HomeMy WebLinkAboutC2011-280 - 8/5/2011 - NAPage 1 of 10
AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND
NOLAN RYAN FOUNDATION
(TEXAS DEPT. OF STATE HEALTH SERVICES PHASE II OF THE GOVEROR'S ADVISORY
COUNCIL ON PHYSICAL FITNESS PROGRAM)
This Agreement ( "Agreement ") is made and entered into by and between the' .C ty of Corpus Christi, a
Texas home -rule municipal corporation ( "City "), acting through its duly authorized City Manager or his
designee ( "City Manager "), and Nolan Ryan Foundation Inc. ( "Subrecipient "), a Texas non - profit
corporation, qualified as a 501(c)(3) organization under 26 U.S.C. Section 501(c)(3).
Now, therefore, City and Subrecipient agree as follows:
I. Purpose. Funds provided under this Agreement shall be used solely by Subrecipient for purposes
defined in attached Exhibit A.
ll. Term. The term of this agreement commences on the date of last signature and terminates on the
31 day of July, 2014.
III. City's Duties.
A. City agrees to pay Subrecipient Five Thousand Dollars ($5,000.00) out of funds received
from the Texas Department of State Health Services for Phase II of the Governor's Advisory
Council on Physical Fitness Program for use in accordance with Section I above. In no event
will City be liable for an amount in excess of this payment amount. Payment shall be issued
within thirty (30) days of Mayor's Fitness Council Coordinator receipt of invoice from
Subrecipient.
B. City shall monitor Subrecipient activities under this Agreement to comply with City's obligations
under its Contract with the Texas Department of State Health Services.
C. This Agreement shall be administered by the Mayor's Fitness Council Coordinator ( "MFC
Coordinator ").
IV. Subrecipient's Duties.
A. In consideration' for receipt of these grant funds, Subrecipient agrees to use these funds
solely for purposes identified in Exhibit A.
B. In addition, Subrecipient must provide its services under this Agreement in compliance with
the following documents, which are incorporated herein by reference as if fully attached
hereto:
1) City's Application for 2010 Mayor's Fitness Council Sub -Grant
2) Subrecipient Response
3) Contract with City and Texas Department of State Health Services, Contract number 2011-
036280, which includes FY 2011 Department of State Health Services Contract General
Provisions.
C. Subrecipient shall submit an annual statement of revenues and expenditures, including the
estimated audience /participants, for any use of the funds, to the MFC Coordinator.
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Nolan Ryan Foundation INDEXED
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D. Subreciplent shall at all times during term of this Agreement, and for five years afterward, keep
true, accurate, complete and auditable records. Reports to the MFC Coordinator must be in a
form satisfactory to the MFC Coordinator and must include documentation of how all money
provided under this agreement was spent.
E. Subrecipient understands that the MFC Coordinator must authorize any changes or revisions
to the use of funds provided under this Agreement in writing. Changes or revisions include,
but are not limited to, venue, dates, concept, and content.
V. Eligible Activities. Use of funds by Subrecipient is further limited to those activities that, without
exception comply with the contract between the City and Texas Department of State Health Services.
VI. Liability for Repayment
A. All payments under this Agreement are subject to audit by the City and the Texas Department
of State Health ( "DSHS "). Subrecipient shall assume liability for repayment of funds
disbursed where such disbursement is subsequently determined by City or State to be
improper or unauthorized. Subrecipient shall repay disallowed costs within thirty (30) days of
receipt of invoice. This section shall survive termination of this Agreement.
VII. Completion Report.
A. Subrecipient must submit to the MFC Coordinator a completion report ( "Report "), no later than
thirty (30) days following the termination of this Agreement, or upon Subrecipient's expenditure
of the funds provided under this Agreement, whichever occurs first.
B. The MFC Coordinator, or designee, shall review this Report to verify whether the funding
provided to Subrecipient was spent in accordance with the requirements in this Agreement.
The Report must include the criteria as determined by the MFC Coordinator.
Vlll. Records Retention. Subrecipient must at all times during the term of this Agreement, and for
five years following the expiration of the Agreement, keep true, accurate, complete, and auditable
records of the programs and funds provided by this Agreement. Subrecipient agrees to:
(A) make periodic reports to the City of its expenditures from the funds provided under this
Agreement; and
(B) make records of these expenditures available for review to the City.
(C) grant to City, DSHS, State Auditor's Office, Office of Inspector General, and the
Comptroller General of the United States, and any of their representatives, the right of access
to inspect the work and the premises on which any work is performed, and the right to audit
the Subrecipient.
IX. Disbursement of Funds. Subrecipient understands and agrees that payment by the City of
funds under this Agreement is contingent upon Subrecipient's full compliance with the requirements of
this Agreement. Should City or State determine within five years from effective date of this
Agreement that Subrecipient has failed to comply with the requirements contained in this Agreement,
the Agreement is subject to termination in accordance with Section XVII, listed below, and all funds
must be repaid to the City within thirty (30) days of invoice. This section shall survive termination of
this Agreement.
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X. Unexpended funds. Upon termination of this Agreement, Subrecipient must promptly refund to
City any unexpended funds.
XI. Advertising. Subrecipient must recognize the City of Corpus Christi as a contributor on all
advertisements and publications regarding Subrecipient's programs identified in Exhibit A.
Subrecipient must provide MFC Coordinator with a copy of all Subrecipient - sponsored advertising and
promotion materials regarding its programs listed on Exhibit A. Subrecipient shall recognize the City
of Corpus Christi and the Mayor's Fitness Council as contributor on all advertisements and
publications regarding the use the of funds, by use of the City's Mayor's Fitness Council logo. If no
printed material is produced, sponsorship must be announced or displayed in a fashion that effectively
reaches the participants and audience.
XiL Modifications and Waivers. No provision of this Agreement may be altered, changed, modified,
or waived except by prior written agreement of the parties.
XIiI. Relationship between Parties. Subrecipient is an independent contractor under this
Agreement. Nothing in this Agreement shall constitute a partnership, joint venture, or principal -agent
relationship between the parties.
XiV. Compliance with Laws. Subreciplent shall observe and obey all applicable laws, ordinances,
regulations and rules of the Federal, State, Country and City governments. This Agreement is subject
to applicable provisions of the City Charter and the City Code of Ordinances.
XV. Non - discrimination. Subrecipient shall not discriminate, or permit discrimination against any
person or group of persons, as to employment or in the provision of services, activities, and programs.
Discrimination as it pertains to this section includes discrimination on the basis of race, religion,
national origin, sex, disability, or age, or in any other manner that is prohibited by the laws of the
United States or the State of Texas. City the right to take action deemed necessary by City to enforce
this non - discrimination covenant. Violation of this provision will result in the immediate termination of
this Agreement and require immediate repayment of any disbursed funds.
XVI. Indemnity. Subrecipient hereby fully agrees to indemnify and hold harmless the City of
Corpus Christi, its officers, employees, representatives, licensees, and invitees
( "indemnitees "} against any and all liability, damage, loss, claims, demands, and actions of
any nature due to personal injuries including, but not limited to, workers' compensation and
death' claims, or any property loss or damage of any kind, that arises out of or is in any
manner connected with, caused by, either proximately or remotely, wholly or in part, or
claimed to have arisen out of, been connected with, or have been caused by, any act or
omission, negligence, or misconduct on the part of Indemnitees or Subrecipient, or
Subrecipient's agents, servants, employees, guests, Subrecipient's, patrons, licensees, or
invitees participating in or observing Subrecipient's Activities. Subrecipient further agrees to
indemnify and hold harmless Indemnitees in any situation in which injury or, damage results
from a violation by the Indemnitees or Subrecipient, or Subrecipient's agents, servants,
employees, guests, Subreciplents, patrons, licensees, or invitees, of any law, statute,
ordinance, or government order of any kind. Further, Subrecipient will indemnify and hold
harmless Indemnitees where injury or damage results or arises out of the exercise or rights or
performance of obligations created by this Agreement.
These terms of indemnification are effective regardless of whether said injuries or damages
result from the sole negligence, contributory negligence, or concurrent negligence of
Indemnitees. Subrecipient must, at its own expense, investigate all claims and demands,
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attend to their final resolution either by settlement or otherwise, defend all actions with
counsel satisfactory to Indemnitees, and pay all costs and expenses related to such actions
on account of liability, damage, loss, claims, demands, or actions, including attorney fees.
XVII. Termination.
(A) The City may terminate this Agreement for any of the following reasons:
(1) The City may immediately terminate the Agreement due to any violation by
Subrecipient of section XIV or XV of this agreement.
(2) The City may terminate this Agreement due to Subrecipient's use of funds to pay
for activities other than those identified on Exhibit A. City has the sole discretion to
make the determination that funds were used for activities other than those qualifying
as eligible activities. The City may terminate the Agreement upon seven (7) days
written notice, and require Subrecipient to reimburse the City all funds awarded.
(B) Subrecipient may terminate this Agreement without cause upon thirty (30) days written
notice to City. If Subrecipient chooses to terminate the Agreement, Subrecipient must repay
all funds awarded, whether those funds were expended on eligible activities or not.
XVIII. Severability. If any term or provision of this Agreement or its application to a person or
circumstance is determined to be illegal, unenforceable or invalid, the remainder of this Agreement
will not be affected by that illegality, unenforceability, or invalidity. To the extent possible, similar
legal, valid, and enforceable terms will automatically be substituted for those that are found to be
illegal, invalid, and unenforceable.
XIX. Force Majeure. With respect to any duties, obligations, or covenants to be performed, or
consideration to be provided to either party during the term of this Agreement, the party so obligated
shall, in no event, be liable for failure to perform when prevented from doing so by any cause beyond
the reasonable control of that party including, without limitation: strike, lockout, breakdown, accident,
order or regulation of any governmental authority, failure of supply, inability, by the exercise of
reasonable diligence, to obtain supplies, parts or employees necessary to perform services, or
because of war, natural disaster, or other emergency. The time when that duty, obligation, or
covenant must be performed or consideration must be provided will be extended for a period of time
equivalent to the delay due to the cause beyond the control of the party obligated.
XX. Notices. All notices, demands, requests, or replies ( "communications ") provided for or permitted
under this Agreement by either party must be in writing and must be delivered by one of the following
methods: (1) personal delivery; (2) deposit with the United States Postal Service via certified or
registered mail, return receipt requested, postage prepaid; (3)deposit with an overnight express
delivery service, for which service has been prepaid; or (4) fax transmittal. Notice deposited with the
United States Postal Service in the manner described above will be deemed effective two (2)
business days after deposit with the United States Postal Service. Notice by overnight express
delivery service in the manner described above will be deemed effective one (1) business day after
transmission to the telegraph company or overnight express carrier. Notice by fax will be deemed
received upon transmission with proof of delivery to the receiving party, All communications must be
made to:
If to City:
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City of Corpus Christi
Attn. Mayor's Fitness Council Coordinator
P. O. Box 9277
Corpus Christi, TX 78469 -9277
(361) 880 -3461
If to Subrecipient:
Nolan Ryan Foundation
Attn: Chief Executive Officer
2925 S. Bypass 35
Alvin, Texas 77511
Either party may change the address to which notice is sent by providing notice as described above.
Subrecipient must notify City of an address change within thirty (30) days after Subrecipient's address
has changed.
XXI. Waivers. No waiver of any covenant or condition or breach of any covenant or condition of this
Agreement by either party at any time, express or implied, will be taken to constitute a waiver of any
subsequent breach of the covenant or condition.
XXII. Entirety. This Agreement constitutes the entire and sole agreement between the parties
regarding the subject matter described in this Agreement. No other written documents or oral
representations will have any force or effect on the subject matter of this Agreement.
XXII1. Captions. The captions contained in this Agreement are not a part of this Agreement and do
not in any way affect or alter the terms of this Agreement.
XXIV. Assignment. This Agreement may not be, in whole or in part, assigned or transferred directly
or indirectly without prior written consent of City.
XXV. Conflict of Interest. Subrecipient represents that it does not have, nor shall Subrecipient
knowingly acquire or retain, any financial or other interest that would conflict in any manner with the
performance of their obligations of this Agreement. Potential conflicts of interest include, but are not
limited to, an existing or potential business or personal relationship between Subrecipient, its
principal, or any affiliate and the State Department of Health Services ( "DSHS "), or Health and Human
Services Commission, ( "HHSC "), their commissioners or employees, or any other en#ity or person
involved in any way in any project that is the subject of this agreement. Subrecipient shall establish
safeguards to prohibit employees from using their positions for a purpose that constitutes or presents
the appearance of personal or organizational conflict or interest or personal gain. If, at any time
during the term of this Agreement, Subrecipient has a conflict of interest or potential conflict of
interest, Subrecipient shall disclose the actual or potential conflict of interest to the City employee
assigned to administer the funds, within ten (10) days of when Subrecipient becomes aware of the
existence of the actual or potential conflict of interest or potential conflict of interest.
XXVI. Transactions between related parties. Subrecipient shall identify and report to the City
employee assigned to administer the funds, any transactions between Subrecipient and a related
party that is part of the work that the City is purchasing under this Agreement before entering into the
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transaction or immediately upon discovery. Subrecipient shall submit the name, address, and
telephone number of the related party, how the party is related to Subrecipient and the work the
related party will perform under this Agreement. A related party is a person or entity related to
Subrecipient by blood or marriage, common ownership or any association that permits either to
significantly influence or direct the actions or policies of the other. Subrecipient, for purposes of
reporting transactions under this section, includes the Subrecipient entity, as well as the chief
executive officer, chief financial officer and program director of Subrecipient. Subrecipient shall
comply with Texas Government Code chapter 573. Subrecipient shall maintain records and supply
any additional information requested by the City or DSHS to enable them to determine the
appropriateness of the transaction pursuant to applicable state or federal law, regulations or circulars.
XXVII. Warranty. The person executing this document for Subrecipient represents and warrants that
he has been duly authorized by Subrecipient to execute this agreement for Subrecipient and to validly
and legally bind Subrecipient to all of its terms herein.
Executed in duplicate, each of which will be considered an original, on the � day of
�u , 2011.
CITY OF CORPUS CHRISTI
P
Ronald L. Olson
City Manager
APPROVED: � - ' 2011
Lisa Aguil
Assistant City Attorney
For City Attorney
Nolan Ryan Foundation
By
Name: �Sn
Title: l r
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STATE OF TEXAS
COUNTY OF NUECES
This instrument was acknowledged before me on 2011 by
� �
&V�-
President of Nolan Ryan Foundation, a Texas no profit corporation, qualified as a 501(c)
anization under 26 U.S.C. Section 501(c)(3), on behalf of the corporation.
T
Public, State of`f'exas
Printed Name
Commission Expiresc�%
uIisAK T MIACIAS
MY COMMISSION WIRES
AUGUST 9. 2011
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Exhibit A
Description of Services
Nolan Ryan Foundation will use the funds to provide the Sprint to Triathalon, a program designed to
get people off the couch and eventually participating in Triathlon at gradual pace through free training
groups at all ability levels.
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Exhibit B
Subrecipient Certification
CERTIFICATION REGARDING FUNDING
The undersigned certifies, that:
1. Subrecipient is not debarred, suspended, or excluded from or ineligible for participation in
federal assistance programs.
2. Subrecipient is not disqualified under 2 CFR Section 376.935 or ineligible for participation in
federal or state assistance programs.
3. Neither Subrecipient, nor its principals, are presently debarred, suspended, proposed for
debarment, declared ineligible, or excluded from participation in this transaction by any federal
or state department or agency.
4. Subrecipient has not knowingly failed to pay a single substantial debt or a number of
outstanding debts to a federal or state agency.
5. Subrecipient is not subject to an outstanding judgment in a suit against Subrecipient for
collection of the balance of a debt.
6. Subrecipient is in good standing with all state and/or federal agencies that have a contracting
or regulatory relationship with Subrecipient.
7. No person who has an ownership interest or controlling interest in Subrecipient or who is an
agent or managing employee of Subrecipient has been convicted of a criminal offense related
to involvement in any program established under Medicare, Medicaid, or a federal block grant.
8. Neither Subrecipient, nor its principals have within the three (3) year period preceding this
agreement, has been convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or
performing a private or public (federal, state or local) transaction or contract under a private or
public transaction, violation of federal or state antitrust statutes (including those proscribing
price - fixing between competitors, allocation of customers between competitors and bid -
rigging), or commission of embezzlement, theft, forgery, bribery, falsification or destruction of
records, making false statements or false claims, tax evasion, obstruction of justice, receiving
stolen property or any other offense indicating a lack of business integrity or business honesty
that seriously and directly affects the present responsibility of Subrecipient or its principals.
9. Neither Subrecipient, nor its principals is presently indicted or otherwise criminally or civilly
charged by a governmental entity (federal, state, or local) with the commission of any of the
offenses enumerated in subsection g) of this section
10. As required by Tex. Fam. Code § 231.006, a child support obligor who is more than thirty (30)
calendar days delinquent in paying child support and a business entity in which the obligor is a
sole proprietor, partner, shareholder, or owner with an ownership interest of at least twenty -
five percent (25 %) is not ,eligible to receive payments from state funds under a contract to
provide property, materials, or services or receive a state - funded grant or loan. if applicable,
Subrecipient shall maintain its eligibility to receive payments under this Agreement, certifies
that it is not ineligible to receive the payments specified in this Agreement, and acknowledges
that this Agreement may be terminated and payment may be withheld if this certification is
inaccurate.
11. Subrecipient certifies that it possesses legal authority to contract for the services described in
this Agreement and that a resolution, motion or similar action has been duly adopted or
passed as an official act of Subrecipient's governing body, authorizing the binding of the
organization under this Agreement including all understandings and assurances contained in
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this Agreement, and directing and authorizing the person identified as the authorized
representative of Subrecipient to act in connection with this Agreement and to provide such
additional information as may be required.
12. Subrecipient certifies that it has not given, offered to give, nor intends to give at any time
hereafter, any economic opportunity, present or future employment, gift, loan, gratuity, special
discount, trip, favor, service or anything of monetary value to a DSHS or HHSC official or
employee in connection with this Agreement.
13. Pursuant to Tex. Gov. Code § 2155.004 and federal law, Subrecipient is ineligible to receive
this Agreement if this Agreement includes financial participation by a person who received
compensation from DSHS to participate in developing, drafting or preparing the specifications,
requirements, statement(s) of work or Solicitation Document on which this Agreement is
based. Subrecipient certifies that neither Subrecipient, nor its employees, nor anyone acting
for Subrecipient has received compensation from DSHS for participation in the Agreement or
in the Solicitation Document on which this Agreement is based; (b) pursuant to Tex. Gov.
Code §§ 2155.006 and 2261.053, Subrecipient is ineligible to receive this Agreement, if
Subrecipient or any person who would have financial participation in this Agreement has been
convicted of violating federal law, or been assessed a federal civil or administrative penalty, in
connection with a Agreement awarded by the federal government for relief, recovery or
reconstruction efforts as a result of Hurricanes Rita or Katrina or any other disaster occurring
after September 24, 2005; (c) Subrecipient certifies that the individual or business entity
named in this Agreement is not ineligible to receive the specified Agreement under Tex. Gov.
Code § §2155.004, 2155.006 or 2261.053, and acknowledges that this Agreement may be
terminated and payment withheld if these certifications are inaccurate.
14. Pursuant to 15 USC § 1, et seq, and Tex. Bus. & Comm. Code § 15.01. et seq. Subrecipient
certifies that neither Subrecipient, nor anyone acting for Subrecipient has violated the antitrust
laws of this state or federal antitrust laws, nor communicated directly or indirectly regarding a
bid with any competitor or any other person engaged in Subrecipient's line of business for the
purpose of substantially lessening competition in such line of business.
15. Subrecipient shall initiate and complete the work under this Agreement within the applicable
time frame prescribed in this Agreement.
16. Neither it, nor its principals within a three (3) year period preceding this Agreement has had
one or more public transaction (federal, state, or local) terminated for cause or default.
If Subrecipient's status with respect to the items certified in this Certification changes during
the term of this Agreement, Subrecipient shall immediately notify the MFC Coordinator
assigned to administer the funds.
Nolan Ryan Foundation
Bv:
Printed Name: n
Title: ,rr �-
Date: It