Loading...
HomeMy WebLinkAboutA8959 - AMERICAN YOUTH SOCCER ORGANIZATIONFACILITIES USE OF AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND THE AMERICAN YOUTH SOCCER ORGANIZATION +4 This Agreement to Use Facilities ("Agreement") is made and entered into thisI(� � day of C,, rn ,�,;'2021, by and between the City of Palm Springs ("City"), a municipal corporation, and the American Youth Soccer Organization ("AYSO") a soccer organization. The Parties enter into this Agreement on the basis of the following facts and intentions: RECITALS WHEREAS, the City and AYSO are mutually interested in and concerned with providing quality recreational activities for the youth of Palm Springs; and WHEREAS, it is recognized that through a cooperative agreement between the City and AYSO the community will be afforded the fulfillment of one of its recreational goals for youth. NOW, THEREFORE, the City and AYSO do hereby mutually agree as follows: 1. INTENT OF AGREEMENT 1.1 It is the intent of this agreement to describe the responsibilities of the City and AYSO in their cooperative effort to effectively promote and provide soccer for the youth of Palm Springs. 1.2 Due to the COVID-19 Pandemic that resulted in the cancelation of recreational sports leagues in the City, the Parties will roll over payments made in late 2019 to cover the cost of this Agreement. 2. TERM 2.1 Unless earlier terminated in accordance with section 5.7 of this Agreement, the term of this Agreement shall be for a period of twelve months (12) months commencing on September 1, 2021 and terminating on August 31, 2022. At the discretion of the City Manager, this Agreement may be extended for two (2) one- year terns upon expiration of the original agreement. 3. AREAS OF RESPONSIBILITY 3.1 Field Use and Scheduling 3.1.1 The City shall make available to AYSO ten (10) soccer fields located at Demuth Park, plus the 4 little league fields (collectively "City Facilities") from September 1, 2021, through February 28, 2022, from 5:00 pm to 10:00 pm, Monday through Friday, and 5:00 am to 9:00pm on Saturdays (fall season). See 55575,19185\34296348 1 attachment A. City shall notify AYSO within twenty-four (24) hours prior to exercising its right to use the City facilities under this Section 2.1. 3.1.2 During the Spring season City shall make available to AYSO ten (10) soccer fields located at Demuth Park (collectively "City Facilities") from March 1, 2022 through June 30, 2022 from 6:00pm to 9:00 pm, Monday through Friday, and 6:00 am to 5:00pm on Saturdays (Spring Season). AYSO will need to work with PSYL on the use of the Little League Fields during the spring season. 3.1.3 AYSO must inform the City if it intends to operate the concession at DeMuth Park or if it will have a concessionaire operate the facility for it. The concessionaire must be approved by the City and must have a City business license in place by September 1, 2021. AYSO will pay a concession fee of One Thousand Dollars ($1,000) per year to the City. This concession payment will be spent on improvements to the concession stand. Improvement will be mutually agreed upon by City and AYSO in advance of any expenditure commitment. 3.1.4 They City shall make Demuth Community Center available for program registration based on availability during its normal operating hours to AYSO. 3.2 Membership, Registration and Bylaws 3.2.1 AYSO must insure that its program is conducted in accordance with the regulations and bylaws of a nationally -known youth sports sanctioning body. It shall be the responsibility of the City to investigate concerns or complaints regarding violation of the statements and take appropriate action. 3.2.2 The City requires that all coaching staff, referees and board members be currently certified in cardiopulmonary resuscitation (CPR) and first aid. 3.2.3 Any person having supervisory or disciplinary authority over any minor participating in the AYSO will have to submit to a criminal background screening as specified in California Public Resources Code Section 5164. Each AYSO coach or volunteer having supervisory disciplinary authority over any minor must complete the supplemental questions attached as Exhibit "A" and must concurrently submit to being fingerprinted. AYSO must submit a completed copy of Exhibit "A" and arrange for fingerprinting of each coach and volunteer before this Agreement screening for a particular individual, the screening shall include screening by the federal government. 3.3 Playing Equipment 3.3.1 AYSO shall be responsible for all supplies, equipment, storage of supplies and equipment, and uniforms relating to the program. 3.4 Compliance with Parks Rules and Regulations 55575 181851342%348.1 3.4.1 AYSO agrees to support the City by informing its participants of park rules and regulations (Chapter 11.44 of the Palm Springs Municipal Code). 3.4.2 An adult designated by AYSO shall be present at all practices and games to enforce park rules and regulations. 3.5 Field Maintenance, Preparation and Utilities 3.5.1 A representative of the Parks and Recreation Department and the AYSO shall walk the facilities to review the conditions of the buildings and playing fields prior to the end of July and note items that need repair. The City shall arrange for the repair of appropriate items in a timely fashion. Any proposed capital improvements to the building must be approved by both Palm Springs Youth League (PSYL) and the American Youth Soccer Organization (AYSO). 3.5.2 AYSO shall ensure facilities are left free of debris after use for practice and games. 3.5.3 AYSO shall host a "Clean Up Day" at the end of each season in order to remove debris from the facilities. 3.5.4 The City shall regularly water the playing fields, maintain the lawn areas and repair potholes. If there is an issue please report to staff so a work order can be submitted and tracked for repair. 3.5.5 The City shall regularly water the playing fields, maintain the lawn areas and repair potholes. Failure of the City to perform the duties under this Section 2.5.2 shall not, however, be construed as a default hereunder or subject the City to any liability to AYSO or any users of the City facilities. 3.5.6 The City shall pay for the electrical power to light the fields for practice and league games at DeMuth Park. The City shall replace and realign the field lights as needed. 3.5.7 AYSO shall purchase and store chemicals required to line fields. 3.5.8 AYSO shall prepare all assigned fields for practices and games. 3.5.9 AYSO shall submit its complete games and practice schedule to City ten (10) days prior to league play, along with the number of teams that have registered and the total number of kids registered in the program for department reporting purposes. 3.6 Communications 3.6.1 The City's assigned representative shall act as a resource liaison between the City and AYSO person concerning operational matters. 55575 1818SN296349 1 3.6.2 AYSO shall provide the City annually with current AYSO rules and regulations. 3.7 Program Evaluation 3.7.1 AYSO agrees to provide the City with information necessary to monitor and evaluate AYSO's compliance with this Agreement. 3.7.2 Program evaluation shall occur as needed throughout the season and formally at the conclusion of the season. 3.7.3 AYSO agrees to provide monthly attendance numbers for daily practices, games, and tournaments to the Parks and Recreation Department. Attendance numbers must be submitted to the department the last day of each month for reporting purposes. 3.8 Compensation for Park Use 3.8.1 For use of the fields, AYSO shall make compensation to the City of Three Thousand dollars ($3,000), due on November 1, 2021. AYSO also agrees to complete a park cleanup project approved by the city. Project needs to be completed prior to February 27, 2022. 3.8.2 AYSO provided payment to City on September 10, 2019 for the 2020- 2021 season. Due to the COVID-19 Pandemic that season was canceled. This payment shall cover the compensation of this Agreement. 3.8.3 Late Payment AYSO hereby acknowledges that late payment by AYSO to the City of amounts due hereunder will cause the City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sums to be paid by AYSO not paid within ten (10) days of its due date shall be subject to five percent (5%) late charge. AYSO and the City agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to the City for its loss suffered by such late payment by AYSO. 4. INSURANCE AND INDEMNIFICATION 4.1 AYSO shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement, including any extension thereof, the following policies of insurance: 4.2 Comprehensive General Liability general liability insurance written single limit of $1,000,000.00. 4.3 Workers' Compensation Insurance. 55575 18185\34296349.1 Insurance. A policy of comprehensive on a per -occurrence basis. A combined To the extent required by Labor Code section 3700. In the event AYSO hires an employee so defied in the Labor Codes Workers Compensation Section, a policy of workers compensation insurance shall be procured and maintained in such amount as will fully comply with the laws of the State of California and that shall indemnify, insure and provide legal defense for both AYSO and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any person retained by AYSO in the course of carrying out the work or service contemplated in this Agreement. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled, AYSO shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 3.1 to the Contract Officer. No work or services under this Agreement shall commence until AYSO has provided City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages said certificates of insurance of binders are approved by City. AYSO agrees that the provisions of this Section 3.1 shall not be construed as limiting in any way the extent to which AYSO may be held responsible for the payment of damages to any persons or property resulting from AYSO's activities or the activities of any person or persons for which AYSO is otherwise responsible. In the event AYSO subcontracts any portion of the work in compliance with Section 8.4 of this Agreement, the contract between PSYL and such subcontractor shall require the subcontractor to maintain the same policies of insurance that AYSO is required to maintain pursuant to this Section 3.1 4.4 Indemnification AYSO agrees to indemnify and defend the City, its officers, agents and employees against and shall hold and save them and each of them harmless from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities) that may be asserted or claimed by any persons, firm or entity arising out of or in connection with the activities at the Facility of AYSO, its agents, employees or invitees, or arising from the negligent acts or omissions of AYSO, or arising from AYSO's negligent performance of or failure to perform any tern, provisions, covenant or condition of this Agreement, but excluding such 55575,18185\342%348 1 claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: AYSO shall defend any action or actions filed in connection with any of said claims or liabilities and shall pay all costs and expenses, including legal costs and attorney's fees incurred in connection therewith: AYSO shall promptly pay any judgement rendered against the City, its officers, agents or employees for any claims or liabilities arising out of or in connection with negligent performance of or failure to perform such work, operations or activities of AYSO hereunder; and AYSO agrees to save and hold the City, its officers, agents and employees harmless therefrom. In the event the City , its officers, agents or employees, is made a party to any action or proceeding filed or prosecuted against AYSO for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of AYSO hereunder, AYSO agrees to pay City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees, in such action or proceeding, including, but not limited to, legal costs and attorneys' fees. 4.5 Sufficiency of Insurer or Surety Insurance of bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better unless such requirements are waived by the Risk Manager of the City ("Risk Manager") due to unique circumstances. In the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, AYSO agrees that the minimum limits of the insurance policies and the performance bond required by this Section 3 may be changed accordingly upon receipt of written notice from the Risk Manager; provided that AYSO shall have the right to appeal a determination of increased coverage by the Risk Manager, to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. 5. WAIVER OF UTILITY FAILURE 5.1 AYSO expressly waives any and all claims to the City for compensation for any and all losses or damages sustained for any reason or any defect, deficiency or impairment of any utility system, water supply system, drainage system, electrical apparatus or wires serving DeMuth Park with respect to the loss of the fields for AYSO functions. 6. ENFORCEMENT OF AGREEMENT 55575 18185134296348 1 6.1 California Law This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and AYSO covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 6.2 Disputes In the event of arty dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of the section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or AYSO's right to terminate this Agreement without cause pursuant to Section 5.8. 6.3 Retention of Funds AYSO hereby authorizes City to deduct from any amount payable to PSYL (whether or not arising out of this Agreement) (i) any amounts, the payment of which may be in dispute hereunder or which are necessary to compensate City, for any losses, costs, liabilities or damage suffered by City, and (ii) all amounts for which City may be liable to third parties by reason of AYSO's acts or omissions in performing or failing to perform AYSO's obligation under this Agreement. In the event that any claim is made by a third party, the amount of validity of which is disputed by AYSO, or any indebtedness shall exist that shall appear to be the basis for a claim or lien, City may withhold from any payment due, without liability for interest because of such withholding from any payment due, without liability for interest because of such withholding, any amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of AYSO to insure, indemnify and protect City as elsewhere provided herein. 6.4 Waiver 55575 18185U4296348 I No delay or omission in the exercise of any right or remedy by a non -defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other parry's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same of any other provision of this Agreement. 6.5 Rights and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 6.6 Legal Action In addition to any other rights or remedies, either party may take legal action in law or in equity, to cure, correct or remedy and default, to recover damages for any default, to compel specific performance of this Agreement to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 6.7 Termination Prior to Expiration of Term This Section shall govern any termination of this Agreement except as specifically provided in the following section for termination for cause. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to AYSO, except that where termination is due to the fault of AYSO, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, AYSO reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to City, except that where termination is due to the fault of City, the period of notice may be such shorter time as AYSO may determine. 6.8 Attorney's Fees If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief that may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal, and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigation such action, taking depositions and discovery, 55515.18185114296348 1 and all other necessary costs the court allows that are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 7. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 7.1 Non -Liability of City Officers and Employees No officer or employee of the City shall be personally liable to AYSO, or any successor in interest, in the event of any default or breach by the City or for any amount that may become due to AYSO or to its successor, or for breach of any obligation of the terms of this Agreement. 7.2 Non -Liability of AYSO Officers and Employees No officer or employees of AYSO shall be personally liable to the City, or any successor in interest, in the event of any default or breach by AYSO or for any amount that may become due to City or to its successor, or for breach of any obligation of the terms of this Agreement. 7.3 Conflict of Interest No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement that affects his/her financial interest or the financial interest of any corporation, partnership or association in which he is directly or indirectly interested, in violation of any state statute or regulation. AYSO warrants that it has not paid or given an shall not pay or give any third party any money or other consideration for obtaining this Agreement. 7.4 Covenant Against Discrimination In connection with its performance under this Agreement, AYSO shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (Le., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including 55575.18185134296348 i apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 8. COORDINATION 8.1 Representative of AYSO PSYL's representative to coordinate with the City regarding operational matter is: David Darrin Assistant Commissioner 801. E. Tahquitz Canyon Way, Suite 100 Palm Springs, CA 92262 8.2 City Representative The City shall assign a representative to coordinate with AYSO regarding operational matters. 8.3 Prohibition Against Subcontracting or Assignment The experience, knowledge, capability and reputation of AYSO, its principals and employees, were substantial inducement for City to enter into this Agreement. Therefore, AYSO shall not contract with any other entity to perform, in whole or in part, the services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any persons or group of persons acting in concert of more than twenty-five (25%) of the present ownership and/or control of AYSO, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfers, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release AYSO or any surety of AYSO of any liability hereunder without the express consent of City. 8.4 Independent Contractor Neither City nor any of its employees shall have any control over the manner, mode or means by which AYSO, its agents or employees, preforms the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of AYSO's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. AYSO shall perform all services required herein as an 55575 19185\34296348.1 independent contractor of City and shall remain at all times as to City a wholly independent contract with only such obligations as are consistent with the role. PSYL shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of AYSO in its business or otherwise or a joint venture or a member of any joint enterprise with AYSO. 9. MISCELLANEOUS PROVISIONS 9.1 Notice Any notice, demand, request, document, consent, approval or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263-2743, and, in the case of PSYL, to the person at the address designated in Section 8.1. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this section. 9.2 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. 9.3 Integration; Amendment It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability In the event that any one or more of the phrases, sentences, clauses, paragraphs or sections contained in the Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement hereby declared as severable and shall be interpreted to cant' out the intent of the parties hereunder unless the invalid provision is no material that this 55575 1818SX34296349 1 invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority The persons on executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: By: Jeff alli g r, C' tomey 55375 18185U42%348.1 CITY OF PALM SPRINGS, A municipal corporation ay: tom:- A M51 Justin CV,n City Manager "AYSO" Americ Y Soccer Organization By: David A. Darrin, Esq. SCHLECHT, SHEVLIN & SHOENBERGER, ALC Its: CD^0-6,'oxe-"' i LM CA I AWAY IAV I vq 0 H it i ail