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HomeMy WebLinkAbout2017 CON Community Rowing of San Diego - Use of Aquatic FacilityC La17 -31 FACILITY USE PERMIT BY AND BETWEEN THE CITY OF NATIONAL CITY AND COMMUNITY ROWING OF SAN DIEGO THIS FACILITY USE PERMIT ("PERMIT") is granted to Community Rowing of San Diego, a Califonia non-profit corporation (the "APPLICANT") by the CITY OF NATIONAL CITY, a municipal corporation (the "CITY") on this 1st day of May, 2017. RECITALS WHEREAS, the APPLICANT provides programs focused on San Diego youth rowing and wellness. WHEREAS, the APPLICANT desires to use the premises commonly known as the National City Aquatic Center, located at 3300 Goesno Place, National City, CA 91950 (the "FACILITY"). WHEREAS, the FACILITY is designed to hold recreational aquatic, safety and environmental programs. WHEREAS, the APPLICANT seeks a permit to use the FACILITY so it can hold introductory rowing camps for youth in the South Bay area. NOW, THEREFORE, THE APPLICANT AGREES THE FOLLOWING TERMS GOVERN THEIR USE OF THE FACILITY: 1. EFFECTIVE DATE AND LENGTH OF PERMIT. This PERMIT will become effective on June 5, 2017. The duration of this PERMIT is for the period of June 5, 2017 through August 18, 2017. 2. USE OF FACILITY. The FACILITY is a 4,700 square foot aquatic center in the National City Marina District and is used for a variety of recreational aquatic, safety and environmental programs. The APPLICANT is permitted to use and occupy the FACILITY to provide six (6), half -day rowing summer camps for youth on Monday through Friday from 8:00 am to 11:30 am during the following dates: • Camp set up and equipment drop off: June 5, 2017 through June 9, 2017 • Camp 1: June 12, 2017 through June 16, 2017 • Camp 2: July 10, 2017 through July 14, 2017 • Camp 3: July 17, 2017 through July 21, 2017 • Camp 4: July 24, 2017 through July 28, 2017 • Camp 5: July 31, 2017 through August 4, 2017 • Camp 6: August 7, 2017 through August 11, 2017 • Camp clean up and equipment removal: August 14, 2017 through August 18, 2017 APPLICANT may use and occupy the FACILITY one (1) hour prior to 8:00 am and one (1) hour after 11:30 am for the purpose of daily camp preparations and clean up. APPLICANT's use of the FACILITY is limited to the days and times specified in this paragraph. In the event APPLICANT seeks to adjust FACILITY usage times, the City Manager has the discretion to approve adjustments to the usage times at her sole discretion. APPLICANT understands the CITY may allow others to use the Facilty when not in use by APPLICANT; and, depending on available space and programming, the CITY may have others use the FACILITY at the same time as APPLICANT when CITY determines such use will not interfere with APPLICANT's use. The FACILITY will have the following available for the APPLICANT to use as part of this PERMIT: a Wi-Fi connection, a land -line phone, automatic external defibrillator, first aid kit, television, dvd player, eighteen (18) chairs, six (6) tables, four (4) marine radios, and sixty (60) life jackets in various youth and adult sizes. 3. FINANCIAL SUPPORT. The CITY shall financially support APPLICANT's rowing summer camps at the FACILITY for the camp dates listed in Section 2 above. The CITY shall reimburse the APPLICANT One Thousand One Hundred Four Dollars ($1,104.00) for each rowing camp that is successfully completed with a minimum of four (4) paid youth participants. The total reimbursement to the APPLICANT shall not exceed Six Thousand Six Hundred Twenty Four Dollars ($6,624.00). Said funds shall be used to pay costs associated with staffing, liability and worker's compensation insurance, and other operating costs as deemed necessary by the APPLICANT. The APPLICANT shall invoice the CITY at the conclusion of each rowing camp and the CITY shall pay the APPLICANT within thirty (30) days after receipt of an invoice. 4. PROGRAM FEES. Consistent with the camp dates listed in Section 2 of this PERMIT, the APPLICANT shall charge the following fees for youth summer camps held on Monday through Friday: • National City residents with proof residency 1st week of camp: $45 Subsequent camps: $40 • Non-residents of National City 1st week of camp: $50 Subsequent camps: $45 5. PERMIT FEE. The CITY generally charges a facility use fee. The CITY will accept other consideration in lieu of the facility use fee, which is anticipated to exceed the use fee. The other consideration to be provided by the APPLICANT to use of the FACILITY are: 1) the APPLICANT shall provide summer camps which will be specifically target marketed to National City residents; and, 2) the APPLICANT will provide a discounted rate for National City residents for the summer camps, as listed in Section 4 above. Facilities Use Permit — Aquatic Center April 2017 2 City of National City and Community Rowing of San Diego 6. MARKETING. The CITY will assist marketing the summer camps, as follows: create a webpage within the CITY's website dedicated to the FACILITY and programs offered by the APPLICANT with links to the APPLICANT'S webpage, distribute marketing materials to the local school districts and CITY partners, post on the CITY's social media, and place an advertisement in San Diego Family Magazine. 7. JANITORIAL SERVICES. Consistent with the camp dates listed in Section 2 of this PERMIT, the CITY shall provide janitorial services on Monday through Friday mornings at times mutually agreed to by the parties. The APPLICANT shall provide minor janitorial services after each use of the FACILITY. Minor janitorial services include picking up trash both inside and outside of the FACILITY and leaving the FACILITY in the same clean and orderly condition that the APPLICANT encounters upon APPLICANT'S morning arrival to the FACILITY. 8. PERMIT COORDINATION AND CONTACT. Audrey Denham is hereby designated as the Permit Coordinator for the CITY and will monitor the use of the FACILITY and compliance with this PERMIT. The APPLICANT shall assign a single point of contact to provide supervision and have overall responsibility for the use of the FACILITY and compliance with this PERMIT for the APPLICANT. David Frost is hereby designated as the point of contact for the APPLICANT. 9. CONTROL. Neither the CITY nor its officers, officials, agents, employees, or volunteers shall have any control over the conduct of the APPLICANT or any of the APPLICANT'S employees, except as herein set forth. The APPLICANT or the APPLICANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY. The parties acknowledge that the APPLICANT, its agents, servants, and employees are as to the CITY wholly independent, and that APPLICANT'S obligations to the CITY are solely prescribed by this PERMIT. 10. COMPLIANCE WITH APPLICABLE LAW. The APPLICANT, in the use of the FACILITY as allowed by this PERMIT, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the CITY, whether now in force or subsequently enacted. The APPLICANT and each of its SUBAPPLICANT(S), shall obtain and maintain a current CITY business license prior to and during the use of the FACILITY pursuant to this PERMIT. 11. LICENSES, PERMITS, ETC. The APPLICANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to conduct its programs and summer camps. The APPLICANT represents and covenants that the APPLICANT shall, at its sole cost and expense, keep in effect at all times during the term of this PERMIT, any license, permit, or approval which is legally required for the APPLICANT to conduct its programs and summer camps. 12. NON-DISCRIMINATION PROVISIONS. The APPLICANT shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or Facilities Use Permit — Aquatic Center 3 City of National City and April 2017 Community Rowing of San Diego medical condition. The APPLICANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The APPLICANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 13. INDEMNIFICATION AND HOLD HARMLESS. The APPLICANT agrees to defend, indemnify and hold harmless the CITY, its officers, officials, agents, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the use of public property or the activity(ies) taken under this PERMIT including but not limited to any of APPLICANT's programs and/or summer camps as described in this PERMIT; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CITY, its agents, officers, officials, employees, or volunteers. CITY will cooperate reasonably in the defense of any action, and APPLICANT shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this PERMIT for any alleged or actual omission, act, or negligence under this PERMIT that occurred during the term of this PERMIT. The APPLICANT agrees to have participants in APPLICANT's activities, programs, and/or summer camps sign waivers of liability specifically waiving any liability against the CITY, its officers, officials, agents, employees, and volunteers. To the extent APPLICANT has participants sign waivers of liability as a condition of participation, APPLICANT will include the CITY, its officers, officials, agents, employees, and volunteers in APPLICANT's participant waivers. 14. WORKERS' COMPENSATION. The APPLICANT shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Labor Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, officials, agents, employees, and volunteers from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, officials, agents, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the APPLICANT under this PERMIT. Facilities Use Permit — Aquatic Center 4 City of National City and April 2017 Community Rowing of San Diego 15. INSURANCE. The APPLICANT, at its sole cost and expense, shall purchase and maintain, and shall require its SUBAPPLICANT(S), when applicable, to purchase and maintain throughout the term of this PERMIT, the following insurance policies: A. Automobile Insurance covering all bodily injury and property damage incurred during the term of this PERMIT, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, officials, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. B. Commercial General Liability Insurance, with minimum limits of either $5,000,000 per occurrence and $10,000,000 aggregate, on an "occurrence" basis, covering all bodily injury, property damage, personal & advertising injury arising out of its operations, work, or performance under this PERMIT. The policy shall name the CITY and its officers, officials, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. C. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of APPLICANT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement of PERMIT. If APPLICANT has no employees subject to the California Workers' Compensation and Labor laws, APPLICANT shall execute a Declaration to that effect. Said Declaration shall be provided to APPLICANT by CITY. D. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, officials, agents, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. E. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. F. This PERMIT shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the APPLICANT does not keep all such insurance policies in full force and effect at all times during the terms of this PERMIT, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this PERMIT and terminate the PERMIT as provided herein. G. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. H. If the APPLICANT maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY requires and shall be entitled to the broader Facilities Use Permit — Aquatic Center 5 City of National City and April 2017 Community Rowing of San Diego coverage or higher limits (or both) maintained by the APPLICANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. 16. LEGAL FEES. If any party brings a suit or action against the other party arising from any 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 PERMIT, 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 attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 17. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Leslie Deese City Manager City Manager's Office City of National City 1243 National City Boulevard National City, CA 91950-4397 To APPLICANT: David Frost Board Member Community Rowing of San Diego 3431 Conrad Street, Facilities Use Permit — Aquatic Center 6 City of National City and April 2017 Community Rowing of San Diego San Diego, CA 92117 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 18. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this PERMIT. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 1720.4, and 1771. Applicant is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 19. ASSUMPTION OF RISK. It is expressly understood and agreed that the APPLICANT assumes all risk for loss, damage, liability, injury, cost or expense that may arise during or be caused in any way by APPLICANT's use or occupancy of the FACILITY. The APPLICANT further agrees that in consideration of being permitted the use of the FACILITY, they will save and hold harmless the CITY, its officers, officials, agents, employees, and volunteers from any loss, claims, and liability damages, and/or injuries to persons and property that in any way may be caused by the APPLICANT'S use or occupancy. The APPLICANT will abide by the regulations governing said FACILITY and agree to abide by all CITY ordinances and FACILITY rules and policies. The APPLICANT is responsible for any damage/loss sustained by the ground, building, furniture or equipment or unusual clean up occurring through the occupancy of said FACILITY. 21. POSSESSORY INTEREST. The APPLICANT recognizes and understands that use of the CITY's FACILITY may create a possessory interest subject to property taxation and that APPLICANT maybe subject to the payment of property taxes levied on such interest. APPLICANT further agrees to pay any and all property taxes, if any, assessed against APPLICANT's possessory interest in the CITY's FACILITY during APPLICANT'S use of the CITY's FACILITY pursuant to Sections 107 and 107.6 of the Revenue and Taxation Code. 22. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this PERMIT is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This PERMIT may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. Facilities Use Permit — Aquatic Center 7 City of National City and April 2017 Conununity Rowing of San Diego C. Captions. Any captions to, or headings of, the sections or subsections of this PERMIT are solely for the convenience of the parties hereto, are not a part of this PERMIT, and shall not be used for the interpretation or determination of the validity of this PERMIT or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this PERMIT shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. To the extent any exhibits or schedules or provisions thereof conflict or are inconsistent with the terms and conditions contained in this PERMIT, the terms and conditions of this PERMIT shall control. F. Amendment to this Permit. The terms of this PERMIT may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this PERMIT shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This PERMIT shall be governed by and construed in accordance with the laws of the State of California. I. Audit. This PERMIT may be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the PERMIT, per Government Code Section 8546.7. J. Entire Permit. This PERMIT supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties 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 any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This PERMIT shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Subcontractors or Subapplicants. The City is permitting the use of the FACILTIY to the APPLICANT identified in this PERMIT. The APPLICANT shall not subpermit the use of the FACLITYor any portion thereof, unless such subpermitting was part of the original PERMIT or is allowed by the City in writing. To the extent there is a subpermit, the subapplicant(s) shall be required to comply with and agree to, for the benefit of and in favor of the City, the insurance provisions in Section 15, the indemnification and hold harmless provision of Section 13, and the assumption of the risk in Section 19 of this PERMIT. M. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this PERMIT, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this PERMIT, (iv) each party and such party's counsel and advisors have reviewed this PERMIT, (v) each party has agreed to enter into this PERMIT following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this PERMIT, or any portions hereof, or any amendments hereto. Facilities Use Permit — Aquatic Center 8 City of National City and April 2017 Community Rowing of San Diego IN WITNESS WHEREOF, the parties hereto have executed this PERMIT on the date and year first above written. CITY OF NATIONAL CITY Leslie Deese, City Manager APPROVED AS TO FORM: COMMUNITY ROWING OF SAN DIEGO, a California non-profit corporation (Corporation — signatures of two corporate officers required) By: 604/0-;("762( By: (Name) DAvit FI2os1 (Print) Pres id env,-e cRSD (Title) Pe7Le- r (Print) Secy'e ky (Title) Far e//e Facilities Use Permit — Aquatic Center 9 City of National City and April 2017 Community Rowing of San Diego