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HomeMy WebLinkAboutE-12 Staff Report - APU Pool License AgreementCONSENT ITEM E-12 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: SERGIO GONZALEZ, CITY MANAGER FROM: MIKI CARPENTER, DIRECTOR OF COMMUNITY RESOURCES DATE: MAY 16, 2022 SUBJECT: APPROVAL OF LICENSE AGREEMENT WITH AZUSA PACIFIC UNIVERSITY (APU) FOR THE USE OF SLAUSON PARK COMMMUNITY POOL/AZUSA AQUATICS CENTER BACKGROUND: The proposed License Agreement will allow for Azusa Pacific University (APU) to continue the use of the Slauson Park Community Pool/Azusa Aquatics Center during the City of Azusa’s off season. APU has been using the pool for this purpose since 2009. Under the terms of the Agreement, the City shall grant APU access to the pool during the months of August through May for one (1) calendar year, with an option of two (2) additional one-year extensions, for the specific use of hosting APU aquatic programs and classes. RECOMMENDATIONS: Staff recommends that the City Council take the following actions: 1)Approve the License Agreement with APU for Slauson Park Community Pool/ Azusa Aquatics Center; and 2)Authorize the City Manager to execute the use License Agreement in a form acceptable to the City Attorney, on behalf of the City, subject to non-substantive changes made by City Manager and City Attorney. APPROVED CITY COUNCIL 5/16/2022 Azusa Pool/Aquatics Center License Agreement with APU May 16, 2022 Page 2 ANALYSIS: APU has been renting the pool since 2009 for student swim classes and as a practice site for the Intercollegiate Women’s Water Polo Team. APU’s rental period is limited to the months of August through May of each calendar year in order to coincide with the University’s regular school year and to allow for and not conflict with other City programming needs. During the term of APU’s use each year, APU is responsible for cleaning, safety, and maintenance requirements as outlined in the License Agreement such as covering the pool to minimize heat escape and for energy conservation and providing certification and other documentation, and lifeguards while the pool is in use. Under the terms of the Agreement, the City shall grant APU access to the pool during the months of August through May for one (1) calendar year from the effective date, with an option of two (2) additional one-year extensions. Either party may terminate this Agreement for breach of obligation and 30-day written notice. FISCAL IMPACT: Under the terms of the Agreement, APU will pay a fee of $4,700 monthly, or $42,300 annually (for nine months of use), and will be bound by the terms of the attached License 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 10-25-410-100-4405. Prepared by: Reviewed by: Rachel Ibarra Miki Carpenter Recreation Coordinator Director of Community Resources Fiscal Review by: Reviewed and Approved by: Talika M. Johnson Sergio Gonzalez Director of Administrative Services City Manager Attachments: 1) License Agreement between APU and City of Azusa for Use of Pool/Aquatics Center 45635.01000\34821445.4 1 CITY OF AZUSA LICENSE AGREEMENT (SLAUSON PARK COMMUNITY POOL/AZUSA AQUATICS CENTER) THIS LICENSE AGREEMENT (“Agreement”) dated ____________, 2022, is entered by and between the CITY OF AZUSA, a municipal corporation in the County of Los Angeles, State of California, (“City” or “Licensee”) and AZUSA PACIFIC UNIVERSITY, a religious, non- profit California corporation (“University” or “Licensor”). The above parties are sometimes referred herein individually as a “Party” and collectively as the “Parties.” RECITALS A.City is the fee owner of that certain real property commonly known as Slauson Park, located at 501 N. Cerritos Avenue in the City of Azusa, County of Los Angeles, State of California (“Property”), which is improved with the James Slauson Community Pool and Azusa Aquatics Center owned and operated by Licensor (“Pool Facilities”). B.University desires to use certain portions of the Pool Facilities to provide courses under the University’s Aquatics Program, to conduct practices for its aquatics athletic teams, and for other occasions according to the terms of this Agreement. C.The City is willing to provide a license to the University for use of certain portions of the Pool Facilities (“License Area”), which shall be used by the University during specified times. The License Area consists of the main competition pool, diving boards, the maintenance building (excluding the pump and chemical rooms), office, locker rooms, and the conference room at the recreation building. 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.Grant of License. Licensor hereby grants to Licensee a revocable license to use and access the License Area, on the terms set forth herein. Licensee and its guests, invitees, and visitors, including without limitation its students and staff (each, a “Pool User”), as necessary or required for purposes of holding Permitted Events (as defined below), shall have access to and use of the License Area during the Term (as defined below); provided, however, that such use and access to the License Area shall be made available to the University during the dates and times set forth in the Schedule. Attachment 1 45635.01000\34821445.4 2 2. Use of License Area. The Parties agree to the use of the License Area during the Term, as follows: (A) The License Area shall be available for the use of the University during the dates and times provided by the University by July 15th, of each year (the “Schedule”), subject to City Staff approval. The Schedule shall consist of the University’s regular times of usage for the sole purpose of the University’s Aquatics Program, including classes and team practice schedules (the “Scheduled Times”) during the months of August through May of each year. (B) In addition to Scheduled Times, the License Area shall be available for the University’s use for special events (“Special Events”), subject to the City’s prior written approval, which may be withheld in its sole and absolute discretion. In no event may the University hold more than five (5) Special Events each year. Special Events and the Schedule Times are together referred to herein as “Permitted Events”. (C) Prior to use of the License Area, the University shall require a waiver of liability against the City to be signed by each Pool User every semester, in the case of the University’s athletes, students, and staff, and prior to each Permitted Event, in the case of all other invitees to Permitted Events. Such signed waivers shall be obtained by University and copies made available to City upon request. (D) The Schedule may be amended upon the mutual written agreement of the Parties. University shall not use the License Area except as expressly provided herein without obtaining the prior written consent of the City, which may be withheld in its sole and absolute discretion. (E) The University and Pool Users agree 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. (F) The License Area shall also be available for use by the City at any time. 3. Term. This Agreement shall become effective on the date when the authorized representatives of each Party sign the Agreement, but in no event later than June 30, 2022 (“Effective Date”). The term of this Agreement is one calendar year from the Effective Date (“Initial Term”), with an option of two (2) one (1) year extensions (each, an “Extended Term”) that shall be automatic unless either Party gives written notice to the other at least 30 days before the end of the “Extended Term” that it has elected not to extend the term of the Agreement. The Initial Term and Extended Term(s), if any, shall collectively be referred to herein as the “Term”. Upon completion of the Term, this Agreement shall automatically terminate without any action or notice by either Party. 45635.01000\34821445.4 3 4. 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 cure such breach after receipt of thirty (30) days’ written notice to cure. 5. Fees, Costs, and Charges (A) University agrees to pay City Forty-Two Thousand, Three Hundred Dollars ($42,300) for the Term of the Agreement. (B) If any major equipment within or supporting the License Area needs repair or replacement during the Term, the Parties shall share the costs equally. (C) 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. (D) City shall send a monthly invoice to University, which shall be responsible for payment to the City within thirty (30) days of receipt for utility and maintenance costs directly related to use of the License Area. University shall also be responsible for the costs of any additions to existing utilities (such as telephone service) if requested by University and approved by City, in writing, in connection with the University’s use, possession, and occupancy of the License Area. 6. Permits and Licenses. University shall maintain, in good standing and at all times during the Term of this Agreement, 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 License Area. This includes providing copies of the lifeguard certifications to the City before keys are handed over at the beginning of the season. 7. Cleanliness, Waste, and Nuisance. (A) During its use of the License Area, University shall maintain the License Area, and all areas used to access the License Area, in a lawful, fully operable, safe, neat, clean, and sanitary condition, free from waste and debris. University shall not permit any waste or nuisance in or about the License Area, nor store materials hazardous to health or safety of the public, nor shall University permit the use of the License Area for any illegal purposes at all times during the Term. University shall keep the License Area free of any objects, items, obstacles, or materials and ensure unobstructed paths around the Pool during the times of Permitted Events; provided, however, that the University shall, after each Permitted Event, return the License Area in the condition similar to that found upon the initiation of the Permitted Event. (B) University shall be responsible for cleaning restrooms, office(s), designated areas, entry ways and pool deck as well as providing all swimming, exercise, or similar supplies necessary to operate its aquatics program during its use of the License Area. University will be responsible for covering and removing the pool cover each time it uses the pool. 45635.01000\34821445.4 4 8. Insurance. (A) Minimum Requirements. University shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to the Property which may arise from or are in connection with this Agreement. i. 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. ii. 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. iii. Endorsements. The insurance policies shall contains the following provisions: 1. 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 the Agreement; 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. 2. Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the City and its directors, officials, officers, employees and agen ts 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 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. 45635.01000\34821445.4 5 3. Worker’s Compensation and Employer’s Liability. 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. 4. All Coverages. Each insurance policy required by this Section 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. 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. (B) 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. (C) 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. (D) 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 required to be maintained by University hereunder. Such increases will be required if, upon City’s determination, they are reasonably necessary to maintain the level of protection provided to City at the same level provided hereunder as of the Effective Date. 9. Supervision; Security (A) Lifeguards. University agrees to provide, at its own cost, supervision by certified lifeguards at all times of use during Permitted Events. At least one lifeguard per twenty (20) individuals shall be present and supervising swimmers in the Pool Facilities. University will provide additional lifeguard supervision of swimmers if necessary to comply with then-existing requirements and policies established by the City or University. 45635.01000\34821445.4 6 (B) Security. University agrees to take responsibility for security in the main competition pool and locker room areas at all times during University’s use of the Pool Facilities. 10. 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. 11. Condition of License Area. University represents that University has inspected and examined the License Area and accepts the License Area in the condition it was in as of the Effective Date. University acknowledges that City shall only make repairs or improvements to the License Area on an as needed basis, in accordance with other applicable terms of this Agreement. City staff shall have the right to conduct unannounced inspections of the License Area before and after University use. If it is determined that University has violated its maintenance responsibilities in this Agreement, the violation shall be treated as an Event of Default pursuant to Section 18. 12. Damage to Property; Abandonment. University agrees that University is jointly and severally liable for all damages to the Property caused or permitted by the University or the guests, invitees, visitors, agents, employees and independent contractors of University. University shall not vacate or abandon the License Area at any time during the Term of the Agreement. 13. Alterations and Improvements Notwithstanding University’s obligations under Section 14(B), University shall not, without the prior written consent of City, make any alterations, improvements or additions in or about the License Area. 14. Surrender of License Area; Improvements (A) Surrender. Upon the expiration or earlier termination of this Agreement, University shall surrender the License Area in good order and condition, ordinary wear and tear excepted. All University equipment shall be removed from the License Area at the end of each season. 45635.01000\34821445.4 7 (B) Improvements. All improvements made by University on the License Area during the Term of this Agreement shall, without compensation to University, automatically and without any act of University or any third-party become City property at the expiration or earlier termination of the Agreement. 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. 15. 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. 16. 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. 17. Anti-Discrimination. University agrees that this Agreement is made an d accepted on and subject to the condition that there be no discrimination against or segregation of any person or groups of person, on account of race, color, sex, sexual orientation, age, handicap, marital status, religion, nation origin or ancestry in the use, occupancy, tenure or enjoyment of the License Area, 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 License Area. 18. Event of Default. Either of the following occurrences shall constitute an “Event of Default” under this Agreement: (A) 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; or 45635.01000\34821445.4 8 (B) University breaches any of the other agreements, terms, covenants, or conditions of this Agreement, and the breach continues for a period of thirty (30) calendar days after written notice by City to University. 19. Remedies. If an Event of Default set forth in Section 18 occurs and any applicable cure period has expired, then City may, at its election, terminate this Agreement. Nothing contained herein shall limit City from pursuing, at any time, any remedy available to it at law or equity. 20. Miscellaneous. (A) 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. (B) 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. (C) 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: Miki Carpenter Community Resources Director 320 N. Orange Place Azusa CA 91702 University: Aaron Barthholomew Assistant Athletic Director Azusa Pacific University 901 E. Alosta Ave. Azusa, CA 91702-7000 45635.01000\34821445.4 RVPUB\KCV\653302 With a copy to: James Buckley General Counsel 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. (D) 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 recover of and from the other Party all costs and expenses of suit, including actual attorneys’ fees. (E) 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. (F) 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. (G) Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, 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 representative of either Party shall be of any effect unless it is in writin g and executed by the party to be bound thereby. (H) 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. (I) 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. 45635.01000\34821445.4 (J) 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. (K) 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. (L) 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. (M) Severability. Each provision of this Agreement is severable from the other provisions. 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 to the fullest extent permitted by law. (N) Time of Essence. Time is expressly declared to be of the essence of this Agreement. (O) 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. [Signatures on Next Page] 45635.01000\34821445.4 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/ or Designee ATTEST: By: City Clerk CFO/ or Designee APPROVED AS TO FORM: ___________________________ City Attorney