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HomeMy WebLinkAboutC31120 Funding and Use Agreement College of the Desert Relating to Palm Desert Aquatic CenterContract No. C31120 CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT STAFF REPORT REQUEST: CONSIDERATION OF APPROVAL OF A FUNDING AND USE AGREEMENT BETWEEN THE CITY OF PALM DESERT AND THE COLLEGE OF THE DESERT RELATING TO THE PALM DESERT AQUATIC CENTER SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works DATE: August 25, 2011 CONDITIONS: Funding and Use Agreement COD Projected Use Schedule Recommendation By Minute Motion, authorize the Mayor to execute a Funding and Use Agreement with the College of the Desert (COD) allowing for a $1 million contribution to Fund 242, Palm Desert Aquatic Center (PDAC), to assist with on -going operations. Background Early in the development process of the PDAC, COD pledged their support to the project in the amount of a $1 million contribution in exchange for use of the pool for aquatic programs. The attached agreement is the mechanism that allows the funds to transfer from COD to the City. The agreement allows COD use of the PDAC for student athlete use, student athlete physical therapy, and aquatic program classes. The following matrix illustrates hours that COD has agreed to use the PDAC: Student Mondays through Fridays 7:00 a.m. to 8:00 a.m. Use/Conditioning COD Classes Mondays through Thursdays 8:00 a.m. to 12:15 p.m., and Fridays 8:00 a.m. to 10:30 a.m. Student Athlete Mondays through Fridays 12:30 p.m. to 2:30 p.m. Physical Therapy Staff has also attached a draft copy of COD's anticipated class schedule indicating up to three physical education classes daily. Student athlete use and therapy would be incidental and should not interfere with daily operations at the PDAC. If COD expands Staff Report PDAC/COD Funding Agreement August 25, 2011 Page 2 of 2 their aquatic program beyond what is stipulated in the agreement, they will pay regular rates for the excess use. Fiscal Analysis The proposed $1 million contribution will assist with on -going operations at the PDAC while allowing COD to resume offering aquatic programming and potential athletic programs. Prepared By: Ryan Stendell Senior Management Analyst a/J/Iz_� Paul S. Gi son, Director of Finance roval: hn M. Wohlmuth, City Manager Department Head: Mark "reenwood, P.E. Director of Public Works CITY COUNCIL OPP APPROVED DENIED RECEIVED OTHER . , ; •.,mac ngin on N a e w ity Qbrk's Office * Approved the Agreement subject to final review and approval by the City Attorney. 5-0 Contract No. C31120 FUNDING AND USE AGREEMENT This Funding and Use Agreement ("Agreement") is entered into this day of , 2011, by and between the City of Palm Desert ("City") and Desert Community College District dba College of the Desert ("COD"). The City and COD are sometimes collectively referred to in this Agreement as "Parties" and individually referred to as "Party." The Agreement is made in light of the following Recitals: RECITALS A. The City is constructing the Palm Desert Aquatic Center ("Aquatic Center") near the northeast corner of Civic Center Park on Magnesia Drive in Palm Desert, California. B. COD agrees to contribute $1 million to assist with the Aquatic Center and City agrees to allow COD to use the Aquatic Center for COD classes, student athlete use, and student athlete physical therapy in accordance with a schedule discussed below. C. The Parties desire to enter into this Agreement in order to outline their rights and obligations regarding the Aquatic Center. NOW, THEREFORE, in consideration of the mutual promises set forth herein, and in light of the above Recitals, which are hereby made a part of this Agreement, the Parties hereby agree as follows: AGREEMENT 1. Term. The term of this Agreement shall commence upon execution of this Agreement and shall remain in effect until June 1, 2031 ("Termination Date"). Notwithstanding the foregoing, however, either Party may terminate this Agreement without cause at any time by delivery to the other Party of 90 days written notice. Either Party may terminate this Agreement for cause at any time by delivery to the other Party of 30 days written notice. 2. Responsibilities of the Parties. a. Responsibilities of City. All funds received from COD as part of this Agreement shall be solely used to support costs of the Aquatic Center. The City will be responsible for the Aquatic Center's operation and maintenance. The City agrees to allow COD to use the Aquatic Center in areas designated by the Aquatic Center Manager during COD's Fall Semester (between September 1 and December 15) and Spring Semester (between February 1 and May 15) for COD classes, student athlete use, and student athlete physical therapy as set forth in the following schedule: RMPUBUTREM$LAY\314627.4 Contract No. C31120 Type of Use Hours of Use Student Use/Conditioning Mondays through Fridays from 7:00 a.m. to 8:00 a.m. COD Classes Mondays through Thursdays from 8:00 a.m. to 12:15 p.m. and Fridays from 8:00 a.m. to 10:30 a.m. Student Athlete Physical Therapy Mondays through Fridays from 12:30 p.m. to 2:30 p.m. The Aquatic Center will be open to the public at all times noted in the schedule above. b. Responsibilities of COD. COD agrees to contribute $1 million for costs relating to the Aquatic Center. This payment will be due and payable in one lump sum to the City within 90 days of signing this Agreement. COD will have no further obligation under this Agreement to provide any further funding for the Aquatic Center. If COD chooses to use the Aquatic Center at any time other than those specifically stated in the schedule above, COD will be charged at full rates for Aquatic Center use unless both parties mutually agree on time and pool substitute hours. COD agrees that all program instructors, coaches, or any staff bringing student -users to the Aquatic Center shall be Certified Lifeguards. COD agrees to provide insurance for all users associated with COD. 3. Remedies and Termination. a. Remedies. The Parties agree to provide each other with written notice of nonperformance, unsatisfactory performance, or any other dispute arising from the terms of this Agreement within thirty (30) days of the deficiency or dispute being identified. The Parties shall have ninety (90) days from receipt of said written notice to correct any performance deficiencies. The Parties may mutually agree to cooperate in good faith to resolve any performance issue or dispute arising from this Agreement. Either Party in its sole and absolute discretion may waive a default that cannot be cured. b. Termination. In the event any dispute cannot be resolved under these procedures, each Party retains such legal and equitable remedies as it may have under law to enforce this Agreement. If either Party defaults under this Agreement and does not timely cure such default, the non -defaulting Party may terminate this Agreement upon providing written notice of termination of this Agreement to the defaulting Party, in which case this Agreement shall terminate. 72500.00000\5781804.1 Contract No. C31120 4. Indemnification. Section 4.1 COD'S Indemnity: COD agrees to indemnify, defend (with counsel reasonably acceptable to CITY), protect, and hold harmless the CITY, and all CITY Personnel from and against any and all claims, demands, actions, lawsuits, proceedings, damages, liabilities, judgments, penalties, fines, attorneys' fees, costs and expenses arising from any action taken by COD relating to the Aquatic Center (i) that is expressly prohibited by this Agreement, or (ii) that is not within the scope of COD'S duties under this Agreement, or (iii) that is not within COD'S delegated authority under this Agreement; or (iv) which result from any violations by COD or COD'S agents, employees, invitees, contractors, subcontractors or assignees of any law, ordinance, rule or regulation governing or otherwise affecting the business operations of COD or COD'S performance of services and obligations under this Agreement; or (v) which result from any injury or death of any person (including, without limitation, injury or death of COD'S employees, agents, visitors, invitees, assignees, contractors or subcontractors within COD'S control) or damage or destruction of the property of any person or entity which occurs by reason of the negligent actions or omissions or willful misconduct of COD or COD'S agents, employees, invitees, contractors, subcontractors, or assignees, or material breach or default by COD or COD'S agents, employees, invitees, contractors, subcontractors, or assignees, in performance of COD'S services under this Agreement or otherwise caused by the negligent actions or omissions or willful misconduct of COD or COD'S agents, employees, invitees, contractors, subcontractors, or assignees; or (vi) which result from any other act or omission not enumerated above constituting the negligence or willful misconduct by COD or any officer, director, or employee of COD; This indemnity provision shall survive the expiration or termination of this Agreement. COD hereby stipulates and agrees that no condition precedent to its indemnification obligations stated herein, whether by way of notice or otherwise, exists or shall constitute a defense to its obligation to defend, indemnify and hold harmless the CITY, and the CITY Personnel in any such circumstances. Section 4.2 CITY'S Indemnity: The CITY agrees to indemnity, defend (with counsel reasonably satisfactory to COD), protect, and hold harmless COD and its owners, officers, directors, and employees from and against any and all claims demands, actions, lawsuits, proceedings, damages, liabilities, judgments, penalties, fines, attorneys' fees, costs, and expenses arising from any action taken by CITY relating to the Aquatic Center (i) any act or omission to the extent caused by the negligence or willful misconduct by the CITY or any officer, director, employee, or agent of the CITY, (ii) claims by third parties against COD arising from any other actions or omissions of the CITY, City personnel, or others for whom any of them are responsible or (iii) claims which result from any other act or omission not enumerated above constituting the negligence or willful misconduct by CITY or any officer, director, or employee, official of CITY. 72500.00000\57 81804.1 Contract No. C31120 This indemnity provision shall survive the expiration or termination of this Agreement. CITY hereby stipulates and agrees that no condition precedent to its indemnification obligations stated herein, whether by way of notice or otherwise, exists or shall constitute a defense to its obligation to defend, indemnify and hold harmless the COD, and COD's owners, officers, directors, and employees in any such circumstances. 5. INSURANCE Section 5.1 COD: shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by COD, its agents, representatives, or employees. The cost of all such insurance shall be borne by COD. Any deductibles or self -insured retentions must be declared to the City and approved by the Risk Manager. Self insurance may be used by COD if it meets the requirements as described below. The following coverages are required: Commercial General Liability Insurance with limits not less than five million dollars ($5,000,000) per occurrence for bodily injury, personal injury and property damage and ten million dollars ($10,000,000) in general aggregate. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Workers Compensation on a state -approved policy form providing statutory benefits as required by law with employer's liability limits not less than $1,000,000 per accident for all covered losses. COD or COD's employees or contractors shall not use personal autos or vehicles in any way on this project. If COD uses any vehicles for their operations specified in this agreement, COD shall be required to provide Business Auto Coverage including symbol 1 (Any Auto) or the exact equivalent. Limits shall be no less than $1,000,000 per accident, combined single limit. If COD will use no vehicles at all for this agreement, the auto coverage requirement is waived. Excess or Umbrella Liability Insurance may be used to meet CGL limit requirements as specified above, and if so used, shall provide coverage at least as broad as specified for the underlying coverages. Such policy or policies shall include as insureds those covered by the underlying policies, including additional insureds as specified herein. Excess or Umbrella coverage shall be "pay on behalf', with defense costs payable in addition to policy limits. Section 5.2 COD also agrees to the following: 5.2.1 COD agrees to endorse CGL coverage required here to include as additional insureds "the City of Palm Desert, the Palm Desert Redevelopment Agency, their officials, employees and agents". COD agrees to endorse any and all CGL Excess or Umbrella coverage to include as additional insureds "the City of Palm Desert, the Palm 72500.00000` 55781804.1 Contract No. C31120 Desert Redevelopment Agency, their officials, employees and agents". All CGL coverages for an additional insured shall not be limited to its vicarious liability. If self insurance is utilized, it shall also meet the endorsement requirements of this section. 5.2.2 COD agrees to provide evidence of the insurance required herein, satisfactory to City, consisting of: a) certificate(s) of insurance evidencing all of the coverages required and b) an additional insured endorsement to COD's general liability policy, and any excess or umbrella liability policy. If COD utilizes self insurance, evidence of coverage letters may be used to satisfy this proof of insurance requirement. Any actual or alleged failure on the part of City to obtain proof of insurance required in this Agreement in no way waives any right or remedy of City or any additional insured, in this or any other regard. 5.2.3 COD agrees that all insurance coverage and limits provided by COD and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement limits the application of such insurance coverage. COD agrees that all insurance coverage required to be provided by COD or any contractor, will apply on a primary non-contributing basis in relation to any other insurance or self insurance available to City. Policies shall contain or be endorsed to contain such provisions. 5.2.4 COD agrees to require all contractors or other parties hired by COD in connection with its operation of the Aquatic Center to provide general liability insurance with limits of at least $1 million per occurrence and $2 million general aggregate and to add as additional insureds "the City of Palm Desert, the Palm Desert Redevelopment Agency, their officials, employees and agents." COD agrees to obtain certificates evidencing such coverage from its contractors and make reasonable efforts to ensure that such coverage is provided as required here. Any Aquatic Center event such as a swim or diving competition or meet owned or operated by an entity other than COD, but organized by or coordinated through COD will require insurance as specified in the City Facilities Use Permit process. 5.2.5 COD may cover its contractors or outside entity events through its own insurance and if requested provide acceptable evidence of such coverage. 5.2.6 No liability insurance coverage provided to comply with this Agreement shall prohibit COD, or COD's employees, or agents, from waiving the right of subrogation prior to a loss. COD agrees to waive its right of subrogation against City. 5.2.7 COD acknowledges and agrees that any actual or alleged failure on the part of City to inform COD of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. 5.2.8 The insurance requirements set forth in this Section are intended to be separate and distinct from any other provision in this Agreement and are intended to be interpreted as such. 72500.000W5781804.1 Contract No. C31120 5.2.9 COD agrees to provide immediate notice to City of any claim or loss against COD arising out of the work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such clam or claims if they are likely to involve the City. 6. Notices. Whenever it shall be necessary for either Party to serve notice on the other regarding this Agreement, such notice shall be served either in person, by certified mail, return receipt requested to the addresses below. City: of Palm Desert Desert Civic Center 773-r510 Fred Waring Drive Desert, CA 92260 Attn: City Manager College of the Desert: College of the Desert 43500 Monterey Avenue Palm Desert, CA 92260-9399 Attn: President �__ 11 A-lkii ro.l nr when mailed_ Such notice shall be deemed made when pemo c, y u�IIly ­ forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 7. Legal Costs. In the event of any legal action between the City and COD arising out of the obligations of the Parties pursuant to this Agreement, the prevailing Party will be entitled to payment of its costs and expenses, including its attorneys' fees. 8. Binding Effect-, Successors. COD shall not assign or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City, which may be given in the City's sole and absolute discretion. Any attempt to do so shall be null and void, and any assignees or transferees shall acquire no right or interest by reason of such attempted assignment or transfer. This Agreement shall bind and inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns and all of the Parties thereto shall be jointly and severally liable hereunder. 9. Counterparts. This Agreement may be executed in counterparts each of which shall be deemed an original and all of which together shall constitute one and the same instrument which shall be binding upon the Parties notwithstanding that the Parties may not be signatories to the same counterpart or counterparts. The Parties may integrate their 72500.00000\5781804.1 Contract No. C31120 respective counterparts by attaching the signature pages of each separate counterpart to a single counterpart. 10. Further Assurances. Whenever requested to do so by the other Party, each Party shall execute, acknowledge, and deliver any further conveyances, assignments, confirmations, satisfactions, release, powers of attorney, instruments of further assurance, approvals, consents, and any further instruments or documents that are necessary, expedient, or proper to complete anything contemplated by this Agreement. In addition, each Party shall do any other acts and execute, acknowledge, and deliver any requested documents in order to carry out the intent and purpose of this Agreement. 11. Modifications. All modifications to this Agreement must be in writing and signed by the Parties. 12. Third -Party Rights. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies. 13. Governing Law- Choice of Venue .This Agreement shall be governed and construed in accordance with California law. Venue shall be Riverside County. 14. Severability. If any provision of this Agreement becomes or is declared by a court to be illegal, unenforceable or void, that clause will be omitted and the remainder of the Agreement will continue in full force and effect. Such holding shall in no way affect the validity or enforceability of this Agreement. 15. Entire Agreement. This Agreement is the entire agreement between the Parties and supersedes any prior or contemporaneous representations, understandings or agreements, whether written or oral. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first hereinabove written. City of Palm Desert Jean M. Benson, Mayor Attest: Rachelle D. Klassen, City Clerk College of the Desert Jerry R. Patton, President & CEO 7 2 500.00000 \5 7 818 04.1 a 42 i• q '� m 3 IL If H a. on a Cc t R V c �k� a a a d Q d 2 d d a d d a2. I� 00 O1 �� rl N l+11 d Ln t0 1�