AQUATICS PARTNERSHIP AGREEMENT
FOR
SAN CLEMENTE WATER POLO CLUB
This AQUATICS PARTNERSHIP AGREEMENT (the “Agreement”) is made and entered into this __ day of _____, 2024 (the “Effective Date”), by and between the CITY OF SAN CLEMENTE, a municipal corporation (“CITY”), and SAN CLEMENTE TRITONS WATER POLO CORPORATION, a California nonprofit public benefit corporation (“SCWP”), for the period of two (2) years from and after the Effective Date.
R E C I T A L S:
WHEREAS, the City owns and operates the San Clemente Aquatics Center at the Vista Hermosa Sports Park, which features a 50-meter competition pool and a 25-yard activity pool with play features, and the historic Ole Hanson Beach Club Municipal Pool, which features a 25-yard pool, and teaching pool; and WHEREAS, SCWP is a private non-profit organization that has been involved in competitive and non-competitive swimming activities in San Clemente since 2021 and currently serves 256 athletes ranging from novice to 16/18 U teams (the “Program”); and WHEREAS, SCWP currently uses the 50-meter competition pool at the San Clemente Aquatics Center and desires to enter into this Agreement to establish a program of pool usage for the continuation of its programs for SCWP members and City residents.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the parties agree as follows:
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 SCWP hereby agree as follows:
Program Requirements
As a material inducement to the City’s entering into this Agreement, SCWP agrees and covenants that, during the term of this Agreement, SCWP 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:
SCWP 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.
SCWP is not aware that it is the subject of any formal investigation and shall not be the subject of any investigation by any government or administrative agency of the City, County of Orange, State of California, or the United States Government. SCWP shall immediately notify the City in writing if it becomes aware that SCWP is the subject of any formal investigation by a government agency.
SCWP 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 City, and approved by the city’s risk manager. SCWP’s liability insurance shall be primary insurance without rights of subrogation. Each such policy of insurance shall comply with Article 16 below.
SCWP shall remain able to demonstrate financial hardship if the discounts provided for by this Agreement are denied and SCWP is required to pay regular rates for the use of City amenities, pools, and/or facilities.
SCWP has and shall maintain an open enrollment policy regardless of 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 8 years or older and be able to safely participate in group instruction in deep water.
SCWP shall maintain and enforce a “minimum play rule” which requires that each participant enrolled in the Program shall play 50% of the time for each game.
SCWP shall provide financial scholarships covering at least ten percent (10%) of the participants enrolled for fifty to one hundred percent (50-100%) of their registration fees to those participants who 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 SCWP activities. SCWP shall operate on the philosophy that no child will be denied a chance to participate due to financial hardship. SCWP will be required to submit to CITY their financial reports outlining their scholarship distribution annually.
SCWP shall prohibit discrimination on the basis of race, religion, national origin, ethnicity, sexual orientation, or gender. In order to promote a positive drug-free and child-friendly environment at City facilities, SCWP shall enforce a “zero tolerance” policy. Any SCWP 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 SCWP activities.
SCWP supplies and shall continue to supply participant rosters annually to the City. SCWP membership shall be comprised of no less than one hundred (100) participants, seventy-five percent (75%) of whom reside within the boundaries of the City of San Clemente.
1.10 SCWP tournaments and practices must be conducted within San Clemente boundaries.
1.11 SCWP shall maintain all documentation necessary to demonstrate compliance with all of the above. The City shall be permitted to inspect, make, and retain copies of any documentation necessary to verify Program compliance within this Article 1.
SCWP Representatives to City
SCWP 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 SCWP representative shall have the authority to make decisions for SCWP, sign applications with City on behalf of SCWP for pool use, approve billing, understand the pool operations regarding both scheduling and maintenance, assist with SCWP planning of pool allocations, and be responsible for resolving conflicts if/when they arise.
SCWP is responsible for notifying City in writing within thirty (30) days of any change in its designated SCWP representative referenced in Section 2.1.
The City Beaches, Parks and Recreation Department (the “Department”) will be the City liaison coordinating all City operations. City responsibilities are delegated to the Recreation Division under the guidance of the Beaches, Parks & Recreation Director or his/her designee. Matters pertaining to the following areas of operation should be directed to this individual: pool allocations, rental applications, billing, insurance, lights, closures, conflicts, pool maintenance, and vandalism.
Aquatic Facilities and Event Space Rental Rates
Aquatic partnership fees and discounts are designed to support competitive youth water polo programming initiatives within the City’s aquatic facilities. Certain programs and services are excluded from the partnership discounts to maintain program integrity and financial sustainability.
All pool assignments shall be made by the City at its sole and absolute discretion. SCWP shall pay a Pool Rental Fee(s) to the City within 14 business days after receipt of the Conditional Pool Use Permit 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 remain in effect and apply to SCWP Junior Partnership:
Facility Amenity
Standard Rental Rate
Discount
Discounted Rate
25-Yard Pool Lane
$25.00/Hour/Lane
50%
$12.50/Hour
50-Meter Pool Lane
$55.00/Hour/Lane
50%
$27.50/Hour
50-Meter Pool
$250.00/Hour/Lane
50%
$125.00/Hour
25-Yard Pool
$125.00/Hour/Lane
50%
$62.50/Hour
Friends Meeting Room
$150.00/Hour
70%
$45.00/Hour
Grass Event Space
$200.00/Hour
70%
$60.00/Hour
SCWP Cabana
$50.00/Hour
None
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Tournament/Competition
$400.00
50% Off-Peak (Oct-Apr)
No Discount Peak
$200.00/Hour
$400.00/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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Sound Amplification
$60.00 Flat Daily Rate
None
----
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 and operate within American Red Cross licensing requirements.
Tournament/Competition Fees: Inclusive of the course set up, and upon approval referenced in section 6.1, use of City Electricity, Colorado Timing System, Scoreboard, Water Polo Cages, Course Markers, City Tables, Folding Chairs, Event Barricades, and additional Trash Cans.
Sound Amplification: Any use of sound amplifying equipment on public property requires prior approval and must be included in a rental application. The request must be approved and billed out at the flat daily rate, prior to use. This applies to both conditional use permits during public operating hours and private use permits, pursuant to San Clemente Municipal Code 8.48.
Additional Services: Any additional services required by the City to facilitate a special pool rental will be determined and billed to SCWP 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 Partnerships discounts do not apply to private lessons, seasonal “feeder” programs, or lesson-based programming.
All fees outlined in this Article 3 are subject to change based on City Council resolution. Organizations will be notified of any changes prior to any public meeting.
Lane Allocation and Scheduling
Although community programs, community contract classes, and senior partnerships have priority, SCWP shall be able to reserve pool space in the 50-meter pool Monday through Saturday based on availability.
City and SCWP representatives will meet quarterly to determine Aquatics Center rentals. The City cannot guarantee any minimum or maximum number of lanes available for use to SCWP. 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, water polo tournaments, grass space, and special events. SCWP’ representative shall provide a written request for rentals three (3) months in advance to assist City in determining a Master Aquatics Facility Calendar. SCWP 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 change. If the changes are significant, the notice should be given four (4) weeks before allowing for the management of staffing, lane availability, and other conflicts. 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.
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 SCWP are to be utilized for SCWP programs only. SCWP shall not sublet pool space or lanes to outside organizations. SCWP 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 SCWP.
SCWP shall request only needed lane space and not overbook the lanes. If the City determines, in its sole and absolute discretion, that SCWP has overbooked lane space, the City may adjust lane allocation unilaterally.
City will notify SCWP of any excess lane capacity available when City classes are canceled or moved. SCWP may use the additional lane capacity when SCWP and the City determine that additional capacity is necessary during the period that such excess capacity is available.
It is the responsibility of SCWP to coordinate all pool schedules with its participants and coaches.
SCWP will not be allocated pool time for group or private water polo and/or swim lessons. This is a direct conflict with City programming and City policy prohibiting instructional programming without a formal agreement with the City. Instructional programming that falls outside of the scope of the aquatic partnership requires separate approval. This includes, but is not limited to:
Any instructional program not covered under the aquatic partnership must be approved individually (i.e., Splashball and Clinics).
A separate program rental application must be submitted for instructional programming outside of the aquatic partnership. This application is distinct from the partnership rental application and ensures that all necessary details and approvals are in place.
SCWP may utilize a microphone device only 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 group-style rentals based on the following criteria:
A minimum of three (3) swimmers per lane is required for all short-course lane allocations.
A minimum of six (6) swimmers per lane is required for all long-course lane allocations.
All cancelations must be submitted in writing via email to City representative to release overbooked lanes that do not meet the minimum allocation requirements.
SCWP 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 rental period. SCWP will be charged for the lane rental without a refund.
Cancelation of reserved rental lanes must be made twelve (12) hours before the start of the rental time listed on the permit. If the lanes will not be utilized or the minimum swimmer requirements will not be met. SCWP will be issued a refund for the released lanes provided the cancelation is made within the 12-hour period.
Provision of Lifeguards
The City provides City lifeguards at all times when SCWP members are in the pool. SCWP practices shall be held at times when City lifeguards are available and on duty. For SCWP tournaments 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 Salary Schedule, per hour per lifeguard. The number of additional lifeguards required is dependent on the number of attendees, including non-swimming guests on the pool deck.
Pool Supplies and Standards
City will provide lane lines, water polo cages, and nets for SCWP practices and tournaments/competitions held at the San Clemente Aquatic Center. SCWP is responsible for any and all additional equipment they may require. All additional equipment is subject to City approval.
The SCWP coaches and representatives will communicate any issues with the pool or deck equipment. When/if items are damaged, or deemed to be in poor repair, it is the responsibility of the coach that day to ensure the SCWP participants are not in the water until the City approves it is safe to do so.
Use of Colorado Timing Equipment: SCWP may utilize the City’s Colorado Timing System and scoreboard. An SCWP representative shall sign a city-approved release/waiver agreement holding SCWP responsible for the laptop and 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 SCWP’s use will be the responsibility of SCWP. Only trained SCWP representatives and City staff may use the Colorado Timing System equipment.
SCWP shall be billed at the Junior Partner Tournament/Competition Rate for all lane usage while Colorado Timing Equipment and Scoreboard are in use.
City will attempt to but has no obligation to maintain, a water temperature between 78–82 degrees Fahrenheit (25.5–27.5 degrees Celsius) during practices, and competitions.
City will remove or raise diving boards that are not in use during tournaments and competitions.
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 Facility.
Any aquatic facility closure in excess of one week will be posted on City’s official website: www.san-clemente.org.
City will contact the SCWP representative by phone and/or email to notify SCWP of the closure.
SCWP will be responsible for contacting its coaches and participants to notify them of the closure.
SCWP 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 SCWP, any SCWP member, and/or SCWP invitee. City will credit SCWP lane space for pool closures that are not the fault of SCWP.
Glass is prohibited on the pool deck. The City has established a fee schedule if broken glass caused by SCWP, any SCWP member, and or SCWP invitee is found on the pool deck and/or in the pool.
If glass is broken on the pool deck, the City aquatics staff are to be notified immediately via email.
SCWP will be invoiced for the removal of broken glass and cleaning of the pool facility.
The “Glass Fee” is inclusive of City staff time, including cleaning, power washing, and other resources that may be deployed. Additional fees may be assessed if the pool(s) require additional vacuuming and/or draining. If draining the pool is required, SCWP may be invoiced for an additional spike in water fees incurred by the City associated with the glass removal efforts. The following is an itemized list of fees that may be assessed:
Facility Maintenance Fee Schedule - Flat Rate Costs
Glass found on Pool Deck
$241.50
Glass found in Teaching Pool
$577.50
Glass found in 25 Yard Lap Pool
$735.00
Glass found in 50 M Competition Pool
$892.50
Pool and Park Clean-Up
SCWP shall clean up pools, restrooms, locker rooms, and associated areas in the proximity of the pool after each use by SCWP. 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, SCWP shall prevent cleaning materials, trash, sediment, cleaning chemicals, and runoff from entering the storm drain system (i.e., street gutters or catch basins).
Concessions
During this agreement, SCWP has not been allocated concession rights. Any request for concessions must be submitted in writing to the Recreation Department for approval.
In accordance with San Clemente Resolution No. 04-27, there will be no use of Styrofoam products at any location within the Aquatics Facilities. SCWP shall prevent the utilization and/or distribution of expandable polystyrene food service products, commonly referred to by the trade name “Styrofoam,” by any SCWP 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 SCWP 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, SCWP should contact Orange County Sheriff’s Department for assistance.
Tournament Allocations and Rental Conditions
SCWP shall be permitted to host (2) water polo tournaments per year after first having obtained City approval for each such event. SCWP shall apply to hold a water polo tournament 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. SCWP 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.
SCWP will make its best effort to host these tournaments/competitions during non-peak times (October-April). Aquatic Partnerships discounts do not apply during tournaments held during peak months (May-September).
The terms of Article 6 apply during all SCWP tournaments or events.
General Conditions for Special Events and Swim Meets
City shall provide recycling containers at all SCWP special events.
SCWP shall ensure that neither its members nor its invitees consume alcoholic beverages at any location within the Aquatics Facilities.
SCWP 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.) SCWP 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
Magazine/Web Space: City will list SCWP once each quarter in the City’s Recreation Magazine and on the City Website in the youth sports section. SCWP is responsible for submitting accurate information to the City prior to the publishing schedule.
Printed Materials: Except as provided above, SCWP will be responsible for all printed promotional materials. City does not provide for copying of flyers, posters, registration packets, or any other printed materials. SCWP 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: SCWP 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 SCWP representatives.
Banners at San Clemente Aquatics Center or on Pool Deck: SCWP may place temporary sponsor banners located on the pool deck and the grass space adjacent to the pool deck during tournaments/competitions. Prior approval is required by the Department.
Overhead Banner Reservation: City has an overhead banner program that is offered to community partners for promotional space. Banner fees apply, without discount. 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.
SCWP Contributions to Pool Maintenance
As a Junior Partner to the City, SCWP shall assist with the stewardship and maintenance of pools.
SCWP shall obtain prior written consent from City to make any alterations, additions, or improvements to City pools including routine pool maintenance and preparations. SCWP understands that any other such alterations, additions, or improvements must comply with all state and local standards.
Indemnification. To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.6), SCWP shall defend (with legal counsel reasonably acceptable to City), indemnify, and hold free and harmless City and City’s agents, officers, volunteers 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 SCWP participants, invitees, officers, agents, employees, representatives, volunteers or subcontractors of SCWP [collectively, the “SCWP 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 acts, omissions, negligence (whether active or passive), recklessness, or willful misconduct of SCWP’s use of the City facilities including but not limited to the San Clemente pools, by any of the SCWP 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.
Insurance.
Prior to the City’s execution of this Agreement, and as a condition to the effectiveness hereof, SCWP shall submit certificates and endorsements to City indicating compliance with the following minimum insurance requirements, and SCWP 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.
SCWP shall carry sexual abuse and molestation (SAM) insurance with limits not less than $1,000,000 per occurrence or claim with an aggregate of not less than $2,000,000. The policy shall provide coverage including but not limited to claims for improper sexual conduct, damages because of bodily injury, and negligent hiring and supervision.
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 Best’s Key Rating Guide or a company of equal financial stability that is approved by City’s Risk Manager for all coverages 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 SCWP pursuant to the terms of this Agreement; and be written on an occurrence and not a claims-made basis; and All defense costs shall be outside the limits of the policy.
With respect to such insurance policies, original documents shall be sent to:
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
Attention: Beaches, Parks & Recreation Director
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 SCWP as well as any other use of City facilities as provided for under this Agreement for meets, practices, and other usages based upon SCWP’s violation of the City Municipal Code or this Agreement.
Commitment: SCWP’s Board of Directors is required to notify SCWP 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 SCWP to address concerns and enhance communications between staff, pool users, and the community. It is the responsibility of SCWP to notify City of any concerns.
Outcome: SCWP shall regularly communicate with SCWP 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 may document violations resulting from SCWP’s failure to follow the terms of this Agreement, the Municipal Code, and City Department policies and procedures. Any failure to document such violations shall not constitute a waiver.
Notification: City staff shall contact the SCWP representative to discuss any noticed violation. City shall e-mail a SCWP 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: SCWP’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 SCWP’s representative and President. If SCWP fails to take the necessary actions to resolve the issue as agreed upon between the parties, City may resolve the issue and charge SCWP for any manpower and/or equipment used to resolve the issue. SCWP 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 SCWP.
First Warning: The first warning letter will be sent upon SCWP’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 SCWP’s President and representative documenting the violation and will be placed in SCWP’s file. A report and/or pictures of the violation will be included for reference. The matter may be appealed by SCWP 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 SCWP a letter notifying SCWP that a City staff member will be assigned to monitor SCWP activities due to the violation. SCWP 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 two years from the Effective Date and will continue until canceled under the provisions of Section 21.9.
Any applicable Extensions shall be granted under Beaches, Parks & Recreation Directory authority and based on SCWP’s demonstrated ability to meet the minimum requirements of the Aquatics Junior Partnership, including but not limited to the total number of swimmers and minimum residency requirements.
SCWP 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. SCWP 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 that 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 covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by 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 for the purpose of enforcing, construing, or determining 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 including under Code of Civil Procedure section 394. 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.
Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of both parties. The parties shall cooperate in good faith with respect to any amendment proposed in order 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 Community Development 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: Beaches, Parks & Recreation Director
With a copy to:
City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attention: City Clerk
If to SCWP:
San Clemente Tritons Water Polo Corporation
134 Avenida San Dimas
San Clemente, CA 92672
Attention: President
[End – signature page follows]
IN WITNESS WHEREOF, City and SCWP 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:
Samantha Wylie, Beaches, Parks & Recreation Director
ATTEST:
City Clerk of the City of
San Clemente, California
APPROVED AS TO FORM:
Elizabeth A. Mitchell
City Attorney
“SCWP”
SAN CLEMENTE TRITONS WATER POLO CORPORATION,
a California nonprofit public benefit corporation
By:
Its: Christopher L Powell, CEO
By:
Its: Anissa Bromley, CFO
-16-
Recreation 100 North Seville San Clemente CA 92672
55452.01600\29014957.2
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Attachment 5