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22-2332ORDINANCE NO. 22-2332 AN ORDNANCE OF THE CITY OF DENTON APPROVING THE PERSONAL TRAINERFACILITY USE AGREEMENT TO BE USED BETWEEN THE CITY OF DENTON PARKSAND RECREATION DEPARTMENT AND POTENTIAL PERSONAL TRAINERS TOCONDUCT PERSONAL TRAINING SERVICES IN CITY OF DENTON FACILITIES; ANDPROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton (the “City”) recognizes individuals may wish to usepersonal training services in park and recreation facilities as part of their health and fitnessactivities; and WHEREAS, the City wishes to enter into agreements with persons certified to offer these services to the community; and WHEREAS, reservation of City of Denton parks and recreation facilities and fitness programming is administered by the City of Denton Parks and Recreation Department to ensure compliance with adopted facility regulations and policies; and WHEREAS, the Personal Trainer Facility Use Agreement outlines the process, policies, and procedures by which personal trainers may provide these services to the community infacilities; and WHEREAS, the City of Denton City Council finds it is the public best interest to approvethe Personal Trainer Facility Use Agreement; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City of Denton City Council finds the recitations contained in the preamble of this ordinance are incorporated herein by reference as true and as if fully set forth inthe body of this ordinance. SECTION 2. The City Manager, or designee, is further authorized to execute on behalf of the City the Personal Trainer Facility Use Agreement, a copy of which is attached hereto as Exhibit“A“ and made a part hereof for all purposes. SECTION 3. The City Manager, or designee, is further authorized to carry out all duties and obligations to be performed by the City under the Agreement. SECTION 4. This ordinance shall become effective immediately upon its passage andapproval. The motion to approve this ordinance was made by seconded by liesh (>MiS by the following vote L - II : t3fc Nn ega and ; the ordinance was passed and approved M NJa,Abstain Absent Gerard Hudspeth, Mayor: Vicki Byrd, District 1 : Brian Beck. District 2 : Jessie Davis. District 3 : VACANT. District 4: Brandon Chase McGee, At Large Place 5 : Christ Watts, At Large Place 6: \/ 1/ 1/ 1/ \/ \/ PASSED AND APPROVED thI, th, JAh day of bM LAnA 1\\1111111/ 2023. ATTEST: ROSA RIOS, CITY SECRETARY /;„'?. aa,BY MACK REINWAND, CITY ATTORNEYAPPROVED AS TO LEGAL FORM: Page 2 of 2 DENTON Parks and Rec 321 E. McKinney St., Denton, TX 76201 • (940) 349-7218 PERSONAL TRAINER SERVICES AND FACILITY USE AGREEMENT This Agreement is hereby made and entered into by and between the City of Denton, Texas, a home-rule municipal corporation, hereinafter referred to as "City", and (hereinafter referred to as “Trainer”), to conduct personal training services in City of Denton facilities. The term of this Agreement shall commence on the “Effective Date” (as hereinafter defined) and shall end on September 30, 20 This Agreement serves a valid public purpose and is in the interest of the public. The parties, for consideration mentioned herein, hereto mutually agree as follows: This Agreement shall be construed under the laws of Texas. Venue shall be and remain in Denton County, Texas. I. SCOPE OF SERVICES By execution of this Agreement and all terms, conditions, and covenants herein, by all parties hereto, the Trainer is permitted the use of the City of Denton Parks and Recreation Facility or Facilities: a. Facility located at: b. Facility located at: c. Facility located at: d. Facility located at: Trainer agrees to abide by the conditions and responsibilities set forth in this Agreement and attached, Exhibits through The Trainer is not authorized to utilize the park space or facility until the following items have been submitted and approved by the City of Denton Parks and Recreation Department: a. A detailed schedule to include all dates and times of facility usage for the proposed activity as mutually agreed upon by the parties (Exhibit A). b. Certificate of insurance (listing the city as an additional insured). The City has a desire to protect the safety and welfare of its citizens during their participation in City-sponsored events and activities. To ensure a safe environment, Trainers are required to consent to a criminal background investigation prior to their participation as a Trainer. The City will maintain operational control of the Facility, and by way of its Parks and Recreational staff, the City will make its facilities available to the Trainer to facilitate personal training services. The Trainer is and shall at all times remain as to the City a wholly independent entity. Neither the City nor any of its officers, employees or agents shall have control over the conduct of the Trainer, except as expressly set forth in this Agreement. The Trainer shall not at any time or in any manner represent that the Trainer is in any manner an officer, employee, or agent of the City. No employee benefits shall be available to the Trainer in connection with the performance of this Agreement. Except as provided in the Agreement, the City shall not pay salaries, wages, or other compensation to the Trainer for performing services hereunder. City shall not be liable for compensation of or indemnification to the Trainer for injury or sickness arising out of use of the space or performance of approved activities hereunder. The Trainer understands and agrees this Agreement does not establish an employer-employee relationship between the City and the Trainer. No term or provision of this Agreement shall be construed as making Trainer the agent, servant, contractor, or employee of City, or making User or any of its employees eligible for the fringe benefits, such as retirement, insurance, and worker's compensation, which City provides its employees. II. USE OF FACILITY AND FEES In consideration of having the ability to utilize the Facility, the Trainer agrees to thefollowing terms and conditions: A. The Trainer shall be subject to a flat fee based on the number of locations in which the trainer would like to provide services, which shall be payable to the City of Denton. 2 a. The Trainer may request the use of classrooms or facility spaces to facilitate sessions conditioned upon Trainer’s payment of the fees outlined in Exhibit A. b. All payments owed to the City of Denton are due by the last day of each month. C.A $50 1ate fee will be applied to all payments made past the deadline. d. If late fees accrue at or exceeding $200, contract agreement will be terminated. e. Fees can be paid in person at the Recreation Facility or over the phone by contacting the Facility. B. The Trainer must facilitate all activities, and the facilitation of the activities or use of the facility space cannot be assigned nor delegated to third parties. C. The Trainer must hold a valid Adult CPR/AED Certification at all times while facilitatinga sessIon. D. The Trainer will verify all users of Trainer’s services have a valid City of Denton Recreation Center Gym membership and ensure participants properly check-in with facility staff prior to attending each session. E. The Trainer shall be responsible for ensuring all users of Trainer’s services execute a Liability Waiver form prior to attending their first session. F.The Trainer agrees to comply with all city, state, and Federal laws, and shall be responsible for monitoring participants to ensure that they comply with all applicable rules and regulations, including safety rules and park space and facility rules, attached as Exhibit B and incorporated herein by reference, and the PARD Code of Conduct and Antibullying Policy as attached as Exhibit C and incorporated herein by reference. G. The Trainer agrees to facilitate and operate all activities in the safest manner possible and to report all accidents or incidents immediately to management of the Facility. H.The Trainer shall assume responsibility for proper use and care of Parks and Recreation equipment, the facilities and/or grounds and must exercise reasonable diligence and care to ensure that all equipment is left in an operational state for its intended purpose. Broken, damaged, or unsafe equipment should be immediately reported to department staff and not used until repaired to a safe working condition. I. After every use of the Facility, the Trainer is required to maintain cleanliness of the Facility and the equipment within the Facility. 3 J. The Trainer agrees not to store any equipment on City premises upon the conclusion ofeach session. III. TERMINATION A. The City may terminate this Agreement for cause if the Trainer violates any covenants, agreements, or guarantees of this Agreement, or the Trainer violates any law or regulation to which it is bound under the terms of this Agreement. Willful failure to comply with any condition herein will justify termination of this agreement. Cause shall also include but is not limited to: Trainer’s arrest or conviction of any criminal offense, being charged with any felony or Class A or Class B misdemeanor, or with any level of crime of moral turpitude or involving family violence, failure or refusal to comply with the written policies of the City, or misconduct. B. If a Trainer is determined eligible for affiliation and is later arrested or convicted of any of the listed above, they are required to notify the City immediately and they will be removed immediately as a Trainer until the case has been finally adjudicated. Failure to notify the City of any arrests or convictions from the list above will result in the immediate termination of the Agreement and make the Trainer ineligible to enter into a new Personal Trainer Facility Use Agreement for a minimum of twelve (12) months beginning on the date the failure to notify was discovered or the case has been finally adjudicated, whichever is the later. C. Either party may terminate this Agreement for any other reasons not specifically enumerated in this paragraph upon giving thirty (30) days written notice. Once terminated, the parties shall have no further obligations to each other except Trainer shall pay for any damages or liabilities that resulted from Trainer’s services or acts and shall indemnify City as provided for in this Agreement. IV. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. The Trainer shall comply with all applicable equal employment opportunity and affirmative action laws or regulations, including but not limited to the following: rights laws, as amended: Title VI of the Education Amendments of 1 972; Section 504 of the Rehabilitation Act of 1 973; the Age Discrimination Act of 1975; and the Americans with Disabilities Act. B. The Trainer will furnish all information and reports requested by City for purposes of conducting an investigation to ascertain compliance with local, State, and Federal rules and regulations or responding to any complaints related to laws related to rights of individuals. 4 C. In the event ofnoncompliance by the Trainer with the nondiscrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and the Trainer may be barred from further contracts with City. V. WARRANTIES The Trainer represents and warrants that: A. None of the provisions herein contravenes or is in conflict with the authority under which the Trainer is doing business or with the provisions of any existing indenture or agreement of the Trainer. B. The Trainer has the power to enter into this Agreement and has taken all necessary action to authorize such acceptance of the terms and conditions of this Agreement. C. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. D. The Trainer accepts the Facility “as is” or as it is in its current and future condition. The City has made no representations, statements, or warranties, either express or implied, as to the condition of the Facility or as to its fitness for a particular use. E. The Trainer agrees to provide sufficient staff and equipment essential for operating its programs/activities. VI. ClIAN(,ES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal, or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. 5 VII. INSURANCE A. Without limiting any of the other obligations or liabilities of the Trainer, the Trainer shall provide and maintain through the term of this Agreement the minimum insurance coverage as indicated hereinafter. B. As soon as practicable after notification that this Agreement has been executed by the City but prior to the facilitation of any activities, the Trainer shall file with the City of Denton Risk Management Department, located at 601 E. Hickory St., Ste. A, Denton, TX 76205, satisfactory certificates of insurance including any applicable addendum or endorsements. The Trainer may, upon written request to the City, ask for clarification of any insurance requirements at any time; however, the Trainer is strongly advised to make such requests prior to executing this Agreement, since the insurance requirements may not be modified or waived Agreement execution unless a written Agreement amendment is approved by the City Council. The Trainer shall not commence usage of the Facility until it receives notification that the Agreement has been accepted, approved, or signed by the City. C. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Agreement, or longer, if so noted: a. Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A or better. b. Any deductibles or self-insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees, and volunteers; or, the Trainer shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. c. Liability policies shall be endorsed to provide the following: Name as Additional Insured the City of Denton, its Officials, Agents, Employees, andvolunteers. That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. 6 Provide a Waiver ofSubrogation in favor of the City of Denton, its officials, agents, employees, and volunteers. d. Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. e.Should any of the required insurance be provided under a claims made form, the Trainer shall maintain such coverage continuously throughout the term of this Agreement and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expirationof the contract shall be covered. f. Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Trainer shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. g.Should any required insurance lapse during the contract term, requests for location/site use originating after such lapse shall not be processed or approved until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of thelapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. D. Specific Additional Insurance Requirements: All insurance policies proposed or obtained in satisfaction of this Agreement shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Agreement, or longer, if so noted: 1. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Trainer. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: a. Coverage A shall include premises, operations, products, and completed operations,Trainer, contractual liability covering this contract and broad form property damage coverage. b. Coverage B shall include personal injury. c. Coverage C, medical payments, is not required. 7 If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: a. Bodily injury and Property Damage Liability for premises, operations, products and completed operations, Trainer and property damage resulting from explosion, collapse or underground (XCU) exposures. b. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. 2. Workers’ Compensation Insurance The Trainer shall purchase and maintain Workers’ Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $ 100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an " Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees, and volunteers for any work performed for the City by the Named Insured. If Trainer has no employees and/or is operating as a sole owner and single operator, TRAINER shall provide a signed letter, with the current date, on official letterhead stating such to meet the requlrernent. VIII. INDEMNIFICATION A. To the extent authorized by law, the Trainer agrees to indemnify, hold harmless, and defend the City, its officers, agents, and employees from and against any and all claims or suits for injuries, damage, loss, or liability of whatever kind or character, arising out of or in connection with the actions or omitted actions of the Trainer, its agents, employees, Contractors, sub- Contractors in relation to the use of the Facility, including all such claims or causes of action based upon common, constitutional, or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of the Trainer, its officers, employees, agents, sub-Contractors, licensees, and invitees. B. The Trainer assumes all liability from its use of the Facility in accordance with the terms of the Texas Civil Practice and Remedies Code and other applicable laws. The Trainer is responsible for the conduct of participants, workers, volunteers, invitees, and guests while using the Facility. 8 IX. CONFLICT OF INTEREST A. The Trainer covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. The Trainer further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. The Trainer further covenants that no member of its governing body or its staff, sub- Contractors, or employees shall possess any interest in or use their position for a purpose that is or gives the appearance of being motivated by desire for private gain for their selves, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsi-bilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest. X. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand-delivery or facsimile, addressed to the Trainer or City, as the case may be, at the following addresses: CITY: City of Denton, Texas Ann: City Manager 215 E. McKinneyDenton, TX 76201 TRAINER: with a copy to : City of Denton, Texas Attn: City Attorney’s Office 215 E. McKinneyDenton, Texas 76201 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XI. MISCELLANEOUS A. The Trainer shall not transfer, pledge, or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company, or other financial institution without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any use of City locations by the Trainer hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement consti-tute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by the Trainer. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provlslon. D. This Agreement, together with any referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understand-ing, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropri-ate, recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signa-tures and enter into this Agreement as of the day of , 20 10 The parties agree to transact business electronically. Any statutory requirements that certain terms be in writing will be satisfied using electronic documents and signing. Electronic signing of this document will be deemed an original for all legal purposes. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: ROSA RIOS, CITY SECRETARY CITY OF DENTON, TEXAS BY: SARA HENSLEY CITY MANAGERBY: Date : TRAINER: APPROVED AS TO LEGAL FORM: MACK REINWAND, CITY ATTORNEY BY: AUTHORIZED SIGNATURE Printed Name : Title : Date : THIS AGREEMENT HAS BEENBOTH REVIEWED AND APPROVED as to financial and operational obligationsand business terms. PHONE NUMBER SIGNATURE EMAIL ADDRESS PRINTED NAME TITLE DEPARTMENT 11 EXHIBIT A: PROPOSED USAGE EXHIBIT B: CITY OF DENTON PARK RULES EXHIBIT C: PARD CODE OF CONDUCT AND ANTIBULLYING 12 EXHIBIT A - PROPOSED USAGE If approved by the City and all terms and conditions of this Agreement are met, Trainer will begranted use of the below facility space(s) to provide the following program or activity: Location/Facility (include specific area within the Facility): Usage Times: Days: Times: Start Date:End Date: Location/Facility (include specific area within the Facility): Usage Times: Days: Times: Start Date :End Date : Location/Facility (include specific area within the Facility): Usage Times: Days: Times: Start Date :End Date: Facilities Usage Fees Trainer may offer their services at any one, two, three, or all 4 of Denton recreation centers under one of the following fee structures: North Lakes Rec CenterDenia Rec Center All Rec Centers $200/month $ 1 00/month $250/month Denton Senior Center MLK Rec Center $ 175/month $ 1 00/month All payments owed to the City of Denton are due by the last day of each month. A $50 1ate fee will be applied to all payments made past the deadline. If late fees accrue at or exceeding $200, contract agreement will be terminated. 13