HomeMy WebLinkAboutE-11 Staff Report - Use Lease Agreement with APUCONSENT ITEM
E-11
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: STEPHAN E. HUNT, CHIEF OF POLICE/ACTING CITY MANAGER
FROM: JOE JACOBS, DIRECTOR OF RECREATION & FAMILY SERVICES
DATE: AUGUST 21, 2017
SUBJECT: APPROVAL OF EXTENSION OF THE USE/LEASE AGREEMENT WITH AZUSA
PACIFIC UNIVERSITY FOR THE SLAUSON PARK COMMUNITY POOL/AZUSA
AQUATICS CENTER
SUMMARY:
The proposed Use/Lease Agreement will allow for the extension of the annual agreement with Azusa
Pacific University for use of the Slauson Park Community Pool/Azusa Aquatics Center during the off
season for a nine month period, specifically to host the APU Aquatics Program and classes.
RECOMMENDATION:
Staff recommends the City Council take the following actions:
1) Approve the Use/Lease Agreement with APU for Slauson Park Community Pool/Azusa Aquatics
Center from August 28, 2017 through May 4, 2018; and
2) Authorize the City Manager to execute the use lease agreement in a form acceptable to the City
Attorney, on behalf of the City.
DISCUSSION:
APU first approached City staff with reference to renting the pool during the 2009-2010 School Year for
student swim classes and as a practice site for the new Intercollegiate Women’s Water Polo Team. In
this collaborative effort, APU had sole liability and responsibility for staffing the facility during this
period. Maintenance of the facility was shared as per attached agreement. The collaborative effort was
a successful one, and both parties embraced the opportunity to repeat the program for eight consecutive
years, and look forward to the 2017-2018 School Year.
APPROVED
CITY COUNCIL
8/21/2017
Use/Lease Agreement APU/Slauson Park
August 21, 2017
Page 2
FISCAL IMPACT:
Under the terms of the agreement, APU will pay the City rent of $4,700 per month or $37,600 annually
plus all other costs outlined in the lease agreement. In addition, APU will be responsible for all utility
and maintenance costs that would have been necessitated with their use, such as heating the pool. The
pool rental revenues will be recognized under 1025410000-4405. Staff appreciates APU’s collaborative
efforts and investment in the facility and its receptive disposition to all discussions on capital
improvements necessary at the pool.
Prepared by: Fiscal Impact Reviewed by:
Joe Jacobs Talika M. Johnson
Director of Recreation and Family Services Director of Finance
Reviewed and Approved: Reviewed and Approved:
Louie F. Lacasella Stephan E. Hunt
Senior Management Analyst Chief of Police/Acting City Manager
Attachment:
1) Use Lease Agreement
2) Schedule
3) Certificate of Insurance
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CITY OF AZUSA
USE/LEASE AGREEMENT
(SLAUSON PARK COMMUNITY POOL/AZUSA AQUATICS CENTER)
THIS SWIMMING POOL USE AGREEMENT (“Agreement”) is entered into this 27th
day of August, 2017, by and between the CITY OF AZUSA, a municipal corporation in the
County of Los Angeles, State of California, (“City”) and AZUSA PACIFIC UNIVERSITY, a
religious, non-profit California corporation (“University”). City and University are sometimes
referred herein individually as “Party” and collectively as “Parties.”
RECITALS
A. City is fee owner of that certain real property commonly known as Slauson Park,
located at 501 North Cerritos Avenue in the City of Azusa, County of Los Angeles, State of
California, herein by reference (“Property”).
B. University desires to use the James Slauson Community Pool/Azusa Aquatics
Center located on the Property and City is willing to allow University use for the sole purpose of
Azusa Pacific’s Aquatics Program which shall include courses in aquatics in addition to practices
for University’s aquatics athletic teams.
NOW, THEREFORE, in consideration of the above facts and for the promises and
mutual covenants contained herein, the receipt and adequacy of which are hereby acknowledged,
the Parties agree to the following:
TERMS AND CONDITIONS
1. Effective Date; Term; Termination.
1.1 Effective Date. This Agreement shall become effective on August 28,
2017.
1.2 Term. Upon the effective date, City hereby allows University to use the
Property according to the terms and conditions set forth in this Agreement. The term of this
Agreement (“Term”), shall commence on the effective date and shall end no later than May 4,
2018.
1.3 Termination. Either party may terminate this Agreement if the other party
breaches any of its obligations provided for in this Agreement and the breaching party fails to
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cure such breach after receipt of a thirty (30) day notice to cure. Notwithstanding the foregoing,
this Agreement shall automatically terminate without any action or notice by ei ther Party upon
the end of the Term.
2. Rent; Utilities; Other Fees
2.1 Rent. University shall pay rent to the City in the amount of $4,700 per
month of City’s actual costs to heat, clean and maintain the chemical balance of the swimming
pool located on the Property; provided, however, that the total amount of such rent shall not
exceed the sum of Thirty Seven Thousand, Six Hundred Dollars ($37,600) during the term of
this Agreement.
2.2 Utilities. City shall pay the appropriate suppliers for all water, gas,
electricity, light, heat, telephone, power, and other utilities and communications services used by
University on the Property during the Term of this Agreement. City shall send monthly invoice
to University, which shall be responsible for payment to the City within thirty (30) days for
directly related utility and maintenance costs. In addition University shall be responsible for any
additions to existing utilities (such as telephone service) if requested by University and approved
by City with respect to use and occupancy of the Property.
3. Use.
3.1 Permitted Use. The Property shall be used solely for the purpose of _APU
aquatics program (including aquatics classes). A schedule of practice times is attached hereto as
Exhibit A and may be modified as mutually agreed upon by University and City. University
shall not change the type of use of the Property without obtaining the prior written consent of the
City, which may be withheld in its sole and absolute discretion. The foregoing notwithstanding,
University in its possession, use and occupancy of the Property, agrees to observe and comply
with all restrictions, laws and ordinances affecting the Property or occupancy thereof. University
further agrees that no use shall be made of the Property which will cause cancellation of any
insurance policy covering the Property.
3.2 Permits and Licenses. University shall keep any and all applicable permits
and licenses required by the City or any federal, state or local authority in connection with the
permitted use of the Property, in good standing at all times during the term of this Agreement.
3.3 Standard of Care. University agrees to use all care and attention in use of
the Property consistent with standards applicable to public swimming facilities.
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4. Insurance.
4.1 Minimum Requirements. University shall, at its expense, procure and
maintain for the duration of the Agreement insurance, acceptable to the City, against claims for
injuries to persons or damages to the Property which may arise from or are in connection with
this Agreement.
4.1.2 Minimum Scope of Insurance. 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 1 (any auto);
and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as
required by the State of California and Employer’s Liability Insurance.
4.1.3 Minimum Limits of Insurance. University shall maintain limits no
less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and
property damage. If Commercial General Liability Insurance or other form with 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: $2,000,000 per accident for bodily injury and property damage; and
(3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required
by the Labor Code of the State of California, if applicable. Employer’s Liability limits of
$1,000,000 per accident for bodily injury or disease.
4.1.4 Endorsements. The insurance policies shall contains the following
provisions:
(a) General Liability. The general liability policy shall be endorsed to
state that (1) the City and its directors, officials, officers, employees and agents shall be covered
as additional insureds with respect to the performance of the Agreement by the University and its
officials, officers, agents, representatives, employees or volunteers, including materials, parts or
equipment furnished in connection with such services; and (2) the insurance coverage shall be
primary insurance for the City and its directors, officials, officers, employees and agents, or if
excess, shall stand in an unbroken chain of coverage excess of the University’s scheduled
underlying coverage. Any insurance maintained by the City or its directors, officials, officers,
employees and agents shall be excess of the University’s insurance and shall not be called upon
to contribute with it in any way.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the City and its directors, officials, officers, employees and agents shall
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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 University or for
which the University is responsible; and (2) the insurance coverage shall be primary insurance as
respects the City and its directors, officials, officers, employees and agents, or if excess, shall
stand in an unbroken chain of coverage excess of the University’s insurance and shall not be
called upon to contribute with it in any way.
(c) Worker’s Compensation and Employers Liability Coverage. The
insurer shall agree to waive all rights of subrogation against the City and its directors, officials,
officers, employees and agents for losses paid under the terms of the insurance policy which
arise from work performed by the University.
(d) All Coverages. Each insurance policy required by this Agreement
shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced, or canceled
without thirty (30) days prior written notice by first class mail has been given to the City.
4.1.5 Separation of Insureds; No Special Limitations. All insurance
required by this Section shall contain standard separation of insured provisions. In addition, such
insurance shall not contain any special limitations on the scope of protection afforded to the City
or its directors, officials, officers, employees and agents.
4.2 Verification of Coverage. University shall furnish City with original
certificates of insurance effecting coverage and endorsements required by this Agreement on
forms satisfactory to City. The certificates 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
University if requested. City reserves the right to require complete, certified copies of all
required insurance policies, at any time.
4.3 Personal Property. University shall, at its sole cost and expense and at all
times during the term of this Agreement, keep all University personal property on the Property
insured for its full replacement value by insurance companies authorized to do business in the
State of California against loss or destruction by fire and the perils commonly covered under the
standard extended coverage endorsement to fire insurance policies in the United States. No
provision of this Agreement shall be construed to impose any obligation upon City to insure
University’s personal property.
4.4 Increases in Coverage. City may, from time to time, require University to
obtain (at University’s expense) increases in both the types and amounts of coverage provided by
the insurances required to be maintained by University hereunder, upon City’s determination that
such increases are reasonably necessary to maintain the level of protection provided to City
hereunder as of the effective date.
5. Cleanliness, Waste and Nuisance.
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5.1 University shall keep the Property in a neat, clean and sanitary condition,
free from waste or debris and shall neither commit, suffer nor permit any waste or nuisance in or
about the Property nor store materials hazardous to health or safety, and shall not permit the use
of the Property for any illegal purposes.
5.2 University agrees to keep Property in proper order and agrees to provide
all cleaning of inside restrooms, office, entry ways and pool deck as well as provide all supplies
necessary to operate its aquatics program during its use of Property. University will be
responsible for covering and removing pool cover on a daily basis.
6. Supervision; Security
6.1 Lifeguards. University agrees to provide, at its own cost, supervision by
certified lifeguards at all times of use. At least one lifeguard per twenty (20) individuals shall be
present and supervising the Program. University will maintain additional supervision of
participants while using the Property pursuant to existing requirements and policies established
by the City or University.
6.2 Security. University agrees to take responsible for security in the
pool and locker room areas during at all times of University use.
7. Assignments; Subleases; Transfers
University shall not voluntarily or by operation of law assign, transfer, sublet,
mortgage, or otherwise transfer or encumber all or any part of University’s interest in this
Agreement or the Property, without City’s prior written consent, which consent may be withheld
in its sole and absolute discretion. Any attempted action described above without the prior
written consent of City shall be void and University shall be deemed in default of this
Agreement. Any permitted assignments shall not relieve the assigning party from its liability
under this Agreement.
8. Condition of Property.
University represents that University has inspected and examined the Property
and accepts the Property in its present condition and agrees that City shall only make repairs or
improvements to Property on an as needed basis.
9. Damage to Property; Abandonment.
University agrees that University is jointly and severally liable for all damages to
the Property caused or permitted by the Universit y or the guests, invitees, visitors, agents,
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employees and independent contractors of University. University shall not vacate or abandon the
Property at any time during the Term of the Agreement.
10. Alterations and Improvements
Notwithstanding University’s obligations under Section 12.2, University shall not,
without the prior written consent of City, make any alterations, improvements or additions in or
about the Property.
11. Surrender of Leased Property; Improvements
11.1 Surrender. Upon the termination of the Agreement, University shall
surrender the Property in good order and condition, ordinary wear and tear or condemnation
excepted.
11.2 Improvements. All improvements on the Property at the expiration of the
term or earlier termination of this Agreement shall, without compensation to University, then
automatically and without any act of University or any third-party become City property.
University shall surrender the improvements to City at the expiration of the term or earlier
termination of this Agreement, free and clear of all liens and encumbrances, other than those, if
any, permitted under this Agreement or otherwise created or consented to in writing by City.
University agrees to execute, acknowledge, and deliver to City any instrument requested by City
as necessary in City’s opinion to convey or otherwise perfect City’s right, title, and interest to the
improvements and the Property.
12. Right of Entry; Inspection.
University shall permit City or City’s agents, employees and representatives to
enter the Property at any time and without notice for the purpose of inspecting the Property.
13. Indemnification.
University shall defend, indemnify and hold City, its officials, officers,
employees, volunteers and agents free and harmless from any and all claims, demands, causes of
action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons,
including wrongful death, in any manner arising out of or incident to any alleged acts, omissions
or willful misconduct of the University, its officials, officers, employees, agents, consultants,
students, contractors and subcontractors arising out of or in connection with this Agreement. If
any action or proceeding is brought against City, its successors or assigns by reason of any claim,
University, upon notice from City, shall defend the claim at University’s sole expense with
counsel satisfactory to City.
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14. Anti-Discrimination.
University agrees that this Agreement is made an accepted on and subject to the
conditions that there be no discrimination against or segregation of any person or groups of
person, on account of race, color, sex, age handicap, marital status, religion, nation origin or
ancestry in the use, occupancy, tenure or enjoyment of the Property, nor shall University, or any
person claiming under or through it, establish or permit any practice or practices of
discrimination or segregation with reference to the Property.
15. Events of Default.
Either of the following occurrences shall constitute “Events of Default” under this
Agreement:
15.1 University files a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or under any
insolvency act of any state, or is dissolved, or makes an assignment for the benefit of creditors;
15.2 University breaches any of the other agreements, terms, covenants, or
conditions that the Agreement requires University to perform, and the breach continues for a
period of thirty (30) calendar days after notice by City to University; and
16. Remedies.
If any one (1) or more Events of Default set forth in Section 16 occurs and
University has not cured in the time provided for, then City may, at its el ection, terminate this
Agreement and recover possession of the Property. Nothing contained herein shall limit City
from pursuing, at any time, any remedy available to it at law or equity.
17. Miscellaneous.
17.1 No Waiver. No waiver or any condition or agreement in this Agreement
by either City or University shall imply or constitute a further waiver by such Party of the same
or any other condition or agreement.
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17.2 Authority. Each of the persons executing this Agreement on behalf of
University warrants to City that Agreement is a duly authorized and existing California non-
profit corporation, that University is qualified to operate in the State of California, that
University has full right and authority to enter into this Agreement, and that each and every
person signing on behalf of University is authorized to do so. Upon City’s request, University
shall provide evidence satisfactory to City confirming these representations.
17.3 Notices. Any notice, request, demand, consent, approval, or other
communication required or permitted under this Agreement shall be written and shall be deemed
to have been given when personally delivered, sent by overnight delivery, or sent by certified or
registered mail, return receipt requested, addressed to:
City:
Joe Jacobs
Director of Recreation and Family Services
City of Azusa
320 N. Orange Ave.
Azusa, CA 91702
University:
Aaron Barthholomew
Assistant Athletic Director
Azusa Pacific University
With a copy to:
Mark S. Dickerson
Vice President for Legal and Community Affairs
Azusa Pacific University
901 E. Alosta Ave.
Azusa, CA 91702-7000
City or University may change its address for notification under this Agreement
by giving the other Party ten (10) calendar days’ notice prior to the change.
17.4 Attorneys’ Fees. In the event of the bringing of an action or suit by a
Party hereto against another Party hereunder by reason of a breach of any of the covenants or
agreements or any inaccuracies in any of the representations and warranties on the part of the
other Party arising out of this Agreement, then in that event, the prevailing Party in such action
or dispute, whether by final judgment, or out of court settlement shall be entitled to have and
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recover of and from the other Party all costs and expenses of suit, including actual attorneys’
fees.
17.5 Binding Effect. This Agreement shall inure to the benefit of, and shall be
binding upon, City’s successors and assigns. This Agreement shall inure to the benefit of, and
shall be binding upon, the University’s successors and assigns so long as the succession or
assignment is permitted by Section 8.
17.6 Governing Law; Venue. This Agreement shall be governed by the laws of
the State of California. Venue for any action filed with respect to the Agreement shall be in the
courts of the County of Los Angeles and all Parties agree to submit to the jurisdiction of said
courts.
17.7 Entire Agreement. This Agreement supersedes any prior agreements,
negotiations and communications, oral or writ ten, and constitutes the entire agreement between
City and University as to the subject matter hereof. No subsequent agreement, representation, or
promise made by either Party hereto, or by or to an employee, officer, agent or representa tive of
either Party shall be of any effect unless it is in writing and executed by the party to be bound
thereby.
17.8 No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement shall not be deemed to confer any rights
upon, nor obligate any of the Parties thereto, to any person or entity other than the Parties hereto.
17.9 Amendment to this Agreement. The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the Parties hereto.
17.10 Fees and Other Expenses. Except as otherwise provided herein, each of
the Parties shall pay its own fees and expenses in connection with this Agreement.
17.11 No Partnership or Joint Venture. Nothing in this Agreement shall be
construed to render the City in any way or for any purpose a partner, joint venture, or associate in
any relationship with University other than that of City and University, nor shall this Agreement
be construed to authorize either to act as agent for the other.
17.12 Execution of Agreement; No Option. The submission of this Agreement
to University shall be for examination purposes only and does not and shall not constitute a
reservation of or option for University to lease, or otherwise create any interest of University in
the Property. Execution of this Agreement by University and its return to City shall not be
binding on City notwithstanding any time interval until City has in fact signed and delivered this
Agreement to University.
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17.13 Partial Invalidity. If any provision of this Agreement is held by a court of
competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of
this Agreement shall remain in full force and effect unimpaired by the holding.
17.14 Time of Essence. Time is expressly declared to be of the essence of this
Agreement.
17.15 Recording. City may at any time during any term of this Agreement,
execute and record either this Agreement or a memorandum of this Agreement, which
memorandum University shall execute and acknowledge upon City’s written request.
17.16 Severability. In the even any one or more provisions in this Agreement
shall, for any reason, be held invalid, illegal or unenforceable, such provision(s) shall be severed
from the Agreement but shall not affect any other provision of this Agreement.
IN WITNESS WHEREOF, City and University have executed this Agreement as
of the date first written above.
CITY OF AZUSA AZUSA PACIFIC UNIVERSITY
By: By:
City Manager/ or Designee Senior Vice President
ATTEST:
By:
City Clerk
CFO/Treasurer
APPROVED AS TO FORM:
___________________________
City Attorney