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HomeMy WebLinkAboutReso 140-17 Agreement with Dublin Unified School District for Use of The Wave Outdoor Sport Pool RESOLUTION NO. 140 — 17 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * APPROVING AN AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN UNIIFED SCHOOL DISTRICT FOR USE OF THE WAVE OUTDOOR SPORT POOL WHEREAS, the Dublin High School Swim Team is in need of practice and swim meet facility use for Fiscal Year 2017-18; and WHEREAS, the City of Dublin and Dublin Unified School District have agreed to terms and conditions in order for the Dublin High Swim Team to use The Wave's Outdoor Sport Pool for pre- season and season swim practice and includes provisions for use for swim meets. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby approves the Agreement between the City of Dublin and Dublin Unified School District for the Use of The Wave Outdoor Sport Pool (attached as hereto as Exhibit A). BE IT FURTHER RESOLVED that the City Manager is authorized to execute the agreement and make any minor necessary amendments to carry out the intent of this Resolution. BE IT FURTHER RESOLVED that the City Manager is authorized to enter into extensions and amendments to this Agreement, pursuant to the terms of the Agreement for additional fiscal years, upon mutual agreement of both parties. PASSED, APPROVED AND ADOPTED this 21st day of November 2017, by the following vote: AYES: Councilmembers Biddle, Goel, Gupta, Hernandez and Mayor Haubert NOES: ABSENT: ABSTAIN: Mayor ATTEST: 6A/07.1. City Clerk Reso No. 140-17, Adopted 11/21/2017, Item No. 4.2 Page 1 of 1 AGREEMENT BY AND BETWEEN CITY OF DUBLIN AND DUBLIN UNIFIED SCHOOL DISTRICT FOR USE OF THE WAVE OUTDOOR SPORT POOL FOR DUBLIN HIGH SWIM TEAM THIS AGREEMENT ("Agreement") is made and entered into on ("Effective Date"), by and between City of Dublin, ("City") and Dublin Unified School District ("District") with respect to the matters hereinafter stated. 1. Intent. District has requested that the Dublin High School Swim Team be granted access to The Wave for pre-season and regular season swim practice, as well as swim meets. In order to accommodate budgetary needs of the District, the City is willing to modify its current rental fee for The Wave's outdoor sports pool. The rental rate established under this Agreement is $140 per hour. This rate is more specifically detailed in the Agreement. 2. Payments. District agrees to a rental rate of$140 per hour for Fiscal Year 2017- 18 for use of The Wave outdoor pool for the Dublin High School Swim Team, beginning as of the Effective Date, and ending June 30, 2018. The rental rate is inclusive of costs associated with the operation of the outdoor pool, including three Lifeguards, one Head Lifeguard, one Facility Attendant,utilities,rent and maintenance. The $140 per hour rate does not include costs associated with any additional equipment, staff or lifeguards, in excess of the allocations set forth above, or the use of facilities on city holidays, when regular staff is not working. If the District wishes to request any adjustments to the rental rate or schedule, including a request for additional equipment or staff in excess of the allocations set forth above, the request must be made, in writing, at least four(4)business days prior to the requested day. The City will do its best to accommodate requests, but cannot guarantee availability. Should City staff need to stay on premise beyond the contracted time,the hourly rate will be added to the rental fee in 15 minute increments until which time the facility is vacated and all patrons have left the pool deck. City shall invoice the District once after the conclusion of the season. 3. Use by Swim Team for Pre-Season Practice. The District shall be provided access to The Wave's outdoor pool on the following dates: November 27, 2017 through February 1, 2018 (excluding December 25, 2017 through 28,2017; January 1, 2018; and 15, 2018) for a total of 34 days from 4:00 p.m. to 6:00 p.m. Monday through Thursday. 4. Use by Swim Team for Season Practice..The District shall be provided access to The Wave's outdoor pool on the following dates: February 5 through May 18, 2018 (excluding February 19, 2018) for a total of 74 days from 4:00 p.m. to 6:00 p.m. Monday through Friday. Page 1of4 5. Use by Swim Team for Swim Meets. Any additional time needed for swim meets (3:30 to 7:30 p.m.)will need to be scheduled and confirmed to ensure for proper staffing and program adjustments as set forth in the above Section 2. The City will do its best to accommodate meet date requests, but cannot guarantee availability. 6. Amendments and/or Extensions of Agreement. This Agreement, including any exhibits hereto, may be amended and/or extended only by mutual written agreement of the City Manager and the Superintendent. Should the District request a continuation of this Agreement for future school years, an amendment, as required by this Section 6, shall set forth any changes to the rate and an extended term. 7. Indemnification. To the maximum extent allowed by law, City shall indemnify, defend, and hold harmless the District, its governing body, and each member thereof, officers, employees and agents, from every expense, cost, loss, claim, demand, suit, action,judgment, liability, or payment, including, but not limited to, attorneys' fees, arising out of or in any manner connected with any claim, action and/or cause of action brought by or on behalf of any person,third-party or entity against the District, any of its Board of Trustees, officers, agents, employees, or independent contractors, arising from or relating to City, its officers, agents, employees, subcontractors, or persons under City control performance of the terms and conditions of this Agreement. The City shall not be liable for liability arising out of the sole negligence, fraud or willful misconduct of District. To the maximum extent allowed by law, District shall indemnify, defend and hold harmless City, its elected and appointed officials, and its employees, agents and representatives against any and all suits, claims or actions arising out of any injury to persons or property including, but not limited to, death that may occur, or that may be alleged to have occurred, in the course of the performance of this Agreement, except where the injury is caused in whole or in part by the City, its employees' or officers' own negligence, fraud or willful misconduct. District shall defend any and all such actions, suits, or claims and pay all attorneys' fees and all other costs and expenses arising therefrom or incurred in connection therewith. Indemnity obligations specifically extend to any injury or death sustained by a District swim team participant during swim practice or a swim meet. 8. Insurance. District shall, at its sole cost and expense, and for the full term of this Agreement, obtain, maintain and provide City with proof of a policy or policies of insurance in an amount or amounts acceptable to the City,to provide coverage of City for the purposes set forth in Section 7 above; provided,however that such insurance shall not be deemed a limitation upon District's obligation to defend, indemnify and hold harmless the City as specified in Section 7. Such insurance shall be primary. District shall furnish to City evidence of such insurance, naming City as a named or additional insured, prior to commencing District's use of The Wave for the purposes set forth in this Agreement. 9. Entire Agreement. Each party acknowledges that this Agreement sets forth all covenants,promises, conditions and understanding between the parties regarding the matters set forth herein, and there are no promises, conditions, or understanding either oral or in writing Page 2 of 4 between the parties other than as set forth herein. No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties unless reduced to writing and signed by them. 10. Effect of Waiver.No waiver by a party of any provision of this Agreement shall be considered a waiver of any other provision or any subsequent breach of the same or any other provision, including the time for performance of any such provision. The exercise by a party of any remedy provided in this Agreement or at law shall not prevent the exercise by that party of any other remedy provided in this Agreement or at law. 11. Interpretation of Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior discussions, negotiations, and agreements whether oral or written. Any amendment to this Agreement, including an oral modification supported by new consideration, must be reduced to writing and signed by both parties before it will be effective. Both parties have had an equal opportunity to participate in the drafting of this Agreement. The usual construction of an agreement as to the drafting party shall not apply to this Agreement. 12. Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief,to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 13. Dispute Resolution. If any dispute arises between the parties that cannot be settled after engaging in good faith negotiations, City and District agree to resolve the dispute in accordance with the following: 13.1 Each party will designate a senior management or executive level representative to negotiate the dispute. Through good faith negotiations, the representatives will attempt to resolve the dispute by any means within their authority. 13.2 If the dispute remains unresolved after fifteen(15) days of good faith negotiations, the Parties shall attempt to resolve the disagreement by mediation through a disinterested third person as mediator selected by both Parties. Mediation will begin within thirty (30) days of the selection of this disinterested third party, and will end fifteen (15) days after commencement. The Parties shall equally bear the costs of any mediator, and shall bear their own attorney's fees for the mediation. 13.3 The alternative dispute resolution process in this section is a material condition to this Agreement and must be exhausted as an administrative remedy prior to either party initiating legal action. This alternative dispute resolution process is not intended to nor shall be construed to change the time periods for filing a claim or action specified by Government Code Section 900, et. seq. Page 3 of 4 14. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 15. Early Termination. The District may terminate this Agreement at any time upon written notice to the City. Upon notice of early termination, City will invoice the District for the portion of the season actually used and District shall have no further obligation regarding this Agreement. The Parties have executed this Agreement as of the Effective Date. CITY OF DUBLIN Christopher L. Foss City Manager DUBLIN UNIFIED SCHOOL DISTRICT Dr. Leslie Boozer Superintendent ATTEST: Caroline Soto City Clerk 2881349.2 00252-00005/4134055.1 Page4of4 •