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HomeMy WebLinkAboutCentral USD - Provide Swim Lessons to the CUSD Community 3/1/2019 - 8/10/2019 AGREEMENT BETWEEN CITY OF FRESNO AND CENTRAL UNIFIED SCHOOL DISTRICT TO PROVIDE SWIM LESSONS TO THE CUSD COMMUNITY This Agreement is made and entered into as of this _I day of March 2019, between the City of Fresno, a municipal corporation (City) and Central Unified School District, a public school district (District). RECITALS A. The District is authorized by California Education Code Section 10910 to allow for use of District properties by other public authorities for community recreational purposes. B. City has an objective of, where feasible, using school sites for community use and to maximize the efficient use, maintenance, and supervision of public facilities, which such objectives are the intended purpose of this Agreement. C. Expanded community use of District school sites will maximize utilization of District property and improve opportunities for public and community recreational activity in the City and its various communities. D. City and District mutually desire to enter into this agreement for purposes of expanding access to District's swimming pools (Facilities), in accordance with the terms granted herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained, to be kept and performed by the respective parties, the parties agree as follows: 1. Acknowledgement of Recitals and Definitions. All the foregoing recitals are true and correct and incorporated herein by this reference as though fully set forth herein. a. Definitions. 1) The term "District Use" shall mean District's Educational Program and Related School Activities. For purposes of this Agreement, the term "Educational Program and Related School Activities of the District" shall mean "an activity that is organized and administered by the District, including but not limited to, athletic games/meets, drama, carnivals, District community meetings, District meetings, requests from other schools within the District, and the like, but excluding use of the facilities by nonprofits, leagues, and other community groups and organizations". 2) The Term "City Use" shall mean City's recreation programs and activities organized and administered by the City. 1 3) The term "General Public Use" shall mean unscheduled use by the general public that is not a programmatic activity of the District or the City. 2. Grant of License. In consideration of the City's contributions as set forth hereunder, District hereby grants the City a no fee license (the "License") to use the Central Unified School District Swim Complex upon mutual written letter agreement of their respective authorized agents ("Pool"). The term of the License (the "License Term") shall initiate upon the effective date of this Agreement and shall continue till the end of the day August 10, 2019, at 12:00 Midnight. Either party may terminate the Agreement, in its sole discretion, at any time during the term of the Agreement by providing written notice to the other party specifying an effective termination date at least thirty days from the date of notice. The License is limited to use of the Facilities at Sites for City programmed Use, as further detailed below. The priority of Facilities use at the Sites is as follows: a. Priority of Use. The priority of use for Facilities shall be as follows: 1) District Use aquatics activities and programs 2) City Use swim lessons. b. Scheduling of Use. The Facilities at Central High School East Campus shall be made available for City Use Monday through Friday from 3PM to 7:00 PM and Saturdays from 9:30 AM to 12:30 PM, starting June 15 to August 10, 2019. Upon mutual written letter agreement of the parties' authorized agents, times may be changed based on availability and program needs. The parties shall exercise good faith efforts to obtain agreement on any amendments to the joint use schedule and to resolve any conflicting uses thereunder. The City shall be responsible for and supervise its use of the Pool, in consultation with the respective site based aquatics staff and the District. C. Auxiliary Facilities. City's no cost priority use of the Pool shall also include the right to make use of auxiliary facilities including restroom facilities in reasonable proximity to such facilities (as designated from time to time by District). Auxiliary facilities and fixed equipment, such as parking lots, bleacher seats, and other fixtures designated for use in connection with such auxiliary facilities, shall be included herein. The City of Fresno will retain generated swim lesson revenue to offset staffing and site specific instructional supply costs, and the remaining proceeds will be retained by the Central unified School District to cover Facility Usage Fees. d. City Use During Regular District Hours. Subject to scheduling requirements and use priorities specified in Subsections (a) and (b) above, priority use of the Sites shall be made available to the City for its organized and supervised swim lessons at no charge during regular District hours of operation (hours during which building maintenance or appropriate supervisory staff are usually scheduled). 2 e. City's Use Outside Regular District Hours. Subject to the scheduling requirements and use priorities specified in Subsections (a) and (b) above, priority use of the Pool shall be made available to the City for its organized and supervised swim lessons. f. Maintenance and Repair. Except as specified below (and subject to City's obligations specified in Subsection (e above), District shall be responsible for all maintenance and repair of the Pool. Nothing in this Agreement shall be deemed to impose duty/responsibility upon City to inspect the District Pool. City shall make reasonable efforts to notify District of any pool issues. g. Downtime for Maintenance. Downtime could be required to repair or upgrade the Pool. Activities cannot be scheduled at the site during this maintenance period. The District shall be responsible for notifying the City of the estimated downtime maintenance schedule a minimum of fourteen days in advance. 3. Indemnification. a. City Indemnification. As authorized by Government Code Section 895.4, during the License Term, the City shall indemnify, hold harmless and defend the District and each of its officers, officials, employees, agents, and volunteers, from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by District, City or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of the Use of District Facilities by the City or any of his/her/Its officers, officials, employees, agents, volunteers, or invitees. The City's obligations under the preceding sentence shall apply regardless of whether District, or any of their officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs, or damages caused solely by the gross negligence, or caused by the willful misconduct of District or any of their officers, officials, employees, agents, or authorized volunteers. Nothing herein shall constitute a waiver by City of governmental immunities including California Government Code Section 810 et seq. Throughout the life of this Agreement, the City shall pay for and maintain in full force and effect all policies of insurance as required in Section 4, which is incorporated into and part of this Agreement, or as may be authorized or required in writing by the Assistant Superintendent/Chief Business Officer or designee at any time and in his/her sole discretion. The required policy(ies) of insurance as stated in Section 4 shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the District or any of their officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds available to the named insured. 3 The City shall conduct all defenses at its sole cost. The fact that insurance is obtained by City shall not be deemed to release or diminish the liability of City, including, without limitation, liability assumed under this Agreement. The duty to indemnify shall apply to all claims, applicable to this agreement, regardless of whether any insurance policies are applicable. The duty to defend hereunder is wholly independent of and separate from the duty to indemnify and such duty to defend exists regardless of any ultimate liability of the City. The policy limits do not act as a limitation upon the amount of defense and/or indemnification to be provided by the City. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of City, its officials, officers, employees, agents, volunteers, or invitees. b. This section shall survive termination or expiration of this agreement. 4. Insurance. It is understood and agreed that District and City maintain insurance policies or self-insurance programs to fund their respective liabilities. Notwithstanding, the City shall maintain, at its own cost, the following minimum insurance coverage and shall identify the District as an additional insured under the same: a. Commercial general liability insurance. Said insurance shall not be less than $2,000,000 per occurrence; b. Commercial automobile liability insurance which shall cover all owned, non-owned and hired automobiles. Said insurance shall not be less than $2,000,000 per occurrence. C. Workers compensation and employer liability which shall not be less than $1,000,000. d. Umbrella or excess liability insurance which shall provide the same coverage for additional insured's. The policy shall include coverage for bodily injury to a participant in any activity and shall not include a Participant's exclusion, athletic participant exclusion or a sub-limit liability for bodily injury to a participant. Evidence of identifying the District as an additional insured shall be provided by the City upon request. Should City contract out any of the above responsibilities or obligation to this Agreement, City will require contractor, in writing, to indemnify and defend District as required in this License Agreement. Contractor will also be required to provide the following insurance requirements in favor of District and City. 5. Funding Contingency. Except for the indemnity obligations specified herein, the obligations of the City and the District are limited to and contingent upon appropriation of sufficient funding in each fiscal year during the term of the Agreement. 6. Independent Contractors. The parties are acting as independent contractors. Neither party, nor any of its officers, associates, agents, or employees shall be deemed an employee, partner, or agent of the other for any purpose. Each party 4 shall retain as program income any and all income generated by its respective use hereunder. 8. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally or deposited into the United States mail, with postage prepaid, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. [SIGNATURES APPEAR ON THE NEXT PAGE.] 5 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. CITY OF FRESNO, CENTRAL UNIFIED SCHOOL DISTRICT, a California municipal corporation a publics hoof district By: By: - T.J. ifle PAR In erim Director Name.- Title: Superintendent APPROVED AS TO FORM: DOUGLAS T. SLOAN City Att [ _ 1 By_ APPROVED AS TO FORM- Jo Jo n H trup Date By Dep City Attorney Name: YVONNE SPENCE, MMC CRM Title.- City Clerk n�nn i ��]� By: L�I.f .r� `�� 6,H Deputy Wlwco j 6