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HomeMy WebLinkAboutAGENDA REPORT 1997 1217 CC REG ITEM 10MTO: FROM: DATE: SUBJECT: 1JF31 *U �IPI • iiTiiyT�►� CITY OF MOORPARK CITY COUNCIL REPORT The Honorable City Council ITEM 10•M•, CfrY OF MOORPARK, CALIFORNIA City Council Meeting of x'21 l 1 _ 1199 ACTION: A'ta�w6 YLG - Mary K. Lindley, Community Services Director ok , December 4 1997 (CC Meeting of December 17) Consider Approval of a Use Agreement With Moorpark Boys and Girls Club - Moorpark Basketball Association The City Council is being asked to consider and approve the draft Agreement (attachment A) with the Moorpark Boys and Girls Club that addresses the activities of Moorpark Basketball Association (MBA) including, but not limited to, the following: when the AVCP gym will be made available for MBA exclusive use, under what conditions improvements can be made, who is responsible for specific gym maintenance and repair, setting of gym use fees, and liability issues. The Council is asked to approve the Agreement, which is similar to the agreements the Council previously approved for Little League, Girls Softball, AYSO, and Packer Football, and pending final language approval by the City Manager, authorize the City Manager to sign the Agreement on behalf of the City. Background It has been an objective of the City to develop use agreements with each Moorpark based youth sports organization that uses City facilities. The purpose of the agreements is to facilitate the needs of the youth sports organizations and to aid in reducing scheduling conflicts that can arise from the large demand placed on the use of the City's park facilities. The agreements will also serve as a means of identifying responsibility for approved improvements, maintenance and repair of City parks and other facilities. Like Packer Football, MBA is affiliated with, and operates under, the Moorpark Boys and Girls Club's non profit status. As such, the City's Park Use Agreement will be with the Boys and Girls Club. While the Agreement will address MBA's activities, ultimate responsibility for the provisions in the Agreement will be with the Boys and Girls Club. MBA involves boys and girls in grades 3 through 9. Their season begins with practices in December; games begin in January and extend through the third week in March. They practice Sunday through Thursday and hold games on Friday and Saturday. An average of approximately A:1MBA.AGD 000456 Co -I- I 1 .1 • Moorpark Basketball Association Use Agreement Page 2 700 youth participate in MBA. Based on, and consistent with, the City's other youth sports agreements, staff proposes a use agreement with MBA that contains most of the same provisions regarding the term (five years), indemnification, liability insurance, and the other general agreement provisions. The agreement will differ in regards to the use fees, the facility to be used, and maintenance to be performed. The proposed provisions specific to MBA are as follows: Premises: MBA is requesting the use of the gym at AVCP for practices and games. Since the gym cannot accommodate all of the teams, MBA requires additional outside basketball courts in the City's various parks for practices. Traditionally, MBA uses the basketball courts at Campus Canyon, Mountain Meadows, Tierra Rejada, and Peach Hill parks Monday through Friday from 4 p.m. to dusk. Since Griffin Park has basketball court lights, MBA reserves that court Sundays, Tuesdays, and Thursdays from 5 p.m. to 10 p.m. To allow the City some flexibility, the specific location of the additional practice courts will not be identified in the Agreement but will be worked out with MBA prior to the start of their season each year. Use: MBA is requesting the use of the gym during their regular season which begins in December and extends through the third week of March. Consistent with the other youth sports agreements, it is proposed that MBA be required to furnish the City with a schedule of practices and games, for City approval prior to the start of each season. In addition, during their seasons the general public shall have access to and use of the gym at times when it is not scheduled for use by MBA. MBA will not have priority use of the gym outside of the approved schedule. Fees: Unlike the other youth sports agreements, MBA's use of the gym requires the City to staff and clean the facility. The City also incurs other costs associated with, but not limited to: electrical use; and repair and maintenance of the hardwood floor, scoreboard, basketball rims and backboards, and bleachers. As a result, the City has historically charged MBA for its use of the gym. Last year, MBA paid the following use fees: $12 per hour during the hours AVRC was open to the public and $30 an hour during non public hours (the hourly rental rate for the general public is $35) . MBA has already processed all its registrations for the season and therefore it would not be practicable to consider a fee increase at this time. However, prior to MBA's season in FY 1998/99, staff will again evaluate costs associated with their use of the gym and recommend an adjustment if warranted. A:\MBA.AGD 4111. Moorpark Basketball Association Use Agreement Page 3 Additionally, staff proposes that MBA be required to submit a cleaning deposit in the amount of$200. In the event the City is required to allocate additional staff time to clean the gym after MBA's use, MBA will be charged $15.00 against the deposit for each thirty minutes expended for such purpose. Maintenance: The gym represents a significant investment for the City and the costs associated with its maintenance and repair directly impact the General Fund. In an effort to make the gym available to MBA for an affordable fee, staff proposes that they be required to assist with maintenance during and after games and practices. To that end, MBA is being asked to pick up the trash in and around the gym each day after their use of the facility. After use on Fridays, Saturdays, and Sundays, the contents of the trash container shall be deposited in the dumpster located in the parking lot. After each use, MBA shall also dust mop the gym hardwood floor. On days when MBA is the last group to use the gym, it must treat the hardwood floor with a solution, supplied by the City, applied to the mop. Additionally, MBA will be required to monitor its participants' adherence to the rules and policies governing the gym's use including but not limited to: the prohibitation of bikes, skates, skateboards, food or beverages in the gym with the exception of bottled water. Recommendation Staff recommends that the City Council: • Approve the proposed draft agreement with MBA for use of the gym at AVCP for authorized practices and games, pending final language approval by the City Manager; and • Authorize the City Manager to sign the Agreement on behalf of the City. • A:\MBA.AGD I 000 i8 f [�,-tch mpnt-- AGREEMENT BETWEEN THE CITY OF MOORPARK AND THE BOYS AND GIRLS CLUB OF MOORPARK THIS USE AGREEMENT (hereinafter "Agreement ") is made and entered into as of this day of , 1997 by and between the CITY OF MOORPARK (hereinafter "City ") and Boys and Girls Club of Moorpark a nonprofit Boys and Girls Club serving the City of Moorpark, California (hereinafter "Boys and Girls Club "). THE PARTIES AGREE THAT: Section 1 PREMISES City, in consideration of the fees to be paid and of the indemnifications, covenants, and agreements agreed to herein, hereby grants to Boys and Girls Club, and Boys and Girls Club hereby accepts from City, the use of certain real property and associated with the gymnasium at Arroyo Vista Community Park (hereinafter Premises), adjacent to the Recreation Center located at 4550 Tierra Rejada Road, Moorpark, California, as more fully described in Exhibit "A" attached hereto and by this reference incorporated herein. The City's contact regarding the day -to -day activities and uses associated with this Agreement and use of Premises shall be with officials of Moorpark Basketball Association (hereinafter "MBA ") as designated in writing by the Boys and Girls Club. Section 2 TERM The term of this Agreement shall be for five years, commencing on December 1, 1997 and ending on November 30, 2002, provided however, that City's obligations hereunder shall be contingent upon Boys and Girls Club's payment in full of all use and related fees and fulfillment of all obligations as set forth in this Agreement. This Agreement may be terminated by either party with or without cause by providing written notice no less than thirty (30) days in advance of such termination. Section 3 USE FEES Boys and Girls Club further agrees to pay the City 1 Use Fees for the period of December 1, 1997, through March 31, 1998, as follows: A. For the use of Premises during the gymnasium's normal hours of operation, defined as hours when the Arroyo Vista Recreation Center is open to the public, fifteen ($13.00) dollars per hour; and A: \MBA.AGR 1 r. •- 0m, .4%.9 B. For use of Premises during the gymnasium's non operating hours (defined as hours when the Arroyo Vista Recreation Center is not open to the public), thirty -three ($30.00) dollars per hour. C. In the event that City is required to perform cleaning on Premises following Boys and Girls Club's use, and as a result of Boy and Girls Club's lack of performance of maintenance as described in Section , an additional fee of fifteen ($15.00) dollars shall be billed to Boys and Girls Club for every thirty (30) minutes required to clean Premises by City. Each year, Boys and Girls Club agrees to deposit with City two hundred ($200.00) dollars as a cleaning deposit. Any fees remaining after March 30 each year shall be reimbursed to Boys and Girls Club. Boys and Girls Club agrees to pay use fees to City by December 31. Any changes to the approved use scheduled for Premises shall be made in writing. Fees associated with the approved changes shall be paid to City no later than April 15. Section 4. ADJUSTMENTS USE OF FEES For the year November 1, 1998, and for each year this Agreement is in effect, the City may adjust the Use Fees, referenced in Section 3 on or before the beginning of the new year by giving Boys and Girls Club written notice prior to November 1. If no such notification is given, the Use Fees for the next year shall be the same amount as the prior year. Section 5 USE The Premises shall be used for the following specified purposes only and shall not be used for any other purpose without the prior written consent of the City: A. Boys and Girls Club shall use Premises for authorized MBA games and practices only. Said use is granted during the period of December through March (Winter Season). The specific days and hours will be finalized by the Director of Community Services prior to December 1 of each year taking into account City recreation program needs and the needs of MBA. B. Use of Premises includes, but is not limited to, the bleachers and basketball standards. In consideration of use, Boys and Girls Club agrees to abide the rules established by the City, including, but not limited to, restrictions on the consumption of food and beverages in Premises, and to enforce those rules on its players and bystanders. C. At all times, City retains the right to use Premise at its discretion for City sponsored and co- sponsored events upon no less than thirty (30) days written notice to Boys and Girls Club. During the Winter season, the general public shall have access to and A: \MBA.AGR 2 use of said Premises at a time of day and or on a day that is not included in the written schedule submitted by the Boys and Girls Club in writing and approved in writing by the City. Boys and Girls Club shall not have priority use of Premises outside of the approved schedule. Section 6 SIGNS Boys and Girls Club agrees not to permit the construction or placement of any sign, signboard or other form of outdoor advertising on the Premises without the prior written consent of the City. In the event of a violation of this provision by Boys and Girls Club or any one claiming under Boys and Girls Club, Boys and Girls Club hereby authorizes City as Boys and Girls Club's Agent, to enter the Premises and to remove and dispose of any such sign, signboard or other advertising, and to charge the cost and expense of any such removal and disposal to Boys and Girls Club who agrees to pay the same upon demand. This provision does not exclude the use of identification banners for individual teams and sponsors, which may be displayed during games and shall be removed following the end of each game. Section 7. INDEMNIFICATION AND HOLD HARMLESS Boys and Girls Club hereby agrees to hold harmless and indemnify City, its officers, agents, and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense and/or liability arising or growing out of loss or damage to property, including City's own personal property, or injury to or death of persons, including employees of City, resulting in any manner whatsoever directly or indirectly, by reason of this Agreement or the use of the Premises by Boys and Girls Club or any person claiming use under or through Boys and Girls Club unless such loss, damage, injury, or death is due to the sole negligence of the City. Boys and Girls Club shall also hold the City harmless from all costs and expenses, including costs of investigation arising out of or incurred in the defense of any claim, proceeding, or action brought for injury to persons or damage to property, resulting from or associated with the use of said Premises under this Agreement and shall further save and hold harmless the City from any and all orders, judgements, and decrees which may be entered in any and all such suit or actions. Boys and Girls Club and all others using said Premises under this Agreement hereby waive any and all claims against the City of damage to persons or property in, or about said Premises. The City does not, and shall not, waive any rights that it may have against Boys and Girls Club by reason of this Section, because of the acceptancd by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. Said hold harmless and indemnification provision shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense described in this Section. The provisions of this Section 7 shall survive the expiration or termination of this Agreement. A:\MBA.AGR 3 Section 8. LIABILITY INSURANCE As a condition precedent of the effectiveness of this Agreement, Boys and Girls Club shall procure, and thereafter maintain in full force and effect at Boys and Girls Club's sole cost and expense, a public liability insurance policy written with a company acceptable to City and authorized to do business in the State of California. Such policy shall provide for a minimum coverage of One Million Dollars ($1,000,000.00) for bodily injury or death of any person or persons in any one occurrence, and Five Hundred Thousand Dollars ($500,000.00) for loss by damage or injury to property in any one occurrence and shall include automobile coverage. The policy shall contain a provision providing for a broad form of contractual liability, including Product Liability coverage if food and beverages are dispensed on Premises. The policy or policies shall be written on an occurrence basis. The policy shall name Boys and Girls Club as the insured and the City as an additional insured. The policy shall also provide that the City shall be notified in writing, at least thirty (30) days prior to any termination, amendment cancellation or expiration thereof. Boys and Girls Club shall furnish City evidence of all insurance policies required by this Agreement in the form of a Certificate of Insurance. Section 9 CASUALTY INSURANCE The parties each specifically acknowledge that City shall not be obligated to keep the Premises insured against fire, or any other insurable risk. Boys and Girls Club hereby and forever waives all right to claim or recover damages from City in any amount as the result of any damage to the Premises by fire, earthquake, flooding, storm or any other cause. Section 10. IMPROVEMENTS Boys and Girls Club shall not make any alterations, additions, or improvements upon the Premises without the prior written consent of the City. All alterations, additions and improvements shall be done in a good and workmanlike manner and diligently prosecuted to completion, and shall be performed and maintained in strict accord with all Federal, State, County, and local laws, ordinances, codes and standards relating thereto. Performance of work shall be subject to City monitoring and inspection. At City's sole discretion, work may be stopped if it does not conform to City specifications and standards. Unless otherwise expressly agreed to in writing by the City, any alterations, additions and improvements shall remain on and be surrendered with the Premises upon the expiration or termination of this Agreement. Boys and Girls Club shall timely pay all costs associated with any and all improvements, and shall keep the Premises free and clear of all mechanics liens. Boys and Girls Club agrees to and shall indemnify, defend and save City free and harmless against all liability, loss, damage, costs, attorney's fees and other expenses of any nature resulting form any Boys and Girls Club alterations, additions or improvements to the Premises. A: \MBA.AGR 4 0004GZ At such time as Boys and Girls Club vacates Premises, all improvements to Premises not already owned by City shall become the property of the City unless otherwise authorized by City in writing. Section 11. FLAMMABLE MATERIAL, WASTE AND NUISANCES Boys and Girls Club agrees that it will not place or store any flammable materials on the Premises, that it will not commit any waste or damage, nor suffer any to be done. Boys and Girls Club also specifically agrees that it will not allow others to take such actions on the Premises. Boys and Girls Club further agrees that it will keep the Premises clean, free from weeds, rubbish and debris and in a condition satisfactory to City. Boys and Girls Club shall also provide adequate controls for dust, odors, noise which may emanate from the Premises or from Boys and Girls Club's activities on adjacent property and take appropriate steps necessary to prevent dust contamination of City's facilities located on, near or adjacent to the Premises. Boys and Girls Club agrees to take preventative action to eliminate such dust, odor, noise or any other nuisance which may disturb the adjacent or nearby community and agrees to be responsible for and to assume all liability for such dust, odor, noise or other nuisance disturbances. Boys and Girls Club also agrees that it shall not use amplified sound or field lighting on Premises for any reason, without the prior written consent of City. Notwithstanding the above, Boys and Girls Club shall not install, operate or maintain, or cause, or permit to be installed, operated or maintained any electrically charged fence on the Premises. Section 12, MAINTENANCE Except as specifically provided for in the Agreement, all maintenance of, and repairs to Premises shall be done at City's sole discretion and shall be performed by City force account or by City's authorized agent unless approved by City in writing. All maintenance and repair authorized to be performed by Boys and Girls Club shall adhere to City specifications and standards. All improvements shall meet City and other applicable codes, regulations, and standards including but not limited to building and zoning codes. A. During the period of August 1 through December 31, Boys and Girls Club shall be responsible to perform the following maintenance on Premises: A: \MBA.AGR Pick up all trash in and around Gym, including, but not limited to under the bleachers, on and around the floor, on around the basketball court, and around the outside of the gymnasium. Place all trash in container 5 V OU1163 provided by City. After use on Fridays, Saturdays, and Sundays, empty contents of trash containers and deposit in dumpster located in the improved parking lot. Insert new liners in trash container with liners provided by City. 2. Dust mop the Gym hardwood floor after use each day with mop provided by City. After use on days when MBA is last to use Premises, whether use is for practices or games, treat hardwood floors with mop and solution provided by City and using method demonstrated by City. Sweep non - hardwood floor after play on days when MBA is last to use Premises using broom and pan provided by City; deposit debris in trash container. City shall not be obligated to repair, replace or maintain the Premises in any manner throughout the term of this Agreement. City shall not be obligated to perform any precautionary or preventative measures with respect to the Premises, including, but not limited to drainage and flood control measures. - Should City perform any of the foregoing, such services shall be at the sole discretion of City, and the performance of such services shall not be construed as an obligation or warranty by City of the future or ongoing performance of such services. Section 13. ENTRY BY CITY City may enter upon the Premises at all reasonable times to examine the condition thereof, and for the purpose of providing maintenance and making such repairs as City desires to make. • 1�L ,i J MA Boys and Girls Club agrees that in the exercise of its rights under this Agreement, Boys and Girls Club shall comply with all applicable Federal, State, County and City laws and regulations in connection with its use of the Premises. The existence, validity, construction, operation and effect of this Agreement and all of its terms and provisions shall be determined in accordance with the laws of the State of California. Section 15. DISCRIMINATION Boys and Girls Club agrees not to discriminate against any person or class of persons by reason of race, color, creed, or national origin in the use of the Premises. A: \MBA.AGR 2 (JO(J4G4 Section 16, ASSIGNMENT AND SUBLETTING Boys and Girls Club shall not assign this Agreement, or any interest therein, and shall not assign use of the Premises or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person (the agents and servants of Boys and Girls Club excepted) to occupy or use the Premises, or any portion thereof, without the prior written consent of City. A consent to one assignment, subletting, occupation, or use by another person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation, or use by another person. This Agreement shall not, or shall any interest therein, be assignable, as to the interest of Boys and Girls Club, by operation of law, without the written consent of City. Any assignment or subletting without such consent shall be void, and shall, at the option of the City, terminate this Agreement. No legal title or interest in Premises is created or vested in Boys and Girls Club by this Agreement. Section 17, INSOLVENCY OR BANKRUPTCY If Boys and Girls Club shall be adjudged bankrupt or insolvent, this Agreement shall thereupon immediately terminate and the same shall not be assignable by any process of law, or be treated as an asset of the Boys and Girls Club under such adjudication, nor shall it pass under the control of any trustee or assignee by virtue of any process in bankruptcy or insolvency, or by execution or assignment for the benefit of creditors. If any such event occurs, this Agreement shall immediately become null and void and of no effect, and City may thereupon repossess said Premises and all rights of the Boys and Girls Club thereupon shall cease and terminate. Section 18, DEFAULT OR BREACH Except as otherwise provided, at any time one party to this Agreement is in default or breach in the performance of any of the terms and conditions of this Agreement, the other party shall give written notice to remedy such default or breach. If default or breach is remedied within 30 days following such notice, then this Agreement shall continue in full force and effect. If such default or breach is not remedied within 30 days following such notice or if the nature of the default is such that it cannot reasonably be cured within 30 days, if Boys and Girls Club fails to commence to cure within the 30 day period, the other party may, at its option, terminate this Agreement. Such termination shall not be considered a waiver of damages or other remedies available to either party because of such default or breach. Each term and condition of this Agreement shall be deemed to be both a covenant and a condition. Section 19, INTERPRETATION Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be A: \MBA.AGR 7 1000465 interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. Section 20, WAIVER A waiver by either party or any default or breach by the other party in the performance of any of the covenants, terms or conditions of this Agreement shall not constitute or be deemed a waiver of any subsequent or other default or breach. Section 21, ACQUIESCENCE No acquiescence, failure or neglect of any party hereto to insist on strict performance of any or all of the terms hereof in one instance shall be considered or constitute a waiver of the rights to insist upon strict performance of the terms hereof in any subsequent instance. Section 22. PARTIES BOUND AND BENEFITED The covenants and conditions herein contained shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto; and all of the parties hereto shall be jointly and severally liable hereunder. Section 23, CONDEMNATION If the whole of the Premises should be taken by a public authority under the power of eminent domain, then the term of this Agreement shall cease on the day of possession by the public authority. If a part only of the Premises should be taken under eminent domain, Boys and Girls Club shall have the right to either terminate this Agreement or to continue in possession of the remainder of the Premises. If Boys and Girls Club remains in possession, all of the terms hereof shall continue in effect, with the fees payable being reduced proportionately for the balance of the Agreement term. Section 24, TIME Time is of the essence of this Agreement. Section 25, REMEDIES In case of the failure or refusal of Boys and Girls Club to comply with and perform each and all of the terms and covenants on its part herein contained, this Agreement and all rights hereby given shall, at the option of City, cease and terminate, and City shall have the right forthwith to remove Boys and Girls Club's personal property from the Premises at the sole A: \MBA.AGR P. 00 ()-SG(; cost, expense and risk of Boys and Girls Club, which cost and expense Boys and Girls Club agrees to pay to City upon demand, together with interest thereon at the maximum rate allowed by law from the date of expenditure by City. Section 26, NOTICES PAYMENT All notices required under this Agreement including change of address shall be in writing, and all notices and payments shall be made as follows: A. All payments and notices to Boys and Girls Club shall be given or mailed to the current MBA Commissioner with a copy mailed to the Board President of Boys and Girls Club. It is the responsibility of Boys and Girls Club to notify City when there has been a change with regard to the individual serving as MBA Commissioner and to provide City with name, address, and 24 -hour contact phone number of the new Commissioner: Moorpark Basketball Association 12951 Sleepy Wind Street Moorpark, CA 92021 Emergency Contact Person: Mike Bucka Phone Number: 529 -3025 Notices to be copied to: Boys and Girls Boys and Girls Club of Moorpark 280 Casey Road Moorpark, CA 93021 ATTN: Executive Director B. All payments and notices to City shall be given or mailed to: City of Moorpark City Manager 799 Moorpark Avenue Moorpark, CA 93021 Section 27, PARTIAL INVALIDITY If any term, covenant, condition or provision of this Agreement is found by a Court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. A: \MBA.AGR 01 19004G Section 28. GENDER AND NUMBER For the purpose of this Agreement wherever the masculine or neuter form is used, the same shall include the masculine or feminine, and the singular number shall include the plural and the plural number shall include the singular, wherever the context so requires. Section 29. PARAGRAPH HEADINGS Paragraph headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants and conditions of this Agreement. Section 30, MODIFICATION This Agreement may be terminated, extended or amended in writing by the mutual written consent of the parties hereto. Such amendments may be executed by the City Manager on behalf of the City. Section 31. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties, and supersedes all previous negotiations and understandings between the parties. There are no representations, warranties or commitments, oral or written, other than those expressly set forth herein. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representative as of the date first written above. City of Moorpark LM Steven Kueny, City Manager Moorpark Boys and Girls Boys and Girls Club LO President Moorpark Basketball Association Commissioner Attest: BY: Lillian Hare, City Clerk A: \MBA.AGR 10 € 001 CS D: \LLEAGUE.AGR 11 6004U