IN CONSIDERATION of the mutual agreements
contained herein, the parties hereto do hereby agree as follows:
1. Purpose. CITY hereby grants CIA a license, pursuant to the terms of this
AGREEMENT, for the purpose of utilizing the FACILITY during the SWIM PERIOD as
identified on the Exhibits "A" and "B," which are attached hereto and incorporated herein for all
purposes.
2. Term. The term of this AGREEMENT shall be one (I) year from the date of
execution by both parties. If after the expiration of said one-year period, the parties continue
operating as if the agreement is in effect, then said agreement shall continue from month to
month until notice of cancellation is presented by one party to the other.
3. Fee. CIA agrees to pay, on or before the fifteenth (15th) day of each month, the
City of The Colony a monthly rate of $8.00 per registered CIA swimmer in exchange for the
pool usage during the SWIM PERIOD identified in Exhibits "A" and "B". A swimmer shall be
considered "re~istered" whenever they are in good standing in accordance with the by-laws of
CIA on the 10 day of each month. CIA agrees to pay a minimum monthly pool usage rate of
$250.00 per month for all months covered within the period of this AGREEMENT and as
defined in Exhibits "A" and "B". CIA shall file a verified written report with the CITY for the
fees as established herein. No fees, expenses, or penalties will be assessed on CIA during
LICENSE AND USE AGREEMENT - PAGE 1 67275
periods of non-usage. In the event that the facility is unavailable to CIA for a period of three (3)
or more consecutive days of the SWIM PERIOD as defined in Exhibits "A" and "B", the CITY
will waive the pool usage fees for that unavailable period on a pro-rata basis, or the CITY will
offer CIA additional pool usage days, equal to that unavailable period. The fees provided for
herein shall be valid for a period of one (I) year. Such fees may be renegotiated at the end of the
one (I) year period upon mutual agreement of the parties hereto.
4. Oblil!:ations and Responsibilities. During the SWIM PERIOD, the CITY agrees
to provide the facility in a clean condition and in good working order. The CITY shall maintain
the FACILITY in accordance with the Texas Department of Health requirements. CIA agrees to
leave the facility in similar clean condition and working order during the scheduled times. CIA
shall submit to the City representative a monthly recap of daily attendance on the fourth (4th) day
following the end of each month. CIA shall maintain safety and staffing standards in accordance
with the Texas Department of Health requirements. The management and control of the
FACILITY shall remain under the CITY and at no time shall CIA direct or instruct CITY staff
5. Nel!:otiations and Schedulinl!:. During the period of this AGREEMENT the
CITY agrees to meet with CIA on or before the fifteenth (15th) day of March to negotiate
seasonal swim times. The schedule shall be negotiated and final on or before the fifteenth (15th)
day of April. The City of The Colony shall designate a representative or representatives to
conduct such negotiations
6. INSURANCE: CIA, at its cost, agrees to maintain during the term of this
Agreement commercial general liability insurance, including personal injury liability, premises
operations liability, and contractual liability, covering, but not limited to, the liability assumed
under the indemnification provisions of this Agreement, with limits of liability for bodily injury,
death and property damage or destruction of not less than $1,000,000. Coverage must be on an
"occurrence" basis, and such insurance shall provide that the issuing company waives all right of
recovery by way of subrogation against the City of The Colony in connection with any damage
covered by the policy. Such insurance shall name the City of The Colony as an additional
insured against liability from claims resulting from CIA activities, such as practices,
competitions, social activities, and fund-raising activities. CIA will furnish the City of The
Colony at the beginning of each calendar year a Certificate of Insurance evidencing coverage. If
such commercial general liability insurance contains a general aggregate limit, it shall apply
separately to The Colony Aquatic Park. CIA shall also maintain throughout the term of this
Agreement worker's compensation and employers liability insurance in the amount required by
all applicable federal and state laws."
7. Termination. . Either party may terminate this AGREEMENT after a thirty (30)
day written notice has been provided to each party to the agreement.
8. Notice. When notice is permitted or required by this AGREEMENT, it shall be in
writing and shall be deemed delivered when delivered in person or when placed, postage prepaid
in the United States mail, certified return receipt requested, and addressed to the parties at the
LICENSE AND USE AGREEMENT- PAGE 2 67275
address set forth below. Either party may designate from time to time another and different
address for receipt of notice by giving notice of such change or address.
TO THE CITY: WITH A COPY TO:
Dale Cheatham, City Manger Robert E. Hager, City Attorney
City of The Colony NICHOLS, JACKSON, DILLARD,
6800 Main Street HAGER & SMITH, LLP
The Colony, Texas 75056 1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
TO CIA: WITH A COPY TO:
9. Hold Harmless. CIA shall indemnify and hold harmless the City of The Colony,
its officials, officers, employees, and agents from and against any claims, demands, damages,
liability, expenses (including attorney's fees), fines, penalties, suits, proceedings, actions, and
causes of action of any and every kind and nature arising or growing out of, or in any way
connected with CIA's (or CIA's officers, employees, participants, agents, invitees, guests, or
swimmers) use of, or operation of the subject indoor pool facility, except for claims, demands,
damages, expenses (including attorney's fees), fines, suits, proceedings, actions and causes of
action arising from the negligent or willful act or omission of the City of The Colony or its
contractors, agents, or employees.
10. Governinl!: law. This LICENSE is governed by the laws of the State of Texas,
and venue for any action shall be in Denton County, Texas.
II. Bindinl!: effect. This LICENSE shall be binding upon and inure to the benefit of
the executing parties and their respective heirs, personal representatives, successors and assigns.
12. Entire Al!:reement. This LICENSE embodies the entire agreement between the
parties and supersedes all prior agreements, licenses, understandings, if any, relating to the
property and the matters addressed herein and may be amended or supplemented only by written
instrument executed by the party against whom enforcement is sought.
13. Lel!:al construction. The provisions of this LICENSE are hereby declared
covenants running with the property and are fully binding on all successors, heirs, and assigns of
LICENSEE who acquires any right, title, or interest in or to the property or any part thereof.
Any person who acquires any right, title, or interest in or to the property, or any part hereof,
LICENSE AND USE AGREEMENT - PAGE 3 67275
thereby agrees and covenants to abide by and fully perform the provisions of this LICENSE with
respect to the right, title or interest in such property.
EXECUTED this / ~y O~~ ,2004.
CITY OF THE COLONY, TEXAS
By: Ç) ~ cLL~
DALE CHEATHAM, CITY MANAGER
ATTEST:
By: ~J~*,-;/W~
CHRISTIE WILSON, CITY SECRETARY
EXECUTED this day of , 2004.
THE COLONY INSTITUTE OF AQUA TICS
ð -G4l:~
By: ~ . .
Name: 0' ' S· nw /. .
Title: President
LICENSE AND USE AGREEMENT - PAGE 4 67275
LICENSEE'S ACKNOWLEDGMENT
STATE OF TEXAS §
§
COUNTY OF DENTON §
This instrument was acknowledged before me on the _ day of ,2004,
by , President of The Colony Institute of Aquatics, on behalf of said
institution.
Notary Public, State of Texas
My Commission expires:
LICENSE AND USE AGREEMENT - PAGE 5 67275
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
§
COUNTY OF DENTON §
This instrument was acknowledged before me on the ß'1£y of -¥~
2004, by Dale Cheatham, City Manager of the City of The Colony, Texas, a Texas municipality, on
behalf of said municipality.
U;..t~ ,~ W~
Notary Public, State of Texas
My Commission Expires:
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LICENSE AND USE AGREEMENT - PAGE 6 67275
EXHIBIT" A"
Pool USGfze Schedule - September through Mav
With the exception of the city holidays and facility repairs, the calendar for CIA pool use during
the school year will duplicate the LISD regular class activity days. Special requests for Teacher
Workdays, City Holidays or school holidays will be worked out in advance by the CIA
representative and the Aquatic Park Manager.
Additional requests for up to two (2) Saturday classes will also be arranged in advanced by the
CIA Representative through the Aquatic Park Manager.
Pool time during the school year (except April and May) will consist of 5:00 - 7:30 P.M.,
Monday through Friday. CIA agrees to complete its classes and have the lane lines removed
from the pool no later that 7:30 P.M. Due to heavy requests from other swim activities; CIA
agrees to complete its pool use on Tuesday and Friday by 7 p.m. during the month of May.
Pool space allowances will be determined by each activity's performance statistics. The Aquatic
Park maintains the right to utilize up to two lanes for city programs in sections of the pool not
fully utilized by the CIA program. Utilization shall be defined as an average of six swimmers
per lane. Any such scheduling shall be worked out in advance by the CIA representative and the
Aquatic Park Manager.
LICENSE AND USE AGREEMENT - PAGE 7 67275
EXHIBIT "B"
Pool Usage Schedule - June through August
With the exception of the city holidays and facility repairs, the calendar for CIA pool use during
the school year will duplicate the LISD summer holiday. Special request for Aquatic Park
workdays or City Holidays will be worked out in advance by the CIA representative by the
Aquatic Park Manager.
The CIA representative through the Aquatic Park Manager will also arrange additional requests
for up to two (2) Saturday classes.
Pool time during the summer will be assigned after the spring request made by CIA on or before
March 15th of each year. The allotted usage time shall be a minimum of 48 aggregate hours per
month.
Pool space allowances will be determined by each activity's performance statistics. The Aquatic
Park maintains the right to utilize lanes for city programs in the sections of the pool not fully
utilized by the CIA program. Utilization shall be defined as an average of six swimmers per lane.
Any such scheduling shall be worked out in advance by the CIA representative and the Aquatic
Park Manager.
LICENSE AND USE AGREEMENT - PAGE 8 67275