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HomeMy WebLinkAboutA8963 - ELITE OTTERS (PARTIAL POOL LEASE)AGREEMENT TO USE FACILITIES oc,6 This agreement to Use Facilities ("Agreement") is made and entered into this N day of 3 � 2021, by and between the City of Palm Springs ("City") and Elite Otters Swim Team ("Otters") with preference to that Swim Center facility located at 405 South Pavilion Way in Palm Springs, California ("Facility"). The parties enter into this Agreement on the basis of the following facts and intensions: RECITALS WHEREAS, the City and Otters are mutually interested in providing quality recreational activities to all residents of Palm Springs; and WHEREAS, it is recognized that through a cooperative agreement between the City and Otters the community will be afforded the fulfillment of one of its recreational goals for citizens. NOW, THEREFORE, the City and Otters 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 Otters in their cooperative effort to effectively promote and provide competitive swimming for youth and adults. 1.2 The City recognizes and supports Otters as an official team from the City of Palm Springs at United States Swimming events and at local., -'regional invitational swim meets. 1.3 The parties agree that Otters may identify the City's Swim Center pool as its "home" pool for all swim meets held for or on behalf of Otters during the term of this Agreement. 1.4 It is the intent of this Agreement to solidify a supportive and working relationship between Otters and the City. 1.5 It is the intent of this Agreement that both the City and Otters acknowledge and direct their efforts toward the development of quality swim programs at the City's Swim Center. 2. AREAS OF RESPONSIBILITY 2.1 Fees and Charges 55575.18185\34026471.1 2.1.1 Otters agrees to pay the City for its use of the Swim Center pool on a monthly basis. The rates for both exclusive and non-exclusive use of the Swim Center Pool vary based on the number of swimmers and are shown in Exhibit "CI" "Comprehensive Fee Schedule." The fees shall be payable on the first of each month and will increase or decrease, based on the number of swimmers pursuant to the rates identified in the City's Comprehensive Fee Schedule. Any payment of any sums to be paid by Otters not paid within ten (10) days of its due date shall be subject to a five percent (5%) late charge. Based on an average number of 60 swimmers, stated in Section 1.1, the monthly payment would be $856. Should the number of swimmers exceed increase from 60, as stated in Section 1.1 above at any time during the term of this Agreement, Otters shall notify the City so that an adjustment to the monthly fee can be made. 2.1.2 For swim meets requiring exclusive use of the pool, that involve two or more teams, a $1.43-per-swimmer charge shall be paid to the City by Otters within forty-five (45) days following the meet. A complete registration roster shall be provided to verify the fees collected. 2.1.3 Otters shall provide City a complete monthly roster of current swimmers and update as necessary for City to calculate amounts that need to be paid. 2.1.4 Otters shall pay the non-profit rate for office space at the Leisure Center (conference room) during swim meets if needed. Otters shall pay the non-profit rate for use of the Pavilion if it is desired to be used for swim meets. 2.2 POOL USE AND SCHEDULING 2.2.1 The City shall make the Swim Center available on a shared, non-exclusive basis, which does not interfere with the City's other recreation programs. Notwithstanding the foregoing, it is implicit that Otters shall be permitted to utilize the Swim Center in accordance with the schedule below. This schedule is subject to change with the approval of the Contract Officer. 2.2.2. The City has sole discretion to resolve all scheduling conflicts. The City shall act in a timely manner to resolve all scheduling conflicts. During high school water sports season, Palm Springs Unified School District's ("District") schools shall have priority use of the Swim Center. ELITE OTTERS TYPICAL PRACTICE SCHEDULE 4:30pm-6:30pm Monday through Friday The District's schedule is subject to changes which may affect Otters' use of the Swim Center pool. During the identified sessions above, Otters will be assigned lanes at the Swim Center Pool by Swim Center staff based on the number of 55575.18185\34026471 I swimmers in the pool at one time. Also, Otters will have access to the baby pool area during regular workouts. At the discretion of the City, Otters may be given access to additional lanes if they are available. All lanes will be assigned by the City. During high school swim season, February 1 through the first weekend in May, Otters will have their space assigned to them by Swim Center staff. Additionally, at the discretion of the City, Otters may be given access to additional lanes, if available. All lanes will be assigned by the City. The above -listed times apply only to "short course" training. During long course season Otters will also be assigned lanes by Swim Center staff in order to maintain a balance between the club team and other scheduled programming. The Swim team will need to work with staff to get the lanes converted from short course to long course and from long course to short course after their daily practices if long course is desired. 2.2.3 Otters shall submit a Facility Use Application form at least six (6) months prior to swim meets. The City agrees to make the pool available if such use does not impact scheduled City programs or facility closure. Whenever possible, Otters shall try to accommodate joint use of pool for dual meets that are held at the Swim Center. 2.2.4 The City agrees to rent to Otters, at a minimal rate, the Pavilion kitchen, if available. The Facility Use Application form shall be submitted by Otters at least six (6) months prior to the swim meet. 2.2.5 Otters members shall not enter the Swim Center facility for meets or practices until a coach or designated Otters adult representative is on deck to supervise unless that Otters member has paid the public fee to use the pool. 2.2.6 When the Swim Center is closed for maintenance, the monthly rental rate will be prorated and adjusted accordingly for the following month. 2.3 Coaching Staff 2.3.1 Otters shall have complete responsibility for the control and supervision of its coaching staff. 2.3.2 Otters shall be responsible for the control and safety of its members and guests within the Swim Center. 2.3.3 It is the responsibility of Otters to ensure that all coaching staff is currently certified in CPR, First Aid and Lifeguard training. The United States Swimming Coach's Certification in First Aid can apply to this qualification. Proof of such certification must be presented by Otters to the City on a yearly basis, or as 55575.18185\34026471.1 C certificates expire and require to be renewed. City will not provide lifeguard services for practice or swim meets. 2.3.4 Any person having supervisory or disciplinary authority over any minor member of Otters is required to submit to a criminal background screening as specified in California Public Resources Code Section 5164. Each Otters employee or volunteer having supervisory or disciplinary authority over any minor must complete the supplemental questions attached as Exhibit "A" and must concurrently submit to being fingerprinted. Otters must submit a completed copy of Exhibit "A" and arrange for the fingerprinting of each employee and volunteer before this Agreement may be executed by the City. The City performs background screening through the federal government. 2.3.5 Otters must provide the City with a list of its employees and. -'or volunteers who will have supervisory or disciplinary authority over any minors while at the Swim Center. A true and correct list of such employees as of the date of execution of this Agreement is attached hereto as Exhibit "B". Should Otters hire a new employee or volunteer who should be listed on EXHIBIT "B", Otters must notify City of this fact within one week and Otters must concurrently submit a completed copy of the questionnaire, attached as Exhibit "A" for the new person, and have them scheduled for their criminal background screening through the City. 2.4 Equipment and Storage 2.4.1 City shall provide a storage area on a joint -use basis for Otters. Otters shall not hold the City liable for damages for theft of equipment or material stored on City property. 2.4.2 Otters shall install equipment necessary to conduct practice and swim meets, with the exception of starting blocks. In a like manner, Otters shall remove, in a timely fashion, all equipment that it installs to conduct practice and swim meets (with the exception of starting blocks). 2.4.3 Otters shall repair or replace, at its expense, damaged equipment if damage occurred as a result of negligence by Otters or its officers, employees, members or invitees. 2.4.4 The City shall repair or replace damaged equipment, if damaged other than by Otters, at City's expense. 2.4.5 Otters shall notify the City of any damaged equipment in need of repair. Should the City fail to make the requested repairs. Otters shall be held harmless from any claim filed against Otters for injury resulting from said damaged equipment. 2.5 Swim Meets 55575. l 818504026471.1 2.5.1 Otters shall clean up all areas in and around the Swim Center that have been impacted by its use. The City shall coordinate and make arrangements with Otters for trash pickup and provide equipment/supplies to maintain the cleanliness of the surrounding area if trash pickup is not readily available during the time of the swim meet. Otters shall be responsible for additional charges as a result of their swim meet (e.g.., cleaning supplies, janitorial services, any needed equipment rental, etc.) 2.5.2 The Swim Center shall be closed at a reasonable time to the public and all City programs whenever Otters uses the Swim Center for a swim meet. During this time, Otters accepts full responsibility for the control and safety of the general public, as well as Otters' members and guests. Otters shall provide a first aid kit and sufficient supplies to render first aid service during the time of the swim meet. The City shall provide access to back boards during the time of the scheduled swim meet. 2.5.3 Otters shall notify City of any dual meets that could allow safe access of the pool for joint use. The Swim Center staff and Otters are jointly responsible for the control and safety of swimmers as pool use is shared. 2.5.4 Following the completion of swim meets, Otters remains responsible for the control and safety of its guests and general public until the Swim Center is cleaned and the admission gates are locked by an Otters representative. 2.6 Otters Bylaws 2.6.1 Otters must maintain on file two (2) copies of its Articles of Incorporation, Bylaws, and Rules and Regulations with the City Clerk's Office. Any revisions must be submitted to the Parks and Recreation Director prior to action by Otters' Board. 3. INSURANCE AND INDEMNIFICATION 3.1 Otters 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: a. Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis. A combined single limit of $1,000,000.00. b. Workers' Compensation Insurance. To the extent required by Labor Code section 3700, Otters shall procure and maintain workers' compensation insurance. 555 75.19185\34026471.1 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, Otters shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 3.1 to the Contract Officer. Otters agrees that the provisions of this Section 3.1 shall not be construed as limiting in any way the extent to which Otters may be held responsible for the payment of damages to any persons or property resulting from Otters' activities of any person or persons for which Otters is otherwise responsible. 3.2 Indemnification Otters 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 Otters, its agents, employees or invitees, or arising from the negligent acts or omissions of Otters, or arising from Otters' negligent performance of or failure to perform any term, provisions, covenant or condition of this Agreement, but excluding such 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: 4. WAIVER OF UTILITY FAILURE 4.1 Otters 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 the facility with respect to the Ioss of the facility for Otters functions. 5. ENFORCEMENT OF AGREEMENT 5.1 California Law 55575 1818"4o26471 I 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 Otters covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 5.2 Disputes In the event of any 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 perfonning 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 Otters' right to terminate this Agreement without cause pursuant to Section 5.8. 5.3 [Reserved] 5.4 Waiver Otter agrees that the hold harmless described herein applies to claims, demands, proceedings, expenses, injuries, losses, damages, or liabilities of any kind which are presently unknown and may arise in the future as a result of use of the Facility pursuant to this Agreement. Otter confirms that it is aware of the provisions of California Civil Code Section 1542, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBT OR RELEASED PARTY. This Agreement is entered into in contemplation of Civil Code Section 1542 and Otter hereby waives the benefits and protections of Civil Code Section 1542 and all other state or federal laws and decisional authority of similar effect. 5.5 Rights and Remedies are Cumulative 55575.18I $ 5/34026471 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. 5.6 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. 5.7 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 Otters, except that where termination is due to the fault of Otters, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, Otters 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 Otters may determine. 5.8 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, 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. 6. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 6.1 Non -Liability of City Officers and Employees No officer or employee of the City shall be personally liable to Otters, or any successor in interest, in the event of any default or breach by the City or for any $5575 18185\34026471.1 amount that may become due to Otters or to its successor, or for breach of any obligation of the terms of this Agreement. 6.2 Non -Liability of Otters Officers and Employees No officer or employees of Otters shall be personally liable to the City, or any successor in interest, in the event of any default or breach by Otters 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. 6.3 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. Otters warrants that it has not paid or given and shall not pay or give any third party any money or other consideration for obtaining this Agreement. 6.4 Covenant Against Discrimination In connection with its performance under this Agreement, Otters 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 (i.e., 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 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. 7. MISCELLANEOUS PROVISIONS 7.1 Notice 55575.18185\34026471.1 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 either served personally, sent by prepaid, first-class mail, or electronic mail in the case of the City, to the Parks and Recreation Director, attention of the Contract Officer, CITY OF PALM SPRINGS, 401 S. Pavilion Way, Palm Springs, California 92263-2743, or recinfoO-': pal mspri ngsca. gov and, in the case of Otters, to the person at the address designated in Section 8.1 or their electronic mail eliteotters{�r-.yahoo.com . 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, in seventy-two (72) hours from the time of mailing if mailed or at the moment electronic mail is sent as provided in this section. 7.2 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. 7.3 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 precious 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. 7.4 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 carry out the intent of the parties hereunder unless the invalid provision is no material that this invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 7.5 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, 55575 1818504026471.1 and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said party is bound. 8. COORDINATION 8.1 Representative of Otters LP-WrI'` 'D ke.bay% Otters' representative to coordinate with the City regarding operational matter is: 8.2 City Representative: Cat k t0` al vo,r&& ` Cr "-;,r _ The City shall assign a representative to coordinate with Otters regarding operational matters. 9. TERM 9.1 Unless earlier terminated in accordance with section 5.7 of this Agreement, the term of this Agreement shall be for a period of two years (2) years commencing on July 1, 2021 and terminating on July 31, 2023. At the discretion of the Director of Parks and Recreation, this Agreement may be extended for two (2) one-year terms upon expiration of the original term. Note: a yearly evaluation will be conducted every June to address issues and concerns in order to maintain the integrity of the department's standards. [Signatures on the following page] 55575 18185134026471.1 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: B Y: (U34C-lerk -mom BY CITY M ER (.tn C475K 161&3- Approved as to Form: By: Q '41 City At o e Legal Counsel for Elite Otters Swim Team CITY OF PALM SPRINGS, A municipal corporation By: Q--- Cynthh�Alva 36 d Director of Par s and Recreation "Otters" Elite Otters ASwim Team By: 5 5575.18185'J4026471.1 I Exhibit Cl Swim Teams (Club Teams) Fees 1-25 Swimmers $304 per month 26-50 Swimmers $571 per month 51-75 Swimmers $856 per month 76- 100 Swimmers $1,143 per month 101-125 Swimmers $ I ,429 per month 126-150 Swimmers $1,715 permonth 151-175 Swimmers $2,002 per month 176-200 Swimmers $2,288 per month Above 200 swimmers $8/swimmer per month Exclusive usage $1.40 $1.43/swimmer per meet 55575.1818504026471 1