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HomeMy WebLinkAboutCC AG PKT 2013-09-23 #DDATE: September 23, 2013 TO: Honorable Mayor and City Council THRU: Jill R. Ingram, City Manager FROM: Joe Bailey, Marine Safety Chief SUMMARY OF REQUEST: That the City Council adopt Resolution No. 6406 authorizing the City Manager to execute a facility license agreement with the Seal Beach Swim Club for use of the McGaugh pool. On July 8, 2013, the City Council determined that the Seal Beach Swim Club ("Swim Club") should be allowed to use the pool at McGaugh Elementary School for a flat monthly rate of $550. Staff has negotiated a Facility License Agreement with the Swim Club to establish the terms and conditions under which the Swim Club can use the pool at the rate established by the City Council. One such term establishes that the monthly flat rate will increase 2% annually. There is no Environmental Impact related to this item. A A A The City Attorney has reviewed the agreement and approved as to form. The new fee will create additional revenue from the rental of McGaugh pool. Agenda Item — Q L2*4USI ", I That the City Council adopt Resolution No. 6406 authorizing the City Manager to execute the Facility License Agreement with the Seal Beach Swim Club regarding use of the McGaugh pool. W9 y Chief 4JiI R121ngram, City "a ager Attachments: A. Resolution No. 6406 B. Facility License Agreement im RESOLUTION NUMBER 6406 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING A FACILITY LICENSE AGREEMENT WITH THE SEAL BEACH SWIM CLUB REGARDING USE OF THE MCGAUGH POOL THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE: SECTION 1. The City Council hereby approves that Facility License Agreement dated September 23, 2013 between the City of Seal Beach and the Seal Beach Swim Club regarding the use of the McGaugh pool. SECTION 2. The City Council hereby authorizes and directs the City Manager to execute the Facility Lease Agreement. PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a regular meeting held on the 23rd day of September , 2013 by the following vote: AYES: Council Members NOES: Council Members ABSENT: Council Members ABSTAIN: Council Members Mayor ATTEST: City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE SS CITY OF SEAL BEACH 1, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution Number 6406 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 23rd _ day of September , 2013. City Clerk FACILITY LICENSE AGREEMENT between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 !"A Seal Beach Swim Club P.O. Box 605 Seal Beach, CA 90740 (562) 430-1092 This Facility License Agreement ("Agreement") is made as of September 23, 2013 (the "Effective Date") by and between the City of Seal Beach, a California charter city ("City"), and Seal Beach Swim Club ("Licensee"), a Not for Profit USA Swimming swim team. City and Licensee are referred to herein collectively as the "Parties" and each individually as a "Party." 1 of 8 RECITALS 1. City operates the pool at McGaugh Elementary School, located at 1698 Bolsa Avenue, Seal Beach ("McGaugh Pool"), pursuant to ajoint use agreement with the Los Alamitos Unified School District ("School District"). 2. Licensee wishes to use the McGaugh Pool for recreational purposes. NOW, THEREFORE, CITY AND LICENSEE AGREE AS FOLLOWS: AGREEMENT Section 1. Grant of License 1.1 City grants to Licensee a license to use the McGaugh Pool (hereinafter the "Premises") subject to the terms and conditions of this Agreement. Licensee shall not use the Premises in any manner contrary to or inconsistent with the terms of this Agreement without City's prior written consent. 12 No Leasehold. No legal title or leasehold interest in the Premises is created or vested in Licensee by the grant of this License. Section 2. Consideration 2.1 Facility License Fee. Licensee shall pay City a facility license fee of $550 per month, for use of the Premises in accordance with the Schedule of Use set forth in Exhibit A to this Agreement, which is attached hereto and incorporated by this reference (hereinafter the "Schedule of Use"). Licensee shall pay the facility license fee in advance before the I st day of the month. The monthly license fee shall automatically increase by 2% on July I of each year this Agreement is in effect. 2.2 Licensee shall pay the City's standard and customary use fees to use the Premises at anytime outside the Schedule of Use. Section 3. Term and Termination 3.1 The operating term of this Agreement shall begin as of the Effective Date and continue until terminated as provided in this Agreement. 3.2 Either Party may terminate this Agreement without cause by giving 30 days written notice to the other Patty. 3.3 City may terminate this Agreement upon 10 days' notice to Licensee if Licensee fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 2 of 8 Section 4. Relationship of the Parties 4.1 The only relationship created by this Agreement is of that of licensor and licensee. Neither City nor any of its officers, employees, or agents shall have control over the means of service or means of production of Licensee or any of its officers or agents, or employees acting within the scope of employment by Licensee. Licensee is solely responsible for all aspects of its programs and operations including, without limitation, its use of the Premises. Licensee shall not, at any time or in any manner, represent that it or any of its officers, agents, or employees are in any manner agents or employees of City acting within the scope of employment by City. Section 5. Use of Premises 5.1 Schedule of Use. Licensee's license to use the Premises is limited to the days, times, and portions of the Premises set forth in the Schedule Use. City reserves the right to use, sublease, or license the Premises to third parties, so long as such third party use, sublease, or license does not conflict with Licensee's use of the Premises according to the Schedule of Use. Licensee is aware and acknowledges that the Schedule of Use is subject to change to meet the scheduling and maintenance needs of the School District and agrees to indemnify and hold City harmless for any such changes to the Schedule of Use. Licensee may request to use the Premises outside the Schedule of Use, subject to City's approval. 5.2 Licensee Personnel. All of Licensee's employees and all persons acting as coaches shall complete and maintain a current Level 2 background check by USA Swimming. 5.3 Lifeguards on Duty. Licensee must at all times while it uses the Premises provide one lifeguard on duty when it is using the Premises in accordance with the Schedule of Use. Every lifeguard provided by Licensee must have a current lifeguard certification from the American Red Cross or have successfully completed USA Swimming's Safety Training for Swim Coaches. Prior to any person acting as a lifeguard, Licensee must deliver a copy of that person's certification to the City's Marine Safety Chief. 5.4 No Equipment Storage. Licensee must not leave or store any personal property— including but not limited to sporting equipment—on or at the Premises when it is not using the Premises pursuant to this Agreement. 5.5. Cleaning the Premises. Licensee must leave the Premises in a neat and orderly condition after every use, which shall include but not be limited to cleaning the pool deck and picking up and removing all trash. 5.6 No Unlawful Uses. Licensee shall only be permitted to use the Premises for recreational, wellness, and educational opportunities for youth and Licensee shall not use the Premises for any immoral or unlawful purpose. 5.7 Preservation of Insurance. Licensee shall not commit any acts on the Premises, nor use the Premises in any manner that will cause the cancellation of any fire, liability, or other insurance policy insuring the Premises or the improvements on the Premises. Im 5.8 No Waste or Nuisance. Licensee shall not commit any waste or any public or private nuisance upon the Premises. 5.9 Legal Compliance. Licensee shall not violate any law, rule, or order of any federal, state, or municipal government or agency that may be applicable to use of the Premises. 5.10 Vacating Premises. On or before the effective date of termination of this License, Licensee shall vacate the Premises, remove all of Licensee's personal property from the Premises, and leave the Premises in good order and repair, subject to the satisfaction of City. Section 6. Indemnity, Hold Harmless, and Duty to Defend 6.1 Licensee shall defend, indemnify, and hold the City, the School District, and their respective officials, officers, employees, volunteers and agents serving as independent contractors in the role of City or School District officials (collectively "Indemnitees ") free and harmless from any and all claims, demands, causes of action, judgments, penalties, costs, expenses, liabilities, losses, damages, or injuries, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Licensee, its officers, agents, contractors, employees, guests, or invitees in connection with the performance of this Agreement or use of the Premises, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses, except for such loss or damage arising from the sole negligence or willful misconduct of the City or School District. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Licensee shall defend Indemnitees with counsel reasonably satisfactory to Indemnitees, at Licensee's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Licensee shall reimburse Indemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Licensee's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Licensee or Indemnitees. All duties of Licensee under this Section shall survive termination of this Agreement. Section 7. Insurance 7.1 Licensee shall not commence any use of the Premises until it has provided evidence satisfactory to the City that Licensee has secured all insurance required under this Section. Licensee shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements shall be received and approved by the City before use of the Premises commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 7T2. Licensee shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the use of the Premises. Insurance is to be placed with insurers 4 of 8 with a current A.M. Best's rating no less than A:VIIL licensed to do business in California, and satisfactory to the City. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code I (any auto); and, if required by the City, (3) Professional Liability. Licensee shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Professional Liability: $1,000,000 per claim/aggregate. 73. The insurance policies shall contain the following provisions, or Licensee shall provide endorsements on forms supplied or approved by the City to state: (1) coverage shall not be suspended, voided, reduced, or canceled without 30-days prior written notice to City by certified mail, return receipt requested; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, or officers; (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Licensee's scheduled underlying coverage and that any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Licensee's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the Licensee, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Licensee or for which the Licensee is responsible. 7.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers. 7.5. Any deductibles or self-insured retentions shall be declared to and approved by the City. Licensee guarantees that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Licensee shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. Section 8. Notices 8.1 All notices and demands that may be required or permitted by this Agreement must be made in writing. All notices and demands must be sent by national overnight delivery 5 of 8 service (e.g, Federal Express) or certified U.S. mail, return receipt requested, to the addresses specified below, or to any other place that the respective party may from time to time designate in a notice to the other. If to City: City of Seal Beach 211 8th Street Seal Beach, CA 90740 Attn: City Manager If to Licensee: Seal Beach Swim Club P.O Box 605 Seal Beach, CA 90740 Attn: Maria Fattal 8.2 Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. Section 9. Miscellany 9.1 Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof, and any other purported agreement made shall be ineffective to change, modify, discharge, or effect an abandonment of this Agreement in whole or in part unless such purported agreement is in writing and signed by the party against whom enforcement is sought. 9.2 Applicable Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of California. 9.3 Counterparts. This Agreement may be executed in multiple counterparts each of which shall be deemed an original for all purposes. 9.4 Severability. The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 9.5 No Third Party Rights. No third party shall be deemed to have any rights hereunder against either Party as a result of this Agreement. 9.6 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit., privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 9.7 Assignment Prohibited. This Agreement is personal to Licensee and shall not be transferred or assigned. Any attempt by Licensee to transfer or assign this Agreement shall result in its automatic termination. MW IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. ATTEST: am Linda Devine, City Clerk APPROVED AS TO FORM: BY: Qu\i6 M. Bar w, City Attorney M Jill R. Ingram, City Manager SEAL BEACH SWIM CLUB By: At. ----- C�- � Name: 6 1I Title:, /V Aly-"�kp, Sty 0 Name: Title: 7 of 8 Exhibit A • Six lap swimming lanes will be reserved for the exclusive use of the Seal Beach Swim Club, Monday through Thursday of every week, from 4:00 pm to 5:30 pm during the school year. • Summer use hours will be Monday through Thursday of every week, from 5:00 pm to 6:30 pm. • Use of the pool by the Seal Beach Swim Club at any other time is not included in this Schedule of Use. 8 of 8