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Cq</FORl�`p• City Council Staff Report
Date: June 7, 2017 CONSENT CALENDAR
Subject: APPROVAL OF FACILITY USE AGREEMENT FOR THE DEMUTH
COMMUNITY CENTER WITH BLOOM IN THE DESERT MINISTRIES
From: David H. Ready, City Manager
Initiated by: Parks and Recreation Department
SUMMARY
This action will approve a new Facilities Use Agreement with Bloom in the Desert
Ministries for use of the Demuth Community Center for a period of three years, with two,
one-year optional extensions, commencing July 1, 2017.
RECOMMENDATION:
1) Approve Agreement No. , a Facility Use Agreement with Bloom in the Desert
Ministries for use of the Demuth Community Center for a period of three years, with
two, one-year optional extensions, commencing July 1, 2017;
2) Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
Bloom in the Desert Ministries (the 'Tenant') has conducted faith-based services at the
Demuth Community Center since 2004 having started with the YMCA and continued on
with the City when the facility was acquired from the YMCA in June 2010.
Under the terms of the proposed new Facility Use Agreement, the Tenant will pay the
City $731.92 monthly for those months with four Sundays, and $914.90 monthly for
those months with five Sundays, for use of the Demuth Community Center. In 2016,
Tenant paid $8,325.91 in rental fees for use of the Demuth Community Center.
Each annual anniversary date of the Commencement Date, monthly rental shall be
adjusted in proportion to the published changes in the Consumer Price Index ("CPI") for,
All Items, for the Riverside/San Bernardino Metropolitan Statistical Area. The "CPI' for
this year is 2% and the proposed monthly fee reflects that increase.
The Tenant is responsible for establishing telephone lines, in separate accounts from
the City, and is responsible for payment of monthly accounts related to the services. All
other utilities will be provided by the City. ITEM NO. 1 • K
City Council Staff Report
June 7, 2017— Page 2
Facilities Use Agreement— Demuth Community Center
ENVIRONMENTAL IMPACT:
This actions is not a "project' for purposes of the California Environmental Quality Act
(CEQA), as that term is defined by CEQA guidelines (Guidelines) section 15378. This
action is an organizational or administrative activity by the City of Palm Springs in
furtherance of its governmental authorities, and will not result in a direct or indirect
physical change in the environment, per section 15378(b)(5) of the Guidelines.
FISCAL IMPACT:
Approval of the Facilities Use Agreement will generate revenue of approximately $9,000
annually.
SUBMITTED:
kd&
VICKI OLTEAN MARCUS FULLER, MPA, PE, PLS
Director of Parks & Recreation Assistant City Manager
DAVID H. READY, Esq. D.
City Manager
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FACILITY USE AGREEMENT
(DEMUTH COMMUNITY CENTER)
This Facility Use Agreement("Agreement") is made and entered into this day of
, 201 , by and between the City of Palm Springs, a
California charter city and municipal corporation, ("City"), and Bloom in the Desert
Ministries, a religious non-profit corporation, ("Tenant"), concerning the use of the Demuth
Community Center ("Facility").
RECITALS
WHEREAS, the City and Tenant are mutually interested in providing needed
amenities and community services to all residents of Palm Springs; and
WHEREAS, through this agreement, Tenant will be afforded the opportunity, on the
same basis as other lawful users, to provide services desired by the community; and
WHEREAS, Tenant has previously entered into an agreement for the use of the
Facility, which is located at 3601 East Mesquite Avenue in Palm Springs, California, for the
purpose of conducting faith-based services; and
WHEREAS, Tenant now desires to enter into this Agreement to obtain access and
use of the Facility, according to the terms and conditions stated herein.
NOW, THEREFORE, the City and Tenant do hereby mutually agree as follows:
AGREEMENT
1. TERM.
1.1. Term. This Agreement shall be in full force and effect for a period of three(3)
years, beginning July 1, 2017, and ending June 30, 2020. City and Tenant may renew this
Agreement for two(2)additional one(1)year terms, under the same terms and conditions
stated herein, except for any changes such as fees and charges for the use of certain
facilities as specified in Section 2. Upon each annual anniversary date of the
Commencement Date, monthly rental shall be adjusted in proportion to the published
changes in the Consumer Price Index ("CPI") for, All Items, for the Riverside/San
Bernardino Metropolitan Statistical Area.
1.2. Termination. City and Tenant may terminate this Agreement at anytime,with
or without cause, upon sixty (60) days' written notice to Tenant. Nothing shall prohibit
termination at less than sixty (60) days' written notice upon any material breach of this
Agreement,which includes, but it not limited to failure to timely pay rent,failure to maintain
required insurance, and damage to the Facilities.
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2. FACILITY USE.
2.1. Facility Use.
2.1.1. Large Multi-Purpose Room and Kitchen. City grants Tenant the
use of the Large Multi-Purpose Room, the Inner Lobby and the Kitchen as identified in
Exhibit"B" and according to the rules and regulations outlined in Exhibit"A". The Facility,
and the areas to be used by Tenant, are more specifically described in the attached Exhibit
"B" and incorporated herein by reference.
2.1.2. Overflow Use. Tenant may also use the Kitchen, the Small
Multi-Purpose Room, and the Gymnasium at the Facility for larger events or overflow
attendance, not to exceed one hundred and twenty-five (125) people, and shall provide a
notice in writing to the City prior to such use.
2.1.3. Additional Rental Sessions. Tenant may request additional
rental sessions of the Facility to be coordinated and negotiated on a case-by-case basis
and subject to availability.
2.2. Scheduling of Use. Tenant may use the Facility in accordance with Section
2.1 only during the times specified in the Schedule, attached as Exhibit "C" and
incorporated herein by reference. The City may, in its sole discretion, alter the Schedule
in order to maximize use of the Facility for all users.
2.3. Fees and Charges for Facility Use. Tenant agrees to pay City Seven
Hundred Thirty-One Dollars and Ninety-Two Cents ($731.92) for months with four (4)
Sundays and Nine Hundred Fourteen Dollars and Ninety Cents($914.90)for months with
five (5) Sundays. Tenant must pay monthly, on or before the fifth of every month, for use
of the Facility. An additional late charge of$35 shall be due on all payments received after
the fifth of every month.
2.4. Storage and Personal Property. Tenant may use the storage closet identified
in Exhibit"B"for the purpose of storing personal property to be used for Tenant's Sunday
morning services. City shall provide Tenant keys for the access of the storage closet.
Tenant retains ownership of the curtains currently in use in the Large Multi-Purpose Room
at the Facility.
2.5. Mailbox. City permits Tenant's use of a designated mail slottinbox at the front
reception counter area of the Facility.
2.6. Utilities. Tenant is responsible for establishing telephone lines, in separate
accounts from the City, and is responsible for payment of monthly accounts related to
these services. All other utilities shall be provided by the City. Tenant 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 loss of the facility for Tenant functions.
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2.7. Signs. No signs may be erected at the Facility, unless Tenant first obtains
written approval from the City. All signs posted by Tenant at the Facility shall conform to all
applicable Palm Springs Municipal Code and Palm Springs Zoning Code provisions.
2.8 Improvements. Should Tenant desire any improvements at the facilities
referenced above, Tenant shall provide City advanced written notice of such
improvements, including the proposed scope of work, and obtain City's written approval
prior to any commencement of work. Tenant shall be solely responsible for any tenant
improvements at the facilities, and represents and warrants that all improvements by
Tenant or Tenant's contractors shall comply with all applicable local, state,and federal law,
including zoning and building codes and any applicable business licenses. Proof of
insurance covering the proposed work in favor of the City, to the satisfaction of the City,
must be presented to City prior to the commencement of any work. Tenant is personally
responsible for the cost of any proposed improvements. If Tenant commences
improvements without complying with the procedures outlined herein, the City may declare
a material breach of this Agreement and terminate the Agreement immediately without any
penalty. In addition, upon expiration or termination of this Agreement for any reason,
Tenant releases all claims to any improvements at the facilities and permits the City to
retain or remove any improvements and recover any such costs from Tenant.
3. SECURITY. Tenant representatives are responsible for locking the building and
setting the alarm upon departure in those instances that Tenant staff are the last
occupants in the facility. Tenant shall identify to the City, in writing, one or more
representatives responsible for securing the building and setting the alarm upon departure.
Tenant shall comply with Chapter 5.02 of the Palm Springs Municipal Code as an "alarm
user' and shall be liable for all false alarm response fees pursuant to Palm Springs
Municipal Code § 5.02.075 resulting from Tenant's failure to set the alarm under
circumstances required by this Agreement.
4. INSURANCE.
4.1. Minimum Insurance. Tenant 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:
4.1.1. Comprehensive General Liability Insurance.A policy of comprehensive
general liability insurance in an amount not less than One Million Dollars ($1,000,000.00)
per occurrence and in an amount not less than Two Million Dollars ($2,000,000.00) in
aggregate. Insurance companies shall have an AM Best's Guide Rating of A-, Class VII or
better.
4.1.2. Workers' Compensation Insurance. To the extent required by Labor
Code § 3700, Tenant shall procure and maintain workers' compensation insurance in the
amount and to the extent required by law.
4.2. Proof of Insurance. Proof of the insurance required under Section 4 shall be
provided to City prior to the execution of this Agreement.
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4.3. Primary Insurance. Tenant's insurance coverage shall be primary with
respect to the City and its respective elected officials, officers, employees, agents, and
volunteers. Any insurance or self-insurance maintained by City and its respective elected
officials, officers, employees, agents, and volunteers shall be in excess of Tenant's
insurance and shall not contribute with it. For Workers' Compensation and Employer's
Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it
may have against City, its elected officials, officers, employees, agents, and volunteers.
4.4. Endorsements. Tenant shall obtain an Additional Insured Endorsement
designating the City, its officers, officials, employees, agents, and volunteers as additional
insureds for liability arising out of this Agreement. All endorsements shall reference that
Tenant's insurance shall be primary and non-contributory, as outlined in Section 4.3.
4.5. Deductible. Any deductibles or self-insured retentions must be declared to
and approved by the City prior to the commencement of this Agreement. At the option of
the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured
retentions with respect to the City, its elected officials, officers, employees, agents, and
volunteers; or(2)Tenant shall procure a bond guaranteeing payment of losses and related
investigations, claim administration, and defense expenses. Certificates of Insurance must
include evidence of the amount of any deductible or self-insured retention under the policy.
Tenant guarantees payment of all deductibles and self-insured retentions.
4.6. Amendment of Insurance Policy. Tenant shall not amend, or allow to be
amended, any insurance policy under this Agreement if such amendment is not consistent
with the minimum insurance requirements contained herein. Such amendment without the
consent of the City shall be considered a material breach of this Agreement and City may
immediately terminate this Agreement upon such occurrence.
4.7. No Cancellation of Insurance Policy. Tenant shall not cancel, or allow to be
cancelled, any insurance policy required under this Agreement. If said policies of
insurance are cancelled, Tenant shall, prior to the cancellation date, immediately obtain
new insurance consistent with the requirements of this Agreement and immediately submit
evidence of such insurance to the City.
4.8. Failure to Obtain Valid Insurance During Use of the Facility. If Tenant is not
minimally insured, as required under Section 4, Tenant shall be considered in material
breach of this Agreement and City may immediately terminate this Agreement.
4.9. No Limitation. The provisions of this Section 4 shall not be construed as
limiting in any way the extent to which Tenant may be held responsible for the payment of
damages to any persons or property resulting from Tenant's activities or the activities of
any person or persons for which Tenant is otherwise responsible.
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5. INDEMNIFICATION AND DEFENSE.
5.1 . Indemnification. Tenant agrees to indemnify the City, its officers,agents and
employees against, and shall hold and save each of them harmless from, any and all
actions, suits, claims, damages to persons or property, including injury or death to any
person, losses, costs, penalties, obligations,errors, omissions or liabilities(herein "Claims")
that may be asserted or claimed by any persons, firm or entity arising out of or related to
this Agreement or Tenant activities at the Facility, except to the extent that the Claim arises
from the sole negligence or willful misconduct of the City, its officers, agents or employees.
5.2. Defense. Tenant agrees to defend, with counsel acceptable to City, the City,
its officers, agents and employees against any Claims that may be asserted or claimed by
any persons, firm or entity arising out of or related to this Agreement or Tenant activities at
the Facility, except to the extent that the Claim arises from the sole negligence or willful
misconduct of the City, its officers, agents or employees.
5.3. Costs Associated with Indemnification and Defense. Tenant shall be
responsible for all costs incurred by the City that are associated with the indemnification or
defense of City by Tenant, including any costs associated with the use of City resources,
including lost time by employees, expended in furtherance of the indemnification or
defense.
6. GENERAL PROVISIONS.
6.1 . Notice. All notices, demands and requests which may be given or which are
required to be given by any party to this Agreement, and any exercise of a right of
termination provided by this Agreement, shall be in writing and shall be deemed effective
either: (1) on the date personally delivered to the address below, as evidenced by written
receipt therefore, whether or not actually received by the person to whom addressed; (2)
on the third (3rd) business day after being sent, by certified or registered mail, return
receipt requested, addressed to the intended recipient at the address specified below; (3)
on the first (1st) business day after being deposited into the custody of a nationally
recognized overnight delivery service(i.e., FedEx Corporation, UPS,or DHL)addressed to
such party at the address specified below; or (4) on the business day sent via facsimile
transmission to the facsimile numbers below, as evidenced by a printed confirmation of the
successful electronic transmission of the message prior to 2:00 p.m. (Pacific Standard
Time), or otherwise delivery shall be considered to be on the following business day. For
purposes of this section, the addresses of the parties for all notices are as follows:
6.1.1. City.
City Manager
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
(760) 323-8299
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6.1.2. Tenant.
Reverend Kevin A. Johnson
3155 E. Ramon Road, Unit 802
Palm Springs, CA 92264
Tenant shall be responsible for notifying the City, in writing, of any changes in Tenant's
address.
6.2. 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 Tenant covenants and
agrees to submit to the personal jurisdiction of such court in the event of such action.
6.3. Waiver. 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 party'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 or
any other provision of this Agreement.
6.4. 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.
6.5. 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 any 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.
6.6. Attorneys 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 investigating
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.
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6.7. Compliance with Governing Law. Tenant shall comply with all applicable
laws, codes, ordinances and regulations of the federal, state, and local government.
6.8. 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.
6.9. Modification. This Agreement may be amended at any time by the mutual
consent of the parties by an instrument in writing.
6.10. Severability. In the event that any one or more of the phrases, sentences,
clauses, paragraphs or sections contained in this 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
so material that this invalidity deprives either party of the basic benefit of their bargain or
renders this Agreement meaningless.
6.11. Successors. The terms and conditions contained herein shall be binding on
and inure to the parties to this Agreement, their administrators, representatives, successors
and assigns, except as otherwise provided in this Agreement.
6.12. Assignment. Tenant may not assign or transfer its interest under this
Agreement without City's prior written consent, which consent may be withheld, conditioned
or delayed in City's sole and absolute discretion. Any attempted assignment, sublet or
transfer made in violation of this provision shall be void.
6.13. Venue. Any action at law or in equity brought by either party to this
Agreement regarding the subject matter of this Agreement shall be filed in the Superior
Court of the State of California for the County of Riverside, Indio Branch.
6.14. Headinqs. The headings used in this Agreement are employed solely for
convenience of the parties and are not to be used as an aid in interpretation.
6.15. Relationship. Nothing contained in this Lease shall be construed as creating
the relationship of principal and agent or of partnership or joint venture between City and
Tenant.
6.16. Authority to Enter into Agreement. The persons executing this Agreement on
behalf of Tenant warrants that they are duly authorized to execute and deliver this
Agreement on behalf of said party, and by so executing this Agreement, such party is
formally bound to the provisions of this Agreement.
6.17. Counterparts and Facsimiles. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument. Any facsimile of the original shall be treated as
an original. The party submitting any facsimile must submit a copy of the original to the
other Party within a reasonable time after the transmission of the facsimile.
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6.18. Entire Agreement. This Agreement constitutes the entire Agreement
between City and Tenant. There are no oral agreements between the parties hereto
affecting this Agreement. 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.
7. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION.
7.1 Non-Liability of City Officers and Employees. No officer or employee of City
shall be personally liable to the Tenant, or any successor-in-interest, in the event of any
default or breach by City or for any amount which may become due to the Tenant or its
successor, or for breach of any obligation of the terms of this agreement.
7.2 Conflict of Interest. Tenant acknowledges that no officer or employee of the
City has or shall have any direct or indirect financial interest in this agreement, nor shall
Tenant enter into any agreement of any kind with any such officer or employee during the
term of this agreement and for one year thereafter. Tenant warrants that Tenant has not
paid or given, and will not pay or give, any third party any money or other consideration in
exchange for obtaining this agreement.
7.3 Covenant Against Discrimination. Tenant covenants that, by and for itself, its
heirs, executors, assigns, and all persons claiming under or through them, that there shall
be no discrimination or segregation in the performance of or in connection with this
Agreement regarding any person or group of persons on account of race, color, creed,
religion, sex, marital status, disability, sexual orientation, gender identity, gender
expression, national origin, physical or mental disability, medical condition, or ancestry.
Tenant shall otherwise fully comply with the provisions of Palm Springs Municipal Code
Section 7.09.040 relating to non-discrimination in city contracting.
[SIGNATURES TO FOLLOW]
772566.1 8
IN WITNESS THEREOF, these parties have executed this Agreement on the day and year
shown below.
CITY OF PALM SPRINGS
Date:
David H. Ready, Esq., Ph.D
City Manager
ATTESTED:
Date:
Kathleen D. Hart, MIMIC
Interim City Clerk
APPROVED AS TO FORM:
Date:
Edward Z. Kotkin
City Attorney
BLOOM IN THE DESERT MINISTRIES
Date:
Kevin A. Johnson
Pastor
If Tenant is a corporation, a Corporate Resolution and/or Corporate Seat is required. If a
partnership, Statement of Partnership must be submitted to City.
772566A 9
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EXHIBIT "A"
(RULES AND REGULATIONS)
1. Tenant shall require users of the kitchen to clean up after themselves and maintain
the kitchen in a clean condition. The City reserves the right to revoke access to the
kitchen at its sole discretion
2. Tenant is responsible for maintaining the security of attendees and parked vehicles
at the Facility through its own efforts,within the scope of Tenant's use of the Facility
or any portion thereof.
3. All of Tenant's refuse and rubbish shall be removed on a regular basis at Tenant's
sole cost and expense. Tenant shall not place any rubbish or other matter outside
any building within the Facility, except in such containers as are authorized from
time to time by the City.
4. No radio or television or other similar device audible outside the facility shall be
installed without obtaining in each instance the written consent of the City. No aerial
shall be erected on the roof, exterior walls or grounds of the Facility without first
obtaining in each instance the written consent of the City which consent shall not be
unreasonably withheld or delayed. Any aerial so installed without such written
consent shall be subject to removal without notice at any time.
5. No loudspeakers, televisions, phonographs, radios or other devices shall be used in
a manner so as to be heard or seen outside of the Facility without complying with
the provisions of the City's Noise Ordinance.
6. No sirens, outside paging or any type of signalization will be permitted, except
approved alarm systems.
7. Tenant will not allow animals, except seeing-eye/service dogs, in,about or upon the
Facility. Exception will be made for one annual pet blessing event,to be determined
and held at one Sunday service during the month of December.
772566.1
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EXHIBIT "C"
(SCHEDULE)
Use of Large Multi-Purpose Room, Inner Lobby and Kitchen
Sundays: 8:00 a.m. to 1:00 p.m.
Note: Use of Gymnasium for overflow events up to 125 people will be permitted upon
written notice to the City of Palm Springs.
772566.1 At