SENIOR AQUATICS PARTNERSHIP AGREEMENT FOR
SAN CLEMENTE AQUATIC TEAM
This SENIOR PARTNERSHIP AGREEMENT is entered into this ____ day of ________________, 2022 (the “Effective Date”), by and between the CITY OF SAN CLEMENTE, a municipal corporation (“City”) and THE SAN CLEMENTE AQUATIC TEAM, a youth sports organization incorporated in California (“SCA”) for a period of one (1) year with two (2) possible one (1) year extensions from the Effective Date.
R E C I T A L S:
WHEREAS the City owns and operates the San Clemente Aquatics Center, which features a 50-meter competition pool and a 25-yard activity pool with play features, and the historic Ole Hanson Beach Club, which features a teaching pool and 25-yard pool; and WHEREAS SCA is a private non-profit organization that has been involved in competitive and non-competitive swimming activities in San Clemente for nearly 40 years and currently serves 308 swimmers ranging from novice to Olympic Trials qualifiers; and WHEREAS SCA currently uses the 50-meter and 25-yard pools at the San Clemente Aquatics Center and the 25-yard pool at the Ole Hanson Beach Club, and desires to enter into this Agreement to continue a program of pool usage to SCA members and City residents.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the parties AGREE as follow:
C O V E N A N T S:
Based on the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties, City and SCA hereby agree as follows:
Program Requirements
As a material inducement to City’s entering into this Agreement with SCA, SCA agrees and covenants that, during the term of this Agreement, SCA shall operate its Program in compliance with the following requirements, and agrees that any failure to strictly comply with any of the following requirements is a material breach of this Agreement:
SCA is and shall remain currently registered and active with the State of California as a not-for-profit community organization under Section 501(c)(3) or (c)(4) of the Internal Revenue Code.
SCA is not aware that it is the subject of any formal investigation by any government agency of the City, the County of Orange, the State of California, or the United States Government. SCA shall immediately notify the City in writing if it becomes aware that SCA is the subject of any formal investigation by a government agency.
SCA shall carry Commercial General Liability insurance with limits no less than $2,000,000 per occurrence, and $4,000,000 annual aggregate, with an additional insured endorsement in favor of the City, and approved by the city’s risk manager. SCA’s liability insurance shall be primary insurance without rights of subrogation. Each such policy of insurance shall comply with section 18 below.
SCA shall remain able to demonstrate financial hardship if the discounts provided for by this Agreement are denied and SCA is required to pay regular rates for use of City amenities, pools, and/or facilities.
SCA has and shall maintain an open enrollment policy regardless of the participant’s skill level. For purposes of this Agreement, an “Open Enrollment Policy” shall mean no child shall be denied enrollment based on skill level, provided the participant meets the minimum swim requirements. Swimmers must be 5 years or older and be able to swim 25 yards freestyle (with side breathing) and 25 yards backstroke.
SCA shall provide financial scholarships covering at least 10% of the participants enrolled for 50-100% of their registration fees to those participants that are in “financial need.” For purposes of this Agreement, “financial need” shall mean those families that can prove a financial and/or special hardship. The scholarship is given to the child to provide an opportunity to enroll in SCA activities. SCA shall operate on the philosophy that no child will be denied a chance to participate due to financial hardship. SCA will be required to submit to CITY their financial reports outlining their scholarship distribution after the registration period.
SCA shall prohibit discrimination based on race, religion, national origin, ethnicity, sexual orientation, or gender. To promote a positive drug-free and child-friendly environment at City facilities, SCA shall enforce a “zero tolerance” policy. Any SCA officer, employee, agent, volunteer, or participant who is found to have abused alcohol, controlled substances (which have not been prescribed for the member), cannabis, or tobacco shall be prohibited from participating in SCA activities.
SCA supplies and shall continue to supply participant rosters annually to City. SCA membership shall be comprised of no less than three hundred (300) participants, ninety percent (90%) of whom reside in the City of San Clemente.
SCA Swim Meets, tournaments, and practices must be conducted within San Clemente boundaries.
SCA shall maintain all documentation necessary to demonstrate compliance with all of the above. City shall be permitted to inspect and make and retain copies of any documentation necessary to verify Program compliance with this Article 1.
SCA Representatives To City
SCA shall designate one (1) official representative who shall be City’s primary contact and who shall coordinate the program, pool space, and overall agreement with the City. The SCA representative shall have the authority to make decisions for SCA, sign applications on behalf of SCA for pool use, approve billing, assist with SCA planning of pool allocations, and be responsible for resolving conflicts if/when they arise.
SCA is responsible for notifying City in writing within thirty (30) days of any change in its designated SCA representative referenced in Section 2.1.
The City Beaches, Parks and Recreation Department will be the City liaison coordinating all City operations. City responsibilities are delegated to the following division and staff position(s): Recreation Division, Aquatics Supervisor, (949) 429-8865. Matters pertaining to the following areas of operations should be directed to this individual: Pool Allocations, Applications, Billing, Insurance, Lights, Closures, Conflicts, Pool Maintenance, Vandalism Aquatic Facilities and Event Space Rental Rates
All pool assignments shall be made by City at its sole and absolute discretion. SCA shall pay a Pool Rental Fee(s) to the City within 14 business days after receipt of Pool Use Permits for the upcoming season.
Pool Rental Fee. The fees noted below shall remain in effect during the entire term of this Agreement unless the Agreement is terminated. The following use fees for non-profit youth sports organizations are collected by the Recreation Division. Fees are subject to change based on City Council resolution. Organizations will be notified of any changes prior to any public meeting. Fees remain in effect and apply to SCA Senior Partnership:
Facility Amenity
Standard Rate
Discount
Discounted Rate
25-Yard Pool Lane
$25.00/Hour/Lane
60%
$10.00/Hour
50-Meter Pool Lane
$55.00/Hour/Lane
60%
$22.00/Hour
50-Meter Pool
$250/Hour/Lane
60%
$100.00/Hour
25-Yard Pool
$125/Hour/Lane
60%
$50.00/Hour
Meeting Room
$150.00/Hour
70%
$45.00/Hour
Grass Event Space
$200.00/Hour
70%
$60.00/Hour
SCAC Cabana
$50.00/Hour
None
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Meet/Competition
$400.00/Hour
70% Off-Peak (Oct-Apr)
50% Peak (May-Sep)
$120.00/Hour
$200.00/Hour
Lifeguard Fee
$20.00/Hour/Lifeguard
None
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Sound Amplification
$60.00 Flat Daily Rate
None
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Janitorial Fee
$90.00 Flat Daily Rate
None
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Lifeguard Fees: Applied to all pool rentals outside the facility hours of operation and for pool rentals with high attendance requiring the City to staff additional lifeguards to maintain effective surveillance.
Meet/Competition Fees: Inclusive of the course set up, and upon approval referenced in section 6.1, use of City Electricity, Colorado Timing System, Scoreboard, Touchpads, Pickles, City Tables, Folding Chairs, Event Barricades, and additional Trash Cans.
Additional Services: Any additional services required by the City to facilitate a special pool rental will be determined and billed to SCA as part of the permit approval process. A Janitorial Fee may be assessed for restrooms to be cleaned if deemed needed, for a flat daily rate of $90.00 if the rental attendance is over 200 people.
Aquatic Facility Storage Space
A designated storage shed will be provided for SCA at the San Clemente Aquatic Center to store their supplies behind the bleachers located on the west deck of the 50-meter pool. If City deems that the shed requires replacement based on poor conditions, a new shed will be at the expense of SCA.
SCA is not permitted to store any food, equipment, or other belongings at the Aquatics Center without prior City approval.
SCA will put away equipment daily, keeping storage areas free of scattered supplies, and reducing risks for outdoor pests or potential theft.
Misuse or failure to abide by the preceding standards of the provided storage areas may result in the revocation of any designated space.
Lane Allocation and Scheduling
SCA shall be able to reserve pool space at the San Clemente Aquatic Center in the 50-meter pool and pool space in the 25-yard Activity pool and the Ole Hanson Beach Club in the 25-yard pool and pool space in the teaching pool.
City and SCA will meet quarterly to determine pool rentals. The City cannot guarantee any minimum or maximum amount of lanes available for use to SCA. When processing lane allocations, lanes are provided based on the priority use system as described in the Pool Rental Application.
Rentals of the San Clemente Aquatics Center include lane allocations, private coaching, room rentals, swim meets, grass space, and special events. SCA representative shall provide a written request for rentals three months in advance to assist City in determining a master aquatics center calendar. SCA shall provide a written request for any changes or additions to their approved and billed-out rental permit, two (2) weeks in advance of the date of the change. If the changes are significant, the notice should be given 4 weeks before to allow for the management of staffing, lane availability, and other conflicts. This includes the use of the pool for inter-squad meets. These change requests will be used to revise the monthly billing. Change requests to reduce lane usage may not be submitted after the rental date.
Cancellations and changes to approved rentals: A change fee of $25.00 will be added for any change in time or space requested after a rental permit has been approved and billed out.
Lanes booked for SCA are to be utilized for SCA programs only. SCA shall not sublet pool space or lanes to outside organizations. SCA shall not absorb lanes from City contract classes or City programs that are canceled or moved. All lane allocations shall be included in the rental permit for lane use. This includes grass event space and meeting room usage by SCA.
SCA shall request only needed lane space and not overbook the lanes. If City determines, in its sole and absolute discretion, that SCA has overbooked lane space, City may adjust the lane allocation unilaterally.
City will notify SCA of any excess lane capacity available when City classes are canceled or moved. SCA may use the additional lane capacity when SCA and the City determine that additional capacity is necessary during the period that such excess capacity is available.
It is the responsibility of SCA to coordinate all pool schedules with its participants and coaches.
SCA will not be allocated pool time for group or private swim lessons. This is a direct conflict with City programming and City policy prohibiting private instruction without an agreement with the City.
SCA may utilize a microphone device during private rental times, or during times when lap swimming is the only concurrent program. Microphones may not be used when other classes and programs are occurring at the same time.
Swimmer Lane minimums and Unused Lanes
Allocated pool space will be granted dependent on current operational capabilities, fair co-use with public lap swim, and continued review of lane utilization. The City considers sufficient use of a lane for organized /coached swim set style rentals based upon the following criteria:
A minimum of (3) swimmers per lane is required for all short course lane allocations.
A minimum of (6) swimmers per lane is required for all long-course lane allocations.
All cancelations must be submitted in writing to City via email to City representative to release overbooked lanes that do not meet the minimum allocation requirements.
SCA lane reservations must be occupied, and swimmer per lane minimums met for the full duration of the rental period.
Rental lanes left empty for longer than 10 minutes beyond the start of the rental time listed on the permit will be released to the public for lap swim for the remainder of the individual lane rental period. SCA will be charged for the lane rental without a refund.
Cancelation of reserved rental lanes must be made (12) hours prior to the start of the rental time listed on the permit if the lanes will be unutilized or the minimum swimmer requirement will not be met. SCA will be issued a refund for the released lanes.
Use of Colorado Timing Equipment
SCA may utilize City’s Colorado Timing System. The SCA representative shall sign a City approved release/waiver agreement holding SCA responsible for the equipment. The release is required each time the equipment is checked out and used. When use is complete, City staff will examine the equipment. Any damage to the equipment during SCA’s use will be the responsibility of SCA. Only trained SCA representatives and City staff may use the Colorado Timing System equipment.
Provision of Lifeguards During SCA Events
The City provides City lifeguards at all times when SCA members are in the pool. SCA practices shall be held at times when City lifeguards are available and on duty. For SCA swim meets and practice times that occur outside of regular facility operating hours Lifeguard Fees will apply. One (1) lifeguard is included in the rental fee. Additional lifeguards are billed at the current rate approved by the City Council as dictated in the City Hourly Part-Time SalarySchedule, per hour per lifeguard.
Pool Supplies and Standards
City will provide lane lines, diving blocks, and flags for SCA practices and meets. SCA is responsible for any and all additional equipment they may require. All additional equipment is subject to City approval.
The SCA coaches and representatives will communicate any issues with City pool or deck equipment. When/If items are damaged, or in poor repair, it is the responsibility of the coach that day to ensure the SCA participants are not in the water until City approves it is safe to do so.
City will attempt to maintain but has no obligation to maintain, a water temperature between 78–82 degrees Fahrenheit (25.5–27.5 degrees Celsius) during practices, and swim meets.
City will remove diving boards that are not in use during swim meets.
Pool Closure Procedures
When the Aquatics Center must be closed due to inclement weather, maintenance, damage, or other conditions needing immediate attention, the Recreation Division will determine the closure term and begin procedures as follows:
Closure signs shall be posted at the Aquatics Center.
Any aquatic facility closure in excess of one week will be posted on City’s official website.
City will contact the SCA representative by phone and/or email to notify SCA of the closure.
SCA will be responsible to contact their coaches and participants to notify them of the closure.
SCA agrees to reimburse City for any maintenance costs directly attributed to damage to its municipal pool facilities or any City equipment, including unauthorized alteration of a City site, caused by SCA, any SCA member, and/or SCA invitee. City will credit SCA lane space for pool closures that are not the fault of SCA.
Pool and Park Clean Up
SCA shall clean up pools, restrooms, locker rooms, and associated areas in the proximity of the pool after each use by SCA. This includes litter left behind by spectators in the bleachers, or snack concession stand areas. The City will provide adequate trash containers.
When cleaning up after an event, SCA shall prevent cleaning materials, trash, sediment, cleaning chemicals, and runoff from entering the storm drain system (i.e. street gutters or catch basins).
Concessions
SCA may only sell food products to program participants and fans during a scheduled swim meet dates with City approval. City requires a site plan for area food sales and will require that food not be brought into the pool. All clean-up is the responsibility of SCA, including litter associated with the concession packaging, spills or food on the deck, and excess piling in trash cans.
SCA shall adhere to Orange County Health Department standards for the storage, preparation, and service of food items. SCA shall obtain the appropriate permits from the Orange County Health Department prior to any food service.
SCA will not permit persons under the age of 18 to operate cooking equipment that requires flammable liquids or materials. City retains the discretion to approve the use and location of a barbeque.
In accordance with San Clemente Resolution No. 04-27, there will be no use of Styrofoam products at any location within the Aquatics Center. SCA shall prevent the utilization and/or distribution of expandable polystyrene food service products, commonly referred to by the trade name “Styrofoam,” by any SCA attendee or vendor (caterer) during the term of this Agreement. Failure to abide by this resolution will result in the automatic denial of future pool rentals.
Crowd Control
It is the responsibility of SCA to keep registered participants and their fans from engaging in un-sportsmanlike conduct, such as fighting, or rude and abusive verbal confrontations. If pool representatives or game officials of the league cannot control the situation, SCA should contact Orange County Sheriff’s Department for assistance.
Swim Meet and Rental Conditions
SCA shall be permitted to host (2) swim meets per year after first having obtained City approval for each such event. SCA shall apply to hold a swim meet no less than twelve (12) weeks in advance of the proposed date. City Recreation Division will review and coordinate the appropriate meet and rental permits and services, such as planning for additional staffing, overflow parking, and sound permits. SCA will be required to submit pool and deck site plans, requests for equipment, activity timeline, number of participants expected, times for load, and any other requests of staff a minimum of 30 days in advance of the scheduled date to ensure a smooth operation.
SCA will make its best effort to host these meets during non-peak times (October-April).
General Conditions for Special Events and Swim Meets
City shall provide recycling containers at all SCA special events.
SCA shall ensure that neither its members nor its invitees consume alcoholic beverages at any location in the San Clemente Aquatics Center.
SCA shall comply with the City’s Noise Ordinance. Sound permits are required for all amplified sound, including but not limited to PA systems, DJ, and live entertainment, such as bands that include amplification for instruments, drums, horns, etc. Applications for sound permits must be filed at least ten (10) working days before the proposed event and are reviewed by City’s Beaches, Parks and Recreation Department.
Per Orange County Fire Authority Guidelines (OCFA Guideline F-05), an OCFA permit is required to erect or operate a tent or air-supported temporary membrane structure having an area in excess of 200 square feet, or a canopy in excess of 400 square feet, except for structures used exclusively for camping. (UFC 105.8t.1.) The regulations of the State Fire Marshal for large and small tents, awnings and other fabric enclosures shall also apply. (UFC 320.) Scaffolding, bleachers, or other structures that might collapse and cause an injury will require a building permit from the City Building Department (949)361-6100.
Team Promotions
Trophy Case: City staff shall allocate space in the trophy case at the San Clemente Aquatics Center. Space will be provided to SCA to promote their program and showcase participant awards. All displays and space allocations shall require approval by City staff at its sole discretion.
Magazine/Web Space: City will list SCA once each quarter in the City’s Recreation Magazine and on the City Website in the youth sports section. SCA is responsible for submitting accurate information to the City prior to the publishing schedule.
Printed Materials: Except as provided above, SCA will be responsible for all printed promotional materials. City does not provide for copying of flyers, posters, registration packets, or any other printed materials. SCA is encouraged to use the designated City brochure racks located at the Community Center and San Clemente Aquatics Center. Flyers may not be placed on parked vehicles at any City parks or facilities.
Team Apparel/Uniforms: SCA will provide a consistent brand and logo to promote their team through the use of team uniforms, jackets, sweatshirts, and similar merchandise. Apparel and uniforms shall not duplicate the colors or design of any City staff uniforms. Clothing or attire that resembles CITY personnel or programming is prohibited including but not limited to City logos, branding, swimsuits, headwear, and articles of clothing with the color red in order for the public to identify the difference between City safety staff and SCA representatives.
Banners at San Clemente Aquatics Center or on Pool Deck: SCA may place temporary sponsor banners to be located on the pool deck and the grass space adjacent to the pool deck during swim meets.
Overhead Banner Reservation: City has an overhead banner program that is offered to community partners for promotional space. Banner fees are $367 for the banner hanging. Space in the calendar is based on date availability in conjunction with other City programs and partners. Applications are available in November of each calendar year and are processed by January City’s logo is not to be used on any promotional materials or merchandise without prior City approval, which approval may be withheld at City’s sole and absolute discretion.
SCA Contributions to Pool Maintenance
As a Senior Partner to the City, SCA shall assist with the stewardship and maintenance of pools.
SCA shall obtain prior written consent from City to make any alterations, additions, or improvements to City pools including routine pool maintenance and preparations. SCA understands that any other such alterations, additions, or improvements must comply with all state and local standards.
Indemnification and Insurance
To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.6), SCA shall defend (with legal counsel reasonably acceptable to City), indemnify, and hold free and harmless City and City’s agents, officers, and employees, (collectively, the “Indemnitees”) from and against any and all claims, loss, cost, damage, injury (including, without limitation, injury to or death of any SCA participants, invitees, officers, agents, employees, representatives, or subcontractors of SCA [collectively, the “SCA Entities”]), expense and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, attorney’s fees, litigation expenses and fees of expert contractors or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of SCA’s use of the City facilities including but not limited to the San Clemente pools, by any of the SCA entities, anyone directly or indirectly employed by any of them, or anyone that they control or invite to the premises (collectively, the “Liabilities”). Such obligation to defend, hold harmless, and indemnify any Indemnitee shall not apply to the extent that such Liabilities are caused by the sole and active negligence or willful misconduct of such Indemnitee.
Prior to the City’s execution of this Agreement, and as a condition to the effectiveness hereof, SCA shall submit certificates and endorsements to City indicating compliance with the following minimum insurance requirements, and SCA shall maintain such insurance in effect during the entire term of this Agreement: Commercial General Liability, personal injury and property damage liability, contractual liability, independent contractor’s liability, and automobile liability insurance, with a minimum, combined liability limits of Two Million Dollars ($2,000,000) per occurrence for all covered losses and Four Million Dollars ($4,000,000) in the aggregate. Any deductible or self-insured retention in excess of Five Thousand Dollars ($5,000) shall be declared to the City and requires the prior approval of the City’s Risk Manager. Each such policy of insurance shall:
be issued by companies that hold a current policy holder’s alphabetic and financial size category rating of not less than A-VII, according to the current A.M. Best’s Key Rating Guide or a company of equal financial stability that is approved by City’s Risk Manager for all coverage’s except surety; name and list as additional insured City and City’s officers, employees, and agents. An endorsement shall accompany the insurance certificate naming such additional insured. Additional Insured Endorsement is subject to approval by the city’s risk manager, at their sole discretion; specify it acts as primary insurance and that no insurance held or owned by City shall be called upon to cover a loss under said policy; contain a clause substantially in the following words: “it is hereby understood and agreed that this policy may not be canceled or materially changed except upon thirty (30) days prior written notice to City of such cancellation or material change as evidenced by a return receipt for a registered letter;” cover the operations of SCA pursuant to the terms of this Agreement; and be written on an occurrence and not a claims-made basis.
Original documents to:
City of San Clemente
Risk Management Office
910 Calle Negocio, San Clemente, CA 92673
One additional copy to:
Beaches, Parks and Recreation Department
987 Avenida Vista Hermosa, San Clemente, CA 92673
Violation Warning Procedure and Disciplinary Policy
Purpose: The purpose of this policy is to implement a systematic method of enforcing the Municipal Code and Pool Rules, Use and Allocation Policy.
Policy: City reserves the right to cancel or suspend all permits issued to SCA as well as any other use of City facilities as provided for under this Agreement for meets, practices, and other usages based upon SCA’s violation of the City Municipal Code or this Agreement.
Commitment: SCA’s Board of Directors is required to notify SCA volunteer coaches, parents, and participants about the rules and regulations outlined in the City’s Pool Rental Policies, municipal codes, and guidelines within this Agreement. The Recreation Division will work closely with SCA to address concerns and enhance communications between staff, pool users, and the community. It is the responsibility of SCA to notify City of any concerns.
Outcome: SCA shall regularly communicate with SCA members to educate participants, coaches, and parents to become increasingly more responsible working within the Municipal Code and pool rules, and user agreements, especially where traffic, noise, parking, trash, and issues are concerned. By enhancing communication all parties involved will benefit.
Violations: City shall document violations resulting from SCA’s failure to follow the terms of this Agreement, the Municipal Code, and City Department policies and procedures.
Notification: City staff shall contact the SCA representative to discuss any noticed violation. City shall e-mail SCA representative, with a copy to the President, and will follow up on the telephone conversation confirming the discussion and details of the incident or violation.
Proposed Resolution and Timeline: SCA’s representatives will work with staff to propose a resolution and define the timeline in which the issue will be resolved. This information will be confirmed in writing to both the SCA’s representative and President. If SCA fails to take the necessary actions to resolve the issue as agreed upon between the parties, City may resolve the issue and charge SCA for any manpower and/or equipment used to resolve the issue. SCA shall bear all costs and expenses City deems necessary to completely resolve the issue.
Warning Issued: If the issue is not resolved by the agreed-upon date, City shall send a written warning to SCA.
First Warning: The first warning letter will be sent upon SCA’s first failure to resolve an issue resulting from a direct violation of this Agreement, the City Municipal Code, and facility operating policy or rules. A letter will be written to SCA’s President and representative documenting the violation and will be placed in SCA’s file. A report and/or pictures of the violation will be included for reference. The matter may be appealed by SCA to the Beaches, Parks and Recreation Director.
Second Warning: A Second warning is issued after a second documented violation occurs within one year (365 days) from the first violation. City will send SCA a letter notifying SCA that a City staff member will be assigned to monitor SCA activities due to the violation. SCA will be billed for the assigned hours of the said staff member at the staff member’s appropriate hourly rate. The staff member will act as a City representative on duty to monitor activity at the pools and to report further violations to City. This may be appealed to the Beaches, Parks and Recreation Department.
Third Warning: A third warning is issued after a third documented violation occurs within one year (365 days) from the first violation. Upon issuance of a Third Warning City shall review this Agreement. The Agreement is subject to termination upon such review. Any termination may be appealed to the Beaches, Parks and Recreation Department Director and ultimately appealed to the Beaches, Parks and Recreation Commission, and/or City Council.
Termination: City may terminate this Agreement without cause by providing thirty (30) days' notice in writing.
San Clemente Municipal Code: Nothing in this Agreement shall limit the City’s authority to enforce the San Clemente Municipal Code or otherwise take legal action under State law.
Term and Cooperation
The term of this agreement shall be one year from the Effective Date with two (2) possible one-year extensions and will continue until canceled under the provisions of Section 18.9.
Extensions shall be granted under City Manager or his/her designee authority and based on SCA’s demonstrated ability to meet the minimum requirements of the Aquatics Senior Partnership, including but not limited to the total number of swimmers and minimum residency requirements.
SCA shall adhere to all the policies and procedures of the City and cooperate with the Department and City staff to ensure that the purpose of this Agreement is met. SCA shall not discriminate against those in its employ, volunteers, or participants on account of race, religion, national origin, ethnicity, sexual orientation, or gender (except where gender is a bona fide issue for the sports program).
Miscellaneous
Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties concerning the subject matter set forth herein, and there are no oral or written representations, understandings, or ancillary covenants, undertakings, or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings, or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
Severability. If any term, provision, covenant, or condition of this Agreement shall be determined invalid, void, or unenforceable, then this Agreement shall terminate in its entirety, unless the parties otherwise agree in writing, which agreement shall not be unreasonably withheld.
Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party or in favor of City shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
Singular and Plural. As used herein, the singular of any word includes the plural.
Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
Waiver. Failure of a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes, and other labor difficulties beyond the party's control (including the party's employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party's reasonable control. If any such events shall occur, the term of this Agreement and the time for performance shall be extended for the duration of each such event, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years.
Mutual Covenants. The covenants contained herein are mutual and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by the such benefited party.
Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
Litigation. Any action at law or in equity arising under this Agreement or brought by any party hereto to enforce, construe, or determine the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or such other appropriate court in said county, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. Service of process on City shall be made in accordance with California law. Service of process shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between the Parties seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorney’s fees.
Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of both parties. The parties shall cooperate in good faith concerning any amendment proposed to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non-material modifications may be approved by the City Manager upon the recommendation of the Beaches, Parks & Recreation Director, and approval of the City Attorney.
Corporate Authority. The person(s) executing this Agreement on behalf of each of the parties hereto represent and warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such party is bound.
Notices. All notices under this Agreement shall be effective upon personal delivery, via facsimile so long as the sender receives confirmation of successful transmission from the sending machine, or three (3) business days after deposit in the United States mail, registered, certified, postage fully prepaid and addressed to the respective parties as set forth below or as to such other address as the parties may from time to time designate in writing:
If to City:
City of San Clemente
100 N. Calle Seville
San Clemente, CA 92672
Attention: Recreation Manager
With a copy to:
Best Best & Krieger
18101 Von Karman, Suite 1000
Irvine, CA 92612
Attn: Scott Smith, City Attorney
If to SCA:
San Clemente Aquatics
Attention:
With a copy to:
Attention:
[End – signature page follows]
IN WITNESS WHEREOF, City and SCA have caused this Agreement to be executed on their behalf by their respective officers or agents herein duly authorized as of the date first written above. “CITY”
CITY OF SAN CLEMENTE,
a municipal corporation
By:
Its:
ATTEST:
City Clerk of the City of
San Clemente, California
APPROVED AS TO FORM:
Best Best & Krieger LLP
Scott Smith, City Attorney
“SCA”
SAN CLEMENTE AQUATICS TEAM,
a youth sports organization
By:
Its:
-2-
Recreation 100 North Seville San Clemente CA 92672
55452.01600\29014957.2
Attachment 4